T-431-92
The Inuvialuit Regional Corporation ("IRC"),
The Inuvialuit Land Corporation ("ILC"), The
Inuvialuit Game Council ("IGC") and Knute
Hansen (Applicants)
v.
Her Majesty the Queen and The Minister of Indian
Affairs and Northern Development (for the
Government of Canada) (Respondents)
and
The Gwich'in Tribal Council (Intervenor)
INDEXED AS.' INOVIALOIT REGIONAL CORP.. v. CANADA (T.D.)
Trial Division, Reed J.—Ottawa, February 27 and
March 2, 1992.
Constitutional law — Aboriginal and treaty rights — Appli
cation for prohibition to prevent ratification of comprehensive
land claim agreement with Gwich'in — Potential conflict with
similar agreement with Inuvialuit already given effect by fed
eral legislation — Both agreements recognized under Constitu
tion Act, 1982, s. 35(3) — Applicants relying on possibility of
contradictory constitutionally recognized provisions, and
alleging Gwich'in agreement amending Inuvialuit agreement
without following amending process provided for therein —
Application dismissed as premature.
Native peoples — Lands — lnuvialuit moving for prohibition
of ratification of Gwich'in land claim agreement — Applicants
having previously reached agreement with government on land
claim to bordering area — Overlapping land claims —
Whether Minister's submission of agreement to cabinet politi
cal or ministerial act not subject to court restraint — Relief
denied as motion premature.
Judicial review — Prerogative writs — Prohibition — Inuvi-
aluit seeking prohibition to prevent ratification of comprehen
sive land claims agreement with Gwich'in — Overlapping land
claims between lnuvialuit and Gwich'in — Application dis
missed as premature — Cabinet approval not definite, signator
on behalf of government unknown — Dispute may be settled
before agreement submitted to Parliament.
Federal Court jurisdiction — Trial Division — Federal
Court Act, s. 2 definition of "federal board, commission or
other tribunal" amended to include person exercising powers
conferred under order made pursuant to prerogative of Crown
— Doubtful that submission of proposal to cabinet exercise of
royal prerogative — Extension of principle in Toth v. Canada
(Minister of Employment and Immigration) (1988), 6 Imm.L.R.
(2d) 123 (F.C.A.) to action for declaration before Trial Divi
sion to prevent minister from carrying out contractual obliga
tion.
This was a motion for prohibition to prevent the respondents
from ratifying a comprehensive land claim agreement with the
Gwich'in with respect to lands bordering on lands which were
the subject of a similar agreement with the Inuvialuit, signed
and given effect by federal legislation in 1984. There are some
overlapping land claims between the Gwich'in and the Inuvi-
aluit. Both agreements are land claim agreements within Con
stitution Act, 1982, subsection 35(3). The applicants submitted
that ratification of the Gwich'in agreement could result in con
tradictory, constitutionally recognized provisions, and would
amend the Inuvialuit agreement without adhering to the
amending process provided for therein and ignoring its consti
tutionally recognized status. The respondents argued that the
Minister, in presenting the agreement to cabinet pursuant to
the terms of the Gwich'in agreement, thereby triggering the
possible signing and ultimate embodiment of the agreement in
legislation, would be acting pursuant to a private contractual
agreement and that prohibition does not lie to prevent breach
of a private agreement. Federal Court Act, section 18 gives the
Trial Division jurisdiction to issue writs of prohibition against
any federal board, commission or other tribunal, the definition
of which (section 2) was recently amended to include any per
son exercising powers conferred by or under an order made
pursuant to a prerogative of the Crown.
Held, the motion should be dismissed.
The motion should be denied as premature in that it is not
known whether Cabinet will approve the agreement or approve
it subject to conditions. Nor is it known who will sign the
agreement on behalf of the government. Even if it is signed,
there is no obligation to submit the agreement to Parliament
before the dispute concerning the lands is settled either
through negotiation or by the Court.
It was questionable whether the action of a minister in sub
mitting a proposal to Cabinet could be considered an exercise
of the royal prerogative, although the signing of the agreement,
be it a treaty or mere contract, by representatives of the Crown
would be an exercise of such authority.
