2021 NBCA 4, 2021 NBCA 4

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 6-20-CA JACKIE VAUTOUR, ON HIS OWN BEHALF AND ON BEHALF OF THE METIS – ACADIAN MI’KMAQ FAMILIES IDENTIFIED IN

SCHEDULE “A” FROM TRADITIONAL INDIGENOUS KOUCHIBOUGUAC TERRITORY, (MAP AT

SCHEDULE “B”) AND STEPHEN AUGUSTINE, HEREDITARY MI’KMAQ CHIEF FOR THE SIGENIGTEOUK DISTRICT, ON HIS OWN BEHALF AND ON BEHALF OF THE TRADITIONAL MI’KMAQ PEOPLES OF THE SAID DISTRICT APPELLANTS JACKIE VAUTOUR, EN SON PROPRE NOM ET AU NOM DES FAMILLES MÉTISSES- ACADIENNES MI’KMAQ ÉNUMÉRÉES À L’ANNEXE A DU TERRITOIRE TRADITIONNEL AUTOCHTONE DE KOUCHIBOUGUAC (DONT LA CARTE FIGURE À L’ANNEXE B), ET STEPHEN AUGUSTINE, CHEF HÉRÉDITAIRE MI’KMAQ DU DISTRICT DE SIGENIGTEOUK, EN SON PROPRE NOM ET AU NOM DES PEUPLES MI’KMAQ TRADITIONNELS DE CE DISTRICT APPELANTS - and - - et - HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK AND THE ATTORNEY GENERAL OF CANADA RESPONDENTS SA MAJESTÉ LA REINE DU CHEF DE LA PROVINCE DU NOUVEAU-BRUNSWICK ET LE PROCUREUR GÉNÉRAL DU CANADA INTIMÉS Vautour et al. v.

Her Majesty the Queen in right of the Province of New Brunswick et al., 2021 NBCA 4 CORAM: The Honourable Chief Justice Richard The Honourable Justice Green The Honourable Justice LaVigne Vautour et autre c. Sa Majesté la Reine du chef de la Province du Nouveau-Brunswick et autre, 2021 NBCA 4 <0} CORAM : l’honorable juge en chef Richard l’honorable juge Green l’honorable juge LaVigne Appeal from two decisions of the Court of Queen’s Bench: January 9, 2020 February 12, 2020 Appel de deux décisions de la Cour du Banc de la Reine : le 9 janvier 2020 le 12 février 2020 History of Case: Historique de la cause :

Decisions under appeal: 2020 NBQB 7 2020 NBQB 38 Décisions frappées d’appel : 2020 NBBR 7 2020 NBBR 38 Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: October 29, 2020 Appel entendu : le 29 octobre 2020 Judgment rendered: January 28, 2021 Jugement rendu : le 28 janvier 2021 Reasons for judgment: The Honourable Justice LaVigne Concurred in by: The Honourable Chief Justice Richard The Honourable Justice Green Counsel at hearing: For the Appellant: Michael Swinwood For the Respondent Province of New Brunswick: Rachelle Standing For the Respondent Attorney General of Canada: M.

Kathleen McManus and Catherine M.G. McIntyre Motifs de jugement : l’honorable juge LaVigne Souscrivent aux motifs : l’honorable juge en chef Richard l’honorable juge Green Avocats à l’audience : Pour les appelants : Michael Swinwood Pour l’intimée, la Province du Nouveau-Brunswick : Rachelle Standing Pour l’intimé, le Procureur général du Canada : M. Kathleen McManus et Catherine M.G. McIntyre THE COURT The appeal is dismissed with costs of $5,000 payable to the Province of New Brunswick. Canada did not seek costs, and accordingly no costs are awarded to Canada.

LA COUR L’appel est rejeté avec dépens de 5 000 $ payables à la Province du Nouveau-Brunswick. Le Canada n’a pas sollicité les dépens; ainsi, aucuns dépens ne lui sont accordés. The judgment of the Court was delivered by

LAVIGNE, J.A. I. Introduction [ 1 ] This matter evokes the notion that a dispute once adjudged with finality should not be subject to relitigation. The law has developed several principles to prevent the abuse of the decision-making process; among them are the closely related common law doctrines of res judicata (comprising both issue estoppel and cause of action estoppel) and abuse of process.

These doctrines call for judicial balance among finality, fairness, efficiency and authority of judicial decisions. [ 2 ] In the late 1960s, or early 1970s, the lands of Jackie Vautour and others were expropriated to create the Kouchibouguac National Park (the “Park”). As a result, much ink has been spilled since then. In a series of legal proceedings involving Jackie Vautour, courts found the expropriations and the creation of the Park were lawful. A court also found Mr.

Vautour had failed to establish the presence of a historic Métis community in the area of the Park and, therefore, dismissed his claim to a constitutionally protected right to fish for food in the Park. In the current action, Aboriginal title to the Park is claimed. [ 3 ] This raises the question of whether the contested claim is an attempt to relitigate issues already settled. If answered in the affirmative, would putting an end to it at this early stage result in an injustice to the appellants? Justice sometimes demands fresh litigation: British Columbia (Workers’ Compensation Board) v.

Figliola , 2011 SCC 52 , [2011] 3 S.C.R. 422 , at para. 1 , per Abella J. In my view, this is not such a case. [ 4 ] Two decisions rendered by a judge of the Court of Queen’s Bench are being appealed. In the first decision, reported at 2020 NBQB 7 , [2020] N.B.J. No. 25 (QL) , the motion judge refused to recuse himself from the case, finding that the allegations of bias and apprehension of bias were without merit.

In the second decision, reported at 2020 NBQB 38 , the motion judge struck out the claims with respect to Jackie Vautour and those he purports to represent, having determined it was plain and obvious that they failed to disclose a reasonable cause of action, as the claims were barred by issue estoppel and abuse of process by relitigation. He granted judgment dismissing the claims. [ 5 ] For the reasons elaborated below, I would dismiss the appeal of both the recusal decision and the decision striking the claims. II. The Current Action [ 6 ] The current action was commenced in 2017.

The plaintiffs identify as “Jackie Vautour, on his own behalf and on behalf of the Métis – Acadian Mi’kmaq families identified in

Schedule ‘A’ from traditional Indigenous Kouchibouguac Territory, (Map at

Schedule ‘B’) and Stephen Augustine, Hereditary Mi’kmaq Chief for the Sigenigteouk District, on his own behalf and on behalf of the traditional Mi’kmaq Peoples of the said district.” The defendants are Her Majesty the Queen in Right of The Province of New Brunswick (“New Brunswick”) and The Attorney General of Canada (“Canada”). [ 7 ] The plaintiffs seek the following relief, among other remedies:

a) A declaration that the Métis-Acadian Mi’kmaq and the traditional Mi’kmaq of the Sigenigteouk district have existing indigenous title to Kouchibouguac National Park;

b) A declaration that indigenous title lands in Kouchibouguac National park are not Crown lands as defined in the National Parks Act and that this legislation does not override the indigenous title of the Métis-Acadian and Mi’kmaq peoples;

c) A declaration that the Métis-Acadian families and the Mi’kmaq families of the Sigenigteouk district have existing indigenous rights to carrying on traditional hunting and fishing activities within the territory;

[…]

e) Damages from Canada and the Province for any unjustifiable infringement of Métis-Acadian and Mi’kmaq indigenous title;

f) Damages from Canada and the Province for any unjustifiable infringement of Métis-Acadian and Mi’kmaq indigenous rights;

g) Damages from Canada and the Province for the unjustifiable and illegal removal of the families identified at

Schedule “A” in order tocreate a National Park[.] [8] Each defendant filed a Statement of Defence wherein it pleaded the doctrines of res judicata(issue estoppel) and abuse of process with respect to Jackie Vautour and those he purports to represent. For simplicity, I will referthroughout to Jackie Vautour and those he purports to represent as the “Vautour appellants” and to Stephen Augustine and those hepurports to represent as the “Augustine appellants.” [9] In 2019, New Brunswick and Canada each filed a Notice of Motion setting out a question oflaw to be determined pursuant to Rule 23.01(1)(

a) of the Rules of Court, namely whether all claims found in the Amended Statement ofClaim with respect to the Vautour appellants (the “Claim”) were barred by the doctrines of res judicata (issue estoppel) and/or abuse ofprocess. They also sought an order striking the Claim for failure to disclose a reasonable cause of action, pursuant to Rule 23.01(1)(b),and asked that judgment be granted under Rules 37.10 and 22.04(5). [10] The motions did not concern the claims pertaining to the Augustine appellants.

