Date: 19991124
Docket: T-1876-99
OTTAWA, Ontario, this 24th day of November, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
KEN BARLOW AND THE UNION OF
NEW BRUNSWICK INDIANS
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE ATTORNEY GENERAL OF CANADA AND
THE MINISTER OF FISHERIES AND OCEANS
Respondents
UPON motion by the applicants for:
| 1. An Interlocutory Injunction Order enjoining and restraining, until trial of this matter, the Respondent Minister of Fisheries and Oceans, his officers and representatives, and the officers and representatives of all other departments and agencies of the Government of Canada, from breaching the Applicant Ken Barlow's treaty and constitutional rights to fish lobster and to trade the produce of that fishing; |
| 2. A Writ of Mandamus directing the Respondent Minister of Fisheries and Oceans, his officers and representatives, to return to the Applicant Ken Barlow forthwith all lobster traps seized from him on October 22, 1999; |
UPON hearing counsel for the parties in Fredericton, New Brunswick on November 18, 1999, when counsel for the applicants specified that the motion was not concerned with declaratory relief, which had been set out in the written notice of motion, since that was the prime relief sought in the main application before the Court, dated October 27, 1999;
UPON the Court reserving judgment at the conclusion of the hearing, and upon consideration of submissions then made;
O R D E R
IT IS ORDERED THAT the application for interlocutory relief is dismissed.
(signed) W. Andrew MacKay
JUDGE
Date: 19991124
Docket: T-1876-99
OTTAWA, Ontario, this 24th day of November, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
KEN BARLOW AND THE UNION OF
NEW BRUNSWICK INDIANS
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE ATTORNEY GENERAL OF CANADA AND
THE MINISTER OF FISHERIES AND OCEANS
Respondents
UPON hearing counsel for the parties in Fredericton on November 18, 1999 in relation to the application by the applicants for an interlocutory order in this matter, and the parties then agreeing that a hearing now be set on the merits of this application for declaratory relief, for an injunction and for mandamus, on an expedited basis;
O R D E R
IT IS ORDERED THAT:
| 1. Hearing of this matter is set down for April 11, 2000, in Fredericton, New Brunswick, commencing at 10:00 a.m. at the Federal Court, for one day. If more than one day is anticipated to be required by counsel for the hearing, they shall advise the Court on or before March 31, 2000 and the hearing will then commence at 2:00 p.m. on April 20 and continue on the following day. |
| 2. Any further affidavits on behalf of the applicants shall be served and filed on or before November 30, 1999. |
| 3. Any further affidavits on behalf of the respondents shall be served and filed on or before January 17, 2000. |
| 4. Cross-examinations on affidavits shall be completed by both parties on or before February 7, 2000. |
| 5. The applicants' record shall be served and filed on or before February 28, 2000. |
| 6. The respondents' record shall be served and filed on or before March 30, 2000. |
(signed) W. Andrew MacKay
JUDGE
Date: 19991124
Docket: T-1876-99
BETWEEN:
KEN BARLOW AND THE UNION OF
NEW BRUNSWICK INDIANS
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE ATTORNEY GENERAL OF CANADA AND
THE MINISTER OF FISHERIES AND OCEANS
Respondents
REASONS FOR ORDERS
MacKAY J.
[1] These are Reasons for two Orders, the first dismissing an application by the applicants for an interlocutory injunction and other relief pending hearing of their application for declaratory and for other relief, and the second, setting a date and a schedule for filing documents for hearing the latter application on its merits.
[2] By notice of application dated October 27, 1999 the applicants seek a declaration that the respondents breached Mr. Barlow's treaty rights under the 1760 Treaty of Peace and Friendship with the Mi'kmaq people, a treaty recently interpreted by the Supreme Court of Canada in R. v. Marshall (Court file no. 26014, dated September 17, 1999, see [1999] S.C.J. No. 55 (QL)). That application also seeks a writ of mandamus directing the return of lobster traps allegedly seized from Mr. Barlow on October 22, 1999, and an interlocutory injunction, until trial of the matter, precluding the respondents from breaching Mr. Barlow's treaty and constitutional rights to fish lobster and to trade the produce of that fishing.
[3] By separate notice of motion dated November 10, 1999, the applicants specifically seek an interlocutory injunction order enjoining and restraining until trial of this matter the respondents or their representatives from breaching Mr. Barlow's treaty and constitutional rights to fish lobster and to trade the produce of that fishing, a writ of mandamus directing return of lobster traps seized from him and declaratory relief. When this interlocutory application was heard, counsel for the applicants made clear that their interest at this stage was to obtain an injunction pending hearing of the main application of the applicants, and in an order of mandamus directing return forthwith of Mr. Barlow's lobster traps. It was acknowledged that declaratory relief depends upon the outcome of the hearing of the main application.
