Docket: T-2072-14
Citation:
2016 FC 889
Ottawa, Ontario, August 2, 2016
PRESENT: Madam Prothonotary Mireille Tabib
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BETWEEN:
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HWLITSUM FIRST
NATION, AS REPRESENTED BY ITS CHIEF AND COUNCIL CHIEF RAYMOND CLAYTON WILSON
AND COUNCILLORS LINDSEY WILSON, JANICE WILSON, JIM HORNBROOK AND DANNY WILSON
ON THEIR OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE HWLITSUM FIRST NATION
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN, MUSQUEAM FIRST NATION, TSAWWASSEN FIRST NATION AND PENELAKUT FIRST
NATION
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Defendants
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ORDER AND REASONS
[1]
The Court is seized of a motion by the
Defendant, Her Majesty the Queen (“the Crown”), for an order staying this
proceeding on the ground that it is being proceeded with in the British
Columbia Supreme Court and that it is in the interest of justice that it be
stayed, or, alternatively, that the Plaintiff, the Hwlitsum First Nation (“the
Hwlitsum”) be required to provide security for the Crown’s costs. The other
Defendants, the Musqueam First Nation, Tsawwassen First Nation and Penelakut
First Nation, all support the Crown’s motion to stay.
[2]
The Hwlitsum paid, prior to the hearing, the
outstanding order of costs upon which the Crown’s alternative request was
based. As a result, that part of the motion was not pursued at the hearing.
[3]
It is perhaps useful to recall that the present
action began in October 2014 as an application for judicial review of the way
in which the Department of Fisheries and Ocean (“DFO”) manages the west coast fisheries,
by arbitrarily placing limits on First Nations’ constitutional rights to fish
without first limiting access to non-aboriginal fisheries, and of DFO’s refusal
to consider and recognize the Hwlitsum as an identifiable and appropriate
aboriginal collective for the purpose of issuing to it a commercial fishing
license.
[4]
Almost concurrently with the filing of the
application, the Hwlitsum also filed a Notice of Civil Claim in the British
Columbia Supreme Court, seeking recognition of its aboriginal rights and title
over certain tracts of land in BC, as well as various forms of relief flowing
from that recognition.
[5]
In the Federal Court application, the Hwlitsum
brought a motion for an interim order allowing it to engage in fishing pursuant
to its asserted aboriginal rights and enjoining DFO from interfering with the
exercise of that right other than for bona fide conservation purposes.
That motion was dismissed in June 2015. At that point, the parties consented to
an order “converting” the application into an action. Section 18.4 of the Federal
Courts Act provides that applications for judicial review are to be
determined “without delay and in a summary way”. However, the Court may direct
that an application for judicial review “be treated and proceeded with as an
action”. Such a “conversion” is not intended to affect the scope of the
application or the relief sought, but merely the procedure by which the issues
will be brought to the Court for determination. This is not however what
happened here.
[6]
The Hwlitsum, in November 2015, served and filed
a statement of claim that withdrew certain of the claims made in the original
application, but also expanded the scope of the proceedings and added prayers
for relief, including claims for damages, going beyond what was originally
included in the application or would be available in a judicial review
application.
[7]
The Statement of Claim no longer seeks absolute
or priority rights to fishing or a determination that these rights can only be
limited for bona fide conservation purposes, but maintains its request
for a declaration of the Hwlitsum’s aboriginal right to fish, for the same
access to fishing as other Coast Salish peoples and for declarations regarding
the recognition of the Hwlitsum as an identifiable group of aboriginal people
for the purposes of section 35 of the Constitution Act 1982 and as an
appropriate group for consultation and being granted access to fishing
licenses. To those remedies, it added new requests for a declaration that the
Hwlitsum is an Indian Band pursuant to the Indian Act, that it has a
one-third interest in certain reserve lands surveyed in 1877, and that the
Crown is in breach of the Hwlitsum’s rights under the Universal Declaration
of Human Rights, the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and the United Nations Declaration on the
Rights of Indigenous Peoples (UNDRIP). It added claims for damages for
those breaches, as well as for alleged breaches of the Crown’s fiduciary duties
and of the honour of the Crown, for loss of use of fishing rights and loss of
use of reserve lands. In response to the Crown’s motion for a stay, the
Hwlitsum made further amendments to the Statement of Claim in an effort to
remove duplications between it and the BC Civil Claim: it removed the request
for a declaration of a one-third interest in reserve lands and the damage claim
for loss of use of reserve lands, although it did not remove any of the factual
allegations pleaded in support of those claims.
[8]
The Hwlitsum argue that the Federal Court action
is all about aboriginal fishing rights, and is different, distinct and not
duplicative of the BC Civil Claim, which is all about aboriginal title.