New Brunswickand Canada agreed these claims should proceed. [11] The crux of the grounds for both motions is captured by Canada in its Notice of Motion: 1. […] The absence of a historic rights-bearing Métis community in New Brunswick generally, and in Kouchibouguac National Park,specifically, is a matter of settled law (Canada v. Vautour, 2010 NBPC 39; aff’d 2015 NBQB 94; leave to appeal refused, 2017 NBCA21; leave to appeal to SCC refused 37681 (February 8, 2018)). 2.

It is settled law that the expropriation of the lands by the Province of New Brunswick and the creation of Kouchibouguac NationalPark by the Crown was lawful (Canada (Attorney General) v. Vautour, (1980), (NB KB), 26 N.B.R. (2d) 698; aff’d(1981), (NB CA), 28 N.B.R. (2d) 434; leave to appeal to SCC refused, 32 NR 448 (note); Vautour v.

NB, (NB CA), 62 N.B.R. (2d) 142 leave to appeal to SCC refused, (NB LEB), 167 A.P.R. 80, 65 N.B.R. (2d) 180n). [12] The defendants submitted that, pursuant to this settled law, the Claim failed to disclose areasonable cause of action. [13] No evidence was filed prior to, nor submitted at, the hearing of the companion motions, whichwas held on September 25, 2019. [14] After this hearing, but before the decision was rendered, the appellants filed a motion seeking therecusal of the motion judge, alleging he had shown personal bias against them, based chiefly on comments he had made during thehearing.

This motion was heard on December 18, 2019. In a decision dated January 9, 2020, the motion judge found the appellants’allegations did not give rise to bias nor to a reasonable apprehension of bias; consequently, he dismissed the motion. [15] On February 12, 2020, the motion judge rendered his decision regarding the companion motions.He found the Vautour appellants’ “claim to Indigenous status rests upon the existence of a distinctive historic Métis community in the

Kouchibouguac National Park which is inexistent” (para. 61). He determined the doctrines of abuse of process and issue estoppel barredthe Claim, and, as requested, he struck out the Claim for failing to disclose a reasonable cause of action and granted judgment. [16] The appellants addressed both decisions in a single Notice of Appeal; therefore, these reasonsdeal with both decisions. III. Prior Proceedings Concerning Mr. Vautour [17] In support of their argument that the Claim relitigates issues already settled, the respondents pointto the following court proceedings. A. The civil proceedings

(1) Action commenced in 1979 by the Attorney General of Canada against Mr. Vautour and othersfor trespass in the Park [18] In the current action, the Amended Statement of Claim alleges that, between 1969 and 1971, NewBrunswick expropriated the lands of 280 Métis families of Acadian and Mi’kmaq ancestry and transferred these lands to Canada for thecreation of the Park. Mr. Vautour was among those whose lands were expropriated. [19] In 1979, the Attorney General of Canada commenced an action against Mr. Vautour and othersfor trespass in the Park.

The defendants denied the Crown was the owner of the Park and pleaded possession. This put in issue thepropriety of the expropriation proceedings upon which the Crown’s title was based. Stratton J., as he then was, declared the Crown wasthe owner of the Park and ordered Mr. Vautour and the other defendants to vacate the property: Attorney General of Canada v. Vautouret al. (1979), (NB KB), 26 N.B.R. (2d) 698, [1979] N.B.J. No. 189 (QL). The subsequent appeal was dismissed:Attorney General of Canada v. Vautour et al. (1980), (NB CA), 28 N.B.R. (2d) 434, [1979] N.B.J. No. 317 (QL)(C.A.). G.

Richard J.A., as he then was, writing for the Court, concluded: “Unequivocally, all [the defendants] are trespassers” (para. 5).Leave to appeal to the Supreme Court was denied: Comeau et al. v. Attorney General of Canada (1981), 32 N.B.R. (2d) 89 n, 32 N.R.448 n.

(2) Two actions commenced in 1980 by Mr. Vautour: one against the Province of New Brunswickand the other against the Attorney General of New Brunswick [20] The action against the Province of New Brunswick claimed damages for an alleged trespass andeviction from certain lands situated in the Park. The Province applied for an order striking out the plaintiff’s action.

It argued the issue oftrespass to lands and eviction, raised by the plaintiff, went to the validity of the expropriation of the lands for the creation of the Park,which issue had already been adjudicated by the courts in the 1979 action and was therefore res judicata. It also claimed the Statementof Claim disclosed no reasonable cause of action and was frivolous and vexatious, and the action was an abuse of process.

Dickson J.dismissed the action, finding, “the matters in issue concerning the land ha[d] already been decided” and the claim was “manifestlyvexatious and plainly an abuse of the process of the court”: Vautour v. Province of New Brunswick (1981), (NB KB),32 N.B.R. (2d) 509, [1980] N.B.J. No. 283 (QL), at para. 36. Mr. Vautour appealed the decision. [21] The Court dismissed the appeal: Vautour v. New Brunswick, Province of (1985), (NB CA), 62 N.B.R. (2d) 142, [1985] N.B.J. No. 124 (QL) (C.A.).

Angers J.A., writing for the Court, found the formal judgmentin the 1979 action determined the Crown was the owner of the property in question and, since ownership of that property was an issueraised in the pleadings of the new action, that question was res judicata, and Mr. Vautour was estopped from litigating it again. Leave toappeal to the Supreme Court was denied: Vautour v. Province of New Brunswick (1986), 65 N.B.R. (2d) 180 n, 62 N.R. 399 n. [22] In addition to his action against the Province of New Brunswick, Mr. Vautour instituted, at the

same time, an action against the Attorney General of New Brunswick. The Attorney General also applied for an order striking out theaction against it. The relief claimed by Mr. Vautour in this action included declarations as to the invalidity of the National Parks Act,R.S.C. 1970, c. N-13, and of the “purported” expropriation of his lands in 1970 for the purpose of the establishment of the Park. At thetime, Mr. Vautour alleged he had “documentary title in fee simple” to the expropriated lands. Dickson J. noted that, in the 1979 action,Mr.

Vautour, although challenging the Crown’s title, chose not to assert in his defence any allegation of title in himself, nor did he raisethe constitutional validity of the National Parks Act. This action was also dismissed. Dickson J. found the issues had already beenanswered in the 1979 action, the claims were “manifestly vexatious and plainly an abuse of the process of the court and the action shouldat [that] early stage be struck down”: Vautour v. Attorney-General of New Brunswick (1980), (NB KB), 31 N.B.R.(2d) 602, [1980] N.B.J. No. 222 (QL), at para. 32. Mr. Vautour appealed. [23] The appeal was dismissed.

Angers J.A., for the Court, disposed of the res judicata ground for thesame reasons as those stated in his decision of the same date dealing with the Province of New Brunswick. He added Mr. Vautour was“estopped from raising either the issue of his title or of the constitutional validity of the National Parks Act because he [had] failed totake advantage of his opportunity to do so in the previous proceeding where the same issues could have been decisive of the result”:Vautour v. Attorney General of New Brunswick (1985), (NB CA), 62 N.B.R. (2d) 162, [1985] N.B.J. No. 122 (QL),at para. 10 (C.A.).

Leave to appeal to the Supreme Court was denied: Vautour v. Attorney General of New Brunswick (1986), 65 N.B.R.(2d) 180 n, 62 N.R. 399 n. B. The 2010 criminal proceedings against Mr. Vautour for fishing in thePark [24] Accused of unauthorized fishing in the Park, Mr.

Vautour and his son Roy admitted to the actusreus of the offences but claimed a constitutionally protected Aboriginal right under s. 35 of the Constitution Act, 1982 as Métis to fish forfood in the area of the Park. [25] The trial took place in the course of several sittings over four years, with lay witnesses and expertwitnesses called by the Crown and by the defendants. The Vautours were represented by counsel.

The motion judge, in the case nowunder appeal, observed that Chief Stephen Augustine (an appellant in the current action), “specializing in Eastern Maritime ethnology”,had “testified for two days” before the trial judge and “filed an expert report in which he acknowledged ‘there is no defined Métiscommunity as described in the Powley case’” in the area of the Park (decision striking the Claim, at para. 14). [26] In his reasons, reported at R. v. Vautour, 2010 NBPC 39, [2010] N.B.J.

