[1993] 1 F.C. 195
T-3201-91
Louis Benoanie, Gabriel St. Pierre, John Besskaytsare, Pauline Mercredi, Celeste Randhile, Leon Fern, Pierre Fern, Michel Rennie, Louis Chicken, Louise Disain and Boniface Disain, and The Fond du Lac Band, in the Province of Saskatchewan, a body of Indians recognized under the Indian Act and The Black Lake Band, in the Province of Saskatchewan, a body of Indians recognized under the Indian Act and The Hatchet Lake Band, in the Province of Saskatchewan, a body of Indians recognized under the Indian Act (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian and Northern Affairs and the Government of the Northwest Territories as represented by the Government Leader and the Tungavik Federation of Nunavut, representing the Inuit of Nunavut and the Keewatin Inuit Association representing the Inuit of Keewatin District (Defendants)
Indexed as: Fond du Lac Band v. Canada (Minister of Indian and Northern Affairs) (T.D.)
Trial Division, Rouleau J.—Ottawa, September 8 and October 16, 1992.
Injunctions — Interlocutory — Application to restrain Inuit vote, step in ratification of Final Agreement on land claim settlement — Motion not premature as action for declarations, permanent injunction and damages not going to be resolved before ratification — Plaintiffs’ existing aboriginal and/or treaty rights serious issue to be tried — No irreparable harm to plaintiffs if interlocutory relief denied and Agreement ratified — Final Agreement providing protection for whatever treaty and/or aboriginal rights plaintiffs may be found to have — No irreparable harm to defendants if economic, social and educational benefits provided for in Agreement delayed — Delay and inconvenience not irreparable harm — Possible unravelling of consensus if injunction granted of concern — Regard had to public interest in future development of North — Balance of convenience favours defendants.
Native peoples — Lands — Application for interlocutory injunction restraining Inuit vote, step in ratification of land claim settlement agreement — After years of negotiations, Final Agreement between Inuit of eastern, central and high Arctic and federal Government reached — In consideration of surrender of aboriginal title, Inuit to receive benefits, including title in fee simple to 136,291 square miles — Agreement provided for creation of new territory with own legislative assembly and government —Plaintiffs claiming existing treaty and/or aboriginal rights in settlement area — Common law recognition of indigenous peoples as sole original owners and occupants of Canada — Method of establishing claims — Canadian Government policy concerning aboriginal land claims explained — Natives to resolve own competing land claims without Government interference — Motion denied upon taking into account public interest in northern development and balance of convenience favouring defendants.
Crown — Immunity — Injunctive relief not available against Crown at common law or under Crown Liability and Proceedings Act, s. 22 — Motion for order restraining Inuit vote, step in ratification of Final Agreement on land claim between Inuit and federal Government not involving Crown or Crown agency — Only if Agreement ratified will Crown immunity become issue.
This was an application for an interlocutory injunction restraining the defendants from taking any further steps towards ratification of a land claim settlement agreement which may affect the plaintiffs’ aboriginal and/or treaty rights. The Inuit of the eastern, central and high Arctic are about to enter into a comprehensive land claim settlement agreement with the Government of Canada. The Agreement provides for creation of a new territory in the Northwest Territories with its own legislative assembly and government. The plaintiffs claim existing treaty and/or aboriginal rights to a portion of that new territory.
At common law, Canada’s indigenous peoples are recognized as the sole original owners and occupants of Canada, and aboriginal title must be purchased by the Crown through treaties or land surrender agreements. Aboriginal title can be asserted throughout the vast majority of the Northwest Territories and the Government of Canada is eager to settle these outstanding land claims. The Government’s policy with respect to aboriginal land claims requires claimants to specify boundaries to their claims. They must establish traditional, continuing and current interest, based on both use and occupancy of the lands. Evidence as to “use” and “occupancy” takes the form of “map biographies”. Once a “settlement area” has been agreed to, the beneficiaries will be granted full territorial rights over that area and no other group can exercise any rights, whether of ownership, management or use without the consent of the beneficiaries. These beneficiaries are precluded from asserting any rights outside of their settlement area. Negotiations between the Inuit and the Government commenced in 1976 and have been on-going and regular since 1982. By an Agreement-in-Principle reached in April 1990, in consideration of the surrender of their aboriginal title, the Inuit are to receive defined rights to harvest wildlife; participation in agencies involved in land use and environmental assessments; ownership in fee simple of 136,291 square miles of land; royalties from mineral, oil or gas production; rights to negotiate “Impact Benefit Agreements” when major projects are proposed on lands where the Inuit own the surface rights; and payment of $1,148 billion. The Nunavut Political Accord was ratified by a plebiscite in the Northwest Territories. Legislation creating the new territorial government will be introduced in Parliament at the same time as legislation ratifying the Final Agreement. The Final Agreement was initialled in January, 1992. The Crown requires native parties to resolve their competing interests without interference from the Government. The Inuit have had to negotiate with other native parties to establish boundaries to their claim, but have been unable to reach agreement with the plaintiffs. The Inuit did agree that the Final Agreement would include provisions protecting the plaintiffs’ interests. The plaintiffs then filed a statement of claim seeking declaratory and injunctive relief. The Final Agreement gives members of two of the plaintiff bands specific rights in the settlement area. The Final Agreement must be ratified by both the Inuit and the Government of Canada. The Inuit are now preparing for the Inuit ratification vote. If approved, the Final Agreement will be submitted to Cabinet for approval and a Government bill approving it will be introduced in Parliament.
