HWLITSUM FIRST NATION, as represented by its Chief v. Council CHIEF RAYMOND CLAYTON WILSON, 2016 FCA 118

Date: 20160419 Docket: A-313-15 Citation: 2016 FCA 118 CORAM: NADON J.A. RENNIE J.A. GLEASON J.A.

BETWEEN: HWLITSUM FIRST NATION, as represented by its Chief and Council CHIEF RAYMOND CLAYTON WILSON AND COUNCILLORS LINDSAY WILSON, JANICE WILSON, JIM HORNBROOK and DANNY WILSON on their own behalf and on behalf of the members of the HWLITSUM FIRST NATION Appellants and THE ATTORNEY GENERAL OF CANADA, HALALT FIRST NATION, CHEMAINUS FIRST NATION, LYACKSON FIRST NATION, PENELAKUT FIRST NATION, COWICHAN TRIBES, MUSQUEAM FIRST NATION, TSAWWASSEN FIRST NATION, KATZIE FIRST NATION, KWIKWETLEM FIRST NATION, QAYQAYT FIRST NATION (NEW WESTMINSTER), SEMIAHMOO FIRST NATION, SQUAMISH FIRST NATION, STS’AILES (CHEHALIS) FIRST NATION, TSLEIL-WAUTHUTH NATION, UNION BAR FIRST NATION, YALE FIRST NATION, AITCHELITZ FIRST NATION, LEQ’A:MEL FIRST NATION, MATSQUI FIRST NATION, POPKUM FIRST NATION, SKAWAHLOOK FIRST NATION, SKOWKALE FIRST NATION, SHXWHA:Y VILLAGE (SKWAY FIRST NATION), SQUIALA FIRST NATION, SUMAS FIRST NATION, TZEACHTEN FIRST NATION, YAKWEAKWIOOSE FIRST NATION, SEABIRD ISLAND BAND, SCOWLITZ FIRST NATION, SOOWAHLIE FIRST NATION, KWAW-KWAW-APILT FIRST NATION, KWANTLEN FIRST NATION, SHXW’ŌWHÁMEL FIRST NATION, CHAWATHIL FIRST NATION AND CHEAM INDIAN BAND Respondents Heard at Vancouver, British Columbia, on April 18, 2016.

Judgment delivered from the Bench at Vancouver, British Columbia, on April 18, 2016. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Date: 20160419 Docket: A-313-15 Citation: 2016 FCA 118 CORAM: NADON J.A. RENNIE J.A. GLEASON J.A. BETWEEN: HWLITSUM FIRST NATION, as represented by its Chief and Council CHIEF RAYMOND CLAYTON WILSON AND COUNCILLORS LINDSAY WILSON, JANICE WILSON, JIM HORNBROOK and DANNY WILSON on their own behalf and on behalf of the members of the HWLITSUM FIRST NATION Appellants and

THE ATTORNEY GENERAL OF CANADA, HALALT FIRST NATION, CHEMAINUS FIRST NATION, LYACKSON FIRSTNATION, PENELAKUT FIRST NATION, COWICHAN TRIBES, MUSQUEAM FIRST NATION, TSAWWASSEN FIRSTNATION, KATZIE FIRST NATION, KWIKWETLEM FIRST NATION, QAYQAYT FIRST NATION (NEW WESTMINSTER),SEMIAHMOO FIRST NATION, SQUAMISH FIRST NATION, STS’AILES (CHEHALIS) FIRST NATION, TSLEIL-WAUTHUTHNATION, UNION BAR FIRST NATION, YALE FIRST NATION, AITCHELITZ FIRST NATION, LEQ’A:MEL FIRST NATION,MATSQUI FIRST NATION, POPKUM FIRST NATION, SKAWAHLOOK FIRST NATION, SKOWKALE FIRST NATION,SHXWHA:Y VILLAGE (SKWAY FIRST NATION), SQUIALA FIRST NATION, SUMAS FIRST NATION, TZEACHTEN FIRSTNATION, YAKWEAKWIOOSE FIRST NATION, SEABIRD ISLAND BAND, SCOWLITZ FIRST NATION, SOOWAHLIE FIRSTNATION, KWAW-KWAW-APILT FIRST NATION, KWANTLEN FIRST NATION, SHXW’ŌWHÁMEL FIRST NATION,CHAWATHIL FIRST NATION AND CHEAM INDIAN BANDRespondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Vancouver, British Columbia, on April 18, 2016).

NADON J.A. [1] Although we cannot entirely endorse the reasons given by Manson, J in support of his order and in particular in regard to theserious issue component of the tripartite test put forward by the Supreme Court of Canada in Manitoba (A.G.) v.