[9]
The BC Civil Claim (as further amended in May
2016), indeed essentially asserts aboriginal title over certain lands and the
remedies sought in the BC Civil Claim predominantly relate to that claim. The
BC Civil Claim did, in its first iteration, include some allegations of
breaches of the Hwlitsum’s aboriginal fishing rights by the Crown and of
damages flowing from those breaches, but these references have been removed by
the Hwlitsum prior to the hearing of this motion as part of its effort to
distinguish the two proceedings.
[10]
However, despite the Hwlitsum’s efforts to
distinguish the two claims in terms of the relief they seek, obvious duplications
still exist: both actions still seek the same declaration “that the Plaintiff First Nation is an “Indian Band” pursuant
to the Indian Act”, an issue which is at the very root of the disputes
between the Hwlitsum, the Crown and the other defending First Nations. Both
actions also seek the same declarations that Canada has breached obligations
owed to the Hwlitsum under the same articles of the Universal Declaration of
Human Rights, the ICESCR and the UNDRIP, including damages for those
breaches, remedies which arise from the same complex set of facts alleged in
both actions.
[11]
Beyond these duplicative remedies, the factual
overlap between the two actions is clear and significant.
[12]
In order to establish the claims and rights
asserted in the Statement of Claim in the Federal Court, the Hwlitsum have
necessarily made extensive allegations relating to their asserted descendance
from the Lamalcha Tribe of Indians, the origins of the Lamalcha, their
relationships with other Coast Salish tribes or nations, including the other
named Defendants the Musqueam, Tsawwassen and Penelakut First Nations, from
pre-contact to the present day. The Statement of Claim describes the territory
which the Lamalcha occupied and through which they travelled, their culture and
way of life through the seasons and the years, their encounter with white fur
traders and tragic conflict with the British Navy, the subsequent difficult
relations between the alleged descendants of the survivors of that conflict,
Canada and other Indian Bands, traced with painstaking details from 1870 to the
2000’s, including the Hwlitsum’s participation in various stages of modern
treaty processes and their unsuccessful application to be recognized as an
Indian Band. These “background” or historical facts take up 125 of the 161
paragraphs of the statement of claim, and are almost entirely reproduced in the
BC Notice of Civil Claim. Only 36 paragraphs of the Federal Court Statement of
Claim detail the Hwlitsum’s specific struggles to access fishing licenses and
are not reproduced in the BC Notice of Civil Claim. Following amendments made
to the BC Notice of Civil Claim in May 2016, all of the Defendants to the
Federal Court action are now also Defendants to the BC Civil Claim. The only
differences between the parties to the two claims are that the Province of
British Columbia, the City of Vancouver, the Vancouver Park Board, the City of
Richmond, the Corporation of Delta, the Capital Regional District and the
Inland Trust are Defendants to the BC Civil Claim, but not to the Federal Court
action.
[13]
The parties generally agree that in determining
this motion, the Court should have regard to the factors set out in White v
E.B.F. Manufacturing Ltd., 2001 FCT 713 rather than apply the three part
test of RJR-MacDonald v Canada (Attorney General), [1994] 1 S.C.R. 311.
[14]
These factors are as follows:
1. Would the continuation of the action cause prejudice or
injustice (not merely inconvenience or extra expense) to the defendant?
2. Would the stay work an injustice to the
plaintiff?
3. The onus is on the party which seeks a stay to
establish that these two conditions are met;
4. The grant or refusal of the stay is within the
discretionary power of the judge;
5. The power to grant a stay may only be exercised
sparingly and in the clearest of cases;
6. Are the facts alleged, the legal issues involved
and the relief sought similar in both actions?
7. What are the possibilities of inconsistent
findings in both Courts?
8. Until there is a risk of imminent adjudication
in the two different forums, the Court should be very reluctant to interfere
with any litigant's right of access to another jurisdiction;
9. Priority
ought not necessarily be given to the first proceeding over the second one or,
vice versa.
[15]
The Hwlitsum argue that the Defendants have not
established that the continuation of both actions would cause them prejudice or
injustice beyond mere inconvenience or extra expense. I find, however, that the
level of waste and duplication involved in allowing the two actions to proceed
simultaneously is so excessive as to rise beyond “mere inconvenience or extra
expense” and to constitute prejudice.
