Date: 20000907
Docket: A-310-99
CORAM: SHARLOW J.A.
BETWEEN:
ANIMAL ALLIANCE OF CANADA, ANIMAL PROTECTION INSTITUTE,
CANADIAN ENVIRONMENTAL DEFENCE FUND, DENE NATION and
ZOOCHECK CANADA INC.
Appellants
(Applicants)
- and -
THE ATTORNEY GENERAL OF CANADA and
THE MINISTER OF THE ENVIRONMENT
Respondents
Heard at Toronto, Ontario, on Thursday, June 29, 2000
ORDER delivered at Ottawa, Ontario, on Thursday, September 7, 2000
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20000907
Docket: A-310-99
CORAM: SHARLOW J.A.
BETWEEN:
ANIMAL ALLIANCE OF CANADA, ANIMAL PROTECTION INSTITUTE,
CANADIAN ENVIRONMENTAL DEFENCE FUND, DENE NATION and
ZOOCHECK CANADA INC.
Appellants
(Applicants)
- and -
THE ATTORNEY GENERAL OF CANADA and
THE MINISTER OF THE ENVIRONMENT
Respondents
REASONS FOR ORDER
SHARLOW J.A.
The appellants have applied for leave to adduce evidence in this appeal. The evidence is an affidavit of Mr. Bill Erasmus, National Chief of the appellant Dene Nation, sworn on September 20, 1999. The appeal is from a decision of Gibson J. made orally on April 15, 1999, Animal Alliance of Canada v. Canada (Attorney General), [1999] 4 F.C. 72 (T.D.). He dismissed (except in one respect) the appellants' challenge to the validity of the Regulations Amending the Migratory Birds Regulations (P.C. 1999-526 dated March 25, 1999, registration SOR/99-147) (the "Amending Regulations"). The Amending Regulations were first published in Part I of the Canada Gazette on January 30, 1999.
The respondents oppose the motion. However, if the motion is successful, they seek in the alternative an order striking some parts of the affidavit of Mr. Erasmus and an order permitting them to cross-examine Mr. Erasmus and to file a reply affidavit. The appellants do not object to the cross-examination of Mr. Erasmus, but wish to have deadlines imposed and also wish to cross-examine the deponent of any reply affidavit.
The Amending Regulations extend the hunting season for certain snow geese and Ross geese. This extended season came into effect in 1999 for certain areas of Quebec and Manitoba. The stated reason for the regulation is to check what the government experts believed was an overabundance of snow geese. It was feared that an overabundant snow goose population could become injurious to the birds themselves, and the biological diversity of the arctic ecosystem.
The evidence sought to be adduced relates to claims asserted by the appellant Dene Nation. The name "Dene Nation" conveys the notion that it is an organization that represents all the Dene people. However, that is not the case. Mr. Erasmus says in his affidavit that Dene Nation is a society incorporated under the laws of the Northwest Territories, and that the members of Dene Nation are 30 communities in the Northwest Territories and one in Manitoba. I assume that each of those communities is made up of people who would identify themselves as Dene. However, not all Dene people reside in communities that are members of the society called Dene Nation. According to Mr. Erasmus' affidavit, Lac Brochet, Manitoba is a Dene community that is not a member of Dene Nation. It appears from his affidavit that there are also Dene communities in Alberta and Saskatchewan that are not members of Dene Nation.
Mr. Erasmus says that in March of 1998, Dene Nation first became aware of Canada's intention to take steps to reduce the snow goose population. Dene Nation made submissions in September and November of 1998 to various federal officials referring to the possibility of steps being taken in that regard, and asserting the right to be consulted because of the effect of the proposals on the Dene people. On February 12, 1999, after the proposed regulations were published in the Canada Gazette, Mr. Erasmus wrote a letter to the then Minister of Environment asserting, among other things, "that the Canadian Wildlife Service is in violation of treaty rights by advocating measures that directly impact on our communities without adequate and proper consultation with aboriginal people as required under judicial law."
In February of 1999, the appellant Animal Alliance of Canada advised Dene Nation of its intention to file the notice of motion that would commence these proceedings. Animal Alliance invited the participation of Dene Nation as an applicant. Animal Alliance proposed to seek an urgent hearing on the basis that a decision on the validity of the Amending Regulations was required before they were scheduled to come into force on April 15, 1999. The notice of motion was filed on March 4, 1999. Mr. Erasmus, on behalf of Dene Nation, agreed that Dene Nation would participate in the proceedings.
