Huron-Wendat Nation of Wendake v. Canada

Huron-Wendat Nation of Wendake v. Canada
Court (s) Database
Federal Court Decisions
Date
2014-12-01
Neutral citation
2014 FC 1154
File numbers
T-699-09
Decision Content
Date: 20141201
Docket: T-699-09
Citation: 2014 FC 1154
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 1, 2014
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
THE HURON-WENDAT NATION
OF WENDAKE
Applicant
and
THE CROWN IN RIGHT OF CANADA,
herein represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondent
and
MASHTEUIATSH FIRST NATION AND THE INNU ASSI FIRST NATION OF ESSIPIT
Interveners
JUDGMENT AND REASONS
[1] This application for judicial review was filed by the Huron-Wendat Nation of Wendake (the applicant) and challenges the Agreement-in-Principle of General Nature (APGN or Agreement) signed on March 31, 2004, between Her Majesty the Queen in Right of Canada, represented by the Minister of Aboriginal Affairs and Northern Development (the respondent or the Crown), and certain Innu Nations including the Mashteuiatsh First Nation and the Innu First Nation of Essipit (the interveners). The applicant claims that in concluding the APGN, the respondent breached its duty to consult and accommodate, and consequently breached its constitutional duty to act honourably and in good faith in accordance with its obligations under the Anglo-Huron Treaty of 1760 (Treaty of 1760) in addition to breaching its international obligations.
[2] The respondent maintains that the applicant is essentially trying to obtain formal constitutional recognition of the territorial application of the Treaty of 1760 and activities covered by it by seeking a higher level of consultation, specifically accommodation and consent, while being bound by a minimal level of proof. Moreover, the Crown argues that the proceeding is premature in that the rights that may exist under the Treaty of 1760 and their territorial application are not clearly established and the signing of the APGN has not yet been crystallized in a final agreement. Last, the Crown challenges the jurisdiction of the Federal Court and contends that the appropriate recourse is to bring an action in the Superior Court of Québec, since the relief sought by the applicant requires determinations regarding treaty rights and the exercise of the Crown prerogative to negotiate treaties, in addition to impacting the province and the exercise of its jurisdiction.
[3] The interveners, who were authorized to shed light on the issues, also maintain that the Federal Court did not have jurisdiction in this matter and that, in any case, the applicant had not proven that the respondent had a duty to obtain its consent before signing the APGN.
[4] Having carefully weighed the arguments of the parties and considered the evidence in the record, I find that this application for judicial review should be allowed in part.
I. Historical Context [5] In September 1760, the Seven Years’ War between the French and the British was coming to an end. Both parties were quite aware of the strategic importance of an alliance with the Aboriginal peoples and understood that control of North America required their cooperation. It was in this context that General Murray signed a peace treaty with the Huron-Wendat Nation on September 5, 1760. The Supreme Court described in detail the historic circumstances surrounding the signature of the Treaty in R v Sioui, [1990] 1 SCR 1025 at pp 1049-1061, 70 DLR (4th) 427 (Sioui), which I will discuss later.
[6] The Treaty reads as follows:
THESE are to certify that the CHIEF of the HURON tribe of Indians, having come to me in the name of His Nation, to submit to His BRITANNICK MAJESTY, and make Peace, has been received under my Protection, with his whole Tribe; and henceforth no English Officer or party is to molest, or interrupt them in returning to their Settlement at LORETTE; and they are received upon the same terms with the Canadians, being allowed the free Exercise of their Religion, their Customs, and Liberty of trading with the English: -- recommending it to the Officers commanding the Posts, to treat them kindly.
Given under my hand at Longueil, this 5th day of September, 1760.
