T-1026-92
Richard Kahgee suing on his own behalf and on
behalf of all other members of the Chippewas of
Saugeen Band of Indians, also known as the
Saugeen First Nation, and which together with
Chippewas of Nawash Band of Indians, also
known as the Nawash First Nation, constitute the
Saugeen Ojibway Nation, also known as the
Saugeen Chippewa Nation, also known as the
Sauking Nation, also known as the Sahgeeng
Nation;
Ralph Akiwenzie suing on his own behalf and on
behalf of all other members of the Chippewas of
Nawash Band of Indians, also known as the
Nawash First Nation, and which together with
Chippewas of Saugeen Band of Indians, also
known as the Saugeen First Nation, constitute the
Saugeen Ojibway Nation, also known as the
Saugeen Chippewa Nation, also known as the
Sauking Nation, also known as the Sahgeeng
Nation; and
Richard Kahgee and Ralph Akiwenzie together,
suing on their own behalf and on behalf of all
other members of the Saugeen Ojibway Nation,
also known as the Saugeen Chippewa Nation, also
known as the Sauking Nation also known as the
Sahgeeng Nation (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, The
Minister of Fisheries and Oceans, "Fishery
Officers" and the Minister of Natural Resources
(Ontario) (Defendants)
INDEXED AS: SAUCEEN BAND OF INDIANS V. CANADA
(MINISTER OFF/SI/ER/ES AND OCEANS) (TD)
Trial Division, MacKay J.—Ottawa, June 23 and
September 10, 1992.
Injunctions — Application for interlocutory injunction
against Crown, Minister, provincial Minister, federal and pro
vincial officials in action for declaration of aboriginal and
treaty rights — Natives commercially fishing in Lake Huron
without provincial licence — Provincial officer notifying fish
buyers not to deal with unlicensed fishermen — Whether sub
ject to interlocutory injunctive relief in Federal Court — Par
ties not disputing existence of some aboriginal right to com-
mercial fishery — Whether right infringed, whether
infringement justified, to be decided at trial — Crown not sub
ject to injunctive order — Exception where Minister acting
outside statutory authority not applying, as no evidence of
unauthorized act.
Constitutional law — Aboriginal and Treaty Rights —
Native fishermen fishing waters off Bruce Peninsula since time
immemorial — Selling fish without provincial licence — Pro
vincial official warning fish buyers not to purchase fish from
unlicensed sellers — Whether infringing aboriginal or treaty
rights — Existence of right undisputed — Application for
interim, interlocutory injuctions — Court to determine at trial
whether licence requirement constituting infringement,
whether infringement justified.
Constitutional law — Distribution of powers — Provincial
conservation officers also designated fisheries officers under
federal Act — Intervening to prevent sale of fish caught by
fishermen without provincial commercial licence — Whether
agents of federal Crown for purpose of Federal Court jurisdic
tion — May act under different sources of authority — Here
acting under provincial Game and Fish Act enacted under
authority over property and civil rights within province — Not
power delegated by federal Minister as having no authority
under that head.
Federal Court jurisdiction — Trial Division — Application
for injunctions against federal Crown, Minister, provincial
Minister, federal and provincial officials — Provincial Minis
ter, officials not shown to be acting under federal authority,
not agents of federal Crown within s. 17 Federal Court Act —
Appointees under law of province expressly excluded from s.
18 jurisdiction over federal board, tribunal.
Fisheries — Aboriginal, treaty fishing rights — Official in
Ontario Ministry of Natural Resources issuing notice to fish
buyers not to buy from unlicensed fishermen — Whether acting
under authority of federal Fisheries Act — Judicial notice
taken of arrangements under which provincial officers apply
federal Act — Officers may derive authority from different
sources, including provincial authority over sale of fish within
province — Not shown to be acting under delegated federal
authority.