It appears to have been intended that Dene Nation would provide the evidence in support of the arguments outlined in the following excerpts from the notice of application:
| 8. The regulations are based on erroneous findings of fact made in a perverse or capricious manner or without any or proper regard to relevant material which ought to have been considered, in that [...] |
| (b) the Minister and the Governor in Council failed to consider or assess the direct and cumulative environmental, social and cultural impacts of authorizing and encouraging the killing of millions of these geese, including failing to document or assess the drastic impacts on the food supply as well as the cultural and social life of hundreds of Aboriginal communities and thousands of Aboriginal people in the Northwest Territories and Nunavut, as well as in many provinces; |
| [...] |
| 9. The procedures used by the Minister to formulate the regulations as well as their content ignore or contradict guidelines and policies promulgated by, relied on or required to be followed by the Minister, thereby contravening the administrative law principle of "legitimate expectation." In particular: |
| [...] |
| c. The Minister has failed to comply with the Treasury Board of Canada's "Federal Regulation Policy" (the "Policy") pursuant to the Financial Administration Act, in that, inter alia, the Minister: |
| [...] |
| ii. failed to conduct the "cost-benefit" analysis required by the Policy, taking into consideration such costs as, inter alia, the impact of the intended destruction of large numbers of Snow geese and Ross' geese, on Aboriginal communities [...]. |
| 10. The actions and intended actions of the Minister and the Governor in Council in formulating and making these regulations have violated and constitute a continuing fundamental deprivation of the constitutionally protected rights of Aboriginal peoples to be meaningfully consulted in respect of governmental actions, programmes and permitting activities related to wildlife resources in respect of which Aboriginal peoples have traditional, Treaty, and constitutionally protected interests. |
| 11. Further, these regulations are constitutionally inoperative insofar as the Minister and the Governor in Council have ignored or breached their fiduciary duty to Aboriginal peoples, which duty requires, inter alia, that the Minister and the Governor in Council obtain and objectively consider information as to the likely impacts that the regulations will have on Aboriginal persons, communities and the wildlife upon which they depend or have interests, prior to formulating and advocating such proposals, and avoid such actions where negative impacts are likely. |
As a practical matter, the affidavits in support of these arguments had to be prepared within two weeks. However, Dene Nation did not submit any affidavits in time for them to be considered by Gibson J.
It was suggested in argument that there is some controversy about the extent to which the areas populated by snow geese and Ross geese coincide with the areas in which the Dene Nation member communities reside or hunt. I do not propose to resolve that issue. For present purposes, I am prepared to assume, without deciding, that the portions of the notice of application quoted above are intended to assert rights that might be claimed by some Dene people in relation to the Amending Regulations, and that some of those people live in communities that are members of Dene Nation.
In the decision under appeal, Gibson J. referred to the rights sought to be asserted on behalf of the Dene people and said this at paragraphs 66 to 72 of the decision under appeal (footnotes omitted):
| [66] The Dene Nation was one of the Applicants before the Court and clearly had status to raise these issues. Regretfully, the Dene Nation filed no evidence whatsoever, despite the fact that the application for judicial review indicated that such evidence would be forthcoming. I give no weight whatsoever to exhibits to an affidavit filed on behalf of another of the Applicants that purport to be copies of letters from the Dene Nation to the Minister of the Environment and others indicating their concerns with respect to the proposals for the Amending Regulations and requesting consultations or more extensive consultations. |
| [67] There can be no doubt that the Amending Regulations impact on traditional and constitutionally protected interests of First Nations peoples and, perhaps, also on Treaty interests. The evidence before me demonstrates consultations as referred to earlier, albeit that those consultations may have been uneven in different regions of the country and with different affected peoples, including First Nations peoples. |
| [68] It was not in issue before me that snow geese are relied on as a food source, and perhaps for other purposes, by First Nations peoples. While it is clear that the objective of the spring hunt is to significantly or, perhaps substantially, reduce "overabundant populations", it is hard to conceive that the result is likely, at least in the short term, to negatively impact traditional, Treaty, and constitutionally protected interests of First Nations peoples. At the same time, the evidence before me does not clearly establish that these interests were directly addressed. |