[16]
The factual overlap between the two actions
covers nearly 150 years of history, as seen from the points of view of four
different First Nations and the Crown. Discovery, expertise and trial time in
respect of the common facts will be extensive, time consuming and costly. The
Court in White reasoned that “extra expense and
further inconvenience to the defendants (…) can always be remedied by way of
costs”. Here, however, those costs are very significant; the Hwlitsum
has already claimed impecuniosity in a failed attempt at obtaining advanced
costs in the BC Civil Claim; the Crown has had well documented difficulty in
recovering the costs awarded to it in respect of the motion for interim relief;
there are, in addition to the Crown, three other First Nation Defendants who
might incur and be awarded significant costs; costs awards in the Federal Court
are, in any event, not awarded on a substantial indemnity scale. Remedy for the
duplications by way of costs may accordingly be illusory or at best, an
insufficient remedy in the circumstances.
[17]
The Hwlitsum submit that a stay of the action
would inflict a prejudice on it, as it would further delay the determination,
and eventual exercise by its members, of their most fundamental right to fish
for sustenance. According to the Hwlitsum, litigating the aboriginal fishing
rights as part of the BC Civil Claim could easily take eight to ten years
before a full hearing and determination. There is however no evidence or cogent
argument to support the implicit suggestion in that statement that the BC Civil
Claim would take less time to resolution without the fishing rights claim or
that the fishing rights claim would take substantially less time to be resolved
if it were to proceed in the Federal Court in parallel with the BC Claim. As
the history of the proceedings before this Court attests, much of the delay
inherent to litigating complex matters in a multi-party litigation are due to
the difficulty of coordinating the availability of multiple parties for
hearings, cross-examinations or discoveries, a difficulty that will be
compounded and magnified if the two actions proceed in parallel. Further, a preliminary
motion to determine standing that has significantly delayed the progress of the
BC action is expected to arise as well in this action.
[18]
The Court finds no merit to the Hwlitsum’s
argument that the Crown failed to raise abuse and duplication before agreeing
to a conversion and that this creates an injustice, or that the Crown’s refusal
to negotiate with the Hwlitsum in the context of the BC treaty process has
forced it to litigate. The record before the Court does not support the
conclusion that, following the dismissal of the Hwlitsum’s motion for interim
relief, the decision to pursue the judicial determination of the Hwlitsum’s
aboriginal right to fish and all remedies related thereto by way of a Federal
Court action instead of as part of the BC Civil Claim was other than the
Hwlitsum’s own choice.
[19]
Finally, the Hwlitsum raised at the hearing the
possibility that it might no longer be allowed to amend the BC Civil Claim to
introduce or reintroduce its claim for recognition of an aboriginal right to
fish. No evidence was led to support this argument, but the Crown has indicated
that, consistent with its view that the BC Civil Claim still includes claims
for fishing rights, it would not object to the Hwlitsum clarifying, by way of
particulars, its claim for aboriginal fishing rights. Even if that were
insufficient and the Hwlitsum’s concerns come to pass, a party ought not to be
able to invoke as prejudice the foreseeable consequences of its own procedural
choices.
[20]
The next two criteria to be considered is
whether the facts alleged, the legal issues involved and the relief sought are
similar in both actions, and the possibilities of inconsistent findings in both
courts. I have already concluded that the facts alleged in support of the
Federal Court action are for the most part, not merely similar to, but the same
as most of the facts alleged in support of the BC Civil Claim, and that some
forms of relief are exactly the same in both actions.
[21]
The Hwlitsum acknowledge that the same facts are
pleaded in both actions, but argue that these facts relate only to “background
facts” to establish occupation prior to sovereignty, present occupation, the
customs and traditions integral to the distinctive Hwlitsum culture and to
standing, and that despite the extensive duplications, there is no risk of
contradictory findings because the tests for establishing Aboriginal title, as
claimed in the BC Civil Claim, and for establishing Aboriginal rights, as
claimed in the Federal Court action, are markedly different and distinct,
including in respect of the issue of the standing required to pursue those
claims.
[22]
While the Hwlitsum are correct that the
essential relief sought in the two claims are different and require the
application of different tests and standards, it is misguided in thinking that
this alone eliminates the risk of contradictory findings. The desirability of
avoiding contradictory judgments or findings is not confined to the
determination of the rights between parties, but extends to the determination
of the factual basis for those rights. What the Hwlitsum presents as
“background facts” is not merely an uncontested recital of accepted historical
record but the very factual foundation that the Hwlitsum must establish
in order to prove its claims, a factual foundation which is vigorously
contested by the Defendants in Federal Court action, who, as seen, are also
defendants to the BC Civil Claim. There is a clear risk that if the same facts
are tried in two different courts between these same parties, these courts
could come to inconsistent or contradictory factual findings. Legal rights are
not determined in a factual vacuum. Regardless of whether they are founded on
different causes of action or proceed from different legal principles or
analysis, determinations of the legal rights between the same parties are
contradictory or inconsistent if they proceed from inconsistent or
contradictory findings of fact. In the circumstances, it is clear that allowing
the two actions to proceed to parallel trials gives rise to a very real possibility
of inconsistent findings on essential aspects of the two claims, and thus, to
inconsistent or contradictory judgments. The only way this would be avoided is
for one of the two trials to proceed well before the other so that findings of
relevant facts made in the first trial became binding on the parties for the
purpose of the second trial, in essence, that one of the actions be stayed
pending the determination of the other.
