Date: 20040416
Docket: T-2287-03
Citation: 2004 FC 579
BETWEEN:
MUSQUEAM INDIAN BAND
Applicant
and
GOVERNOR IN COUNCIL OF CANADA,
TREASURY BOARD OF CANADA,
THE HONOURABLE ROBERT THIBAULT, MINISTER OF
FISHERIES AND OCEANS, CANADA LANDS COMPANY LIMITED,
CANADA LANDS COMPANY CLC LIMITED, CITY OF RICHMOND,
ATTORNEY GENERAL OF BRITISH COLUMBIA and
MINISTER OF INDIAN AND NORTHERN AFFAIRS
Respondents
REASONS FOR ORDER
PHELAN, J.
Overview
[1] These are the reasons for this Court's Order dated January 26, 2004, enjoining the Respondents, Governor in Council, Treasury Board of Canada, the Honourable Robert Thibault, Minister of Fisheries and Oceans (known in the Order as the "Canada Respondents") from transferring, disposing or encumbering property known as the Garden City property in the City of Richmond until the hearing of this judicial review application.
[2] The decision on the injunction application had to be rendered quickly as the Canada Respondents advised that they would not extend time to consider this injunction motion beyond the close of business January 26, 2004. Due to the urgent nature of the proceeding and in order to ensure that everything which may be relevant was before the Court, the Court exercised its discretion to admit certain evidence late in the hearing. That material was not critical to what had to be decided on this hearing.
[3] The application required three days to argue. Despite provision being made for cross-examination on affidavits, no cross-examinations were held. The evidence of each party remains unchallenged but at times conflicting, particularly as to the nature and content of negotiations (if any).
[4] The Respondents raised various issues in their response to this application, including issues related to the Court's jurisdiction to grant injunctive relief, the Court's jurisdiction over Canada Lands Company Limited and Canada Lands Company CLE Limited (collectively referred to as "Canada Lands"), as well as the proper status of the City of Richmond ("Richmond") as a party respondent (in fact the issue may be who are the proper parties) and whether this was a matter which should be treated as an action.
[5] The objections were raised, not by way of motion but in the response submissions. Having chosen to proceed in this manner, I concluded that the Respondents were not entitled to reply to the Reply of the Applicant's.
[6] With respect to these preliminary matters, the Court dealt substantively only with the Court's jurisdiction to issue an injunction since a conclusion on that issue was necessary to dispose of the motion for injunctive relief. The remaining issues may be dealt with at another time. On some of the preliminary issues, there was also insufficient record on which to make a final determination, no doubt due to the speed with which this matter had to be dealt.
Background
[7] The Applicant Musqueam Indian Band (the "Band") has brought judicial review proceedings firstly challenging the initial decision to dispose of the Garden City property (Court File No. T-1832-02) to unknown purchasers. The Band then brought these judicial review proceedings, challenging the subsequent decision to effect a transfer of the lands to Canada Lands.
[8] The Garden City property, presently held by the Department of Fisheries and Oceans, is a piece of land encompassing approximately 136 acres, situated in downtown Richmond. The evidence confirms that it is of considerable commercial value as evidenced by the affidavit of an official of the City of Richmond.
[9] The Garden City property is said to be within what the Band claims is "Musqueam territory", close to its small Indian reserve and very close to a traditional Musqueam settlement predating European settlement.
[10] The Applicant claimed that they had, for approximately ten years, attempted to protect the Garden City property from alienation. Until now, these efforts have been successful.
[11] The latest effort by officials of the Government of Canada is to transfer the land to Canada Lands Company ("CLC"), a "non-agent" Crown corporation which takes the position that it is not bound by any fiduciary or constitutional obligations owed to the Band by the Crown.
[12] It is important to note that there is almost no land within the Musqueam territory which is available for treaty settlement purposes. Specifically, there is no indication that the Government of Canada has set aside other lands to be available for negotiation purposes if the Garden City property is transferred, despite the government's contention that such available land exists.