By the Genl’s Command
JOHN COSNAN, JA. MURRAY
Adjut Genl
[7] The Treaty of 1760 did not define the territorial scope of the rights guaranteed to the Huron-Wendat Nation. In Sioui, Justice Lamer expressed the view that the scope of the treaty could not be limited to the Lorette territory since Lorette is mentioned only as a destination for safe-conduct purposes and any significant exercise of protected customs would require territory extending beyond Lorette. It should be recalled that in this case, the Supreme Court did not have to determine a land claim, but rather the scope of the rights conferred by the Treaty of 1760. The respondents, members of the Huron band on the Lorette Indian reserve, claimed that the Treaty gave them the right to practise customs and religious rites in the territory of Jacques-Cartier Park because it was part of the territory frequented by the Hurons in 1760, namely the area between the Saguenay and the St-Maurice, whereas the Crown argued that that the free exercise of the customs mentioned in the Treaty of 1760 had to be limited to the Lorette territory. After noting that the area between the Saguenay and the St-Maurice was not land over which there was an Aboriginal title in favour of the Hurons because the Hurons did not have historical possession of this land, and that it was unlikely that the British would have granted absolute rights that might paralyze the Crown’s use of the newly conquered territories, Justice Lamer ruled as follows:
In view of the absence of any express mention of the territorial scope of the treaty, it has to be assumed that the parties to the treaty of September 5 intended to reconcile the Hurons’ need to protect the exercise of their customs and the desire of the British conquerors to expand. Protecting the exercise of the customs in all parts of the territory frequented when it is not incompatible with its occupancy is in my opinion the most reasonable way of reconciling the competing interests. This, in my view, is the definition of the common intent of the parties which best reflects the actual intent of the Hurons and of Murray on September 5, 1760.
Sioui, at p 1071.
[8] The following chronology is based for the most part on the affidavit of Daniel Tétreault, Senior Negotiator at the Negotiations Branch, Governance and Individual Affairs, Quebec Regional Office of Indian and Northern Affairs Canada (INAC). This affidavit, filed by the respondent in support of its submissions, was not contradicted by the applicant: Respondent’s Record, vol II of IV, at pp 251 et seq.
[9] Following the Supreme Court decision in Sioui, above, the government of Quebec took the initiative to propose to the applicant the negotiation of an agreement on the manner of exercising the rights under the Treaty of 1760, specifically hunting, fishing, trapping, gathering and customary activities. In conjunction with this, on July 18, 1990, the applicant contacted the respondent to begin discussions with a view to signing a framework agreement on self‑government.
[10] After receiving additional information about the proposed process and conducting an analysis, the respondent agreed to hold tripartite discussions to negotiate a framework agreement covering three issues: the rights of the Huron-Wendat Nation under the Treaty of 1760, self‑government and a specific claim regarding the surrender of 40 arpents of reserve land at the beginning of the century. The respondent also agreed to provide the applicant with financial support for the negotiations.
[11] The discussions that ensued were difficult because of certain positions adopted by the parties. The applicant wanted to link self-government with rights under the Treaty of 1760 while the federal policy, in effect at the time and as sanctioned by Cabinet, did not allow Canada to directly link self-government negotiations with negotiations on the application of the Treaty. Since the parties could not agree on the terms of the negotiations to be held, the negotiations failed.
[12] Nevertheless, the negotiations started again in autumn 1991 when the applicant agreed to separate the self-government discussions from those regarding the Treaty of 1760, which led to the conclusion of the “Framework agreement to establish a new relationship between Canada and the Huron-Wendat Nation” that was signed by both parties (Framework Agreement of 1992).
[13] Immediately after the Framework Agreement of 1992 was signed, the applicant refused to continue negotiations as long as self-government was not tied to the Treaty of 1760, and it demanded to negotiate a new framework agreement on the matter.
[14] In a letter to the applicant dated November 17, 1992, the respondent reiterated Canada’s position that the federal policy in effect at the time did not allow self-government negotiations to be linked to the application of the Treaty of 1760, unless new policies were adopted through a Cabinet decision or a constitutional amendment were ratified. The Minister of Indian Affairs and Northern Development once again suggested concluding a framework agreement that would govern simultaneous and distinct negotiations on self‑government and the application of the Treaty of 1760.
[15] That proposal was accepted by the newly elected (August 1992) Huron-Wendat Nation Council, and the tripartite discussions (Canada-Quebec-Huron-Wendat Nation) began again based on the Framework Agreement of 1992.
[16] A new election in August 1994 resulted in a new council that refused to recognize the Framework Agreement of 1992 and the actions of the previous Council elected in 1992 with respect to self-government and the application of the Treaty of 1760.