It was argued that injunctive relief is not available against the Crown either at common law or under the Crown Liability and Proceedings Act, section 22. It was also suggested that an interlocutory injunction would be premature in that the Inuit ratification vote has not yet been conducted, the result of that vote is unknown, the Inuit may not approve the Final Agreement, and even if they do, it cannot take effect unless and until Cabinet approves it.
As to irreparable harm, the plaintiffs fear that no jurisdiction exists to reverse the granting of fee simple ownership. They submitted that damages could not compensate them for loss of their way of life. They further argued that the Crown has a fiduciary obligation to the Indians with respect to lands it holds for them and that limits the Crown’s ability to deal with the lands in question until plaintiffs’ rights are ascertained. The defendants stated that if an injunction is granted they would suffer irreparable harm. All the economic, social and educational benefits that are to flow to the Inuit under the Agreement would be delayed as well as the establishment of the new territorial government. The millions of dollars already spent on the ratification process would be wasted. Finally, any significant delay of the Final Agreement may result in the unravelling of the present consensus.
Held, the application should be dismissed.
The Court was being asked to put a stop to the next step in the ratification process, the Inuit vote, which does not involve the Crown or a Crown agency. Only if the vote is ratified will the Crown have any authority to act, and then the Crown’s immunity will become an issue.
The motion was not premature. This action was not going to be heard and resolved before ratification takes place. There is considerable momentum in favour of ratification by the Inuit.
There was a serious issue to be tried as to the plaintiffs’ aboriginal and/or treaty rights over the settlement area.
The plaintiffs will not suffer irreparable harm if the relief sought is denied. The Final Agreement provides protection for whatever treaty and/or aboriginal rights the plaintiffs may be found to have, and may give them legally recognized rights which they presently do not have. The defendants will not suffer irreparable harm if they do not receive the economic, social and educational benefits due them under the terms of the Agreement. Delay and inconvenience do not constitute irreparable harm. What concerned the Court was the risk of the consensus unravelling should the injunction be granted. The Agreement was the product of many years of negotiation. It involved a number of complex issues. The future division of the Northwest Territories is contingent upon the implementation of this Agreement and this is a matter of concern to all Canadians. The balance of convenience favoured the defendants.
Even if the plaintiffs’ interests might be severely prejudiced, this is a case where regard should be had to the public interest in the future development of the North, a consideration that would tip the balance of convenience in the defendants’ favour.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(24).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.
Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 22 (as am. by S.C. 1990, c. 8, ss. 21, 28).
Federal Court Rules, C.R.C., c. 663, R. 420.
CASES JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co v Ethicon Ltd, [1975] 1 All ER 504 (H.L.); Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451; (1989), 22 C.I.P.R. 172; 24 C.P.R. (3d) 1; 91 N.R. 341 (C.A.); Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129 (F.C.A.); Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341.
DISTINGUISHES:
Inuvialuit Regional Corp. v. Canada, [1992] 2 F.C. 502 (T.D.).
CONSIDERED:
MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.C., [1985] 3 W.W.R. 577; (1985), 61 B.C.L.R. 145; [1985] 2 C.N.L.R. 58 (C.A.); Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1.
REFERRED TO:
C.I.A.C. v. The Queen, [1984] 2 F.C. 866; (1984), 7 Admin. L.R. 157; [1985] R.D.J. 16 (C.A.); Grand Council of the Crees (of Quebec) v. R., [1982] 1 F.C. 599; (1981), 124 D.L.R. (3d) 574; 41 N.R. 257 (C.A.); Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775; (1979), 94 D.L.R. (3d) 326; 25 N.R. 437 (C.A.); Pacific Salmon Industries Inc. v. The Queen, [1985] 1 F.C. 504; (1984), 3 C.P.R. (3d) 289 (T.D.); Nowegijick v. The Queen, [1983] 1 S.C.R. 29; (1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89; [1983] CTC 20; 83 DTC 5041; 46 N.R. 41; Simon v. The Queen et al., [1985] 2 S.C.R. 387; (1985), 71 N.S.R. (2d) 15; 24 D.L.R. (4th) 390; 171 A.P.R. 15; 23 C.C.C. (3d) 238; [1986] 1 C.N.L.R. 153; 62 N.R. 366; Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; (1988), 1 C.N.L.R. 47; 1 R.P.R. (2d) 105.
AUTHORS CITED
Canada, Indian and Northern Affairs, Comprehensive Land Claims Policy, Ottawa: Supply and Services Canada, 1986.
Canada, Indian and Northern Affairs, Inuit Land Use and Occupancy Project Report, Ottawa: Supply and Services Canada, 1976.
Tungavik Federation of Nunavut, Agreement-in-Principle between the Inuit of the Nunavut Settlement Area and Her Majesty in Right of Canada, Ottawa, 1990.
COUNSEL:
David C. Knoll for plaintiffs.
Mark R. Kindrachuk for Her Majesty the Queen in right of Canada as represented by the Minister of Indian and Northern Affairs.
Elizabeth Stewart for the Government of the Northwest Territories as represented by the Government Leader.
Dougald E. Brown for the Tungavik Federation of Nunavut, representing the Inuit of Nunavut and the Keewatin Inuit Association representing the Inuit of Keewatin District.
SOLICITORS:
Balfour Moss, Saskatoon, Saskatchewan for plaintiffs.
Deputy Attorney General of Canada for defendant Her Majesty the Queen in right of Canada, as represented by the Minister of Indian and Northern Affairs.
Government of the Northwest Territories, Yellowknife, for the Government of the Northwest Territories as represented by the Government Leader.
Nelligan/Power, Ottawa for the Tungavik Federation of Nunavut, representing the Inuit of Nunavut and the Keewatin Inuit Association representing the Inuit of Keewatin District.