This was an application for interim and interlocutory injunc
tions to restrain the defendants from interfering with the plain
tiffs' fish sales. The plaintiffs are native Indians who fish the
waters of Lake Huron off the Bruce Peninsula and sell their
catch. Between December 1990 and March 1992 there were
discussions between them and the Ontario Ministry of Natural
Resources about their asserted aboriginal and treaty rights in
the fishery. The plaintiffs continued to fish during that period,
and to sell their catch, without holding commercial fishing
licences. In March 1992, the District Manager of the Ministry
wrote to the fish buyers informing them that they would be
liable to prosecution if they bought from unlicensed individu
als. The plaintiffs aver that the provincial official took this
action under authority delegated to him by the federal Minis
ter. Their action against the defendants is for a declaration,
inter alia, as to aboriginal and treaty rights in the fishery.
Held, the application should be dismissed.
While it is not disputed that there is an aboriginal right to
fish commercially, that does not mean the right is unlimited,
and it is the extent of the right which is in issue. In R. v. Spar
row, the Supreme Court of Canada held that, even where it is
the aboriginal right to fish for food which is being asserted, a
court must assess whether the right exists, whether it is
infringed, and whether the infringement is justified. Those
issues will only be resolved at trial. The Court takes judicial
notice of the arrangements whereby jurisdiction to administer
the federal Fisheries Act is delegated to provincial officials.
That does not require the inference that they are here acting
under federal constitutional authority over fisheries and as
agents of the federal government. They may act with authority
based on different sources. In relation to the purchase and sale
of fish within the province they act within provincial jurisdic
tion over property and civil rights, a matter with respect to
which the federal government has no legislative authority to
delegate. The Game and Fish Act of Ontario is clearly not a
law of Canada within section 101 of the Constitution for the
purposes of supporting the jurisdiction of the Federal Court.
That Court has jurisdiction under section 17 only over the fed
eral Crown and its agents. A remedy may be granted under
section 18 only against a federal board, commission or other
tribunal, defined in subsection 2(1) as expressly excluding any
person appointed under a law of a province. The Minister of
Natural Resources is not a proper party to a Federal Court
action.
The plaintiffs argued aboriginal rights under the Constitu
tion and the remedy, in section 52, that legislation contrary to
the Constitution is of no force and effect. While section 52 can
be argued at trial, at this interlocutory stage it does not affect
the application of section 22 of the Crown Liability and Pro
ceedings Act, to the effect that the Crown is immune from
injunctive orders. The Queen is therefore not a proper party to
the application for an interlocutory injunction. The federal
Minister can only be subject to injunction if found to be acting
beyond the scope of his statutory authority. There is no evi
dence that the Minister was so acting. Even if the Ontario fish
eries officers were taken to have been acting under authority
delegated from the federal authority, there is no basis, pending
trial, to find, on constitutional grounds, that they exceeded that
authority. The federal Minister is not a proper party to the
application for an interlocutory injunction. Neither are the
unnamed federal and provincial fisheries officers, for the fore
going reasons as well as because, without a means of identify
ing the individuals, no order against them could be enforced.
The Court does not make orders which are not enforceable. As
the action may concern the constitutional validity of an Act of
Parliament or of a provincial legislature, counsel are to advise
the Court before the matter is set down for trial whether this is
a case in which notice to the Attorneys General pursuant to
section 57 of the Federal Court Act is required and, if so, when
and how it is to be given.
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], ss. 92(13)(14), 101.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
ss. 35(1), 52.
Crown Liability and Proceedings Act, R.S.C., 1985, c.
C-50 (as am. by S.C. 1990, c. 8, s. 20), s. 22 (as enacted
idem, s. 28).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) (as am.
by S.C. 1990, c. 8, s. 1), 17 (as am. idem, s. 3), 18 (as
am. idem, s. 4), 57 (as am. idem, s. 19).
Federal Court Rules, C.R.C., c. 663, RR. 321.1 (as
enacted by SOR/88-221, s. 7), 332, 419(1).
Fisheries Act, R.S.C., 1985, c. F-14, ss. 2 (as am. by S.C.
1991, c. 1, s. 1(2)), 5 (as am. idem, s. 2), 33 (as am.
idem, s. 8), 43 (as am. by R.S.C., 1985 (1st Supp.), c.
