Federal Court of Appeal Decisions

Date: 20020118

Docket: A-771-00

Neutral citation: 2002FCA22

Present:           The Honourable Justice Sharlow

BETWEEN:

                             CHIPPEWAS OF NAWASH FIRST NATION, PAUL JONES

and CHIEF RALPH AKIWENZIE

                                                                                                                                                     Appellants

                                                                                 and

                   HER MAJESTY THE QUEEN, as represented by THE MINISTER OF

FISHERIES AND OCEANS and THE MINISTER OF INDIAN AFFAIRS

AND NORTHERN DEVELOPMENT

                                                                                                                                               Respondents

                                                                                   

                                           Dealt with in writing without appearance of parties.

                                       Order delivered at Ottawa, Ontario, January 18, 2002

REASONS FOR ORDER BY:                                                                                         SHARLOW J.A.

Date: 20020118

Docket: A-771-00

Neutral citation: 2002FCA22

Present:           The Honourable Justice Sharlow

BETWEEN:

                             CHIPPEWAS OF NAWASH FIRST NATION, PAUL JONES

and CHIEF RALPH AKIWENZIE

                                                                                                                                                     Appellants

                                                                                 and

                   HER MAJESTY THE QUEEN, as represented by THE MINISTER OF

FISHERIES AND OCEANS and THE MINISTER OF INDIAN AFFAIRS

AND NORTHERN DEVELOPMENT

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

SHARLOW J.A.

[1]                 This is a motion by the appellants under Rule 351 to introduce two affidavits as evidence on appeal and in any event to amend the notice of appeal. The respondent opposes both motions but says that if the appellants are permitted to adduce evidence on appeal, the respondent should be given leave to cross-examine the deponents and to file responding evidence.

[2]                 The appellants wish to have their motion heard orally because the issues are important and complex and the material is voluminous. The issues are important but no more complex than any other similar motion, and the material is not particularly lengthy given the nature of the proceeding. Both parties have filed comprehensive submissions. I have before me a two volume motion record filed by the appellant on November 29, 2001, the respondent's motion record filed December 13, 2001, the applicant's reply filed January 9, 2002, the transcripts of a cross-examination of Peter Jajccek filed January 14, 2002, and letters from counsel for the appellants dated November 28, 2001 and January 8, 9 and 10, 2002. In my view it is appropriate to dispose of this motion on the basis of the written material.

[3]                 The appellant Chippewas of Nawash First Nation is a band of Ojibwa Indians whose reserve occupies Cape Croker on the Bruce Peninsula in Ontario. The individual appellants are members of the band, and the appellant Chief Ralph Akiwenzie is its chief. In a statement of claim filed in 1999, the appellants sought a declaration, damages and other relief relating to the Aboriginal Fisheries Strategy, a program introduced by the federal Department of Fisheries in Oceans in 1992. In their statement of claim, the appellants say that their exclusion from participation in the Aboriginal Fisheries Strategy violates subsection 15(1) of the Canadian Charter of Rights and Freedoms or constitutes a breach of a fiduciary duty owed to them by the Crown in right of Canada.

[4]                 The trial was heard in April, 2000. The action was dismissed. The decision is reported as Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans) (2000), 196 F.T.R. 249, 37 C.E.L.R. (N.S.) 44, [2001] 1 C.N.L.R. 20, [2000] F.C.J. No. 1833 (QL).

[5]                 The trial judge rejected the Charter claim because the exclusion of the appellants was not the result of any personal characteristic or the location of their reserve. Even though the trial judge considered that to be fatal to the appellants' Charter claim, she went on to conclude that the differential treatment was not based on an analogous ground and was not demeaning to their human dignity.

[6]                 The last mentioned point required a discussion of a number of factors. One of the factors was whether the effect of excluding the applicants from participation in the Aboriginal Fisheries Strategy was so severe and localized that the differential treatment responsible for that effect should be found to be discriminatory. In that connection the trial judge said this (at paragraphs 128 and 129):

[128]      ... In the present case, the plaintiffs argued that the negative impact that excluding them from the AFS [Aboriginal Fisheries Strategy] has on the interest they have asserted is "direct and massive". They have been totally denied access to the AFS.

[129]      However, on the evidence before me, I have not been persuaded that the plaintiffs have been excluded from the opportunity to enter into an agreement with respect to the co-management of their fishery nor have I been persuaded that they have been denied access to related government funding.

