Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans), docket T-1525-00

Date: 20000921

Docket: T-1525-00

Ottawa, Ontario, this 21^st day of September 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

SHUBENACADIE INDIAN BAND,

on behalf of itself and its members

Applicant

- and -

ATTORNEY GENERAL OF CANADA,

representing the Minister of Fisheries and Oceans (Canada),

UNION OF NOVA SCOTIA INDIANS, a body corporate

CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate

Respondents

- and -

ATTORNEY GENERAL OF NOVA SCOTIA

ATTORNEY GENERAL OF NEW BRUNSWICK

LFA DISTRICT 34 LOBSTER COMMITTEE

ATLANTIC FISHING INDUSTRY ALLIANCE

NATIVE COUNCIL OF NOVA SCOTIA

Interveners

REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]                Donald Marshall Jr., a Mi'kmaq indian, took eels out season and had to go to the Supreme Court of Canada to have his conviction set aside. Now, other members of the Mi'kmaq people, are taking lobster out of season and say that, in acquitting Marshall, the Supreme Court said that the government has no more right to prevent them taking lobster than it did to punish him for taking eels. This motion seeks to test the truth of that proposition. In doing so, the Court is called upon to apply the Supreme Court of Canada's decisions in R. v. Marshall, [1999] 3 S.C.R. 456 (Marshall No. 1) and [1999] 3 S.C.R. 533 (Marshall No. 2).

[2]                This issue before the Court is the Shubenacadie Indian Band's ("the applicant") request for an interlocutory injunction enjoining the Minister of Fisheries and Oceans ("the Minister") and his officials from "seizing from the Shubenacadie Indian Band and its members, lobster traps, fishing vessels, and equipment used to harvest lobsters, and any lobsters harvested by them, in and from St. Mary's Bay, Lobster Fishing Area 34 ("LFA" 34) Digby County, Province of Nova Scotia, up to and including October 15, 2000, and from otherwise impeding or interfering with the lobster fishing and the sale of lobster by the Band and its members, and from harassing the Band and its members in their lobster fishing at that place and time." The significance of October 15, 2000 is that this is the expiry of a food and commercial^[1] lobster harvesting season which the applicant has declared for itself, after negotiations with the Minister failed to produce an agreement permitting such a fishery.

[3]                Following the release of the Supreme Court of Canada's decision in Marshall No. 1 in September 1999, there was considerable uncertainty as to the scope and reach of the decision. Most of the Mi'kmaq Bands who claimed the benefit of the 1760-1761 Treaties of Peace and Friendship ("the Peace and Friendship treaties") agreed to a 30-day voluntary moratorium on lobster fishing while the implications of the Marshall decision were worked out. However, the Bands at Burnt Church and Indian Brook^[2] "indicated an interest in continuing to fish". The Minister responded by offering to license such fishing, subject to limits and conditions which he regarded as "consistent with an orderly and regulated fishery".^[3]

[4]                The members of the applicant had been fishing in St. Mary's Bay, some 300 kilometres from their reserve, since 1997, though not at the levels which they reached in late 1999 when approximately 800 lobster traps were in use. On October 12, 1999, in order to give effect to the Minister's offer of licencing, the Regional Director-General, Maritimes Region, Neil Bellefontaine forwarded to Chief Reg Maloney, the Chief of the Indian Brook First Nation, an agreement called the Aboriginal Communal Commercial Lobster Fishing Licence Agreement which contemplated licensing an 800-trap lobster fishery in Lobster Fishing Area # 34 (LFA 34) in St. Mary's Bay until October 31, 1999. The agreement recited that the licence was issued under the authority of the Fisheries Act, R.S.C. 1985 c. F-14, and the Aboriginal Communal Fishing Licences Regulations, SOR 93-332. The licence was subject to conditions including various conservation measures such as minimum size of lobster, type of equipment and monitoring requirements.

[5]                By letter dated October 14, 1999, Chief Maloney replied to Mr. Bellefontaine. His letter defined the Band's position with respect to the issue of licencing. The operative parts are as follows:

... I am herewith returning said licence agreement to you since we firmly reject any licence or agreement pursuant to the Aboriginal Communal Fishing Licence Regulations.

We fish pursuant to the Mi'kmaq Treaties of 1760-61, section 35 of the Constitution Act, 1982, the decision of the Supreme Court of Canada rendered September 17, 1999 in R. v. Donald Marshall Jr., and our inherent right of self-government in fisheries matters.

...

(emphasis in the original)

[6]                In response to the decision in Marshall No. 1, the Department of Fisheries and Oceans ("the Department") embarked upon a program of negotiating practical interim arrangements with bands who could claim the benefit of the Peace and Friendship treaties, using the offices of James Alexander MacKenzie, Chief Federal Representative. Such arrangements were to be without prejudice to the position of the parties on the rights recognized by the Supreme Court of Canada in Marshall No. 1. and Marshall No. 2 in subsequent negotiations. The intent was that an overall agreement would be negotiated with all bands who were entitled to the benefit of the Peace and Friendship treaties.

[7]                As a result of comments made by Chief Maloney to Mr. Bellefontaine that he would not "subjugate his treaty rights by signing an agreement"^[4], Mr. MacKenzie wrote to Chief Maloney on April 19, 2000 expressing his regret that the Indian Brook First Nation refused to enter into negotiations with him but nevertheless offering an agreement with Indian Brook First Nation which would provide one Gulf of Nova Scotia Tuna rod and reel licence, nine additional communal commercial lobster licences (five Lobster Fishing Area 33 licences of 250 traps each and four Lobster Fishing Area 32 licences of 250 traps each). Each lobster licence would be accompanied by communal commercial herring and mackerel gill-net licences to provide bait for the lobster fisheries. These licences would be in addition to those previously offered, namely one LFA 34 lobster licence, two sea urchin licences and an exploratory crab permit. All licences would be subject "to the usual terms and conditions of commercial licences for the relevant species"^[5]. As well, Mr. MacKenzie offered an allocation of 40,000 pounds of lobster to be taken during the summer closed lobster season (equivalent to 35 traps during the summer months in LFA 34) in satisfaction of the Band's acknowledged food, social and ceremonial fishing rights.

[8]                On April 20, 2000, Mr. Bellefontaine forwarded to Chief Maloney the nine lobster licences referred to in Mr. MacKenzie's letter.

[9]                On April 24, 2000, Chief Maloney wrote to the Honourable Herb Dhaliwal, the Minister of Fisheries and Oceans. Chief Maloney's letter began by indicating that the Band wished to fish in accordance with Marshall and its constitutional rights. Chief Maloney rejected Mr. MacKenzie's allegation that the Band refused to engage in discussions on fishing harvesting arrangements for the year 2000 fishing season. He clarified that what the Band refused to do was negotiate limited conditional access to a resource to which it asserted a constitutionally protected treaty right of access. He noted that Mr. MacKenzie did not have a mandate to negotiate a rights based agreement. He expressed the expectation that "you will consult with us, with rather than without prejudice, about our access and what limits you feel can be properly justified". Chief Maloney commented:

I wish to also state that I am quite offended that you as the Crown's representative see your treaty obligations to us as being fulfilled by a mere "without prejudice" agreement negotiated with your bureaucrats. I believe this action trivializes our nation-to-nation treaty and is totally unacceptable.

