Date: 20150528
Docket: T-503-13
Citation:
2015 FC 687
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 28, 2015
PRESENT: The Honourable Madam Justice Gagné
|
BETWEEN:
|
|
THE INNU OF
UASHAT MAK MANU-UTENAM,
THE INNU OF MATIMEKUSH-LAC-JOHN,
THE INNU OF EKUANITSHIT,
THE INNU OF UNAMEN
SHIPU,
THE INNU OF PAKUA
SHIPI
|
|
Plaintiffs
|
|
and
|
|
HER MAJESTY THE
QUEEN IN
RIGHT OF CANADA
|
|
Defendant
|
|
and
|
|
THE ATTORNEY
GENERAL OF NEWFOUNDLAND AND LABRADOR
|
|
Intervener
|
JUDGMENT AND REASONS
I.
Overview
[1]
The federal Crown and the Attorney General of
the Province of Newfoundland and Labrador (NFL) are seeking to have the plaintiffs’
statement of claim struck out in its entirety on the ground that the Federal
Court has no jurisdiction over the conclusions sought by the plaintiffs. In the
alternative, they are asking the Court to exercise its discretion pursuant to paragraph 50(1)(b)
of the Federal Courts Act, RSC 1985, c F-7 (FCA) and to stay the proceeding
in the interests of justice, or essentially to encourage the plaintiffs to assert
their rights before the Supreme Court of Newfoundland and Labrador.
[2]
The plaintiffs, all Innu of Quebec, are
challenging the motion and are essentially arguing that their action, which applies
only to the federal Crown, concerns the negotiation and the entering into, in violation
of their Aboriginal and treaty rights, of an agreement‑in‑principle
between the federal Crown, the Government of NFL and the Innu of Labrador, namely
to recognize the rights of the Innu of Labrador in Labrador.
[3]
At the hearing before the Court, the position of
the plaintiffs was further clarified: because the plaintiffs are simply seeking
to have the federal Crown’s constitutional duty to consult them and accommodate
them recognized, this Court has the jurisdiction to hear and dispose of their
action.
[4]
For the following reasons, the motions to strike
of the defendant and the intervener will be granted and the plaintiffs’ action
will be stayed pursuant to paragraph 50(1)(b) of the FCA.
II.
The facts
[5]
The plaintiffs claim to be the descendants of
the Innu bands that historically occupied and used the Nitassian–Labrador land for
subsistence purposes, by practicing their unique way of life based on hunting,
fishing, trapping and gathering.
[6]
In paragraph 24 of their statement of claim,
they thus describe the activities that are integral to their distinctive
culture and, hence, their Aboriginal rights:
[translation]
(a) Hunting, fishing, trapping and gathering activities,
including the harvesting of wildlife such as hunting caribou, moose and
partridge for subsistence, cultural, social, ritualistic and commercial
purposes;
(b) The harvesting of plant, water, mineral and timber
resources for subsistence, cultural, social, ritualistic and commercial
purposes;
(c) The construction of camps, caches, residences or other
facilities necessary to their way of life and to the pursuit of their
traditional activities;
(d) The use of land, including watercourses, to exercise their
traditional activities, such as harvesting, as well as for transportation
purposes;
(e) The exercise of their spiritual and
cultural practices.
[7]
The plaintiffs allege that they have been exercising
their traditional activities on Nitassinan‑Labrador land since before the
arrival of the Europeans and well before the establishment of the provincial
Quebec‑NFL border and NFL’s entrance into the Canadian federation.
[8]
In November 2011, the Government of Canada, the
Government of NFL and the Innu of Labrador signed an agreement-in-principle
concerning Labrador Innu land claims and self‑government. Part 2.1 of the
Agreement-in-Principle reads as follows:
2.1.1 - The Agreement-in-Principle does not
create legal obligations binding on the Parties and does not define, create,
recognize, abrogate, derogate, deny or amend any of the rights of the Parties.
2.1.2 - The Agreement-in-Principle shall form
the basis for concluding the Agreement [which is defined under 1.1.1 as being
the Labrador Innu final land claims settlement agreement] and the Parties agree
to begin to negotiate the Agreement in good faith as soon as possible following
the signing of the Agreement‑in‑Principle.
[9]
The plaintiffs are criticizing the federal Crown
for not having consulted them before it signed the Agreement-in-Principle, even
though it knew of the potential existence of asserted Aboriginal rights and
that the Agreement-in-Principle was likely to have an adverse impact on those
rights.
[10]
However, it seems that, instead, the plaintiffs
were consulted in the context of the negotiations for the Agreement-in-Principle.
