A-792-86
The Queen in Right of Canada, Minister of Indian
Affairs and Northern Development and Fred Wal-
chli (Interim Federal Negotiator, Nishga Land
Claim) (Appellants) (Defendants)
v.
Pacific Fishermen's Defence Alliance, Prince
Rupert Fishermen's Co-operative Association,
Co-op Fishermen's Guild, Pacific Trollers Asso
ciation, Pacific Gillnetters Association, Pacific
Coast Fishing Vessel Owners' Guild, Northern
Trollers Association, Gulf Trollers Association,
Fishing Vessel Owners' Association of British
Columbia and Deep Sea Trawlers Association of
B.C. and B.C. Wildlife Federation (Respondents)
(Plaintiffs)
and
Nisga'a Tribal Council (Respondent) (Intervenor)
INDEXED AS: PACIFIC FISHERMEN'S DEFENCE ALLIANCE V.
CANADA
Court of Appeal, Pratte, Stone and MacGuigan
JJ.—Vancouver, November 30 and December 1;
Ottawa, December 18, 1987.
Native peoples — Lands — Federal representative and
Indians secretly negotiating land claims — Indians claiming
fishery rights off British Columbia coast — Fishermen fearing
interests affected if Indians' claims accepted — Fishermen
seeking declaration allocation of fishing rights ultra vires
Federal Government — Allegation of denial of fairness to be
determined in context of Government decision affecting rights
— Parliament having constitutional power to settle native land
claims — Possibility of federal-provincial approach to settle
ment — If Government having duty to consult with fishermen,
Court can not enforce until negotiations completed — Fisher-
men's action dismissed on appeal form denial of motion to
strike.
Fisheries — Claim to fishery rights off British Columbia
coast advanced by Indians in secret land claim settlement
negotiations with Federal representative — Commercial and
sports fishermen fearing interests affected if Indians' claims
accepted — Plaintiffs seeking declaration allocation of fishing
rights ultra vires Federal Government — No presumption
constitutional powers exceeded prior to action — Statement
of claim struck out.
Constitutional law — Charter of Rights — Life, liberty and
security — Fishermen seeking declaration on basis of Charter
s. 7 — Allegation that denied fairness in Indian land claims
settlement negotiations — Motion to strike as reasonable
cause of action not disclosed — Negotiations secret and fish
ermen denied hearing — Allegations of rights violations as
incapable of proof at this time as those in Operation Dismantle
cases — Court may not conclude Government's negotiating
position will be enacted into law by Parliament — Whether
any duty of fairness breached to be determined in context of
decision affecting rights — Imagined threat insufficient.
Constitutional law — Distribution of powers — Fishermen
seeking declaration in relation to Indian land claims settle
ment negotiations — Whether federal jurisdiction over fisher
ies extending to granting portion of tidal and non-tidal fishery
in British Columbia to exclusive use of Indian tribe —
Parliament having jurisdiction to settle claims of aboriginal
peoples — Parliament not presumed to have exceeded consti
tutional powers before acting — Possibility of federal- provin
cial approach to settlement — Statement of claim struck out.
Practice — Pleadings — Motion to strike — Third parties
seeking to intervene in aboriginal rights negotiations between
Government and Nisga'a Indians, fearing interests and liveli
hood could be adversely affected — Statement of claim alle
gations, when based on assumptions and speculation, not
required to be taken as true — Unconstitutionality of Legisla
tive or Executive acts cannot be presumed before acts reality
— Doctrine of legitimate expectation invoked prematurely.
The Crown in right of Canada and the Nisga'a Indians of
British Columbia were in the process of negotiating native land
claims. The respondent associations learned of the possibility
that a portion of the tidal and non-tidal fisheries of British
Columbia might be allocated to the Nisga'a.
Fearing for the interests and livelihood of their members, the
respondents attacked the negotiations. Invoking common law
principles and section 7 of the Charter, they alleged that they
had been denied fairness because they had not been provided
with any information about the negotiations nor with a hearing.
They also argued that the appellants lacked jurisdiction to
allocate a portion of the British Columbia fisheries to the
Nisga'a because the proprietary rights thereto are vested in the
Crown provincial. Finally, the respondents, based on a Minis
ter's directive to the negotiator, invoked the recently developed
English doctrine of "legitimate expectation" in asserting a duty
on the part of the Government to provide the consultation
promised to the respondents.
A motion was brought to strike out the statement of claim on
the ground that it disclosed no reasonable cause of action. This
is an appeal from the order dismissing that motion.
Held, the appeal should be allowed.