[10]            That said, Chief Maloney indicated that the Band would take advantage of the opportunities indicated in Mr. MacKenzie's letter. However, the letter went on, "We nevertheless will issue our commercial fishers in accordance with our BCR [Band Council Resolution] our own authorizations to fish, as well as lobster tags to put on their traps for those engaging in the lobster fishery."^[6]

[11]            The Minister responded by letter dated May 12, 2000. The Minister addressed Chief Maloney's comments about negotiations with Mr. MacKenzie as follows:

Your letter suggests that my position is that the Crown's treaty obligation is fulfilled by the "without prejudice" agreements being offered to all First Nations in the Maritimes. This is not my position. Nor is it the position of the Federal Government. Fully accommodating the treaty right will take more than one year, and will require further negotiation with the Department of Indian Affairs and Northern Development. Given the need for orderly fisheries, and the few months between the Marshall decision and spring fisheries re-openings, we immediately launched discussions with affected First Nations aimed at accommodating their immediate short term interests in the commercial fishery. So as not to prejudice the longer-term discussions, we indicated a willingness to proceed with such agreements on a without prejudice basis. For their part, First Nations and the Atlantic Policy Congress pressed for the strongest possible without prejudice clauses in the interim agreement.

[12]            The Minister concluded by referring to the Marshall No. 2 decision with respect to the Minister's right to regulate the fishery and reminded Chief Maloney that "Unauthorized fishing activities outside the regulatory structure will result in appropriate enforcement action by the Department."^[7]

[13]            On May 15, 2000, Mr. Bellefontaine forwarded to Chief Maloney the licences authorizing a food, social and ceremonial fishery of 35 lobster traps in LFA 34 for the closed lobster season. His letter went on to say "You are reminded that the commercial lobster fishery in Lobster Fishing Area 34 closes on May 31, 2000 and all fishers are required to have their traps landed by that time"^[8].

[14]            On June 2, 2000, Chief Maloney forwarded to the Minister's office, the Band's Lobster Management Plan for District # 34 in which the Band proposed to harvest lobster in St. Mary's Bay using 800 traps from July 3 to October 15, 2000. This period is within the closed season in LFA 34 as set out in Schedule XIV of the Atlantic Fishing Regulations, 1985. It is this fishery and the events surrounding it which has given rise to this motion.

[15]            On June 21, 2000, the Minister responded to Chief Maloney's letter. He reiterated his authority to manage the fishery and set out the access to the commercial fishery which the Department had offered through Mr. MacKenzie. He concluded by saying:

"...there are a number of the components of your management plan that are consistent with the Department's management approach for LFA 34 (i.e , v-notching, carapace size). However, there is a need for serious dialogue on the effort that Indian Brook First Nation intends to put forth during the period July 3, 2000 and October 15, 2000 as the number of traps in your plan is well beyond what the Department feels is reasonable for food, social and ceremonial needs. To that end, it is my understanding that Mr. Neil Bellefontaine, Regional Director-General, Maritimes Region, and his officials will be meeting with you on Thursday, June 22, 2000, to discuss the lobster fishery in LFA 34 in greater detail and hopefully find some common ground to move forward."^[9]

[16]            Following the meeting with Mr. Bellefontaine on June 22, 2000^[10], Chief Maloney wrote to the Minister and Mr. Bellefontaine as follows:

June 23, 2000

The Honourable Herb Dhaliwal, P.C., M.P.                       Neil A. Bellefontaine

Minister of Fisheries and Oceans                                      Regional Director-General

Ottawa, Ontario                                                                     Maritimes Region

K1A 0E6                                                                                 Department Fisheries and Oceans

P.O. Box 1035

Dartmouth, Nova Scotia

B3Y 4T3

Dear Minister Dhaliwal and Mr. Bellefontaine:

I am writing in respect of Minister Dhaliwal's letter of June 21, 2000 and our meeting with Mr. Bellefontaine during the afternoon of June 22, 2000. I am addressing the letter to both of you because I am unclear as to the internal division of responsibilities between you, and suspect that some items may relate to both of you.

The issue that is of immediate concern to me is our proposed lobster fishery in LFA 34, scheduled to commence July 3, 2000 and continue to October 15, 2000. In the Minister's letter of June 21", he indicates that our proposed 800 traps for both food, social and ceremonial and commercial purposes is to be restricted in accordance with his May 15th communal licence to a food, social and ceremonial fishery only, and to a limit of 40,000 lbs., equivalent to 35 traps during the summer months. At the meeting with Mr. Bellefontaine, he made it clear that if we fished with more than 35 traps, he would take enforcement action.

During the meeting we explored with Mr. Bellefontaine why we had to exercise our rights under the Marshall decision and the treaties under these limitations. In your letter, in regard to the commercial fisheries in general, you reference "conservation and orderly management of the fisheries" and quote from the November 17, 1999 Marshall decision in respect of "economic and regional fairness, and recognition of the historical reliance upon, and participation in the fishery by non-Aboriginal groups". In respect of our proposed fishery in LFA 34 July 3-Oct. 15, 2000, you have totally prohibited a commercial fishery. In seeking from Mr. Bellefontaine the justification for this prohibition, he reiterated your reference to the need for an orderly fishery and added that there were conservation concerns in the summer months relating to moulting and egg deposition. With respect to the limits on our food, social and ceremonial fishery, he indicated there was a formula to calculate food requirements and that our proposed 800 trap limit, because of expected high catch rates, was equivalent to some 22 or 23 commercial licences in the normal season.

We are unable to assess the merits of these positions without access to the information on which they are based and further explanations. We ask to be provided with the back-up studies and reasoning that support the positions taken by you as Minister of Fisheries and Oceans. We feel that this should include, at a minimum:

1.              Studies on catch rates in LFA 34 in the period July to October.

2.              Studies on moulting and egg deposition in LFA July to October.

3.              How food requirements are calculated and any studies on which the formula is based.

4.              How factors such as economic and regional fairness and historical reliance on and participation in the fishery in LFA 34 are jeopardized by our participation in a commercial fishery in July-October.

5.              How orderly fisheries management is affected by our fishery in July-October.

6.              Any other issues that justify your limitation of our right to fish.

In your letter of June 21st", you quoted from the Marshall case with respect to your regulatory powers. The Marshall decision of November 17th also stated:

"It is for the Crown to propose what controls are justified for the management of the resource, and why they are justified". [paragraph 41]

"The special trust relationship includes the right of the treaty beneficiaries to be consulted about restrictions on their rights ..." [paragraph 43]

"The justification for a licensing requirement depends on facts." [paragraph 28]

"If the Crown establishes that the limitations on the treaty right are imposed for a pressing and substantial public purpose, after appropriate consultation with the aboriginal community, and go no further than is required, the same techniques of resource conservation and management as are used to control the non-native fishery may be held to be justified. Equally, however, the concerns and proposals of the native communities must be taken into account, and this might lead to different techniques of conservation and management in respect of the exercise of the treaty right." [paragraph 44_]

"[T]he Coalition also argued that no treaty right should 'operate to involuntarily displace any non-aboriginal existing participant in any commercial fishery ... The first argument amounts to saying that aboriginal and treaty rights should be recognized only to the extent that such recognition would not occasion disruption or inconvenience to non-aboriginal people. According to this submission, if a treaty right would be disruptive, its existence should be denied or the treaty right should be declared inoperative. This is not a legal principle. It is a political argument. What is more, it is a political argument that was expressly rejected by the political leadership when it decided to include s. 35 in the Constitution Act, 1982." [paragraph 45]

"It would be significant if it were established that the combined aboriginal food and limited commercial fishery constitute only a 'minuscule' percentage of the non-aboriginal commercial catch of a particular species, such as lobster ... [paragraph 42]

These are other matters that must be borne in mind before your actions can be justified. We have proposed a limited lobster fishery in LFA 34 in the period July 3 to October 15. We have not had consultations on why you have rejected outright the commercial component and why you have restricted the food, social and ceremonial to 40,000 lbs. and 35 traps. We wish to have the facts and explanations that justify this infringement of our right to fish, and to consult further once we have assessed this information. Consultation over this issue has simply not been adequate.