[7]                 This conclusion lies at the root of the present motion. It is based on evidence that the Bruce Peninsula fishery is administered by the Crown in right of Ontario, and that the appellants have been participating in mediated discussions that they hope will result in a favourable agreement as to co-management of that fishery.

[8]                 The evidence on this point includes a letter dated February 25, 1999 from the then Minister of Fisheries and Oceans, and also the evidence of Chief Akiwenzie, particularly the evidence given in his cross-examination.

[9]                 The Minister's letter was an exhibit to the affidavit of Chief Akiwenzie sworn March 22, 1999, which was part of the evidence at trial. It was a response to two letters to the Minister from Chief Akiwenzie dated October 15, 1998 and December 11, 1998. The trial transcript records the following exchange during the direct examination of Chief Akiwenzie (pages 63:19 - 64:21:

Q. [...] There is reference in that letter of December 11th to discussions concerning the Bruce Peninsula Fisheries. Can you tell us what those discussions were about and who was involved?

A. At that time, we were in mediation process to look at a fishing agreement for our community and there were several parties at the table, key parties at the table, I might add.

Q. Who were the parties?

A. And that was the Federal government, represented by Department of Indian and Northern Affairs, Department of Fisheries and Oceans, Chippewas of Nawash First Nation, and the Province, the Minister of Natural Resources.

Q. And were there any other representatives of Aboriginal peoples, other than your Band?

A. The Saugeen First Nation, I believe.

Q. Had those discussions reached a conclusion?

A. This was 1998. It's 2000. They're coming to a conclusion, let's put it this way, but they have taken an extended period of time to resolve.

Q. Is there an agreement yet?

A. At this present time, in terms of formality, with approvals necessary, no. I think we are at the stage of reaching a conclusion, however.

[10]            The Minister's responding letter of February 25,1999 was introduced in support of the appellants' allegation that the Minister had refused to permit the Chippewas of Nawash First Nations to participate in the Aboriginal Fisheries Strategy. The Minister's letter reads as follows (the underlined portions are quoted by the trial judge in her reasons):

I am writing in reply to your letters of October 15, 1998, and December 11, 1998, in which you state your intention to pursue litigation against the Department of Fisheries and Oceans (DFO) and others in order to obtain access to programming under the Aboriginal Fisheries Strategy (AFS).

I understand that your First Nation is involved in a mediated discussion process with the Ontario Ministry of Natural Resources concerning development of a co-management arrangement for commercial fishing around the Bruce Peninsula. I also understand that officials from DFO are attending these sessions. I have instructed my officials to continue to participate in the mediation process to an extent consistent with jurisdictional responsibilities.

At the mediation sessions, DFO officials have stated clearly that management of inland fisheries has been delegated to Ontario. Consequently, as DFO does not manage the fishery, AFS programming is not available since DFO only administers AFS in areas of the country where it manages the fishery.

Clearly, DFO's preference, which has been encouraged in recent court decisions, is to negotiate rather than litigate; however, once a First Nation initiates court action, I must accept that mediation is no longer an option. I hope that this does not come to litigation.

I would also like to take this opportunity to thank Judge Hunter for his efforts in the mediation process and I wish you all success in this experience.

[11]            In the first part of Chief Akiwenzie's cross-examination, he confirmed that the Chippewas of Nawash First Nation had participated in a number of meetings in the hope of reaching an agreement with the Ontario Minister of Natural Resources in relation to the Bruce Peninsula fisheries. Chief Akiwenzie also confirmed that the topics discussed at the meetings included questions of fisheries management, reporting and enforcement and a regular forum for ongoing discussions relating to the fishery, that representatives of the Department of Indian and Northern Affairs participated in the meetings, and that the expectation of Chief Akiwenzie was that the federal government would contribute financially to any agreement reached as a result of these meetings. Counsel for the appellants did not intervene during that part of the cross-examination.

[12]            However, counsel for the appellants did intervene when counsel for the Crown sought to put to Chief Akiwenzie a document that was said to be a discussion draft dated June 9, 1999 of an interim agreement between the Chippewas of Nawash First Nation, the Crown in right of Ontario as represented by the Minister of Natural Resources, and the Crown in Right of Canada as represented by the Minister of Indian Affairs and Northern Development. The document was marked "without prejudice". Chief Akiwenzie indicated that he was familiar with the document and that it was a product of the mediation discussions.