The allegations of violations of rights herein, whether based
on common law or the Charter, are as incapable of proof, at
this time, as were those in the Operation Dismantle case. A
court could not conclude that the Government would translate
a negotiating position first into a legal agreement, then into
legislation, and that Parliament would enact it. Any duty of
fairness owed by the Government to the fishermen must be
determined in the context of a real decision by the Government
affecting their rights. An imagined threat to rights is not
enough.
Under its power over "Indians and Lands reserved for Indi-
ans", Parliament has prima facie jurisdiction to settle the
claims of aboriginal peoples. Neither Parliament nor a Minister
of the Crown nor a federal negotiator can be presumed to be
acting beyond constitutional powers before they have even
acted. Nor should the Court exclude the possibility of a joint
federal-provincial approach to the settlement.
If the doctrine of "legitimate expectation" would found a
duty on the part of the Government to provide the promised
consultation, that duty could be measured only at the comple
tion of the period indicated—in this case, at the conclusion of
negotiations. The action is therefore premature.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 91(12),(24).
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (1985), 59 N.R. 1; Canadian
Tobacco Manufacturers' Council v. National Farm
Products Marketing Council, [1986] 2 F.C. 247; (1986),
65 N.R. 392; 26 D.L.R. (4th) 677 (C.A.); Re Abel et al.
and Advisory Review Board (1980), 31 O.R. (2d) 520
(C.A.); Council of Civil Service Unions v. Minister for
the Civil Service, [1985] A.C. 374 (H.L.); R v Secretary
of State for the Home Dept, ex p Ruddock, [1987] 2 All
ER 518 (Q.B.D.).
REFERRED TO:
Burnaby Machine & Mill Equipment Ltd. v. Berglund
Industrial Supply Co. Ltd. et al. (1982), 64 C.P.R. (2d)
206 (F.C.T.D.).
COUNSEL:
Gunnar O. Eggertson, Q.C. for appellants
(defendants).
Christopher Harvey for respondents (plain-
tiffs).
James R. Aldridge for respondent (interven-
or).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (defendants).
Russell & DuMoulin, Vancouver, for
respondents (plaintiffs).
Rosenbloom & Aldridge, Vancouver, for
respondent (intervenor).
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This appeal from an order of
Collier J. dated December 18, 1986, touches only
the tip of an iceberg and must therefore be nar
rowly drawn.
The appellant Minister of Indian Affairs and
Northern Development ("the Minister") has from
time to time appointed a federal negotiator for the
purpose of negotiating a settlement of the land
claim submitted by the Nisga'a Indians of British
Columbia represented by the intervenor. The
appellant Walchli is the current negotiator. In the
negotiations the Nisga'a are claiming the owner
ship, control and management of the whole or part
of the sea fishery resource within the waters of
Portland Inlet, Observatory Inlet, Nass Bay and
other adjacent waters off the coast of British
Columbia, and also ownership, control and man-
agement of the whole or part of the fishery in
non-tidal waters in the Nass River, its tributaries
and other rivers and lakes in north western British
Columbia.
All of the respondents other than the B.C. Wild
life Federation represent members who are com
mercial fishermen on the Pacific Coast of Canada
holding Class "A" fishing licences and some of
whom are accustomed to fish within the waters
over which the Nisga'a claim control. They fear
that the interests and livelihood of their members
will be affected if the Nisga'a obtain ownership,
control and management of the fishery resource
according to their claim. The respondent B.C.
Wildlife Federation represents, inter alia, mem
bers who hold valid sea and fresh water sports
fishing licences and who have an interest in the
fish resources claimed by the Nisga'a.
The negotiations are being conducted in secret,
but the respondents argue, on the basis of an
undated briefing note disclosed by representatives
of an adjacent Indian band, that the federal
negotiator is proposing to allocate 35% of the
fishery to the Nisga'a.
The motion to strike out the statement of claim
was made by the appellants under Rule 419(1)(a)
[Federal Court Rules, C.R.C., c. 663] on the
ground that the statement of claim "discloses no
reasonable cause of action." The Motions Judge
rejected their motion as follows (Appeal Book,
pages 5-7):
The plaintiffs say the interest and livelihoods of their mem
bers will be affected if the Nishga's are given ownership,
management or control of the fishery resources in question.
The plaintiffs assert there is a possible proposed allocation by
Walchli to the Nishga of a certain percentage of the claimed
fisheries.
The plaintiffs further assert, as matters of law, any alloca
tions of propriety or other fishing rights, or any allocations or
transfers, are ultra vires the federal power; the negotiations
themselves are without any authority.