As time is of the essence, we ask for a prompt reply from you, or if appropriate, Mr. Bellefontaine.

Yours in recognition

Of Aboriginal title,

Chief Reg Maloney

Indian Brook First Nation

RM/dm

[17]            On July 1, 2000^[11], Chief Maloney wrote to the Minister and Mr. Bellefontaine once again.

July 1, 2000                                                                             Neil A. Bellefontaine

The Honourable Herb Dhaliwal, P.C., M.P.                       Regional Director-General

Minister of Fisheries and Oceans Canada                        Maritimes Region

Ottawa, Ontario                                                                     Department Fisheries and Oceans

K1A 0E6                                                                                 P.O. Box 1035

Dartmouth, Nova Scotia

B3Y 4T3

Dear Minister Dhaliwal and Mr. Bellefontaine:

Re: Lobster Fishery in St. Mary's Bay, LFA 34

Further to my letter of June 23, 2000, I am enclosing a revised statement of what we, the Shubenacadie Band, propose to do commencing Monday, July 3, 2000 with respect of lobster fishing in LFA 34, St. Mary's Bay.

As we have not received a reply to our letter of June 23^rd, we are unable to assess the merits of the matters raised by you in your letter to me of June 21^st, and by Mr. Bellefontaine during our meeting with him on June 22, 2000. We continue to await the science and other information that supports your position.

For the interim, we propose to commence fishing on July 3, 2000 in accordance with the 40,000-lbs./35-trap limit stated in the Minister's letter of June 21^st. We will, in the interim and under protest, be using the DFO lobster tags provided by Mr. Bellefontaine. DFO representative Steve Wilson visited Indian Brook on June 30 to review the integrity of our tagging system. He advised that we obtained our tags from the same company that DFO uses. Hence, we presume that our tags will be acceptable and that you will not be objecting to our tags. If you need our authorization to access information from the company manufacturing our tags on what was provided for us, or will be provided to others or us in the future, you may take this letter as that authorization. We will not be ordering duplicates and will be supplying you with information on which fisher is fishing which tag numbers. Please advise of any remaining problems with the integrity of our system, and if there are none, confirm that we may remove the DFO tags and fish under our Indian Brook tags.

Further, as you will see from the attached research plan, we will be carefully assessing what is caught in our traps, to determine whether conservation will be jeopardized by our fishery and whether our effort and catch may be increased without undue conservation concerns. I urge you to instruct your lobster biologists responsible for St. Mary's Bay to work with us, to ensure their concerns are taken into account and to help assess the results of our study. Your involvement in our efforts to determine the dynamics of the St. Mary's Bay lobster fishery at the time we wish to fish is essential, in our view, to proper good faith consultation.

We also strongly urge you to close the dragger fishery in St. Mary's Bay, both for conservation reasons and to safeguard the integrity of our larval study. We are deeply concerned that scallop dragging at that time, with larval production in full swing, is far more harmful to the lobster that anything done by the lobster fishery itself.

Should catch rates for marketable (3 1/4 inch carapace) lobster not prove to be excessive, we wish to expand our effort beyond the 35-trap limit that you have imposed. We are still of the view that 800 traps, the same as the Minister authorized last fall, is not excessive. That is the number we wish to fish. You have yet to provide us with any information to suggest that such a number will be unduly disruptive to the existing commercial fishery, as might be the case if, as suggested by Mr. Bellefontaine, it resulted in a catch equivalent to 23-24 commercial licences each fishing 350 traps in the normal commercial season.

We ask that you and/or your officials further consult with us over our plans and your concerns so that we may address them in early July. We feel you are acting unreasonably by unilaterally imposing on us both a total prohibition on commercial lobster fishing in this period and in restricting our efforts to 35 traps.

You should also understand some of our concerns. These include the safety or our fishers. By fishing from one port we can protect our boats, gear and ourselves from those non-Aboriginals who object to sharing the resource with us. The weather should be better, and we can assist each other if anyone gets into trouble on the water. Also, for a communal fishery, we should be able to have the social support of a community of fishers, assembled for that purpose.

Furthermore, our fishermen are entitled to obtain a moderate livelihood from the fishery. They have made investments in boats and equipment, and must meet payments. While fishing in St. Mary's Bay, away from Indian Brook, they have food and shelter costs, as well as boat operation and maintenance costs. These must be accommodated form the sale of lobsters. Even the prosecution of a food fishery has expenses that must be covered from the sale of lobsters. Your approach has not taken these costs, let alone earning a moderate livelihood, into account.

As time continues to be of the essence, we ask for a prompt response to our concerns. Our boats are now at St. Mary's Bay ready to fish, and a fishery will commence on July 3^rd. We wish to adjust our fishing activities to take account of your justifiable concerns. However, as soon as it is apparent that there is no reason not to expand our efforts and catch we propose to expand the number of traps we fish. We hope for your part, that you can adjust to our needs in a timely way, and, if we are unable to find a common understanding concerning the conduct of our lobster fishery in St. Mary's Bay, you will provide us with fair warning before you pull traps, seize boats and/or charge our fishers.

Yours in recognition of

Aboriginal and Treaty Rights,

Chief Reg Maloney

Shubenacadie Band

Indian Brook First Nation

RM/dm

[18]            Mr. Bellefontaine replied to Chief Maloney on July 11, 2000^[12]. He identified two basic differences of opinion between the Department and the Indian Brook First Nation: the level of access to lobster for the food fishery, and the Band's desire to conduct a commercial fishery during the closed season. Mr. Bellefontaine provided a rationale for the 40,000-pound limit on the food fishery. As to the commercial fishery, Mr. Bellefontaine's letter is as follows:

The departmental position remains that commercial fishing must take place during the established commercial seasons. We recognize that you do not share our view on this matter. We remain confident that with continued dialogue, resolutions acceptable to both Indian Brook First Nation and the Department of Fisheries and Oceans are attainable.

...

Indian Brook First Nation has expressed the view that 800 traps are not excessive for your community to use in the commercial fishery in LFA 34. The Department of Fisheries and Oceans agrees with you, provided it is conducted in the season during which an existing commercial fishery takes place. Catch surveys that have been conducted for a number of years in LFA 34 have given scientists a vast amount of information regarding catch levels per trap and catch levels in particular geographical areas, St. Mary's Bay for example. Although this information can be used for a number of purposes, it is very clear that the best months for catching lobster in the present commercial season is during the first and last months of the season, those being the end of November/month of December and the month of May respectively. A possible solution to our differences concerning the commercial lobster fishery may be a dedicated Indian Brook commercial season for lobster during these two time periods. Your letter refers to your concerns regarding safety of your fishers. Although safety from the weather and other elements can never be guaranteed, the weather is usually better during these two months of the commercial season compared to the remaining open commercial season in the area, those being January to April. Your community could fish together, from one port as your letter suggests, in order to assist each other. If your community decided to fish during these two time periods, the social and professional support provided by your community for each other would be available.

