Date: 20130315
Docket: T-182-13
Citation: 2013 FC 276
Ottawa, Ontario, March 15, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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PEGUIS FIRST
NATION AND
CHIEF GLENN
HUDSON,
ACTING ON
BEHALF OF THE CHIEF AND
COUNCIL OF
PEGUIS FIRST NATION
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR ORDER AND ORDER
I. Introduction
[1]
By Notice of Application filed January 25, 2013, the Peguis
First Nation and Chief Glenn Hudson, acting on behalf of the Chief and Council
of Peguis First Nation (collectively, the PFN or the Applicants) have commenced
an application for judicial review (the Application) naming Her Majesty the
Queen as Respondent. The Applicants seek judicial review of certain alleged
“decisions” of the Respondent in relation to lands described as the Kapyong
Barracks site (the Barracks Lands).
[2]
The parties are agreed that the proper Respondent to the
application for judicial review should be the Attorney General of Canada
(referred to in these reasons as Canada or the Respondent).
[3]
The Respondent has brought this motion seeking to strike
the Application on a number of grounds. Alternatively, Canada seeks to stay this application pending the disposition of its appeal, in Federal
Court of Appeal File No. A-34-13, of the decision and judgment of Justice Roger
Hughes in Long Plain First Nation v Canada (Attorney General), 2012 FC
1474, [2012] FCJ No 1596 [Long Plain]. The Long Plain decision
was released on December 13, 2012, and an amended decision was issued on
December 20, 2012. In Long Plain, Justice Hughes was dealing with the
same lands – the Barracks Lands. The PFN was one of the successful parties in
that litigation in which Canada was held to have breached its duty to consult
with a number of First Nations, including the PFN, prior to disposing of the
Barracks Lands. Justice Hughes overturned the decision of Canada to sell the land to a third party and enjoined Canada from selling the Barracks Lands until Canada could demonstrate to the Court that the duty to consult with the four successful
Treaty One First Nations had been fulfilled.
II. Issues
[4]
The issues raised by this motion are as follows:
1.
Should the PFN’s Application be struck as an abuse of
process, on the basis that:
a.
There has been no reviewable decision of the Respondent;
b.
It is an indirect way for the PFN to supplement the record
before the Federal Court of Appeal in the appeal of Long Plain;
c.
Certain of the relief sought is in direct conflict with the
Judgment of the Court in Long Plain or would effectively amend that
Judgment;
d.
The relief sought with respect to alleged contempt should
have been made – if at all – under the contempt procedures set out in Rules 466
to 472 of the Federal Courts Rules, SOR/98-106; and
e.
The PFN fails to name other “directly affected persons” –
specifically, the other First Nations who were parties to Long Plain?
2.
In the alternative should the Application be stayed pending
the outcome of the appeal of Long Plain?
[5]
For the reasons that follow, I have concluded that the
Application should be struck. Given this conclusion, there is no need to
consider the Respondent’s alternative request for a stay of the Application.
III. The
context of this application
[6]
Before embarking on an analysis of the various arguments,
it is important to understand the context of the current Application.
[7]
In Long Plain, the PFN and six other First Nations,
all of whom who were signatories to Treaty No. 1 (collectively referred to as
the “Treaty One First Nations”) brought an application for judicial review to
overturn the decision of the Respondent to sell the Barracks Lands to the
Canada Lands Company Limited (Canada Lands Company). The basis of the
application was that the Respondent had failed to fulfill its duty to consult
with the Treaty One First Nations prior to transferring title to the Barracks
Lands. One of the Treaty One First Nations discontinued. Of the remaining six
First Nations, four ultimately succeeded in the judicial review – Long Plain
First Nation, Roseau River Anishinabe First Nation, Swan Lake First Nation and
PFN – and two were unsuccessful – Sagkeeng First Nation and Sandy Bay Ojibway
First Nation. The remedies granted to the four successful parties were not
differentiated: one blanket judgment was issued, overturning the decision to
transfer the Barracks Lands and enjoining the sale of the Barracks Lands until
the Respondent “can demonstrate to the Court that they have fulfilled in a
meaningful way their duty to consult with the Applicants”.
[8]
Once again, I highlight that the Application now before me
involves the same Respondent and the potential sale of the same Barracks Lands.