[4] The interlocutory application was heard on November 18, 1999 in Fredericton, N.B. on an urgent basis. On the previous day the Supreme Court of Canada released its decision in R. v. Marshall (Court file no. 26014, dated November 17, 1999, see [1999] S.C.J. No. 66 (QL)), explaining, in some detail, its reasons for dismissing an application for a re-hearing, to have the Court address the regulatory authority of the Government of Canada over east coast fisheries, and related relief, made by an intervenor in earlier proceedings which led to the Court's decision in R. v. Marshall, rendered September 17, 1999. For ease of reference herein, I refer to the latter decision as "Marshall No. 1", and the decision and reasons of November 17, 1999, as "Marshall No. 2".
Background
[5] In support of the application for interlocutory relief the applicants rely on the affidavits of Ken Barlow dated October 27, 1999, and of Dr. Gerard Hare, dated November 15, 1999.
[6] The applicants are Mr. Ken Barlow, a Mi'kmaq Indian and a member of the Indian Island Indian Band residing at the Band's reserve in the Province of New Brunswick. He is a lobster fisherman, and supports himself and his children by lobster fishing. The other applicant in this matter is the Union of New Brunswick Indians, an association which represents Mi'kmaq and Maliseet individuals, communities and chiefs in New Brunswick. Mr. Barlow's affidavit avers that he is authorized by the union to swear his affidavit in support of an application for a declaration that his treaty and constitutional rights, and those of other Mi'kmaq people, to fish and earn a moderate livelihood by trading the produce of that fishing, have been breached by actions of representatives of the Department of Fisheries and Oceans ("DFO").
[7] In October 1999 the applicant, Mr. Barlow, was a "designated fisher - Indian Island First Nation" who had been assigned 250 numbered DFO lobster trap tags by the Indian Island First Nation in accord with an agreement signed April 30, 1999 between DFO and the Indian Island First Nation whereby communal fishing licenses were issued to the Band under the Aboriginal Communal Fishing Licenses Regulations, SOR/93-332. The licenses assigned to the Band authorized it to fish using 1250 lobster traps under a communal license for commercial fishing in Lobster Fishing Area (LFA) 25, located in the Northumberland Strait, for a fishery season which closed on October 11, 1999. The Band also held an aboriginal communal licence, to fish lobster in LFA 25 for food, social and ceremonial purposes. That licence authorized fishing in LFA 25 by varying numbers of traps through a season terminating October 31, 1999. The Indian Island Band had no licenses authorizing it to fish for lobster outside LFA 25.
[8] Following the decision in Marshall No. 1, another Indian Band commenced unregulated lobster fishing activity in Miramichi Bay, which is located in LFA 23 under DFO's regulations, an area adjacent to but north of LFA 25. That activity led to intense confrontations between native and non-native fishers with some physical violence and property damage. Efforts were made to resolve the matter and those are still ongoing. By October 21, 1999, DFO, believing that members of the Burnt Church Indian Band and other aboriginal fishers were setting more traps than permitted under an aboriginal communal license issued to the Burnt Church Band, took action to enforce its regulation of the fishery. On October 22, 1999 the Department seized some 586 lobster traps in Miramichi Bay. The traps were untagged, or tagged as belonging to fishers operating under aboriginal communal licenses that were not valid for fishing in the area, LFA 23.
[9] The applicant Barlow avers that on October 22, 1999 at Miramichi Bay DFO representatives pulled up and seized 60 lobster traps belonging to him which traps "were all tagged with tags indicating my ownership of the traps and my status as a Mi'kmaq Indian residing at Indian Island". He seeks recovery of those traps by mandamus urging that despite his request DFO representatives have not advised of any legal authority under which his traps were seized. He further says that he is "unaware of any regulations, Orders in Council, or any other statutory or regulatory instruments which purport to set trap limits on or otherwise limit the lobster fishing activities of the community or members of the Mi'kmaq Nation at Indian Island".
[10] In an affidavit supporting the position of the respondents in opposition to the application for an injunction, Mr. Edmond Martin, Director of Conservation and Protection, Gulf Fisheries Management Region of DFO, affirms that he is informed by fishery officers of DFO, whom he believes, that of the traps seized on October 22, 1999, none bore the tag numbers assigned to the applicant Ken Barlow under the Indian Island Band's communal commercial license for fishing in LFA 25. Further, he is advised that "of those traps with tags attached there is no other identification on them showing that they belong to the applicant Ken Barlow, and that there is no identification on the untagged traps which show that any of those traps belong to the applicant Ken Barlow".