[17] Thus the negotiations resumed based on the old draft framework agreement submitted to Canada in July 1990. Between May 1995 and April 1996, at least 31 negotiation meetings were held and led, in August 1995, to the signature of a “Framework agreement to establish a new relationship between the Huron-Wendat Nation, the government of Canada and the government of Quebec” regarding self-government negotiations and the application of the Treaty of 1760 (Framework Agreement of 1995).
[18] A new band council elected in September 1996 chose to focus on economic development and decided that the future of negotiations on self-government and the application of the Treaty of 1760 should be submitted to public consultation. A referendum was held on November 30, 1996, and the Huron-Wendat people rejected continuing negotiations by an 88% majority. Since then, the applicant has not shown any intention to resume negotiations regarding self-government or the application of the Treaty of 1760. It appears from Mr. Tétrault’s affidavit that the respondent paid the applicant over $1,100,000 between 1990 and 1996 for negotiations on self-government and the application of the Treaty of 1760.
[19] Three years later, on February 23, 1999, the applicant asked the respondent again for financial support, this time for historical and anthropological research to define the rights or customs arising under the Treaty of 1760, the territorial application of the Treaty and the nature of the Huron-Wendat occupation of its territory, in order to eventually file a claim under the Federal Comprehensive Land Claims Policy. The following information about funding for the for the applicant’s research to support its land claims is based on the affidavit of Roxanne Gagné, manager at the Research and Negotiations Funding Unit, DIAND. That affidavit, filed by the respondent to support her submissions, was not contradicted by the applicant and can be found (with exhibits) at volume III of IV of the Respondent’s Record.
[20] Under the Aboriginal claims contribution program, the respondent concluded annual funding agreements to enable the applicant to carry out its research. Under these agreements, the applicant received about $885,567 in funding between 1999-2000 and 2008-2009, without ever filing a comprehensive land claim submission.
[21] Since it had never received a final research report, the respondent formally advised the applicant in a letter dated August 4, 2009, that no funding would be provided for the 2009-2010 fiscal year to continue research to document a possible comprehensive land claim, because of the applicant’s repeated failure to meet the work plan deadlines. At a meeting on January 9, 2009, with the historian hired by the applicant to lead its research project, Ms. Gagné also explained that a DIAND policy provided that no funding could be granted for comprehensive land claim research if there were concern that the money could be used in whole or in part to fund litigation against DIAND.
[22] It should be noted that at the hearing the applicant withdrew its claim for relief seeking a declaration that the Crown had acted unlawfully and breached its duty to act honourably by refusing to continue its funding on the assumption that the applicant might decide to institute this proceeding. That relief is found in paragraph 18(e) of its notice of application.
[23] It is clear from the foregoing that since the 1996 referendum the Huron-Wendat have never filed a formal request with DIAND to negotiate an agreement on the rights they claim, whether through a comprehensive land claim, an application for self-government or a request to negotiate the modern application of the Treaty of 1760. The Atikamekw and the Montagnais (also called the Innu or Innu Montagnais) filed a comprehensive land claim submission that was accepted by Canada, for negotiation, on October 5, 1979.
[24] Comprehensive land claim negotiations are not intended to define the Aboriginal rights of an Aboriginal group, or their scope, but rather to provide clarity and certainty about the rights that the Aboriginal group may exercise following a final agreement. Any final agreement resulting from these negotiations thus would establish certainty with respect to the title and rights related to the ownership and use of the land and resources in a given territory, clarify the terms of access to it and increase socio-economic opportunities and economic development in Aboriginal communities.
[25] Discussions on the Atikamekw and Montagnais Council (AMC) comprehensive land claim began in 1980 and ended on September 13, 1988, with a framework agreement between the AMC and the governments of Canada and Quebec, which essentially set out the subjects for negotiation and a work plan.
[26] Since 1994, the negotiation structure of the Aboriginal party has changed several times, leading to the dissolution of the AMC and the creation of distinct entities representing the Atikamekw and various Innu groups in separate negotiations. At the time, the Mamuitun mak Nutashkuan Tribal Council represented the Innu communities of Mashteuiatsh, Essipit, Nutashkuan and Betsiamites.
