Hwlitsum First Nation v. Canada (Attorney General), 2016 FCA 118

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2016 FCA 118

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Text of decision

Date: 20160419

Docket: A-313-15

Citation: 2016 FCA 118

CORAM:

NADON J.A.

RENNIE J.A.

GLEASON J.A.

BETWEEN:

HWLITSUM FIRST NATION, as represented by its Chief and Council CHIEF RAYMOND CLAYTON WILSON AND COUNCILLORS LINDSAY WILSON, JANICE WILSON, JIM HORNBROOK and DANNY WILSON on their own behalf and on behalf of the members of the HWLITSUM FIRST NATION

Appellants

and

THE ATTORNEY GENERAL OF CANADA, HALALT FIRST NATION, CHEMAINUS FIRST NATION, LYACKSON FIRST NATION, PENELAKUT FIRST NATION, COWICHAN TRIBES, MUSQUEAM FIRST NATION, TSAWWASSEN FIRST NATION, KATZIE FIRST NATION, KWIKWETLEM FIRST NATION, QAYQAYT FIRST NATION (NEW WESTMINSTER), SEMIAHMOO FIRST NATION, SQUAMISH FIRST NATION, STS’AILES (CHEHALIS) FIRST NATION, TSLEIL-WAUTHUTH NATION, UNION BAR FIRST NATION, YALE FIRST NATION, AITCHELITZ FIRST NATION, LEQ’A:MEL FIRST NATION, MATSQUI FIRST NATION, POPKUM FIRST NATION, SKAWAHLOOK FIRST NATION, SKOWKALE FIRST NATION, SHXWHA:Y VILLAGE (SKWAY FIRST NATION), SQUIALA FIRST NATION, SUMAS FIRST NATION, TZEACHTEN FIRST NATION, YAKWEAKWIOOSE FIRST NATION, SEABIRD ISLAND BAND, SCOWLITZ FIRST NATION, SOOWAHLIE FIRST NATION, KWAW-KWAW-APILT FIRST NATION, KWANTLEN FIRST NATION, SHXW’ŌWHÁMEL FIRST NATION, CHAWATHIL FIRST NATION AND CHEAM INDIAN BAND

Respondents

Heard at Vancouver, British Columbia, on April 18, 2016.

Judgment delivered from the Bench at Vancouver, British Columbia, on April 18, 2016.

REASONS FOR JUDGMENT OF THE COURT BY:

NADON J.A.

Date: 20160419

Docket: A-313-15

Citation: 2016 FCA 118

CORAM:

NADON J.A.

RENNIE J.A.

GLEASON J.A.

BETWEEN:

Appellants

and

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Vancouver, British Columbia, on April 18, 2016).

NADON J.A.

[1] Although we cannot entirely endorse the reasons given by Manson, J in support of his order and in particular in regard to the serious issue component of the tripartite test put forward by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, (Metropolitan Stores) we see no basis to interfere with the impugned decision.

[2] In our view, the judge’s conclusions with respect to the irreparable harm and balance of convenience components of the Metropolitan Stores tripartite test were clearly open to him in light of the evidence and we find no reviewable error in regard thereto.

[3] In our view, many if not most of the issues raised by the Appellants in their application for interim relief and hence in this appeal are issues which, by reason of their complexity and the extensive evidence required to determine these issues, necessitate in depth factual findings which can only be made in the context of their application for judicial review or preferably in the context of a full trial of the issues. To be clear, it is our opinion that it is in the context of the judicial review application or a trial that the issues raised by the Appellants should be dealt with and not in the context of an application for interim relief.

[4] For these reasons, we are satisfied that we should not interfere with the judge’s order. We also see no basis to disturb his order on costs.

[5] Consequently, the appeal will be dismissed with costs.