[13] The Band claims that it has an interest in the Garden City property, that its rights in the general area have been recognized by the Supreme Court of Canada in R v. Sparrow, [1990] 1 S.C.R. 1075 and that the Government of Canada has a duty to negotiate and accommodate the Band before any land in which it has an interest is alienated.
[14] The Canada Respondents deny that there is any such interest, denies that it has any such legal duty to negotiate and accommodate and further says that it has made every effort to consult with the Band but the Band has been unresponsive.
[15] There are significant factual differences between the parties and absent any cross-examination, the strengths and weaknesses of the competing contentions cannot be discerned.
[16] However, what can be discerned is that the Band claims not only an interest in the land, but that the land has unique importance to it. That claim is supported by affidavit evidence.
[17] It is also clear that the Band and the Canada Respondents take a very different view of what obligations are owed and whether these obligations have been met. Any meaningful negotiations appear to have stopped, if they were even commenced.
[18] Given the position taken by the Canada Respondents, it is arguable, therefore, that they have not met that obligation to negotiate and accommodate, at least on a preliminary view of the untested evidence.
[19] However, there has been some recognition by the Government of Canada that the Band does have a claim of aboriginal title in parts of the lower mainland of British Columbia.
[20] Counsel for the Canada Respondents confirmed to the Court that the closing date of January 26, 2004 was an arbitrary date. There was no particularly compelling reason for that date other than the need to end the delay in dealing with the property and concerns for the proper administration of government assets.
Analysis
[21] The parties are all in agreement that the Applicant must satisfy the tripartite test set forth in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334.
[22] In addition to the usual factors to be considered, even though this is not a constitutional case, I conclude that the Court must consider the public interest and the presumed legitimacy of the government action in the public interest.
[23] Further, because the relief requested is in part similar to the relief sought in the ultimate disposition of the judicial review, the threshold of "serious question" requires somewhat greater scrutiny as to its merits that might otherwise be the case.
Serious Issue
[24] The essence of the Band's case is described in its Memorandum of Fact and Law as follows:
9. What Musqueam is pursuing in this proceeding is an opportunity for good faith negotiations and a sincere effort on the part of the Crown to accommodate their rights and interests relating to the Garden City property. They seek this opportunity before any transfer of the lands, to CLC or otherwise occurs. This is the basis for their request for interlocutory relief.
[25] The plea is, as I understand it, analogous to a demand for "good faith" bargaining in the labour context but complicated by principles of fiduciary duty owed the natives generally and principles of public law and the jurisdiction of the Canada Respondents.
[26] Reviewing the facts established by the Applicant and as mentioned in paragraph 18, it is fairly arguable that the Government of Canada has not engaged in either negotiation or accommodation of the type which the Applicant says it is required to do.
[27] The critical issue as per paragraph 23, is whether there is a sufficiently serious issue as to whether such duty to negotiate and accommodate exists.
[28] In Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (2002) 98 B.C.L.R. (3d) 16 at pp. 90 and 95, the British Columbia Court of Appeal set out the existence and nature of the duty owed:
At p. 90 - To accept the Crown's proposition that the obligation to consult is only triggered when an aboriginal right has been established in Court proceedings would ignore the substance of what the Supreme Court has said, not only in Sparrow but in earlier decisions which have emphasized the responsibility of government to protect the rights of Indians arising from the special trust relationship created by history, treaties and legislation ... Indeed, if the Crown's proposition was accepted, it would have the effect of robbing s. 35 (1) of much of its constitution significance.
At p. 95 - In my opinion, the jurisprudence supports the view taken by the chamber judge that, prior to the issuance of the Project Approval Certificate, the Minister of the Crown had to be mindful of the possibility that their decision might infringe aboriginal rights and accordingly, to be careful to ensure that the substance of Tlingit's concerns had been addressed.
[29] The Canada Respondents, therefore, have a responsibility to safeguard the interests of natives, which the Band says it is not doing.
[30] The Canada Respondents also have a competing obligation to act in the best interests of the public at large which may entail engaging in tough negotiations. The balancing of these competing obligations is no easy matter and will be an issue for determination on the judicial review hearing.