We would like to discuss the options mentioned above and any other possible solutions to the differences that exist between us at your earliest convenience. It is the department's desire to arrive at solutions that are acceptable to both the Indian Brook First Nation and DFO.

[19]            On July 21, 2000^[13], the Minister issued an update on fisheries affected by the Marshall decisions in which he specifically addressed the situation of the Indian Brook First Nation. He indicated that the federal government had lived up to its obligations by providing authorized reasonable access to the crab and lobster fishery. With reference to the commercial fishery, the Minister commented:

Representatives of Indian Brook have publicly said that they may set as many as 800 traps, and sell some of the catch commercially. They have also stated that they will scientifically survey their catch results in the food fishery, to make sure that this huge increase in traps would pose no conservation problem.

I feel compelled to point out some obvious facts:

•                The question is not one of science but of catch levels. We already know how much a typical trap catches. Again, 35 traps should be ample to take 40,000 pounds.

•                The Sparrow decision allows out-of-season fishery access only for food, social, and ceremonial purposes. But using 800 traps would have commercial implications.

•                Indian Brook First Nation already has significant access to the commercial fishery during the regular seasons, when it could fish a far greater number of traps; but so far it has left this access mostly unused.

•                No one group in the commercial fishery can independently declare its own commercial fishery outside the normal regulations and seasons. Rules are there for a purpose, other fishermen have an interest, and the resources belong to the people of Canada.

We have made constructive and co-operative arrangements with the great majority of First Nations, and I look forward to doing the same with Indian Brook First Nation. DFO's door is open, always.   

[20]            Chief Maloney wrote to the Minister and Mr. Bellefontaine on July 24, 2000^[14] indicating that as a result of the Band's scientific research into the fishery, it had decided that it would increase its activity in St. Mary's Bay by authorizing another 335 traps in addition to the original 35 traps. Chief Maloney commented on the Minister's public statement as follows:

We note that in the July 21^st Statement of Minister Dhaliwal, he indicates that he has "authorized reasonable access" for us to the lobster fishery, including "appropriate Aboriginal access to the food and commercial fisheries". We strongly disagree with this statement. We have continually indicated that our preference is to fish lobster in St. Mary's Bay in LFA 34 from July to mid-October, for both food and commercial purposes. The Minister has underestimated our food needs, has overestimated our catch from 35 traps, and has completely prohibited commercial lobster access during this time period. These positions were reaffirmed by Mr. Bellefontaine in his letter to me of July 11, 2000. It is our strongly held view that these actions are neither "reasonable" nor "appropriate" and cannot be justified.

...

We wish to emphasize that while we recognize and respect the authority of the Minister to place justifiable limits on our treaty fishing, the limits in question are not reasonable and are not justifiable. The Department of Fisheries and Oceans has not provided scientific, social or economic information to so limit our fishing, despite our requests for same. Our own research fishery has shown that an expanded harvest is sustainable and that catch rates are far less than Mr. Bellefontaine told us they would be. We propose to expand our fishery on an experimental basis and to monitor and report catches to see if any adverse consequences are likely. All moulting, berried and undersized lobster will be released. If anything arises that indicates an undue risk from our fishing activities, we will reduce or cease our effort. The health of lobster in LFA 34 is our future, and the future of our children and our children's children. We will not jeopardize the lobster stock, but neither will we cease fishing in accordance with our constitutional rights just because the Minister and his officials feel it more convenient for us to fish at the same time as non-Aboriginal commercial fishers.

It is obvious from the Minister's Statement of July 21^st, as well as Mr. Bellefontaine's unresponsive letter of July 11^th, that the Department of Fisheries and Oceans has no intention of changing their position on our fishery in LFA 34 and that further consultation and dialogue is pointless. Nevertheless, we intend to take a measured, stepped response to ensure we act responsibly.

[21]            On July 28, 2000^[15], Mr. Bellefontaine replied to Chief Maloney, and said this about a commercial lobster fishery in the July to October period, he wrote:

The second issue you raise is in regards to a commercial lobster fishery in St. Mary's Bay from July to mid-October for Indian Brook First Nation. My position in this matter has not changed and I cannot support any commercial fishery for lobster during the regulated closed time.

[22]            In the meantime, fishing by the Band's fishers at levels in excess of the 35-trap licence were met by enforcement activity by the Department. As matters developed, the level of confrontation escalated to the point where criminal charges are now pending in certain instances. Both sides deplore the violence and express the opinion that it could be avoided by a change of behaviour on the part of the other. I have no doubt that both are right.

[23]            The intention of the application and the interlocutory motion is to put a stop to the enforcement activity by officials of the Department directed against the members of the applicant who are exercising what they assert to be their treaty right to take lobster without being licensed by the Minister. It is not disputed that enforcement activity is taking place. The challenge to the enforcement activity is not based upon the characteristics of the enforcement activity but upon the right of the Department to engage in it at all. There is affidavit evidence from both sides as to the characteristics of the enforcement activity, such as allegations that the Department's officers are engaging in intimidation tactics by their choice of dress and bearing of weapons. This evidence is countered by evidence as to the resistance being offered by members of the applicant to what is asserted to be legitimate enforcement activity. It is not necessary for me to go into detail with respect to these matters because, while the applicant complains about the way in which enforcement activity is being undertaken, it's fundamental complaint is about the legitimacy of any enforcement activity^[16] at all.

[24]            The applicant seeks such an injunction upon the following conditions:

1.              The Band and its members fish no more than 800 traps at any one time;

2.              The traps are tagged with numbered tags issued by the Band;

3.              The Band and its members otherwise comply with the conservation measures contained in the "1999 Aboriginal Communal Commercial Lobster Fishing Licence Agreement" issued to the applicant by the Minister under the signature of Neil A. Bellefontaine October 12, 1999;        

4.              The Band and its members land their catch at the public wharf at New Edinburgh, St. Mary's Bay, permit its inspection by officers of the Department of Fisheries and Oceans, and report all lobsters caught to the Department of Fisheries and Oceans,

5.              The Minister is at liberty to apply to lift this interim injunction if he is of the opinion that the catch of lobsters by the Band and its members has exceeded, or is about to exceed, the amount that may be reasonably harvested consistent with the needs of conservation.

[25]            After this application was launched and a Notice of Motion seeking interlocutory relief was served upon the Attorney General of Canada (the respondent)^[17], certain directions were issued as to the scheduling of the hearing of the application. This led to a conference call in which an order was made authorizing the amendment of the Notice of Application and Notice of Motion to add the Confederacy of Mainland Mi'kmaq and the Union of Nova Scotia Indians as respondents and scheduling a further telephone hearing to deal with the addition of interveners. At the time of that call, the Native Council of Nova Scotia, the LFA District 34 Lobster Committee, the Atlantic Fishing Industry Alliance, the Attorney General of Nova Scotia, and the Attorney General of New Brunswick were added as interveners, with full right to present evidence and be heard, with their right of appeal to be decided upon motion following the decision in question. All were heard on this motion.

