2023 FC, 2023 FC 1206

Date: 20231012 Docket: T-1608-21 Citation: 2023 FC 1206 Ottawa, Ontario, October 12, 2023 PRESENT: Mr. Justice Pentney BETWEEN: REGROUPEMENT DES PÊCHEURS PROFESSIONNELS DU SUD DE LA GASPÉSIE INC. UNION DES PÊCHEURS DES MARITIMES INC. PRINCE EDWARD ISLAND FISHERMEN’S ASSOCIATION LTD. GULF NOVA SCOTIA FLEET PLANNING BOARD Applicants and LISTUGUJ MI’GMAQ GOVERNMENT and LE PROCUREUR GÉNÉRAL DU CANADA, LE MINISTRE DES PÊCHES ET DES OCÉANS, LE MINISTRE DES RELATIONS COURONNE-AUTOCHTONES Respondents PUBLIC ORDER AND REASONS (Confidential Draft Issued to the Parties on September 7, 2023) I.

Introduction [ 1 ] Two motions are before the Court for decision. Both arise in the context of a Notice of Application for judicial review filed by the Applicants, seeking to invalidate the Rights Reconciliation Agreement on Fisheries [RRA, or the Agreement] signed between the Respondent First Nation and the federal Crown on April 16, 2021. [ 2 ] The first motion is brought by the Respondent Listuguj Mi’gmaq Government [LMG, or the Moving Party] to strike the Notice of Application thereby dismissing the application, or in the alternative to strike the portions of the Notice of Application that are doomed to fail.

The other Respondent, the Attorney General of Canada [AGC] on behalf of the Ministers of Fisheries and Oceans and Crown- Indigenous Relations, supports this motion. The Applicants, who are the Responding Party on the motion to strike, oppose it. [ 3 ] The second motion, brought by the Applicants, seeks further disclosure, pursuant to Rules 317 and 318 of the Federal Courts Rules, SOR/96-102 [the Rules ].

LMG and the AGC oppose this request. [ 4 ] To put these motions into their proper context, we must begin with the underlying Notice of Application for judicial review, which raises four fundamental questions that can be summarized as follows: Can Canada enter into agreements that recognize and acknowledge existing Aboriginal and treaty rights under

section 35 of the Constitution Act , 1982 before such rights have been determined and declared by a court? Can the Minister of Fisheries and Oceans participate in negotiations and/or sign an agreement regarding

section 35 rights, or is that authority limited to the Minister of Crown-Indigenous Relations? Do First Nations laws governing their members’ exercise of the community’s fishery impinge on, or duplicate the Minister of Fisheries and Oceans’ authorities under the Fisheries Act ? Does Canada have to provide an opportunity for others who have an interest in the fishery to have input into the process in the context of the negotiation of such agreements? [ 5 ] LMG and the AGC argue that these claims should be struck because they are all bound to fail if the case proceeds to a full hearing.

The Applicants submit that their Notice of Application raises important questions that deserve a full hearing on the merits. [ 6 ] In the second motion, the Applicants seek further disclosure of documents from the Respondent Ministers, including a financial annex to the RRA, and internal memoranda and emails relating to reconciliation efforts and fisheries management for a particular lobster fishing zone. [ 7 ] The parties focused most of their attention on the motion to strike, and these reasons do the same. It is appropriate to begin with the

motion to strike, since the motion for disclosure becomes irrelevant if the proceeding is brought to an end because the Notice of Application is struck. [ 8 ] The background to the proceeding, including a description of the various parties involved, will be set out before moving to an analysis of the motion to strike followed by a discussion of the motion for disclosure. [ 9 ] For the reasons set out below, the Applicants’ claim regarding the process that was followed in negotiating and finalizing the Rights Recognition Agreement will not be struck, because I am not convinced that it is entirely devoid of merit or that it is doomed to fail.

The other claims advanced by the Applicants will be struck, because they are so clearly improper as to be bereft of any possibility of success.

The challenge to the rights recognition approach that enabled the negotiation of the RRA is misplaced, and not supported by the law; the claims about the Minister’s roles and alleged unlawful delegation of authorities is not supported by the record; and their claims about the recognition and acknowledgement of the LMG’s power to make laws in respect of its own members’ exercise of their collective rights in the fishery both overstate the scope of the authority that the RRA recognizes, and run counter to long-accepted legal principles. [ 10 ] As regards the motion for disclosure, it will be dismissed both because I find that Rule 317 does not apply, and the documents requested are not needed for the judicial review.

II. Background [ 11 ] The extent to which Indigenous peoples in Atlantic Canada have access to the fishery, and on what terms, has been the source of controversy and litigation for many years. Questions have also been raised about the scope of other harvesting rights possessed by Mi’gmaq communities in Atlantic Canada, whether under the Treaties of Peace and Friendship or by virtue of existing Aboriginal rights. Some of these disputes have arisen between Indigenous and non-Indigenous people, as each seeks what they perceive to be their rightful share of a limited resource.

In some respects, the underlying application in this case, as well as the motion to strike that is before the Court, represent another

chapter in this story. [ 12 ] The notice of application filed by the Applicants comprises 116 pages. It seeks declaratory relief to invalidate the RRA signed on April 16, 2021 between LMG and the Crown. The context and content of the RRA sets the backdrop for the litigation, but before reviewing that it will be useful to describe the various parties to the litigation. A. The parties

(1) The Applicants [ 13 ] The Applicants are organizations representing non-Indigenous fishers. The following descriptions are taken from their Notice of Application. [ 14 ] The Regroupement des p ê cheurs professionnels du sud de la Gaspésie Inc. ( " “ RPPSG ” " ) was founded in 1991 and represents 148 lobster fishers who pursue their trade in Lobster Fisheries Zones on the coast of the Gaspé Peninsula.

Its members also possess commercial fishing licenses for other species. [ 15 ] L’Union des pêcheurs des Maritimes Inc. ( " “UPM” " ) was created in 1977 and represents approximately 1,300 coastal fishers in New Brunswick and Nova Scotia. Its mission is to represent its membership’s interests on the major decisions that affect the commercial fishing industry in Atlantic Canada.

The membership hold commercial fishing licenses for a variety of species, and the organization itself holds commercial quotas for snow crab. [ 16 ] The Prince Edward Island Fishermen’s Association ( " “PEIFA” " ) was founded in the 1950s, and was incorporated in 1982. It represents almost 1,300 commercial fishers in Prince Edward Island, who in turn are part of various regional organizations. Its members fish commercially for a variety of species.

It also holds a commercial crab quota that is allocated to its members. [ 17 ] The Gulf Nova Scotia Fleet Planning Board ( " “GNSFPB” " ) was founded in 1997 and is comprised of six organizations that represent more than 600 commercial fishers in the Gulf of Nova Scotia, who hold licenses to fish a variety of species. The organization also holds a commercial halibut quota that is fished by its members in the Gulf of St-Lawrence. [ 18 ] Each of these organizations pursues the interests of their membership, including in relation to conservation and stewardship.

For example, the RPPSG says that its mission is to assure the sustainable development of the fishery and to maintain an equilibrium between the economic interests of those involved in the fishery and the sustainability of the species.

(2) The Respondents [ 19 ] The Respondents LMG and the Attorney General of Canada on behalf of the Ministers of Fisheries and Oceans and Crown- Indigenous Relations are parties to the RRA signed on April 16, 2021. [ 20 ] The LMG represents Listuguj, a Mi’gmaq community with over 4,000 members. LMG cited the following description from Martin v Province of New Brunswick and Chaleur Terminals Inc , 2016 NBQB 138 at para 14 : [Listuguj] holds various rights recognized and affirmed by

Section 35 of the Constitution Act, 1982 and is a “band” as defined in the Indian Act , R.S.C. 1985, c. I-5 . The reserve is located on the banks of the Restigouche River in the Gaspé Peninsula in the province of Quebec within the Seventh District of the territory of the Mi’gmaq, known as “Gespe’gewa’gi”. Geographically, Gespe’gewa’gi includes what we know today as the Gaspé Peninsula, Northern New Brunswick (including Belledune), part of Maine, and the Islands in the Bay of Chaleur as well as their surrounding coastal and marine areas

(including much of the Gulf of St. Lawrence). [21] LMG holds a variety of Aboriginal communal fishing licenses for several species, including lobster. LMG is one of the signatoriesto the RRA that is challenged in this case. [22] The Attorney General of Canada appears on behalf of the two Ministers who signed the RRA, the Minister of Crown-IndigenousRelations (who was styled "“the Minister of Indian Affairs and Northern Development”" at the time the agreement was signed) and theMinister of Fisheries and Oceans.

