Date: 20050615
Docket: T-703-93
Citation: 2005 FC 839
BETWEEN:
CHIEF SIMON SAMUEL, JEROME DENECHEZHE
SARAH SAMUEL, DONALD TSSESSAZE, SIMON
DENECHEZHE AND NAPOLEON DENECHEZHE,
COUNCILLORS, ON THEIR OWN BEHALF AND ON BEHALF OF THE
NORTHLANDS BAND OF INDIANS, AND CHIEF STEVEN
THORASSIE, ERNIE BUSSIDOR, ALBERT THORASSIE
AND CHARLIE TOM, COUNCILLORS, ON THEIR OWN BEHALF AND
ON BEHALF OF THE FORTCHURCHILL BAND OF INDIANS,
NOW KNOWN AS THE SAYISI DENE FIRST NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT, NUNAVUTTUNNGAVIK
INCORPORATED, AND THE GOVERNMENT OF THE NORTHWEST
TERRITORIES, AS REPRESENTED BY THE GOVERNMENT LEADER
Defendants
REASONS FOR ORDER
(Delivered from the bench at Ottawa, Ontarioon
Friday June 10, 2005)
HUGESSEN J.
[1] Because of the urgency of this matter I have accepted to hear it this afternoon despite whatever imperfections will undoubtedly appear in these reasons. I also think it is important that I should dispose of the matter without delay since it is proposed early next week to disclose information which the present motion seeks to have kept confidential.
[2] The action itself is an aboriginal land claim instituted by two Indian bands in northern Manitoba whose territories are on or adjacent to the boundary of that province with what is now Nunavut. The defendants to the action are the Crown NTI which is a representative organisation of the Inuit in Nunavut and the government of the N.W.T. (now Nunavut).
[3] The case has been case managed by me since my appointment to this Court which, trusting on my memory goes back I think to 1997.
[4] The parties have entered into negotiations with a view to settlement of the action and settlement of the claims of the plaintiff Bands. Those negotiations have been subject to a very limited control by the Court which has not actively participated in or attempted to supervise the negotiations. The Court's role has in fact been limited to keeping itself informed that the negotiations were and are taking place and to adjourning the action from time to time so as to allow all the parties to keep so to speak their legal powder dry.
[5] Sometime after the negotiations started the parties entered into an agreement which the moving party the Crown calls a confidentiality agreement and the responding party NTI calls a disclosure agreement. I shall simply call it the agreement. By the terms of that agreement NTI was invited to participate actively in the negotiations for settlement and to be informed of the progress of those negotiations and of all the information or proposals that were being exchanged.
[6] I think it important for the purposes of these reasons to draw attention to certain parts of that agreement but because the agreement itself is confidential and has been filed under seal and since these reasons will, in all likelihood, be made public, I would do no more than refer to the preamble to the agreement and paragraphs 1, 2, 5, 6, 7, 8, 9 and 12 without quoting the text.
[7] The present motion by the Crown seeks to have me declare that a proposed disclosure by NTI to certain interested members of affected Inuit communities of the precise quantum of land located in Nunavutwhich the Crown has offered to convey to the plaintiffs in fee simple would be contrary to the terms of the agreement.
[8] The Crown objects that that disclosure is prohibited by the agreement. Paragraph 5 of the agreement does indeed declare that: "Any and all information or documentation communicated during the course of negotiations" shall be kept confidential ("shall not be disclosed in any manner by any party").
[9] Paragraph 8, however, permits the disclosure of general information in the first sentence and goes on in the second sentence to prohibit the disclosure of "specific documents and excerpts of documents". The drafting of the agreement is not the clearest in the world but it is important to note that one purpose of allowing disclosure is to permit consultation with interested groups so that informed negotiations can take place.
[10] I would emphasize, at this point, that I am not concerned with the advisability or opportunity of permitting or prohibiting the proposed disclosure. My only concern is to know whether the proposed disclosure is or would be in conflict with the terms of the agreement.
[11] I note that the parties have recently agreed to have their negotiations mediated through the offices of the Honourable Peter Cory and that the first session of that mediation is scheduled to take place in Winnipeg in about 10 days time. I draw attention to this fact because it seems to me that the matter of the disclosure or non-disclosure by NTI of the precise quantum of land being offered by the Crown in its negotiations with the plaintiffs is a matter which may very properly be dealt with in that mediation and that Mr. Cory may well find it useful or even necessary for him to give the parties some guidance and direction as to what should be disclosed and when. My concern as I say is simply the agreement itself and in that respect I have no doubt that the proposed disclosure would be contrary to its terms.
[12] Paragraph 5 lays down the rule and speaks in terms of keeping confidential what takes place at the negotiations. The exception in paragraph 8 allows limited disclosure to a limited group of persons of general matters: "the objectives, progress, status, and general elements of the negotiations". Then there is an exception to the exception in terms of "specific documents and excerpts of documents" whose disclosure without consent even to the limited group mentioned in the first sentence is prohibited. Reading the agreement purposively it is my view that there can be no daylight between what is permitted by the first sentence of paragraph 8 and what is prohibited by the second sentence: everything that his declared confidential in paragraph 5 must be either disclosable under the first sentence of paragraph 8 or non-disclosable under the second sentence.
[13] It is my conclusion that the proposed disclosure of the precise number of square kilometres of land proposed to be conveyed in fee simple would be a disclosure of a specific detail of a document that would be contrary to the terms of the agreement. As I have already indicated, however, that is a matter which I think may properly be the subject of the mediation which is scheduled to start before former Justice Cory on June 21, 2005.
[14] An order will go accordingly to the effect that the proposed disclosure would be contrary to the terms of the agreement entered into by the parties. There will be no order as to costs.
"James K. Hugessen"
Judge
Ottawa, Ontario
June 15, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-703-93
STYLE OF CAUSE: CHIEF SIMON SAMUEL AND OTHERS
- and -
HER MAJESTY THE QUEEN AND OTHERS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 10, 2005
REASONS FOR ORDER: HUGESSEN J.
DATED: June 15, 2005
APPEARANCES:
A. PELTZ FOR PLAINTIFFS
DOUGALD BROWN FOR DEFENDANT
NUNAVUT
JOHN TYHURST FOR DEFENDANT
THE QUEEN
SOLICITORS OF RECORD:
GANGE, GOODMAN & FINCH
WINNIPEG, MANITOBA FOR PLAINTIFFS
NELLIGAN POWER
OTTAWA, ONTARIO FOR DEFENDANT
NUNAVUT
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA FOR DEFENDANT
THE QUEEN
JOHN HOLDEN
YELLOWKNIFE, N.W.T. FOR DEFENDANT
GOV. N.W.T.
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