The following are the reasons for order rendered in English by
Rouleau J.: By notice of motion dated July 16, 1992, the plaintiffs are seeking interlocutory injunctive relief.
The parties to this proceeding have competing interests to certain lands in the Northwest Territories. The Inuit of the eastern, central and high Arctic are about to enter into a comprehensive land claim settlement agreement with the Government of Canada. In return for certain benefits, the Inuit agree to surrender their aboriginal rights to an extensive land mass which covers an area of approximately 770,000 square miles of the Northwest Territories and represents one-fifth of Canada’s land mass. There are presently 17,500 Inuit living in 27 communities within this area.
If this agreement is formally entered into, a new territory called Nunavut, meaning “our land”, would be created in the Northwest Territories. Legislation would be introduced in Parliament creating the new territory and giving it its own legislative assembly and government.
The plaintiffs are claiming that they have existing treaty and/or aboriginal rights to an area in the southwestern portion of Nunavut, “the Keewatin district”. They are concerned that, if this agreement is entered into, their existing rights would be extinguished and that they would have no legal redress. Accordingly, they bring this motion seeking an interlocutory injunction preventing all of the defendants from taking any further steps towards ratification or conclusion of:
(a) any territorial or settlement boundaries;
(b) the agreement; and
(c) any other land claim settlement between the parties, which may affect, infringe upon or deny their aboriginal and/or treaty rights.
Counsel for the defendant Her Majesty the Queen in right of Canada also moved for an order pursuant to Rule 420 [Federal Court Rules, C.R.C., c. 663], granting leave to amend her amended defence filed in this action by adding thereto the following paragraph:
41 A. Further or in the alternative, he says that the injunctive relief claimed in paragraphs 81(k) and 81(l) of the Amended Statement of Claim cannot be granted against Her Majesty or against the Minister of Indian and Northern Affairs, both at common law and by virtue of section 22 of the Crown Liability and Proceedings Act as enacted by S.C. 1990, c. 8, s. 28.
Leave was granted from the bench on this application.
By way of background, the plaintiffs, the Fond du Lac, Black Lake and Hatchet Lake bands, along with the Northlands and Fort Churchill bands, who are not named as plaintiffs, constitute the northern branch of the Chipewyan Indians otherwise known as the Edthen-Eldeli Déné, or “caribou eaters”. Together, the five bands number about 4,500 people and they occupy reserves in northern Saskatchewan and Manitoba.
The three plaintiff bands have reserves in northern Saskatchewan and are known as the Chipewyan-Dénésuline or Athabasca bands. These bands have entered into treaties with the Government of Canada. Treaty No. 8 was signed on July 27, 1899 by Chief Maurice Piché. The Fond du Lac and Black Lake bands are direct descendants of Chief Piché’s band which split in 1949. Treaty No. 10 was entered into in October 1907 with the Hatchet Lake Band. The treaty boundaries, as they currently exist, are shown on a map filed as Exhibit “J” to the affidavit of Dr. Peter J. Usher. It can be seen that Treaty No. 8 covers an area north of the 60th parallel. On the other hand, it appears that the 60th parallel forms the northernmost boundary of Treaty No. 10. The plaintiffs Louis Benoanie et al. are all individuals who are registered as members of one of the aforementioned plaintiff bands and they are bringing this action on their own behalf and on behalf of future generations.
The defendant, Her Majesty the Queen, as represented by the Minister of Indian and Northern Affairs (the Crown), is seized with jurisdiction over “Indians” by virtue of subsection 91(24) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and section 35 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The Crown presently controls the lands and resources in the Northwest Territories. The Government of the Northwest Territories, as represented by the Government Leader, is charged with the administration of these lands and resources.
The defendant, the Tungavik Federation of Nunavut (TFN), is a body corporate pursuant to the laws of Canada, which was established in 1982 to represent the interests of Inuit peoples in the Keewatin, Baffin and Kitikmeot regions of the Northwest Territories (Nunavut). The defendant, the Keewatin Inuit Association is a member of TFN and is the regional association representing the Inuit residing in the Keewatin area.
Traditionally, English common law has always recognized that Canada’s indigenous peoples were the sole original owners and occupants of what is now known as Canada and that aboriginal title had to be purchased by the Crown through treaties or land surrender agreements. Aboriginal title can be asserted throughout the vast majority of the Northwest Territories and the Government of Canada is eager to settle these outstanding land claims. Funding has been provided to both Indian and Inuit associations to research and develop their outstanding claims.
The Government’s policy with respect to aboriginal land claims is outlined in Comprehensive Land Claims Policy, (1986) Ottawa: Supply and Services Canada. Essentially, aboriginal claimants must specify boundaries to their claim and they must establish traditional, continuing, and current interest, based on both use and occupancy, in these lands. Evidence with regards to “use” and “occupancy” takes the form of “map biographies”. Once a “settlement area” has been agreed to, the beneficiaries will be granted full territorial rights over that area and no other group can exercise any rights, whether of ownership, management or use, without the consent of the beneficiaries. These beneficiaries are precluded from asserting any rights outside of their settlement area.
Work on establishing land claims on behalf of all the Inuit in the Northwest Territories, began in the early 1970’s by the Inuit Tapirisat of Canada, commencing with the Inuit Land Use and Occupancy Project. Actual negotiations with the Government commenced in 1976. In the late 1970’s, the Inuit in the Western Arctic region decided to negotiate a separate settlement agreement. Accordingly the TFN was established in 1982 to take responsibility for negotiations in relation to the central, eastern and Arctic portions of the Northwest Territories. Negotiations have been on-going and regular since that date.