These Ministers signed the Agreement as representatives of the Crown, who was then Her Majesty theQueen in Right of Canada. B. The context for the RRA [23] The Notice of Application in issue here seeks to invalidate the RRA.

It will be helpful to provide a brief outline of the context forthe Agreement and an overview of its main features, before entering into an analysis of the parties’ positions on the motion to strike. [24] The modern context for the development of the RRA begins with the Supreme Court of Canada’s decisions in R v Marshall, (SCC), [1999] 3 SCR 456 [Marshall I] and R v Marshall, (SCC), [1999] 3 SCR 533 [Marshall II][collectively: the Marshall decisions]. The proper

interpretation of those decisions is in dispute between the parties, as discussed below. [25] At this stage, it is sufficient to observe that in the Marshall decisions, the Supreme Court recognized that the Mi’kmaq[1]signatories to the Treaties of Peace and Friendship signed in 1760-61 had certain treaty rights to fish guaranteed by

section 35 of theConstitution Act, 1982. [26] The first significant point from Marshall I, was that the treaty promises gave rise to constitutionally protected rights. The secondsignificant point, underlined in Marshall II, was that the treaty right is limited. The Court found that the treaty right: "“permits theMi’kmaq community to work for a living through continuing access to fish and wildlife to trade for ‘necessaries’, which a majority of theCourt interpreted as ‘food, clothing and housing, supplemented by a few amenities”" (at 538, para 4).

The Supreme Court also confirmedthat the treaty right was subject to restrictions that can be justified under the Badger test, citing R v Badger, (SCC),[1996] 1 RCS 771 (Marshall II at 543, para 14). [27] It is also relevant to note that Marshall II involved a motion brought by the West Nova Fisherman’s Coalition (an intervener inMarshall

I) who were concerned about the potential scope and impact of Marshall I on the sustainability of the fishery and the interestsof non-Indigenous participants in the fishery. The Coalition filed a motion in the Supreme Court seeking a rehearing of the appeal, a stayof the judgment pending the rehearing, and a new trial to determine whether the application of the fisheries regulations to the exercise ofthe Mi’kmaq treaty rights could be justified on conservation or other grounds.

The Supreme Court rejected the motion, but the very factthat such an extraordinary motion was brought signals the intensity of the interests involved in cases such as the one before the Court. [28] In Marshall II, the Supreme Court observed that resource conservation and management and the allocation of a permissible catchfor each species raise matters of considerable complexity, and repeated its often-expressed suggestion that such matters may "“best beresolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi’kmaq rather than bylitigation…”" (at 550, para 22). [29] A series of events followed the release of Marshall I and Marshall II.

It is not necessary to trace the chronology of all of this. Thedevelopments most pertinent to this litigation include policy efforts by the federal government to open space for First Nations to fish forfood, cultural, and ceremonial purposes, and to integrate First Nations into the existing commercial fisheries; litigation launched byLMG and others seeking to clarify the scope of their exercise of treaty rights; and the launch of a comprehensive claim by LMG and twoMi’gmaq communities in Quebec in 2007, asserting Aboriginal rights and title.

In 2012, these groups signed a Framework Agreementwith Canada and Quebec to establish the foundation for a final agreement. [30] In July 2017, Canada released the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, withthe goal of "“achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government, andInuit-Crown relationship based on recognition of rights, respect, co-operation and partnership as the foundation for transformativechange”" (at 3). [31] The LMG-Canada Framework Agreement on Reconciliation and the Fishery [the Framework Agreement] was signed in November2018 by the two Respondent Ministers and the LMG Chief.

The goal of this document was to establish a framework for furthernegotiations "“towards new arrangements with the aim of greater recognition and implementation of the LMG’s rights, responsibilities,and role with respect to the fisheries.”" [32] Disputes between the LMG and Canada remained, however, and on October 21, 2019, LMG launched an application for judicialreview seeking to overturn two decisions in which the Minister of Fisheries and Oceans refused to issue LMG commercial licenses thatwould have allowed the sale of lobster caught during the fall 2019 and 2020 fisheries (referred to below as "‘the Lobster litigation’").Two of the Applicants in this case, RPPSG and UPM sought to intervene in that matter, but their requests were refused (the reasons arediscussed in more detail below).

RPPSG and UPM appealed this decision, but before their appeal was heard the LMG and Canadaresolved their differences and the judicial review application was brought to an end on consent by Order of this Court dated November 8,2021. This development made the appeal of the intervention decision moot, and so it was discontinued. [33] The consent Order ending the Lobster litigation referred to the process under the RRA which was signed between LMG and theCrown as represented by the two Ministers who are Respondents in this matter.

Many of the details of the Agreement are discussedbelow in the context of the analysis of the parties’ submissions on the motion to strike. The following

summary is limited to a broadoutline of the main features of the Agreement. [34] The

Preamble sets out several key building blocks of the RRA:

WHEREAS Canada recognizes and affirms the Listuguj Mi’gmaq First Nation's inherent right to self-determination,including the right to self-government; WHEREAS the Mi’gmaq of Gespe’gewa’gi, including the Listuguj Mi’gmaq First Nation, have existing aboriginal andtreaty rights with respect to fisheries; WHEREAS the aboriginal and treaty rights of the Mi’gmaq, which

section 35 of the Constitution Act, 1982 recognizes andaffirms, are communal in nature and exercised by Mi’gmaq individuals on the authority of the Mi’gmaq community towhich they belong; WHEREAS the Listuguj Mi’gmaq First Nation has LMG Laws by which it governs its relationship with its fisheries; WHEREAS Canada acknowledges that recognition of the inherent jurisdiction and legal orders of indigenous nations,including the Mi’gmaq, is the starting point of discussions aimed at interactions between federal and indigenousjurisdictions and laws… [35] The Purpose clause states that the RRA aims to provide "“recognition and implementation of the Aboriginal Right and Treaty Rightof the [LMG] in relation to fisheries governance and fishing”" as well as predictability regarding the management and conduct of theLMG fishery.

The RRA also seeks to increase access for the LMG fishery as well as enhanced governance capacity to enable LMG toexercise its fisheries governance and fishing rights. [36] The Agreement defines the LMG fishery in this way: “LMG’s Fishery" means the fisheries governance and fishing activities undertaken by the LMG and members of theListuguj Mi’gmaq First Nation, whether for food, social, ceremonial, or commercial purposes, in relation to any species forwhich the DFO issues the LMG an Aboriginal Communal Licence, excluding salmon. [37] The RRA confirms that Canada acknowledges that LMG has certain Aboriginal and Treaty rights concerning fisheries governanceand fishing that are protected by

section 35 of

Part II of the Constitution Act, 1982,

Schedule B, Canada Act 1982, c 11 (UK) [RSC1985, Appendix II, No 44] [hereafter referred to as

section 35]. It provides that LMG can initiate or support legal proceedings againstCanada in relation to alleged breaches of the RRA, subject to the consensus building and dispute resolution process established by itsterms. [38] Topics such as fisheries access, fisheries funding and funding for governance and collaborative management of the LMG fishery arethen set out.

It is not necessary to review the details of these elements; it is sufficient to observe that a significant focus of this part of theRRA is on mechanisms to seek to prevent and resolve disputes regarding LMG fisheries access and the enforcement of federal laws andpolicies regarding the fishery.