[27] On March 31, 2004, the governments of Quebec and Canada and the Mamuitun mak Nutashkuan Tribal Council signed the APGN. This agreement has 19 chapters covering the topics to be negotiated (for example, there are chapters on lands; the right to practise activities linked to Innu culture, values and traditional way of life; participation in the management of lands, natural resources and the environment; royalty sharing; self-government; the administration of justice; financing; taxation; socio-economic development and dispute resolution). There is no doubt that a significant portion of the territory covered by this agreement overlaps a large section of the northern part of Nionwentsïo that is claimed by the Huron-Wendat Nation.
[28] The Huron-Wendat Nation expressed its concerns to the Minister of Indian Affairs and Northern Development about the impact that the APGN and any final treaty with the Innu could have on the territory it claimed as its traditional territory. On July 22, 2004, Grand Chief Wellie Picard wrote to the Minister to assert the rights of his nation and requested a meeting to discuss their position. The Minister answered this letter on October 6, 2004, referring to article 3.4.2 of the APGN that stipulates that the status of the south-west part should be determined before the treaty is signed and adding that Canada [Translation] “has a policy of concluding final agreements only if the agreement provides that the rights of other First Nations will not be affected”.
[29] On September 22, 2008, Grand Chief Gros-Louis wrote to the Chiefs of the Councils of the Montagnais du Lac Saint-Jean, the Innu First Nation of Essipit, the Innu of Pessamit and the Montagnais of Nutashkuan, as well as the Quebec Minister responsible for Aboriginal Affairs and the Minister of Indian Affairs and Northern Development to give them [Translation] “formal notice” that the southern part of the territory referred to as the Nitassinan of the Mashteuiatsh First Nation encroaches on the ancestral and customary territory of the Huron-Wendat Nation. At the same time, the Grand Chief directed the parties to not agree to measures concerning the territorial regime on the disputed land, and deemed [Translation] “null and void any type of territorial boundary that does not take into account the territorial rights of the Huron-Wendat Nation” (Exhibit 20 to the Affidavit of Max “One Onti” Gros-Louis, at p 678 of the Applicant’s Motion Record). The federal minister at the time responded to the letter on December 4, 2008, reiterating that the government of Canada [Translation] “is aware of its duty to consult on matters of Aboriginal rights and claims” and assuring the newly elected Grand Chief Konrad Sioui that the government of Canada would assess the Huron-Wendat Nation’s claim on the territory between the Saint-Maurice and Saguenay Rivers once it is submitted, in accordance with the Comprehensive Land Claims Policy.
[30] Given the federal authorities’ refusal to commit to not signing a final treaty with the Innu that would cover or affect Nionwentsïo in any way, the applicant filed this application for judicial review against the respondent on April 30, 2009. In particular, the applicant faults the respondent for signing the APGN with the Innu interveners without first consulting and accommodating it and for refusing to confirm and renew the Treaty of 1760 in the form of a modern agreement. The applicant is seeking several heads of declaratory relief and relief in the nature of mandamus, including an order to consult, accommodate and obtain consent before a final treaty is signed with the Innu interveners for the part that overlaps Nionwentsïo and to force the federal Crown to negotiate the contemporary confirmation and renewal of the Treaty of 1760 in the form of a modern agreement.
[31] On October 8, 2010, four days before the hearing on the merits scheduled for October 12 to 15, Prothonotary Tabib agreed to adjourn the hearing sine die in order to allow the parties to try to find an alternative to litigation to settle the application for judicial review and to encourage private discussions to this effect. The account of how these negotiations were held and what happened differs in several ways depending on the parties.
[32] Apparently there was a first meeting between the Huron-Wendat Nation and Canada on November 29, 2010, in order to establish a bilateral process for discussions on the Treaty of 1760. In a letter to Grand Chief Sioui dated December 3, 2010, Canada once again acknowledged the validity of the Treaty of 1760 and undertook to not finalize negotiations with the Innu and Quebec without fulfilling its duty to consult. Canada also indicated its willingness to continue discussions on the Huron-Wendat Nation’s grievances regarding the Treaty. The Senior Assistant Deputy Minister for Treaties and Aboriginal Government undertook to obtain the required authorization to establish a discussion table on the Treaty of 1760, authorization that was ultimately given by the Minister on May 13, 2011.