An Agreement-in-Principle between the Government of Canada and the TFN was reached in April, 1990 [Agreement-in-Principle between the Inuit of the Nunavut Settlement Area and Her Majesty, in Right of Canada]. This Agreement is very complex and it provides that, in consideration of the surrender of their aboriginal title to all lands and waters within Canada, the Inuit are to receive, amongst other things:
—defined rights to harvest wildlife within Nunavut and participation in the Nunavut Wildlife Management Board;
—Inuit participation in agencies involved in land use and environmental assessments;
—ownership in fee simple of 136,291 square miles of land, 14,000 square miles of which will include the subsurface mineral rights;
—royalties in the amount of 50% of the first $2 million, and 5% thereafter, from the production of minerals, oil or gas on Crown lands;
—rights to negotiate “Impact Benefit Agreements” when major projects are proposed on lands where the Inuit own the surface rights; and
—payment of $1.148 billion over 14 years to the Nunavut Trust.
Article 4 of the Agreement-in-Principle provided that, outside the claims agreement, work would commence to create a new territory in Canada which will be given its own legislative assembly and government, separate from the government of the remainder of the Northwest Territories. The Nunavut Political Accord was subsequently ratified by a plebiscite held in the Northwest Territories on May 4, 1992. Legislation creating the new territorial government will be introduced in Parliament at the same time as legislation ratifying the Final Agreement.
Other negotiations followed the signing of the Agreement-in-Principle including land selection by the various Inuit communities. The Final Agreement, was initialled on January 24, 1992, and will be formally signed upon ratification.
The TFN, in establishing their claim, have had to negotiate with parties other than the Government of Canada. As stated earlier, a prerequisite to advancing any claim is the establishment of boundaries to that claim. The concepts of “land ownership” and “boundaries” are not concepts that fall naturally into the way of thinking and lifestyle of most aboriginal groups who depend on the land for their survival. Food resources are not spread evenly over the area that comprises the North. Animals migrate according to the season; the caribou herds do not stop at “boundaries”, nor do their hunters. Consequently, the Indians and Inuit of the North tend to lead rather nomadic lives as they follow their “food supply” and it necessarily follows that there are areas of common use and occupancy.
The Crown has taken the position that where there are competing or overlapping land claims, the native parties involved should resolve their competing interests without interference from the Government; that these differences should be resolved either through an agreement as to boundaries or through resource access or land sharing arrangements.
In the present case, competing claims with regards to the proposed boundaries of the Nunavut claim, were raised by the Déné/Metis in the west, and the plaintiff bands in the south, both claiming an interest in certain lands in the southwestern portion of Nunavut, the Keewatin district. The Inuit and the Déné/Metis finally agreed to set the southwestern boundary of Nunavut at longitude 102 W., following the recommendation of Mr. John Parker, former Commissioner of the Northwest Territories.
Unfortunately however, the plaintiffs and the TFN have not been able to reach any sort of agreement. The plaintiffs take the position that they have existing treaty rights or alternatively, rights based on exclusive use and occupancy of the southwestern Keewatin district. Dr. Peter Usher was commissioned by the Prince Albert Tribal Council on behalf of the plaintiff bands to conduct a land use and occupancy report in 1989. This report concludes that the plaintiffs can establish traditional, continuing and current use of lands in the Keewatin and that in his view, this use is sufficient to satisfy the requirements for an aboriginal claim according to the government’s stated guidelines. The plaintiffs are of the view therefore, that this area should not be included in the Final Agreement. They state that they are willing to enter into overlap agreements with the Inuit in the areas where they perceive common usage and occupation.
The Inuit do not accept the plaintiffs’ position that they have exclusive rights to the lands in question. They have been advised by the Crown, that legal services had concluded that Treaties No. 5 and No. 10 did not give the Indians any rights north of the 60th parallel. Nor do they accept the plaintiffs’ allegations of rights based on “exclusive use and occupancy”. In fact, they can document “use and occupancy” as evidenced by the Inuit Land Use and Occupancy Project Report and the more recent Nunavut Atlas prepared by Dr. R. Riewe. Dr. Riewe states that from the mid-19th century, the southwestern part of what is now the Keewatin was intensively used by the Caribou Inuit; that in the 20th century, the Caribou Inuit suffered from periodic famines and epidemics; that literally all of the southern Keewatin was placed under quarantine and that in response to public concerns, the Inuit were subsequently relocated by the federal government in the 1950’s to more permanent communities at Whale Cove, Rankin Inlet and Eskimo Point (Arviat). Notwithstanding, they continued to hunt, fish and trap in the southwestern Keewatin. Of particular interest is a sub-group of the Caribou Inuit called the Ahiarmuit who occupied an area around the Ennadai Lake for approximately 100 years. When they were relocated to Eskimo Point in the 1950’s, economic circumstances prevented them from returning to their homelands until 1984. The TFN takes the position that, even if the Indians could establish aboriginal title, which is not admitted but denied, this title was extinguished by the signing of the treaties. Accordingly, TFN is not willing to excise this area from their settlement claim. They have been attempting to enter into overlap agreements but, in light of the plaintiffs’ views, this has not been possible.
Notwithstanding their inability to negotiate an overlap agreement with the plaintiffs, the TFN agreed that the Final Agreement would include provisions protecting the plaintiffs’ interests. Section 2.8.4 and Article 43 of the Agreement-in-Principle of April 30, 1990 state:
2.8.4 Nothing in the Final Agreement shall be construed to affect, recognize or provide any rights under Section 35 of the Constitution Act, 1982, for any aboriginal peoples, other than Inuit of the Nunavut Settlement Area.
