Regroupement des Pêcheurs Professionnels du Sud de la Gaspésie v. Canada (Attorney General)

Regroupement des pêcheurs professionnels du sud de la Gaspésie v. Listuguj Mi’gmaq First Nations
Court (s) Database
Federal Court Decisions
Date
2023-10-13
Neutral citation
2023 FC 1206
File numbers
T-1608-21
Decision Content
Date: 20231012
Docket: T-1608-21
Citation: 2023 FC 1206
Ottawa, Ontario, October 12, 2023
PRESENT: Mr. Justice Pentney
BETWEEN:
REGROUPEMENT DES PÊCHEURS PROFESSIONNELS
DU SUD DE LA GASPÉSIE INC.
UNION DES PÊCHEURS DES MARITIMES INC.
PRINCE EDWARD ISLAND FISHERMEN’S ASSOCIATION LTD. GULF NOVA SCOTIA FLEET PLANNING BOARD
Applicants
and
LISTUGUJ MI’GMAQ GOVERNMENT
and
LE PROCUREUR GÉNÉRAL DU CANADA, LE MINISTRE DES PÊCHES
ET DES OCÉANS, LE MINISTRE DES RELATIONS
COURONNE-AUTOCHTONES
Respondents
PUBLIC ORDER AND REASONS
(Confidential Draft Issued to the Parties on September 7, 2023)
I. Introduction [1] Two motions are before the Court for decision. Both arise in the context of a Notice of Application for judicial review filed by the Applicants, seeking to invalidate the Rights Reconciliation Agreement on Fisheries [RRA, or the Agreement] signed between the Respondent First Nation and the federal Crown on April 16, 2021.
[2] The first motion is brought by the Respondent Listuguj Mi’gmaq Government [LMG, or the Moving Party] to strike the Notice of Application thereby dismissing the application, or in the alternative to strike the portions of the Notice of Application that are doomed to fail. The other Respondent, the Attorney General of Canada [AGC] on behalf of the Ministers of Fisheries and Oceans and Crown-Indigenous Relations, supports this motion. The Applicants, who are the Responding Party on the motion to strike, oppose it.
[3] The second motion, brought by the Applicants, seeks further disclosure, pursuant to Rules 317 and 318 of the Federal Courts Rules, SOR/96-102 [the Rules]. LMG and the AGC oppose this request.
[4] To put these motions into their proper context, we must begin with the underlying Notice of Application for judicial review, which raises four fundamental questions that can be summarized as follows:
Can Canada enter into agreements that recognize and acknowledge existing Aboriginal and treaty rights under section 35 of the Constitution Act, 1982 before such rights have been determined and declared by a court?
Can the Minister of Fisheries and Oceans participate in negotiations and/or sign an agreement regarding section 35 rights, or is that authority limited to the Minister of Crown-Indigenous Relations?
Do First Nations laws governing their members’ exercise of the community’s fishery impinge on, or duplicate the Minister of Fisheries and Oceans’ authorities under the Fisheries Act?
Does Canada have to provide an opportunity for others who have an interest in the fishery to have input into the process in the context of the negotiation of such agreements?
[5] LMG and the AGC argue that these claims should be struck because they are all bound to fail if the case proceeds to a full hearing. The Applicants submit that their Notice of Application raises important questions that deserve a full hearing on the merits.
[6] In the second motion, the Applicants seek further disclosure of documents from the Respondent Ministers, including a financial annex to the RRA, and internal memoranda and emails relating to reconciliation efforts and fisheries management for a particular lobster fishing zone.
[7] The parties focused most of their attention on the motion to strike, and these reasons do the same. It is appropriate to begin with the motion to strike, since the motion for disclosure becomes irrelevant if the proceeding is brought to an end because the Notice of Application is struck.
[8] The background to the proceeding, including a description of the various parties involved, will be set out before moving to an analysis of the motion to strike followed by a discussion of the motion for disclosure.
