2014 QCCA 1251, 2014 QCCA 1251

Source: Court of Appeal of Québec

Date: 2014-06-16

Jurisdiction: Quebec

Citation: 2014 QCCA 1251

Opinion

Unofficial English Translation Canada (Procureur général) (Ministre des Pêches et Océans) c. Alliance autochtone du Québec 2014 QCCA 1251 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-008126-135 (200-17-011000-098) DATE: June 16, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. BENOÎT MORIN, J.A. MARTIN VAUCLAIR, J.A. ATTORNEY GENERAL OF CANADA, acting on behalf of the Minister of Fisheries and Oceans Canada and the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-status Indians APPELLANT – Respondent v.

NATIVE ALLIANCE OF QUEBEC, NICHOLAS SHATTLER, RICHARD SHATTLER, CHURCHILL BOLAND, JULES ST-GELAIS, CHRISTIAN TREMBLAY, HENRICO LAPOINTE, JIMMY TREMBLAY, DAVID BÉCHAMP and RHÉAL PAUL RESPONDENTS – Petitioners and ATTORNEY GENERAL OF QUEBEC, acting on behalf of the Minister of Natural Resources and Wildlife of Quebec and the Minister for Aboriginal Affairs of Quebec and the National Assembly of Quebec Impleaded third parties – Respondents JUDGMENT [ 1 ] The appellant, the Attorney General of Canada, appeals from a judgment of the Superior Court, District of Québec (the Honourable Mr.

Justice Bernard Godbout), rendered on July 18, 2013, that dismissed its motion to dismiss and for declinatory exception dated April 29, 2011. [1] [ 2 ] This motion sought the dismissal of the respondents' amended motion for declaratory judgment dated February 18, 2011. [ 3 ] The conclusions sought in this motion were the following: [2] [ translation ] 1. GRANT this amended motion; 2.

DECLARE that the applicants Nicholas Shattler, Richard Shattler, Churchill Boland, Jules St-Gelais, Christian Tremblay, Henrico Lapointe, Jimmy Tremblay and Rhéal Paul are covered [3] by the resolution of the National Assembly of March 20, 1985 and of May 30, 1989, incorporated into the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State ; 3.

DECLARE that the NAQ members with ancestral ties to one of the Abenaki, Algonquin, Attikamek, Cree, Huron, Malecite, Micmac, Mohawk, Innu, Naskapi or Inuit nations are covered by the Resolution of the Québec National Assembly dated March 20, 1985, and that dated May 30, 1989, incorporated into the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State ; 4. DECLARE that

section 3.48 of the Act Respecting the Ministère du Conseil Exécutif (R.S.Q., c. M-30) infringes without justification the equality rights of the applicants and of the other aboriginal person members of the NAQ , which rights are guaranteed by

section 15 of the Charter of Rights and Freedoms ; 5. DECLARE that

section 3.48 of the Act Respecting the Ministère du Conseil Exécutif (R.S.Q., c. M-30) infringes without

justification the freedom of association of the applicants and of the other aboriginal person members of the NAQ , which freedom is guaranteed by

section 2(

d) of the Charter of Rights and Freedoms ; 6. DECLARE

section 3.48 of the Act Respecting the Ministère du Conseil Exécutif (R.S.Q., c. M-30) constitutionally invalid under

section 52 of the Charter of Rights and Freedoms ; 7. DECLARE a temporary suspension of the effect of the declaration of invalidity of

section 3.48 of the Act Respecting the Ministère du Conseil Exécutif for such period as the Court deems fair and appropriate ; 8. DECLARE that

section 24.1 of the Act respecting the conservation and development of wildlife (R.S.Q., c. C-61.1) infringes without justification the equality rights of the aboriginal person members of the NAQ , which rights are guaranteed by

section 15 of the Charter of Rights and Freedoms ; 9. DECLARE that

section 24.1 of the Act respecting the conservation and development of wildlife (R.S.Q., c. C-61.1) infringes without justification the freedom of association of the applicants and of the other aboriginal person members of the NAQ , which freedom is guaranteed by