The RRA also provides a list of considerations that the Minister shall consider in setting the conditions ofan Aboriginal Communal License in respect of the LMG fishery. [39] Next, the RRA describes the LMG’s obligation to designate individuals permitted to engage in fishing under its AboriginalCommunal Fishing License, and sets out an approach to compliance and enforcement that involves consultation between the Departmentof Fisheries and Oceans [DFO] and LMG.

A further part of the Agreement discusses consensus building and dispute resolutionprocesses, which confirm the collaborative nature of the relationship that the parties seek to maintain. The Agreement ends withprovisions regarding the process by which it may be reviewed, amended, or terminated. [40] With this background, we turn to the issues and analysis of the merits of the two motions. III. Issues [41] The motions before the Court give rise to three issues: A. Should the court grant the Applicant public interest standing? B. Should the Notice of Application be struck? C.

Should further disclosure be ordered? [42] As noted earlier, it will be convenient to discuss each issue in turn. IV. Analysis A. Should the Applicants be granted Public Interest Standing? [43] The Applicants seek public interest standing to bring their application for judicial review. They argue that they meet the criteria setout in the relevant case-law, citing Finlay v Canada (Minister of Finance), (SCC), [1986] 2 SCR 607 at 610, 626 and630-634; and Harris v Canada, (FCA), [2000] 4 FC 37 (FCA) at paras 49-50.

These cases confirm a three-part test:(1) the existence of a serious question to be tried; (2) that the party seeking standing has a genuine interest in the matter before the court;and (3) there is no other reasonable manner to bring the matter before the court. [44] In this case, the Applicants submit that they meet the test:

the issues they are raising involve serious questions about the validity of the exercise of the powers of the Ministers under theirrespective enabling statutes: the Fisheries Act, RSC 1985, c F-14 [Fisheries Act]; the Department of Indian Affairs and NorthernDevelopment Act, RSC 1985, c I-6; and the Department of Crown-Indigenous Relations and Northern Affairs Act, SC 2019, c 29[Crown-Indigenous Relations Act]; the Applicants represent commercial fishers whose rights are and will be affected by the consequences that will flow from theRRA; and there is no other practical means of bringing the matter to the Court, since the parties to it have no interest in contesting it. [45] LMG argues that the Applicants should not be granted public interest standing.

Their submissions weave two strands together; theysay that the Applicants’ arguments are political in nature and thus not justiciable, and in addition that the Notice of Application forjudicial review raises no serious justiciable issues. [46] The current approach to public interest standing was clarified in Canada (Attorney General) v Downtown Eastside Sex WorkersUnited Against Violence Society, 2012 SCC 45 [Downtown Eastside] at para 2: [2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposesand of the particular circumstances.

The courts consider whether the case raises a serious justiciable issue, whether the partybringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors,the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada(Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, at p. 253.

The courts exercise thisdiscretion to grant or refuse standing in a “liberal and generous manner” (p. 253). [47] As discussed below, I am persuaded that one of the Applicants’ claims is not so obviously bereft of merit or so clearly doomed tofail that it should be struck at this preliminary stage; however, several other claims will be struck.

In light of this finding, the Applicantsmeet the first element of the test – there is one serious justiciable issue raised by the Notice of Application. [48] I am also persuaded that the Applicants have a genuine interest in the outcome, given their long-standing involvement in the fishery.They are not a "“mere ‘busybody’ litigant” and the Court hearing the matter on the merits will have the benefit of contending points ofview of those most directly affected" (Downtown Eastside at para 1). [49] Finally on this point, the Applicants’ Notice of Application seeking declaratory relief is a reasonable and effective means ofbringing the matter before the Court.

Their argument rests on an almost purely legal question, and there is no need for a full trial ondisputed factual matters. [50] For all of these reasons, the Applicants are granted public interest standing in this case. B. Should the Notice of Application be struck? [51] The parties do not dispute the general legal principles that govern a motion to strike a Notice of Application for judicial review inthis Court. Their arguments focus instead on the application of the test to the facts.

(1) The law on motions to strike [52] The leading decision on the test for motions to strike notices of application for judicial review in this Court is JP Morgan AssetManagement (Canada) Inc v Canada (National Revenue), 2013 FCA 250 [JP Morgan], where the Court of Appeal described theapproach in the following way: [47] The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft ofany possibility of success” [footnote omitted]: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588 (C.A.), at page 600.

There must be a “show stopper” or a “knockout punch”—an obvious, fatalflaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour RelationsBoard, 2013 FCA 117, at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286, at paragraph 6;Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959. [48] There are two justifications for such a high threshold.

First, the Federal Courts’ jurisdiction to strike a notice ofapplication is founded not in the rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’processes: David Bull, above, at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 18C.C.L.I. (5th) 263. Second, applications for judicial review must be brought quickly and must proceed “without delay” and“in a

summary way”: Federal Courts Act, above, subsection 18.1(2) and

section 18.4. An unmeritorious motion—one thatraises matters that should be advanced at the hearing on the merits—frustrates that objective. [53] In examining the notice of application for judicial review, the Court "“must gain ‘a realistic appreciation’ of the application’s‘essential character’ by reading it holistically and practically without fastening onto matters of form…”" (JP Morgan at para 50, citationsomitted.

See also: Wenham v Canada (Attorney General), 2018 FCA 199 at paras 33-34; Bernard v Canada (Attorney General), 2019FCA 144 at para 33). [54] Affidavits are generally not admissible in support of motions to strike applications for judicial review, in large part because the flawin the notice of application must be obvious and fatal. "“A flaw that can be shown only with the assistance of an affidavit is notobvious”" (JP Morgan at para 52). The facts alleged in a notice of application are taken to be true, assuming they are capable of proof ina court of law (Turp v Canada (Foreign Affairs), 2018 FC 12 at para 20).

Because an applicant is required to state the complete groundsin its notice of application, no affidavit is required to supplement its side of the matter. One exception to the bar on affidavits is that

either side may file an affidavit which provides background information that is referred to and incorporated by reference in a notice ofapplication (JP Morgan at para 54). [55] In the instant case, LMG filed an affidavit providing background documents, which are either referred to in the Notice ofApplication or necessary to understand it. No contentious factual matters were addressed in the affidavit, and no objection was raised toit.

(2) The Notice of Application in this case [56] Under the JP Morgan framework, the first task is to examine the notice of application to gain a realistic appreciation of its essentialcharacter; this requires a practical approach that does not fasten onto matters of form, but rather seeks to identify the core elements of theclaim being made by the applicant in a particular case. [57] As noted earlier, the Notice of Application in this case is a lengthy and complex document. Certain portions will be discussed inmore detail below; at this stage, my task is to glean an overall appreciation of its essential elements.

It is important to underline that thisis a preliminary legal analysis, and is not meant to pre-empt or foreclose arguments or findings if this matter proceeds to a hearing. [58] I find that the Applicants are essentially raising three primary claims in the Notice of Application: A. The rights recognition approach: They challenge the government’s "“rights recognition”" approach, by which Aboriginal orTreaty rights are acknowledged and recognized before they have been determined by a court of law.

The Applicants argue that thisapproach is based on a misinterpretation of the binding jurisprudence of the Supreme Court of Canada, and that rights undersection 35 do not have constitutional value unless and until they are recognized by a court of law; B. The Ministers’ authorities and alleged unlawful delegations: They challenge the authorities of the respective Ministers tonegotiate and enter into the agreement, and this includes the alleged unlawful delegation and the alleged restriction on the Ministerof Fisheries and Oceans’ power to regulate the fishery; C.

Process claim: They challenge the process by which the RRA was finalized, in particular that it was done without involving themas representatives of non-Indigenous fishers with an interest in the process and outcome, and without publishing it in the CanadaGazette. [59] The ultimate goal of the Applicants is to obtain a declaration from this Court invalidating the RRA. [60] For its part, LMG submits that the entire claim is essentially political rather than legal, and that the Applicants’ arguments are alldoomed to fail.

