TREATY SEVEN GRAND CHIEF CHRIS SHADE v. TREATY SIX GRAND CHIEF DANNY BRADSHAW, 2003 FCT 327

Date: 20030320 Docket: T-1934-02 Neutral citation: 2003 FCT 327 BETWEEN: TREATY SEVEN GRAND CHIEF CHRIS SHADE and TREATY SIX GRAND CHIEF DANNY BRADSHAW Applicants and THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Respondents REASONS FOR ORDER GIBSON J.: INTRODUCTION [ 1 ] By application for judicial review filed the 15 th of November, 2002, the Applicants seek judicial review: ...in respect of the Governor in Council and the Minister of Indian Affairs and Northern Development introducing to Parliament on October 9, 2002, Bill C-7 First Nations Governance Act , without full and meaningful consultation with First Nation members of the Confederacy of Treaty Six First Nations, and the Confederacy of Treaty Seven First Nations. [ 2 ] These reasons follow the hearing of a motion filed the 28 th of November, 2002 on behalf of the Respondents seeking an Order pursuant to Federal Court Rules 221(1)(

a) and 4, striking the Applicants' Notice of Application for judicial review on the basis that it discloses no reasonable cause of action. In the alternative, the Respondents seek the following relief on their motion: - ... an Order pursuant to Rules 221(1)(

c) and 4; and 221(1)(f), and 4; striking out the Application of the Grand Chiefs Shade and Bradshaw on the basis that it is frivolous, vexatious and an abuse of process of the Court. - In the further alternative, an order pursuant to Rules 221(1)(a), [and] 4, Federal Court Rules, 1998 , and ss. 18.1 and 2(1) and 2(2) of the Federal Court Act , c.

F-7 R.S.C. 1985, striking out the Application on the basis that the Federal Court Act, supra , does not permit judicial review of a bill before Parliament, since Parliament is not a "federal board, commission or other tribunal". - Alternatively, and in any event, that the Court extend the twenty day (20) time period stipulated in Rule 318(1) of the Federal Court Rules, 1998 , for the Crown to produce certified copies of consultation reports until such time as this Honourable Court renders its decision on this striking motion. - In the alternative, that the Court extend the twenty day (20) time period stipulated in Rule 318(1) of the Federal Court Rules, 1998 , for the Crown to produce certified copies of consultation reports, or in the further alternative, an Order pursuant to Rule 384 that the Court direct this matter be case managed. - In the further alternative, such further relief as this Court considers appropriate. - An Order for costs.

THE APPLICATION FOR JUDICIAL REVIEW [ 3 ] The subject matter of the application for judicial review is earlier briefly described.

The grounds on which relief is sought on the application for judicial review are the following: first, that the Governor in Council, acting upon the recommendation of the Minister of Indian Affairs and Northern Development (the "Minister"), did not act in accordance with the rules of natural justice, including but not limited to, failing to procure and support consultation with Treaty Six and Treaty Seven First Nations, prior to drafting and introduction of Bill C-7 the First Nations Governance Act , notwithstanding the amount of time provided to the Respondents to properly consult with the Applicants, as required by law; secondly, that Bill C-7 the First Nations Governance Act is, inter alia , an attempt by the Government of Canada to profoundly alter the historical relationship between itself and all First Nations peoples in that it seeks to eliminate and restrict existing Aboriginal and Treaty rights, it represents an abrogation of the fiduciary duty that the Government of Canada owes to all First Nations Peoples, and it is entirely inconsistent with the inherent right of Aboriginal self-governance reflected in

section 35 of the Constitution Act, 1982 [1] ; and finally, given the special responsibilities of the Minister, the failure to consult with Treaty Six and Treaty Seven First Nations representatives was a breach of fiduciary duty owed by the Minister to the Applicants, thereby removing the jurisdiction of the Minister, presumably to introduce into Parliament Bill C-7.

[ 4 ] The reliefs requested on the application for judicial review, as extended in accordance with Orders of this Court granted the 20 th of February, 2003 [2] , are the following: 1. An Order in the nature of certiorari quashing Bill C-7 the First Nations Governance Act ; 2. An Order in the nature of mandamus requiring the Respondents to procure and support meaningful consultations with Treaty Six and Treaty Seven First Nations; 3.