[9] For the reasons set out below, the Applicants’ claim regarding the process that was followed in negotiating and finalizing the Rights Recognition Agreement will not be struck, because I am not convinced that it is entirely devoid of merit or that it is doomed to fail. The other claims advanced by the Applicants will be struck, because they are so clearly improper as to be bereft of any possibility of success. The challenge to the rights recognition approach that enabled the negotiation of the RRA is misplaced, and not supported by the law; the claims about the Minister’s roles and alleged unlawful delegation of authorities is not supported by the record; and their claims about the recognition and acknowledgement of the LMG’s power to make laws in respect of its own members’ exercise of their collective rights in the fishery both overstate the scope of the authority that the RRA recognizes, and run counter to long-accepted legal principles.
[10] As regards the motion for disclosure, it will be dismissed both because I find that Rule 317 does not apply, and the documents requested are not needed for the judicial review.
II. Background [11] The extent to which Indigenous peoples in Atlantic Canada have access to the fishery, and on what terms, has been the source of controversy and litigation for many years. Questions have also been raised about the scope of other harvesting rights possessed by Mi’gmaq communities in Atlantic Canada, whether under the Treaties of Peace and Friendship or by virtue of existing Aboriginal rights. Some of these disputes have arisen between Indigenous and non-Indigenous people, as each seeks what they perceive to be their rightful share of a limited resource. In some respects, the underlying application in this case, as well as the motion to strike that is before the Court, represent another chapter in this story.
[12] The notice of application filed by the Applicants comprises 116 pages. It seeks declaratory relief to invalidate the RRA signed on April 16, 2021 between LMG and the Crown. The context and content of the RRA sets the backdrop for the litigation, but before reviewing that it will be useful to describe the various parties to the litigation.
A. The parties (1) The Applicants [13] The Applicants are organizations representing non-Indigenous fishers. The following descriptions are taken from their Notice of Application.
[14] The Regroupement des pêcheurs professionnels du sud de la Gaspésie Inc. (“ RPPSG ”) was founded in 1991 and represents 148 lobster fishers who pursue their trade in Lobster Fisheries Zones on the coast of the Gaspé Peninsula. Its members also possess commercial fishing licenses for other species.
[15] L’Union des pêcheurs des Maritimes Inc. (“UPM”) was created in 1977 and represents approximately 1,300 coastal fishers in New Brunswick and Nova Scotia. Its mission is to represent its membership’s interests on the major decisions that affect the commercial fishing industry in Atlantic Canada. The membership hold commercial fishing licenses for a variety of species, and the organization itself holds commercial quotas for snow crab.
[16] The Prince Edward Island Fishermen’s Association (“PEIFA”) was founded in the 1950s, and was incorporated in 1982. It represents almost 1,300 commercial fishers in Prince Edward Island, who in turn are part of various regional organizations. Its members fish commercially for a variety of species. It also holds a commercial crab quota that is allocated to its members.
[17] The Gulf Nova Scotia Fleet Planning Board (“GNSFPB”) was founded in 1997 and is comprised of six organizations that represent more than 600 commercial fishers in the Gulf of Nova Scotia, who hold licenses to fish a variety of species. The organization also holds a commercial halibut quota that is fished by its members in the Gulf of St-Lawrence.
[18] Each of these organizations pursues the interests of their membership, including in relation to conservation and stewardship. For example, the RPPSG says that its mission is to assure the sustainable development of the fishery and to maintain an equilibrium between the economic interests of those involved in the fishery and the sustainability of the species.
(2) The Respondents [19] The Respondents LMG and the Attorney General of Canada on behalf of the Ministers of Fisheries and Oceans and Crown-Indigenous Relations are parties to the RRA signed on April 16, 2021.