Alternatively, the plaintiffs have requested the negotiator
and the Minister to provide them information as to the Nishga
claim, and to allow the plaintiffs to participate and have a
hearing in respect of those claims and the negotiations. This
request has been refused.
The plaintiffs say the Minister, and his negotiator, have a
duty of fairness, which requires in the circumstances the giving
of a hearing.
The relief sought in the plaintiffs action is declarations going
to the question of the validity and constitutionality of the
negotiations and any transfers or allocation of rights. Section 7
of the Charter of Rights and Freedoms is also relied on.
The other major declarations sought are in respect to the
asserted duty of fairness, and the right to a hearing.
The defendants contended, as a matter of law, the question
of constitutional validity and statutory authority have all been
decided in previous case law. Adversely, and plainly and obvi
ously so, to the plaintiffs position.
I do not agree.
The particular statutory and constitutional positions, as
advanced by the plaintiffs, are, to my mind, reasonably
arguable in the context of some of the decisions, at least, relied
on by the defendants. Those legal questions are also not without
difficulty.
It is not for me, at this stage, to decide those questions of
law, nor even to weigh the pros and cons. I am unable to say, at
this time, the plaintiffs are clearly out of court.
In respect of the matter of judicial review, and the duty of
fairness, it is, as I see it, not plain and obvious the plaintiffs
cannot, beyond doubt, succeed. I do not propose to go into all
the contentions advanced on this point by the defendants. But,
it was strongly urged the negotiator, Walchli is not a tribunal,
nor a decision-maker; all he can do is recommend; therefore,
and for other reasons, as well, judicial review, in the form of the
relief sought, cannot be granted at trial. The opposite conten
tion is, nevertheless, in my view, arguable on the part of the
plaintiffs. See, for example, Canadian Tobacco Manufacturers'
Council v. National Farm Products Marketing Council, [ 1986]
2 F.C. 247; (1986), 65 N.R. 392 (C.A.).
I add these observations.
This motion took the better part of a day. The defendant's
submissions were approximately two and a half hours. Elabo
rate argument was made and a wealth of decisions produced
and referred to. The plaintiffs submissions took approximately
an hour.
The Motions Judge then cited (at page 9) with
approval the following comments of Dubé J. in
Burnaby Machine & Mill Equipment Ltd. v. Ber-
glund Industrial Supply Co. Ltd. et al. (1982), 64
C.P.R. (2d) 206 (F.C.T.D.), at page 214:
In conclusion, one might be forgiven for suggesting a practi
cal rule of thumb to govern striking out procedures, namely,
that when hours of laborious and complex arguments are felt to
be necessary to establish that something is "plain and obvious",
then that something might not be so plain and obvious after all.
The Motions Judge then concluded (at page 9):
To summarize.
The plaintiffs action is not one that plainly and obviously
cannot succeed.
The motion is dismissed.
On the same day as the Motions Judge's deci
sion the Minister gave a policy directive to the
federal negotiator as follows (Appeal Book, App.
1, page 22):
ABORIGINAL AND NON-ABORIGINAL INTERESTS
Of course we recognize that in many cases such resources are
also being utilized by others. In the past, third parties have
sometimes been concerned that their interests would be traded
away behind closed doors: the lack of available information has
perhaps led to a distorted impression of what has been under
consideration. I therefore wish to make it clear that the man
date of all federal negotiators will explicitly require that third
parties be consulted, that their legitimate interests be respected,
and that the public interest be safeguarded.
By order of Muldoon J. of March 9, 1987, made
in order to avoid "a multiplicity of proceedings in
this matter", this policy directive was allowed to
be incorporated in the respondent's statement of
claim as a new paragraph 31, and by the same
amendment paragraphs 32-34 were added to the
statement of claim, as follows (Appeal Book, App.
1, page 23):
32. By reason of the aforesaid policy directive, the Plaintiffs
have a reasonable expectation of and a right to a fair hearing
by the Federal Negotiator.
33. Notwithstanding the aforesaid policy directive, the Federal
Negotiator has continued to refuse to open "the closed doors",
or to give the Plaintiffs the "available information", or to
extend to the Plaintiffs a right to meaningful consultation in
the claims negotiation process.
34. The said refusal of the Federal Negotiator is outside the
discretion vested in the Federal Negotiator as prescribed by the
said policy directive, and is contrary to the rules of natural
justice.