An interim and permanent injunction against the passing and enforcement of Bill C-7 the First Nations Governance Act , introduced for its First Reading in Parliament on October 9, 2002, by the Minister; 4. a Declaration that Bill C-7 the First Nations Governance Act contravenes Aboriginal and Treaty rights guaranteed by

section 35 of the Constitutional Act, 1982 ; 5. a Declaration that the decision of the Minister and Governor in Council to draft and introduced Bill C-7, the First Nations Governance Act , into Parliament without first conducting full and meaningful consultation with First Nations Peoples, and particularly with the Applicants, constitutes a contravention of Aboriginal and Treaty rights guaranteed under

section 35 of the Constitutional Act, 1982 ; and 6.

Such further and other relief as this Honourable Court deems fit. [ 5 ] The evidence filed in support of the application for judicial review is the affidavit of Grand Chief Danny Bradshaw, filed the 6 th of December, 2002, and the affidavit of Grand Chief Chris Shade, sworn the 28 th of January, 2003, with respect to which permission to file was granted by Order dated the 20 th of February, 2003. [ 6 ] The affidavit of Grand Chief Danny Bradshaw, after reciting a decision of the Supreme Court of Canada which he urges "...made it clear that Parliament has a duty to engage in "extensive consultations" with different groups affected by any legislation, and particularly, "to consult and listen to the opinions of Aboriginal people affected by it", attests to his belief that in November and December of 2000, the Minister indicated in "the media" that he intended to proceed with legislation amending the Indian Act , such amending legislation being referred to as "a Modern Governance Act".

Grand Chief Bradshaw attests that the Minister indicated that such legislation would be introduced in Parliament by the autumn of 2001. [ 7 ] Grand Chief Bradshaw further refers to correspondence between the Assembly of First Nations and the Minister respecting the proposed governance legislation and respecting consultation. Copies of relevant correspondence are annexed to Grand Chief Bradshaw's affidavit as exhibits.

The Minister responded in part as follows: I hope that it is clear from my recent statements, as well as the briefings that you and other First Nation leaders have received from departmental officials, that there will be formal consultations with First Nations in developing any First Nations' governance legislation. [3] [ 8 ] Grand Chief Bradshaw attests to the continuing exchange of correspondence between the Assembly of First Nations and the Minister which reflects serious dissatisfaction on the part of the Assembly of First Nations with certain aspects of the consultation process. [ 9 ] Grand Chief Bradshaw attests that in June 2002 the Minister introduced in Parliament as Bill C-61, the First Nations Governance Act .

That bill apparently died on the Order Paper when Parliament was prorogued in September, 2002. [ 10 ] Grand Chief Bradshaw attests to the mobilization within the Confederacy of Treaty Six First Nations Chiefs of opposition to Bill C-61, including authorization for the commencement of legal action. [ 11 ] As earlier noted in these reasons, a successor to Bill C-61 was introduced in the House of Commons as Bill C-7 on the 9 th of October, 2002. Grand Chief Bradshaw annexes to his affidavit a copy of a letter that he faxed to the Minister on the 16 th of October, 2002.

The substance of that letter reads as follows: Once again, the former Bill C-61, First Nations Governance Act has been re-introduced as Bill C-7 First Nations Governance Act , without full and meaningful consultation with First Nations members of the Confederacy of Treaty Six First Nations, for whom I am Grand Chief.

Therefore, without full, meaningful and good faith consultation with our First Nations members, we oppose the enactment of the First Nations Governance Act and respectfully request that you confirm in writing that the said Bill C-7 is being withdrawn and removed from being proposed and passed in Parliament, thus giving us the opportunity to meet and address an agenda to complete full and meaningful consultation, prior to any implementation of proposed enactments that affect our government. [4] [ 12 ] There is no indication in Grand Chief Bradshaw's affidavit and its annexes that the Grand Chief received a response to the foregoing letter. [ 13 ] Grand Chief Chris Shade's affidavit is much briefer and without exhibits.

Nonetheless, it is substantially to the same effect. The essence of his affidavit is summed up in the following extract:

...based upon the information that I have received I have come to the conclusion, and do verily believe that consultation was not conducted in any meaningful way with those bands in Treaty 7. MOTIONS TO STRIKE APPLICATIONS FOR JUDICIAL REVIEW [ 14 ] Rule 221 of the Federal Court Rules, 1998 [5] reads as follows: 221.