[33] On June 20, 2011, the parties signed the Memorandum of Understanding (the MOU) establishing the Discussion Table on the Anglo-Huron Treaty of 1760 (the Discussion Table). Canada acknowledged again the existence and validity of the Treaty of 1760, and the fact that the Supreme Court confirmed in Sioui [Translation] “that Jacques-Cartier Park and the Lorette territory in 1760 were within the boundaries of the lands frequented by the Huron-Wendat Nation when the Treaty was concluded”. Moreover, the parties indicated that the engagement process was based on an [Translation] “objective of reconciliation” and that it was in their interest to [Translation] “develop a common perspective on the significance of the Treaty of 1760 and its present-day application”. Last, the parties confirmed that [Translation] “the work resulting from the Discussion Table could enable Canada, if necessary, to start the process of obtaining a formal negotiation mandate to resolve the issues related to the Anglo-Huron Treaty of 1760” (Exhibit 10 to the affidavit of Grand Chief Sioui affirmed on June 27, 2013). The government of Quebec joined the discussions on November 25, 2011.
[34] On July 13, 2011, the Huron-Wendat Nation and Canada agreed on a work plan for the Discussion Table. Establishing the plan enabled the Department of Aboriginal Affairs and Northern Development Canada (DAAND) to provide the applicant with $100,000 in funding for this work. The mandate of the Discussion Table set out in the work plan is to [Translation] “[p]romote open and transparent discussions in order to better identify the interests of the parties involved with respect to the Treaty of 1760 and explore the options and processes that could lead to the concrete application of said Treaty, so that each party can make its recommendations regarding follow-up to the work of the table” (Affidavit of Martin Desrosiers, affirmed on November 25, 2013, at para 75).
[35] Between July 2011 and December 2012, over twenty meetings of the main discussion table and about ten meetings of the sectoral table on historical research were held. On March 14 and August 23, 2012, counsel for the applicant sent participants in the Discussion Table two documents on the significance and renewal of the Treaty of 1760. Canada’s chief representative at the Discussion Table replied to each of these documents on June 18 and November 5, 2012. He noted a considerable difference in the parties’ respective vision of the significance of the Treaty of 1760.
[36] The MOU provided that the Table would last two years, and thus it would end by June 30, 2013, at the latest. With respect to determining the end date for the engagement process, December 31, 2012, was accepted by the three parties to the engagement process, following the suggestion by counsel for the applicant.
[37] In November 2012, the federal representative at the Discussion Table verbally informed counsel for the applicant of the renewal of the federal mandate to negotiate a land claim and self‑government agreement with the Innu interveners. Mr. Pelletier apparently also signalled his clear intent to end the engagement process after December 31, 2012. He also reiterated Canada’s commitments to the Huron-Wendat in relation to negotiations with the Innu interveners.
[38] On November 30, 2012, counsel for the applicant asked that the engagement process continue after December 31, 2012. On December 7, 2012, Canada’s representatives said that they noticed at a Discussion Table meeting that the Huron-Wendat Nation had nothing new to say about the significance of the Treaty and its modern application. The parties apparently then agreed that the last meeting would be held on December 13, 2012. At that meeting, counsel for the applicant informed Canada of their intention to file a notice in the Court that would allow them to renew this application for judicial review.
[39] On January 23, 2013, Jean-François Tremblay, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, confirmed that the Discussion Table had ended. First he mentioned that the mandate of the Discussion Table had not been intended to discuss or settle the various issues raised in the proceeding brought in 2009, and thus stated that the Discussion Table was not the [Translation] “result” of the stay order of October 8, 2010. He emphasized that when the parties began the discussion, they had decided to specifically look at the issue of the Treaty of 1760 for a limited period.
[40] Counsel for the applicant replied to this letter on April 23, 2013, indicating that this position was completely inconceivable and in bad faith in that Canada was totally ignoring the discussions and agreements that had led to the joint request by Canada and the Huron-Wendat Nation to the Court in October 2010. In the meanwhile, on February 25, 2013, counsel for the applicant sent the parties involved in this file a 30-day notice of their intention to ask the Court for a new hearing date.