section 2(

d) of the Charter of Rights and Freedoms ; 10. DECLARE

section 24.1 of the Act Respecting the Ministère du Conseil Exécutif (R.S.Q., c. M-30) constitutionally invalid under

section 52 of the Charter of Rights and Freedoms ; 11. DECLARE a temporary suspension of the effect of the declaration of invalidity of

section 24.1 of the Act respecting the conservation and development of wildlife for such period as the Court deems fair and appropriate ; 12. DECLARE that, because of the invalidity of

section 24.1 of the Act respecting the conservation and development of wildlife (R.S.Q., c. C-61.1), the applicants' right to liberty and security under

section 7 of the Charter of Rights and Freedoms as well as their right to be secure against search or seizure under

section 8 of the Charter are infringed or are likely to be infringed without justification; 13. DECLARE that the Native Alliance of Quebec is an “aboriginal organization" as defined in

section 2 (

a) of the Aboriginal Communal Fishing Licences Regulations ; 14. DECLARE that the applicants and the aboriginal person members of the NAQ form part of an “aboriginal organization" within the meaning of section 4(1) of the Aboriginal Communal Fishing Licences Regulations ; 15.

DECLARE that the Minister of Fisheries and Oceans and the Minister of Natural Resources and Wildlife of Quebec are obligated to negotiate in good faith and, for the benefit of the aboriginal persons the NAQ represents, enter into an agreement with the NAQ with a view to issuing a fishing licence under the Aboriginal Communal Fishing Licences Regulations ; 16.

DECLARE that by depriving the applicants and the aboriginal person members of the NAQ of the benefit of the Aboriginal Communal Fishing Licences Regulations , the Minister of Fisheries and Oceans and the Minister of Natural Resources and Wildlife of Quebec infringe without justification their liberty and their security under

section 7 of the Charter of Rights and Freedoms , in violation of the principles of fundamental justice ; 17. DECLARE that by depriving the applicants and the aboriginal person members of the NAQ of the benefit of the Aboriginal Communal Fishing Licences Regulations , the Minister of Fisheries and Oceans Canada and the Minister of Natural Resources and Wildlife of Quebec infringe without justification their equality rights under

section 15 of the Charter of Rights and Freedoms ; 18. DECLARE that by depriving the applicants and the aboriginal person members of the NAQ of the benefit of the Aboriginal Communal Fishing Licences Regulations , the Minister of Fisheries and Oceans Canada and the Minister of Natural Resources and Wildlife of Quebec infringe without justification their freedom of association under

section 2(

d) of the Charter of Rights and Freedoms ; 19. DECLARE that by prosecuting the applicants and the other members of the NAQ for subsistence fishing offences after having abandoned many similar complaints in 2006, the government administration infringes their right to security and liberty under

section 7, in a manner that is not only contrary to fundamental justice, fair play and decency, but that is itself cruel and unusual treatment, in violation of

section 12 of the Charter of Rights and Freedoms ; 20. DECLARE that the Minister of Fisheries and Oceans Canada and the Minister of Natural Resources and Wildlife of Quebec violate sections 3 and 10 of the Quebec Charter of human rights and freedoms in respect of the applicants in a manner that contravenes

section 9.1 of the Charter and that the Minister of Fisheries and Oceans also violates

section 23 of the Charter . 21. As a remedy under section 24(1) of the Charter of Rights and Freedoms and

section 49 of the Quebec Charter of human rights and freedoms , DECLARE that the governments of Canada and of Quebec are jointly and severally obligated to reimburse to the applicants and to the other aboriginal person members of the NAQ, damages totalling the amount of any fines that might have been imposed since the institution of these proceedings for subsistence hunting and fishing offences; 22. MAKE any other order deemed fair and appropriate ; 23.

