Date: 20011019
Docket: T-1250-01
Neutral citation: 2001 FCT 1137
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA,
representing the Minister of Fisheries and Oceans (Canada),
UNION OF NOVA SCOTIA INDIANS, a body corporate and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corproate
Defendants
[1] This is a motion brought by the applicants (now plaintiffs) in Court File No. T-1250-01 as a cross-motion to the Crown (defendant's) motion which sought both to convert the judicial review application in that file into an action and to consolidate the resulting action with the action in Court File No. T-1525-00. The Crown's motion was granted at a hearing held in Halifax on September 19, 2001 but as the cross-motion had not been served by the plaintiffs on all the parties to the earlier action with which this action has now become consolidated, I adjourned it and directed that it proceed according to Rule 369. No further written submissions having been received and the time for doing so having now expired, I can now dispose of the cross-motion.
[2] The cross-motion is for an order, pursuant to Rules 107 and/or 220 of theFederal Court Rules, 1998, directing that, if the application for judicial review is converted into an action, the following issue and the following question of law be determined separately and summarily on affidavit evidence and before the trial of the action, namely :
In the circumstances of proceedings T-1250-01, was and is the Minister of Fisheries and Oceans (Canada) [the "Minister"] without lawful authority to take enforcement action against the Band and its members if they fished without a licence or authorization from the Minister because the Fisheries Act (Canada) and the fisheries regulations enacted under its authority did not and do not provide the Minister with criteria or standards to be applied in determining whether to licence, and if so, upon what terms, their livelihood fishery under the Mi'kmaq Treaties of 1760-1761, including the Shubenacadie Mi'kmaq Treaty of March 10, 1760. (sic)
[3] I would dismiss the cross-motion on the primary ground that as the facts that go to the heart of this case are in dispute, there is no pure question of law that can be determined ; a ruling thereon would require an adjudication on such facts and that can only take place after what I anticipate will be a very long and arduous trial.
[4] The plaintiffs seem to think that everything in this case has been determined in their favour by the decisions of the Supreme Court of Canada in the cases of R. v. Marshall, (D.J.) (No. 1), [1999] 3 S.C.R. 456 and R. v. Marshall, (D.J.) (No. 2), [1999] 3 S.C.R. 533. They are wrong. Marshall did not concern the plaintiff band or its members at all. The issue in Marshall was narrower and the Court's ruling was also much narrower (see on this point Marshall No. 2, para. 17, 20 and 22). In particular, the issues of concern in Marshall largely related to the eel fishery and not the lobster fishery, and the exercise of the treaty right found to exist was limited to a particular area (not St. Mary's Bay) traditionally used by the local community with which the "separate but similar" treaty was made. The fact that the Shubenacadie Indian Band may be beneficiaries of the 1760-1761 Treaties (which is not admitted but vigorously denied, and will be burdensome for the plaintiffs to prove) by no means implies that they, in fact, have a treaty right to fish lobster in St. Mary's Bay which is fundamental to their claim herein. Furthermore, since it is evident that the proposed severed issue is not a question of pure law, but one of mixed fact and law, bifurcating the present proceedings will lead to a duplication of procedural steps and costs because there will more likely be two separate series of pre-trial proceedings (discovery, documents, etc.,) two trials , and possibly two separate appeals. At the least, it is certainly not evident that the adjudication of the proposed question of law will be determinative and will not result in two separate proceedings on overlapping issues with all of the attendant delays of multiple proceedings.
[5] It is settled law that the Court must exercise its discretion under Rule 220 considering all the circumstances and having in mind that the procedure contemplated by the Rule is exceptional and should be resorted to only when the Court is of the view that the adoption of that exceptional course will indeed save time and expense : Perera v. Canada, [1998] 3 F.C. 381, 158 D.L.R. (4th) 341, para. 15 (F.C.A.). The plaintiffs have wholly failed to discharge that burden.
[6] In the result, the motion must be dismissed with costs.
ORDER
The plaintiffs' cross-motion is dismissed with costs.
Judge
Ottawa, Ontario
October 19, 2001