[41] On June 14, 2013, the respondent informed Grand Chief Sioui that DAAND would not take steps to obtain a formal mandate to negotiate from Cabinet in order to negotiate the renewal of the Treaty of 1760, given that the parties’ positions on the significance and scope of the Treaty were very far apart. Despite having said this, the Department still proposed two measures that aimed to meet several of the interests and aspirations expressed by representatives of the Huron-Wendat Nation, specifically self-government negotiations and the development of a consultation protocol that would help ensure that the Huron-Wendat’s activities and claims of the would be taken into account in decision-making by the government or others. Moreover, the Department said that it was ready to support and facilitate the possible continuation of discussions that began in spring 2012 between the Huron-Wendat and the Innu of Mashteuiatsh in order to settle the issues regarding overlapping territory. The applicant replied favourably to the second aspect of the offer but did not reply to the first aspect.
[42] Last, Canada wrote to Grand Chief Sioui, as well as to chiefs of other First Nations, on March 20, 2013, to invite them to a meeting to discuss a consultation process regarding the APGN with Quebec and the Innu interveners. The proposed consultation sought to find out the concerns of the Huron-Wendat regarding the documents submitted, discuss them and, if necessary, discuss accommodations. Counsel for the applicant replied through two letters dated April 23, and May 6, 2013. They stated that Canada’s refusal to offer satisfactory protection to Nionwentsïo was a complete negation of their duty to negotiate in good faith, but did not provide a formal reply to Canada’s invitation.
[43] Canada replied to counsel for the applicant on June 11, 2013, specifying that the end of the Discussion Table did not change in any way Canada’s commitment to comply with its duty to consult before concluding a final agreement with the Innu. Then, in a letter to Grand Chief Sioui dated June 14, 2013, Canada reiterated its commitment to comply with its duty to consult before concluding a final agreement with the Innu and reiterated its invitation of March 20, 2013. On July 12, 2013, Grand Chief Sioui rejected the invitation, complaining that the consultation process was generic and was addressed to all First Nations who were claiming rights on the territory covered by the APGN with the Innu. The Grand Chief said he felt [Translation] “betrayed” by the decision to not try to obtain a formal mandate to negotiate the renewal of the Treaty of 1760 and added that [Translation] “it was difficult not to conclude that Canada’s objective when it agreed to join the Discussion Table was to delay or avoid legal proceedings and an assessment by the courts of the federal Crown’s conduct, rather than to find real and mutually satisfactory solutions”.
[44] On September 25, 2013, the applicant filed an amended application for judicial review in which it sought new declarations. The relief sought now reads as follows:
18. The Applicant seeks the following relief:
a. A Declaration that section 91(24) of the Constitution Act, 1867 directs that in Canada treaty-making with Aboriginal people and treaty implementation is federal in nature and that the Crown Respondent has a positive duty to act accordingly;
b. A Declaration that the Crown Respondent has and continues to have a duty to act honourably and in good faith towards the Applicant in order to ensure that the Applicant is able to actively exercise its treaty rights on its traditional territory of Nionwentsïo;
c. A Declaration that the Crown Respondent owes a duty to the Applicant as its treaty partner to protect its treaty protected rights, in accordance with the precautionary principle, in Nionwentsïo as required by the honour of the Crown;
d. A Declaration that the Crown Respondent owes a duty to the Applicant to ensure the continuing viability and utility of the British-Huron Treaty if necessary through active confirmation and renewal;
e. A Declaration that the Crown Respondent acted illegally and breached the Crown’s duty of protection and its duty to act honourably and negotiate in good faith by taking the position that the Applicant would lose funding needed to ensure the necessary contemporary confirmation and renewal of the British-Huron Treaty of 1760 should the Applicant choose to seek relief from this Court to accomplish those ends;
f. A Declaration that the Crown Respondent breached the Crown’s fiduciary duty to negotiate in good faith by refusing to consider the concerns of the Applicant regarding the necessary contemporary confirmation and renewal of the British-Huron Treaty of 1760 until such time as the Applicant had formally filed a “comprehensive land claim” as contemplated by Crown Respondent’s own policies established unilaterally and involving complete discretion on the part of the Crown Respondent;