The Attorney General agrees with the substantive arguments advanced by the Applicant that the claim should be struck. [61] With this background, we enter into the heart of the question whether the Applicants’ Notice of Application for judicial reviewshould be struck, in whole or in part. It will be convenient to group the arguments of the parties into the three categories listed above. (

a) The Rights Recognition Approach [62]

Section 2(c)(iii) of the Notice of Application for judicial review alleges that the Ministers exceeded their authority by recognizingthat LMG possess Aboriginal and Treaty rights concerning fishing rights for food, social and ceremonial, as well as commercial,purposes. The Applicants base this on two related claims: the Ministers adopted an incorrect

interpretation of the principles set out in leading Supreme Court of Canada decisions, includingR v Gladstone, (SCC), [1996] 2 SCR 723 [Gladstone]; R v Van der Peet, (SCC), [1996] 2 SCR507 [Van der Peet]; Marshall II; Lax Kw'alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams]; andR v Desautel, 2021 SCC 17 [Desautel]; and Aboriginal and treaty rights do not have constitutional value under section 35(1) of the Constitution Act, 1982 until they areclaimed and their existence is recognized by a superior court under the test established in Van der Peet and affirmed in LaxKw’alaams and Desautel, in the context of a civil action for declaratory judgment in which all interested parties are heard in a fairand equitable manner. (

i) The parties’ submissions [63] LMG argues that this argument is doomed to fail for two reasons: it wrongly seeks to apply the Van der Peet test for establishingAboriginal rights to the existing (and already recognized) treaty rights that LMG possess; and it fails to acknowledge that

section 35protects potential rights embedded in as yet unproven Aboriginal rights claims. [64] LMG submits that the test for establishing Aboriginal rights under

section 35 was set out in Van der Peet at paragraph 46: "“…inorder to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of theaboriginal group claiming the right.”" LMG contend that Canadian jurisprudence has confirmed that this test does not apply to treatyrights, which instead focus on the existence of the treaty, the meaning of its terms, and whether the individual has any basis to assert theright based on ancestry or other connection to the Aboriginal group who signed the treaty. [65] LMG points to the body of interpretive principles applied to treaty rights in cases such as Marshall I, which include the requirementthat treaty

interpretation take the Aboriginal perspective into account in seeking to find a common meaning for the promises set out inthe document. Although these principles may be similar to the requirement set out in Van der Peet to understand an Aboriginal right fromthe perspective of the group that asserts it, this does not in any way incorporate the Van der Peet test for establishing an Aboriginal rightinto treaty

interpretation.

[ 66 ] LMG argue that the treaty right recognized in the Marshall cases, and affirmed in subsequent decisions such as R v Marshall; R v Bernard , 2005 SCC 43 at para 13 , includes the right to fish and sell fish irrespective of species.

This was confirmed in Anglehart v Canada , 2018 FCA 115 [ Anglehart CA ] at para 5 , where the Federal Court of Appeal held that a consequence of the Marshall decisions was that " “DFO would henceforth be required to integrate First Nations into the commercial fishing of all species.” " LMG asserts that the RRA simply acknowledges what already exists by law, and therefore the Applicants’ argument is without any merit. [ 67 ] The second fatal flaw in the Applicants’ argument about rights recognition, according to LMG, is that it fails to recognize that

section 35 protects Aboriginal and treaty rights even before their existence is confirmed by a court. As stated by the Supreme Court of Canada in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) , 2017 SCC 54 [ Ktunaxa Nation ]: [78] The constitutional guarantee of s. 35 of the Constitution Act, 1982 is not confined to treaty rights or to proven or settled Aboriginal rights and title claims.

Section 35 also protects the potential rights embedded in as-yet unproven Aboriginal claims and, pending the determination of such claims through negotiation or otherwise, may require the Crown to consult and accommodate Aboriginal interests…Where, as here, a permit is sought to use or develop lands subject to an unproven Aboriginal claim, the government is required to consult with the affected Aboriginal group and, where appropriate, accommodate the group’s claim pending its final resolution.

This obligation flows from the honour of the Crown and is constitutionalized by s. 35 . (citations omitted) [ 68 ] LMG argues that where, as here, the Crown has knowledge of the potential existence of Aboriginal rights, it is under a constitutional imperative to take action to ensure it does not affect those rights. The Courts have long recognized that this obligation flows from the principle of the honour of the Crown and LMG argues that the rights recognition approach reflected in the RRA embodies this doctrine in action.

The Applicants describe their view of the implications of the Applicants’ argument in their written submissions: 51. If the Applicants were correct, reconciliation through negotiation would be impossible and implementation of Aboriginal and treaty rights would stall as every Indigenous group in the country turned to the courts to have their rights determined. [ 69 ] LMG submits that the approach urged by the Applicants is inconsistent with the duty to negotiate.

As recognized by the Québec Court of Appeal in the Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis , 2022 QCCA 185 at para 446 : [ translation ] " “It is the responsibility of the Crown, at both the federal and provincial levels, to determine how Aboriginal rights interact with the individual and collective rights of the population as a whole.” " LMG contends that the RRA reflects the federal government’s commitment to living up to its constitutional obligations, as recognized by the case-law.

Because of this, LMG submits that the Applicants’ argument on this point is doomed to fail. [ 70 ] The AGC argues that the signature of the RRA constituted an important step in the implementation of the Aboriginal and treaty rights recognized by

section 35 . The AGC supports the LMG’s motion to strike because the claim has no chance of success. In the AGC’s view, the Applicants’ claim rests on a challenge to the power of the Ministers to conclude the Agreement. This is bound to fail because the Ministers were acting on behalf of the Crown, and the Crown clearly has the authority to enter into an agreement regarding Aboriginal and treaty rights with the LMG. [ 71 ] The AGC contends that the RRA represents a collaboration between the parties to recognize the rights protected by

section 35 . This is appropriate, because, contrary to the Applicants’ argument, courts do not recognize Aboriginal and treaty rights; rather, the Constitution does so, through section 35(1) which " “recognizes and affirms” " these rights. Where the Crown and Aboriginal groups do not agree on the nature, scope or implications of the rights, courts must play a role in resolving the disputes.

But if the Crown and a particular Aboriginal group do agree, the AGC asks why it would be necessary – as a matter of law – to force the parties to go to court before the rights can be recognized and implemented through an agreement? [ 72 ] The Applicants submit that their claim should not be struck at this preliminary stage, noting that such relief is highly exceptional. In the Applicants’ view, the arguments of LMG and the AGC relate to the merits of the case and should be made in the context of the actual judicial review, rather than at this preliminary stage.

The Applicants note the length of the record filed by LMG on its motion as an indication that the arguments being advanced go to the merits and should not be disposed of on a preliminary motion. [ 73 ] In this case, the Applicants say that several factors support their argument that the claim should not be struck. First, they say that the already very high bar to strike a notice of application for judicial review should be raised even higher in the constantly evolving context of the law relating to Aboriginal and treaty rights: Shubenacadie Indian Band v Canada , 2001 FCT 181 at para 5 .

The development of the law should not be stifled by striking pleadings that involve new or emerging questions or that challenge new approaches by governments or Aboriginal groups. [ 74 ] The Applicants submit that the core of their claim relates to differences in

interpretation of the governing authorities, in particular the Marshall decisions as well as other decisions of the Supreme Court of Canada dealing with Aboriginal and treaty rights. They point out that the Federal Court of Appeal expressly found that it was not appropriate to strike out a claim where the dispute boiled down to a different

interpretation of the scope of the Marshall decisions: Canada (Attorney General) v Shubenacadie Indian Band , 2002 FCA 249 at para 7 . [ 75 ] According to the Applicants, the RRA is based on a serious misinterpretation of the scope of the rights recognized in the Marshall decisions, and this argument should be heard by the judge on the application for judicial review.

The rights that the Agreement purports to recognize have never been demonstrated in a court of law, and the recognition of these rights has important consequences for third parties, including other Indigenous groups and non-indigenous people who share the resource, as the Supreme Court of Canada has recognized: Marshall II at para 42 ; and see the discussion in Desautel . [ 76 ] The Applicants also argue that the RRA does not merely recognize previously-established rights, but rather it presumes such rights exist.