THE WHOLE respectfully submitted and with costs. [Emphasis in original.] [ 4 ] For the following reasons, the Court finds that the trial judge should have granted the motion for declinatory exception and dismissed the amended motion for declaratory judgment with respect to the Attorney General of Canada. [ 5 ] At this juncture, it is relevant to quote paragraphs 35 to 44 of the trial judgment:

[ translation ] [35] It is not sufficient to dispose of the dispute to say that each of the conclusions of the motion for declaratory judgment is inadmissible if it is not accepted that the applicants individually and the members of the NAQ are aboriginal persons and that the NAQ forms an aboriginal community. [36] The latter assertion already raises a number of issues, including that of the very status of the applicants. [37] Furthermore, the AGC bases its motion for declinatory exception on

section 163 C.C.P .: A defendant, summoned before a court other than that before which the suit should have been instituted, may ask that the suit be referred to the competent court within the legislative authority of Québec, or that the suit be dismissed if there is no such court. [38] The applicants maintain that their motion for declaratory judgment is being used here as a procedural vehicle to resolve a genuine problem under

section 453 C.C.P . [39] The AGC argues that the motion for declaratory judgment is being used here as a procedural vehicle for a judicial review under

section 18 of the Federal Courts Act . [40] When the conclusions sought are considered in the above groupings, it is clear that what we are dealing with here is in fact a motion for declaratory judgment under

article 453 C.C.P. [41] To resolve the genuine problems they state, the applicants are seeking to determine their rights under certain statutes or other written instruments. [42] There are obviously three conclusions that concern more specifically the Minister of Fisheries and Oceans Canada.

These conclusions, however, also concern the Minister of Natural Resources and Wildlife of Quebec. [43] In addition, at this stage, it cannot be said that these three conclusions in fact seek a judicial review. [44] Finally, despite the criminal proceedings before the Court of Quebec, nothing prevents the applicants and more specifically the NAQ from applying to the Superior Court to argue the questions of law raised by the motion for declaratory judgment.

These questions, which directly concern the applicants' status, have a much broader scope than those raised in the context of a criminal defence could have. [ 6 ] The judge’s remarks, however, do not take into account the ultimate objective of the respondents' motion, which appears from the words [ translation ] "by depriving the applicants and the aboriginal person members of the NAQ of the benefit of the Aboriginal Communal Fishing Licences Regulations " in the sixteenth, seventeenth, and eighteenth conclusions of that motion. [ 7 ]

Section 4 of the Aboriginal Communal Fishing Licences Regulations (SOR/93-332) is worded as follows: 4

(1) Le ministre peut délivrer un permis communautaire à une organisation autochtone en vue de l’autoriser à pratiquer la pêche et toute activité connexe.

(2) Le ministre peut désigner dans le permis :

a) les personnes autorisées à pêcher au

titre du permis;

b) les bateaux qui peuvent être utilisés au

titre du permis.

(3) Dans le cas où le ministre ne désigne pas les personnes autorisées à pêcher au

titre du permis, l’organisation autochtone peut les désigner par écrit.

(4) Dans le cas où le ministre ne désigne pas les bateaux qui peuvent être utilisés au

titre du permis, l’organisation autochtone peut les désigner par écrit. 4.

(1) The Minister may issue a communal licence to an aboriginal organization to carry on fishing and related activities.

(2) The Minister may designate, in the licence, (

a) the persons who may fish under the authority of the licence, and (

b) the vessels that may be used to fish under the authority of the licence.

(3) If the Minister does not designate the persons who may fish under the authority of the licence, the aboriginal organization may designate, in writing, those persons.

(4) If the Minister does not designate the vessels that may be used to fish under the authority of the licence, the aboriginal organization may designate, in writing, those vessels. [ 8 ] Ultimately, what the respondents seek through their motion is to have a licence issued under this section. This in fact appears

[ 8 ] Ultimately, what the respondents seek through their motion is to have a licence issued under this section. This in fact appears clearly from the fifteenth conclusion sought in the motion; [ translation ] 15.

Harry Daniels : [4] [1] The issue raised in this appeal is whether the federal government has jurisdiction over Métis and non-status Indians pursuant to section 91(24) of the Constitution Act, 1867 .

