Digests

Nunavut Tunngavik Inc. v. Canada (Attorney General)

T-791-02

2004 FC 85, O'Reilly J.

26/1/04

17 pp.

Applicant created in 1993 to oversee implementation of Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada--Agreement created Nunavut Wildlife Management Board (NWMB)-- Applicant arguing members of NWMB underpaid, contrary to requirement in Agreement that they be provided "fair and reasonable" remuneration--Submitting refusal of Privy Council Office (PCO) to reclassify NWMB, which would have resulted in increase in members' daily fees, amounts to violation of Agreement--Amount of remuneration members receive product of five kinds of instruments: statute, implementing agreement, contract, orders in council and set of guidelines--Nunavut Land Claims Agreement Act (Act), s. 12, says Governor in Council sets remuneration of members of NWMB--PCO guidelines for federal boards not specifically mentioning NWMB until 2000 when revised-- NWMB listed as category IV agency--Chairperson subsequently asked PCO to review board's classification under guidelines--Upon review PCO concluded NWMB properly classified--Applicant arguing PCO's refusal to reclassify NWMB amounts to decision subject to judicial review--Federal Court has jurisdiction to review decision, order, act or proceeding of federal board, commission or other tribunal acting under powers provided by Act of Parliament: Federal Courts Act, s. 18.1(3)(b)--Role extends beyond formal decisions, including review of diverse range of administrative action not amounting to decision or order, such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of myriad forms administrative action may take in delivery by statutory agency of public programme--Administrative action sought to be reviewed must flow from statutory power--No need for decision-maker to exercise any particular statutory authority, but must have at least statutory powers affecting rights and interests of others--Assuming PCO's refusal to reclassify NWMB affected rights and interests of board's members, its conduct not connected to any statutory authority--Only body with any statutory power in relation to remuneration of NWMB members Governor in Council acting under Act, s. 12--PCO developed general guidelines on remuneration, considered issue of NWMB's classification and, ultimately, concluded classification correct--Decision not to propose to Governor in Council change in remuneration of NWMB members not subject to judicial review because not made pursuant to any statutory authority--In case wrong, Court considering merits of application--Applicants submitting three grounds justifying Court's intervention--First, connection between conduct complained of (failure to reclassify NWMB) and alleged violation of Constitution (breach of Aboriginal rights) tenuous --No evidence Agreement actually violated--No violation of Constitution--Second, applicant arguing PCO violated rules of natural justice by considering irrelevant factors and suggesting NWMB had legitimate expectation decision whether to reclassify board would be based solely on guidelines--Doctrine of legitimate expectations not applying --PCO gave NWMB opportunity to make representations on subject of member's fees--As for alleged breach of agreement to consult, planning assumption in implementing contract not creating binding obligation--Minutes of Nunavut Implementation Panel meeting ambiguous--No clear expression of promise to consult in either document--PCO already provided full opportunity to NWMB to make submissions on this issue and it failed to do so--Thirdly, applicant alleges two serious errors of fact by PCO--Even if PCO had made mistake about which category NWMB had fallen within originally, entitled to find members' remuneration should now fall within Category IV, i.e. any mistake by PCO did not necessarily affect remuneration of NWMB members--Finally, applicant arguing PCO erred in failing to treat NWMB comparably to similar boards that received elevations to Category II--Under PCO's guidelines, classification of boards and agencies product of three criteria --PCO applied criteria, consulted with officials at Department of Indian and Northern Affairs and concluded NWMB should be placed in Category IV--No serious error in PCO's approach--Application dismissed--Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, s. 12--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(3)(b) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).