[13]            Counsel for the appellants expressed concern as to the admissibility of the document and asked for an adjournment. After the adjournment, counsel for the appellants elicited evidence from Chief Akiwenzie that it was his understanding that there was to be no disclosure of any information about the mediated discussions until their conclusion. Chief Akiwenzie also said that he was not prepared to waive any privilege relating to the document.

[14]            Counsel for the Crown submitted that the document was being tendered as evidence of the nature of the discussions at the negotiations and the roles the respective parties played.    Counsel for the appellants submitted, among other things, that these proceedings were independent of the discussions that led to the draft and that "those discussions are entirely inappropriate for this litigation". The Trial Judge did not permit the draft agreement to be marked as evidence. This exchange is recorded in the trial transcript, page 84: 10 to page 85: 15:

THE COURT:      It seems to me, Ms. Yurka [counsel for the Crown] my note of the Chief's evidence was that it was agreed between the parties that three would be no disclosure of any information within the document until a successful agreement was concluded.

Now in view of that unchallenged evidence, I have some difficulty in understanding how, as parties to the agreement, you can now put this forward. It seems to me that there may be a legitimate area of questioning with respect to the authority that the individuals have thought they had or how they have conducted themselves, actions that may be inconsistent with the evidence that Mr. Gibson [counsel for the appellants] elicited from the witness during his direct examination, but that would be related to but would not leave the document to be in evidence before the Court.

MS. YURKA:       Then, certainly, Mr. Gibson could, on re-examination, ask the witness to explain where those differences come in and I think that it is - I'm not as concerned about the positions that the parties take at the negotiation and what they might offer or not offer, but merely to look at the types of issues that are being discussed, the types of issues that are on the table, so to speak.

THE COURT:      And it may be that those questions will go in without objection from Mr. Gibson and we can deal with that, but I am not inclined to receive the document in view of unchallenged evidence that there was an agreement between the parties that this was not going to be referred to until a final agreement was concluded.

[15]            The cross-examination of Chief Akiwenzie then resumed, but there were no further interventions on the part of counsel for the appellants. Chief Akiwenzie testified, among other things, that the mediated discussions continued despite the initiation of these proceedings, that the Department of Fisheries and Oceans returned to the table despite the suggestion of the Minister that they would not negotiate, and that Ontario had provided some financial assistance to the Chippewas of Nawash First Nations for research relevant to conservation and fisheries management.

[16]            The appellants appealed the dismissal of their action, alleging a number of errors in relation to the application of section 15 of the Charter and the law relating to the Crown's fiduciary obligation to the appellants.

Motion to amend the notice of appeal

[17]            The appellants wish to amend the notice of appeal to add two new grounds:

(i)         the trial judge erred procedurally and substantively in permitting the Crown to introduce and rely on the substance and content of the mediated discussions, and

(ii)        trial judge made an unreasonable finding of fact and erred in law in relying on the appellants' participation in the Bruce Peninsula Fishery Discussions in finding that they did not suffer any loss of dignity within the meaning of section 15 of the Charter.

[18]            The respondent, while opposing the motion to amend the notice of appeal, has not offered any argument specifically on the point and has not suggested that any prejudice would result from the amendment. I will therefore grant the motion to amend the notice of appeal.

Motion to introduce evidence on appeal

[19]            The motion to adduce evidence on appeal is intended to support the two new grounds of appeal. The appellants rely on Rule 351, which reads as follows:

In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.

[20]            In considering this motion, I must consider whether the evidence could with reasonable diligence have been discovered before the end of the trial, whether the evidence is credible, and whether the evidence is practically conclusive on the appeal: Frank Brunckhorst Co. v.Gainers Inc. et al., [1993] F.C.J. No. 874 (C.A.)(QL). I understand the third test to mean simply that the new evidence, if believed, could reasonably be expected to affect the result of the trial: Palmer v. R.,[1980] 1 S.C.R. 759.

[21]            Even if the three tests are not met, I may permit the evidence to be adduced if the interests of justice require it: Glaxo Wellcome plc v. Minister of National Revenue, [1998] 225 N.R. 28 (F.C.A.), Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) (1992), 192 N.R. 390 (S.C.C.).