35, ss. 3, 7; S.C. 1991, c. 1, s. 12).
Game and Fish Act, R.S.O. 1990, c. G.1, s. 72.
Ontario Fishery Regulations, 1989, SOR/89-93, ss. 2, 3,
4, 36 (as am. by SOR/90-229, s. 13).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R.
(4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) I; 56
C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241.
CONSIDERED:
Re Peralta et al. and The Queen in right of Ontario et al.
(1985), 49 O.R. (2d) 705; 16 D.L.R. (4th) 259; 7 O.A.C.
283 (C.A.) affd sub nom. Peralta v. Ontario, [ 1988] 2
S.C.R. 1045; (1988), 66 O.R. (2d) 543; 56 D.L.R. (4th)
575; 89 N.R. 323; 31 O.A.C. 319.
REFERRED TO:
R. v. Thomas Fuller Construction Co. (1958) Ltd et al.,
[1980] 1 S.C.R. 695; (1979), 106 D.L.R. (3d) 193; 12
C.P.C. 248; 30 N.R. 249; Roberts v. Canada, [1989] 1
S.C.R. 322; [1989] 3 W.W.R. 117; (1989), 35 B.C.L.R.
(2d) 1; 25 F.T.R. 161; 92 N.R. 241; Varnam v. Canada
(Minister of National Health and Welfare), [1988] 2 F.C.
454; (1988), 50 D.L.R. (4th) 44; 17 F.T.R. 240; 84 N.R.
163 (C.A.); The Queen in Right of Canada v. Chief Wil-
liam Joe et al., [1984] 1 C.N.L.R. 96; (1983), 49 N.R. 198
(F.C.A.); affd sub nom. Joe v. Canada, [1986] 2 S.C.R.
145; (1986), 69 N.R. 318; 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.); leave to appeal to S.C.C. refused
[1982] 1 S.C.R. viii; (1982), 41 N.R. 354; Attorney-Gen
eral for the Dominion of Canada v. Attorneys-General for
the Provinces of Ontario, Quebec, and Nova Scotia,
[1898] A.C. 700 (P.C.); Attorney-General for Canada v.
Attorney-General for British Columbia, [1930] A.C. 111
(P.C.); Newfoundland Inshore Fisheries Association et al.
v. Canada (Minister of the Environment) et al. (1990), 37
F.T.R. 230 (F.C.T.D.); 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.); Baxter Foods Ltd. v.
Canada (Minister of Agriculture) (1988), 25 C.P.R. (3d)
21; 21 F.T.R. 15 (F.C.T.D.); Pacific Salmon Industries
Inc. v. The Queen, [1985] 1 F.C. 504; (1984), 3 C.P.R.
(3d) 289 (T.D.); Esquimalt Anglers' Association et al. v.
Canada (Minister of Fisheries and Oceans) (1988), 21
F.T.R. 304 (F.C.T.D.).
APPLICATION for interim and interlocutory
injunctions. Application dismissed.
COUNSEL:
Remi C. Smith for plaintiffs.
Dogan Akman for defendant, Minister of Fisher
ies and Oceans.
Elaine Atkinson for defendant, Minister of Natu
ral Resources.
SOLICITORS:
Nahwegahbow, Jones, Hawken, Ottawa, for
plaintiffs.
Deputy Attorney General of Canada for defen
dant, Minister of Fisheries and Oceans.
Attorney General of Ontario for defendant, Min
ister of Natural Resources.
The following are the reasons for orders rendered
in English by
MAcKAY J.: These reasons relate to orders issued
this day determining certain jurisdictional issues
raised in relation to the plaintiffs' application for
orders in the nature of interim and interlocutory
injunction.
The plaintiffs are aboriginals, members of the
Chippewas of either the Saugeen Band of Indians or
the Nawash Band of Indians, and are direct descend
ants of the Saugeen Ojibway Nation. They are fisher
men, claiming, in their own right, and on behalf of all
members of their respective bands, the right to fish
for subsistence, including fishing for trade and barter
for necessities, which right they claim to have exer
cised historically, since time immemorial, off the
Bruce Peninsula in waters of Lake Huron in the
Province of Ontario.