Toth v. Canada (Minister of Employment and Immigration)
(1988), 6 Imm.L.R. (2d) 123 (F.C.A.) established that the
Court of Appeal has ancillary authority to stay a minister from
carrying out a statutory obligation in order to ensure that pro
ceedings before it are not rendered nugatory. That principle
applies to an action for declaration before the Trial Division
and may be extended to prevent a minister from carrying out a
duty arising from a contractual obligation.
While unusual, there is at least one decision in which an
injunction has been issued to prevent a bill being presented for
royal assent. In any event, the circumstances of this case are so
unique that the general principle which courts apply when
refusing to interfere with the presenting of proposed legislation
to Parliament would not prevent the applicants obtaining an
injunction if necessary.
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.) [R.S.C., 1985, Appendix II,
No. 44].
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
s. 35 (as am. by SI/84-102, s. 2).
Department of Indian Affairs and Northern Development
Act, R.S.C., 1985, c. I-6, s. 6.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by
S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4).
Western Arctic (Inuvialuit) Claims Act, S.C. 1984, c. 24.
CASES JUDICIALLY CONSIDERED
APPLIED:
Toth v. Canada (Minister of Employment & Immigration)
(1988), 6 Imm.L.R. (2d) 123; 86 N.R. 302 (F.C.A.).
CONSIDERED:
Minister of National Revenue v. Kruger Inc., [1984] 2
F.C. 535; (1984), 13 D.L.R. (4th) 706; 12 C.R.R. 45;
[1984] CTC 506; 84 DTC 6478; 55 N.R. 255 (C.A.);
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12
Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1.
AUTHORS CITED
Sgayias, David, et al. Federal Court Practice 1991-92
Scarborough: Thomson Professional Publishing
Canada, 1991.
Sharpe, Robert J. Injunctions and Specific Performance,
Toronto: Canada Law Book Ltd., 1983.
Spry, I. C. F. The Principles of Equitable Remedies, 3rd
ed. London: Sweet & Maxwell, 1984.
MOTION for prohibition to prevent the respon
dents from ratifying a comprehensive land claim
agreement. Motion dismissed.
COUNSEL:
C. J. Michael Flavell and Colin Baxter for appli
cants.
Geoffrey Lester for respondents.
Brian A. Crane, Q. C. and Martin W. Mason for
intervenor.
SOLICITORS:
McCarthy Tétrault, Ottawa, for applicants.
Deputy Attorney General of Canada for respon
dents.
Cowling, Strathy & Henderson, Ottawa, for
intervenor.
The following are the reasons for order rendered in
English by
REED J.: The applicants ("the Inuvialuit") bring a
motion for a writ of prohibition, or relief in the nature
thereof to prevent the respondents' proceeding to rat
ify a comprehensive land claim agreement with the
Gwich'in. The Gwich'in occupy a portion of the
Northwest Territories and the Yukon. The area to
which the prospective agreement with the Gwich'in
pertains borders on areas covered by a comprehen
sive land claim agreement which the Government
signed with the Inuvialuit in June of 1984.
The as yet unsigned Gwich'in comprehensive land
claim agreement contains a provision:
12.4.3.(a) Subject to the provisions of this agreement, the
Gwich'in have the exclusive right to harvest wild
life on Gwich'in lands.
(b) No person who is not a participant may harvest wildlife,
other than fish or migratory birds as may be provided pur
suant to this agreement, on or in waters overlying
Gwich'in lands. [Underlining added.]
Subparagraph 18.1.2(c) of the Gwich'in agreement
will vest in the Gwich'in fee simple title to approxi
mately 718 square miles of land, known as the
Aklavik lands. Approximately 233 square miles of
the Aklavik lands are located within the area covered
by the Inuvialuit agreement.
The 1984 agreement [The Western Arctic Claim:
the Inuvialuit Final Agreement] with the Inuvialuit,
which was given force and effect by the Weste rn Arc
tic (Inuvialuit) Claims Act, S.C. 1984, c. 24, contains
a provision:
14. (6) This Agreement provides the Inuvialuit with certain
harvesting rights to wildlife in the Western Arctic Region. The
exercise of the Inuvialuit rights to harvest is subject to laws of
general application respecting public safety and conservation.