That is at least what is reflected in a letter dated April 1, 2015, by the
Aboriginal Affairs and Northern Development Canada negotiator to the plaintiffs’
respective chiefs (the letter was filed by consent at the hearing of the
motions). Pages 3 and 4 of the letter state the following:
[translation]
We would like to reiterate that the entire consultation
process will be complete when the groups that have the potential to suffer harm
from a potential treaty with the Innu of Labrador have had the opportunity to
be consulted on the draft of the final agreement. For the moment, as you
explained in your letter dated January 15, 2015, we understand that
the only accommodation that is satisfactory to you would be to put eliminate
any overlaps and remove all benefits, advantages or rights of the Labrador Innu
in areas where you deem that only your communities are impacted.
Taking all of these elements into
consideration, we find that the time has come to end the consultations for the Agreement‑in‑Principle
and to prepare for the consultations for the draft of the final agreement where
you may see the changes made by the negotiation table since November 2011. We
will contact you before the end of the negotiation of the final agreement to
initiate the last phase of the consultation process.
[11]
Unsatisfied with the federal government’s position,
the plaintiffs brought this action, by which they are seeking
[translation]
1. A declaration that the plaintiffs have, at least, prima
facie, Aboriginal and treaty rights in and with respect to a large portion
of the land commonly called “Labrador”, which is part of the plaintiffs’
traditional land (Nitassinan);
2. A declaration that the plaintiffs’ Aboriginal and treaty
rights include the right to exercise in the part of Nitassinan in Labrador (Nitassinan-Labrador)
the Innu way of life, their culture, customs, traditions and traditional practices,
including the right to harvest;
3. A declaration that the defendant breached Her obligations
towards the plaintiffs by virtue of the honour of the Crown as well as Her
fiduciary duty to the plaintiffs regarding those rights and breached Her
constitutional duty to extensively consult with and accommodate the plaintiffs
regarding those rights before the conclusion in November 2011 of the
Labrador Innu Land Claims and Self-Government Agreement-in-Principle (Agreement‑in‑Principle)
by the Labrador Innu, the Government of Newfoundland and Labrador (NFL) and the
Government of Canada (Canada);
4. A declaration that the Agreement-in-Principle, attached herein
as Exhibit P-1, is unlawful, unconstitutional and of no force and effect with
respect to the plaintiffs and the plaintiffs’ traditional Innu land in Labrador.
5. A declaration that the Agreement-in-Principle breaches,
at least prima facie, the plaintiffs’ Aboriginal and treaty rights,
breaches the defendant’s duty to extensively consult with and accommodate the plaintiffs
with respect to the Agreement, breaches the defendant’s fiduciary duties
towards the plaintiffs and contravenes the honour of the Crown.
6. A declaration
that any final agreement or final agreement to settle the land claims covered
by the Agreement‑in‑Principle (final agreement) that is entered
into, without the plaintiffs’ consent, between the Labrador Innu, Canada and
NFL will be inconsistent with the plaintiffs’ rights, will breach the plaintiffs’
Aboriginal and treaty rights, will breach the defendant’s duty to extensively consult
with and accommodate the plaintiffs with respect to that final agreement, will
breach the defendant’s fiduciary duties to the plaintiffs regarding their
rights and will contravene the honour of the Crown.
7. A declaration that the defendant has at least the duty to
extensively consult with and accommodate the plaintiffs before negotiating or
signing any final agreement concerning Labrador Innu land claims and
self-government or any other agreement concerning land claims in Nitassinan-Labrador.
8. A declaration that, under the common law, treaties
between the French Crown and the British Crown, on the one hand, and the Grand Innu
Nation, on the other, and various constitutional instruments, including the Royal Proclamation
of 1763, the Terms of Union of Newfoundland with Canada and the
Newfoundland Act, the defendant has, among Her fiduciary and constitutional
duties, the duty to recognize, protect, respect, preserve and promote the plaintiffs’
freedom and right to exercise without interference their Aboriginal and treaty
rights in Nitassinan-Labrador.
9. A declaration that the defendant contravened the honour
of the Crown and breached those fiduciary and constitutional duties to
recognize, protect, respect, preserve and promote the plaintiffs’ freedom and
right to exercise without interference their Aboriginal and treaty rights in
Nitassinan‑Labrador, including by signing the Agreement‑in-Principle
and by continuing negotiation of a final agreement, both without the plaintiffs’
consent.