[26]            The test for the issuance of an interlocutory injunction was set out in two Supreme Court of Canada cases: Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987], 1 S.C.R. 110 ("Metropolitan Stores") and RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311 (RJR-MacDonald). The test has three elements and is therefore known as the tripartite test. The applicant must show that it has a serious issue to be tried, that it will suffer irreparable harm if the injunction is not granted, and that the balance of convenience favours the granting of the injunction.

[27]            However, before embarking upon the tripartite test, I must dispose of the preliminary objections made by the respondent. If the respondent succeeds in its objections, it says that will not be necessary for me to deal with the tripartite test. The preliminary objections are stated below in the order in which I intend to deal with them.

a)          The Applicant has not sought judicial review of the May 15, 2000 decision that the commercial lobster fishing season would be closed in LFA 34 from June 1 to 0:700 hours to November 27, 2000.

b)          Is the July 20, 2000 Statement of the Minister or the July 28, 2000 letter from Mr. Bellefontaine a "decision or order of a federal board, commission or tribunal?

c)          Should this Court grant a final declaration on an interim application heard in a summary way?

d)          Is interim injunctive relief available against the Crown?

e)          Is this matter justiciable?

[28]            I will deal with the first two objections together as they raise the same issue in different ways. The applicant's Notice of Application is dated August 18, 2000 and identifies the decision under review as the decision of the Minister made on or about July 21, 2000 (the date of the Minister's public announcement) which was confirmed on or about July 28, 2000, the date of Mr. Bellefontaine's letter in respect of lobster fishing in Lobster Fishing Area 34 in the period July 21, 2000 and up to and including October 15, 2000.

[29]               It is said by the respondent that the applicant's complaint is the closed lobster season, a matter which was decided in Mr. Bellefontaine's letter of May 15, 2000. The closed season for commercial lobster fishing in LFA 34 is contained in Schedule XIV of the Atlantic Fishery Regulations 1985 made pursuant to section 57 of Fisheries Act. The respondent says that the closed season was confirmed in Mr. Bellefontaine's letter to Chief Maloney dated May 15, 2000 in which Mr. Bellefontaine reminded Chief Maloney that "the commercial lobster fishery in Lobster Fishing Area 34 closes on May 31, 2000 and all fishers are required to have their traps landed by that time". Mr. Wruck, on behalf of the respondent, says that Mr. Bellefontaine's letter contains the decision to close the fishery. The announcement of July 21, 2000 and the letter of July 28, 2000 are not decisions at all, Mr. Wruck argues, but simply a response to a letter. Consequently, the Notice of Application underlying the Notice of Motion is either out of time, or does not challenge a decision of a federal board commission or other tribunal. If the Notice of Application is out of time, then the motion for an interlocutory injunction has no substrate and cannot be granted.

[30]            The applicant's position is that the decision which it seeks to challenge is the Minister's refusal to recognize the lobster fishery which it proposed for the period from July 21 to October 15, 2000. The refusal was communicated to the applicant, either in the Minister's public announcement of July 21, 2000, or in Mr. Bellefontaine's letter of July 28, 2000. Prior to that time, while certain elements of the proposed fishery were objected to, the concept was not rejected and invitations to continue the dialogue were extended. It was only on July 28, 2000 that the Department's unequivocal refusal to countenance a summer commercial fishery for the applicant became manifest.

[31]            I agree with the applicant that the decision under review was made and first communicated to it either in the Minister's July 21 announcement, and certainly no later than Mr. Bellefontaine's letter of July 28^th. Either case is within the 30 day period provided by subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7^[18].

[32]            Mr. Bellefontaine's letter of May 15, 2000 does nothing more than restate the law as it appears in Schedule XIV to the Atlantic Fisheries Regulations, 1985. It is not a decision in the sense of an exercise of discretion: the effective action was dictated by the Regulations and not by anything Mr. Bellefontaine said. There was no specific request before Mr. Bellefontaine at that time for a summer food and commercial fishery. That request was made on June 2, 2000 and was only unequivocally rejected on July 28, 2000.

[33]            The definition of "federal board, commission or tribunal" at section 2 of the Federal Court Act is as follows:

federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

office fédéral Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.

[34]            It cannot be argued by the respondent that Mr. Bellefontaine falls within this definition with respect to his decision of May 15, 2000 but not with respect to his decision of July 28, 2000. In my view, it is clear that the applicant is attacking a decision of a federal board, commission or tribunal. These two objections fail.

[35]            The respondent's next objection is that the granting of an interlocutory injunction will, in these circumstances, amount to granting an interlocutory declaration.

[36]            To establish that an interlocutory declaration is not an appropriate remedy, the respondent points to Francis v. Mohawks of Akwesasne Band of Indians (1993), 62 F.T.R. 314.    Noël J. (as he then was), declined to grant an interlocutory declaration as to the quorum requirements for a Band election:

At the onset, I should state that I do not believe that it would be appropriate for this Court to grant the interim declaratory order sought by the applicants. A declaration as to the state of the law regarding quorum for the Mohawk Council of Akwesasne would, by its nature, be final, and I do not believe that such a declaration can properly be made in the context of a motion for interim relief. [ Footnote: See: Hogg, P.W., Liability of the Crown (2nd ed., 1989) at 20-22. Canada A.G. v. Gould, [1984] 1 F.C. 1133 (C.A.); affirmed [1984] 2 S.C.R. 124">[1984] 2 S.C.R. 124 (S.C.C.) Pacific Salmon Industries Inc. v. The Queen, [1985] 1 F.C. 504, 3 C.P.R. (3rd) 289 (T.D.) ]

[37]            The authority for the proposition that an interlocutory injunction may amount to an interlocutory declaration is Gould v. Attorney General of Canada, [1984] 1 F.C. 1133, a decision of the Federal Court of Appeal.    The facts in Gould were significant. Gould was an inmate in a federal penitentiary who challenged paragraph 14 (4)(e) of the Canada Elections Act, R.S.C. 1985 c. E-2 which declares ineligible to vote in a federal election "any person undergoing punishment as an inmate in any penal institution for the commission of any offence". Gould brought an application for judicial review seeking a declaration that paragraph 14(4)(e) was invalid as it infringed his rights under section 3 of the Canadian Charter of Rights and Freedoms to vote in elections for the House of Commons. It was agreed that paragraph 14(4)(e) was invalid unless it could be justified under section 1 of the Charter. However, the election was at hand so Gould applied to the Trial Division for an interlocutory mandatory injunction that he be permitted to vote and that his vote be counted in his home constituency. The Trial Division granted the injunction; the respondent appealed and the appeal was heard on an expedited basis. It is clear from the reasons of the Court of Appeal that the election would occur before the judicial review application could be heard. As a result, the decision on the injunction application would effectively dispose of the application. If Gould was allowed to vote pursuant to the interlocutory injunction, and was not successful on the judicial review application, his vote could not be recalled. Thus Gould would have his remedy before his application on the merits was heard.