Nothing in this section gives the Inuvialuit a proprietary inter
est in any wildlife. Subject to the qualifications set out in sub
sections (15) to (18), these harvesting rights include:
(a) the preferential right to harvest all species of wildlife,
except migratory nongame birds and migratory insectivo
rous birds, for subsistence usage throughout the Western
Arctic Region;
(b) the exclusive right to harvest furbearers, including black
and grizzly bears, throughout the Western Arctic Region;
(e) the exclusive right to harvest polar bear and muskox
throughout the Western Arctic Region; and
(d) the exclusive right to harvest game on Inuvialuit lands
and, if agreed on, other areas. [Underlining added.]
When the agreement with the Inuvialuit was being
negotiated, it was recognized that there were overlap
ping land claims by the Gwich'in and the Inuvialuit
in some areas. I am given to understand by counsel
that most of these have been resolved but a signifi
cant one which remains is that concerning the
Aklavik lands. It is not necessary to describe the
details of the difference of opinion which exists. As I
understand it, it relates to whether the title which will
be given to the Gwich'in in those lands carries with it
exclusive harvesting rights or whether those rights
rest also or exclusively with the Inuvialuit pursuant to
the Inuvialuit agreement.
Counsel made it clear that the Gwich'in and the
Inuvialuit are not intransigent with respect to their
respective positions. They have been negotiating and
expect to reach a resolution. They have reached nego
tiated agreements on many other overlap issues.
The Inuvialuit agreement, as has been noted, was
signed in July, 1984 and it was given effect by fed
eral legislation in that same year. The agreement (leg-
islation) contains provisions respecting the proce
dures to be followed for its amendment. In addition,
subsection 3(2) states:
3.(2) For greater certainty, it is the intention of the parties
that this Agreement be a land claims agreement within the
meaning of subsection 35(3) of the Constitution Act, 1982.
The as yet unsigned agreement with the Gwich'in
contains a similar clause (paragraph 3.1.2.). That
agreement is expressly stated to be a land claim
agreement within the meaning of section 35 of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] (as am. by S1184-102, s. 2)].
Section 35 of the Constitution Act, 1982 as
amended provides in part:
35.(1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and
affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the
Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights"
includes rights that now exist by way of land claims agree
ments or may be so acquired.
The Gwich'in agreement contains terms according
to which its ratification, signing and eventual imple
mentation by legislation is to be obtained. This calls
for ratification by the Gwich'in through a voting pro
cess which requires approval by no less than two
thirds of those voting and requires that three quarters
of the eligible voters cast a vote. The agreement pro
vides for ratification by the Government of Canada:
28.7.1. After ... ratification of this agreement by the
Gwich'in, the agreement shall be presented by the
Minister of Indian Affairs and Northern Development
to Cabinet for approval.
Provisions respecting the subsequent signing of the
agreement and its incorporation into legislation state:
28.8.1. Within 30 days of approval by Cabinet of this agree
ment, the agreement shall be signed by representatives
of the Gwich'in and of government.
28.9.1. Once this agreement has been signed by government
and the Gwich'in, the Minister of Indian Affairs and
Northern Development shall submit legislation to Par
liament to give effect to this agreement.
The Gwich'in ratified the agreement last Septem-
ber. The applicants have been given to understand
that the Minister of Indian Affairs and Northern
Development plans to present the agreement to Cabi
net for approval shortly. It is this step which the
applicants seek to stop. While much of the argument
addressed the propriety of an order of prohibition
preventing a minister from presenting a matter to
Cabinet for discussion, the relief which the applicants
seek could equally be effected if any one of the steps
towards implementation of the agreement was
stopped pending resolution of the differences respect
ing the Aklavik lands.
The Gwich'in agreement, like the Inuvialuit agree
ment, provides that it shall not be effective until
embodied in legislation:
3.1.3. Approval of this agreement by Parliament and the
Gwich'in in accordance with this agreement is a condi
tion precedent to the validity of this agreement which
shall be effective from the date of settlement legislation
and, in the absence of such approval, this agreement is
null and void and of no effect.
3.1.4. Canada shall recommend to Parliament that this agree
ment be approved, given effect and declared valid by
the legislation.