No. 392 (QL) (“R. v.Vautour (2010)”), Arseneault A.C.J., of the Provincial Court, as he then was, observed the case was not just about whether the Vautourswere individuals of mixed Acadian and Mi’kmaq heritage; the key issue, he noted, was whether a historical distinctive Métis communityhad emerged in Nova Scotia and New Brunswick at the time of effective control by the Europeans and, if so, whether it had continuedover time with rights that might be exercised in the area of the Park (para. 5).

He stated: “[…] aboriginal rights that are entrenched in ourConstitution are communal in nature and must be rooted in the existence of a historical and present community (in this case Métis) andmay only be exercised by reason of an ancestrally based membership in the present community” (para. 4). [27] Associate Chief Judge Arseneault made findings of fact, applied the test set out by the SupremeCourt in R v.

Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, and declared, “The evidentiary record overwhelmingly compels me toconclude to the absence of any historic Métis community in the area of Kouchibouguac National park at the relevant time” (para. 79).Accordingly, he held the Vautours had failed to satisfy the Powley test, dismissed their claim to a constitutionally protected right to fishfor food in the area of the Park and convicted them on all charges. [28] The Vautours appealed the decision to the New Brunswick Court of Queen’s Bench, whereDeWare J., now C.J.Q.B., upheld the trial judge’s decision, finding “the appellants have failed to establish their entitlement to the benefitof

section 35 of the Constitution Act, 1982 as Métis”: Vautour v. Her Majesty the Queen, 2015 NBQB 94, [2015] N.B.J. No. 111 (QL), atpara. 40. The Court refused leave to appeal: Vautour et al. v. R., 2017 NBCA 21, [2017] N.B.J. No. 96 (QL). Richard J.A., now C.J.N.B.,writing for the Court, stated: […] In Powley, the Supreme Court recognized that “[a]boriginal rights are communal rights: They must be grounded in the existence of ahistoric and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the presentcommunity” (para. 24).

This is a critical component of the Powley test. Since the trial judge found on the evidence there was neither ahistoric rights-bearing community nor a contemporary rights-bearing community, it follows there can be no valid claim of Métis rightsunder s. 35 of the Constitution Act, 1982. [para. 8]

[29] The Supreme Court dismissed an application for leave to appeal: John (Jackie) Vautour, et al. v.Her Majesty the Queen, [2017] S.C.C.A. No. 282. The application for leave was filed in August 2017, and the current action wascommenced in September 2017. IV.

Grounds of Appeal [30] In their Notice of Appeal, the appellants set out the following grounds: • Concerning the recusal decision, it is alleged the motion judge: 1. came to conclusions that were not supported by the evidence and were arbitrary and imprecise; 2. did not properly apply the test for recusal as set out in Committee for Justice and Liberty et al. v. National Energy Board et al., (CSC), [1978] 1 S.C.R. 369, and Yukon Francophone School Board Education, Area #23 v.

Yukon (Attorney General), 2015SCC 25, [2015] 2 S.C.R. 282; and 3. made palpable and overriding errors in his factual and legal conclusions. • Concerning the decision striking the Claim, it is alleged the motion judge: 1. did not make conclusions based on the evidence, and his conclusions were arbitrary and imprecise; 2. did not properly apply the legal tests set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and LeBlanc v. Boisvert, 2005NBCA 115, 294 N.B.R. (2d) 325; and 3. made palpable and overriding errors in his factual and legal conclusions. V.

Standards of Review [31] The Housen standards of review apply: correctness for questions of law and those of mixed factand law where there is an extricable legal principle at issue, and palpable and overriding error for questions of fact: Housen v. Nikolaisen,2002 SCC 33, [2002] 2 S.C.R. 235. [32] Correctness is the standard of review for a motion to strike out pleadings (see Jones v. TheAttorney General of Canada as representative of the Royal Canadian Mounted Police et al., 2018 NBCA 86, [2018] N.B.J. No. 328(QL), at para. 13) as well as for a motion alleging bias (see J.D. Irving, Limited v.

North Shore Forest Products Marketing Board etal., 2014 NBCA 42, [2014] N.B.J. No. 162 (QL), at para. 25, per Robertson J.A.). Therefore, correctness is the standard of review thatapplies to the recusal decision and to the decision striking the Claim. [33] However, when considering the doctrines of abuse of process and issue estoppel, a judge

exercises his or her discretion to determine if the application of these doctrines would create an unjust or unfair result. Such discretionarydecisions are generally owed deference. Accordingly, an appellate court should intervene only if the decision “is founded upon an errorof law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence [...] orif it is unreasonable, in the sense that nothing in the record can justify it” (see Forsythe v.

Furlotte, 2016 NBCA 6, 447 N.B.R. (2d) 48, atpara. 17, Richard J.A., as he then was, quoting Drapeau C.J.N.B., as he then was, in The Beaverbrook Canadian Foundation v. TheBeaverbrook Art Gallery, 2006 NBCA 75, 302 N.B.R. (2d) 161, at para. 4; see also Penner v. Niagara (Regional Police Services Board),2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27). VI.

The Recusal Decision [34] The appellants requested that the judge assigned to this case recuse himself, submitting in theirNotice of Motion that he had “shown personal bias against them based on comments [he] made” and “that institutional bias ha[d] beenshown against them as the Court of Queen’s Bench has a sworn duty to uphold Crown law to the detriment of the laws, traditions andcustoms of Indigenous Peoples.” [35] It is important to mention at the outset that the motion judge dismissed the assertion ofinstitutional bias, noting this was “a bald allegation” (para. 35) for which “no evidence was tendered” (para. 36).

This part of the recusaldecision was not specifically challenged nor argued by the appellants in their written or oral submissions. No more needs to be said otherthan I agree with the motion judge that this allegation was devoid of merit. [36] Allegations of this nature are serious and should not be made lightly, as they call into questionnot simply the personal integrity of the judge, but the integrity of the entire administration of justice: R. v. S. (R.D.), (CSC), [1997] 3 S.C.R. 484, [1997] S.C.J.

No. 84 (QL), at para. 113. [37] I will move on to the allegation of personal bias. [38] The grounds of appeal on this issue may be consolidated into a single question. Did the trialjudge’s comments give rise to bias or a reasonable apprehension of bias? I would answer in the negative. A. The exchange at the basis of the recusal motion [39] When it is alleged a decision-maker is not impartial, the test to be applied is whether theparticular conduct gives rise to bias or a reasonable apprehension of bias.

The following exchange, which occurred between the Courtand counsel for the appellants during the hearing of the companion motions, is the basis of the appellant’s allegations: Mr. SWINWOOD: [...] And for you, Mr. Justice […], to make a decision based on what you see in the pleadings, would be rather unfairin the absence of an evidentiary record. How could one say that – that all is defeated by a case that’s never been litigated? By principlesthat have not been adjudicated upon? And I say to you – THE COURT: But it will be, eventually, with what will be likely – MR.

SWINWOOD: What – THE COURT: – for Indigenous People. And Aboriginals’ rights will be discussed in that context. MR. SWINWOOD: Well, that’s right.

THE COURT: Mr. Vautour doesn’t sound like an Aboriginal. MR. SWINWOOD: Doesn’t sound like an Aboriginal? THE COURT: Like, it doesn’t sound like he has any rights and that was determined in the – he – he – is not. That there’s no such community in New Brunswick. That’s – MR. SWINWOOD: But that’s not the – that’s not the case that’s before the Court. THE COURT: Okay. MR. SWINWOOD: The – but – what – it isn’t the case, Mr. Justice […]. That is not the case before the Court. The case that’s before the Court is what I read to you in paragraph 6. THE COURT: All right. MR.

SWINWOOD: Well, it seems like you’ve made up your mind on that issue. The – THE COURT: I will write my decision in the future, sir. I haven’t made up my mind on anything. MR. SWINWOOD: Okay. Well, it just seemed that way. Well, I have to say to you, Mr. Justice […], that there’s a distinction – a big distinction – between what was decided in Canada versus Vautour and what this case is – is presented as . This case is presented as a combination. A combination of the common law and the laws, traditions and customs of the Native People.

What Tsilhqot’in says on the laws, traditions and customs of the Native People has not been explored. There – There is – There is no case that has explored that proposition that’s set out in paragraph 6 of the Statement of Claim. Paragraph 6 stands in contradistinction to Canada versus Vautour . Do you appreciate, Mr. Justice […], that Tsilhqot’in was decided in 2014? Tsilhqot’in wasn’t available in 2010. 2014 is the first time that an Indigenous title is found. The very first time. That’s what makes it distinctive. Thank you, those are my submissions. THE COURT: Thank you. […] B.