For reasons reported as 2013 FC 6 , [2013] 2 F.C.R. 268, a judge of the Federal Court declared that “those persons who are Métis and those who are non-status Indians as set forth in the Reasons for Judgment are ‘Indians’ within the meaning of the expression ”Indians and Lands reserved for the Indians’ contained in s 91(24) of the Constitution Act, 1867 .” [2] In this appeal, the Crown appellants ask that the declaration be set aside. This position is supported by the Attorney General of Alberta, an intervener. The respondents, who were the plaintiffs below, ask that the appeal be dismissed with costs.

As well, the respondents cross-appeal from the decision of the Federal Court not to grant two additional declarations sought by them at trial. The respondents ask that the following two declarations be granted: (

i) The Crown in right of Canada owes a fiduciary duty to Métis and non-status Indians as Aboriginal peoples (second declaration). (ii) The Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice respecting their rights, interests and needs as Aboriginal peoples (third declaration). ... [58] Ultimately the Judge concluded that the “case for inclusion of non-status Indians in s 91(24) is more direct and clear than in respect of Métis.

The situation of the Métis is more complex and more diverse and must be viewed from a broad perspective. On balance, the Court also concludes that Métis are included in s 91(24)” (reasons, paragraph 600). As a result, the plaintiffs were granted a declaration to that effect. [59] The Judge then went on to consider the second and third declarations sought by the plaintiffs. ... [61] Finally, the Judge also found insufficient context to make any declaration on Canada’s duty to negotiate and consult with the Métis and non-status Indians.

Without reference to a specific matter to be consulted on, or negotiated with, the Judge concluded that a general declaration would be abstract and not useful. Thus, the third declaration was also refused (reasons, paragraphs 610 to 617). ... (ii) Did the Federal Court err by issuing the declaration in respect of the Métis? (

a) Did the declaration lack practical utility? [74] In my respectful view, when granting the declaration sought by the respondents as it related to non-status Indians, the Judge failed to give adequate consideration to relevant factors that would have led him to conclude the declaration lacked practical utility. [75] Unlike the Métis, who are a distinct Aboriginal people, it is common ground that non-status Indians are, broadly speaking, Indians without status under the Indian Act.

During oral argument, counsel for the appellants conceded that the group of people characterized as non-status Indians are those to whom status could be granted by federal legislation, assuming the legislation did not exceed the limits of section 91(24) . The definition as conceded by the appellants in oral argument necessarily includes non-status Indians within that head of power. [76] Parliament’s authority to grant or withhold Indian status arises from section 91(24) ( Canard , at page 207 of the Supreme Court Reports).

In order for Parliament to grant status under the Indian Act, the person receiving status must be an Indian under the Constitution. In that sense, the Indian Act does not exhaustively define who is an Indian for the purposes of the division of powers; this is exemplified by subsection 4(1) of the Indian Act , which withholds status from the Inuit, notwithstanding their inclusion as “Indians” under section 91(24) (see Re Eskimo Reference ). Therefore, if Parliament can grant status to a person under section 91(24) , that person is necessarily an “Indian” within the meaning of that section.

In the result, a declaration that non-status Indians who could be granted status through section 91(24) are Indians for the purpose of that

section is redundant and lacks practical utility. [77] It is also inappropriate to grant a declaration clarifying the limits of who may be considered an Indian notwithstanding their exclusion from the Indian Act . The reasons for excluding people from Indian status are complex, far-ranging and often unrelated to one another. As the Judge noted at paragraph 115 of his reasons, one situation which created non-status Indians were problems recording names during the treaty process and fear of the treaty process itself.

The result was that some names were not recorded and those individuals were not recognized as having status under the Indian Act . Other people were recognized as having status, but lost or gave up that status for various reasons, such as the many Indian women who lost status by marrying non-Aboriginal men. [78] In that regard, to determine the limits of the word “Indian” as it pertains to non-status Indians under the division of powers it is necessary to analyze the reason each class of individual was excluded from the Indian Act on a case-by-case basis. To the extent that

exclusions, or for that matter inclusions, are within the limits of section 91(24) of the Constitution Act, 1867 , they can be validly imposed. Otherwise such exclusions are outside the limits of Parliament’s powers and are, therefore, invalid. This question can only be answered after reviewing the particular reason for each exclusion. [79] It follows that non-status Indians as a group do not lend themselves to the declaration of general application sought by the respondents.