By statement of claim filed May 5, 1992, the plain
tiffs commenced an action against the defendants in
relation to traditional fishing rights claimed as
aboriginal and treaty rights. Relief sought includes a
number of declarations, supplementary to one another
or as alternatives, concerning the existence of the
aboriginal or treaty rights claimed and implications
from these rights in light of sections 35 and 52 of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]], and concerning fiduciary duties said to be
owed to the plaintiffs by Her Majesty the Queen in
Right of Canada, and by the defendant Minister of
Fisheries and Oceans and his delegates. The provin
cial Minister and officers of his Ministry within a
generally described class of "fishery officers" are
joined as defendants allegedly acting under delegated
authority from the defendant Minister of Fisheries
and Oceans in failing to protect and indeed interfer
ing with, the plaintiffs' claimed aboriginal and treaty
rights contrary to the laws of Canada.
On the same day as the action was commenced, the
plaintiffs also filed a notice of motion seeking an
interim and an interlocutory injunction, presumably
to apply pending trial of the action, restraining inter
ference with the plaintiffs' claimed aboriginal and
treaty rights to harvest and market fish caught in
traditional waters, and restraining enforcement of
section 33 of the Fisheries Act [R.S.C., 1985, c. F-14
(as am. by S.C. 1991, c. 1, s. 8] and section 4 of the
Ontario Fishery Regulations, 1989 [SOR/89-93]
against purchasers of the plaintiffs' fish, in particular
four named persons or business enterprises. The
injunction orders sought would be directed to:
1) Her Majesty the Queen in Right of Canada, "as
contemplated by ... section 52 of the Constitution
Act, 1982";
2) the defendant Minister of Fisheries and Oceans,
the officials and "fishery officers" of the Depart
ment of Fisheries and Oceans;
3) the defendant Minister of Natural Resources
(Ontario) and officials and conservation officers,
"fishery officers", of the Ministry of Natural
Resources (Ontario).
The application for injunctive relief also seeks
leave to abridge the time for service of the notice of
motion and an order dispensing with compliance with
Rule 321.1 [Federal Court Rules, C.R.C., c. 663 (as
added by SOR/88-221, s. 7)] which provides for fil
ing of an applicant's record, in accord with subsec
tion (6) of that Rule. When that application came on
for hearing on May 7, 1992, the defendant Minister
of Natural Resources (Ontario) indicated his intention
to contest the jurisdiction of this Court over that Min
ister in the action initiated by the plaintiffs. At the
same time, jurisdiction was questioned in relation to
the defendants described as "fishery officers", being
unnamed. Counsel for the plaintiffs, counsel for Her
Majesty the Queen in Right of Canada and for the
named defendant Minister of Fisheries and Oceans,
and counsel for the defendant provincial Minister, all
agreed on behalf of their respective clients to the
terms of an order which adjourned sine die the appli
cation for interim and interlocutory injunctive relief,
with leave to the plaintiffs to seek a special date or
dates for hearing of preliminary issues concerning
the Court's jurisdiction in relation to the Ontario
Minister and in relation to "fishery officers", and for
hearing the application for an interlocutory injunc
tion. Further, by consent, it was ordered that the
plaintiffs' materials already filed constituted an
appropriate applicants' motion record for the inter
locutory injunction application, and times for filing
of any defence were established.
Thereafter, upon application to the Associate Chief
Justice it was ordered that the issues concerning the
Court's jurisdiction be heard on June 23, 1992. On
June 15, 1992, counsel for the defendants Her Maj
esty the Queen in Right of Canada, the Minister of
Fisheries and Oceans (Canada) and "fishery officers"
acting pursuant to the Fisheries Act and Regulations
under the authority of the federal Minister, submitted
an application seeking:
1) an order pursuant to Rule 419(1)(a), (c) and (f)
striking out the federal defendants from the state
ment of claim; and
2) an order adjourning the hearing of this motion
to strike, sine die, to be brought on 3 clear days
notice by the federal defendants for their applica
tion to the Court to set a special date for hearing
the matter; and
3) an order pursuant to Rule 419(1)(a), (c) and (f)
striking out the federal defendants from the plain
tiffs' application for injunctive relief.