[23]
The Hwlitsum argue, invoking the eighth factor
in White, that as adjudication in either forum is far from imminent
(with the possible exception of the standing motion in the BC Supreme Court),
the Court should refrain from interfering with the Hwlitsum’s rights to access
the Federal Court’s jurisdiction. Given that the overlap between the two
actions is extensive and that it involves the very factual foundation of the
two claims, I find that waiting until either of the actions is ripe for
determination would simply postpone the inevitable, allowing extensive
discoveries to proceed in parallel and in duplicate, with one set of
discoveries bound to be wasted.
[24]
I am satisfied that this is a clear case where
allowing the two actions to proceed in parallel will cause such excessive
duplication in costs, efforts and resources, both of the parties and of the
Court, and result in such inacceptable risks of inconsistent findings that a
stay of proceedings is warranted.
[25]
I am satisfied that a stay of the Federal Court
action would not cause prejudice to the Hwlitsum. Of the 22 prayers for relief
set out in the Statement of Claim, all but one are within the concurrent
jurisdiction of the BC Supreme Court, are intimately related to or duplicative
of the remedies sought in the BC Notice of Civil Claim, and either already are,
could or should have been included in the BC Civil Claim. The only remedy which
is within this Court’s exclusive jurisdiction is an order in the nature of a mandamus
found in paragraph N of the Statement of Claim seeking “An
order that the Defendant immediately consult with the Plaintiffs to accord
Hwlitsum First Nation the same fishing rights and access to west coast
fisheries as the Defendant First Nations and other Coast Salish First Nations.”
However, this remedy would naturally flow from the grant of any number of the
other declarations and relief sought and over which the BC Supreme Court would
have jurisdiction. There is no prejudice to the Hwlitsum in staying the Federal
Court action until the Hwlitsum have pursued before the BC Court the much more
comprehensive and inclusive claims and remedies already set out in its Notice
of Civil Claim. On the contrary, it is the Hwlitsum’s desire to split and
pursue in parallel before two different Courts claims for relief arising from a
common set of facts that cannot be justified and amounts to an abuse of process
prejudicial to the Defendants.
[26]
All parties seek their costs of this motion,
including the costs of the first attendance on the scheduled return date of the
motion on May 18, 2016. The hearing of May 18, 2016 was adjourned to June 9,
2010 to allow time for the Hwlitsum to make good on the undertaking made in its
written submissions in response, filed April 18, 2016, to amend its pleadings
to remove duplications. The Crown in particular seeks an order that its costs
of the adjournment be made payable by the Hwlitsum’s counsel personally, on the
basis that he failed to serve the amended pleading before the hearing as
promised and failed to advise the Defendants in a timely fashion that he would
not be doing so. I agree that counsel for the Hwlitsum should have notified
opposing counsel and the Court of the difficulties he was facing in delivering
his amended pleadings before the hearing. However, I am satisfied that a
reasonable justification for counsel’s failure to file the amended pleadings
was offered; the alleged “misconduct” of counsel therefore consists solely in
failing to advise the Defendants that the amended pleadings would not be filed
in time. I also note that all counsel at the May 18, 2016 hearing professed
their willingness to proceed with the motion on the basis of the existing
pleadings, but that it was the Court’s determination, and not the Defendant’s
principal wish, that the motion should be adjourned to be considered on the
basis of the actual pleadings intended by the Hwlitsum. In the circumstances,
while the costs thrown away for the preparation and attendance at the first
hearing should be included in my assessment of the costs of this motion, I am
not satisfied that it is appropriate, in the circumstances, to hold counsel for
the Hwlitsum personally responsible for them. I am satisfied that the costs of
the motion should be awarded against the Hwlitsum and in favour of the
Defendants as follows:
- To the Crown, in the amount of $5,000.00;
- To the Musqueam
First Nation and Tsawwssen First Nation, in the amount of $1,700.00 each,
and
- To the Penelakut
First Nation, in the amount of $500.00.
I am also
satisfied that this is such a clear case of wasteful duplication that this
motion should not have been opposed. The costs are therefore payable forthwith
upon the exhaustion of all rights of appeal of this order.
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