The test for finding bias [ 40 ] There is a subjective and an objective component to the bias test. A judge should recuse himself or herself if: (1) the judge subjectively concludes he or she will not be able to impartially adjudicate the matter; or (2) the circumstances raise a reasonable apprehension of bias. [ 41 ] The test for a reasonable apprehension of bias has been broadly accepted as that articulated by de Grandpré J., dissenting, in Committee for Justice and Liberty : […] “what would an informed person, viewing the matter realistically and practically–and having thought the matter through–conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [p. 394]

See also Yukon Francophone School Board Education, Area #23 , at para. 20; Bossé et al. v. Lavigne , 2015 NBCA 54 , 440 N.B.R. (2d) 118 , at para. 7 (7). [ 42 ] In Bossé , the Court summarized the principles governing the disposition of recusal motions, as discussed and applied numerous times in the Supreme Court, in our Court and in courts across Canada. [ 43 ] The object of the bias test is to ensure not only the reality, but also the appearance of a fair adjudicative process.

Judges are required and expected to approach every case with impartiality and an open mind: Impartiality is “a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions”; whereas bias “denotes a state of mind that is in some way predisposed to a particular result”: S. (R.D.) , at paras. 104-105 [.] [ Bossé , at para. 7(1)] [ 44 ] The elements of the objective test are the following: […] (1) the person considering the alleged bias must be a reasonable person, not one who is very sensitive or scrupulous, but rather one who is right-minded; (2) the person be a well informed person, with knowledge of all the relevant circumstances; (3) the apprehension of bias itself must be reasonable in the circumstances of the case; (4) the situation must be fully examined, not just the face of it; and, the examination must be one that is both realistic and practical; (5) the inquiry begins with a strong presumption of judicial impartiality and looks to determine whether it has been displaced such that there is a real likelihood or probability of apprehension that the judge would not decide the case fairly on the merits[.] [ Bossé , at para. 7(8)] [Emphasis in original] [ 45 ] While the requirement of judicial impartiality is a stringent one, the onus is on the party alleging bias, and the threshold to establish it is high because the integrity of the administration of justice presumes fairness, impartiality and integrity in the performance of the judicial role.

Such presumption is not easily displaced: The grounds for the apprehension of bias must be substantial and the evidence demonstrating it must be cogent; the threshold is high and the onus of demonstrating bias lies with the one alleging it; “The grounds giving rise to the apprehension of bias must be sufficiently serious to rebut the presumption that the judge will abide by his or her oath of office and ‘[judge] a particular controversy fairly on the basis of its own circumstances’”: Gaudet , at para. 5, referring to an excerpt from United States v.

Morgan , 313 U.S. 409 (1941), at p. 421, quoted with approval in S. (R.D.) ; or, in other words, “Because there is a strong presumption of judicial impartiality that is not easily displaced [...], the test for a reasonable apprehension of bias requires a ‘real likelihood or probability of bias’”: Yukon Francophone School Board , at para. 25. [ Bossé , at para. 7(10)] C.

Application of the guiding principles [ 46 ] The exchange reproduced above was the motion judge’s only intervention during the submissions of solicitor Michael Swinwood, counsel for the appellants, which lasted approximately one hour, and it occurred during the final moments of the hearing. [ 47 ] The appellants object specifically to the use by the court of the phrases “ Mr. Vautour doesn’t sound like an Aboriginal” and “it doesn’t sound like he has any rights and that was determined in the – he – he – is not.

That there’s no such community in New Brunswick. ” They argue the comments show that the case had already been decided. In their written submission, they submit the motion judge’s comments “were declaratory statements” (p. 10) and “demonstrated an insensitivity to an indigenous person, literally suggesting that they are not indigenous and have no rights and displaying a thorough lack of understanding of the case before the Court ” (p. 6), and the motion judge “was making conclusions based on the record in [ R. v. Vautour (2010)] and not

[on] the record before him” (p. 10). There is no doubt the motion judge was referring to the criminal proceedings. However, I cannotagree that his comments indicate he had already reached conclusions.

Rather, it shows he was trying to compress into a few words whathe thought the previous case stood for. [48] As the Court noted in Bossé, citing Yukon Francophone School Board Education, Area # 23, theenquiry for a determination of a reasonable apprehension of bias is “inherently contextual” and “highly fact-specific” (para. 7(3)).Comments are not to be interpreted in isolation but within the context of the hearing, which, here, is telling. [49] The hearing concerned a request to strike out the claims of the Vautour appellants on the basisthat exhaustive litigation involving Mr.

Vautour had previously settled the issues raised in the current action. Canada and NewBrunswick concluded their arguments by relying heavily on the findings in R. v. Vautour (2010) to put forward their position. [50] In those proceedings, the Provincial Court found Mr. Vautour and his son had “failed to establishthe presence of a historic Métis community in the area of Kouchibouguac a prerequisite under the Powley test;” therefore, their “claim toa constitutionally protected right to fish for food in the area of Kouchibouguac National Park” was dismissed (para. 86).

The Court ofQueen’s Bench dismissed the appeal, finding the Vautours had “failed to establish their entitlement to the benefit of

section 35 of theConstitution Act, 1982 as Métis” (para. 40). Our Court refused leave to appeal, stating, “Since the trial judge found on the evidence therewas neither a historic rights-bearing community nor a contemporary rights-bearing community, it follows there can be no valid claim ofMétis rights under s. 35 of the Constitution Act, 1982” (para. 8). [51] It is obvious from the words used by the motion judge he was alluding to these findings andconclusions when he said, “Mr. Vautour doesn’t sound like an Aboriginal” and “it doesn’t sound like he has any rights and that wasdetermined in the – he – he – is not.

That there’s no such community in New Brunswick,” rather than reaching conclusions in the matterbefore him. This was not an indication the motion judge had predetermined the issue or was predisposed to a particular result. [52] Given the context in which they were made, the motion judge’s comments were not directed toMr. Vautour’s personal identity, but rather to the previous judicial findings. It is clear the motion judge meant that, on the basis of thefindings made in the criminal proceedings, Mr.

Vautour did not appear to be a member of the “aboriginal peoples of Canada” entitled to“aboriginal [...] rights” recognized and affirmed by s. 35(1) of the Constitution Act, 1982, since R. v. Vautour (2010) determined therewas no historic rights-bearing Métis community in New Brunswick, and without one Mr. Vautour had no valid claim to rights as anAboriginal under s. 35. [53] The appellants argued the foundational issue in the current case had not been decided in the priorproceedings.

In his reasons, the motion judge observed he was “summarizing the Defendants’ arguments and allowing counsel for thePlaintiffs to respond” (para. 32). During the exchange, the motion judge stated that he had not made up his mind. The probing by thejudge provided Mr. Swinwood with an opportunity to respond to the court’s concerns.

As is apparent from the exchange, counsel didreply by stating the issues raised by the appellants in the Claim were not the same as those that were litigated in the past, arguing that thecase now before the Court was set out in para. 6 of the Statement of Claim and that there was “a distinction – a big distinction – betweenwhat was decided in [R. v. Vautour (2010)] and what this case [was] presented as.” [54] While judges have a duty to remain impartial, they are not required to remain silent.

It isappropriate for judges to engage with counsel and to make comments that encourage counsel to clarify legal arguments or a client’sposition on a point. In fact, it is often in the interests of justice for judges to intervene in the adversarial debate. As Lamer J., as he thenwas, observed in Brouillard Also Known As Chatel v. The Queen, (CSC), [1985] 1 S.C.R. 39, [1985] S.C.J. No. 3 (QL): First of all, it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges.

We now notonly accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justicein fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary callthem to order. [p. 44] See also Yukon Francophone School Board Education, Area #23, at para. 27. [55] In my view, these comments apply with equal, if not more, force to questioning or interruptingcounsel. It is often more equitable to a party to confront counsel with a question that is troubling the court than to decide the matter

without giving her or him an opportunity to address the troublesome matter. Other matters [ 56 ] Before concluding this part and moving to the decision striking the Claim, I pause to comment briefly on two other matters. [ 57 ] The first matter concerns an affidavit the appellants filed in support of their motion, in addition to the exchange reproduced above. The affiant declared he was a plaintiff, present during the hearing of the motions along with approximately 100 other attendees, the majority of whom were also plaintiffs, and the majority of the attendees were visibly shaken by the exchange.