The applicants' concern is that if the respondents
proceed with ratification, signing and submission to
Parliament of the Gwich'in agreement this will lead
to two contradictory, constitutionally recognized pro
visions respecting harvesting rights to part of the
Aklavik lands being embodied in legislation. (As
noted above, I was given to understand that there
may also be some other unresolved "overlap" issues.)
Counsel argues: how will the two contradictory pro
visions be interpreted? Will that in the Inuvialuit
agreement be given precedence because it was signed
and enacted first or will that in the Gwich'in agree-
ment be given precedence because it was signed and
enacted last? This assumes of course that a contradic
tion exists. If I understand counsel for the respon
dents' argument correctly, he asserts that one does
not. Counsel for the applicants argues that what the
respondents are doing by proceeding to ratify, sign
and put forward for legislation the Gwich'in agree
ment is to amend the agreement with the Inuvialuit
without going through the amending process pro
vided for in that agreement and that they are ignoring
the constitutionally recognized status of that agree
ment.
A number of, what I would call, technical objec
tions have been made to any relief being given in this
case. It is argued that one cannot obtain a writ of pro
hibition against the Crown (the first respondent)
because such writs are issued by the Crown; counsel
for the applicants responds that this is not a matter of
great import because they are also seeking to restrain
the relevant Minister and such remedies are available
against individual ministers. It is argued that in so far
as restraining the signing of the agreement is con
cerned, one cannot do so because it is not known who
will be the representative of the Crown that will sign.
The representatives have not yet been identified and
it is not necessary that the Minister of Indian Affairs
and Northern Development be one of them. It is
argued that the remedy sought is too vague because it
only seeks to restrain ratification of the Gwich'in
agreement in so far as that agreement purports to
convey any rights, title or interest to the Gwich'in
which have already been conveyed to the Inuvialuit
or which are inconsistent with them. I would not con
sider these defects to be of a kind which would pre
vent an order being granted.
A more substantial argument is that a writ in the
nature of prohibition cannot be granted because the
nature of the activity being undertaken by the Minis
ter of Indian Affairs and Northern Development, in
submitting the agreement to Cabinet, and presumably
later to Parliament, and the action of signing the
agreement by whoever might be designated as a rep-
resentative are not the kind of activities which fall
within section 18 of the Federal Court Act [R.S.C.,
1985, c. F-7]. It is argued by counsel for the respon
dents that these actions are political or ministerial
and not subject to restraint by the courts. Subsection
18(1) [as am. by S.C. 1990, c. 8, s. 4] provides that
the Trial Division has exclusive jurisdiction:
18....
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a fed
eral board, commission or other tribunal.
Subsection 2(1) [as am. idem, s. 1] of the Federal
Court Act, provides that:
2.(1)...
"federal board, commission or other tribunal" means any
body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers con
ferred by or under an Act of Parliament or by or
under an order made pursuant to a prerogative of the
Crown, other than any such body constituted or
established by or under a law of a province or any
such person or persons appointed under or in accor
dance with a law of a province or under section 96
of the Constitution Act, /867; [Underlining added.]
The text by Sgayias, Kinnear, Rennie and Saun-
ders entitled Federal Court Practice 1991-92, at page
41, refers to the recent amendment to section 2 in the
following terms:
The definition "federal board, commission or other tribunal"
is revised to include within its scope bodies or persons exercis
ing power by or under the Crown prerogative and to make it
clear that the Senate and House of Commons fall outside the
expression's scope. The former addition ensures that the Fed
eral Court, and not the provincial superior courts, has the
power to review administrative actions based on the exercise
of the federal Royal prerogative. The latter clarification, which
is found in new section 2(2), is Parliament's response to the
decision at first instance in Southam Inc. v. Canada (A.G.),
[1989] 3 F.C. 147, 27 F.T.R. 139, 43 C.R.R. 87 (T.D.), which
decision was subsequently overturned on appeal: [1990] 3 F.C.
465, 73 D.L.R. (4th) 289, 114 N.R. 255 (C.A.).
Counsel for the applicants referred to both Minister
of National Revenue v. Kruger Inc., [1984] 2 F.C.
535 (C.A.) and to Operation Dismantle Inc. et al. v.
The Queen et al., [1985] 1 S.C.R. 441. In the first, at
pages 543-544, the Minister of Finance was held to
be subject to certiorari when exercising a purely dis
cretionary administrative authority, pursuant to a stat
ute, in authorizing a search of a taxpayer's premises.