10. A permanent injunction ordering the defendant, Her
officers, directors, employees, servants, agents and those in active concert
and participation with Her, (a) to take the necessary measures to prevent or to
stop any implementation of the Agreement-in-Principle by the defendant, (b) to fulfill
Her Majesty’s constitutional and fiduciary duties relating to the plaintiffs in
accordance with the honour of the Crown and Her Majesty’s constitutional
jurisdiction under subsection 91(24) of the Constitution Act, 1982,
(c) to not participate in the negotiations in relation to signing the final agreement
without the plaintiffs’ consent or without having extensively consulted with
and accommodated the plaintiffs regarding their Aboriginal and treaty rights in
Nitassinan-Labrador, and (d) to not sign the final agreement without the plaintiffs’
consent or without having extensively consulted with and accommodated the plaintiffs
regarding their Aboriginal and treaty rights in Nitassinan-Labrador.
III.
Issues
[12]
The following issues arise in the motions of the
defendant and the intervener:
-
Does the Federal Court have jurisdiction to
issue the orders sought by the plaintiffs?
-
Is it in the interests of justice to stay the
plaintiffs’ action so that the issues raised by the plaintiffs can be argued
before the Supreme Court of NFL?
IV.
Analysis
-
Does the Federal Court have jurisdiction to
issue the orders sought by the plaintiffs?
[13]
In the context of a motion to strike a pleading,
the facts as alleged must be taken as proven. The issue is therefore whether,
assuming that the facts can be proven, it is “plain and
obvious” that the plaintiffs’ statement of claim fails to disclose a
reasonable cause of action (Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959 at
para 33). In the case at bar, the absence of a cause of action would result from
the Federal Court’s lack of jurisdiction on the very essence of the plaintiffs’
claim.
[14]
The defendant and the intervener are arguing in
that respect that the FCA does not allow the Court to grant an injunction order
against a province or any remedy that would affect a province’s property rights.
They are arguing that that issue was determined by the Federal Court of Appeal
in Conne
River Band v Canada (1983), 49 NR 198 (FCA), upheld by the
Supreme Court of Canada in Joe v Canada, [1986] 2 S.C.R. 145 (Joe) and
by the Federal Court of Appeal in Vollant v Canada, 2009 FCA 185 (Vollant).
No distinction can be made, according to them, and those precedents apply in
this case.
[15]
The plaintiffs instead suggest that there is a
distinction between a claim for Indian title on provincial land (raised in Joe),
a claim for Aboriginal rights (raised in Vollant) and having the Court
recognize the federal Crown’s duty to consult them and accommodate them when it
negotiates agreements that are likely to have an adverse impact on their asserted
Aboriginal rights that are established only prima facie. Even though their
statement of claim and written representations are worded in a much broader
manner, the plaintiffs are arguing that their action is restricted to the federal
Crown’s duty to consult and accommodate and that the Federal Court has
jurisdiction to hear it.
[16]
If the essence of the plaintiffs’ action was indeed
that the federal Crown had failed to consult them before signing the Agreement-in-Principle
and its duty to consult them before signing the final agreement with the
Government of NFL and the Innu of Labrador, and if the remedies sought by the plaintiffs,
as a result of those violations by the federal Crown, concerned only the federal
Crown, I would agree with the plaintiffs.
[17]
This Court certainly has substantial
jurisdiction over Aboriginal matters and particularly to recognize the federal
Crown’s duty to consult and accommodate, to determine its degree based on the
quality of the alleged potential Aboriginal rights and to force the federal
Crown to fulfill its duties (see Sambaa K’e Dene First Nation v Duncan,
2012 FC 204 and Huron-Wendat Nation of Wendake v Canada, 2014 FC 1154).
[18]
The plaintiffs refer the Court to the Supreme
Court of Canada’s decision in Haida Nation v British Columbia (Minister
of Forests), [2004] 3 S.C.R. 511 (Haida), in which the source, scope
and content of the duty to consult, as well as when it arises, were discussed
in detail. The Chief Justice explained that the duty is grounded in the honour
of the Crown (federal or provincial) and that it is a procedural duty that arises
when the Crown has knowledge of Aboriginal rights that have been asserted, but that
have still not been defined or proven, and contemplates conduct that might
adversely affect those Aboriginal rights, if eventually proven.
[19]
It is admitted, at least by counsel for the Innu
of Matimekush-Lac John (counsel for the Innu of Uashat mak Manu-Utenam is not
in agreement), that this Court does not have jurisdiction to rule on the plaintiffs’
substantive rights and to confirm their Aboriginal and treaty rights in Labrador.
Because such confirmation would have a clear impact on NFL’s property rights in
the land and involve several activities under provincial jurisdiction, only the
Supreme Court of NFL would have jurisdiction over all of the issues raised by
such an action. It is well known that section 17 of the FCA concerns only the federal
Crown, and does not include the provincial Crowns, and that this Court does not
have jurisdiction to issue orders, of any nature, against the government of a
province.