(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (

a) discloses no reasonable cause of action or defence, as the case may be, (

b) is immaterial or redundant, (

c) is scandalous, frivolous or vexatious, (

d) may prejudice or delay the fair trial of the action, (

e) constitutes a departure from a previous pleading, or (

f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly. 221.

(1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou

partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :

a) qu'il ne révèle aucune cause d'action ou de défense valable;

b) qu'il n'est pas pertinent ou qu'il est redondant;

c) qu'il est scandaleux, frivole ou vexatoire;

d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder;

e) qu'il diverge d'un acte de procédure antérieur;

f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. On its face, Rule 221 applies only to actions and not to applications for judicial review. [ 15 ] Generally speaking, the test for striking a pleading under Rule 221(1)(

a) is whether it is "plain and obvious" that it discloses no reasonable cause of action [6] . [ 16 ] Notwithstanding the terms of Rule 221, it is now well accepted that it is open to this Court to extend by analogy the principles of Rule 221 to applications for judicial review. [ 17 ] In David Bull Laboratories (Canada) Inc. v.

Pharmacia Inc. [7] , Justice Strayer wrote at pages 596-7: ...the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. [ 18 ] Nonetheless, Justice Strayer continued at page 600: ...This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 [now Rule 4] by analogy to other rules, to dismiss in

summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success.

Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. [citation omitted] THE ISSUES BEFORE THE COURT [ 19 ] Based upon the foregoing, I conclude that the issues before the Court on this application to strike the Applicants' application for judicial review are the following: first, is it plain and obvious that the Applicants' application for judicial review cannot succeed; secondly, can it be said that the Applicants' application for judicial review is scandalous, frivolous or vexatious; thirdly, can it be said that the Applicants' application for judicial review is an abuse of process of this Court; and finally, if the answer to any of the three

(3) foregoing issue questions is in the affirmative, is this one of the "very exceptional" cases where an application for judicial review should be struck, as contemplated by Justice Strayer in David Bull Laboratories . THE LEGISLATIVE SCHEME [ 20 ] Subsections 18.1(1) and (2) of the Federal Court Act [8] read as follows: 18.1

(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby , or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. [emphasis added] 18.1

(1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l' objet de la demande.

(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral , de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la

partie concernée , ou dans le délai supplémentaire qu'un juge de la

Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. [je souligne] [ 21 ] In subsection 2(1) of the Federal Court Act , the definition "federal board, commission or other tribunal" is in the following terms: "federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown , other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under

section 96 of the Constitution Act, 1867 ; [emphasis added] « office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale , à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'

article 96 de la Loi constitutionnelle de 1867 . [je souligne] [ 22 ] Subsection 2(2) of the Federal Court Act reads as follows: [9]

(2) For greater certainty, the expression "federal board, commission or other tribunal", as defined in subsection (1), does not include the Senate, the House of Commons or any committee or member of either House.

(2) Il est entendu que sont également exclus de la définition d' « office fédéral » le Sénat et la Chambre des communes ou tout comité ou membre de l'une ou l'autre chambre. ANALYSIS

a) "PLAIN AND OBVIOUS" [ 23 ] Counsel for the Respondents urged that it is plain and obvious that this application for judicial review cannot succeed because the Governor in Council and the Minister, in determining to introduce to Parliament Bill C-7, based on such consultations with First Nations peoples as had then taken place, were not, in either case, a "federal board, commission or other tribunal".

Further, counsel for the Respondents urged, neither was either Respondent "anyone directly affected", that there was no "decision or order" to review and, even if I rejected the foregoing submissions, the determination to introduce Bill C-7 and its introduction were within the ambit of subsection 2(2) of the Federal Court Act .

Counsel for the Respondents further urged that this judicial review application could not possibly succeed because the course of action, if such it be, that is sought to be reviewed was part of the "legislative process" and immune from judicial review by virtue of a decision of the Supreme Court of Canada. [ 24 ] By contrast, counsel for the Applicants urged that the Applicants had a legitimate expectation of full and meaningful consultation prior to introduction of the legislation, which expectation was based on correspondence from the Minister that is before the Court as evidence, and that the legitimate expectation had not been fulfilled.

Further, counsel urged, the Applicants' legitimate expectation was supported on a constitutional underpinning provided by

section 35 of the Constitutional Act, 1982 which reads as follows: 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. 35.