[22]            The evidence in question is found in two affidavits. One is the affidavit of Rangi Jeerakathil, one of the two lawyers who represented the appellants at trial, sworn on September 10, 2001. The other is the affidavit of Chief Akiwenzie sworn August 30, 2001.

[23]            The Jeerkakathil affidavit is intended to establish that on August 10, 2001, counsel for the appellants learned for the first time that, from the outset of the mediated discussions in 1997, all participants had accepted that the discussions were confidential and in particular were not to be used to prejudice the position of the appellants in relation to their challenge to the Aboriginal Fisheries Strategy. I refer to this as a "privilege" attached to the mediated discussions, but in using that terminology I am not expressing an opinion as to the existence or extent of any duty of confidentiality imposed on the discussion participants. The factual question is whether there was any privilege as alleged and if so, whether it precluded or should have precluded the Crown from eliciting the evidence of Chief Akiwenzie upon which the trial judge relied.

[24]            Chief Akiwenzie's affidavit is intended to establish that in giving his evidence at trial, he believed he was obliged to answer the questions put to him and he did not waive or intend to waive any privilege. It is also intended to establish that he did not discuss the specifics of the mediated discussions with counsel for the appellants because they were confidential and because he believed that the information could not be used to the prejudice of the appellants.

[25]            According to material filed by the respondent in this motion, the fact that the mediated discussions were in progress was publicly known well before trial. Counsel for the appellants certainly knew that there were discussions, because they are disclosed in Chief Akiwenzie's December 11, 1998 letter to the Minister of Fisheries and Oceans and the Minister's response dated February 25, 1999.

[26]            Counsel for the appellants claim to have been unaware prior to trial that there were conditions imposed on the participants in the mediated discussions that were breached when Chief Akiwenzie was asked to give the evidence referred to above. How can that be? The reason is not explained, but having reviewed the material I can find no indication that counsel for the appellants conducted any investigation that would have disclosed this information. It seems to me likely that if they had asked any questions at all about the agenda for the discussions or the mediator's terms of reference, they would have learned all that they now claim not to have known before trial. Why did they not do so? They should have known that the Crown considered the discussions to be relevant to the appellants' claim, based on the questions asked by the Crown in its examination for discovery of Chief Akiwenzie as set out in the material filed by the Crown in response to this motion.

[27]            I conclude that evidence as to the privilege said to be attached to the mediated discussions could with due diligence have been discovered before trial.

[28]            It is convenient to consider the second and third tests together. The question seems to me whether the evidence sought to be introduced is capable of proving, on a balance of probabilities, that the claimed privilege exists and was breached.

[29]            Although the Akiwenzie affidavit refers to the existence of the alleged privilege, its scope and foundation is described only in the Jeerakathil affidavit. I am concerned about the reliability of that evidence. First, it is hearsay introduced through a person who was counsel at trial and thus may have an interest in the outcome of this motion in the sense that the motion requires a certain scrutiny of the conduct of the trial.    Second, the description of the privilege is an interpretation by the same counsel of information said to have been obtained orally from the mediator, Justice Hunter. The motion record contains no affidavit from Justice Hunter or any other participant in the discussions except Chief Akiwenzie. No explanation is offered for that omission. The record does not indicate whether Justice Hunter or any other participant in the discussions declined to provide a supporting affidavit, or whether they were asked to do so.

[30]            The only documentary exhibit relevant to this point is a document entitled "mediation services agreement". It reads as follows:

The purpose of this waiver and consent form is to ensure that you understand the nature of my service and the responsibilities you have to maintain the confidentiality of the mediation process.

By signing this document, you each agree and undertake as follows:

1.    I understand that Stephen J. Hunter offers neither legal advice nor legal counsel.

2.    I agree that I will not, at any time (before, during or after mediation of this issue), call the mediator as an adversarial witness in any legal or administrative proceeding concerning this issue.

3.    I agree that I will not subpoena or call for the production of any records, notes, or work product of the mediator, including Minutes from this discussion, in any legal or administrative proceeding that arises before, during or after the mediation of this issue. However, any agreement resulting from the mediation that is intended by the parties to have legal effect and to be legally enforceable may be subpoenaed, called for, or produced in any proceedings to which it is relevant, unless the agreement specifically provides otherwise.

[31]            Any party to the mediated discussions who signed this document or agreed to be bound by it may have undertaken a certain duty of confidentiality regarding the mediation process. However, I do not read this document as precluding a party from disclosing the subject matter of the discussions or the objectives sought to be achieved, which is the subject of the evidence of Chief Akiwenzie that the appellants now seek to challenge.