[9]
Immediately upon receiving the decision and judgment in Long
Plain, the PFN began to make written requests of the Respondent in regards
to the Barracks Lands. On or around December 18, 2012, the PFN forwarded an
Offer to Purchase the Barracks Lands and requested certain information. Further
letters were subsequently sent. The PFN claims that its requests have gone
unanswered. That is not entirely true; counsel for Canada responded – albeit
not to the liking of the PFN – to every letter. The final response from the
counsel for the Respondent, on January 10, 2013, was that:
The Crown continues to consider its options in respect of
the decision of Justice Hughes. Once a decision in that regard has been made,
it will be communicated to you and counsel for the other successful applicants.
Until then, I have nothing further to add in respect of the issues raised by
you.
[10]
As noted above, Canada appealed the judgment in Long
Plain on January 25, 2013. In addition, the two unsuccessful applicants
have brought cross appeals. Given that the Long Plain decision was only
issued in December 2012, it is not surprising that the appeal and cross appeals
are in preliminary stages.
[11]
The PFN argues that there is information relevant to its
rights to the Barracks Lands that make its case with respect to such Lands even
stronger than the rights that were recognized in Long Plain.
Specifically, the PFN refers to the PFN Treaty Land
Entitlement Agreement entered into by Canada on April 29, 2008 (the PFN Treaty
Entitlement Agreement). The PFN applied to the court to have the PFN Treaty
Entitlement Agreement included as part of the evidentiary record before Justice
Hughes. Insofar as the PFN Treaty Entitlement Agreement was concerned,
Prothonotary Lafrenière’s Order, dated September 13, 2011, precluded the filing
of this document as it did not precede the impugned decision. The PFN Treaty
Entitlement Agreement was not considered by Justice Hughes; the PFN submits
that it should be before the Court of Appeal on the hearing of the appeal of Long
Plain.
[12]
Thus, it appears that the real reason for bringing this
Application is two-fold: (1) the Applicants want an "insurance policy"
in case the Court of Appeal overturns Justice Hughes’s decision and Canada
moves to immediately transfer the Barracks Lands to the Canada Lands Company;
and, (2) the Applicant wants to get the evidence of the PFN Treaty Entitlement
Agreement before the Court of Appeal. During oral submissions, counsel for the
PFN candidly admitted as much. With respect to this second reason, the
Applicant wants this application to go first so that they can then join any
appeal of that decision to the appeal of Justice Hughes’s decision in Long
Plain. Stated differently, they wish to supplement the record before the
Court of Appeal to include reference to documents that were disallowed from the
first judicial review application and hearing. These overarching motives of the
Applicants inform my reading of the PFN Notice of Application and of the
material filed by the PFN in response to this motion to strike.
[13]
The relief sought by the PFN, as set out in its Notice of
Application, includes the following:
1.
A Declaration that Canada has acted unlawfully and
unreasonably by refusing to engage with the PFN with respect to the Barracks
Lands;
2.
An Order that Canada must sell the Barracks Lands to the
PFN on the same terms and conditions as those agreed with the Canada Lands
Company, subject to any overlapping claims by other Treaty One First Nations as
set out the PFN Treaty Entitlement Agreement;
3.
In the alternative, an Order that the parties must
immediately proceed to dispute resolution pursuant to the terms of the PFN
Treaty Entitlement Agreement;
4.
An Order that the injunctive relief in the Judgment of
Justice Hughes in Long Plain (preventing the sale of the Barracks Lands)
remains in full force and effect until the matter is resolved, either through
the sale of the Barracks Lands to the PFN or through dispute resolution
pursuant to the terms of the PFN Treaty Entitlement Agreement; and
5.
A Declaration that Canada is in contempt of the Judgment of
Justice Hughes by its ongoing decision to continue to refuse to consult with
the PFN.
IV. Analysis
[14]
The parties agree that the test for striking an application
for judicial review is high. A motion to strike in the context of judicial
review will only be granted in the most obvious cases, where the notice of
application is fundamentally flawed (David Bull Laboratories (Canada) Inc v
Pharmacia Inc, [1995] 1 FC 588 at 600, [1994] FCJ No 1629; Beatty v
Canada (Attorney General), 2003 FC 1029 at paras 7-9, [2003] FCJ No 1303).
Such cases include those where there was no decision or where the issue raised
was already litigated (Beatty, above at para 9).
[15]
It is an abuse of process for a party to re-litigate what
is essentially same dispute, where there is substantial factual overlap and
duplication of evidence between the two proceedings (Khadr v Canada
(Minister of Foreign Affairs), 2004 FC 1145 at para 11, 266 FTR 20).
[16]
Having read the motion materials and heard the submissions
of the parties, and having directed my mind to the test for the striking of an
application for judicial review at this preliminary stage, I am persuaded that
this is an appropriate case for striking the Application.