[20] The LMG represents Listuguj, a Mi’gmaq community with over 4,000 members. LMG cited the following description from Martin v Province of New Brunswick and Chaleur Terminals Inc, 2016 NBQB 138 at para 14:
[Listuguj] holds various rights recognized and affirmed by Section 35 of the Constitution Act, 1982 and is a “band” as defined in the Indian Act, R.S.C. 1985, c. I-5. The reserve is located on the banks of the Restigouche River in the Gaspé Peninsula in the province of Quebec within the Seventh District of the territory of the Mi’gmaq, known as “Gespe’gewa’gi”. Geographically, Gespe’gewa’gi includes what we know today as the Gaspé Peninsula, Northern New Brunswick (including Belledune), part of Maine, and the Islands in the Bay of Chaleur as well as their surrounding coastal and marine areas (including much of the Gulf of St. Lawrence).
[21] LMG holds a variety of Aboriginal communal fishing licenses for several species, including lobster. LMG is one of the signatories to the RRA that is challenged in this case.
[22] The Attorney General of Canada appears on behalf of the two Ministers who signed the RRA, the Minister of Crown-Indigenous Relations (who was styled “the Minister of Indian Affairs and Northern Development” at the time the agreement was signed) and the Minister of Fisheries and Oceans. These Ministers signed the Agreement as representatives of the Crown, who was then Her Majesty the Queen in Right of Canada.
B. The context for the RRA [23] The Notice of Application in issue here seeks to invalidate the RRA. It will be helpful to provide a brief outline of the context for the Agreement and an overview of its main features, before entering into an analysis of the parties’ positions on the motion to strike.
[24] The modern context for the development of the RRA begins with the Supreme Court of Canada’s decisions in R v Marshall, [1999] 3 SCR 456 [Marshall I] and R v Marshall, [1999] 3 SCR 533 [Marshall II] [collectively: the Marshall decisions]. The proper interpretation of those decisions is in dispute between the parties, as discussed below.
[25] At this stage, it is sufficient to observe that in the Marshall decisions, the Supreme Court recognized that the Mi’kmaq[1] signatories to the Treaties of Peace and Friendship signed in 1760-61 had certain treaty rights to fish guaranteed by section 35 of the Constitution Act, 1982.
[26] The first significant point from Marshall I, was that the treaty promises gave rise to constitutionally protected rights. The second significant point, underlined in Marshall II, was that the treaty right is limited. The Court found that the treaty right: “permits the Mi’kmaq community to work for a living through continuing access to fish and wildlife to trade for ‘necessaries’, which a majority of the Court interpreted as ‘food, clothing and housing, supplemented by a few amenities” (at 538, para 4). The Supreme Court also confirmed that the treaty right was subject to restrictions that can be justified under the Badger test, citing R v Badger, [1996] 1 RCS 771 (Marshall II at 543, para 14).
[27] It is also relevant to note that Marshall II involved a motion brought by the West Nova Fisherman’s Coalition (an intervener in Marshall I) who were concerned about the potential scope and impact of Marshall I on the sustainability of the fishery and the interests of non-Indigenous participants in the fishery. The Coalition filed a motion in the Supreme Court seeking a rehearing of the appeal, a stay of the judgment pending the rehearing, and a new trial to determine whether the application of the fisheries regulations to the exercise of the Mi’kmaq treaty rights could be justified on conservation or other grounds. The Supreme Court rejected the motion, but the very fact that such an extraordinary motion was brought signals the intensity of the interests involved in cases such as the one before the Court.
[28] In Marshall II, the Supreme Court observed that resource conservation and management and the allocation of a permissible catch for each species raise matters of considerable complexity, and repeated its often-expressed suggestion that such matters may “best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi’kmaq rather than by litigation…” (at 550, para 22).
[29] A series of events followed the release of Marshall I and Marshall II. It is not necessary to trace the chronology of all of this. The developments most pertinent to this litigation include policy efforts by the federal government to open space for First Nations to fish for food, cultural, and ceremonial purposes, and to integrate First Nations into the existing commercial fisheries; litigation launched by LMG and others seeking to clarify the scope of their exercise of treaty rights; and the launch of a comprehensive claim by LMG and two Mi’gmaq communities in Quebec in 2007, asserting Aboriginal rights and title. In 2012, these groups signed a Framework Agreement with Canada and Quebec to establish the foundation for a final agreement.