(1) Les droits existants - ancestraux ou issus de traités - des peuples autochtones du Canada sont reconnus et confirmés. (2) Dans la présente loi, « peuples autochtones du Canada » s'entend notamment des Indiens, des Inuit et des Métis du Canada.

(3) Il est entendu que sont compris parmi les droits issus de traités, dont il est fait mention au paragraphe (1), les droits existants issus d'accords sur des revendications territoriales ou ceux susceptibles d'être ainsi acquis.

(4) Indépendamment de toute autre disposition de la présente loi, les droits - ancestraux ou issus de traités - visés au paragraphe (1) sont garantis également aux personnes des deux sexes. [ 25 ] I am satisfied that the question of whether or not it is plain and obvious that the application for judicial review here sought to be struck discloses no reasonable possibility of success turns on decisions of the Supreme Court of Canada, to which counsel for the Respondents referred me, and in particular on Reference Re Canada Assistance Plan (B.C.) [10] [ 26 ] In the Canada Assistance Plan decision, Justice Sopinka, for the Court, and under the heading "Legitimate Expectations", considered three (3) earlier decisions dealing with that doctrine.

He concluded his consideration of those three (3) cases at page 558 of the reasons and continued his analysis to page 560 in the following terms: ... These three cases were considered in Penikett v. Canada ..., and the court concluded...: In these circumstances, the issues sought to be raised in paras. 12 and 12(a) [right to be consulted and duty of fairness] are not justiciable because they seek to challenge the process of legislation. The respect by the Courts for the independence of the legislative power is captured by G.-A.

Beaudoin, La Constitution du Canada (1990), in the following passage ...: [TRANSLATION] The Courts do not intervene, however, during the legislative process in Parliament and the legislatures . They have no interest as such in parliamentary procedure. They have made this clear in certain decisions. They respect the lex parliamenti . The formulation and introduction of a bill are part of the legislative process with which the courts will not meddle . So too is the purely procedural requirement in s. 54 of the Constitution Act, 1867 .

That is not to say that this requirement is unnecessary; it must be complied with to create fiscal legislation. But it is not the place of the courts to interpose further procedural requirements in the legislative process. I leave aside the issue of review under the Canadian Charter of Rights and Freedoms where a guaranteed right may be affected . The respondent seeks to avoid this proposition by pointing to the dichotomy of the executive on the one hand and Parliament on the other. He concedes that there is no legal impediment preventing Parliament from legislating but contends that the government is

constrained by the doctrine of legitimate expectations from introducing the Bill to Parliament. This submission ignores the essential role of the executive in the legislative process of which it is an integral part. The relationship was aptly described by W.

Bagehot, The English Constitution (1872), at p. 14: A cabinet is a combining committee-a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. [Emphasis in original.] Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied to prevent the government from introducing legislation in Parliament. Such expectations might be created by statements during an election campaign. The business of government would be stalled while the application of the doctrine and its effect was argued out in the courts.

Furthermore, it is fundamental to our system of government that a government is not bound by the undertakings of its predecessor . The doctrine of legitimate expectations would place a fetter on this essential feature of democracy. I adopt the words of King C.J. of the Supreme Court of South Australia, in banco , in West Lakes Ltd. v.

South Australia ..., a case strikingly similar to this one: Ministers of State cannot, however, by means of contractual obligations entered into on behalf of the State fetter their own freedom, or the freedom of their successors or the freedom of other members of parliament, to propose, consider and, if they think fit, vote for laws, even laws which are inconsistent with the contractual obligations. While the statement deals with contractual obligations, it would apply, a fortiori to restraint imposed by other conduct which raises a legitimate expectation.

A restraint on the executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself. This is particularly true when the restraint relates to the introduction of a money bill. By virtue of s. 54 of the Constitution Act, 1867 , such a bill can only be introduced on the recommendation of the Governor General who by convention acts on the advice of the Cabinet. If the Cabinet is restrained, then so is Parliament. The legal effect of what the respondent is attempting to impugn is of no consequence to the obligations between Canada and British Columbia.

The recommendation and introduction of Bill C-69 has no effect per se , rather it is its impact on the legislative process that will affect those obligations. It is therefore the legislative process that is, in fact, impugned. [some citations omitted, some emphasis added] [ 27 ] While I accept that I am bound by the foregoing, I feel compelled to express certain reservations with respect to the reasoning that it represents when applied to the facts of this matter.

