Date: 20020627
Docket: A-655-01
Neutral citation: 2002 FCA 279
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
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
Appellants
and
CANADA (MINISTER OF FISHERIES AND OCEANS),
TSAWWASSEN FIRST NATION
Respondents
and
B.C. FISHERIES SURVIVAL COALITION
Intervenor
Heard at Vancouver, British Columbia, on June 25, 2002.
Judgment delivered from the Bench at British Columbia, on June 27, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20020627
Docket: A-655-01
Neutral citation: 2002 FCA 279
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
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
Appellants
and
CANADA (MINISTER OF FISHERIES AND OCEANS),
TSAWWASSEN FIRST NATION
Respondents
and
B.C. FISHERIES SURVIVAL COALITION
Intervenor
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia
on June 27, 2002)
LÉTOURNEAU J.A.
[1] We are of the view that this appeal should be dismissed. We are satisfied that Rouleau J. properly understood that the appellants' status as an aboriginal organization within the meaning of the Aboriginal Communal Fishing Licences Regulations, SOR/93-332 was in issue in these proceedings and that the proper determination of such status requiring extensive viva voce evidence would be better accomplished by way of an action rather than judicial review proceedings. We see no error in his upholding of Prothonotary Hargrave's decision in this respect.
[2] In rendering his decision, the Prothonotary bifurcated, as a judicial review proceeding, a narrow issue dealing with natural justice in relation to the Minister's decision to refuse the appellants a certain kind of fishing licence. It is common ground that the appellants' entitlement to be considered for such a licence turns in part upon whether they meet the definition of "aboriginal organization".
[3] Assuming, without deciding, that there is some basis for judicial review on procedural grounds, that process has lost most, if not all, of its significance now that the fundamental question of the appellants' status is to be dealt with by way of trial at which all relevant evidence may be submitted to and assessed by the trial judge in determining the appellants' rights. Furthermore, the alleged breach of natural justice has also lost its significance due to the fact that it occurred in the context of a request for a fishing licence for the year 2001, an issue which is now moot.
[4] In addition, even if the remaining bifurcated judicial review application which Rouleau J. merged into the action had been allowed to proceed on the allegation of breach of natural justice and had been successful, it would still have left for determination the very same matters as will be dealt with in the ongoing action, namely whether the appellants are an aboriginal organization and whether they possess aboriginal fishing rights in the Fraser River at a place called Canoe Pass. These issues, as we have said, require viva voce evidence at a trial. It would have been, in this context, a waste of time and judicial resources to have allowed the judicial review proceedings to proceed on the very narrow point identified.
[5] Therefore, although Rouleau J. could have quashed the Prothonotary's order regarding the bifurcated judicial review application instead of merging it into the action, we are satisfied not only, as we have said, that the alleged breach of natural justice has lost its significance, but also that no prejudice will result to the parties.
[6] Finally, we see no error in the motions judge's decision to grant Tsawwassen First Nation (TFN) respondent status in the action. TFN is claiming title to lands and is at stage 4 of a process involving treaty talks with the government. It appears it is at the stage of selecting lands. It also claims fishing rights in the area. Indeed, it is a party to a tripartite annual agreement under which it holds, with the Musqueam Indian Band, fishing rights with quotas allocated on the basis of the size of their respective population. Having a population of 280 persons, TFN holds 25% of the fishing rights quotas.
[7] We are satisfied, as the motions judge was, that TFN's presence before the Court as a respondent is necessary to ensure that the matters in dispute may be effectively and completely determined: Rule 104(1)(b) of the Federal Court Rules, 1998. Indeed, TFN has a sufficient interest in the outcome of the proceedings as it is likely to be affected by them: Warner-Lambert v. Canada (Minister of Health) 2001 F.C.A.116 (Fed. C.A.). We need only give two examples.
[8] The appellants are claiming both a constitutional and a statutory right. They first argue that they occupied, prior to contact with the Europeans, a part of the land, called Brunswick Point, that TFN is claiming in its treaty negotiations.
[9] Second, the appellants claim entitlement to communal fishing rights for food under the fishing regulations. In order to sustain their claim and establish that they are an aboriginal organization within the meaning of the regulations, they contend that they are a territorially based group who historically fished in the Fraser River at Canoe Pass. A recognition of these rights would evidently affect the fishing quotas allocated to TFN, especially because the estimated number of members of that territorially based group is 400, i.e. almost one and a half times the size of TFN's population.
[10] For these reasons, the appeal will be dismissed with costs payable forthwith to the respondents Canada (Minister of Fisheries and Oceans) and the Tsawwassen First Nation.
(Sgd.) "Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-655-01
STYLE OF CAUSE: Raymond Clayton Wilson et al. v. Canada (Minister of Fisheries and Oceans) et al.
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: June 25, 2002
REASONS FOR JUDGMENT : LÉTOURNEAU J.A.
DATED: June 27, 2002
APPEARANCES:
Craig D. Bavis FOR THE APPELLANT
R.S. Whittaker FOR THE RESPONDENT
(CANADA)
Gregory J. McDade FOR THE RESPONDENT (TSAWWASSEN FIRST NATION)
J. Keith Lowes FOR THE INTERVENOR
SOLICITORS OF RECORD:
Victory Square Law Office FOR THE APPELLANTS
Vancouver
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada (CANADA)
Ratcliffe & Company FOR THE RESPONDENT
North Vancouver (TSAWWASSEN FIRST NATION)
J. Keith Lowes FOR THE INTERVENOR
Vancouver
Email this Content