[30] In July 2017, Canada released the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, with the goal of “achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government, and Inuit-Crown relationship based on recognition of rights, respect, co-operation and partnership as the foundation for transformative change” (at 3).
[31] The LMG-Canada Framework Agreement on Reconciliation and the Fishery [the Framework Agreement] was signed in November 2018 by the two Respondent Ministers and the LMG Chief. The goal of this document was to establish a framework for further negotiations “towards new arrangements with the aim of greater recognition and implementation of the LMG’s rights, responsibilities, and role with respect to the fisheries.”
[32] Disputes between the LMG and Canada remained, however, and on October 21, 2019, LMG launched an application for judicial review seeking to overturn two decisions in which the Minister of Fisheries and Oceans refused to issue LMG commercial licenses that would have allowed the sale of lobster caught during the fall 2019 and 2020 fisheries (referred to below as ‘the Lobster litigation’). Two of the Applicants in this case, RPPSG and UPM sought to intervene in that matter, but their requests were refused (the reasons are discussed in more detail below). RPPSG and UPM appealed this decision, but before their appeal was heard the LMG and Canada resolved their differences and the judicial review application was brought to an end on consent by Order of this Court dated November 8, 2021. This development made the appeal of the intervention decision moot, and so it was discontinued.
[33] The consent Order ending the Lobster litigation referred to the process under the RRA which was signed between LMG and the Crown as represented by the two Ministers who are Respondents in this matter. Many of the details of the Agreement are discussed below in the context of the analysis of the parties’ submissions on the motion to strike. The following summary is limited to a broad outline of the main features of the Agreement.
[34] The Preamble sets out several key building blocks of the RRA:
WHEREAS Canada recognizes and affirms the Listuguj Mi’gmaq First Nation's inherent right to self-determination, including the right to self-government;
WHEREAS the Mi’gmaq of Gespe’gewa’gi, including the Listuguj Mi’gmaq First Nation, have existing aboriginal and treaty rights with respect to fisheries;
WHEREAS the aboriginal and treaty rights of the Mi’gmaq, which section 35 of the Constitution Act, 1982 recognizes and affirms, are communal in nature and exercised by Mi’gmaq individuals on the authority of the Mi’gmaq community to which they belong;
WHEREAS the Listuguj Mi’gmaq First Nation has LMG Laws by which it governs its relationship with its fisheries;
WHEREAS Canada acknowledges that recognition of the inherent jurisdiction and legal orders of indigenous nations, including the Mi’gmaq, is the starting point of discussions aimed at interactions between federal and indigenous jurisdictions and laws…
[35] The Purpose clause states that the RRA aims to provide “recognition and implementation of the Aboriginal Right and Treaty Right of the [LMG] in relation to fisheries governance and fishing” as well as predictability regarding the management and conduct of the LMG fishery. The RRA also seeks to increase access for the LMG fishery as well as enhanced governance capacity to enable LMG to exercise its fisheries governance and fishing rights.
[36] The Agreement defines the LMG fishery in this way:
“LMG’s Fishery" means the fisheries governance and fishing activities undertaken by the LMG and members of the Listuguj Mi’gmaq First Nation, whether for food, social, ceremonial, or commercial purposes, in relation to any species for which the DFO issues the LMG an Aboriginal Communal Licence, excluding salmon.
[37] The RRA confirms that Canada acknowledges that LMG has certain Aboriginal and Treaty rights concerning fisheries governance and fishing that are protected by section 35 of Part II of the Constitution Act, 1982, Schedule B, Canada Act 1982, c 11 (UK) [RSC 1985, Appendix II, No 44] [hereafter referred to as section 35]. It provides that LMG can initiate or support legal proceedings against Canada in relation to alleged breaches of the RRA, subject to the consensus building and dispute resolution process established by its terms.
[38] Topics such as fisheries access, fisheries funding and funding for governance and collaborative management of the LMG fishery are then set out. It is not necessary to review the details of these elements; it is sufficient to observe that a significant focus of this part of the RRA is on mechanisms to seek to prevent and resolve disputes regarding LMG fisheries access and the enforcement of federal laws and policies regarding the fishery. The RRA also provides a list of considerations that the Minister shall consider in setting the conditions of an Aboriginal Communal License in respect of the LMG fishery.
