Docket:
A-114-13
Citation: 2014 FCA 7
CORAM:
PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
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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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Appellants
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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Heard
at Winnipeg, Manitoba, on January 15, 2014.
Judgment
delivered at Ottawa, Ontario,
on January 17, 2014.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY:
PELLETIER
J.A.
STRATAS
J.A.
Docket:
A-114-13
Citation: 2014 FCA 7
CORAM:
PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
|
|
|
BETWEEN:
|
|
PEGUIS FIRST
NATION and CHIEF GLENN HUDSON, acting on behalf of the Chief and Council of
PEGUIS FIRST NATION
|
|
Appellants
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
This is an appeal from an order of the Federal
Court which dismissed an application for judicial review brought by the Peguis
First Nation and Chief Glenn Hudson, together acting on behalf of the Chief and
Council of the Peguis First Nation. The application for judicial review
challenged what was said to be a decision of the respondent “to not consult or
adequately consult with the […] Peguis First Nation […]
regarding the Kapyong [Barracks in Winnipeg, Manitoba] or not to transfer such
lands pursuant to the Treaty Entitlement Agreement […] of the [Peguis First
Nation] and to refuse to acknowledge the rights of the [Peguis First Nation]
under its [Treaty Entitlement Agreement] as well as Canada’s failure to follow
the Reasons for Judgment and Judgment of the Honourable Justice Hughes”
[rendered in Long Plain First Nation v. Canada (Attorney
General), 2012 FC 1474, 424 F.T.R. 52 ].
[2]
For reasons reported at 2013 FC 276, [2013]
F.C.J. No. 293, a judge of the Federal Court struck out the notice of
application and then dismissed the application for judicial review. In the
Judge’s view, the application was fatally flawed so that it could not succeed.
The fatal flaw in the application was that there was no decision, action or
failure on the part of the respondent in the 45 day period between the
release of Justice Hughes’ decision and the date the notice of application was
filed that could form the foundation of a successful application for judicial
review.
[3]
A decision by a judge to strike an application
for judicial review is a discretionary decision. Thus, this Court may intervene
only if satisfied that the Judge proceeded on a wrong principle of law, gave
insufficient weight to relevant factors, seriously misapprehended the facts, or
where an obvious injustice would otherwise result (Apotex Inc. v. Canada
(Governor in Council), 2007 FCA 374, 370 N.R. 336, at paragraph 15).
[4]
Applying this standard of review, I have not
been persuaded that the Judge committed any error that warrants intervention by
this Court. The Judge cited and applied the correct test at law for striking a
notice of application. She made no error in finding that:
•
The Judgment of the Federal Court rendered in Long
Plain First Nation enjoined Canada from disposing of Kapyong Barracks until
the judgment was either set aside or Canada properly consulted with all of the
First Nations ultimately found to be entitled to consultation.
•
The Federal Court judgment was under appeal.
•
The two First Nations the Federal Court found
were not owed any duty of consultation had filed cross-appeals.
•
As a result, no decision had been made by Canada not to consult or transfer Kapyong Barracks because it was not possible or
reasonable to do so within the 45 day period referred to above.
•
The order requested by Peguis First Nation would
conflict with, or effectively amend the judgment in Long Plain First Nation.
•
Any alleged failure to comply with the judgment
of the Federal Court was an enforcement issue and not the proper subject matter
of a fresh application for judicial review.
[5]
In my view, these findings supported the Judge’s
decision to strike the notice of application.
[6]
For these reasons, I would dismiss the appeal with
costs.
“Eleanor R. Dawson”
“I agree.
J.D. Denis Pelletier J.A”
“I agree.
David Stratas J.A.”
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