Metropolitan StoresLtd., (SCC), [1987] 1 S.C.R. 110, (Metropolitan Stores) we see no basis to interfere with the impugned decision. [2] In our view, the judge’s conclusions with respect to the irreparable harm and balance of convenience components of theMetropolitan Stores tripartite test were clearly open to him in light of the evidence and we find no reviewable error in regard thereto. [3] In our view, many if not most of the issues raised by the Appellants in their application for interim relief and hence in thisappeal are issues which, by reason of their complexity and the extensive evidence required to determine these issues, necessitate in depthfactual findings which can only be made in the context of their application for judicial review or preferably in the context of a full trial ofthe issues.

To be clear, it is our opinion that it is in the context of the judicial review application or a trial that the issues raised by theAppellants should be dealt with and not in the context of an application for interim relief. [4] For these reasons, we are satisfied that we should not interfere with the judge’s order. We also see no basis to disturb hisorder on costs. [5] Consequently, the appeal will be dismissed with costs. “M. Nadon” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-313-15 (APPEAL FROM AN ORDER AND REASONS OF THE HONOURABLE MR. JUSTICE MICHAEL D.

MANSON OF THEFEDERAL COURT, DATED JUNE 26, 2015, DOCKET NO. T-2072-14.)

STYLE OF CAUSE: HWLITSUM FIRST NATION, as represented by its Chief and Council CHIEF RAYMOND CLAYTON WILSON AND COUNCILLORS LINDSAY WILSON, JANICE WILSON, JIM HORNBROOK and DANNY WILSON on their own behalf and on behalf of the members of the HWLITSUM FIRST NATION v.

THE ATTORNEY GENERAL OF CANADA, HALALT FIRST NATION, CHEMAINUS FIRST NATION, LYACKSON FIRST NATION, PENELAKUT FIRST NATION, COWICHAN TRIBES, MUSQUEAM FIRST NATION, TSAWWASSEN FIRST NATION, KATZIE FIRST NATION, KWIKWETLEM FIRST NATION, QAYQAYT FIRST NATION (NEW WESTMINSTER), SEMIAHMOO FIRST NATION, SQUAMISH FIRST NATION, STS’AILES (CHEHALIS) FIRST NATION, TSLEIL-WAUTHUTH NATION, UNION BAR FIRST NATION, YALE FIRST NATION, AITCHELITZ FIRST NATION, LEQ’A:MEL FIRST NATION, MATSQUI FIRST NATION, POPKUM FIRST NATION, SKAWAHLOOK FIRST NATION, SKOWKALE FIRST NATION, SHXWHA:Y VILLAGE (SKWAY FIRST NATION), SQUIALA FIRST NATION, SUMAS FIRST NATION, TZEACHTEN FIRST NATION, YAKWEAKWIOOSE FIRST NATION, SEABIRD ISLAND BAND, SCOWLITZ FIRST NATION, SOOWAHLIE FIRST NATION, KWAW-KWAW-APILT FIRST NATION, KWANTLEN FIRST NATION, SHXW’ŌWHÁMEL FIRST NATION, CHAWATHIL FIRST NATION AND CHEAM INDIAN BAND PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA DATE OF HEARING: April 18, 2016 REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A.

RENNIE J.A. GLEASON J.A. DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCES : Jeffrey R.W. Rath and Paul E. Reid For The Appellants Steven Postman and Alex Semple For The Respondent THE ATTORNEY GENERAL OF CANADA Geoff Plant, Q.C. and Fred Sheppard FOR THE RESPONDENT TSAWWASSEN FIRST NATION Cheryl Sharvit and Aaron Wilson For The Respondent MUSQUEAM FIRST NATION Graham Kosakoski For The Respondents HALALT FIRST NATION, CHEMAINUS FIRST NATION, PENELAKUT FIRST NATION AND COWICHAN TRIBES SOLICITORS OF RECORD : Rath & Company Barristers and Solicitors Priddis, Alberta For The Appellants William F.

Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent THE ATTORNEY GENERAL OF CANADA Gall Legge Grant & Munroe LLP Barristers and Solicitors Vancouver, British Columbia For The Respondent TSAWWASSEN FIRST NATION

Mandell Pinder LLP Barristers and Solicitors Vancouver, British Columbia For The Respondent MUSQUEAM FIRST NATION Rosenberg Law Barristers and Solicitors Vancouver, British Columbia For The Respondents HALALT FIRST NATION, CHEMAINUS FIRST NATION, PENELAKUT FIRST NATION AND COWICHAN TRIBES