[38]            Thurlow C.J., dissenting, would have dismissed the appeal, largely because, in his view, the case for justification appeared to be so weak that the application would in all likelihood succeed.    Mahoney J.A., for the majority, characterized the effect of the injunction as follows at page 1140:

The order made [the mandatory injunction permitting Gould to vote] authorizes the respondent [Gould] to conduct himself and requires him to be treated as though the law he seeks to have declared invalid were now invalid notwithstanding that it remains in full force and effect and will so remain unless and until, after trial, the declaration sought is made. That went far beyond a determination that there is a serious issue to be tried. It required more than the usual determination, in disposing of an application for an interlocutory injunction, that the balance of convenience dictated that the status quo be maintained or the status quo ante be restored pending disposition of the action after trial. It was a determination that the respondent, without having had his action tried, is entitled to act and be treated as though he had already won. The order implies and is based on a finding that the respondent has, in fact, the right he claims and that paragraph 14(4)(e) is invalid to the extent claimed. That is an interim declaration of right and, with respect, is not a declaration that can properly be made before trial. The defendant in an action is as entitled to a full and fair trial as is the plaintiff and that is equally so when the issue is constitutional. (emphasis added)

[39]            Mahoney J.A.'s position was approved upon appeal to the Supreme Court of Canada^[19]

and was cited with approval in Metropolitan Stores where his approach was described as "cautious restraint [which] respects the right of both parties to a full trial..."^[20]

[40]            The interlocutory injunction granted in Gould, supra, applied not only to Gould but to all other prisoners since there was no basis upon which to distinguish between them. Had it been allowed to stand, the decision of the Trial Division decided not only Gould's rights but those of all incarcerated individuals. Any one of them could have asked for and obtained the same injunction which Gould obtained for himself. Mahoney J.A. commented as follows:

To treat the action as affecting only the rights of the respondent is to ignore reality. If paragraph 14(4)(e) is found to be invalid in whole or part, it will, to that extent, be invalid as to every incarcerated prisoner in Canada. That is why, with respect, I think the learned Trial Judge erred in dealing with it as though the application before her was a conventional application for an interlocutory injunction to be disposed of taking account of the balance of convenience as between only the respondent and appellants.

[41]            As to how such applications ought to be dealt with, one notes the comments of the Supreme Court of Canada in Metropolitan Stores, supra, at paragraph 45, which immediately precede the reference to Gould, supra:

Furthermore, in many Charter cases such as the case at bar, some party may find it necessary or prudent to adduce evidence tending to establish that the impugned provision, although prima facie in violation of a guaranteed right or freedom, can be saved under s. 1 of the Charter. But evidence adduced pursuant to s. 1 of the Charter essentially addresses the merits of the case.

[42]            Given that as a rule a judge disposing of a motion for interlocutory injunction is not to deal with the merits, the implication is that the matter should only be decided after trial. Mahoney J.A.'s comments on this point are repeated below for each of reference:

That is an interim declaration of right and, with respect, is not a declaration that can properly be made before trial. The defendant in an action is as entitled to a full and fair trial as is the plaintiff and that is equally so when the issue is constitutional. (emphasis is added)

[43]            In Metropolitan Stores, supra, at paragraph 76, the Supreme Court of Canada drew from this the conclusion that, as a result, such decisions should not be made on an interlocutory basis:

Mahoney J. went on to hold that the interlocutory injunction should be refused for the additional reason that it decided the merits, a matter that should not be resolved at the interlocutory stage.

[44]            The conclusion which flows from this is that injunctions which finally determine rights, and therefore amount to a declaration of rights, ought not be made on an interlocutory basis.

[45]            The applicant's position is that the jurisdiction to grant interim and interlocutory relief is found at section 18.2 of the Federal Court Act:

18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.

18.2 La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive.

[46]            Related to the grant of jurisdiction is the principle that the Court is always able to intervene to restrain unlawful government action. If , as alleged, the Minister is engaging in unlawful conduct, the Court must be able to provide a remedy. While this is a sound principle, it is not necessarily as true of interlocutory proceedings as it is of injunction issued after a full hearing.

[47]            How does Gould apply to these facts? There is an element of timeliness here, as there was in Gould, in that the injunction sought is for a period ending October 15, 2000. The nature of the underlying application is such that it is likely that it would be very difficult for it to be heard and decided prior to that date, particularly since the respondent has already given notice that it intends to apply to convert the application to an action. Such an application may not succeed but it suggests the view which the respondent takes of the matter. It is very likely that granting the interlocutory injunction will effectively decide the issue in the Notice of Application.

[48]            Furthermore, the granting of the injunction would affect the rights of others beyond the applicant. The applicant is one of 34 communities who claim to be entitled to the benefit of the treaties of Peace and Friendship. The basis upon which the applicant advances its claim is one which is available to each of those 34 communities, in that each of them could claim, as does this applicant, that since it is entitled to the benefits of the Peace and Friendship treaties and since the legislation has not been amended since Marshall No. 1 was decided, the legislation (including the regulations) is equally inoperative against it. The fact that this particular dispute involves a defined season in a particular lobster fishing area and certain undertakings willingly assumed, does not make those matters a requirement of obtaining the relief sought.

[49]            I therefore find that this application comes within the principle in Gould in that it will very likely be the final disposition of the matter, will affect rights beyond those of the immediate parties, and as a result ought not be made on an interlocutory basis.

[50]            I return now to the question of the appropriate forum for deciding such issues in order to deal with comments found in RJR-MacDonald, supra, which suggest that where an interlocutory injunction will dispose of an action, it should be dealt with on the merits:

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.

RJR-MacDonald, paragraph 55

[51]               This flies in the face of the comments quoted earlier to the effect that final determinations of right should not be made on an interlocutory basis, but only after a full evidentiary record has been developed, comments which were approved Metropolitan Stores, supra. These opposing positions can be reconciled by limiting the reach of the statement made in RJR-MacDonald, supra, to the two cases which it recites, that is where the rights must be exercised immediately or not at all or when the damage caused by the refusal of the injunction will make success at trial nugatory. In the absence of an indication that RJR-MacDonald was meant to overrule Metropolitan Stores and Gould, the cases should be treated as complementary.

[52]            The exceptional circumstances are not present in this case. While the specific issue in this application may be limited to October 15, 2000, the underlying issue as to the validity of the legislation is an ongoing one which can be tested on a full record in other proceedings. Nor is the damage suffered by the applicant such as to make success at the hearing of the application illusory. The rights in question stretch a long way into the future. As a result, I do not believe that this is a case which comes within the limited exception set out in RJR-MacDonald, supra.

[53]            For these reasons, I conclude that this preliminary objection is well taken and that the motion for an interlocutory injunction should be dismissed on that basis.

[54]            I am conscious of the importance of this matter to the parties, and I take note of the admonition in Metropolitan Stores, supra, that a Court of Appeal should not exercise its own discretion when sitting in appeal from a discretionary order such as this one. In Metropolitan Stores, supra, the Supreme Court of Canada cited with approval the following quotation from the decision of the House of Lords in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042:

My Lords, with great respect, I cannot agree that the production of additional evidence before the Court of Appeal, all of which related to events that had taken place earlier than the hearing before Dillon J., is of itself sufficient to entitle the Court of Appeal to ignore the judge's exercise of his discretion and to exercise an original discretion of its own. The right approach by an appellate court is to examine the fresh evidence in order to see to what extent, it any, the facts disclosed by it invalidate the reasons given by the judge for his decision. Only if they do is the appellate court entitled to treat the fresh evidence as constituting in itself a ground for exercising an original discretion of its own to grant or withhold the interlocutory relief.