“M. Nadon”

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-313-15

(APPEAL FROM AN ORDER AND REASONS OF THE HONOURABLE MR. JUSTICE MICHAEL D. MANSON OF THE FEDERAL COURT, DATED JUNE 26, 2015, DOCKET NO. T-2072-14.)

STYLE OF CAUSE:	HWLITSUM FIRST NATION, as represented by its Chief and Council CHIEF RAYMOND CLAYTON WILSON AND COUNCILLORS LINDSAY WILSON, JANICE WILSON, JIM HORNBROOK and DANNY WILSON on their own behalf and on behalf of the members of the HWLITSUM FIRST NATION v. THE ATTORNEY GENERAL OF CANADA, HALALT FIRST NATION, CHEMAINUS FIRST NATION, LYACKSON FIRST NATION, PENELAKUT FIRST NATION, COWICHAN TRIBES, MUSQUEAM FIRST NATION, TSAWWASSEN FIRST NATION, KATZIE FIRST NATION, KWIKWETLEM FIRST NATION, QAYQAYT FIRST NATION (NEW WESTMINSTER), SEMIAHMOO FIRST NATION, SQUAMISH FIRST NATION, STS’AILES (CHEHALIS) FIRST NATION, TSLEIL-WAUTHUTH NATION, UNION BAR FIRST NATION, YALE FIRST NATION, AITCHELITZ FIRST NATION, LEQ’A:MEL FIRST NATION, MATSQUI FIRST NATION, POPKUM FIRST NATION, SKAWAHLOOK FIRST NATION, SKOWKALE FIRST NATION, SHXWHA:Y VILLAGE (SKWAY FIRST NATION), SQUIALA FIRST NATION, SUMAS FIRST NATION, TZEACHTEN FIRST NATION, YAKWEAKWIOOSE FIRST NATION, SEABIRD ISLAND BAND, SCOWLITZ FIRST NATION, SOOWAHLIE FIRST NATION, KWAW-KWAW-APILT FIRST NATION, KWANTLEN FIRST NATION, SHXW’ŌWHÁMEL FIRST NATION, CHAWATHIL FIRST NATION AND CHEAM INDIAN BAND
PLACE OF HEARING:		VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING:		April 18, 2016
REASONS FOR JUDGMENT OF THE COURT BY:		NADON J.A. RENNIE J.A. GLEASON J.A.
DELIVERED FROM THE BENCH BY:		NADON J.A.

APPEARANCES:

Jeffrey R.W. Rath and Paul E. Reid	For The Appellants
Steven Postman and Alex Semple	For The Respondent THE ATTORNEY GENERAL OF CANADA
Geoff Plant, Q.C. and Fred Sheppard	FOR THE RESPONDENT TSAWWASSEN FIRST NATION
Cheryl Sharvit and Aaron Wilson	For The Respondent MUSQUEAM FIRST NATION
Graham Kosakoski	For The Respondents HALALT FIRST NATION, CHEMAINUS FIRST NATION, PENELAKUT FIRST NATION AND COWICHAN TRIBES

SOLICITORS OF RECORD:

Rath & Company

Barristers and Solicitors

Priddis, Alberta

For The Appellants

William F. Pentney

Deputy Attorney General of Canada

Ottawa, Ontario

For The Respondent

THE ATTORNEY GENERAL OF CANADA

Gall Legge Grant & Munroe LLP

Barristers and Solicitors

Vancouver, British Columbia

For The Respondent

TSAWWASSEN FIRST NATION

Mandell Pinder LLP

Barristers and Solicitors

Vancouver, British Columbia

For The Respondent

MUSQUEAM FIRST NATION

Rosenberg Law

Barristers and Solicitors

Vancouver, British Columbia

For The Respondents

HALALT FIRST NATION, CHEMAINUS FIRST NATION, PENELAKUT FIRST NATION AND COWICHAN TRIBES

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Hwlitsum First Nation v. Canada (Attorney General), 2016 FCA 118

Citations2016 FCA 118

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Citations
2016 FCA 118