He added it was obvious the motion judge “was saying he doubted Mr.

Vautour was Aboriginal, and that he had no Aboriginal rights.” He also stated that, based on the exchange, a reasonable person would come to the conclusion they were “being treated unfairly and without application of a fair-minded and unbiased adjudicative process.” The appellants submit the motion judge improperly assessed this affidavit in determining there was no reasonable apprehension of bias. [ 58 ] While the court correctly determined that this affidavit was insufficient to meet the objective test for a reasonable apprehension of bias, the affidavit was, in my view, irrelevant.

The objective component of the reasonable apprehension of bias test is to be determined objectively by a court asking itself whether a reasonable and well-informed person would perceive bias after examining the situation in depth and viewing it realistically and practically. It is not to be based on the impression, perception or opinion of individuals sitting in the courtroom – the majority of whom in this case were identified as plaintiffs.

The reasonable person postulated within the test is a legal fiction, a hypothetical person through whose eyes a court assesses the apprehension of bias. [ 59 ] The other matter pertains to the appellants’ submission that the motion judge also demonstrated a reasonable apprehension of bias by making palpable and overriding errors in the assessment of the evidence and in his legal conclusions. These alleged errors will be addressed in the context of the appeal regarding the striking out of the Claim and are not relevant to the question of bias.

There is no evidence that the errors, if any, were not made in good faith. D. Conclusion concerning the recusal decision [ 60 ] Although the appellants submit in their grounds of appeal the motion judge did not properly apply the test for recusal, they have not made any legal argument as to the manner in which he erred, and I find this argument is without merit. [ 61 ] In his reasons, the motion judge reviewed the relevant jurisprudence from the Supreme Court and noted the guiding principles summarized by this Court in Bossé . There is no doubt he turned his mind to the appropriate legal test.

Applying the proper principles, the motion judge declined to recuse himself. He concluded there was no subjective reason to recuse himself, and, after examining the objective component of the test, he concluded that no actual bias or reasonable apprehension of bias had been established. [ 62 ] No cogent evidence was adduced to overcome the high threshold for displacing the presumption of impartiality.

The reasonable, right-minded, informed person, within the broader context of the entire proceedings, would neither view the motion judge’s comments as expressing prejudgment of the appellants’ case nor find in the circumstances any apprehension of bias, let alone a reasonable one. [ 63 ] The motion judge’s analysis was fulsome. He asked himself the appropriate questions and provided concise, comprehensive written reasons for not recusing himself. I find no error in the motion judge’s analysis and I agree with his conclusion. VII. The Decision Striking the Claim

[64] I will start by putting to rest any suggestion the motion judge disposed of the motions byapplying Rule 22 instead of Rule 23. A. Rules 23 and 37 [65] In their second ground of appeal concerning the decision striking the Claim, the appellants allegethe motion judge did not properly apply the legal tests set out in Hryniak and LeBlanc. LeBlanc could be relevant because in that case theCourt stated, “Rule 23.01(1)(

a) is unsuited for the resolution of unsettled, complex and difficult questions of statutory

interpretationwhose determination would be facilitated by a consideration of evidence” (para. 35, per Drapeau C.J.N.B., as he then was). However,Hryniak is a case on

summary judgment, which, in New Brunswick, is the subject of our Rule 22. The respondents in the present mattersought relief under Rule 23, not Rule 22. For the sake of convenience, the relevant parts of the Rules of Court are reproduced below: 23.01 Where Available

(1) The plaintiff or a defendant may, at anytime before the action is set down for trial,apply to the court (

a) for the determination prior to trial, of anyquestion of law raised by a pleading in theaction where the determination of thatquestion may dispose of the action, shortenthe trial, or result in a substantial saving ofcosts, (

b) to strike out a pleading which does notdisclose a reasonable cause of action ordefence, or […] 37.10 Disposition of Motion On the hearing of a motion, the court mayallow or dismiss the motion or adjourn thehearing, with or without terms; or, in thealternative or in addition, may direct (

a) in a proper case, that the motion beconverted into a motion for judgment, […] 23.01 Applicabilité

(1) Le demandeur ou le défendeur peut, avantla mise au rôle de l’action, demander à lacour

a) que toute question de droit soulevée parune plaidoirie dans l’action en cours soittranchée avant le procès, si la solution decette question peut régler le litige, abréger leprocès ou réduire considérablement les frais,

b) qu’une plaidoirie qui ne révèle aucunecause d’action ni de défense raisonnable soitradiée ou […] 37.10 Décision À l’audition d’une motion, la cour peutaccorder celle-ci, la rejeter ou ajournerl’audience avec ou sans conditions. La courpeut prescrire en outre ou dans l’alternative

a) que la motion soit transformée en unemotion pour jugement, s’il y a lieu, […] [66] As the Court recently articulated in Gillis v. Cities of Bathurst and Fredericton, 2020 NBCA 16,[2019] N.B.J. No. 401 (QL), “[a]n order converting a motion for relief under Rules 23.01(1)(

a) and (

b) into a motion for judgment underRule 37.10(

a) does not bring Rule 22 into play” (para. 39). Although he made a single reference to Hryniak and granted a “summaryjudgment”, the motion judge correctly disposed of the companion motions on the basis of the test set out in Hunt v. Carey Canada Inc., (CSC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 (QL), namely, the “plain and obvious” test. [67] Notwithstanding this ground of appeal, the appellants did not argue before us that reversal was

warranted because the motion judge’s decision was based on Rule 22. This argument would have been devoid of merit. Borrowing the words of Drapeau J.A. in Gillis , I “unhesitatingly conclude [the motion judge] uses the expression ‘summary judgment’ as a plain-speak means of describing what he was being asked to grant and what he chose to grant, namely a judgment based on the pleadings and the applicable law in accordance with Rule 37.10(a)” (para. 41). B.

The real nature of this appeal [ 68 ] Although the ultimate question in this appeal is whether the motion judge erred in striking the Claim and granting judgment, at its core, the appeal of this decision, as argued, turns on the answer to the following two questions: • First – Were the preconditions to the application of the common law doctrines of issue estoppel and abuse of process satisfied? • Second – If so, did the motion judge err by failing to exercise his discretion to permit the appellants to avoid the doctrines of issue estoppel and abuse of process in this particular case? [ 69 ] I would answer the first question in the affirmative and the second question in the negative.

C. First question – Were the preconditions to the application of the common law doctrines of issue estoppel and abuse of process satisfied? [ 70 ] I will first briefly review the law relating to issue estoppel and abuse of process and then apply it to the facts of this case to determine if the requirements were met.

I will then, in the next section, address the second question, namely, the motion judge’s exercise of discretion. [ 71 ] The policy grounds supporting issue estoppel are the same as the essential policy grounds supporting abuse of process by relitigation, namely, “that there be an end to litigation and that no one should be twice vexed by the same cause”: Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 , at para. 38 .

As I will discuss in the second question, even if the requirements for the doctrines are met, the court has a residual discretion not to apply them if to do so would create an unjust or unfair result. [ 72 ] The traditional approach to adjudication is one that favours the settlement of all issues at once; a party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favourable judicial determination. In Danyluk v.

Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 S.C.R. 460 , Binnie J., writing for the Supreme Court, emphasized the importance of finality in litigation: “it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant […] is only entitled to one bite at the cherry” (para. 18).

(1) Issue estoppel [ 73 ] Issue estoppel is a branch of the doctrine of res judicata .

It generally precludes a party from relitigating issues decided in prior judicial proceedings where three conditions are met: (1) the same question has been decided ; (2) the judicial decision that is said to create the estoppel was final; and (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies ( Danyluk , at para. 25 ; Toronto (City) , at para. 23 ; Penner , at para. 29 ). [ 74 ] Where these three conditions are met, the court nonetheless retains a discretion not to apply the doctrine if its application “in the particular case would work an injustice ” ( Danyluk , at para. 80 ; Penner , at para. 30 ).

[75] Discretion has been said to be limited to special or exceptional circumstances and more limitedwhere the prior decision is that of a court rather than an administrative tribunal (see Danyluk, at para. 62; CUPE, Local 1188 andLeBlanc v. Town of Sackville 2007 NBCA 18, 313 N.B.R. (2d) 147, at para. 33; Minott v. O’Shanter Development Co., (ON CA), [1999] O.J. No. 5 (QL) (C.A.), at para. 51). [76] There is no definitive list of factors for determining whether, in a particular case, it is fair toapply issue estoppel.