| [69] In recent years, a number of judgments have dealt with the obligations of the Crown to First Nations peoples in traditional and Treaty situations. I will refer briefly to a few of them. |
| [70] In R. v. Sparrow, where fishery conservation measures in the Province of British Columbia were at issue, the Chief Justice and La Forest J., delivering judgment for the Court, wrote at page 1119: |
| We acknowledge the fact that the justificatory standard to be met may place a heavy burden on the Crown. However, government policy with respect to the British Columbia fishery, regardless of s. 35(1), already dictates that, in allocating the right to take fish, Indian food fishing is to be given priority over the interests of other user groups. The constitutional entitlement embodied in s. 35(1) requires the Crown to ensure that its regulations are in keeping with that allocation of priority. The objective of this requirement is not to undermine Parliament's ability and responsibility with respect to creating and administering overall conservation and management plans regarding the salmon fishery. The objective is rather to guarantee that those plans treat aboriginal peoples in a way ensuring that their rights are taken seriously. |
| Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry. These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. The aboriginal peoples, with their history of conservation-consciousness and inter-dependence with natural resources, would surely be expected, at the least, to be informed regarding the determination of an appropriate scheme for the regulation of the fisheries. |
| The substance of the last quoted sentence surely applies equally with respect to the determination of an appropriate scheme, or modification of the scheme, for preservation, including, where necessary, regulation, of migratory bird populations. |
| [71] In R. v. Badger, Mr. Justice Cory wrote at page 812: |
| There is no doubt that aboriginal and treaty rights differ in both origin and structure. Aboriginal rights flow from the customs and traditions of the native peoples. To paraphrase the words of Judson J. in Calder ..., they embody the right of native people to continue living as their forefathers lived. [Citation omitted.] |
| At page 813, he continued: |
| In addition, both aboriginal and treaty rights possess in common a unique, sui generis nature. ... In each case, the honour of the Crown is engaged through its relationship with the native people. |
[Citations omitted.]
| He continued later on the same page: |
| The wording of s. 35(1) of the Constitution Act, 1982 supports a common approach to infringements of aboriginal and treaty rights. |
| Finally at page 814, Mr. Justice Cory concluded on this subject: |
| In summary, it is clear that a statute or regulation which constitutes a prima facie infringement of aboriginal rights must be justified. |
| On the evidence before me, I simply cannot determine that the Amending Regulations constitute a prima facie infringement of aboriginal rights. |
| [72] In Halfway River First Nation v. British Columbia (Minister of Forests), a case involving conservation measures in the province of British Columbia, Mr. Justice Dorgan wrote at page 71: |
| The MOF [Ministry of Forests] submits that the duty to consult does not arise until the aboriginal group has established a prima facie infringement, citing Sparrow, where consultation is not considered until the second stage of the infringement test. In my view, this approach is inconsistent with the cases referred to and is inappropriate given the relationship between the Crown and Native people. |
| Based on the Jack, Noel and Delgamuukw cases, the Crown has an obligation to undertake reasonable consultation with a First Nation which may be affected by its decision. In order for the Crown to consult reasonably, it must fully inform itself of the practices and of the views of the Nation affected. In so doing, it must ensure that the group affected is provided with full information with respect to the proposed legislation or decision and its potential impact on Aboriginal rights. |
| There is some, though limited, evidence before me that the Respondents' fulfilled their obligation against this statement of the test. While it is unfortunate that the evidence provided by the Respondents in this regard was not more fulsome, in the absence of any evidence whatsoever on behalf of the Dene Nation, or indeed on behalf of any other First Nation, I am satisfied that there is simply no basis on which I could find against the Respondents by reasons of a failure on their part to fulfil their duties to the First Nation in developing and enacting the Amending Regulations. |
The provision on which the appellants rely to support their motion to adduce evidence in this appeal is 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. |
At the risk of oversimplifying, it seems to me that the facts sought to be proved by the affidavit of Mr. Erasmus are (1) that the Dene people rely on snow geese for food and other purposes, (2) that the Amending Regulations will adversely affect the Dene people, (3) that the Dene people have a constitutionally protected right to advance consultation in relation to the Amending Regulations, and (4) that before the Amending Regulations were enacted, there was no consultation that met the Crown's obligation to the Dene people.