A. No
reviewable decision
[17]
As a threshold requirement for every judicial review, an
applicant must identify a “decision” that is reviewable. In my view, the PFN
has failed to identify any decision or action of the Respondent that could form
the basis of a judicial review at this time.
[18]
This can be best demonstrated by reference to the PFN’s
Notice of Application, where it states that:
This is an application for judicial review in respect of a
decision made by the Respondent to not consult or adequately consult
with the [PFN] regarding the [Barracks Lands] or not to transfer such lands
pursuant to the [PFN Treaty Entitlement Agreement] and to refuse to
acknowledge the rights of the [PFN] under its [PFN Treaty Entitlement
Agreement] as well as Canada’s failure to follow the Reasons for
Judgment and Judgment of the Honourable Justice Hughes [in Long Plain].
[Emphasis added.]
[19]
A review of the record demonstrates that there has been no
decision of Canada not to consult on the sale of the Barracks Lands. An
overriding consideration for Canada is that it is unable, pursuant to the
judgment in Long Plain, to dispose of the Barracks Lands at this time. A
fair characterization of Canada’s response thus far is that it is considering
its options, given the decision in Long Plain, and is not in a position
to discuss the sale of the Barracks Lands to the Applicants at present. This is
neither a refusal nor a failure.
[20]
Moreover, the Judgment of Justice Hughes set no time
limitations with respect to the obligation to consult on the disposition of the
Barracks Lands. The position of the Respondent is that it cannot make any
decision with respect to the disposition of the Barracks Lands unless the
Judgment of Justice Hughes is set aside or it has consulted with all of the
ultimately successful parties to the judicial review at issue in Long Plain.
At this time, given the cross appeals, there is no framework within which to
consult or to accept offers to purchase the Barracks Lands. The rights of all
parties to the appeal must be determined. Stated in different terms, no
decision has been taken by Canada not to consult or not to transfer the
Barracks Lands because it is not possible or reasonable to do so at this time.
[21]
Similarly, I see no decision that the Respondent has
refused to acknowledge the rights of the PFN under the PFN Treaty Entitlement
Agreement.
[22]
Any failure – if there is one – to “follow” the Reasons for
Judgment and Judgment of the Honourable Justice Hughes is an enforcement matter
and not the proper subject of a new judicial review application. The PFN,
through this judicial review, is attempting to enforce the terms of a judgment;
there is no reviewable decision. The PFN argue that, if Canada wanted to postpone its obligations to consult imposed by the Long Plain
Judgment, it should have brought a motion for the stay that portion of the
Judgment under Rule 398 of the Federal Courts Rules. Even if true, that
does not change the nature of the relief sought by the PFN.
[23]
In their written submissions, the Applicants suggest that
the decision “not to consult or adequately consult” is in respect of the
Respondent’s failures beginning in 2004 (Memorandum of Fact and Law, paragraph 58).
The problem with this position is that the failure to consult up to the time of
the decision to transfer the Barracks Lands to the Canada Lands Company has
been considered by the Federal Court in Long Plain and will be
considered again in the course of the appeal of Long Plain. The only
“decision” that could possibly be reviewable in this application for judicial
review would be a refusal to consult after that time; and, in this regard, the
PFN cannot point to any decision not to consult.
B. Indirect
way to supplement appeal record
[24]
As admitted by the PFN, one of the key reasons for bringing
this application for judicial review is to ensure that the Court of Appeal has
before it the PFN Treaty Entitlement Agreement. This is certainly not grounds
for judicial review. Moreover, it is pure speculation that the Court of Appeal
would even consider joining an appeal of a decision in this matter to the
appeal of Long Plain.
C. Conflict
with Long Plain
[25]
As stated in the relief sought, the PFN seeks an order that
the Respondent must sell the Barracks Lands to
the PFN on the same terms and conditions as those agreed with the Canada Lands
Company, subject to any overlapping claims by other Treaty One First Nations as
set out the PFN Treaty Entitlement Agreement. I accept that the PFN recognizes
the rights of other First Nations. However, such an order would, in my view,
fly in the face of the Judgment in Long Plain that enjoins the sale of
the Barracks Lands until adequate consultation with all four of the successful
Treaty One First Nations has taken place. Even if not in direct conflict, it
would set up a separate and very inefficient process for dealing with the
Barracks Lands which may lead to a conflicting result.
[26]
Furthermore, in this Application, the PFN are seeking an
order that necessarily results in a sale of the Barracks Lands to the PFN
(subject to the rights of the other First Nations). That is most definitely not
a necessary consequence of the consultations contemplated by Long Plain.