f.i. A Declaration that the Crown Respondent breached the honour of the Crown by concluding an Agreement in Principle (AIP) as a part of treaty negotiations with certain Innu communities covering Nionwentsïo without having engaged directly with, consulted, accommodated, and received the consent of the Applicant;
g. A Declaration that the inclusion of non-derogation language in the Innu AIP does not absolve the Crown Respondent from its positive duties toward the Applicant, including but not limited to its duty of care toward its long-standing treaty partner and its duty to negotiate in good faith towards a contemporary confirmation and renewal of the British-Huron Treaty of 1760 in the form of a just settlement for the Applicant in its traditional territory Nionwentsïo;
g.i. A Declaration that the assertion by the Crown Respondent that there exists no link between the “discussion table process” regarding the confirmation and renewal of the British-Huron Treaty of 1760, on the one hand, and the present proceedings, on the other hand, reveals a disrespect towards this Court and its Order of 8 October 2010, a disregard for the honour of the Crown with respect to both this Court and the Applicant, a breach of good faith towards the Applicant, and a clear case of the Crown Respondent’s “sharp dealing”;
g.ii A Declaration that the Crown Respondent’s request to meet with the Applicant to hold discussions so as to be made aware of the Applicant’s preoccupations with regards to the Innu AIP after having been made aware of these preoccupations through the present proceedings, entered into an agreement with the Applicant with the goal of resolving these proceedings, and engaged in two (2) years of discussions constitutes bad faith, a breach of the honour of the Crown, and a clear case of “sharp dealing”;
h. An Order in the nature of Mandamus requiring the Crown Respondent to comply with its constitutional duties towards the Applicant by:
i) Confirming and renewing the Crown’s commitment to the British-Huron Treaty of 1760 and the resulting treaty relationship of allies pledging mutual support;
ii) Entering immediately into good faith negotiations with the Applicant with the object of providing within two (2) years the confirmation and renewal referred to in i) above in the form of a just contemporary treaty settlement for the Applicant in Nionwentsïo;
iii) Ensuring respect for and implementation of the Applicant’s existing treaty protected rights in Nionwentsïo consistent with the Crown Respondent’s honour and its duty to protect the Applicant in order to ensure the effectiveness of a final decision of the Courts in this matter of the conclusion of a treaty settlement referred to in subparagraph ii);
iv) Ensuring that any treaty or other arrangement with the First Nations of Mamuitun and Nutashkuan will not extend into or over Nionwentsïo and will not affect the Applicant’s treaty protected rights and interests therein without the consent of the Applicant;
i. An Order that this Court retain jurisdiction, including a supervisory role, until the required confirmation and renewal through treaty settlement for the Applicant’s territory has been concluded;
j. An Order of Solicitor-Client Costs to the Applicant; and
k. Such other relief as this Court deems just.
II. Issues [45] The parties have raised several issues in this application for judicial review. After reviewing the record, I believe that these issues may be helpfully stated as follows:
1. Does the Federal Court have jurisdiction to hear this matter and make the orders sought, and is judicial review the appropriate vehicle?
2. Did the respondent breach her duty to consult or did she contravene the honour of the Crown and her fiduciary duty?
[46] Before reviewing these substantive issues, the Court must also rule on the admissibility of an affidavit filed by the interveners in support of their arguments. On April 7, 2010, the applicant filed a notice of motion to strike the affidavit of Denys Delâge, expert witness for the interveners, on the ground that Mr. Delâge allegedly had access to confidential or privileged information when he worked for the Huron-Wendat Nation and would thus be in a conflict of interest.
III. Analysis A. Motion to strike the affidavit [47] Mr. Delâge, Professor Emeritus, Department of Sociology at Laval University, is a specialist in Amerindian history. In this regard he has studied a number of Aboriginal Nations from Quebec and the Great Lakes region, including the Huron-Wendat Nation. He was hired as a consultant by several government agencies as well as by the Huron Wendat Nation Council during the 1990s and 2000s.