[39] Next, the RRA describes the LMG’s obligation to designate individuals permitted to engage in fishing under its Aboriginal Communal Fishing License, and sets out an approach to compliance and enforcement that involves consultation between the Department of Fisheries and Oceans [DFO] and LMG. A further part of the Agreement discusses consensus building and dispute resolution processes, which confirm the collaborative nature of the relationship that the parties seek to maintain. The Agreement ends with provisions regarding the process by which it may be reviewed, amended, or terminated.
[40] With this background, we turn to the issues and analysis of the merits of the two motions.
III. Issues [41] The motions before the Court give rise to three issues:
Should the court grant the Applicant public interest standing?
Should the Notice of Application be struck?
Should further disclosure be ordered?
[42] As noted earlier, it will be convenient to discuss each issue in turn.
IV. Analysis A. Should the Applicants be granted Public Interest Standing? [43] The Applicants seek public interest standing to bring their application for judicial review. They argue that they meet the criteria set out in the relevant case-law, citing Finlay v Canada (Minister of Finance), [1986] 2 SCR 607 at 610, 626 and 630-634; and Harris v Canada, [2000] 4 FC 37 (FCA) at paras 49-50. These cases confirm a three-part test: (1) the existence of a serious question to be tried; (2) that the party seeking standing has a genuine interest in the matter before the court; and (3) there is no other reasonable manner to bring the matter before the court.
[44] In this case, the Applicants submit that they meet the test:
the issues they are raising involve serious questions about the validity of the exercise of the powers of the Ministers under their respective enabling statutes: the Fisheries Act, RSC 1985, c F-14 [Fisheries Act]; the Department of Indian Affairs and Northern Development Act, RSC 1985, c I-6; and the Department of Crown-Indigenous Relations and Northern Affairs Act, SC 2019, c 29 [Crown-Indigenous Relations Act];
the Applicants represent commercial fishers whose rights are and will be affected by the consequences that will flow from the RRA; and
there is no other practical means of bringing the matter to the Court, since the parties to it have no interest in contesting it.
[45] LMG argues that the Applicants should not be granted public interest standing. Their submissions weave two strands together; they say that the Applicants’ arguments are political in nature and thus not justiciable, and in addition that the Notice of Application for judicial review raises no serious justiciable issues.
[46] The current approach to public interest standing was clarified in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 [Downtown Eastside] at para 2:
[2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, at p. 253. The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” (p. 253).
[47] As discussed below, I am persuaded that one of the Applicants’ claims is not so obviously bereft of merit or so clearly doomed to fail that it should be struck at this preliminary stage; however, several other claims will be struck. In light of this finding, the Applicants meet the first element of the test – there is one serious justiciable issue raised by the Notice of Application.
[48] I am also persuaded that the Applicants have a genuine interest in the outcome, given their long-standing involvement in the fishery. They are not a “mere ‘busybody’ litigant” and the Court hearing the matter on the merits will have the benefit of contending points of view of those most directly affected (Downtown Eastside at para 1).
[49] Finally on this point, the Applicants’ Notice of Application seeking declaratory relief is a reasonable and effective means of bringing the matter before the Court. Their argument rests on an almost purely legal question, and there is no need for a full trial on disputed factual matters.
[50] For all of these reasons, the Applicants are granted public interest standing in this case.
B. Should the Notice of Application be struck? [51] The parties do not dispute the general legal principles that govern a motion to strike a Notice of Application for judicial review in this Court. Their arguments focus instead on the application of the test to the facts.