However the matter is considered, no purpose is served by addressing the question on the generic basis proposed: the declaration lacks utility and will not settle any issue between non-status Indians and the federal government. In consequence, the Judge ought not to have granted the declaration as it pertains to non-status Indians. ... (

c) Did the Judge err in refusing the second and third declarations? [156] On the reasons given, the Judge made no error in refusing the second declaration. The Judge recognized that the Crown has a fiduciary relationship with Aboriginal people both historically and pursuant to

section 35 of the Charter (reasons, paragraph 604). He also found that a declaration made in the absence of a specific fact scenario would lack utility. [157] I agree. This is particularly the case where, after the release of the Judge’s reasons, the Supreme Court confirmed that the Métis are in a fiduciary relationship with the Crown (Manitoba Métis Federation). [158] No error is alleged with respect to the third declaration.

Again, I agree that the declaration was properly withheld, substantially for the reasons given by the Judge. [ 10 ] In the present case, the respondents are seeking a communal fishing licence in a roundabout way. It is the objective that confers practical utility, within the meaning given to this expression in Daniels , on the declaratory judgment sought by the respondents. [ 11 ] Paragraph (1)(

a) of

section 18 of the Federal Courts Act states the following rule: 18.

(1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :

a) décerner une injonction, un bref de certiorari , de mandamus , de prohibition ou de quo warranto , ou pour rendre un jugement déclaratoire contre tout office fédéral; 18.

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari , writ of prohibition, writ of mandamus or writ of quo warranto , or grant declaratory relief, against any federal board, commission or other tribunal; [ 12 ] The Minister of Fisheries and Oceans is a federal board within the meaning of

section 2 of this statute. [ 13 ] In Bilodeau v. Canada (Minister of Justice) , [5] Rochon, J.A. stated the following on behalf of the majority: [ translation ] [43]

Section 18 of the Federal Courts Act confers exclusive jurisdiction on the Federal Court to control the legality of the decisions of a federal board.

Insofar as the federal board exercises a legitimate power pursuant to valid legislation and the constitutional challenge addresses only the way in which the power was wielded in light of the Canadian Charter , it appears that the exclusive jurisdiction of the Federal Court to grant the appropriate remedy must be acknowledged, in compliance with section 24(1) of the Charter . [ 14 ] More recently, in Morin v. 9247-9104 Quebec Inc. , [6] the Court stated: [ translation ] [10] A contestation, whether of the Minister's decision or the Minister's failure to make a decision on a given subject, requires a judicial review of the Minister's actions.

The first paragraph of

section 18 of the Federal Courts Act states that an application for review or for a declaratory judgment brought against the Minister falls under the exclusive jurisdiction of the Federal Court.

It is trite law that the Minister is a federal board within the meaning of this section. [ 15 ] From the preceding, the Court finds that the trial judge should have granted the motion for a declinatory exception and dismissed the amended motion for declaratory judgment with respect to the Attorney General of Canada. [ 16 ] In these circumstances, the Court does not find it relevant to consider the Attorney General of Canada's motion to dismiss.

FOR THESE REASONS, THE COURT: [ 17 ] ALLOWS the Attorney General of Canada's appeal, with costs; [ 18 ] SETS ASIDE the judgment rendered by the Superior Court on July 18, 2013, with respect to its conclusions regarding the

Attorney General of Canada; [ 19 ] GRANTS the Attorney General of Canada's motion for declinatory exception, with costs; [ 20 ] DISMISSES the amended motion for declaratory judgment with respect to the Attorney General of Canada. JACQUES CHAMBERLAND, J.A. BENOÎT MORIN, J.A. MARTIN VAUCLAIR, J.A. Mtre Bernard Letarte Joyal, LeBlanc For the petitioner Mtre Marc Watters Mtre Lina Beaulieu Gagné Letarte For the respondents Mtre Frédéric Maheux Chamberland, Gagnon (Justice – Québec) For the impleaded third party Date of hearing: May 16, 2014

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