[20]
However, a close reading of the plaintiffs’
statement of claim and all of the remedies they are seeking before this Court
instead reflects a dispute between the plaintiffs, on the one hand, and the Innu
of Labrador and NFL, on the other hand. Counsel for the plaintiffs acknowledged
before the Court that in the plaintiffs’ opinion, the Agreement-in-Principle
grants too many rights to the Innu of Labrador in Labrador. Almost all of the relief
sought by the plaintiffs (with the exception of perhaps paragraphs 3, 5 and 7, reproduced
in paragraph 11 of these reasons) would, if granted by this Court, impact the
rights of the Innu of Labrador and those of NFL, which are not defendants in
the action brought by the plaintiffs.
[21]
For example, in paragraph 4 of their conclusions,
the plaintiffs are seeking “[a] declaration that the
Agreement-in-Principle . . . is unlawful, unconstitutional and of no force and
effect with respect to the plaintiffs and the plaintiffs’ traditional Innu land
in Labrador”. Such a conclusion, clearly, adversely impacts all of the
signatories of the Agreement‑in‑Principle.
[22]
As another example, at paragraph 6 of the relief
claimed, the plaintiffs are seeking “[a] declaration
and any final agreement or final agreement to settle the land claims covered by
the Agreement-in-Principle . . . that is entered into, without the plaintiffs’
consent, between the Labrador Innu, Canada and NFL . . . will breach the plaintiffs’
Aboriginal and treaty rights . . . ”. To make that
declaration, this Court would have to confirm, definitively, the plaintiffs’
Aboriginal and treaty rights. In Haida, the following was well stated by
the Chief Justice:
[48] This process does not give Aboriginal
groups a veto over what can be done with land pending final proof of the claim.
The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in
cases of established rights, and then by no means in every case. . .
.
[23]
However, because the Aboriginal rights in
question are directly linked to the land of the province of NFL, the province
of NFL has a certain interest in any action that would definitively establish
and prove the plaintiffs’ Aboriginal and treaty rights.
[24]
For the first issue that arises in the motions
of the defendant and the intervener, I find that this Court has jurisdiction to
recognize the federal Crown’s duty to consult and accommodate, to determine its
degree based on the quality of the alleged potential Aboriginal rights and to
force the federal Crown to fulfill its obligations. However, those claims are
only incidental to the plaintiffs’ action and this Court does not have
jurisdiction over the very essence of their action.
[25]
In short, if each allegation that exceeded the
factual elements required to demonstrate that the federal Crown has the duty to
consult the plaintiffs in its negotiations concerning the land of Labrador
needed to be struck from the plaintiffs’ statement of claim, but especially if
each of the sought conclusions or remedies that do not arise from a breach of
that duty to consult needed to be struck, the plaintiffs’ action would be
distorted and the result would be a multitude of proceedings. It would be
contrary to the interests of justice and the parties and to a constructive use
of judicial resources to allow the plaintiffs’ “cleansed” action to continue
before this Court and to force the parties to debate a significant portion of
the issues raised in their original action before the Supreme Court of NFL.
-
Is it in the interests of justice to stay the
plaintiffs’ action so that the issues raised by the plaintiffs can be argued
before the Supreme Court of NFL?
[26]
The following was well stated by Justice Décary in
Vollant, at paragraph 7, “[t]he striking out of an
entire statement of claim is nonetheless an extreme remedy in a case in which
the Court’s concurrent jurisdiction over some aspects of the dispute has been
established”. In this case, given my finding that this Court has
jurisdiction over a portion, even though incidental, of the plaintiffs’ action,
I will exercise my discretion pursuant to subsection 50(1) of the FCA and like
the Federal Court of Appeal in Vollant, I will stay the plaintiffs’
action before this Court to allow the debate to be pleaded before the Supreme
Court of NFL, between the parties involved in the dispute.
V.
Conclusion
[27]
In light of the foregoing, the motions of the defendant
and the intervener will be granted and the matter will be stayed pursuant to
paragraph 50(1)(b) of the FCA. Given the particular circumstances of
this matter and the partial jurisdiction of this Court over the subject of the dispute,
regarding the defendant, costs will be awarded only to the intervener.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
1.
The motions of the defendant and intervener are
granted;
2.
The action of the plaintiffs is stayed pursuant
to paragraph 50(1)(b) of the Federal Courts Act;
3.
Costs are awarded only to the intervener, the
Attorney General of Newfoundland and Labrador.
“Jocelyne Gagné”
Certified true translation
Janine Anderson,
Translator
Email this Content