Without objection or comment of the plaintiffs, the
application for the order adjourning hearing of the
first of these applications was orally granted and is
this day confirmed by written order. The application
for the third order, to strike the federal defendants as
respondents to the plaintiffs' application for injunc-
tive relief was, by agreement, argued in the federal
defendants' response to the plaintiffs' submissions on
jurisdictional grounds and dealt with in the reply of
the plaintiffs at the hearing of those preliminary
issues, to which these reasons relate.
Following the hearing on preliminary jurisdictional
issues the plaintiffs filed a notice of motion, without
an appropriate supporting affidavit, seeking leave to
reopen the hearing, on short notice, to adduce addi-
tional evidence. Further hearing on this issue on short
notice was objected to by counsel for the federal
defendants and counsel for the plaintiffs thereafter
advised that the motion would not be pursued, and
was, in effect, withdrawn.
The background
The background to the action instituted by the
plaintiffs and their application for interlocutory
injunction orders is that discussions between the
plaintiffs or their representatives and the defendant
provincial Minister of Natural Resources (Ontario),
which commenced in December 1990, had not been
satisfactorily concluded by March 1992 when steps
were taken on behalf of that Minister which are said
to conflict with the plaintiffs' claimed aboriginal and
treaty rights. Those discussions are described in the
statement of claim as being directed "towards the
establishment of a global agreement for the co-man
agement of the fisheries within the traditional fishing
grounds of the plaintiffs and to co-operate in the con
servation and management of fisheries resources in
the aforesaid fisheries." Since December 1990 and
through the course of those discussions until the pre
sent, the plaintiffs have continued to fish in the
waters claimed as traditional waters and to market
fish caught, without a licence to do so, until the
spring of 1992. Prior to December 1990 they and
their predecessors presumably held licences from
time to time, if not consistently, for some years,
though there is no evidence in the record of the
arrangements prevailing before December 1990.
In February 1992, the chiefs and councils of the
Saugeen Ojibway Nations Territories, representing
the Chippewas of Saugeen and the Chippewas of
Nawash, adopted a resolution approving and
accepting the Saugeen Ojibway Nations Territories
Interim Fishing Regulations, described as for the
1991 season. Subsequently on March 27, 1992, the
A/District Manager of the Owen Sound District, pre
sumably of the Department of Natural Resources
(Ontario), by circular letter, said to have been sent to
fish buyers in the Owen Sound District, advised as
follows:
Please be advised that pursuant to Section 33 of the Fisheries
Act and 72 of the Game and Fish Act, it is unlawful to
purchase fish commercially that were not originally taken by a
person holding a commercial fishing license allowing harvest
of that particular species of fish.
Your assistance is requested again this year in not purchasing
fish from unlicensed individuals. Should you require further
information or clarification, do not hesitate to contact Brett
Hodsdon, Acting Fish and Wildlife Supervisor, at Owen Sound
(519) 376-3860.
Mr. Tom Howell, one who is a regular buyer of
fish from the Chippewas of the Nawash Band, a
group here represented by the plaintiff Ralph
Akiwenzie, avers that he received the circular letter
of March 27, or a similar letter. He refers as well to
subsequent conversations with the Fish and Wildlife
Supervisor, a provincial officer of the Department of
Natural Resources (Ontario), "to the effect that I am
unable to buy fish from any unlicensed commercial
source and would be charged for doing so." Plaintiffs
believe the circular letter quoted above was also
received by others who regularly purchased fish from
them in the past, including the three other named
individuals or firms, in addition to Mr. Howell,
whom the plaintiffs seek to protect by interlocutory
injunction orders from threatened possible prosecu
tion.