…
43.1.1 Provisions in respect of any overlapping interests between the Tungavik Federation of Nunavut (TFN) and other aboriginal peoples shall be set out in the Final Agreement.
The plaintiffs issued a statement of interest and intent in May, 1990, identifying the following provisions which they wanted included in the Final Agreement: namely recognition and confirmation of their existing treaty rights and aboriginal interests; recognition and protection of their wildlife harvesting and land use rights; equitable participation on all management boards; exclusion of their traditional homelands from the Inuit land identification negotiations; and equitable participation in the cash settlement, resource royalty and economic development provisions as they apply to their traditional homelands. Another statement of interest was issued on July 11, 1991. Neither statement has been acknowledged and it is the plaintiffs’ opinion that their concerns have been ignored.
In particular, during the land identification negotiations, the Ahiarmuit of Eskimo Point chose approximately 392.5 square miles of land around Ennadai Lake. This is of grave concern to the plaintiffs who state that all of the areas selected at Ennadai Lake are either areas of overlap or are areas that are the subject of exclusive use and occupancy by the Indians in so far as the Inuit are unable to demonstrate recent and current use. They are therefore of the view that this area should not form part of the Final Agreement pending determination of their respective rights.
Seeing no progress, the plaintiffs filed a statement of claim on December 19, 1991, subsequently amended on March 17, 1992 in which they seek the following relief:
a) A declaration that the Plaintiffs, Fond du Lac Band, Black Lake and Hatchet Lake Bands and their members, and the Plaintiff, Dénésuline Indians, have legal rights in that part of the Denesuline Nene located in the Northwest Territories;
b) A declaration that these legal rights are existing treaty rights;
c) A declaration that the geographical territory identified as Dénésuline Nene, north of the 60th parallel shall form part of the Treaty area;
d) A declaration that the existing treaty rights of the Plaintiffs, Fond du Lac, Black Lake and Hatchet Lake Bands and their members and individual Dénésuline Indians apply within the geographical area identified as Dénésuline Nene;
e) A declaration that if the geographical boundaries of Treaties #8 and #10 are confined to those described by Canada, then the treaty terms and existing rights thereunder extend beyond those boundaries to cover that portion of Dénésuline Nene located in the Northwest Territories;
f) A declaration that the legal rights of the Plaintiffs, Fond du Lac, Black Lake and Hatchet Lake Bands and the individual Dénésuline Indians, if not treaty rights are existing aboriginal rights in Dénésuline Nene, beyond the treaty boundaries described by Canada;
g) A declaration that these existing aboriginal rights are the subject matter of comprehensive claims negotiations and settlements between Canada and the Plaintiffs;
h) A declaration that since there are terms of the T.F.N. Agreement and the proposed terms of the Déné/Metis Agreement in Principle, or to the extent that there are terms in any other agreement which affect, infringe upon, deny and/or extinguish the existing treaty or aboriginal rights of the Plaintiffs’ in Dénésuline Nene which are recognized and affirmed under s. 35 of the Constitution Act, 1982, they are invalid or unenforceable in that area without the consent and the appropriate arrangements concluded with the Plaintiffs;
i) A declaration that Canada has breached its fiduciary obligation by negotiating and/or concluding land claim agreements which acknowledge rights of others within Dénésuline Nene, which rights are properly the Plaintiffs’, and which thereby affect, infringe upon, deny and/or extinguish the existing treaty or aboriginal rights of the Plaintiffs’;
j) Damages for breach by Canada of its fiduciary obligations to the Plaintiffs, in concluding land claim agreements, without consultation with or approval by the Plaintiffs, which affect, infringe upon, deny and/or extinguish the Plaintiffs’ existing treaty or aboriginal rights;
k) Interim interlocutory injunctive relief against the Defendants preventing them from ratifying any territorial or settlement boundaries and concluding any land claim settlement which may affect, infringe upon, deny and/or extinguish the treaty or aboriginal rights of the Plaintiffs’ in the Dénésuline Nene;
l) Permanent injunctive relief against the Defendants preventing them from ratifying any territorial or settlement boundaries and concluding any land claim settlement which may affect, infringe upon, deny and/or extinguish the treaty or aboriginal rights of the Plaintiffs’ in the Dénésuline Nene;
m) Costs of this action.
Despite the issuance of the plaintiffs’ statement of claim as well as their objections, the Government of Canada and the TFN initialled the Final Agreement on January 24, 1992.
In accordance with section 2.8.4 and Article 43 of the Agreement-in-Principle, the Final Agreement deals specifically with the interests of the plaintiff bands. Part X of Article 40 gives the members of the Black Lake and Hatchet Lake bands the following rights:
—the right to continue to hunt and trap in the Nunavut Settlement Area, to the extent that they have used such lands in the past, on a basis equivalent to the Inuit;
—if quotas are imposed by the Nunavut Wildlife Management Board, separate quotas will be established for the bands and for the Inuit, using the same criteria;
—band members will have access to Inuit-owned lands for the purposes of continuing any traditional use;
—band members will not be required to give the Inuit a right of first refusal on the creation of sport lodges or other types of wildlife-related ventures in areas of traditional band use;
—band members will be allowed to make representations to regulatory authorities with regards to wildlife, land use and environmental matters;
—Dénésuline archaeological specimens are exempted from the provisions of the Final Agreement; and
—in the event that any band member has a cabin on Inuit-owned land, title to the site of the cabin will be relinquished by the Inuit to the Crown at the request of the band.