The starting point for the application of Rule 351 is the decision of MacGuigan J.A. in Frank Brunckhorst Co. v. Gainers Inc. et al., [1993] F.C.J. No. 874 (C.A.)(QL). He said that the Court
| ... should be satisfied that the evidence (1) must not have been discoverable before the end of the hearing appealed from by reasonable diligence, (2) must be credible, and (3) must be practically conclusive on the appeal. |
I will deal with these three conditions in reverse order.
The third Brunckhorst condition is that the evidence sought to be adduced must be practically conclusive of the appeal. The facts sought to be proved by the evidence of Mr. Erasmus is the subject of significant dispute. In addition, counsel for the Crown argues that the evidence of Mr. Erasmus on that question is not conclusive because the appellants have misunderstood the case law relating to the consultation requirement. In these circumstances, it is impossible for me to conclude that the affidavit of Mr. Erasmus, standing alone, is practically conclusive of the issue of the sufficiency of the consultations undertaken before the Amending Regulations were enacted. However, that issue probably could be determined conclusively by reading his affidavit together with any reply affidavit the respondents might adduce and the transcripts of any cross-examinations that may be conducted. Taking into account all of the evidence sought to be adduced, I am prepared to assume that if the motion and cross-motions are granted, the third Brunckhorst condition will be met.
The second Brunckhorst condition is that the evidence sought to be adduced must be credible. This condition recognizes the inherent limitation of an appellate court in attempting to assess evidence with respect to disputed facts. That is a function that in the vast majority of cases is best left to a trial judge, who is the person in the best possible position to evaluate the credibility of witnesses. In the circumstances of this case, however, the evidence will be entirely in documentary form. If Dene Nation had prepared its material in time, Gibson J. would have had before him the affidavit of Mr. Erasmus, and perhaps an affidavit submitted in reply, together with transcripts of any cross-examination on both affidavits. Where the evidence takes that form, it may be that an appellate court is in the same position as the trial judge to reach factual conclusions.
The respondents take no issue with the general credibility of Mr. Erasmus and his decision to speak on behalf of the Dene people. However, counsel for the respondents argued that Mr. Erasmus is purporting to give evidence dealing with Dene cultural and oral traditions that, in a trial, typically would be adduced through a historian or other expert witness. I do not accept that Mr. Erasmus' lack of academic credentials is necessarily a reason to discredit his evidence relating to the significance of snow geese to the Dene people. I conclude that the second Brunckhorst condition is met.
The first Brunckhorst condition is whether the evidence could have been discovered by reasonable diligence before the hearing. The relevant facts undoubtedly were known for a considerable time before the notice of application was filed. However, it is argued for the appellants that the question is not simply whether or not the evidence existed or was known before the hearing of the judicial review application, but whether there are legitimate reasons that prevented the filing of the evidence at that time. They submit that the question to be asked is whether or not Mr. Erasmus tried hard enough to achieve the consensus he thought he needed. They argue that in the particular circumstances faced by Mr. Erasmus, I should conclude that the due diligence requirement was met.
The reason the affidavit of Mr. Erasmus was not prepared in time for the hearing was that it took too long to achieve the degree of consensus within the Dene Nation organization that Mr. Erasmus considered necessary to put the evidence forward in support of the judicial review application. I am unable to accept this as a reasonable excuse for failing to adduce relevant evidence at the hearing.
Dene Nation chose to become a party to the application, knowing the time constraints and knowing that if a broad consensus was required to continue, they would be unable to adduce their evidence in time for the hearing. There is no suggestion that Dene Nation considered withdrawing from the proceedings before it was heard, reserving the right to commence a new proceeding when their evidence was ready, as it could have done. Nor did Dene Nation consider seeking to adjourn the portion of the hearing dealing with the rights sought to be asserted on behalf of the Dene people, permitting the other issues to be decided first. There is no suggestion that Mr. Erasmus was the only possible source of the evidence now sought to be adduced. Taking all of these considerations into account, I conclude that the first of the Brunckhorst conditions is not met.
