Date: 20040126
Docket: A-603-02
Citation: 2004 FCA 34
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
CHIEF PERRY BELLEGARDE, REPRESENTING HIMSELF
AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS
AND INDIAN BANDS AND THEIR MEMBERS
FIRST VICE-CHIEF GREGORY AHENAKEW, REPRESENTING HIMSELF
AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS
AND INDIAN BANDS AND THEIR MEMBERS,
CHIEF LOUIS JOSIE, REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE HATCHET LAKE DENESULINE NATION,
CHIEF BARRY AHENAKEW, REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE AHTAHKAKOOP FIRST NATION, AND
CHIEF CLIFFORD STARR, REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE STAR BLANKET CREE NATION,
CHIEF MARCEL HEAD REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE SHOAL LAKE CREE NATION AND
CHIEF EDWARD J. MARTEN REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE FOND DU LAC DENESULINE NATION
Appellants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Saskatoon, Saskatchewan on January 14, 2004.
Judgment delivered at Ottawa, Ontario on January 26, 2004.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: STRAYER J.A.
ROTHSTEIN J.A.
Date: 20040126
Docket: A-603-02
Citation: 2004 FCA 34
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
CHIEF PERRY BELLEGARDE, REPRESENTING HIMSELF
AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS
AND INDIAN BANDS AND THEIR MEMBERS
FIRST VICE-CHIEF GREGORY AHENAKEW, REPRESENTING HIMSELF
AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS
AND INDIAN BANDS AND THEIR MEMBERS,
CHIEF LOUIS JOSIE, REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE HATCHET LAKE DENESULINE NATION,
CHIEF BARRY AHENAKEW, REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE AHTAHKAKOOP FIRST NATION, AND
CHIEF CLIFFORD STARR, REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE STAR BLANKET CREE NATION,
CHIEF MARCEL HEAD REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE SHOAL LAKE CREE NATION AND
CHIEF EDWARD J. MARTEN REPRESENTING HIMSELF AND ALL OTHER
MEMBERS OF THE FOND DU LAC DENESULINE NATION
Appellants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] The appellants believe that certain aspects of the Firearms Act, S.C. 1995, c. 39, cannot be applied to them without infringing the hunting rights guaranteed to them by certain Aboriginal treaties, and by section 35 of the Constitution Act, 1982 (Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11). The challenged provisions of the Firearms Act require the appellants to register the guns used for hunting, and to obtain certain licences. On June 4, 2001, they commenced an action for a number of declarations, including a declaration that the Firearms Act does not apply to treaty Indians in Saskatchewan.
[2] By notice of motion filed on March 22, 2002, the appellants sought interim relief in the form of an "Interlocutory Constitutional Injunction" that would prohibit the Crown from applying the Firearms Act or the Criminal Code, R.S.C. 1985, c. C-46, to the appellants, or enforcing it against them, in respect of the purchase, possession or use of an "ordinary firearm" or ammunition as defined by the Supreme Court of Canada in Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783 for the exercise of their aboriginal hunting and harvesting rights, and the hunting and harvesting rights promised to them by the Crown in the treaties, pending the outcome of their action.
[3] In a judgment dated October 31, 2002, a Federal Court Judge dismissed the application for an injunction. His reasons are now reported as Saskatchewan First Nations and Indian Bands v. Canada (Attorney General), [2002] F.C.J. No. 1517 (QL), 223 F.T.R. 64. This is an appeal of that decision.
[4] A decision to grant or deny an interlocutory injunction is a discretionary one that will not be reversed on appeal in the absence of an error of law or a palpable and overriding error of fact. There is no dispute that the applicable principles are those set out in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110. That case confirmed the familiar three part test for an interlocutory injunction: (1) a serious question to be tried, (2) irreparable harm, and (3) the balance of convenience. The Judge in this case considered the relevant law and dismissed the motion for an interlocutory injunction on the basis that the appellants had failed to establish that they will suffer irreparable harm if the interlocutory injunction is not granted and their action is successful. Having reached that conclusion, he did not consider the question of balance of convenience.