(1) The law on motions to strike [52] The leading decision on the test for motions to strike notices of application for judicial review in this Court is JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 [JP Morgan], where the Court of Appeal described the approach in the following way:
[47] The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft of any possibility of success” [footnote omitted]: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.), at page 600. There must be a “show stopper” or a “knockout punch”—an obvious, fatal flaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117, at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286, at paragraph 6; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
[48] There are two justifications for such a high threshold. First, the Federal Courts’ jurisdiction to strike a notice of application is founded not in the rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’ processes: David Bull, above, at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 18 C.C.L.I. (5th) 263. Second, applications for judicial review must be brought quickly and must proceed “without delay” and “in a summary way”: Federal Courts Act, above, subsection 18.1(2) and section 18.4. An unmeritorious motion—one that raises matters that should be advanced at the hearing on the merits—frustrates that objective.
[53] In examining the notice of application for judicial review, the Court “must gain ‘a realistic appreciation’ of the application’s ‘essential character’ by reading it holistically and practically without fastening onto matters of form…” (JP Morgan at para 50, citations omitted. See also: Wenham v Canada (Attorney General), 2018 FCA 199 at paras 33-34; Bernard v Canada (Attorney General), 2019 FCA 144 at para 33).
[54] Affidavits are generally not admissible in support of motions to strike applications for judicial review, in large part because the flaw in the notice of application must be obvious and fatal. “A flaw that can be shown only with the assistance of an affidavit is not obvious” (JP Morgan at para 52). The facts alleged in a notice of application are taken to be true, assuming they are capable of proof in a court of law (Turp v Canada (Foreign Affairs), 2018 FC 12 at para 20). Because an applicant is required to state the complete grounds in its notice of application, no affidavit is required to supplement its side of the matter. One exception to the bar on affidavits is that either side may file an affidavit which provides background information that is referred to and incorporated by reference in a notice of application (JP Morgan at para 54).
[55] In the instant case, LMG filed an affidavit providing background documents, which are either referred to in the Notice of Application or necessary to understand it. No contentious factual matters were addressed in the affidavit, and no objection was raised to it.
(2) The Notice of Application in this case [56] Under the JP Morgan framework, the first task is to examine the notice of application to gain a realistic appreciation of its essential character; this requires a practical approach that does not fasten onto matters of form, but rather seeks to identify the core elements of the claim being made by the applicant in a particular case.
[57] As noted earlier, the Notice of Application in this case is a lengthy and complex document. Certain portions will be discussed in more detail below; at this stage, my task is to glean an overall appreciation of its essential elements. It is important to underline that this is a preliminary legal analysis, and is not meant to pre-empt or foreclose arguments or findings if this matter proceeds to a hearing.
[58] I find that the Applicants are essentially raising three primary claims in the Notice of Application:
The rights recognition approach: They challenge the government’s “rights recognition” approach, by which Aboriginal or Treaty rights are acknowledged and recognized before they have been determined by a court of law. The Applicants argue that this approach is based on a misinterpretation of the binding jurisprudence of the Supreme Court of Canada, and that rights under section 35 do not have constitutional value unless and until they are recognized by a court of law;
The Ministers’ authorities and alleged unlawful delegations: They challenge the authorities of the respective Ministers to negotiate and enter into the agreement, and this includes the alleged unlawful delegation and the alleged restriction on the Minister of Fisheries and Oceans’ power to regulate the fishery;
Process claim: They challenge the process by which the RRA was finalized, in particular that it was done without involving them as representatives of non-Indigenous fishers with an interest in the process and outcome, and without publishing it in the Canada Gazette.
[59] The ultimate goal of the Applicants is to obtain a declaration from this Court invalidating the RRA.
[60] For its part, LMG submits that the entire claim is essentially political rather than legal, and that the Applicants’ arguments are all doomed to fail. The Attorney General agrees with the substantive arguments advanced by the Applicant that the claim should be struck.
[61] With this background, we enter into the heart of the question whether the Applicants’ Notice of Application for judicial review should be struck, in whole or in part. It will be convenient to group the arguments of the parties into the three categories listed above.