[32]            I am not satisfied that the affidavits sought to be adduced on appeal establish that any privilege relating to the mediated discussions has been breached. For that reason, I conclude that the affidavits, in so far as they relate to that issue, do not meet the second and third test from Brunckhorst. For the same reason, it is not evidence that should be admitted on the basis that the interests of justice require it.

[33]            The second fact intended to be proved in the Jeerakathil affidavit is that the Province of Ontario does not recognize that the appellants have constitutionally protected rights in relation to the Bruce Peninsula fishery. As evidence of that factual allegation, the appellants wish to adduce two documents that apparently were accepted as evidence in unrelated proceedings before Mr. Justice Fairgrieve in R. v. Marshall Nadjiwon on April 19, 2001, after the conclusion of the trial of this matter.

[34]            The appellants say that at trial, the Crown submitted that Ontario has an obligation to recognize that the appellants have constitutionally protected rights in relation to the Bruce Peninsula fishery. They say that this submission was accepted by the trial judge and formed part of the basis of her decision. No evidence was adduced at trial as to the position taken by Ontario on that point. The appellants say that it was only after the trial that counsel for the appellants became aware that Ontario does not appear to accept that it has such an obligation.

[35]            I take it that the appellants wish to argue that their exclusion from the Aboriginal Fisheries Strategy is an affront to their human dignity that is not mitigated by the mediated discussions because the discussions are not predicated on the recognition of the appellants' constitutionally protected right to a commercial fishery in their ancestral waters.

[36]            The appellants, having known before trial of the existence of the mediated discussions, ought to have considered whether and to what extent the discussions might support or weaken the appellants' Charter arguments. If they had explored that question at all, it would or should have occurred to them to enquire of the Ontario government whether it had taken a policy stance that was inconsistent with the existence of the fishing rights asserted by the appellants. There is nothing in the material to suggest that the appellants could not have obtained evidence on that point if they had asked for it, despite the fact that Ontario is not a party to these proceedings. In my view, counsel for the appellants could, with due diligence, have obtained and adduced evidence on this point, even if the existence of the actual documents they now wish to introduce did not come to their attention until after the trial.

[37]            I turn now to the relevance and reliability of the evidence itself. One of the documents is said to be a hard copy of an e-mail dated March 16, 1999 from someone at the Ontario Ministry of Natural Resources to an unnamed person within the same department. Taken at face value, it indicates that the writer was of the view that it would be open to Ontario to argue in the 2001 Nadjiwon case that there is no constitutionally protected Aboriginal right to commercial fishery.

[38]            It seems to me that the question of the existence of such a right is one of law. Nevertheless, one may speculate that if Ontario had adopted a public policy stance that does not recognize such a right, there might be some effect on the mediated discussions that would not favour the appellants' position. But even so, the fact that the writer of this e-mail believed that such a position ought to be taken in the Nadjiwon litigation does not establish that this was Ontario's public policy position on the issue. If Ontario's stance on the question of the appellants' fishing rights is relevant in this case (and I am far from persuaded that it is), it is not capable of being proved by the e-mail.

[39]            The other document is undated, unsigned, of unknown authorship, and is marked "draft". It appears to represent a history of the Ontario Aboriginal Communal Fishing Licences Regulations. It is said to have originated with the Ontario Ministry of Human Resources. One of the statements in the document is that "although Ontario has come to disagree with the finding of a commercial fishing right in the 1993 Ontario Provincial Court decision in R. v. Jones and Nadjiwon the decision initially appeared to provide a good basis for negotiation." In my view, this document is no more reliable than the e-mail as evidence of Ontario's stance on the question of the appellants' aboriginal fishing rights.

[40]            I conclude that this evidence is not sufficiently relevant or reliable to justify its introduction on appeal. For the same reason, I am unable to conclude that the interests of justice require it to be introduced.

[41]            For these reasons, the motion to introduce evidence on appeal will be dismissed. I recognize that the appellants may consider it futile to amend the notice of appeal if they cannot introduce this evidence on appeal. Therefore, I will set a deadline for the filing of the notice of appeal. The order will provide that if that deadline is not met, the appeal will proceed on the basis of the original notice of appeal.

"K. Sharlow"

J.A.