I take this to mean that if an appeal of this decision is taken and I am found to be wrong about the preliminary point, there will likely be no decision on the merits. For the assistance of the parties, and the Court of Appeal I called upon, I will now consider the application of the tripartite test.

[55]            The first issue is whether there is a serious issue to be tried. This hardly needs debating. The real issue under this heading is whether the case is one which should be dealt with on its merits because it falls within the second exception to the general rule that a motions judge should not delve into the merits of an interlocutory application:

The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone.

RJR-MacDonald v. Canada, supra, paragraph 55

[56]            Counsel for the applicant relied upon the following passage from Marshall No. 1 in support of his position that whether the Fisheries Act and Regulations are inoperative against the applicant is a pure question of law:

Cory J. in Badger, supra, at paragraph 79, found that the test for infringement under s. 35(1) of the Constitution Act, 1982 was the same for both aboriginal and treaty rights, and thus the words of Lamer C.J. in Adams, although in relation to the infringement of aboriginal rights, are equally applicable here. There was nothing at that time which provided the Crown officials with the "sufficient directives" necessary to ensure that the appellant's treaty rights would be respected. To paraphrase Adams, at paragraph 51, under the applicable regulatory regime, the appellant's exercise of his treaty right to fish and trade for sustenance was exercisable only at the absolute discretion of the Minister. Mi'kmaq treaty rights were not accommodated in the Regulations because, presumably, the Crown's position was, and continues to be, that no such treaty rights existed. In the circumstances, the purported regulatory prohibitions against fishing without a licence (Maritime Provinces Fishery Regulations, s. 4(1)(a)) and of selling eels without a licence (Fishery (General) Regulations, s. 35(2)) do prima facie infringe the appellant's treaty rights under the Treaties of 1760-61 and are inoperative against the appellant unless justified under the Badger test.

Marshall No. 1, paragraph 64

[57]            At the hearing of the motion, the respondent argued that Marshall No. 2 established that the benefits of the Peace and Friendship treaties were local and relied upon the following passage in support of that proposition:

In the event of another prosecution under the regulations, the Crown will (as it did in this case) have the onus of establishing the factual elements of the offence. The onus will then switch to the accused to demonstrate that he or she is a member of an aboriginal community in Canada with which one of the local treaties described in the September 17, 1999 majority judgment was made, and was engaged in the exercise of the community's collective right to hunt or fish in that community's traditional hunting and fishing grounds. The Court's majority judgment noted in paragraph 5 that no treaty was made by the British with the Mi'kmaq population as a whole:

       ... the British signed a series of agreements with individual Mi'kmaq communities in 1760 and 1761 intending to have them consolidated into a comprehensive Mi'kmaq treaty that was never in fact brought into existence. The trial judge, Embree Prov. Ct. J., found [page547] that by the end of 1761 all of the Mi'kmaq villages in Nova Scotia had entered into separate but similar treaties. [Emphasis added]

The British Governor in Halifax thus proceeded on the basis that local chiefs had no authority to promise peace and friendship on behalf of other local chiefs in other communities, or to secure treaty benefits on their behalf. The treaties were local and the reciprocal benefits were local. In the absence of a fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the local community with which the "separate but similar" treaty was made. Moreover, the treaty rights do not belong to the individual, but are exercised by authority of the local community to which the accused belongs, and their exercise is limited to the purpose of obtaining from the identified resources the wherewithal to trade for "necessaries".

      Marshall No. 2, paragraph 17

[58]            If this is the law, then before the question of whether treaty rights have been infringed arises, the applicant would have to show that its members are engaging in a traditional fishery in the traditional territory of a band which signed a Peace and Friendship treaty and to which they can show a connection. These are all issues of fact which preclude disposing of this motion as a pure question of law.

[59]            At the hearing of the motion, this argument lead to a discussion as to whether the comments about territoriality were made per incuriam, that is, without full consideration, as it appears that the issue was never canvassed with counsel. It strikes me that there is a more obvious answer to the question, an answer which arises from words which appear at the conclusion of the passage relied upon by the applicant i.e "the purported regulatory prohibitions ... are inoperative against the appellant unless justified under the Badger test" (emphasis added). As was pointed out in the same judgment, justification is a question of fact. There is nothing to prevent the respondent or any of the interveners from raising justification at the hearing of this matter on the merits.

At the end of the day, it is always open to the Minister (as it was here) to seek to justify the limitation on the treaty right because of the need to conserve the resource in question or for other compelling and substantial public objectives, as discussed below.

Marshall No. 2, paragraph 19

[60]            Not only is justification a question of fact, but it is a question whose answer may vary depending upon the species of fish or wildlife with respect to whom justification is required:

As suggested in the expert evidence filed on this motion by the Union of New Brunswick Indians, the establishment of a closed season may raise very different conservation and other issues in the eel fishery than it does in relation to other species such as salmon, crab, cod or lobster, or for that matter, to moose and other wildlife. The complexities and techniques of fish and wildlife management vary from species to species and restrictions will likely have to be justified on a species-by-species basis. [page 550] Evidence supporting closure of the wild salmon fishery is not necessarily transferable to justify closure of an eel fishery.

Marshall No. 2, paragraph 21

[61]            I therefore find that there is a serious issue to be tried but not one which arises as a pure question of law.

[62]            In the ordinary course, the next issue to be considered would be irreparable harm. However, there is no rule that the elements of the tripartite test must be considered in any particular order. I therefore defer consideration of irreparable harm until I have dealt with the issue of balance of convenience.

[63]            In constitutional cases, the issue of balance of convenience must necessarily involve consideration of the public interest. But the public interest is not limited to the government's interest. The public interest can be articulated by others:

It is, we think, appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought.    "Public interest" includes both the concerns of society generally and the particular interests of identifiable groups.

RJR-MacDonald, supra, paragraph 66

[64]            However, this does not mean that an individual applicant can invoke the public interest simply by asserting that the government does not represent the public interest.

In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the Court of the public interest benefits which will flow from the granting of the relief sought.

RJR-MacDonald, supra, paragraph 68

[65]            In the case of an application to restrain a public authority, the onus of showing injury to the public interest is more easily discharged:

The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

RJR-MacDonald, supra, paragraph 71

[66]            There is authority for drawing a distinction between exemption cases, in which the Court is asked to rule that a person or group is exempted from the operation of a law, and the suspension cases, where the operation of the law is suspended completely. In some cases, the burden of showing the balance of convenience is more easily discharged where the applicant seeks to be exempted from the operation of a law since the impact is. But this is not always so:

The reason why exemption cases are assimilated to suspension cases is the precedential value and exemplary effect of exemption cases. Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to

risk provoking a cascade of stays and exemptions, the sum of which make them tantamount to a suspension case.