* * *
In addition to declarations based on common law
principles, the respondents seek a declaration
based on section 7 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)], in both cases to the effect that
they have been denied fairness through not having
been provided with any information about the
negotiations nor with a hearing. The relevant prin
ciples for striking out statements of claim have
been most cogently set out by Dickson C.J.C. in
Operation Dismantle Inc. et al. v. The Queen et
al., [1985] 1 S.C.R. 441; (1985), 59 N.R. 1, at
pages 449-450, 454-455 (S.C.R.); 7-8, 13-14
(N.R.), in the particular context of section 7:
The most recent and authoritative statement of principle
applicable to determine when a statement of claim may be
struck out is that of Estey J. in Attorney General of Canada v.
Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 740:
As I have said, all the facts pleaded in the statement of
claim must be deemed to have been proven. On a motion
such as this a court should, of course, dismiss the action or
strike out any claim made by the plaintiff only in plain and
obvious cases and where the court is satisfied that "the case
is beyond doubt": Ross v. Scottish Union and National
Insurance Co. (1920), 47 O.L.R. 308 (App. Div.)
Madame Justice Wilson in her reasons in the present case [at
p. 486] summarized the relevant principles as follows:
The law then would appear to be clear. The facts pleaded
are to be taken as proved. When so taken, the question is do
they disclose a reasonable cause of action, i.e. a cause of
action "with some chance of success" (Drummond-Jackson
v. British Medical Association, [1970] 1 All E.R. 1094) or,
as Le Dain J. put it in Dowson v. Government of Canada
(1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and
obvious that the action cannot succeed".
I agree with Madame Justice Wilson that, regardless of the
basis upon which the appellants advance their claim for
declaratory relief—whether it be s. 24(1) of the Charter, s. 52
of the Constitution Act, 1982, or the common law—they must
at least be able to establish a threat of violation, if not an actual
violation, of their rights under the Charter.
In short then, for the appellants to succeed on this appeal,
they must show that they have some chance of proving that the
action of the Canadian government has caused a violation or a
threat of violation of their rights under the Charter.
What can be concluded from this analysis of the statement of
claim is that all of its allegations, including the ultimate
assertion of an increased likelihood of nuclear war, are pre
mised on assumptions and hypotheses about how independent
and sovereign nations, operating in an international arena of
radical uncertainty, and continually changing circumstances,
will react to the Canadian government's decision to permit the
testing of the cruise missile.
The point of this review is not to quarrel with the allegations
made by the appellants about the results of cruise missile
testing. They are, of course, entitled to their opinion and belief.
Rather, I wish to highlight that they are raising matters that, in
my opinion, lie in the realm of conjecture, rather than fact. In
brief, it is simply not possible for a court, even with the best
available evidence, to do more than speculate upon the likeli
hood of the federal cabinet's decision to test the cruise missile
resulting in an increased threat of nuclear war.
(c) The Rule that Facts in a Statement of Claim Must be
Taken as Proven
We are not, in my opinion, required by the principle enun
ciated in Inuit Tapirisat, supra, to take as true the appellants'
allegations concerning the possible consequences of the testing
of the cruise missile. The rule that the material facts in a
statement of claim must be taken as true for the purpose of
determining whether it discloses a reasonable cause of action
does not require that allegations based on assumptions and
speculations be taken as true. The very nature of such an
allegation is that it cannot be proven to be true by the adduc-
tion of evidence. It would, therefore, be improper to accept that
such an allegation is true. No violence is done to the rule where
allegations, incapable of proof, are not taken as proven.
[Emphasis added].
In my view the allegations of violations of rights
in the case at bar, whether based on the common
law or on the Charter, are just as incapable of
proof as those in the Operation Dismantle cases.
They are perhaps not inherently incapable of
proof, but they are incapable of proof at this time
because, even in the presence of firm evidence as
to the exact present state of the negotiations, a
court could not possibly conclude that the Govern
ment would ultimately decide to translate a par
ticular negotiating position at a given moment into
a legal agreement, still less that it would introduce
legislation to that effect into Parliament, or that
Parliament would enact it. Any duty of fairness
owed by the Government to the fishermen must be
determined in the context of a real decision by the
Government affecting their rights, whatever those
rights may be. As the Operation Dismantle case
suggests, it may be enough that the violation of
rights is merely threatened, but the threat must
surely always be a real and not merely a hypotheti-
cal, surmised or imagined threat. If the mere
possibility of being affected by a contemplated
government policy gave rise to rights of fair hear
ing, in advance of the decision, the burden of such
universally required consultation would probably
totally frustrate governmental decision making.
For an issue of fairness to arise, the adverse effects
must be more than merely possible: Canadian
Tobacco Manufacturers' Council v. National
Farm Products Marketing Council, [1986] 2 F.C.