The Fond du Lac Band is not mentioned because, I am told, the plaintiffs’ own land use data did not indicate that its members made any use of the lands in Nunavut.
As a condition precedent to its becoming effective, the Final Agreement must be ratified by both the Inuit and the Government of Canada. The Final Agreement does not require a separate act of ratification by the Government of the Northwest Territories, but past practice with respect to comprehensive land claims has been that the Executive Council of the Northwest Territories signifies its approval or rejection of the Final Agreement following the aboriginal ratification vote.
At present, the TFN is preparing for the Inuit ratification vote. A voters list has been compiled and every household has been given a copy of the Final Agreement along with explanatory notes. Community information meetings were commenced in August, 1992. The ratification vote is scheduled for November 3, 4 and 5, 1992. If the Inuit approve the Final Agreement, it will then be submitted to Cabinet for their approval, thereafter legislation approving the Final Agreement along with the Nunavut Political Accord will be introduced to Parliament.
The plaintiffs do not feel that the provisions of Article 40 go far enough to protect their rights. They are, by this motion, seeking to stop any further steps being taken towards ratification of the Final Agreement pending determination of their rights.
At the outset, counsel on behalf of the Crown argued that this motion should be dismissed because injunctive relief is not available against the Crown at common law: C.I.A.C. v. The Queen, [1984] 2 F.C. 866 (C.A.) and Grand Council of the Crees (of Quebec) v. R., [1982] 1 F.C. 599 (C.A.). The common law has now been codified by virtue of section 22 of the Crown Liability and Proceedings Act, [R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, ss. 21, 28)] which reads:
22. (1) Where in proceedings against the Crown any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, a court shall not, as against the Crown, grant an injunction or make an order for specific performance, but in lieu thereof may make an order declaratory of the rights of the parties.
(2) A court shall not in any proceedings grant relief or make an order against a servant of the Crown that it is not competent to grant or make against the Crown.
Nor can the Crown’s immunity be circumvented by seeking injunctive relief against a servant or minister of the Crown unless he/she acts beyond the scope of his/her statutory authority: Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775 (C.A.) and Pacific Salmon Industries Inc. v. The Queen, [1985] 1 F.C. 504 (T.D.).
That may be so, but at present, I am being asked to put a stop to the next step in the ratification process, the Inuit vote. This does not involve the Crown or a Crown agency. Only if the vote ratifies the agreement will the Crown then have any authority to act and then the Crown’s immunity will become an issue.
It was also suggested by both counsel for the Crown and counsel for the Government of the Northwest Territories that interlocutory injunctions should not be granted if it is premature to do so in the circumstances, Inuvialuit Regional Corp. v. Canada, [1992] 2 F.C. 502 (T.D.), and that the plaintiffs’ motion in the present case is premature in that the Inuit ratification vote has not yet been conducted, the result of that vote is unknown, they may not approve it and even if they do approve it, it cannot come into effect unless and until Cabinet approves it.
In Inuvialuit Regional Corp., supra, Reed J. refused to grant a writ of prohibition because the parties’ dispute could be settled very quickly by bringing the action on by way of an expedited hearing. She felt it would not be appropriate for the Court to interfere and prevent further action being taken on the basis of what may turn out to be a resolved issue. It appears to me in the present case, that this action is not going to be heard and resolved before ratification takes place and that the reasoning applied by my learned colleague does not apply. I am also of the view that there is considerable momentum in favour of ratification by the Inuit. Accordingly, I am not prepared to dismiss the plaintiffs’ motion on the grounds that it is premature, and I therefore must consider their prayer for relief on its merits.
An interlocutory injunction is considered an exceptional remedy founded in the principles of equity. As Lord Diplock pointed out in American Cyanamid Co v Ethicon Ltd, [1975] 1 All ER 504 (H.L.), at page 509:
The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.
The principles enunciated by Lord Diplock in American Cyanamid, supra, have been adopted by the Federal Court of Appeal in Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 and Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129.
These principles necessitate an examination of three questions. First whether the applicant can meet the threshold test of establishing that there is a serious issue to be tried. If so, whether either party can establish irreparable harm for which damages would not be an adequate remedy should the injunction be granted or denied. The Court must then consider where the balance of convenience lies.
In the present case, the plaintiffs state that there is a serious issue to be tried; that they have existing treaty rights that extend into the southwestern portion of Nunavut. It was submitted that Indian treaties should be given a fair, large and liberal construction in favour of the Indians; that treaties should be construed, not according to the technical meaning of their words, but rather in the sense that they would naturally be understood by the Indians; Nowegijick v. The Queen, [1983] 1 S.C.R. 29 and Simon v. The Queen et al., [1985] 2 S.C.R. 387. Counsel, on behalf of the plaintiffs went on to argue that the boundaries of Treaties No. 8 and No. 10 are not as described in the written versions of the treaties and that there was no agreement between the parties that the treaties would limit their homelands to the metes and bounds descriptions contained therein. The Indians were assured at the signing of these treaties that their lands would remain theirs “as long as the land lasts, the sun shines, the rivers flow and the big rock doesn’t move”, and that they never would have agreed to give up the lands in the North which they have depended upon for their very survival. Likewise, it was argued that the Government never intended that the Indians would be deprived of these lands and that their conduct indicates that they were being allowed to exercise their treaty rights throughout their traditional lands. Alternatively, it was submitted that they have, at common law, unextinguished aboriginal title in these lands based on use and occupancy.