The exercise of the discretion is necessarily case-specific and depends on the entirety of the circumstances. TheSupreme Court has stated that unfairness warranting the exercise of discretion may arise from the unfairness of the prior proceedings, orfrom the unfairness of their result, or both, such as where there is a significant difference between the purposes, processes or stakesinvolved in the two proceedings (Penner, at paras. 38-42).

As noted by Binnie J., in Danyluk, “[t]he objective is to ensure that theoperation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case” (para.67).

(2) Abuse of process [77] Relitigation of issues that have been before the courts in a previous proceeding can also create anabuse of process. The Court recently had the opportunity to discuss the doctrine of abuse of process by relitigation in Landry v. AttorneyGeneral of New Brunswick, 2020 NBCA 38, [2020] N.B.J. No. 113 (QL): The doctrine of abuse of process by relitigation was set out by the Supreme Court in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,[2003] 3 S.C.R. 77, and applied by Richard J.A. (as he then was) in Forsythe v. Furlotte, 2016 NBCA 6, 447 N.B.R. (2d) 48.

Thedoctrine applies in a variety of legal contexts, results from the inherent discretion of the court to prevent abuse of process in a way thatwould bring the administration of justice into disrepute and is essentially aimed at preserving the integrity of the judicial system. It is aflexible doctrine, unencumbered by the specific requirements of common law concepts such as issue estoppel.

As Arbour J. noted inToronto (City), writing for a unanimous Supreme Court on this point: [...] Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirementsof issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed wouldnonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. [...] [para.37] [para. 24] [78] Simply put, the doctrine of abuse of process does not require that the parties in the current actionbe the same as those who litigated the alleged settled issues in prior proceedings. [79] The overriding concern with the doctrine of abuse of process has less to do with the identity orinterests of the parties or a “sense of unfairness to a party being called twice to put its case forward” – which is a chief concern of issueestoppel – and more to do with “the integrity of judicial decision making” (Toronto (City), at para. 43). [80] The need to protect the integrity of the adjudicative functions of courts compels a bar againstrelitigation (Toronto (City), at para. 43).

If relitigation leads to the same result, there will be a waste of judicial resources as well asunnecessary expense for the parties, and, if it leads to a different result, the inconsistency “will undermine the credibility of the entirejudicial process, thereby diminishing its authority, its credibility and its aim of finality” (Toronto (City), at para. 51).

Furthermore, therecan be no assumption that relitigation will yield a more accurate result than the original proceeding. [81] Relitigation should be avoided unless the circumstances dictate that it will enhance, rather thanimpeach, the integrity of the judicial system.

It might be appropriate to permit re-litigation in the following circumstances: “(1) when thefirst proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches theoriginal results; or (3) when fairness dictates that the original result should not be binding in the new context” (Toronto (City), at para.52). [82] Furthermore, as Arbour J. pointed out in Toronto (City), “[t]he discretionary factors that apply toprevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of

process from achieving a similar undesirable result” (para. 53). This would apply, for instance, if the stakes in the original proceedings were too minor to give a party an adequate incentive to litigate.

(3) Application of the governing principles regarding issue estoppel [ 83 ] The first step of the analysis is to determine whether the preconditions to the operation of issue estoppel have been established. The lion’s share of the hearing before us was consumed by the first requirement – whether we are dealing with the “same question.” Accordingly, the focus of these reasons is on that requirement as well as on the judge’s residual discretion not to apply the doctrine. These two matters are relevant to both issue estoppel and abuse of process. (

a) First requirement: the same question has been decided [ 84 ] In short, the question is whether the appellants are relitigating issues that have been settled. Issue estoppel prevents relitigation of the questions or issues that the cause of action in the prior proceedings embraced.

Binnie J. explained the meaning of “questions” as follows in Danyluk : “The question out of which the estoppel is said to arise must have been ‘fundamental to the decision arrived at’ in the earlier proceeding […] the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (‘the questions’) that were necessarily (even if not explicitly) determined in the earlier proceedings” (para. 24). [ 85 ] The prior civil proceedings decided the lawfulness of the expropriation of the lands by the Province of New Brunswick and the creation of the Park by the Crown.

The criminal proceedings decided there is no historic rights- bearing Métis community in New Brunswick generally and in the area of the Park specifically at the relevant time, and, therefore, Mr. Vautour could not have a constitutionally protected right to fish for food in the area of the Park. [ 86 ] The motion judge determined the Claim depended on whether a historic rights-bearing Métis community was found to exist in the Park.

I agree with his conclusion for the reasons elaborated below. [ 87 ] During the hearing, the Court asked counsel for the appellants whether the current action was a collateral attack on Arseneault A.C.J.’s findings in the criminal proceedings. He informed us he was “absolutely not saying that decision is wrong.” [ 88 ] The appellants’ chief argument is that the motion judge mischaracterized or misunderstood the case before the court and this mischaracterization misinformed the court’s decision and was central to the judge’s finding that the issue before the court had already been settled.

This, they say, is a palpable and overriding error. They point more specifically to two paragraphs in the reasons where the motion judge states the Vautour appellants “see[k] declaratory and monetary relief under

Section 35 of the Constitution Act, 1982 , based on their Métis status” (para. 5), and “submi[t] that [they] hol[d] Métis rights and title with respect to the Park” (para. 8). [ 89 ] The appellants assert that, in the current action, the Vautour appellants are not claiming “ Métis rights and title” to the Park “based on their Métis status” under s. 35 .

Therefore, they submit, their Claim is not dependent on a distinctive historic rights-bearing Métis community in the area of the Park because it is founded on a Mi’kmaq Indigenous title and the laws, traditions, practices and customs of the Mi’kmaq Nation. [ 90 ] They submit para. 6 of the Amended Statement of Claim encapsulates what the current action is about and shows that the Claim has not been litigated before.

Paragraph 6 states: The Plaintiffs state that from the Mi’kmaq perspective, the Métis-Acadian peoples and the Mi’kmaq peoples are a culturally distinct indigenous peoples which form one big family connected by blood and the lands and the sea on-what is called M’ikma’ki (relatives land), specifically as it relates to Kouchibouguac National Park. The Mi’kmaq, Métis-Acadians are Métis peoples who fall under the protection of the umbrella of the Mi’kmaq Grand Council or Santi Mawio’mi. The Santi Mawio’mi embodies the sovereignty, laws, government, territories and rights of the Mi’kmaq Nation.

Despite the trauma of colonization and patriarchal government policies, the teachings of the Elders, through oral traditions, customs and practices continues to inform the Grand Council and the Métis-Acadian line.

[ 91 ] Asked to explain the appellants’ position in layperson’s terms, counsel replied that, in this case, the issue of Indigenous title has been approached by Métis-Acadian Mi’kmaq families and the Traditional Mi’kmaq peoples of the Sigenigteouk District, seeking a declaration of a shared Mi’kmaq Indigenous title. [ 92 ] At page 9 of their written submission, the appellants explain the Vautour appellants “are acknowledging and claiming an indigenous Mi’kmaq title, under the protection of the Mi’kmaq Grand Council and Mi’kmaq Nation. ” [ 93 ] The Augustine appellants are asserting a claim to a Mi’kmaq Indigenous title to the Park on behalf of themselves and the Vautour appellants.

They support each other’s claim to an Indigenous title. It is a claim based on the sharing of the Indigenous title between the traditional Mi’kmaq peoples of Sigenigteouk and the Métis-Acadian Mi’kmaq families based on the laws, traditions and customs of the Mi’kmaq Nation.

They allege the Powley test is not applicable to such a claim. [ 94 ] As for the civil proceedings concerning the lawfulness of the expropriations and creation of the Park, the appellants submit the current action is not relitigation, since the issue of an Indigenous Mi’kmaq title to the Park to be shared with the Métis-Acadian Mi’kmaq families, based on laws, traditions, customs and practices of the Mi’kmaq Nation has never been litigated before the courts.