[5] An injunction somewhat like the injunction sought in this case was granted in N.T.I. v. Canada (Attorney General), 2003 NUCJ 01, on the motion of Nunavut Tunngavik Incorporated, representing the Inuit beneficiaries of the Nunavut Land Claims Agreement. In that case, there was a finding of irreparable harm based on evidence as to the difficulties faced by Inuit people, especially those in remote locations, in complying with the Firearms Act. There was also evidence that there could be a risk of food shortages in some communities if hunting were curtailed because of non-compliance with the Firearms Act. I express no opinion on the merits of that decision. I note however that there is no such evidence in this case.
[6] The record does not establish that the appellants face any more difficulty than anyone else in complying with the Firearms Act. As I understand the appellants' argument, they do not object to registration and licensing per se. On the contrary, they would comply with registration and licensing requirements substantially like those of the Firearms Act if they were imposed by an Aboriginal authority. Fundamentally, the appellants believe that if they comply with the requirements of the Firearms Act as it now stands, they would be participating or acquiescing in an infringement of the provisions of certain Aboriginal treaties because, in their view, the federal government cannot impose such requirements without breaching certain treaty provisions. Thus, the irreparable harm asserted by the appellants in this Court is in the nature of a perceived affront to the treaties.
[7] The Judge in the Court below accepted that there was a risk of some harm to the appellants if they cannot hunt pending the outcome of their action without complying with the Firearms Act. However, he found that the harm from one or more lost hunting seasons would not be irreparable, because it could be remedied by an award of damages or by other remedies that could be granted if the appellants' action succeeds. That conclusion was reasonably open to him on the record, and it justified his decision to deny the motion for an interlocutory injunction.
[8] However, even if I were prepared to accept the appellants' claim that compliance with the Firearms Act would result in an irreparable breach of a treaty right, I would conclude that no interlocutory injunction should be granted because, in this case, the public interest in permitting government officials to administer the Firearms Act as they think fit outweighs the appellants' objective in challenging the constitutionality of that statute. In reaching this conclusion, I am guided by this passage from Metropolitan Stores (page 149):
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In short, I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry.
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and also this passage from RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 at 348:
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The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result in applications involving Charter rights. In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account. [...] When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so.
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[9] Although the Firearms Act has been the subject of considerable public comment and criticism, it cannot be doubted that its purpose is to enhance public safety by controlling access to firearms: Reference re Firearms Act, [2000] 1 S.C.R. 783. There is a strong public interest in the maintenance of a validly enacted law designed for the protection of the public. Whether and to what extent the Firearms Act is likely to meet that purpose is not a question that can or should be determined at this stage. To grant an interlocutory injunction as requested by the appellants would create a vacuum of authority with respect to the possession and use of firearms. In my view, the honestly held views of the appellants as to the scope of their hunting rights cannot outweigh the public interest in avoiding such a vacuum.
[10] In my view, this appeal should be dismissed with costs.
"K. Sharlow"
J.A.
"I agree
B.L. Strayer J.A."
"I agree
Marshall Rothstein J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-603-02
STYLE OF CAUSE: CHIEF PERRY BELLEGARDE,
REPRESENTING HIMSELF AND ALL
MEMBERS OF THE SASKATCHEWAN FIRST NATIONS AND INDIAN BANDS AND THEIR MEMBERS
FIRST VICE-CHIEF GREGORY AHENAKEW, REPRESENTING HIMSELF AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS AND INDIAN BANDS AND THEIR MEMBERS,
CHIEF LOUIS JOSIE, REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE HATCHET LAKE DENESULINE NATION,
CHIEF BARRY AHENAKEW, REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE AHTAHKAKOOP FIRST NATION, AND
CHIEF CLIFFORD STARR, REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE STAR BLANKET CREE NATION,
CHIEF MARCEL HEAD REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE SHOAL LAKE CREE NATION AND
CHIEF EDWARD J. MARTEN REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE FOND DU LAC DENESULINE NATION
and THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: January 14, 2004
REASONS FOR JUDGMENT BY: Sharlow J.A.
CONCURRED IN BY: Strayer, Rothstein JJ.A.
DATED: January 26, 2004
APPEARANCES:
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Delia Opekokew
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FOR THE APPELLANTS
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Mr. Mark Kindrachuk
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Opekokew, Johnstone-Clarke
Barristers and Solicitors
Saskatoon, Saskatchewan
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FOR THE APPELLANTS
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Morris Rosenberg
Attorney General of Canada
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FOR THE RESPONDENT
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