Under the Judgment in Long Plain, the results may be that, following
adequate consultation, the Barracks Lands are still transferred to the Canada
Lands Company or another third party. Absolutely nothing in the Judgment in Long
Plain mandates a transfer of the Barracks Lands to the PFN or any other
Treaty One First Nation. Thus, the order requested by the PFN in this
application would be in conflict with or effectively amend the Judgment in Long
Plain.
D. Contempt
[27]
In the Application, the PFN seeks an order of contempt
against the Respondent on the basis that the Respondent is in breach of the
Judgment in Long Plain. Putting aside the merits of this position, which
I do not accept, contempt proceedings must be brought under Rules 466 to 472 of
the Federal Courts Rules.
[28]
In Orr v Fort Mckay First Nation, 2012 FC 1436 at
paragraph 13, [2012] FCJ No 1650, Justice Noël emphasized the seriousness of
allegations of contempt:
A contempt procedure is very serious. It requires strict
compliance with the different steps that the Rules stipulate. The outcome
of this type of procedure can have great consequences on the person alleged to
be in contempt. Indeed, if found in contempt, the person may be imprisoned for
a period of less than five years or until compliance with the Order. The person
may also have to pay a fine, be obliged to do or refrain from doing any act and
pay costs (see Rule 472 of the Federal Courts Rules). [Emphasis added.]
[29]
The seriousness of contempt charges and of the penalties
requires a very special procedure. That procedure is provided for in the Rules.
An allegation of contempt cannot be buried in an application for judicial
review.
E. Proper
Respondents
[30]
The Respondent also asserts that Rule 303 of the Federal
Courts Rules requires that every person directly affected by the order
should be named as a respondent. In this case, there are seven Treaty One First
Nations. Three of these First Nations (in addition to the PFN) were found by
Justice Hughes to have an arguable claim to the Barracks Lands. Therefore, at
least these three First Nations, and perhaps the two unsuccessful First Nations
who are cross appealing the decision, should be parties to this application as
well.
[31]
While the PFN does not object to the addition of Treaty One
First Nations to the application as Respondents or Intervenors, they submit
that the participation of those third parties to this judicial review should be
subject to certain conditions that they can only obtain costs from the
Respondent and that their participation does not delay the resolution of the
proceedings.
[32]
Rule 303 of the Federal Courts Rules sets out who
must be named as a respondent on applications. Quite simply, a person who is
“directly affected” by any decision arising from the application for judicial
review must be named as a respondent. The PFN appears to acknowledge
that the other Treaty One First Nations would be directly affected by any
decision arising from their application. Indeed, it is obvious that all of the
Treaty One First Nations who were successful before Justice Hughes would be
directly affected. In addition, whether the two unsuccessful First Nations in
Justice Hughes’s decision are or are not directly affected will be dependent on
their cross appeal. There is no ability of the PFN to dictate on what terms the
other Treaty One First Nations will participate in the application for judicial
review. As far as I am concerned, they would have all such rights, as
Respondents, as are permitted by the Federal Courts Rules.
V. Conclusion
[33]
For the above reasons, I am prepared to strike the
Application as an abuse of process. The overriding problem with the Application
is that it does not disclose a decision. I believe that certain of the other
problems could possibly be remedied through amendments. For example, the
Applicants could add the other Treaty One First Nations as Respondents and
could remove certain of the relief requested. However, the fatal flaw in the
Application is that there has not been a decision or action or failure that
could form the foundation for a successful judicial review. The Application is,
accordingly, doomed to failure. Wasting any more judicial resources on what
would have become an exceedingly protracted battle is simply not warranted.
This is particularly so when the parties are involved in litigation of almost
all of the same issues in the appeal of Long Plain.
[34]
There is no need to address the alternative request of the
Respondent for a stay until the final determination of the appeal in Long
Plain. However, I would comment that the case for a stay is very compelling
indeed.
[35]
There is nothing in my decision that would prevent the
Applicants from pursuing another application for judicial review if and when a
reviewable action or decision is made by Canada. However, I hope that the
Applicants, in any such future application, are much more knowledgeable of the Federal
Courts Rules and what relief can or cannot be sought. The Application for
Judicial Review on this motion was woefully inadequate. I expect more from
counsel as experienced as Mr. Rath.
ORDER
THIS COURT ORDERS that:
1.
the style of cause is amended to name the Attorney General
of Canada as Respondent in place of Her Majesty the Queen;
2.
the Application for Judicial Review is dismissed; and
3.
costs are awarded in favour of the Respondent.
“Judith
A. Snider”
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