Counsel for the plaintiffs went on to suggest that, even if a court were to determine that the treaty boundaries are as described, and that the “blanket extinguishment clauses” contained in both treaties are effective, the language of the treaties gives the Indians rights which extend beyond the borders of the treaties. In particular, the written text of the treaties states that the Indians are giving up their rights in respect of a particular area. The “blanket extinguishment clause” makes that purported surrender even broader:
And also the said Indian rights, titles and privileges whatsoever to all other lands wherever situated in the Northwest Territories, British Columbia, or in any other portion of the Dominion of Canada.
However, as counsel pointed out, immediately following this clause, the treaty rights of the Indians are set out as follows:
And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described…. [Emphasis added.]
Counsel, on behalf of the TFN, submitted that there was no serious issue to be tried here; that the expert evidence and affidavits filed on the plaintiffs’ behalf do not support their claim to “exclusive use and occupancy” of that part of their homelands which they allege is within the Nunavut settlement area; that in contrast, there is ample evidence that the Inuit have a valid claim to all of the lands within this district. Furthermore, it was submitted that the plain wording of the treaties made it clear that whatever aboriginal title the plaintiffs may have had to these lands, such title was surrendered when the plaintiffs took the benefits of the treaties and requested that reserves be set aside for them in northern Saskatchewan.
Unquestionably, the evidence before me as to the “use and occupancy” of these lands was inconsistent and it is obvious that there are inherent weaknesses in the “map biography” technique. My present role however is not to adjudicate on the evidence before me, that will be done at trial. I must be satisfied however that there is a serious issue to be tried on the facts that are before me and it is not necessary that these facts establish a prima facie case. I am of the view that there is a serious issue to be tried in the present case and that the plaintiffs have met this first threshold test.
Counsel for the Crown was prepared to concede that the plaintiffs might be able to raise a serious issue with respect to their claim, but he went on to add that they are not able to establish that they will suffer irreparable harm, or indeed any harm, if the injunction were not granted.
The plaintiffs disagree. They submit that if the Final Agreement is ratified, or concluded and they later succeed in obtaining recognition in Court of their rights to the lands covered by the Agreement, they may not be able to achieve recognition of the full spectrum of rights to which they are entitled, these rights would be extinguished or alternatively, would have no practical significance and that this constitutes irreparable harm not compensable by a monetary award.
If the Final Agreement is concluded, fee simple ownership as well as other rights would vest in the Inuit and would have constitutional force under section 35 of the Constitution Act, 1982. The plaintiffs fear that no jurisdiction exists to reverse the granting of fee simple ownership, that the grant would be irreversible. Additionally, can section 35 be used to dislodge rights which it has previously entrenched? There is no case law with regards to competing section 35 rights and they feel that it is far from certain that they would be able to overturn any terms of the Agreement. Could they have the Agreement declared constitutionally invalid? Would the effect be to void the entire Agreement and dismantle the entire government? Even if it were declared void only in relation to lands claimed by the plaintiffs, it was argued that massive changes would be required. It is the plaintiffs’ submission therefore that recognition of their legal rights would be “hollow”, the lands “crucial to their economic survival” would have irrevocably vested in the hands of the Inuit.
I was referred to the case of MacMillan Bloedel Ltd. v. Mullin; Martin v. R. in Right of B.C., [1985] 3 W.W.R. 577 (B.C.C.A.). In this case, the applicants sought to enjoin the respondent logging company from clear-cut logging an area on Meares Island. At pages 591-592, Seaton J.A. held as follows:
It appears that the area to be logged will be wholly logged. The forest that the Indians know and use will be permanently destroyed…. Finally, the island’s symbolic value will be gone. The subject matter of the trial will have been destroyed before the rights are decided.
If logging proceeds and it turns out that the Indians have the right to the area with the trees standing, it will no longer be possible to give them that right. The area will have been logged. The courts will not be able to do justice in the circumstances. This is the sort of result that the courts have attempted to prevent by granting injunctions.
It is the plaintiffs’ submission that the facts in the present case are on all fours with those in the MacMillan Bloedel case.
Additionally, in Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335, the Crown was found to be in breach of a fiduciary duty owed to the appellant band. The Court however did not void the deal which was found to be in breach of this duty, rather they awarded the appellants damages. The plaintiffs in the present case submit that damages could not compensate them for a loss of their way of life.
It was also submitted that the Crown has a fiduciary obligation to the Indians with respect to the lands it holds for them and that this “duty” should limit the Crown’s ability to deal with the lands which are the subject-matter of this dispute until such a time as the plaintiffs’ rights are ascertained: Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654. It was argued that the Crown, in proceeding as it has, has breached its duty to the plaintiffs and has placed itself in a position of conflict of interest, and that the public interest favoured the granting of an injunction to stop the Crown’s “illegal” conduct.
In response, counsel for the Crown denied the allegation that the Crown was breaching its fiduciary obligations. Counsel stated that the Crown found itself in an unenviable position in which the plaintiffs were using the Inuit land claim negotiations as a forum for advancing their own claim. Counsel submitted that the Crown, in attempting to finalize its negotiations with the Inuit has in fact been protecting the plaintiffs’ interests by inserting Article 40 as a term of the Final Agreement. Counsel went on to add that “the full spectrum of rights” to which the plaintiffs may become entitled would not be extinguished, impaired, eroded or adversely affected by the Final Agreement.
In this regard I was told that, if it is determined that the plaintiff bands have existing treaty rights in the disputed area, these rights are as described in Treaty No. 10:
And His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the territory surrendered as heretofore described, subject to such regulations as may from time to time be made by the government of the country acting under the authority of His Majesty and saving and excepting such tracts as may be required or as may be taken up from time to time for settlement, mining, lumbering, trading or other purposes. [Emphasis added.]