[48] In 1994, Mr. Delâge was mandated by the Huron-Wendat Nation Council to prepare an additional expert’s report further to the one prepared by Dr. Cornelius Jaenen, specifically on the following subjects: the Treaty of 1760, the exact boundaries of the Huron-Wendat territory for hunting, fishing and trapping in the 17th, 18th and 19th centuries, the type, location and use of buildings used by the Huron-Wendat and the agreements of the 17th, 18th and 19th centuries between the Huron-Wendat and other First Nations likely to apply in this territory. Moreover, Mr. Delâge has been an expert witness on several occasions in cases involving members of the Huron-Wendat Nation, including in 1995 (Québec (Sous-ministre du Revenu) c Sioui, [1995] RJQ 2105, [1995] JQ No 2249), in order to defend the Huron-Wendat Nation on subjects related to this application for judicial review.
[49] In 2001, Mr. Delâge was chosen by the applicant and DIAND jointly to produce a research and analysis report on the history of the Seigneurie de Sillery. It is located in the northern part of Nionwentsïo, and the territory it covers is also part of the territory being discussed in this case. The joint research protocol signed in 2001 between the applicant and the respondent contains a confidentiality clause and stipulates that the intellectual property rights will be shared between Canada and the Huron-Wendat Nation.
[50] The relationship of trust between the Huron-Wendat Nation and Mr. Delâge deteriorated in 2006 when the Huron-Wendat Nation Council learned that the doctoral thesis of the senior historian on the multi-disciplinary team assigned to the joint project regarding the Seigneurie de Sillery claim, which was supervised by Mr. Delâge, had been accepted and thus could enter the public domain. The relationship broke down completely in December 2007 during a meeting between representatives of the Council, Mr. Delâge and Michel Lavoie, to discuss ownership of intellectual property rights in the file for the Seigneurie de Sillery claim. The relationship became bitter when the Council subsequently learned that Mr. Lavoie’s thesis would be published before the Huron-Wendat Nation had completed and filed its application regarding the Seigneurie de Sillery in accordance with the federal Specific Claims Policy. Indeed, the thesis was published on March 23, 2010, with the support of Mr. Delâge.
[51] In the affidavit he filed in support of the interveners’ position in this case, Mr. Delâge questions several statements by Jean François Richard and Cornelius J. Jaenen in the affidavits they provided in support of the applicant’s position. In particular, Mr. Delâge criticizes them for not providing specific data or information concerning how often the applicant frequented the territories it was claiming, not considering numerous studies on the prior presence of the Montagnais (Innu) on these territories in relation to the presence of the Hurons, exaggerating the Huron’s area of influence and not taking into account the fact that the Hurons and the Montagnais had a very different relationship with the land in that the Hurons were more firmly involved in a market economy, which led them to travel considerable distances to carry out commercial and diplomatic activities, whereas the Montagnais were primarily hunter-gatherers who had closer ties to their land.
[52] The applicant maintains that Mr. Delâge’s affidavit should be struck for essentially two reasons. First, it claims that he cannot act as an expert on behalf of the interveners, given his long professional relationship with the applicant, and that in doing so he breaches his duty of loyalty and places himself in a conflict of interest. Relying on provisions of the Civil Code of Québec regarding contracts for services, the applicant submits that Mr. Delâge broke the trust relationship underlying such a relationship by acting as an expert for the interveners after having had access to confidential documents of the Huron-Wendat Nation. The applicant is also of the opinion that Mr. Delâge’s behaviour does not meet the ethical standards applicable to historians conducting research on Aboriginal peoples, as defined by the Canadian Historical Association, and that these ethical rules are also part of his contractual obligations. Last, the applicant maintains that Mr. Delâge acted in bad faith, breaching his duty of loyalty and confidentiality.
[53] Even if Mr. Delâge were bound by a contract for services with the applicant, the motion to strike is not the appropriate remedy to enforce the duty of loyalty that would ensue. Although the Court of Appeal of Québec has recognized that the obligation of loyalty under article 2088 of the Civil Code of Québec in an employment contract may also apply to a contract for services (Stageline Mobile Stage inc c Richard, 2002 CanLII 20406 at para 10, [2002] JQ No 4688(CAQ)), the contractual remedy for a breach of such a duty does not fall under the jurisdiction of the Federal Court. The relief sought by the applicant falls under the jurisdiction of the Quebec courts and can be granted only through proceed