[31] In 2002, the British Columbia Court of Appeal gave further guidance on the nature of the obligations owed. In Haida Nation v. British Columbia (Minister of Forests) (2002) 99 B.C.L.R. (3d) 209 (the case is sometimes knows as "Haida #2") , that Court defined the issue it was considering as:
The principal issue in this appeal is about whether there is an obligation on the Crown and on third parties to consult with an aboriginal people who have specifically claimed aboriginal title or aboriginal rights, about potential infringements, before the aboriginal title or rights have been determined by a Court of competent jurisdiction.
[32] The BC Court of Appeal held that this was an important issue because the Crown could otherwise ignore or override aboriginal title or aboriginal rights until those had been established by treaty or judgment.
[33] Likewise in this case, the Canada Respondents could while ignoring the obligation to consult and accommodate, (to the extent that it exists) sell or alienate the very subject matter of the consultation and accommodation.
[34] The BC Court of Appeal also found that the obligation to consult emanated from the trust-like relationship which exists between the Crown and the aboriginal people.
[35] The BC Court of Appeal further made it clear that there is duty to consult and accommodate before any infringement occurs even when issues of title and interest remain to be resolved.
[36] The Respondents rely on TransCanada Pipelines Ltd. v. Beardmore (Township) (2000) 186 D.L.R. (4th) 403 (Ont. C.A.) (leave to appeal to the Supreme Court was dismissed) to argue that the duty to negotiate and accommodate does not arise until an infringement is found.
[37] The appeal in Haida #2, supra was heard by the Supreme Court of Canada in March 2004.
[38] I, therefore, conclude that the Applicant has more than established that the issue of the duty to negotiate and accommodate is a serious issue; that is live and current.
[39] The fact that the Supreme Court is considering the issue does not, per se, entitle the Applicant to an injunction nor does it justify waiting for that Court's decision, the results of which are speculative. It does, however, assist in establishing, sufficient for purposes of his injunction with the degree of scrutiny required, that the issues raised in this case are fairly arguable.
Irreparable Harm
[40] Having concluded that a serious issue exists, the Applicant must also establish that irreparable harm will result if the Garden City property is transferred.
[41] The Court must consider not the magnitude of the harm, but the "nature of the harm" which will be caused.
[42] While money can be paid as compensation for anything, including loss of life, the mere fact that compensation can be ordered does not resolve the issue. The Court must consider the true nature of what may be lost.
[43] The Band contends, as evidenced by the affidavit of Ernest Campbell, Chief of the Band (paragraph 25) that:
The availability of land within our claim area is of vital importance to us. Again, I must repeat that land is crucial to the survival of Musqueam as a distinct people. The payment of a cash settlement is simply not sufficient to wholly replace the loss of our land. Musqueam reserve lands are small and are almost entirely developed. We will need additional land to provide for our people today and into the future. Our current land base is wholly inadequate.
[44] The nature of the harm which would be suffered if the Garden City property is transferred is the loss of the right to negotiate and be accommodated in respect of that land. Once the land is transferred, that right is effectively lost.
[45] If that right exists, as arguably it does, the Government of Canada and the Canada Respondents in particular, have an obligation to allow the right to be exercised before it transfers the land. It is, effectively, a condition of the exercise of statutory powers to transfer the land. The issue raised goes to the jurisdiction of the Canada Respondents to act in the manner contemplated.
[46] This situation is analogous to those where there is requirement for an environment study be done before a permit is issued or for proper notice to be given before a decision is made. The relevant considerations are public law principles and remedies. They are jurisdictional in nature, not monetary.
[47] The appropriate final remedy in those types of situations, as is the case here, can be the quashing of the license or decision and the steps taken pursuant to the license or decision. It is not an issue of damages being sufficient.
[48] If the Band's right is to have meaning, it cannot be allowed to be lost on the assumption that "sending a government cheque" would always suffice. It would be too tempting to allow government authorities to ignore these types of conditions to the exercise of power by merely permitting payment of some form of compensation as a substitute for the proper exercise of powers.