The Final Agreement expressly recognizes the Indians’ rights to hunt, trap and fish in Nunavut and in addition, it gives them the right to create wildlife-related ventures, the right to travel in the area and to reside in their existing cabins. Rather than extinguish their rights, it was submitted that Article 40 confirms the plaintiffs’ traditional use of these lands and guarantees that they can continue to use the land in the future. If any restrictions are imposed on wildlife harvesting, they will be imposed on the plaintiffs and the Inuit alike, on an equal basis. In the event the plaintiffs do not succeed in their action, Article 40 actually confers rights on them.
Counsel representing the TFN suggested that the plaintiffs’ fears about the alienation of lands and the ensuing irreparable harm if it is subsequently determined that they have unextinguished aboriginal title, are both unfounded and exaggerated. While the map attached to the affidavit of Dr. Peter J. Usher seems to indicate that the plaintiffs can lay claim to a large area, when counsel transposed Dr. Usher’s data on a larger map, to scale, the area of land use and occupancy actually being claimed, consists of a small irregular piece of land in the extreme southwest corner of Nunavut. The only land to be owned by the Inuit within this area, is a 392.5 square mile tract of land around Ennadai Lake. The Indians are guaranteed access to this parcel by Article 40.X.4 of the Final Agreement. As counsel pointed out, the remaining land within the area claimed by the plaintiffs is held by the Crown who can deal with it as it sees fit in the event it enters into land negotiations with the plaintiffs.
Finally, it was submitted by the defendants that the Final Agreement provides complete protection for the plaintiffs. Article 40.1.1 provides that nothing in the Final Agreement is to be construed as affecting any subsisting treaty or other aboriginal rights which the plaintiffs may have in Nunavut. The argument was advanced that even if one were to put the plaintiffs’ claim at its highest, they would not suffer any harm if the Final Agreement came into force. If they eventually established that they have rights to the lands in question, Article 2.15.5(b) of the Final Agreement states that these rights would have to be accommodated and the Crown would be required to indemnify the Inuit. The Agreement would be void only to the extent that it violated the plaintiffs’ rights. The new government would not have to be disbanded, the plaintiffs are presently subject to a number of jurisdictions, namely Manitoba, Saskatchewan and the Northwest Territories as they use their traditional lands.
The defendants on the other hand, state that, if an injunction is granted, they would suffer irreparable harm. All the Inuit would suffer, not just those in the Keewatin district. The Final Agreement would remain without force or effect. All the economic, social and educational benefits that are to flow to the Inuit under the Agreement would be delayed as well as the establishment of the new territorial government. Counsel for the TFN stated that the Inuit would suffer a substantial loss of income: $54 million on signing, payment of $13 million for training purposes and another $4 million to create an Inuit Implementation Trust Fund. I was also told that, at present, there is a freeze on the granting of new interests in lands, such as mining claims, and that they doubt that this freeze will be maintained much longer with the result that many areas selected for Inuit ownership may become encumbered by new interests granted to third parties. Additionally, approximately $3,560,000 has been spent on the ratification process to date and this sum would be “wasted”.
Counsel on behalf of the Crown went on to add that there is a very real risk that if the Final Agreement were placed in abeyance for any substantial period of time, it may subsequently be impossible to revive it. Given its size and complexity and the number of competing interests with which it deals, any significant delay may result in the unravelling of the present consensus. If this occurs, it will defeat not only the Final Agreement, but the progress that has been made toward the division of the Northwest Territories and the restructuring of government in the North. Accordingly, it was submitted that the harm which both Canada and the Inuit would suffer, if an injunction were granted, would be far greater than any harm which the plaintiffs might sustain if the injunction is refused.
I agree. I am not convinced that the plaintiffs will suffer irreparable harm if I refuse to grant them the relief sought. It appears to me that the Final Agreement provides protection for whatever treaty and/or aboriginal rights the plaintiffs may be found to have, and in fact may give them legally recognized rights which they presently don’t have.
I am not convinced that the defendants will suffer harm if I should grant an injunction by virtue of the fact that they won’t receive the economic, social and educational benefits due them under the terms of the Agreement. Delay and inconvenience do not constitute irreparable harm. What does concern me is the risk of consensus unravelling should I grant the injunction. This Agreement is the product of many years of negotiation. It involves a number of complex issues. As well, the future division of the Northwest Territories is contingent upon the implementation of this Agreement, and this is a matter of concern to all Canadians. On the facts before me, this is a risk I am not prepared to take.
Having due regard to the risk of harm to the plaintiffs should I not grant an injunction and the risk of harm to the defendants should I grant the relief being sought, the balance of convenience clearly favours the defendants.
Even if I were to have found that the plaintiffs’ interests might be severely prejudiced, this is, in my opinion, a case where regard could be had to the public interest in accordance with the Supreme Court’s decision in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110. What the plaintiffs are seeking in this action is a declaration of their rights as they perceive them to be and a declaration that the TFN Agreement is invalid in so far as it infringes these rights. What the plaintiffs are in effect asking this Court to do in this application, is to set aside the entire TFN Agreement and along with it the future division of the Northwest Territories. Public interest in the future development of the North would certainly tip the balance of convenience in the defendants’ favour. Accordingly, this application is dismissed.
In closing, I would encourage the defendants to include members of the Fond du Lac Band in the Article 40 provisions of the Final Agreement. Although the plaintiffs have not established significant use by members of this Band of the lands in question, I am told that membership in the Fond du Lac and Black Lake bands is interchangeable, the two bands having at one time existed as one. I can see no useful purpose being served by denying members of one of these bands the rights being accorded to the other.
Costs in the cause.