Justice Sopinka, on behalf of the Court, extends the respect that Courts owe to Parliament, and which I regard as unquestioned, not merely to the Parliamentary process itself, but to what he describes as the "legislative process" involving as he defines it, actions of the Executive.

The impact is to shield from judicial review actions of the Executive such as, for example by reference to the allegations in this matter, less than full and meaningful consultation where an undertaking as to full and meaningful consultation has been given, that might well otherwise be subject to judicial review, and, in my view, appropriately so. [ 28 ] I note that the quotation from La Constitution du Canada on which Justice Sopinka relies refers to the "legislative process in Parliament" not to a broader concept of the legislative process as espoused by the Supreme Court.

With great respect, Senator Beaudoin's statement provides no support for deference extending to the broader concept. [ 29 ] I note that Justice Sopinka "leave[s] aside" the issue of review under the Canadian Charter of Rights and Freedoms .

While counsel for the Applicants before me urged that this is a matter that does involve an issue of review under the Constitutional Act, 1982 , albeit not the Charter , I regret to say that the implications of that argument in the context of the legislative process, as opposed to a regulatory process that does not directly involve Parliament [11] were not well developed before me, either in written material or in counsel's presentation. I determine that I can place no reliance on it. [ 30 ] On the facts before me, if legitimate expectations were created, they were not created during an election campaign.

The principle that a government is not bound by the undertakings of its predecessor simply does not arise on the facts before me. Thus, that principle would not place a fetter on an essential feature of democracy on the facts of this matter. [ 31 ] I cannot help but express my concern that Justice Sopinka's analysis, applied broadly, would allow Ministers of the Crown to create legitimate expectations in First Nations peoples, as well as perhaps others, for which they could not be held responsible before the courts.

I would find that result to be alarming if an alternative remedy were not available to persons such as the Applicants here. I am satisfied that such an alternative remedy does exist on the facts of this matter and I will turn to a brief discussion of that alternative remedy now. [ 32 ] A Minister of the Crown can be held accountable before Parliament for legitimate expectations he or she creates that might be said to impugn the role of Parliament in the legislative process.

Put another way, Parliament itself is fully capable of reaching its own conclusion as to whether the Minister has fulfilled any obligations that he has undertaken, or that exist in law, to First Nations peoples and, if it concludes he has not, of tailoring a remedy that it considers appropriate. [ 33 ] Counsel before me advised that Bill C-7, the First Nations Governance Act , was referred to a Committee of the House of Commons following first reading, thus, at a very early stage of the proceedings in the House of Commons and at a time when, if my recollection of Parliamentary procedure is not outdated, the Parliamentary Committee would have maximum flexibility in its consideration of the Bill.

Counsel further advised me that the Committee is undertaking wide consultations on the Bill. It is open to the Applicants to seek an opportunity to present the grievances that are at the root of this application for judicial review to the Committee and to leave to the Committee in the context of the totality of its consultations, an appropriate remedy if the Committee is satisfied that a remedy is warranted.

If the Applicants are dissatisfied with the result before the Parliamentary Committee, and if Bill C-7 is enacted, and the Applicants are satisfied that, by reasons of flawed process, it is unconstitutional, a remedy before the courts would exist at that time.

[ 34 ] While the foregoing alternative remedy to this proceeding might well not appeal to the Applicants, I am satisfied that, in light of the cited jurisprudence of the Supreme Court of Canada, it is the remedy that is open to them and that this application for judicial review is bereft of any possibility of success or, put another way, it is plain and obvious that this application for judicial review cannot succeed.

Further, even if it could succeed, I am satisfied that a range of the reliefs requested by the Applicants are in conflict with subsection 2(2) of the Federal Court Act , quoted earlier in these reasons. [ 35 ] Finally on this issue, I turn to the question of whether or not the facts before me represent one of the rare instances where it would be appropriate to strike this application for judicial review rather than to allow it to proceed to hearing in the normal course. [ 36 ] The question of what constitutes "full and meaningful consultation" is a difficult one capable of producing differing responses among open minded people, to say nothing of among those who have significant interests at stake.

The record that would have to be produced to demonstrate the quality and quantity of consultations undertaken and their outcomes would be significant. That record is unlikely to be universally satisfactory as a base for a judicial review proceeding.