This gives rise to the action by the plaintiffs and to
the claim to relief by way of an interlocutory injunc
tion pending trial of the issues raised. It is averred
that the defendant Minister of Natural Resources
(Ontario) and his departmental officers, acting under
authority delegated to them by the defendant federal
Minister, have effectively banned sale of fish taken
by the plaintiffs in their traditional fishing waters,
action said to conflict with the plaintiffs' aboriginal
and treaty right to fish, including the right to fish
commercially. This is said to create irreparable harm
to the plaintiffs, which warrants injunctive relief at
this stage, pending trial of the action.
The plaintiffs submit that this action raises a num
ber of issues that fall within the jurisdiction of the
Federal Court pursuant to subsections 17(1) and (4)
and paragraph 17(5)(b) of the Federal Court Act,
R.S.C., 1985, c. F-7 as amended [S.C. 1990, c. 8, s.
3]. Those provisions vest in this Court concurrent
original jurisdiction in cases where relief is claimed
against the Crown, where the Crown is or may be
under an obligation in respect of which there are or
may be conflicting claims, and where relief is sought
against any person for anything done or omitted to be
done in the performance of the duties of that person
as an officer, servant or agent of the Crown. The
issues raised by the action are said to include ques
tions relating to aboriginal rights, fishing, Indians
and Indian lands and treaty rights, federal responsi
bility for the actions of its agents or servants
appointed pursuant to delegations of authority for
administrative reasons, the fiduciary responsibility of
the federal Crown to Indians, and the provincial
authority to regulate sales of fish by aboriginals. I
note that jurisdiction of this Court in a given case will
depend not only on the general nature of issues
raised, but also on the particular issues arising from
the facts of the case, on the form of relief that is
sought, and upon the parties who initiate the proceed
ings or are impleaded as defendants.
Counsel for the federal defendants, supported by
counsel for the provincial Minister, urged that several
of the affidavits in support of the motion, at least in
several respects, do not meet the requirements of
Federal Court Rule 332, that affidavits be confined to
matters of fact within the knowledge of the affiant. I
note that the Rule is qualified in relation to interlocu
tory motions when statements of belief with the
grounds thereof may be admitted. Counsel for the
federal defendants urged that in numerous respects
the affidavits here presented did not meet the basis
for the exception, in that the grounds for expressed
belief are not articulated. It is also said that some affi
davits are not relevant to the central issue raised by
the statement of claim and the motion for injunctive
relief, that is, the right of the plaintiffs to sell fish
caught, without a licence authorizing sale. For the
most part, the questions concerning the nature and
relevance of the affidavit evidence, are matters relat
ing to the merits of the application for interlocutory
relief, a matter not directly before me, and not argued
at the hearing. The hearing and these reasons concern
preliminary questions of jurisdiction of this Court in
relation to the various defendants against whom
injunctive relief is sought pending trial, and in the
case of the Ontario Minister in relation to his status
and that of officers of his department as defendants in
the action initiated by the plaintiffs. Thus, for these
reasons, for the most part it is assumed the factual
base for relief sought is, or will be, established.
There is one exception. It seems essential to con
sider for these reasons such evidence as there is of
the status of the defendant provincial Minister of
Natural Resources (Ontario) and officers of his
department as delegates of the federal Minister of
Fisheries and Oceans, which is said to be the basis on
which they are impleaded and on which the interlocu
tory relief sought is said to be based. I propose to
return to this matter after setting out legislative provi
sions of interest.
Relevant legislative provisions
Statutory provisions here in issue include the fol
lowing. Under the Fisheries Act, R.S.C., 1985, c.
F-14, as amended [ss. 2 (as am. by S.C. 1991, c. 1, s.
1(2)), 5 (as am. idem, s. 2), 33 (as am. idem, s. 8)]:
2....
"fishery officer" means a person who is designated as a fishery
officer pursuant to subsection 5(1);
5. (1) The Minister may designate any persons or classes of
persons as fishery officers ... for the purposes of this Act and
may limit in any manner the Minister considers appropriate the
powers that a fishery officer ... may exercise under this Act or
any other Act of Parliament.