It was held that compliance with the constitutional
guarantees set out in the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]] was
required. In the Operation Dismantle case at page
455, of course, it was held that Cabinet decisions
made in exercise of the royal prerogative could be
subject to judicial scrutiny for compatibility with the
Charter.
I have trouble classifying the action of a minister
in submitting a proposal to Cabinet as an exercise of
the royal prerogative although the signing of the
agreement, be it a treaty or mere contract, by repre
sentatives of the Crown would be an exercise of such
authority. I was referred to no statutory authority as
the source of the actions in question. The Minister of
Indian Affairs and Northern Development is given by
section 6 of the Department of Indian Affairs and
Northern Development Act, R.S.C., 1985, c. I-6,
authority over the lands in question:
6. The Minister has the management, charge and direction of
all lands situated in the Yukon Territory and the Northwest
Territories belonging to Her Majesty in right of Canada except
those lands therein that were immediately before October 1,
1966 under the management, charge and direction of any min
ister, department, branch or agency of the Government of
Canada other than the Minister of Northern Affairs and
National Resources of the Department of Northern Affairs and
National Resources.
If I understand counsel for the respondents' argu
ment correctly, it is that the Minister when acting
pursuant to the terms of the Gwich'in agreement, in
presenting the proposal to Cabinet and thereby trig
gering the possible signing and ultimate embodiment
of the agreement in legislation, is acting pursuant to a
private contractual agreement. He argues that prohi
bition does not lie to prevent breach of a private
agreement (paragraph 43 of the respondents' memo
randum of fact and law).
In any event, I do not propose to canvas these
arguments any further because I do not find it neces
sary to do so. I accept counsel for the intervenor's
argument that an order should not be given now
because it is premature. He argues that the Minister
should not be restrained from placing the agreement
before Cabinet for discussion; that it is not known
whether Cabinet will in fact approve the agreement
or whether it will approve it subject to conditions. He
argues that it is not known who will sign the agree
ment on behalf of the government, if it is to be
signed, and he notes that even if it is signed there is
no obligation to submit the agreement to Parliament
before the dispute concerning the Aklavik lands is
settled by the Gwich'in and the Inuvialuit, or by this
Court if necessary.
A statement of claim seeking a declaration with
respect to the Aklavik lands issue between the parties
was filed by the Inuvialuit on October 22, 1991
(Court file T-2674-91). Counsel for the Gwich'in
points out that the issue could be settled very quickly
by bringing that action on by way of an expedited
hearing. He argues that such a procedure would be
more appropriate than for the Court to act prema
turely now to prevent further action being taken on
the basis of what may not turn out to be an
unresolved issue.
That the Court has ancillary authority to stay a
minister acting to carry out a statutory obligation in
order to ensure that proceedings before the Court are
not rendered nugatory was decided in Toth v. Canada
(Minister of Employment & Immigration) (1988), 6
Imm.L.R. (2d) 123 (F.C.A.). While that case dealt
with the ancillary jurisdiction of the Federal Court of
Appeal, there is no reason the principle is not equally
applicable to proceedings before the Trial Division
and it has been so applied. Also, while that decision
was given in the context of an application for judicial
review, there is no reason why it does not also apply
in the context of an action for declaratory relief.
Lastly, while the Toth decision dealt with the granting
of an injunction to prevent a minister carrying out his
statutory duties, it seems even more available when
that duty arises from what appears to be a contractual
obligation.
I am aware that it is not usual for courts to grant
injunctions to prevent legislation being presented to
Parliament although there is a least one decision in
which an injunction has been issued to prevent a bill
being presented for royal assent: see Spry, The Prin
ciples of Equitable Remedies (1984, 3rd ed.), at pages
333-334, and Sharpe, Injunctions and Specific Per
formance (1983), at page 171. In any event, the cir
cumstances of this case are so unique that I do not
think the general principle which courts apply when
refusing to interfere with the presenting of proposed
legislation to Parliament would prevent the applicants
obtaining an injunction in the present case if such
were necessary.
For the reasons given the applicants' motion for a
writ of prohibition, or relief in the nature thereof is
denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.