Rather, it is likely to constitute a better base, whether presented in whole or in part, for a Parliamentary Committee review which might well proceed in parallel with this judicial proceeding if it were allowed to proceed. [ 37 ] Given the state of the jurisprudence to which I have referred, and given the nature of this proceeding, I am satisfied that this application does fall within the ambit of the limited and exceptional class of applications for judicial review that should appropriately be struck on a motion such as that before me.

b) Remaining Issues [ 38 ] Early on in these reasons, I noted that counsel for the Respondents urged that this application for judicial review is scandalous, frivolous or vexatious or an abuse of the process of this Court and that neither the Governor in Council nor the Minister, on the facts of this matter, is a "federal board, commission or other tribunal". I did not interpret counsel for the Respondents to pursue these alternative arguments with the same enthusiasm with which she pursued the issue of "plain and obvious" as earlier addressed.

If it were necessary for me to do so, I would reject the "scandalous, frivolous or vexatious" and "abuse of process" arguments. The "not a federal board, commission or other tribunal" argument is, I am satisfied, subsumed in my reasoning regarding "plain and obvious". [ 39 ] The concerns of the Respondent regarding time for preparation of the "tribunal record" are, I am satisfied, rendered moot by my conclusion regarding "plain and obvious".

CONCLUSION [ 40 ] This application for judicial review will be struck without leave to further amend on the ground that it is plain and obvious on the facts before me and on the state of the jurisprudence that it cannot succeed. [ 41 ] Since completing these reasons, the reasons and decision of my colleague Justice MacKay in Senator David Ahenakew et al v. Her Majesty the Queen in right of Canada et al [12] have come to my attention. Justice MacKay had before him a motion to strike an action, not an application for judicial review.

Justice MacKay's decision arises out of essentially the same factual background as that before me in this matter but was argued some months before argument took place before me, apparently with substantially different emphasis presented. My colleague's reasons and decision have in no way influenced my reasoning, conclusion and decision herein. [ 42 ] In light of all of the circumstances surrounding the foregoing result, there will be no Order as to costs. ________________________________ J. F.C.C.

Ottawa, Ontario March 20, 2003 FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-1934-02 STYLE OF CAUSE: TREATY SEVEN GRAND CHIEF CHRIS SHADE and TREATY SIX GRAND CHIEF DANNY BRADSHAW v. THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT PLACE OF HEARING: EDMONTON, ALBERTA DATE OF HEARING: FEBRUARY 20, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON DATED: March 20, 2003 APPEARANCES : Robert W. Hladun, Q.C. FOR APPLICANTS Michele E. Annich and Rose Marie Zanin FOR RESPONDENTS SOLICITORS OF RECORD : Hladun & Company FOR APPLICANTS Barristers and Solicitors Edmonton, Alberta Morris Rosenberg FOR RESPONDENTS Deputy Attorney General of Canada Ottawa, Ontario [1]

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [2] Notices of appeal filed by the Respondents the 28 th of February, 2003, Court Files: A-117-03 and A-118-03. [3] Affidavit of Grand Chief Danny Bradshaw, Exhibit "B". [4] Affidavit of Grand Chief Danny Bradshaw, Exhibit "J". [5] SOR/98-106 . [6] Hunt v. Carey Canada Inc. 1990 CanLII 90 (SCC) , [1990] 2 S.C.R. 959. [7] (1995) 1994 CanLII 3529 (FCA) , 1 F.C. 588 (C.A.). [8] R.S.C. 1985, c. F-7 . [9] Subsection 2(2) was added to the Federal Court Act by S.C. 1990, c. 8, s.-1.

That Amending Act was before the House of Commons as Bill C-38 in the second session of the 34th Parliament, 1989-90. When what became subsection 2(2) was introduced as an amendment to the Bill at Committee, the mover, Mr. Blaine Thacker, M.P. for Lethbridge provided the following brief explanation for the amendment: Mr. Chairman, this is to make it perfectly clear that when we sit as Members of Parliament and we render our judgments as the highest court of the land, those decisions will not be subjected to judicial review.

I believe that is good public policy. [10] 1991 CanLII 74 (SCC) , [1991] 2 S.C.R. 525. [11] See: Apotex Inc. v. Canada (Attorney General) , 2000 CanLII 17135 (FCA) , [2000] 4 F.C. 264 (C.A.) which was heavily relied on by the Applicants. [12] [2003] FCT 306, March 13, 2003.