(2) Each fishery officer and fishery guardian shall be pro
vided with a certificate in a form the Minister considers appro
priate certifying their designation as such and, where the pow
ers of a fishery officer or fishery guardian are limited pursuant
to subsection (1), specifying the powers that the officer or
guardian may exercise under this Act or any other Act of Par
liament.
33. No person shall purchase, sell or possess any fish that
has been caught in contravention of this Act or the regulations.
43. The Governor in Council ... may make regulations
[inter aliaj
(a) for the proper management and control of the sea-coast
and inland fisheries;
(j) respecting the issue, suspension and cancellation of
licences and leases;
(g) respecting the terms and conditions under which a
licence and lease may be issued....
The Ontario Fishery Regulations, 1989, made by the
Governor in Council under authority of section 43 of
the Fisheries Act jas am. by R.S.C., 1985 (1st Supp.),
c. 35, ss. 3, 7; S.C. 1991, c. 1, s. 12], provide in part
[ss. 2, 3, 4, 36 (as am. by SOR/90-229, s. 13)]:
2. (1) In these Regulations,
"licence" means a licence referred to in Schedule XV that is
issued under the provincial Act;
"provincial Act" means the Game and Fish Act, R.S.O. 1980,
c. 182;
"provincial Minister" means the Minister of Natural Resources
for Ontario;
(4) Every licence is subject to the Act and these Regulations.
3. (1) Subject to subsections (2) to (4), these Regulations
apply in respect of fishing in the Province of Ontario and of
the transporting of live fish taken from the waters of the Prov
ince of Ontario.
4. Unless authorized by the appropriate licence, no person
shall
(a) engage in angling or any other means of fishing;
(b) ship or transport or attempt to ship or transport live fish
other than bait-fish; or
(c) deposit or attempt to deposit live fish taken from one
body of water into another body of water.
36. (1) The Provincial Minister may, in a commercial fish
ing licence, impose such terms and conditions as are not incon
sistent with these Regulations respecting
(a) the waters from which fish may be taken;
(b) the species, size and quantity of fish that may be taken;
(c) the fishing gear that may be used;
(d) the persons who may engage in fishing under the
licence;
(e) the loading, landing, handling and transportation of fish;
and
(f) the periods and times of day during which fishing opera
tions may not be conducted.
(2) No holder of a commercial fishing licence shall violate
any of the terms and conditions of the licence.
Under the Game and Fish Act, R.S.O. 1990, c. G.1,
section 72, provides in part:
72. (1) No person shall sell, offer for sale, purchase or bar
ter, or be concerned in the sale, purchase or barter, of an Atlan-
tic salmon. (also known as ouananiche) taken from Ontario
waters, a smallmouth bass, largemouth bass, maskinonge,
brook trout, brown trout, rainbow trout or Aurora trout, or any
part thereof, including the eggs thereof, but subject to such
terms and conditions as are prescribed by the regulations.....
[a sale may be made under the authority of a licence to sell]
(2) No person shall sell, offer for sale, purchase or barter, or
be concerned in the sale, purchase or barter, of yellow pickerel
(also known as pike-perch, walleye, dore or blue pickerel)
pike, lake trout, sturgeon or sauger, or any part thereof, taken
from Ontario waters by angling or taken in any other manner
by a person who is not the holder of a commercial fishing
licence.
Provincial officers as delegates of federal authority
I note that in the application for injunction orders
the relief sought against the defendant provincial
Minister and officials and conservation officers of his
Ministry includes restraint of the enforcement of sec
tion 33 of the Fisheries Act and section 4 of the Onta-
rio Fishery Regulations, 1989. The first prohibits
purchase, sale or possession of fish caught in contra
vention of the Act or the regulations, and the second
prohibits fishing without an appropriate licence. In
the relief sought no reference is made to restraining
enforcement of section 72 of the Game and Fish Act,
of Ontario, which prohibits sale, purchase or barter of
fish, except in accord with the regulations, where fish
is caught by a person who is not the holder of a com
mercial fishing licence. Yet the last of these provi
sions, the provincial Act, is clearly specified as one
of the bases on which provincial officers have alerted
fish buyers against purchase and sale of fish.