247, at page 264; (1986), 65 N.R. 392, at page
402; 26 D.L.R. (4th) 677 (C.A.) at page 691.
More important, there must be something that can
be said to be a "decision": Re Abel et al. and
Advisory Review Board (1980), 31 O.R. (2d) 520
(C.A.), at page 532.
The more fundamental argument of the
respondents in their statement of claim is that
federal jurisdiction over "Sea Coast and Inland
Fisheries" under subsection 91(12) of the Consti
tution Act, 1867 [30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)] is not suf
ficiently broad to allow Parliament to grant all or
a portion of the tidal and non-tidal fishery in
British Columbia to the exclusive use of members
of the Nisga'a tribe in that proprietary rights to
the tidal and non-tidal fishery with which this
action is concerned are vested in the Crown
provincial.
It will be time enough, however, to decide such
issues if they actually arise. Parliament has under
its power over "Indians, and Lands reserved for
the Indians" (subsection 91(24) of the Constitu
tion Act, 1867) prima facie jurisdiction to settle
the claims of aboriginal peoples. Neither Parlia
ment nor a Minister of the Crown nor a federal
negotiator can be presumed to be acting beyond
constitutional powers before they have even acted.
Except perhaps on a reference, it is not open to a
court to speculate in such a fashion. Moreover, if it
became apparent to the Federal Government that
the character of the agreement likely to be reached
with the Nisga'a would be, or might be, beyond
unaided federal powers, it is possible that it would
attempt to work out a joint federal-provincial
approach to the settlement. A court has no war
rant to exclude such a possibility in advance.
* * *
The new argument raised by the respondents on
this appeal was based on the alleged "legitimate
expectation" of meaningful consultation arising
from the Minister's directive of December 18,
1986, to the negotiator.
Considerable argument occurred over whether
the consultation was required to be meaningful,
and as to whether it could be meaningful, or even
as to whether it could truly be said to be consulta
tion, in the absence of knowledge by the respond
ents of the state of negotiations between the Gov
ernment and the Nisga'a, since it was argued by
the respondents that such knowledge was required
to establish the subject matter of the consultation.
Accepting without deciding that the respondents
are correct in their arguments concerning the
offered consultation, I turn to the recently devel
oped English law of legitimate expectation, which
"may arise either from an express promise given
on behalf of a public authority or from the exist
ence of a regular practice which the claimant can
reasonably expect to continue.": Lord Fraser of
Tullybelton in Council of Civil Service Unions v.
Minister for the Civil Service, [1985] A.C. 374
(H.L.), at page 401. Taylor J. reviewed the law on
legitimate expectation in R v Secretary of State
for the Home Dept, ex p Ruddock, [1987] 2 All
ER 518 (Q.B.D.), at page 531:
On those authorities I conclude that the doctrine of legiti
mate expectation in essence imposes a duty to act fairly. Whilst
most of the cases are concerned, as Lord Roskill said, with a
right to be heard, I do not think the doctrine is so confined.
Indeed, in a case where ex hypothesi there is no right to be
heard, it may be thought the more important to fair dealing
that a promise or undertaking given by a minister as to how he
will proceed should be kept. Of course such promise or under
taking must not conflict with his statutory duty or his duty, as
here, in the exercise of a prerogative power. I accept the
submission of counsel for the Secretary of State that the
respondent cannot fetter his discretion. By declaring a policy he
does not preclude any possible need to change it. But then if the
practice has been to publish the current policy, it would be
incumbent on him in dealing fairly to publish the new policy,
unless again that would conflict with his duties.
Assuming, without deciding, that the doctrine of
legitimate expectation would found a duty on the
part of the Government to provide the consultation
promised to the respondents, that duty could be
measured only at the completion of the period
indicated. In the case at bar, it can be inferred
from the fact that the directive was given to the
federal negotiator that the period it was to cover
was that of the negotiations. The balance sheet,
therefore, can be drawn only at the appropriate
time, at the conclusion of negotiations. It would be
a usurpation for a court to designate some earlier
day as the date by which consultation had to take
place, since the directive itself by clear implication
leaves the timing of consultation in the hands of
the negotiator, provided that it takes place before
the negotiations are completed. The respondents'
statement of claim is therefore premature in this
respect.
For all of these reasons I would allow the
appeal, set aside the order of the Motions Judge,
strike out the respondents' statement of claim, and
dismiss the respondents' action, the whole with
costs both in this Court and in the Trial Division.
PRATTE J.: I agree.
STONE J.: I agree.
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