They contend that, since no Indigenous title was claimed nor considered when the Park was created, the Crown’s title remains subject to the Indigenous title now claimed by the appellants. [ 95 ] The Vautour appellants self-identify as “ Métis-Acadian Mi’kmaq […] descendants of inter​- marriage between French settlers and Mi’kmaq indigenous peoples going back to 1610.” The Amended Statement of Claim alleges: • “The Métis Acadian Mi’kmaq families are an Indigenous people and distinctive Indigenous group with common territory, language, culture, values, customs, practices, traditions, spiritual beliefs and legal and political systems in respect of lands and waters known as Mi’kmaq and based on a Mi’kmaq indigenous title” (para. 2). • “All of the Plaintiffs are Indigenous Peoples within

Section 35 of the Constitution Act, 1982 ” (para. 7). • “The Métis-Acadian comprised an indigenous group at assumption of sovereignty of the British Crown over the area now known as Kouchibouguac National Park” and the Vautour Appellants as a group “is the continuation of, and successor to” the historic indigenous group (para. 14). • By 1969-1971, lands were expropriated to create the Park “despite the existence of some 280 families of Mi’kmaq and Métis- Acadian ancestry, who at the time had entitlement to an indigenous title to the land” (para. 15). [ 96 ] On the basis of these excerpts, one could not be faulted for believing the Vautour appellants are once again asserting there was a historic rights-bearing Métis community in the area of the Park, of which they are the descendants and for which they claim entitlement to s. 35 rights, including Aboriginal title to the Park.

Furthermore, relief sought in para. 37 of the Amended Statement of Claim (the relevant portions of which are reproduced hereinabove) seem to add credence to the respondents’ argument that the same matters are being relitigated. The Vautour appellants seek declarations that they have existing Indigenous title to the Park (subpara. 37(a)) and existing Indigenous rights to hunt and fish within the Park (subpara. 37(c)) and that the Park is not Crown land, as defined in the National Parks Act (subpara. 37(b)). In subparagraphs 37(e), (

f) and (

g) respectively, they claim damages for any unjustifiable infringement of their Indigenous title and other Indigenous rights and for the unjustifiable and illegal removal of the Métis- Acadian Mi’kmaq families from the Park. At first impression, this relief, except for the claim to an Indigenous title, appears familiar. (

i) Aboriginal rights constitutionally protected [ 97 ] As noted, the Vautour appellants claim rights protected by s. 35 of the Constitution Act, 1982 , which provides:

(1) The existing aboriginal and treatyrights of the aboriginal peoples of Canada arehereby recognized and affirmed.

(2) In this Act, “aboriginal peoples ofCanada” includes the Indian, Inuit and Métispeoples of Canada. 35.

(1) Les droits existants – ancestraux ouissus de traités – des peuples autochtones duCanada sont reconnus et confirmés. (2) Dans la présente loi, « peuplesautochtones du Canada » s’entend notammentdes Indiens, des Inuit et des Métis du Canada. [98] Therefore, those who may claim constitutionally protected Aboriginal rights under s. 35(1) arethe “aboriginal peoples of Canada,” defined in s. 35(2) as including “the Indian, Inuit and Métis peoples of Canada.” [99] At the patriation of the Constitution, in 1982, the extent of existing Aboriginal and treaty rightswas not specifically identified.

The law has rapidly evolved since then. (ii) The Powley test: the Métis whose rights are protected and why [100] In order to establish he or she is the holder of rights protected by s. 35, a claimant who self-identifies as a Métis must meet the three criteria set out in Powley: 1) self-identification as Métis; 2) an ancestral connection to an historic Métis community; and 3) acceptance by the modern Métis community (paras. 31-33). [101] The appellants submit that establishing s. 35 Métis rights under Powley and being Métis are twodistinct matters. I agree.

The term “Métis,” according to its popular meaning, describes individuals with mixed Indian and Europeanheritage and, although found in s. 35, is not statutorily defined. In Powley, the Supreme Court defined the Métis whose rights areprotected by s. 35. It explained that “the term ‘Métis’ in s. 35 does not encompass all individuals with mixed Indian and Europeanheritage.” It stated that “Métis” refers to “distinctive peoples who, in addition to their mixed ancestry, developed their own customs, wayof life, and recognizable group identity separate from their Indian or Inuit and European forebears” (para. 10).

The Court did not attemptto enumerate the various Métis peoples. It stated that, considering the Métis are expressly included in s. 35, it was only necessary toverify whether the claimants belonged “to an identifiable Métis community with a sufficient degree of continuity and stability to supporta site-specific aboriginal right” (para. 12).

The Court specified that “[a] Métis community can be defined as a group of Métis with adistinctive collective identity, living together in the same geographic area and sharing a common way of life” (para. 12). [102] As to why these rights are protected, the Supreme Court emphasized that the purpose ofprotecting Métis rights under s. 35(1) was to protect the Métis distinct culture: “The inclusion of the Métis in s. 35 is based on acommitment to recognizing the Métis and enhancing their survival as distinctive communities.

The purpose and the promise of s. 35 is toprotect practices that were historically important features of these distinctive communities and that persist in the present day as integralelements of their Métis culture” (para. 13). These are the Métis whose rights are protected under s. 35 of the Constitution Act, 1982. [103] Consequently, it is against this historical and cultural backdrop that any claim to s. 35 rights mustbe evaluated for claimants who self-identify as Métis. [104] Based on this definition of the Métis people, the Court in Powley then set out the legal criterianoted above to determine Métis status.

These are the criteria that define Métis identity for the purpose of identifying the individuals whocan claim rights under s. 35. The definition of Métis is grounded in the unique Métis culture. [105] Aboriginal rights are specific to each Aboriginal community. The specific nature of Aboriginalrights and the requisite connection with the historic community were stressed in R. v. Van der Peet, (CSC), [1996] 2S.C.R. 507, [1996] S.C.J. No. 77 (QL):

[…] aboriginal rights are constitutional rights, but that does not negate the central fact that the interests aboriginal rights are intended toprotect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope andcontent must be determined on a case-by-case basis.

The fact that one group of aboriginal people has an aboriginal right to do a particularthing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right.[…] [para. 69] (iii) Aboriginal title is an Aboriginal right [106] Aboriginal title, which is what is being claimed here, is a distinct species of Aboriginal rights thatis recognized and affirmed by s. 35 and arises where the connection of a group with a piece of land was of a central significance to itsdistinctive culture.

Aboriginal title is a right of a unique nature that confers a right to the land itself and, as such, is more than the right toengage in specific activities, such as fishing or hunting: Delgamuukw v. British Columbia, (CSC), [1997] 3 S.C.R.1010, [1997] S.C.J. No. 108 (QL), at paras. 111 and 137. [107] Constitutionally recognized Aboriginal rights fall along a spectrum with respect to their degree ofconnection with land. At one end are practices, customs and traditions where the use of the land is not sufficient to support a claim oftitle, but nevertheless constitutes an Aboriginal right.

At the other end lies Aboriginal title, which confers a right to the land itself, subjectto certain inherent limitations. In between are site-specific rights to engage in a particular activity that fall short of title (Delgamuukw, atpara. 138). (iv) The test for proof of Aboriginal title [108] The test for proof of Aboriginal title was set out by Lamer C.J., writing for the majority, inDelgamuukw, a decision heralded as one of the most significant cases in the history of Aboriginal law.

It confirmed that practice-basedAboriginal rights such as fishing and hunting may coexist with Aboriginal title: In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (

i) the land musthave been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be acontinuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive. [para. 143] [109] The test for the identification of Aboriginal rights to engage in particular activities and for theidentification of Aboriginal title share broad similarities but are distinct in two ways.

First, under the test for Aboriginal title, therequirement that the land be integral to the distinctive culture of the claimants is subsumed by the requirement of occupancy: […] The requirement exists for rights short of title because it is necessary to distinguish between those practices which were central tothe culture of claimants and those which were more incidental.

However, in the case of title, it would seem clear that any land that wasoccupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to beof central significance to the culture of the claimants. As a result, I do not think it is necessary to include explicitly this element as part ofthe test for aboriginal title. […] [Delgamuukw, at para. 151] [110] There is another important distinction for Aboriginal peoples, other than Métis.

Whereas the timefor the identification of Aboriginal rights is generally the time of first contact, the time for the identification of Aboriginal title is the timeat which the Crown asserted sovereignty over the land (Delgamuukw, at para. 142).

For the Métis, this is no longer a distinction because,in applying the Van der Peet test to determine the Métis’ s. 35 entitlements, the Supreme Court in Powley adjusted the pre-contact aspectof the test, for all other rights, to pre-sovereignty, in order to accommodate Métis history. [111] In Delgamuukw, Lamer C.J. stated, “In order to establish a claim to aboriginal title, the aboriginalgroup asserting the claim must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty overthe land subject to the title” (emphasis in original; para. 144).