(a) The Rights Recognition Approach [62] Section 2(c)(iii) of the Notice of Application for judicial review alleges that the Ministers exceeded their authority by recognizing that LMG possess Aboriginal and Treaty rights concerning fishing rights for food, social and ceremonial, as well as commercial, purposes. The Applicants base this on two related claims:
the Ministers adopted an incorrect interpretation of the principles set out in leading Supreme Court of Canada decisions, including R v Gladstone, [1996] 2 SCR 723 [Gladstone]; R v Van der Peet, [1996] 2 SCR 507 [Van der Peet]; Marshall II; Lax Kw'alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams]; and R v Desautel, 2021 SCC 17 [Desautel]; and
Aboriginal and treaty rights do not have constitutional value under section 35(1) of the Constitution Act, 1982 until they are claimed and their existence is recognized by a superior court under the test established in Van der Peet and affirmed in Lax Kw’alaams and Desautel, in the context of a civil action for declaratory judgment in which all interested parties are heard in a fair and equitable manner.
(i) The parties’ submissions [63] LMG argues that this argument is doomed to fail for two reasons: it wrongly seeks to apply the Van der Peet test for establishing Aboriginal rights to the existing (and already recognized) treaty rights that LMG possess; and it fails to acknowledge that section 35 protects potential rights embedded in as yet unproven Aboriginal rights claims.
[64] LMG submits that the test for establishing Aboriginal rights under section 35 was set out in Van der Peet at paragraph 46: “…in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” LMG contend that Canadian jurisprudence has confirmed that this test does not apply to treaty rights, which instead focus on the existence of the treaty, the meaning of its terms, and whether the individual has any basis to assert the right based on ancestry or other connection to the Aboriginal group who signed the treaty.
[65] LMG points to the body of interpretive principles applied to treaty rights in cases such as Marshall I, which include the requirement that treaty interpretation take the Aboriginal perspective into account in seeking to find a common meaning for the promises set out in the document. Although these principles may be similar to the requirement set out in Van der Peet to understand an Aboriginal right from the perspective of the group that asserts it, this does not in any way incorporate the Van der Peet test for establishing an Aboriginal right into treaty interpretation.
[66] LMG argue that the treaty right recognized in the Marshall cases, and affirmed in subsequent decisions such as R v Marshall; R v Bernard, 2005 SCC 43 at para 13, includes the right to fish and sell fish irrespective of species. This was confirmed in Anglehart v Canada, 2018 FCA 115 [Anglehart CA] at para 5, where the Federal Court of Appeal held that a consequence of the Marshall decisions was that “DFO would henceforth be required to integrate First Nations into the commercial fishing of all species.” LMG asserts that the RRA simply acknowledges what already exists by law, and therefore the Applicants’ argument is without any merit.
[67] The second fatal flaw in the Applicants’ argument about rights recognition, according to LMG, is that it fails to recognize that section 35 protects Aboriginal and treaty rights even before their existence is confirmed by a court. As stated by the Supreme Court of Canada in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 [Ktunaxa Nation]:
[78] The constitutional guarantee of s. 35 of the Constitution Act, 1982 is not confined to treaty rights or to proven or settled Aboriginal rights and title claims. Section 35 also protects the potential rights embedded in as-yet unproven Aboriginal claims and, pending the determination of such claims through negotiation or otherwise, may require the Crown to consult and accommodate Aboriginal interests…Where, as here, a permit is sought to use or develop lands subject to an unproven Aboriginal claim, the government is required to consult with the affected Aboriginal group and, where appropriate, accommodate the group’s claim pending its final resolution. This obligation flows from the honour of the Crown and is constitutionalized by s. 35.
(citations omitted)
[68] LMG argues that where, as here, the Crown has knowledge of the potential existence of Aboriginal rights, it is under a constitutional imperative to take action to ensure it does not affect those rights. The Courts have long recognized that this obligation flows from the principle of the honour of the Crown and LMG argues that the rights recognition approach reflected in the RRA embodies this doctrine in action. The Applicants describe their view of the implications of the Applicants’ argument in their written submissions:
51. If the Applicants were correct, reconciliation through negotiation would be impossible and implementation of Aboriginal and treaty rights would stall as every Indigenous group in the country turned to the courts to have their rights determined.