Metropolitan Stores, supra, paragraph 81

[67]            In this case, the applicant asks for an injunction to prevent the Minister from "seizing from the Shubenacadie Indian Band and its members, lobster traps, fishing vessels, and equipment used to harvest lobsters, and any lobsters harvested by them, in and from St. Mary's Bay Lobster Fishing Area 34 ("LFA") Digby County, Province of Nova Scotia up to and including October 15, 2000 and from otherwise impeding or interfering with the lobster fishing and the sale of lobster by the Band and its members". The conduct complained of is the enforcement by the Minister's officials of the provisions of the Fisheries Act and the Regulations made pursuant to the Act against the members of the applicant who are either fishing without licences or in excess of the terms of the licences they hold. The injunction application is directed to a Minister of the Crown and to his officials seeking to enjoin them from enforcing a piece of legislation on the basis that the law does not apply to the applicant and its members.

[68]            In form, the motion seeks an exemption from the application of the law.

[69]            The applicant says that the benefit to the public which will result from the granting of the injunction is the following:

a)          Peace on the waters: "An injunction will allow fishing to take place under controlled conditions, protecting the resource and preserving most of the powers of the Minister. The minor intrusion on the Minister is more than outweighed by public peace, while preserving constitutional rights."

b)          The treaty dispute settlement clause: the Peace and Friendship treaties contain a clause by which it is agreed that in case of "Quarrel or misunderstanding" the remedy is to "apply for redress according to the Laws established in his said Majesty's dominions". It is argued that this promise on the part of the indians requires the Court to assist them in resolving their dispute with the Minister by enjoining him from using force to unilaterally enforce his views.

c)          Public opposition to the enforcement actions of the Department: the applicant points to certain published reports in which individuals object to the course of conduct adopted by the Minister. The issuance of the injunction would hold the Minister to standards of conduct which will reassure the public that "'the Indian problem' can be resolved through restraint and sensitivity".

d)          Band government: The Band and council of the Shubenacadie Indian Band have adopted a carefully considered plan for the responsible management of the fishery. "Respect is due to the Chief and Council".

e)          Nation to nation relations: The policy of confrontation followed by the Minister is damaging the long-term nation to nation relations of the Government of Canada with Aboriginal people. "A nation to nation relationship cannot be sustained when one partner has physical force on its side and shows a willingness to use it in the resolution of disputes".

[70]            The unfortunate confrontations in St. Mary's Bay and at Burnt Church are a throbbing reminder that despite the Peace and Friendship treaties, we have some way to go to achieve that objective. However, I am unable to agree that the granting of an injunction will provide the benefits which the applicant holds out.

[71]            As pointed out in the discussion of Gould, if the applicant is entitled to this injunction, so is every other Band who claims the benefit of the Peace and Friendship treaties. As a result, this is as much a case of suspension as it is of exemption. The Minister would be precluded from taking enforcement action against any other Band. Nor would this be limited to the period for which this injunction would be effective, since it is no part of the legal basis for the issuance of injunction that it is limited in time. This cannot result in fishing under controlled conditions, protecting the resource and preserving most of the powers of the Minister, as claimed by the applicant. I do not say this because the applicant and its members are not responsible but because the granting of an injunction would create a situation of no effective authority. The applicant cannot control those who are not its members. Each Band can claim its entitlement without reference to any of the others. To say that there are representative organizations in the Aboriginal community who could coordinate these demands is to transfer the Minister's constitutional obligations to others.

[72]            The settlement clause in the treaty ought to be respected but it does not guarantee any particular result. The applicant can vindicate its rights without an injunction to restrain confrontation arising from its exercise of contested rights. There are other legal remedies available to the applicant.

[73]            Public opinion does not lie exclusively on either side of this dispute. To the extent that there is any consensus, it would be that there is room for compromise on the part of both parties.

[74]            The state of nation to nation relations between the federal government and the First Nations is a matter for the leadership of both organizations to address. It is not a matter which this Court can adjudicate, nor can it legislate respect for the Chief and Council of the Band, as deserving as they are, and as desirable a result as that would be.

[75]            In my view, the public interest is against creating a vacuum of authority with respect to the fishery resource until the necessary negotiations and consultations have taken place. To grant this injunction to this Band is to grant it to every other Band which is entitled to claim the benefit of the Peace and Friendship treaties. It may be that this is exactly what will happen once the issue is decided on its merits. If that is what the law requires, it shall be done. But such a determination can only be made after all the issues are fully canvassed, including the issue of justification.

[76]            Against this is the fact that the Minister is charged under the Fisheries Act with protecting the fisheries resource for the benefit of all Canadians. The applicant's argument is that the Minister cannot show that he is acting in furtherance of a public duty in enforcing the legislation because Marshall has decided that the law is inoperative as it relates to the applicant and its members. With respect, this begs at least two questions. The dicta in Marshall No. 2 as to the territorial nature of treaty rights remains an open question. Secondly, the applicant cannot argue the invalidity of the law against the Minister when it is the validity of the law as it relates to the lobster fishery which is the issue. I proceed on the basis that the Minister is acting pursuant to a public duty until the contrary is shown, which the applicant will have the opportunity to do when this matter is heard on the merits.

[77]            As a result, I find that the balance of convenience does not favour the applicant. Since one must satisfy all three elements of the test in order to succeed, it is not necessary for me to address the question of irreparable harm.

[78]            To summarize, the motion for an interlocutory injunction is dismissed on the basis that the issues raised by the motion are not appropriate for resolution in an interlocutory motion, since this will likely be the final disposition of the application. Should it be necessary for me to go further, I find upon a consideration of the tripartite test that the applicant has not persuaded me that the balance of the convenience favours the granting of the injunction.

ORDER

The motion for an interlocutory injunction is dismissed.

                                                                                                 "J.D. Denis Pelletier"         

                                                                                                                        Judge                    

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

LOBSTER COMMITTEE & 'ATLANTIC FISHING INDUSTRY

Mr. Bruce Clarke                                            FOR INTERVENOR NATIVE COUNCIL OF NOVA SCOTIA

Mr. Gabriel Bourgeois                                   FOR INTERVENOR ATTORNEY GENERAL OF NEW BRUNSWICK

SOLICITORS OF RECORD:

Mr. Bruce Wildsmith                                      FOR APPLICANT Barrister and Solicitor

Barss Corner, Nova Scotia

Mr. Doug Brown                                             FOR RESPONDENT UNION OF NOVA Barrister and Solicitor                                                                         SCOTIA Halifax, Nova Scotia

Mr. Morris Rosenberg-

Deputy Attorney General of Canad FOR RESPONDENT ATTORNEY GENERAL OF

Ottawa, Ontario                                                 OF CANADA

Mr. Eric Zscheile                                               FOR RESPONDENT CONFEDERACY OF Barrister and Solicitor                                                             MAINLAND MPKMAQ Truro, Nova Scotia

Mr. Alexander Cameron                                  FOR INTERVENOR ATTORNEY GENERAL Legal Counsel    OF NOVA SCOTIA Attorney General of Nova Scotia

Halifax, Nova Scotia

Daley Black

Barristers and Solicitors                                  FOR INTERVENOR LFA DISTRICT 34

Halifax, Nova Scotia                                         LOBSTER         COMMITTEE & ATLANTIC FISHING INDUSTRY

Burchell Hayman Barnes

Barristers and Solicitors                            FOR INTERVENOR NATIVE COUNCIL OF

Halifax, Nova Scotia                                         NOVA SCOTIA

Mr. Gabriel Bourgeois           FOR INTERVENOR ATTORNEY GENERAL            Legal Counsel                     NEW BRUNSWICK                                                             Attorney General of New Brunswick

Fredericton, New Brunswick