[11] Mr. Martin's affidavit also avers that lobster fishing by the Indian Island Band under its communal commercial license is not expected to begin again before the spring of 2000. Further, he avers that severe cold weather conditions make further lobster fishing in LFA 23 and LFA 25 impractical at this time of year, and that it is unlikely any significant fishery can resume until the spring.
[12] As earlier noted, the matter was heard on the day following publication by the Supreme Court of its decision in Marshall No. 2. While I am uncertain whether counsel had a full opportunity to comprehend that decision before the hearing, I note that they declined an opportunity to file further submissions after the hearing.
The issues
[13] Both parties agree that the issues to be considered in an application for interlocutory injunctive relief of the nature here sought are those set by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. An interlocutory injunction is exceptional relief, to be awarded only where there is a serious issue for consideration by the Court which has yet to be determined, where it is shown that the applicant will suffer irreparable harm if interlocutory relief is not granted and the serious issue is subsequently determined in its favour, and where the balance of convenience favours the award of the relief sought. In weighing the balance of convenience, in a case involving constitutional validity or other statutory authority for public action, the public interest served by the statutory authority must be taken into consideration. All three aspects of the test must be met by the applicant if relief is to be granted.
Serious issue
[14] The applicants assert treaty rights which they say were recently confirmed by the Supreme Court of Canada in Marshall No. 1 by reason of the 1760 Treaty of Peace and Friendship between the Mi'kmaq people and the Crown. Those rights are said to be infringed, prima facie, by reason of the absolute discretion vested in the respondent Minister by the Fisheries Act, R.S.C. 1985, c. F-14, and Regulations which provide no directions to explain how his authority should be exercised in a manner that would respect the treaty rights, and further, those provisions, examined in Marshall No. 1, have not since been modified. Regulations which infringe treaty rights must be justified in accord with the test set out in R. v. Badger, [1996] 1 S.C.R. 771 and R. v. Sparrow, [1990] 1 S.C.R. 1075. As in Marshall No. 1 where no justification was offered in support of impugned regulations, so in this case respondents have failed to provide justification for their actions or for any regulatory regime under which those actions were taken.
[15] For the respondents it is urged that at this stage there are serious factual matters in dispute or outstanding which preclude a conclusion that a serious issue is raised. Thus, it is said that there is conflicting evidence, by Mr. Barlow that his traps, marked with tags indicating his ownership, were seized, and by Mr. Martin on behalf of DFO that none of the seized traps are marked with identification as belonging to Mr. Barlow, as he claimed his traps were. Further, the standing of the Union of New Brunswick Indians as an applicant for relief is not clear since no claim is made on its behalf that traps to which it had any right, or for which it had any right to represent owners, were seized. Finally, it is urged in light of Marshall No. 2, that the factual basis underlying the treaty rights claimed is not here set out. In this last connection the respondents point to paragraph 17 of the Supreme Court's decision in Marshall No. 2.
| In the event of another prosecution under the regulations, the Crown will (as it did in this case) have the onus of establishing the factual elements of the offence. The onus will then switch to the accused to demonstrate that he or she is a member of an aboriginal community in Canada with which one of the local treaties described in the September 17, 1999 majority judgment was made, and was engaged in the exercise of the community's collective right to hunt or fish in that community's traditional hunting and fishing rounds. The Court's majority judgment noted in para. 5 that no treaty was made by the British with the Mi'kmaq population as a whole: |
| ...the British signed a series of agreements with individual Mi'kmaq communities in 1760 and 1761 intending to have them consolidated into a comprehensive Mi'kmaq treaty that was never in fact brought into existence. The trial judge, Embree Prov. Ct. J., found that by the end of 1761 all of the Mi'kmaq villages in Nova Scotia had entered into separate but similar treaties. [Emphasis added.] |
| The British Governor in Halifax thus proceeded on the basis that local chiefs had no authority to promise peace and friendship on behalf of other local chiefs in other communities, or to secure treaty benefits on their behalf. The treaties were local and the reciprocal benefits were local. In the absence of a fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the local community with which the "separate but similar" treaty was made. Moreover, the treaty rights do not belong to the individual, but are exercised by authority of the local community to which the accused belongs, and their exercise is limited to the purpose of obtaining from the identified resources the wherewithal to trade for "necessaries". |
In view of this it is urged by the respondents that it is not yet established by facts sworn by the affidavit of Mr. Barlow that the Indian Island First Nation is one of the communities governed by one of the local treaties concluded in 1760 or that the fishing area where traps are said to have been seized was within that community's traditional fishing grounds. Moreover, the factual basis for Mr. Barlow's exercise of the treaty right of his community is said to be uncertain.