[49] The effectiveness of any remedy flowing from a successful judicial review is also a relevant consideration. If the Garden City property is transferred, particularly by Canada Lands to a third party, the quashing of the decision to effect the sale may have little practical result. The Canada Respondents and Canada Lands may not be able to restore the situation to its pre-transfer status. Rectification is not an assured remedy.
[50] The Court raised a concern about whether a subsequent purchaser would take the property with notice of the claim by the Band. It appears that a Caution (or similar such notice) cannot be deposited with respect to this type of land and claim. Therefore, given the nature of a land titles regime, what rights and obligations flow to the purchaser with respect to the Band's claim is, at the very minimum, clouded.
[51] It is the position of the Canada Respondents and Canada Lands that any obligations owned to the Band are not transferred to a purchaser, even Canada Lands, a corporation owned and controlled by the Government of Canada. Whether that is a correct position in law is an open matter, but that position does support the view that any transfer is irreversible and "free and clear" of other obligations.
[52] The loss of the right to negotiate and to be accommodated is the harm to the Band if an injunction is not granted. The Court has also considered the nature of the harm to the Canada Respondent, Canada Lands and the City of Richmond if the injunction is granted.
[53] The issue of competing harm is often an analysis engaged only when a court turns to the issue of balance of convenience. However, for convenience of the ensuing discussion, the issue is also discussed under this heading.
[54] The City of Richmond is added to the consideration because, while it might not ultimately be a respondent in this case, nor will it necessarily be the purchaser, it does stand to earn taxes, fees and other benefits, either from another purchaser or if it retains the lands in whole or in part.
[55] The Respondents have not pointed the Court to any form of loss except of a commercial nature; e.g. delay in receipt of proceeds of sale, delay in use of the property. This type of loss can be addressed through the undertaking which was ordered as part of the interlocutory injunction.
[56] The Respondents rely on the decision of the Federal Court of Appeal and of Nadon J. (as he then was) of this Court in Soowalie Indian Band v. Canada (Attorney General) 2001 FCA 387 and 2001 FCT 1334 (sometimes referred to as the Commodore case). With respect, I have concluded that the decisions are distinguishable both on their facts and on the legal issues before those Courts.
[57] As to the legal issues, those Courts were dealing with a claim of breach of fiduciary duty whereas the legal issue here is a breach of a condition of jurisdiction to transfer lands. In addition, those decisions predate the BC Court of Appeal's decision in Haida # 2.
[58] The breach of fiduciary duty, such as may occur in respect of the administration of a trust, is usually compensable in damages. The breach of a condition of the exercise of jurisdiction is generally not so compensable; the appropriate remedy being the traditional administrative law remedies.
[59] It is important to note some of the key factual differences between Soowahlie, supra and this case. In Soowahlie, supra, only a portion of the Canadian Forces Base Chilliwack was at issue; 180 hectares had been set aside for negotiation, such setting aside could be said to effectively address the duty to negotiate and accommodate.
[60] There is no such setting aside of land in this case, there is a denial of the existence of any such obligation and a claim that a purchaser takes the land without any obligations to the Band flowing from the seller to the purchaser.
[61] In Soowahlie, supra, the Courts found no special factors or special circumstances. In this case, given the basis of the judicial review, the nature of the Band's claim and the inability of the Respondents to effectively address the obligations owed to the Bands if they were to ultimately be successful, these are factors which justify an injunction.
[62] I, therefore, find that the Band has established irreparable harm of the type necessary to justify the issue of an injunction.
Balance of Convenience
[63] Most of the factors related to balance of convenience have already been addressed and the balance favours the Band.
[64] There is no overriding reason provided to effect the transfer of the Garden City property before the conclusion of this judicial review.
[65] The length of time that an injunction may be in place is a relevant consideration. The Court has considered that any harm occurring to the Respondents can be ameliorated if this judicial review is expedited and an undertaking is in place. To some extent, but only to some extent, the Respondents can lessen any loss or inconvenience. The Band cannot be permitted to drag this case out, which I am not suggesting that they have done. Since the judicial reviews can be case managed to ensure a fair but expeditious consideration of the merits, the potential harm to the Respondents of any injunction can be effectively addressed.