This argument focuses on both the scope of the treaty right to fish, and the existence of Aboriginal rights in relation to fisheries governance that is referenced in the Agreement. According to the Applicants, this presumption is contrary to well-established law that

requires a clear demonstration that the specific rights of a particular Aboriginal group exist: R v Sundown, (SCC),[1999] 1 SCR 393 at para 25. [77] In addition, the Applicants submit that the presumed recognition of constitutionally-protected rights can have serious consequenceson other parties, including other Indigenous groups as well as non-Indigenous people who share the same resource. In this case, theApplicants claim that the RRA risks creating a completely different fishery regime for Indigenous and non-Indigenous fishers, and thiscan multiply if the Ministers recognize Aboriginal or treaty rights for other groups. [78] The Applicants recognize that

section 35 protects Aboriginal rights in two different ways: where rights are asserted but have notbeen determined, the Crown has a duty to consult and accommodate; where rights have been determined, the Crown has a constitutionalobligation to interfere with such rights as little as possible: Gladstone; Marshall II; R v Sparrow, (SCC), [1990] 1 SCR1075 at 172 [Sparrow]; Tsilhqot’in v British Columbia, 2014 SCC 44 at para 125. The Applicants argue that the Crown has gone furtherin the RRA by acknowledging and giving effect to rights before they have been established, based on an incorrect

interpretation of thelaw. [79] In response to LMG’s argument that the Van der Peet test does not apply to treaty rights, the Applicants submit that the RRArecognizes Aboriginal rights, not only treaty rights, and therefore the position advanced by LMG should be rejected. [80] The substantive and procedural aspects of this novel case require a full hearing on the merits, according to the Applicants. (ii) Discussion [81] On this point, I agree with the submissions of LMG and the AGC. The Applicants’ claim that the Ministers exceeded their authorityby entering into an agreement is doomed to fail.

It ignores that the Ministers signed the RRA on behalf of the federal Crown, and is alsobased on a misinterpretation of the case-law. [82] First, it is important to underline that the RRA was entered into between the LMG and the Crown in right of Canada. The Ministerssigned the Agreement as representatives of the Crown, but the agreement itself binds the Crown in right of Canada. On this, I agree withthe AGC that this is a fundamental element of the agreement and a fatal flaw in the Applicants’ claim.

The arguments concerningspecific powers of the Ministers and the alleged unlawful delegation of authority are discussed in more detail below. The point here is amore fundamental one: the Ministers signed on behalf of, and as authorized representatives of, the Crown in right of Canada. [83] The Applicants have not raised any argument that challenges the authority of the Ministers to bind the Crown. There is no allegationin the Notice of Application for judicial review that the Ministers were somehow not able to act in this capacity; no imposters replacedthem, no forged signatures are alleged.

Instead, the Applicants’ entire argument on this point relates to the authorities of the respectiveMinisters – and this is discussed below.

Whatever the specific authorities assigned by statute to the respective Ministers, there can be noquestion that they were authorized to act on behalf of the Crown in right of Canada, nor that the federal Crown has the authority to enterinto an agreement with the LMG regarding Aboriginal and treaty rights. [84] The second major problem with the Applicants’ claim on this point relates to the scope of the Crown’s authority to acknowledge andgive legal effect to Aboriginal and/or treaty rights.

On this, the Applicant makes two central arguments: that rights cannot be recognizeduntil they are confirmed by a court of law through a declaration of rights in a civil proceeding involving all interested parties; and that theRRA is based on a misinterpretation of the relevant case-law, in particular the Marshall decisions. Both arguments are doomed to fail, inmy view. [85] The Applicants do not cite any authority that purports to limit the Crown’s capacity to enter into negotiations and/or agreements withAboriginal peoples regarding their rights and interests. In my view, whether the Crown’s

interpretation of the scope of the Marshalldecisions is legally accurate or not is beside the point, at least insofar as this concerns its capacity to negotiate a resolution of a disputeabout these matters with LMG. The Applicants argue that the legal scope of LMG’s fishing rights, as determined by the MarshallDecisions and subsequent jurisprudence, somehow acts as a limit to the scope of the Crown’s authority to negotiate.

In support of this,they point to the possible impact of the negotiations on the rights or interests of other Indigenous groups, as well as non-Indigenouspeople who also participate or seek to participate in the fishery. I will return to the procedural aspect of this below. To the extent that theApplicants’ argument rests on an asserted limit on the lawful authority of the Crown to negotiate agreements with Aboriginal peoplesabout their rights prior to the formal recognition of such rights by a court, I cannot agree that any such limit exists. [86] Several considerations support my finding on this point.

First, the text of

section 35 itself states that "“existing aboriginal and treatyrights of the aboriginal peoples of Canada are hereby recognized and affirmed.”" The Constitution "“recognizes”" and "“affirms”" suchrights, and the rights recognition approach the Applicants challenge is consistent with the text of the provision. [87] Second, the law is abundantly clear that

section 35 protects rights that have not yet been recognized or declared by a court of law.For example, in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation], the Supreme Court of Canadarejected the argument that the Crown was under no obligation to recognizes potential rights of Aboriginal groups even before they areformally established.

The Court explained its reasons for rejecting this argument, as well as the practical consequences of giving effect tosuch an approach: 27 …The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting theseinterests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yetunproven, interests. …To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginalclaim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource.

That is nothonourable. [88] Third, the Crown’s obligation to seek negotiated solutions to Aboriginal or treaty rights disputes has a constitutional dimension thatinvokes the concept of the honour of the Crown. Imposing a prior restraint on the scope of the Crown’s authority to negotiate unless and

until such rights are formally established by a court of law runs counter to that idea. As the Supreme Court noted in Haida Nation the duty to consult and accommodate claims prior to their formal recognition and proof is " “part of the process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution” " ( Haida Nation at para 32 ).

The Court explained: 33 To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the “meaningful content” mandated by the “solemn commitment” made by the Crown in recognizing and affirming Aboriginal rights and title: Sparrow , supra , at 1108. It also risks unfortunate consequences. When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation.

Nor is it honourable. [ 89 ] On this point, one might observe that the delineation of reciprocal rights and obligations — before they have been formally established in any court of law — has been a constant feature of agreements between the Crown and Aboriginal peoples from the early peace and friendship treaties and similar agreements, through to the numbered treaties and continuing to modern day agreements.

The Applicants have not demonstrated any reason why the clock should be turned back now. [ 90 ] A related consideration is that my finding on this element of the Applicants’ argument does not rest on any particular feature of the RRA or any exercise of authority pursuant to it. The Applicants’ argument on this point is more of a matter of general principle. The Applicants raise other arguments about certain features of the RRA, which are discussed below.

This aspect of their claim, however, rests on fundamental assertions about what the law requires and allows. [ 91 ] I agree with the submission of LMG that the Applicants’ challenge to the rights recognition approach runs counter to the many cases in which Courts have called for a negotiated approach rather than litigation. It is not necessary to attempt any comprehensive list of such authorities; many of the pertinent, recent references were discussed in Desautel , at paragraphs 87-91 .

In Desautel , the Supreme Court reviewed a series of cases that have found that the honour of the Crown requires the Crown to participate in processes of negotiation; that reconciliation requires the Crown and Aboriginal people to work together to reconcile their interests; and that negotiation can lead to better outcomes because of the procedural and evidentiary limitations inherent in civil, regulatory and criminal cases.

The Court cites the observation in Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 24 , that " “[t]rue reconciliation is rarely, if ever, achieved in courtrooms.” " [ 92 ] While the Applicants may wish to debate the government’s rights recognition approach or the terms and scope of the RRA through other avenues, as a matter of law I am persuaded that the Applicants’ challenge to it as expressed in its Notice of Application for judicial review is bound to fail.