[69] LMG submits that the approach urged by the Applicants is inconsistent with the duty to negotiate. As recognized by the Québec Court of Appeal in the Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 at para 446: [translation] “It is the responsibility of the Crown, at both the federal and provincial levels, to determine how Aboriginal rights interact with the individual and collective rights of the population as a whole.” LMG contends that the RRA reflects the federal government’s commitment to living up to its constitutional obligations, as recognized by the case-law. Because of this, LMG submits that the Applicants’ argument on this point is doomed to fail.
[70] The AGC argues that the signature of the RRA constituted an important step in the implementation of the Aboriginal and treaty rights recognized by section 35. The AGC supports the LMG’s motion to strike because the claim has no chance of success. In the AGC’s view, the Applicants’ claim rests on a challenge to the power of the Ministers to conclude the Agreement. This is bound to fail because the Ministers were acting on behalf of the Crown, and the Crown clearly has the authority to enter into an agreement regarding Aboriginal and treaty rights with the LMG.
[71] The AGC contends that the RRA represents a collaboration between the parties to recognize the rights protected by section 35. This is appropriate, because, contrary to the Applicants’ argument, courts do not recognize Aboriginal and treaty rights; rather, the Constitution does so, through section 35(1) which “recognizes and affirms” these rights. Where the Crown and Aboriginal groups do not agree on the nature, scope or implications of the rights, courts must play a role in resolving the disputes. But if the Crown and a particular Aboriginal group do agree, the AGC asks why it would be necessary – as a matter of law – to force the parties to go to court before the rights can be recognized and implemented through an agreement?
[72] The Applicants submit that their claim should not be struck at this preliminary stage, noting that such relief is highly exceptional. In the Applicants’ view, the arguments of LMG and the AGC relate to the merits of the case and should be made in the context of the actual judicial review, rather than at this preliminary stage. The Applicants note the length of the record filed by LMG on its motion as an indication that the arguments being advanced go to the merits and should not be disposed of on a preliminary motion.
[73] In this case, the Applicants say that several factors support their argument that the claim should not be struck. First, they say that the already very high bar to strike a notice of application for judicial review should be raised even higher in the constantly evolving context of the law relating to Aboriginal and treaty rights: Shubenacadie Indian Band v Canada, 2001 FCT 181 at para 5. The development of the law should not be stifled by striking pleadings that involve new or emerging questions or that challenge new approaches by governments or Aboriginal groups.
[74] The Applicants submit that the core of their claim relates to differences in interpretation of the governing authorities, in particular the Marshall decisions as well as other decisions of the Supreme Court of Canada dealing with Aboriginal and treaty rights. They point out that the Federal Court of Appeal expressly found that it was not appropriate to strike out a claim where the dispute boiled down to a different interpretation of the scope of the Marshall decisions: Canada (Attorney General) v Shubenacadie Indian Band, 2002 FCA 249 at para 7.
[75] According to the Applicants, the RRA is based on a serious misinterpretation of the scope of the rights recognized in the Marshall decisions, and this argument should be heard by the judge on the application for judicial review. The rights that the Agreement purports to recognize have never been demonstrated in a court of law, and the recognition of these rights has important consequences for third parties, including other Indigenous groups and non-indigenous people who share the resource, as the Supreme Court of Canada has recognized: Marshall II at para 42; and see the discussion in Desautel.
[76] The Applicants also argue that the RRA does not merely recognize previously-established rights, but rather it presumes such rights exist. This argument focuses on both the scope of the treaty right to fish, and the existence of Aboriginal rights in relation to fisheries governance that is referenced in the Agreement. According to the Applicants, this presumption is contrary to well-established law that requires a clear demonstration that the specific rights of a particular Aboriginal group exist: R v Sundown, [1999] 1 SCR 393 at para 25.
[77] In addition, the Applicants submit that the presumed recognition of constitutionally-protected rights can have serious consequences on other parties, including other Indigenous groups as well as non-Indigenous people who share the same resource. In this case, the Applicants claim that the RRA risks