Remedy
[66] The Canada Respondents have argued that this Court has no jurisdiction to issue an interlocutory injunction against it. For authority on this point, these Respondents rely on subsection 22(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. They also rely on the decision of Justice Lemieux of this Court in Paul v. Canada 2002 FCT 615.
[67] With respect, the decision in Paul, supra on this decision held nothing more than that interim injunction relief will not generally issue where the defendant in an action is the Crown or a Minister where the challenge is on constitutional grounds. This is because of the presumed validity of constitutional legislation and action. This is neither a constitutional nor a Charter challenge.
[68] There is a further important distinction in Paul, supra; the proceeding was an action under s. 17 of the Federal Court Act, R.S.C. 1985, c. F-7 and the Crown Liability and Proceedings Act. These proceedings are by way of judicial review under s. 18 of the Federal Court Act.
[69] In my view, Paul, supra has no application to a proceeding under s. 18 of the Federal Court Act. Judicial review is not a proceeding against the Crown, it is a challenge to decisions (acts or refusals to act) of a "federal board, commission or other tribunal". Those words are broadly defined in s. 2 of the Federal Court Act to encompass any body exercising jurisdiction or powers under a federal statute. The Canada Respondents fall into this class of body.
[70] It would have been inconsistent for Parliament to have established, on the one hand, a detailed scheme for the review of the exercise of statutory powers and to enshrine effective remedies, including injunctive relief under the Federal Court Act, and, on the other hand, have it rendered nugatory by the Crown Liability and Proceedings Act.
[71] In view of the legislative history of s. 18 of the Federal Court Act, its enactment subsequent to s. 22 of the Crown Liability and Proceedings Act, Parliament intended to address different matters under s. 18 of the Federal Court Act than those found in actions against the Crown.
[72] If the Canada Respondents were correct, then the Federal Court would have no power (and never had such power) to issue stays or interim or interlocutory injunctions no matter how necessary such remedy may be to preserve the status quo until a final decision on the merits. I cannot accept this as a proper reading of the two legislative provisions.
[73] I adopt the reasoning of Strayer J. (as he then was) on this issue as discussed in Mundle v. Canada (1994) 85 F.T.R. 258 at paragraphs 8-10.
[74] Therefore, I conclude that this Court has jurisdiction to issue an interlocutory injunction at least with respects to the Canada Respondents.
Conclusion
[75] For these reasons, the Order of January 26, 2004 was issued.
"Michael L. Phelan"
JUDGE
Ottawa, Ontario
April 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2287-03
STYLE OF CAUSE: Musqueam Indian Band v. Governor in Council of Canada et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 19-21 January 2004
REASONS FOR ORDER : The Honourable Mr. Justice Phelan
DATED: April 16, 2004
APPEARANCES:
Ms. Maria Morellato FOR APPLICANT
Mr. Roy Millen
Mr. Harry Wruck, Q.C.
Mr. Alex Semple FOR RESPONDENT CANADA
Mr. Reece Harding FOR RESPONDENT CITY OF RICHMOND
Mr. Simon Margolis FOR RESPONDENT CANADA LANDS COMPANY
No Appearance FOR RESPONDENT ATTORNEY GENERAL OF BRITISH COLUMBIA
SOLICITORS OF RECORD:
Blake Cassels Graydon
Vancouver, B.C. FOR APPLICANT
Morris Rosenberg, Deputy
Attorney General of Canada
Ottawa, Ontario FOR RESPONDENT CANADA
Lidstone Young Anderson
Vancouver, B.C. FOR RESPONDENT CITY OF RICHMOND
Bull Housser and Tupper
Vancouver, B.C. FOR RESPONDENT CANADA LANDS COMPANY
Ministry of the Attorney General
of British Columbia, Legal Services
Victoria, B.C. FOR RESPONDENT ATTORNEY GENERAL OF BRITISH COLUMBIA
Email this Content