Considering only the three Brunckhorst conditions, I would be inclined to reject this application. However, in Glaxo Wellcome plc v. Minister of National Revenue (1998), 225 N.R. 28 (F.C.A.), Stone J. A. acknowledged that circumstances other than those listed in Brunckhorst might also be taken into account. In that case, he allowed the motion to adduce evidence on appeal even though the Brunckhorst conditions were not met, because he concluded that admitting the evidence at that stage would result in the most efficient use of judicial resources. If the evidence had not been admitted on appeal, the appellant might have been able to commence a new proceeding in reliance on the same evidence.
The existence of a residual discretion apart from the Brunckhorst conditions is also supported by the decision of Sopinka J. in Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) (1992), 192 N.R. 390, at paragraph 6:
| In the exercise of this discretion, evidence will generally be rejected if it could have been discovered by the exercise of reasonable diligence prior to the appeal, and further, it is not shown that the evidence is such that, if admitted, it will be practically conclusive. See Dormuth et. al. v. Untereiner et al., [1964] S.C.R. 122. In special circumstances the discretion can, however, be exercised to admit evidence that does not meet these criteria: see Brown v. Gentleman, [1971] S.C.R. 501. |
The Brown v. Gentleman case related to a bankruptcy and the evidence sought to be adduced in the Supreme Court of Canada consisted of documents that the plaintiff wished to present to answer a factual determination made in the appellate court below. The evidence should have been discovered or disclosed before trial by the respondent, who was the trustee in bankruptcy. In Amchem Products, the Supreme Court of Canada was considering the appeal of an order granting an interlocutory injunction restraining parties resident in British Columbia from suing the defendants in a foreign court. The evidence sought to be adduced in the Supreme Court of Canada consisted of part of the record in the proceedings in that foreign court.
I have been unable to identify any circumstances in this case that are analogous to those in Glaxo Wellcome, Brown v. Gentleman or Amchem Products. However, I have considered whether, despite of the failure of Dene Nation to act with due diligence at the outset, the interests of justice require a determination, in this appeal, of the issues relating to the rights sought to be asserted on behalf of the Dene people.
I might have been inclined to a positive conclusion on this question if I had been persuaded that, unless this evidence is adduced in this appeal, the Dene people would have no recourse to a judicial procedure that would enable the issues to be determined. In this regard, it is important to note that Gibson J. did not find that there was no merit to the claims, he found only that in the absence of any evidence adduced by Dene Nation, he had no basis for finding the Amending Regulations to be invalid because of a failure of advance consultation with the Dene people. That is why I asked for additional written submissions on the question of res judicata.
Having reviewed the written submissions, I conclude that insofar as Dene Nation as a corporate entity is concerned, it would be open to a court in future to hold that the issue of the sufficiency of advance consultation is res judicata: Canada v. Chevron Canada Resources Ltd. [1999] 1 F.C. 349 (F.C.A.); Thomas v. Trinidad and Tobago (Attorney General) (1990), 115 N.R. 313 (P.C.). In Henderson v. Henderson (1843), 3 Hare 100, Wigram V.C. said, at page 115:
| The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. |
However, such a result is not inevitable. Despite my conclusion in the context of this motion that Dene Nation has not exercised due diligence in bringing its evidence forward, a court in future might be persuaded that this is one of those special cases where a plea of res judicata should not preclude Dene Nation from raising the same issues in a new proceeding. On balance I consider it likely, but not certain, that Dene Nation will be barred by res judicata from raising these issues in a new proceeding.
More importantly, however, I am persuaded that the issues can be raised by another party. It was argued for Dene Nation that its 31 member communities are really parties to this proceeding, or at least privy to it, and are bound by the result as Dene Nation is, and thus would be equally precluded by the doctrine of res judicata from asserting the rights in issue in this case. Based on the material before me, I am unable to conclude, as a matter of law, that the corporation known as Dene Nation is so closely identified with its members that each member community would be precluded from asserting the rights in issue in this case. Apart from that, the record indicates that there are Dene communities that are not members of Dene Nation. A plea of res judicata would not affect the right of any such community, or for that matter the right of any Dene individual, to assert in another proceeding the rights in issue in this case.
Bearing all of the foregoing considerations in mind, I am not persuaded that the interests of justice require an order permitting the affidavit of Mr. Erasmus to be adduced in this appeal. For that reason, the motion of the appellants will be dismissed. The motion of the respondents, being conditional on the grant of the appellants' motion, will also be dismissed. Costs will be borne by the appellants.
Karen R. Sharlow
J.A.