I therefore find that this is one of the " “exceptional circumstances” " where allowing this aspect of the claim to proceed to a hearing is not warranted, and the relevant paragraphs of the Notice of Application for judicial review will be struck. (

b) The Ministers’ authorities and alleged unlawful delegations [ 93 ] This aspect of the Applicants’ case brings together several claims directed towards both Ministers. First, the Applicants say that the Minister of Crown-Indigenous Relations failed to exercise her responsibility to negotiate agreements under paragraph 7(

b) of the Crown- Indigenous Relations Act and instead illegally delegated such powers to the Minister of Fisheries and Oceans and DFO officials. [ 94 ] Next, the Applicants submit that the Minister of Fisheries and Oceans exceeded her authority by failing to consider all of the criteria established by

section 2.5 (in particular paragraphs (a), (b), (c), (e), (f), (

g) and (h)) of the Fisheries Act , before entering into the RRA. A somewhat related argument is that the Minister of Fisheries and Oceans exceeded her powers by unlawfully delegating certain of her regulatory authorities and failing to live up to the obligation to conserve and protect fish and fish habitat, as required by

section 2.1 of the Fisheries Act . (

i) The parties’ submissions [ 95 ] LMG submits that these arguments are doomed to fail because no delegation of authority occurred. The Minister of Crown- Indigenous Relations signed the Framework Agreement in 2018, and this established the process under which the RRA was negotiated. The Minister of Crown-Indigenous Relations also signed the RRA, as did the Minister of Fisheries and Oceans, and LMG argues that there is no law that forbids collaboration and cooperation between Ministers that enables them to conclude agreements concerning their respective spheres of authority.

LMG submits that this is what happened in this case and the Applicants’ challenge has no legal foundation. [ 96 ] The AGC advances a similar argument, noting that

section 4 of the Department of Fisheries and Oceans Act , RSC 1985, c F-15 makes clear that the Minister of Fisheries has responsibilities and authorities in regard to coastal and inland fisheries, and that the Crown- Indigenous Relations Act authorizes the Minister to enter into agreements with Indigenous peoples as well as to exercise leadership within the Government of Canada in relation to the affirmation and implementation of

section 35 rights, including through the negotiation of treaties or other accords. In light of these Ministerial authorities, the AGC argues that the Applicants’ argument on this point must fail.

The Ministers did not exceed their respective authorities, and there is nothing that forbids them from working together to achieve a result that advances both of their mandates. [ 97 ] In response to the Applicants’ arguments that specific provisions of the RRA unlawfully delegate or restrict the authorities of the Minister of Fisheries and Oceans, the AGC submits that a careful reading of the text of the Agreement demonstrates why this argument cannot succeed. For example, the AGC points to the wording in the final " “WHEREAS” " clause in the

Preamble, which speaks to Canada’s authorities to negotiate other agreements or arrangements " “with the goal of revitalizing and recognizing the mechanisms, including Mi’gmaq Laws, by which the LMG governs and manages its fisheries.” " The AGC underlines that the scope of this is expressly limited to the LMG management and governance of its fisheries, not all fisheries, and it does not involve any general delegation of power. [ 98 ] Similarly, the AGC submits that other clauses in the RRA confirm that while Canada agrees to seek to support LMG’s access to the

fishery as well as its capacity to govern its’ members access to its communal fishery, nothing in the Agreement takes away from theauthority of the Minister to regulate fisheries access on behalf of all Canadians, in the public interest. This is specifically referenced in anearlier "“WHEREAS”" clause in the Agreement, and the AGC submits that nothing in the Agreement takes away from thisresponsibility. [99] In regard to the scope of the LMG fishery, the AGC argues that two important factors combine to mute the force of the Applicants’claims.

First, the RRA defines "“LMG’s Fishery”" as follows: “LMG’s Fishery" means the fisheries governance and fishing activities undertaken by the LMG and members of theListuguj Mi’gmaq First Nation, whether for food, social, ceremonial, or commercial purposes, in relation to any species forwhich the DFO issues the LMG an Aboriginal Communal Licence, excluding salmon… [100] The AGC underlines the significance of the fact that the LMG fishery is limited to "“any species for which the DFO issues theLMG an Aboriginal Communal License…”".

Related to this, the AGC submits that the scope of LMG’s authority to enact laws is limitedunder the RRA: “Mi’gmaq Laws” means the rules, norms, traditions, and customs, whether elaborated in writing or in oral tradition, thatgovern Mi’gmaq community members, bodies, and institutions pursuant to Mi’gmaq communities’ inherent right to self-determination, including the right to self-government… [101] As the AGC observes, there is no reference to LMG laws or regulations replacing or overriding any of the provisions of theFisheries Act and any applicable regulations.

Rather, the RRA recognizes the right of LMG to enact laws that govern its members’exercise of their communal rights. Under the Agreement, the Minister will continue to issue fishing permits and the LMG is notauthorized to do so. The AGC acknowledges that the Agreement adds to the list of considerations that the Minister must consider inmaking decisions regarding the LMG fishery.

Nothing in the Agreement limits or displaces the ultimate authority of the Minister. [102] Based on all of these arguments, the AGC argues that the Applicants’ claims regarding the Ministers’ authorities and allegedunlawful delegations must fail, and therefore that these claims should be struck. [103] For their part, the Applicants submit that their claim raise several questions that should be determined by the judge hearing thejudicial review on the merits.

For example, the question of whether the Minister of Crown-Indigenous Relations unlawfully delegatedauthority to the Minister of Fisheries and Oceans invokes difficult and fact-based inquiries concerning the permissible scope ofMinisterial delegation, and whether the legislation authorizes implicit delegation, citing: Procureur général du Québec c Lamontagne,2020 QCCA 1137 at paras 38-39 and 48; Ramawad v Minister of Manpower and Immigration, (SCC), [1978] 2 SCR375 at 380-81.

The Applicants submit that such questions should not be determined on a preliminary motion to strike, but should ratherbe assessed with the benefit of the full factual record and the parties’ submissions on the merits. [104] The Applicants argue that the Crown-Indigenous Relations Act includes specific limits on the authority of the Minister of Crown-Indigenous Relations to provide services and to delegate powers. Under sections 8 and 9 of that statute, services and delegations can onlybe between the Minister of Crown-Indigenous Relations and the Minister of Indigenous Services.

Based on these specific provisions, theApplicants contend that the involvement of the Minister of Fisheries and Oceans in the negotiation and signature of the RRA wasinvalid. [105] Furthermore, the Applicants submit that the Minister of Fisheries and Oceans has the authority to conclude agreements withIndigenous groups regarding the fishery, but in doing so must consider a number of criteria specifically listed in

section 2.5 of theFisheries Act. The Minister also has obligations under

section 2.1 regarding the management and conservation of the fishery and fishhabitat. This embodies the exclusive federal jurisdiction allocated by section 91(12) of the Constitution Act, 1867, in relation to the seacoast and inland fisheries. [106] The Applicants argue that the Minister exceeded her authority by negotiating an agreement that recognizes the right of LMG tomanage its fisheries, in particular through its own laws. The recognition of an autonomous authority to regulate a fishery runs counter tothe statutory powers and obligations of the Minister, according to the Applicants.

They say it also contravenes the exclusive federaljurisdiction in relation to the fisheries under paragraph 91(12) of the Constitution Act, 1867. [107] Related to this, the Applicants submit that the question of whether it is permissible to acknowledge and empower Aboriginal self-government in relation to the fishery by agreement rather than by passing a law is an important question that should be left to the judgehearing the judicial review on the merits.

They contend that enacting a law would involve public debate and provide an opportunity forinput from all interested parties, whereas the negotiations that resulted in the RRA were conducted in private without wider publicengagement. [108] The Applicants argue that the Minister of Fisheries and Oceans had no authority to negotiate the Framework Agreement or theRRA insofar as these address questions of LMG’s Aboriginal rights relating to fish, including any self-government rights related thereto,because such powers are the exclusive domain of the Minister of Crown-Indigenous Relations.

The Notice of Application for judicialreview in this case traces the history of negotiation mandates, policy statements, and briefing materials issued by DFO, and argues thatthese reflect an unlawful delegation of powers in regard to Indigenous rights.