The test also requires exclusive historic occupation. Exclusivity requires

the claimant to demonstrate effective control of the land by the historic Aboriginal group, which had the ability to exclude others from the land they occupied if it chose to do so (see Delgamuukw , at para 155 ; Tsilhqot’in Nation v. British Columbia , 2014 SCC 44 , [2014] 2 S.C.R. 257 , at paras. 47-48 ). [ 112 ] In Van der Peet , Lamer C.J. explained the protection of Aboriginal rights was aimed at the reconciliation of the prior occupation of lands by distinctive Aboriginal communities with the assertion of Crown sovereignty over those lands (para. 42).

Therefore, Aboriginal title crystallizes at the time sovereignty is asserted, “with all the pre-sovereignty incidents of use and enjoyment that were part of the collective title enjoyed by the ancestors of the claimant group – most notably the right to control how the land is used” ( Tsilhqot’in, at para. 75). [ 113 ] The Supreme Court revisited Aboriginal title in Tsilhqot’in – the first Canadian case to find Aboriginal title. The Vautour decision in the criminal proceedings was rendered in 2010, a few years prior to the release of Tsilhqot’in , in 2014.

However, contrary to what the appellants argue, the motion judge did consider whether Tsilhqot’in contained new legal principles applicable to the Claim but correctly decided it did not.

In Tsilhqot’in , the Supreme Court reiterated the test for Aboriginal title it had set out in Delgamuukw and found Aboriginal title by applying that test, but it did not change the criteria the Aboriginal group asserting the claim must satisfy to establish Aboriginal title. [ 114 ] The nature of Aboriginal title is that it confers on the title-holding group the exclusive right to decide how the land is used and the right to benefit from those uses, subject to certain inherent limitations ( Tsilhqot’in , at para. 88).

A claimant’s entitlement to s. 35 rights is generally identified by courts on a case-by-case basis. Aboriginal title is sui generis and distinguished from other proprietary interests by several features, such as the fact it is held communally. An important distinctive feature of Aboriginal title is that land held by virtue of Aboriginal title may not be alienated. That land can be sold or transferred only to the Crown. [ 115 ] The appellants argue that Powley cannot stand for the proposition there are no Métis in New Brunswick. I agree.

However, Powley sets out a test to determine whether a claimant who self-identifies as a Métis is, or is not, a Métis entitled to claim rights under s. 35 . The question as to whether the Vautour appellants are holders of s. 35 rights, including any right to an Aboriginal title, is to be answered in accordance with the analysis and the principles found in Delgamuukw and Powley . This framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. [ 116 ] Either the Vautour appellants are Métis for the purpose of s. 35 or they are not.

If they are, they may have constitutionally protected rights; otherwise, they are not entitled to rights or benefits reserved for Aboriginal peoples by the Constitution Act, 1982 . [ 117 ] Assessing the claim to Aboriginal title in the Park requires assessing whether there was an Aboriginal community (ancestors of the claimant group), of which Mr. Vautour and those he represents are the descendants, that exclusively occupied that territory to the extent required to establish title at sovereignty. A constitutionally protected Aboriginal title must be rooted in a community that existed pre-sovereignty.

Aboriginal rights are possessed today by the descendants of the persons who originally held them, namely, a distinctive historic community. [ 118 ] As mentioned, Aboriginal rights fall along a spectrum with, at one end, the right to engage in particular activities and, at the other, the right to Aboriginal title. It is difficult to imagine a situation where a claimant could prove Aboriginal title to land, if that claimant were unable to establish a constitutionally protected right to fish on or from that land. [ 119 ] In R. v. Vautour (2010), Arseneault A.C.J. determined that Mr.

Vautour did not have a constitutionally protected Aboriginal right to fish in the Park because he had failed to establish the presence of a historic Métis community in the area of the Park , a prerequisite under the Powley test to be entitled to s. 35 Aboriginal rights. Aboriginal title to land is an Aboriginal right. To allow the Claim in the current action would require the court to make findings inconsistent with those of Arseneault A.C.J. where he explicitly found no such rights existed because no such group existed.

Casting doubt over the validity of a criminal conviction is a very serious matter whether that effect is intended or not (see Toronto (City) , at para. 54 ; Sullivan and the Province of New Brunswick v. Benoit et al. , 2019 NBCA 49 , [2019] N.B.J. No. 172 (QL) , at paras. 21-22 ). [ 120 ] The motion judge concluded that entitlement to the relief claimed by any plaintiff who self- identifies as a Métis would first require there be a distinctive historic Métis community within the claimed area, an issue that has been conclusively determined in the negative.

He correctly characterized the question central to the Vautour appellants’ Claim: “I t does not matter if one alleges, as Mr. Vautour did in his pleadings, that the Métis-Acadian Indigenous title is derived from Mi’kmaq Indigenous

title based on the laws, traditions and customs of the Mi’kmaq Indigenous people. Mr. Vautour still has to establish being a Métis under

section 35 of the Constitution Act, 1982 ” (para. 42). [ 121 ] The motion judge correctly decided that the foundational question raised in the Claim had already been answered in the criminal proceedings. [ 122 ] The first requirement has been met – the same question has already been decided. (

b) Second requirement: a final decision [ 123 ] In Toronto (City) , Arbour J. stated, “A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned” (para. 46). Mr. Vautour appealed every decision up to the Supreme Court. These decisions are final and therefore capable of giving rise to an estoppel. [ 124 ] There is no doubt the second requirement has been met. (

c) Third requirement: same parties or their privies [ 125 ] The motion judge concluded this requirement was met because he determined the parties to the judicial decisions said to give rise to the estoppel, or their privies, were the same as the parties to the current action, or their privies. [ 126 ] There is no question Mr. Vautour and the Crown are the same parties. The Métis-Acadian Mi’kmaq families that Mr. Vautour purports to represent (although they are not parties) were not part of the previous proceedings. Nevertheless, the motion judge concluded they were privies of Mr.

Vautour, as they had the same interest as he does, having previously noted they had not offered any evidence or argument suggesting they had different interests. [ 127 ] The degree of interest that will create privity is somewhat elastic and must be determined on a case-by-case basis ( Danyluk , para. 60 ). Before us, t he appellants did not seriously deny privity nor challenge that this precondition had been met. I find no error in the motion judge’s conclusion. [ 128 ] The motion judge rightly concluded the preconditions for issue estoppel were met.

(4) Application of the governing principles regarding abuse of process [ 129 ] As previously noted, issue estoppel and abuse of process are interrelated, and, in many cases, more than one doctrine may support a particular outcome.

In the present case, the motion judge concluded that both doctrines applied, and it would constitute an abuse of process by relitigation if the Claim was allowed to proceed to trial. [ 130 ] The requirements for the application of abuse of process are the same as those for issue estoppel, with one notable exception: the parties seeking to relitigate the issue need not be the same parties as those who originally litigated the issue. As we have just seen, the other two requirements have been met. [ 131 ] The concerns underlying the abuse of process doctrine are present. The Claim is abusive both because: (

a) it relitigates the same issues that were before the court in previous court proceedings; and (

b) it can be successful only if the court rejects findings made by previous courts. Furthermore, allowing the litigation to proceed would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice” ( Toronto (City) , at para. 37 ).

[ 132 ] The motion judge rightly concluded the preconditions for abuse of process were met. D.

Second question – Did the motion judge err by failing to exercise his discretion to permit the appellants to avoid the doctrines of issue estoppel and abuse of process in this particular case? [ 133 ] The appellants assert that, even if the preconditions were met, the motion judge should nevertheless have refused, at the second stage, to apply the common law doctrines to bar the Claim because the application of either of these doctrines works an injustice in this particular case when taking into account the entirety of the circumstances.

There is no doubt that such discretion exists; however, as noted, the discretion is to be exercised less readily when, as in this case, the prior decisions emanate from other court proceedings. [ 134 ] The question at this point is whether the motion judge erred in refusing to exercise his discretion in favour of the appellants. The judge appropriately addressed the issue of his discretion.

None of the factors the Supreme Court outlined in Toronto (City) that would permit relitigation apply in this case. [ 135 ] As to whether the application of issue estoppel would work an injustice in this case, the motion judge found “no real injustice […] in not allowing this matter to proceed” (para. 55) and “no evidence or even suggestion of unfairness in the prior proceedings” (para. 56). He also considered the unfairness to the respondents, who would be required to relitigate issues already settled, should he exercise his discretion as requested.

This is a relevant factor; the respondents had contested and won all prior proceedings up to the Supreme Court.

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