[16] I do not propose to resolve the question whether a serious issue is raised at this stage since, if the applicants are concerned about the factual basis for a serious issue raised by their application for declaratory and other relief, the facts now before the Court may be supplemented by additional affidavit evidence filed before hearing of the main application. The time for filing further affidavits under the Court's Rules has not yet expired.
[17] The issues sought to be raised by the application, concerning further definition of the regulatory authority of the respondents in relation to treaty rights, following the two Marshall decisions, is important. I note that in Marshall No. 2 the Court emphasized that its earlier decision did expressly state on a number of occasions that government had authority to regulate the treaty right. Insofar as the treaty right is established it may be regulated by regulations that are justified under the Badger test. That test requires justification, a step not pursued by the Crown in Marshall No. 1, but which may be expected to be set out with some care when the applicants' claim to declaratory relief is heard.
Irreparable harm
[18] On the evidence before me I am not satisfied that the applicants establish that they will suffer irreparable harm between now and the time when a decision on their application for declaratory relief may be made in their favour, if that should be the ultimate outcome. If they are not successful when the matter is heard they will of course suffer no harm, at law. If they should be successful the only claims before me in relation to irreparable harm that would occur pending that result are, as set out in their memorandum of argument:
| 23. In the instant case, it is submitted that depriving the Applicant Ken Barlow of the means by which he supports himself and his two children clearly demonstrates irreparable harm if he continues to be deprived of that means. Further the actions at issue constitute a breach of constitutionally protected treaty rights. Finally, the actions constitute a breach of the Crown's fiduciary obligations to the Applicant Ken Barlow and to the Mi'kmaq people and should not be permitted to continue. |
[19] The first sentence relates to the claim set out in the affidavit of Mr. Barlow:
| 10. THAT if an order is not granted requiring the DFO to return my traps and refrain from pulling them up I will not be able to earn a livelihood or support my children without some form of public assistance. |
In my opinion, this claim concerns a possible loss that is ordinarily measured by the law in damages. It does not constitute irreparable harm, despite any personal discomfort or loss of pride which might accompany the seeking of some form of public assistance, if that be required.
[20] The second aspect of the claim to irreparable harm is that the action taken by the Crown constitutes a breach of constitutionally-protected treaty rights. That, of course, is the basic serious issue that is sought to be raised by the applicants' application for declaratory relief. It is not a matter which at this stage has been determined or can be taken for granted. The same may be said of the third aspect of irreparable harm here claimed, that is that the actions complained of constitute a breach of the Crown's fiduciary obligations to Mr. Barlow and to the Mi'kmaq people. Again, that issue is one to be determined on the merits of the application now before the Court for declaratory relief. At least until that is determined the public interest in the discharge of the Crown's fiduciary obligations is a matter within the Crown's determination and responsibilities, not one for the Court to pre-determine prior to a hearing on the merits of the applicants' application.
The balance of convenience
[21] I make no determination about the balance of convenience at this stage since I am not satisfied that the applicants have established they will suffer irreparable harm over the next few months, pending determination of their application for declaratory relief.
Conclusion
[22] For the reasons set out, the application for an interlocutory injunction is dismissed.
[23] I include within the Order dismissing the application, the request for an Order in the nature of mandamus to return, at this stage, traps said to have been seized which were said to be marked with Mr. Barlow's tags. I am not persuaded at this stage that the facts as set out by affidavits support a conclusion that traps tagged with Mr. Barlow's tags are in the possession of the Crown. Even if that were clearly established, the issue of whether those traps were properly seized and held under justifiable regulations is outstanding, to be determined when the main application comes on for hearing.
[24] Nevertheless, at the hearing I did urge counsel for the Crown to consult with DFO about means, in cooperation with the applicant union and Mr. Barlow, to identify to whom traps seized on October 22, 1999 belong. Moreover, I invite the Crown to consider return of traps that are identifiable as belonging to those whom the applicant union may represent, or to Mr. Barlow, if traps were to be identified as his. Particularly since it is the Crown's affiant's view that weather conditions now preclude further fishing of significance for some months. Return of traps owned by Mi'kmaq fishers may be a manifestation of trust supportive of negotiations that may lead to appropriate regulation of the fishery, properly taking into account any treaty rights of the Mi'kmaq people.
[25] For the reasons set out, an Order goes dismissing the application for interlocutory relief, both in regard to an interlocutory injunction and to an Order in the nature of mandamus. Further, after consultation with counsel at the hearing, arrangements are made by separate order to set down the hearing of the applicants' request for declaratory and other relief, to be heard in April, 2000, and for a schedule for filing of documents in preparation for that hearing.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
November 24, 1999.