They argue the same flaw appears in various Ministerialmandate letters, which direct the Minister of Fisheries and Oceans to negotiate agreements to implement Aboriginal fishing rights. [109] Their final argument on this point is that the Minister of Fisheries and Oceans is required to manage the fishery for the interests ofall concerned, including the various Aboriginal groups who have Aboriginal or treaty rights to fish for food, cultural, ceremonial orcommercial purposes, as well as non-Indigenous fishers: Gladstone at paras 65-67; Marshall II at paras 40-42. (ii) Discussion

[110] Having reviewed the parties’ submissions and the relevant authorities, I can see no benefit in allowing this claim to proceed to ahearing. It should be struck because there has been no delegation of authorities, and the Minister of Fisheries and Oceans retains the finalauthority in relation to the issuance of permits and the management of the fishery for the public interest. [111] I agree with many of the arguments submitted by LMG and the AGC.

First, on the face of the RRA and the FrameworkAgreement, there has been no delegation of Ministerial powers or authorities – either as between the two Respondent Ministers, orbetween either of them and LMG. The fact that the two Ministers and their respective departmental officials collaborated in thenegotiations that resulted in the RRA does not imply any unlawful delegation of authorities.

Insofar as these discussions involvedAboriginal and treaty rights issues, it bears repeating that the obligation to seek to negotiate on such matters lies on the Crown, andcannot be the exclusive preserve of a single Minister. [112] As regards the considerations for decision-making listed in the Fisheries Act, the statute contains several relevant provisions.Under

section 2.3, the Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by

section 35, andsection 2.4 requires the Minister to consider any adverse effects on such rights when making a decision under the Act. [113]

Section 2.5 lists a number of factors the Minister "“may”" consider, including the sustainability of the fisheries (para (b)),Indigenous knowledge (para (d)), community knowledge (para (e)), and social economic and cultural factors (para (g)).On the face of theRRA there is no reason to believe that the Minister has "“signed away”" any power to consider all of the pertinent factors in making anydecision under the Act. [114] As the AGC pointed out, the final authority in regards to issuing permits under the Agreement remains with the Minister, and inexercise of that authority the Minister is obliged by the terms of the Agreement to take into account recommendations made under thecollaborative management approach endorsed by its terms, but the Minister has the final word.

It is not a tenable argument that by addingto the inputs the Minister will receive or the factors that the Minister must consider, the Minister has somehow abrogated or abandonedany of the Minister’s authorities, responsibilities and obligations set out under the Fisheries Act. [115] The Applicants’ arguments express two more general concerns relating to the terms of the RRA. First, they are concerned by thecreation of a "“parallel”" governance regime for the fishery, given that it is a limited and shared resource. They object to the recognitionof LMG (or Mi’gmaq) laws in relation to fisheries governance.

Related to this, the Applicants are concerned about the impact of theAgreement on the overall sustainability of the fishery, as a shared resource. I am not persuaded that either point has any chance ofsuccess, in light of the very terms of the Agreement itself. [116] First, as emphasized by the AGC, the governance authorities recognized by the RRA are limited to the LMG’s fisheries.

That is tosay, under the Agreement Canada has accepted that the LMG, in exercise of a collective or communal right to fish under a communalfisheries license issued by the Minister, can adopt laws that govern the manner in which members of their community can participate inthat fishery. There is no doubt that the Aboriginal or treaty right to fish in question here is a collective or communal right: Sparrow at1112; Marshall II at paras 13-14.

One aspect of collective Aboriginal or treaty rights is the community’s right to exercise control overhow its members exercise that right: R v Sundown, (SCC), [1999] 1 SCR 393 at para 36; Bernard v The Queen, 2017NBCA 48 at para 58; Metallic v Listuguj Mi’gmaq Government, (19 June 2013), Bonaventure No 105-17-000357-120 (QSSC) at paras 9-12; Canadian National Railway Company v Brant, at paras 48-51. [117] Although the Applicants may have concerns about the impact of the RRA on their interests in participating in the fishery, theyhave demonstrated no legal basis to question the authority of the Ministers to enter into the Agreement, and I find their arguments on thispoint are doomed to fail.

In light of this, this aspect of their claim will be struck out. (

c) The process claims [118] The Applicants’ arguments about the process address several different aspects, which boil down to two main points. First, theyobject to the fact that they were not consulted about - or given an opportunity to be involved in - the negotiations that resulted in theRRA. Second, they say that the Minister of Fisheries and Oceans was required to publish the terms of the RRA in the Canada Gazettebefore it was finalized, and then again once it was completed.

If this had been done, there would have been an opportunity for publicconsultation and input. [119] The first argument is expressed in the Applicants’ Notice of Application for judicial review at paragraph 2(c)(vi): [translation] DECLARE that, in recognizing the existence of Aboriginal and treaty rights as well as a right to self-government andindependent management in relation to the fisheries without having fairly heard and consulted all those involved, theMinister of Fisheries and Oceans and the Minister of Crown–Indigenous Relations have failed to fulfill their duty to act inthe public interest, for the benefit of all Canadians, with the goal of achieving and preserving economic and regionalfairness, contrary to the principles set out in [Gladstone and Lax Kw’alaams]. [120] The second argument is based on a claim that various provisions of the Listuguj Mi’gmaq First Nations Law on the LobsterFishery and Lobster Fishing Law No. 2019-01 [LMG Lobster Law] duplicate provisions of the Fisheries Act or the Fishery (General)Regulations, SOR 93-53.

The Applicants seek a declaration that the RRA gives the LMG law an effect that is equivalent to theselegislative or regulatory provisions. According to the Applicants, several consequences would follow such a declaration: the exclusiveauthority of the Minister of Fisheries and Oceans would have been usurped and/or limited; and the Minister would have exceeded herauthority by failing to publish the terms of the RRA in the Canada Gazette both before and after it was concluded, as required byparagraphs 4.1(5) and 4.1(8) of the Fisheries Act. (

i) The parties’ submissions

[121] LMG advance two main lines of argument against the Applicants’ process claims. First, LMG submits that the Applicants aretrying to leverage their limited privilege to participate in the fishery to something akin to the duty to consult with First Nations.

Second,they argue that the Applicants’ arguments about the process are essentially political, and they have previously been rejected by thisCourt in the Lobster litigation and by the Supreme Court of Canada in Marshall II. [122] The starting point for LMG is to recognize the different nature and status of their rights to participate in the fishery in comparisonwith the interests asserted by the Applicants. While LMG’s participation rests on constitutionally-recognized Aboriginal and treaty rights,the Applicants’ interests are subject to the discretion of the Minister.

To bolster this point, LMG points to jurisprudence that hasrecognized exactly this point, including Potlotek First Nation v Canada (Attorney General), 2021 NSSC 283 [Potlotek].

In addition,LMG relies on cases that have affirmed that non-Indigenous fishers do not have any proprietary interest in unallocated quota or fish thathave not yet been caught (Canada v 100193 PEI INC, 2016 FCA 280 at para 15), and that there is no vested right to any particularamount of quota for a particular species because the annual allocation is vested in the Minister who has a very wide discretion (Anglehartv Canada, 2018 FCA 115 [Anglehart CA] at para 44 (leave to appeal to SCC denied: )). [123] Based on this well-established body of law, LMG asserts that the Applicants’ process argument is essentially political in nature andshould therefore be rejected.

On this point, LMG note that the Applicants’ Notice of Application includes an argument that the RRA willcause the Minister to make decisions contrary to the conservation of the fishery, and that the Applicants should have been heard beforethe document was finalized.

LMG point out that RPPSG and UPM advanced a very similar argument in their motion to intervene in theLobster litigation, which was rejected as being political rather than legal: Listuguj Mi’gmaq Government v Canada (Attorney Generaland Minister of Fisheries, Oceans, and the Canadian Coast Guard), unreported, October 4, 2021,Court File No.: T-1722-19 [Lobsterintervention].

