Date: 20011031
Docket: T-910-01
Neutral citation: 2001 FCT 1173
OTTAWA, Ontario, this 31st day of October, 2001
BEFORE THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
RAYMOND CLAYTON WILSON, on his own behalf, and RAYMOND
CLAYTON WILSON as Chief and DOUGLAS LEROY LARDEN, KENNETH
MICHAEL WILSON, JOAN MARIE BENNETT, and FRED GEORGE
WILSON as Councilors on behalf of the HWLITSUM FIRST NATION, and the
said HWLITSUM FIRST NATION
Applicants
AND:
CANADA (MINISTER OF FISHERIES AND OCEANS)
Respondent
AND:
B. C. FISHERIES SURVIVAL COALITION,
TSAWWASSEN FIRST NATION
Intervenors
ORDER AND REASONS FOR ORDER
ROULEAU, J.
[1] This is an appeal from the orders of Prothonotary Hargrave dated August 22, 2001 and September 7, 2001.
[2] This matter arises out of an application for judicial review brought in April, 2001, wherein the applicants challenge a decision of the Minister of Fisheries and Oceans denying them a communal fishing license on the grounds that they do not constitute a "Band" within the meaning of the Indian Act.
[3] As a preliminary matter, Prothonotary Hargrave entertained an application for intervenor status by the Tsawwassen First Nation who reside on land contiguous to Canoe Pass, the fishing grounds in question; they also have a tri-partite agreement with the Government of Canada and the Musqueam Indian Band regulating the fishing grounds concerned. By decision dated August 22, 2001, the learned Prothonotary concluded as follows:
"I am not convinced that Tsawwassen First Nation can add anything to the evidence that will either be useful, or necessary, or reasonably reliable, for there is no prima facie case to show any of this. Therefore Tsawwassen First Nation will take the record as it finds it, without the privilege of filing any affidavit evidence or to cross-examine on affidavits. While it is appropriate the Tsawwassen First Nation might participate in interlocutory matters, to the extent of argument, it may not bring motions without the prior leave of the Court and then only on such terms as the judge or prothonotary may then allow. There will be no right of appeal and no right to or liability in costs, except in the case where the Tsawwassen First Nation might be allowed to bring an interlocutory motion."
[4] Following this decision and as a result of a case management conference held September 7, 2001, Prothonotary Hargrave by order of the same date bifurcated the original application for judicial review. The denial of natural justice issue was to proceed by way of application and "aboriginal rights" and Charter issues were to be determined by way of action. Accordingly, a revised Notice of Application was filed with the Court on October 15, 2001.
[5] In his Order of September 7, Prothonotary Hargrave indicated that the Tsawwassen First Nation would be seeking to redefine their rights as an intervenor. Although they had been restricted by his Order of August 22, 2001 to argument only in the application for judicial review; they had apparently not been given any status in the bifurcated action. In the same Order of September 7, 2001, the B. C. Fisheries Survival Coalition was given full intervenor status in the judicial review application as well as full rights of intervention at the trial.
[6] The issue now before the Court is whether the Tsawwassen First Nation's status should be enhanced with respect to the judicial review application and also what role it should be allowed to play in the bifurcated action.
[7] This entire matter causes the Court considerable difficulty and before I proceed to make a determination, I wish to underline that counsel appearing before the Court on behalf of the Band on October 5, 2001 was considerably more experienced and astute than counsel who appeared on behalf of the Band before Prothonotary Hargrave. A cursory review of the original motion record satisfies me that Prothonotary Hargrave could not in any way have been enlightened with respect to all of the facts during those proceedings. For example, I am satisfied on the evidence and argument before me that there was no contradiction in the affidavit sworn by an elder of the Tsawwassen First Nation dated July 28, 2000 and which was submitted as part of "Treaty Negotiations Proposal" and the affidavit in this application of a former Chief of the Tsawwassen First Nation sworn July 26, 2001.
[8] In the original application for judicial review, the applicants seek to have set aside the decision of the Minister of Fisheries and Oceans denying them a fishing license. The basis of that decision by the Minister is that the applicants are not a "Band" under the Indian Act though they have been attempting since May of 2000 to obtain that status. It is clear to me that Mr. Hargrave recognized that in order for the applicants to satisfy the Minister of Indian Affairs that they do constitute a Band, viva voce evidence was required and necessary. For this reason, he bifurcated the application.
[9] After hearing the arguments of the parties and considering the evidence before the Court, I find that the fundamental issue which must be determined is whether the applicants constitute a "Band" under the Indian Act. The resolution of the judicial review application, that is, the correctness of the Minister's decision denying the fishing license, depends entirely upon the status of the applicants. Given the nature of the issue and the evidence which will be required to resolve it as recognized by the Prothonotary, I am satisfied that the entire matter should be converted into an action. The type of evidence which the Court will require cannot be brought out solely by way of affidavit evidence.
[10] With respect to the intervenor status of the Tsawwassen First Nation, much evidence was led to satisfy me that it has a direct interest in the outcome of this litigation and that its participation will be of vital assistance to the Court. Although I decline to give a complete account of how their interest would be affected, it is evident that the Tsawwassen First Nation territory as accepted and delineated by the British Columbia Treaty Commissioner, Canada and the Province of British Columbia could be affected because its traditional territory is located between the British Columbia Ferry terminal and south of the Fraser River and is adjacent to the fishing area in dispute known as Canoe pass. In addition, as I said earlier, the Tsawwassen First Nation has a tri-partite fisheries agreement with the Government of Canada and the Musqueam Indian Band encompassing the area where the applicants are seeking fishing rights.
[11] Having converted this entire matter into an action, I am satisfied that the Tsawwassen First Nation should be accorded the status of party defendant and the style of cause amended accordingly. In accordance with Rule 104 of the Federal Court Rules, its presence before the Court is necessary to ensure that all matters in dispute in the proceeding can be effectually and completely determined.
JUDGE
OTTAWA, Ontario
October 31, 2001
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