Furthermore, the idea that there is some sort of equivalency between constitutionally-protected Aboriginal and treaty rightsand the interests of non-Indigenous commercial fishers was squarely rejected in Marshall II at para 45. [124] LMG submits that the Minister of Fisheries and Oceans is permitted, but not required, to consider the interests of non-Indigenousfishers.

On the facts of this case, there is no indication that the Minister failed to do so, and the law clearly recognizes that the Ministercan favour one group over another in making decisions regarding licences and quota allocation: Anglehart v Canada, 2016 FC 1159 atpara 162; aff’d Anglehart CA at para 47. [125] On the Canada Gazette argument, LMG asserts that the claim is doomed to fail because the RRA is not an agreementcontemplated by sections 4.1 and 4.2 of the Fisheries Act, and the Agreement does not provide for any equivalency between LMG Lawsand the provisions of the Fisheries Act or Regulations.

Indeed, the RRA explicitly states that "“Canada takes no position regarding thecontents of LMG Laws”" and "“[n]othing in this Agreement impacts the application of federal legislation or regulations”" (RRA articles6.3 and 9.7). [126] For all of these reasons, LMG submits that this aspect of the Notice of Application for judicial review should also be struck outbecause it has no chance of success at a hearing on the merits. [127] The AGC took the position that the Minister had the discretion whether to consult with other groups but was not obliged by law orconstitutional principle to do so.

The Minister did not consult with other Indigenous groups because the RRA’s scope is limited to therights and interests of the LMG. [128] The AGC underlines the point that rights recognized by

section 35 already exist and are affirmed by the Constitution Act, 1982,and Marshall II confirms that the definition of the scope and meaning of such rights does not depend on the impact on other groups.There is no obligation, constitutional or otherwise, on the Minister to consult with non-Indigenous groups.

The AGC states that theApplicants’ argument on this point ignores the fact that there is an immense difference between what the constitution requires and whatmight be desirable from a policy perspective. [129] The Applicants argue that this aspect of their claim is firmly rooted in existing case-law from the Supreme Court of Canada, whichholds that when recognizing or implementing Aboriginal or treaty rights has the effect of impinging on other rights, these other rightsmust be taken into account in the negotiating process: citing Marshall II at paras 40-41; Gladstone at paras 73-75; Lax Kw’alaams atparas 11-12.

The Applicants assert that the Ministers failed to meet their procedural fairness obligations because the negotiations on theRRA were held in secret, no draft was published in advance, and there was no other consultation with other interested parties, includingthe individuals represented by the Applicants. [130] In the context of negotiations that resulted in the recognition by Canada of an open-ended Aboriginal and treaty right in regard tothe fishery, the Applicants submit that equity required that they be consulted or given an opportunity for input.

The primary obligation ofthe Minister of Fisheries and Oceans is to conserve the fishery resource, and under

section 2.5 of the Fisheries Act the Minister wasobliged to consider a range of factors, including the sustainability of the fishery, scientific information, and community knowledge. Inorder to meet this obligation, the Minister was required to provide procedural fairness to the Applicants, but has failed to do so. [131] On this point, the Applicants underline the history: the negotiations were conducted in secret; there was no wider publicconsultation or opportunity to make submissions, and the terms of the RRA were not made public for months after it was signed.

Thisgives rise to a procedural fairness concern that should be considered by the judge hearing the merits of the judicial review. [132] In the alternative, and in the event that the Court finds that the Minister had the power to negotiate and sign the agreements, theApplicants assert that the Minister failed to abide by the requirement in

section 4.2 of the Fisheries Act to publish the proposedagreement in the Canada Gazette. The Applicants say that the purpose of this step is to allow others who have an interest in the matter toprovide submissions before the terms of the agreement are finalized. The Applicants argue that the RRA falls within this provision,because it recognizes the laws adopted by LMG in relation to the fishery and the terms of co-management reflect the Minister’swillingness and intention to respect LMG’s laws.

Despite the "“saving”" clauses stating that nothing in the RRA can be interpreted asaffecting the Minister’s authority under the Fisheries Act, it is evident that many of the provisions of the LMG Lobster Law and the Lawto Make Provision for an Aboriginal Ranger Service for the Listuguj Mi’gmaq First Nation have effects that are equivalent to the federalstatutory and regulatory regime. In the Notice of Application, the Applicants list a series of provisions that they say duplicate or overlap

with the provisions of the Fisheries Act and Regulations . [ 133 ] Based on this, the Applicants assert that the Minister exceeded her authority by not publishing the proposed RRA in the Canada Gazette before it was finalized. They say that by failing to publish the draft Agreement, non-Indigenous fishers and the organizations that represent them were denied the opportunity to provide observations regarding the terms of the RRA.

The Applicants assert that this violation of the Fisheries Act has the effect of making the RRA null and void and without legal effect. [ 134 ] In conclusion on this point, the Applicants submit that their arguments regarding the process and the failure to publish in the Canada Gazette raise substantial legal questions that should be determined by the judge hearing the judicial review application.

They argue these claims are not doomed to fail and they should not be struck. (ii) Discussion [ 135 ] I am not persuaded that the Applicants’ argument about the process followed in negotiating the RRA is doomed to fail, for the reasons I will explain below.

However, there is no merit in the argument about the failure to publish the draft Agreement in the Canada Gazette and so that element will be struck. [ 136 ] I agree with LMG that it is vitally important in assessing this claim to begin by acknowledging that their Aboriginal and treaty rights stand on a completely different footing than the interests asserted by the Applicants. However, I am not persuaded that the Applicants’ argument on this point rests on any such false equivalency.

Rather, as I understand their claim, the Applicants are saying that the RRA has important and far-reaching implications and that the Crown was obliged to provide some opportunity for input from everyone who would be affected by it. In advancing this argument, the Applicants rely on the jurisprudence that recognizes that Aboriginal and treaty rights in Canada do not stand in isolation, but rather must be exercised in the context of the wider society and that in some particular circumstances, the broader public interest may prevail over a particular asserted

section 35 right. [ 137 ] The case-law cited by the Applicants provides useful examples. In Gladstone , which involved an Aboriginal right to sell herring spawn on kelp, the Supreme Court of Canada recognized the Aboriginal right, found that the relevant Regulations did not specifically accommodate it, but concluded that a new trial was needed to determine whether the regulatory regime was justified. In the course of its decision, the majority discussed the approach to justification of limitations on Aboriginal rights and the relevance of considerations relating to the wider public interest: 73.

Aboriginal rights are recognized and affirmed by s. 35(1) in order to reconcile the existence of distinctive aboriginal societies prior to the arrival of Europeans in North America with the assertion of Crown sovereignty over that territory; they are the means by which the critical and integral aspects of those societies are maintained.

Because, however, distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable.

Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation. (emphasis in original) [ 138 ] In Gladstone , the Court also recognized that in making decisions about resource allocation the government must demonstrate that it took the existence of Aboriginal rights into account, that is to say, that the regulatory authority was exercised in a manner respectful of the fact that the rights of Aboriginal peoples have priority over the access provided to other users.

The Court stated at paragraph 62 that this right has both procedural and substantive dimensions. [ 139 ] In Marshall II , the Supreme Court recognized that the paramount regulatory objective is the conservation of the resource, and that this responsibility is placed squarely on the Minister and not on the Aboriginal or non-Aboriginal users of the resource (at para 40). And in a passage that is similar to the one cited from Gladstone , above, the Court stated: 41. (

c) The Minister’s authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups . The Minister’s regulatory authority is not limited to conservation. This was recognized in the submission of the appellant Marshall in opposition to the Coalition’s motion. He acknowledges that “it is clear that limits may be imposed to conserve the species/stock being exploited and to protect public safety”.

Counsel for the appellant Marshall goes on to say: “Likewise, Aboriginal harvesting preferences, together with non-Aboriginal regional/community dependencies , may be taken into account in devising regulatory schemes” (emphasis added). In Sparrow, supra, at p. 1119, the Court said “We would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification.” It is for the Crown to propose what controls are

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