The plaintiffs argue that a ban on commercial sales
of fish, imposed on buyers, since it abolishes the
plaintiffs' capacity to sell fish by abolishing their
market, is in reality a prohibition of commercial fish
ing without a licence issued by the province in
accord with authority delegated to licence fishing in
Ontario under the federal Ontario Fishery Regula
tions, 1989. Such a ban, it is urged, conflicts with the
plaintiffs' aboriginal and treaty right, a right said to
be recognized by the Ontario Minister. While it
seems clear that the Minister, in the course of negoti
ations with the plaintiffs, does not dispute the claim
to an aboriginal right to fish commercially, that can
not be taken as an acknowledgement of an
unrestricted right. Indeed, a principal focus of the dis
cussions appears to be the mutual acceptance of
appropriate definition, or limitation, of that right. For
different purposes both counsel for the plaintiffs and
for the federal defendants referred to the Supreme
Court of Canada decision in R. v. Sparrow, [ 1990] 1
S.C.R. 1075. That decision, as I understand it, recog
nized, for the defendant in that case, an aboriginal
right to fish for food, but it indicates that where such
a right is claimed to be infringed, a court must assess
whether the right exists, whether it is infringed and, if
that is the case, whether the legislation infringing the
right can be justified in the circumstances. Thus,
implicitly, even an aboriginal right to fish for food
may be subject to licence requirements where these
do not infringe the right, or even if they do where
that can be justified. Those questions in any given
case require careful assessment after full considera
tion of evidence and argument and they are not
appropriately considered in interlocutory proceed
ings. Here questions of recognition of an aboriginal
right to fish for commercial purposes and, if recog
nized, of appropriate limitation of that right, are
raised by the plaintiffs' action but will only be
resolved by trial.
In addition to those difficult issues, I am not per
suaded that the action of Ontario officials in this case,
so far as it is based upon section 72 of the provincial
Act, is based on legislation in relation to licensing
fisheries rather than legislation relating to the
purchase and sale of fish in the province. No substan
tial argument was effectively addressed to the pur
poses or effects of this provision. Without that, I am
not persuaded that, while it may support licensing
regulations, section 72 of the Game and Fish Act of
Ontario is legislation in relation to licensing of fisher
ies. In the circumstances, it must be taken, as its
words clearly provide, as legislation in relation to the
purchase and sale of fish in the province, a matter
falling within provincial legislative competence
under subsection 92(13) 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 Constitu
tion Act, 1982, Item 1) [R.S.C., 1985, Appendix II,
No. 5]].
Counsel for the federal defendants and for the pro
vincial minister urge that there is no evidence of the
status of the provincial Minister or of conservation
officers of his department as delegates of the federal
Minister or government in acting to alert fish buyers
against purchasing fish for sale from fishermen who
do not hold a valid commercial fishing licence. I
agree with that submission. I also agree with the pro
vincial Minister's submission that there is no evi
dence that he was acting in a similar capacity in
negotiations and discussions with the plaintiffs, in
any acknowledgement of an aboriginal right to fish
for commercial purposes, or in any reliance by him
or his officers upon provincial legislation; indeed,
there is no allegation in the statement of claim that he
was so acting in these matters.
The statement of claim does implead the provincial
Minister and conservation officers of his ministry as
delegates of federal authority, in the following terms.
4. The Defendant Minister of Natural Resources has delegated
authority from the Defendant Minister of Fisheries to adminis
ter the Ontario Fishery Regulations within and for the Province
of Ontario.
5. The Defendant "Fishery Officers" are those ... Conserva
tion Officers appointed and certified by the Defendant Minister
of Natural Resources under his delegated authority, to enforce
the provisions of the said [Fisheries] Act and Regulations.
For the plaintiffs it is urged that this Court should
take notice that jurisdiction to administer the Fisher
ies Act and the Ontario Fishery Regulations, 1989 is
in fact delegated to provincial officers effectively by
the Act and the regulations, a relationship recognized
by Re Peralta et al. and The Queen in right of Onta-
rio et al. (1985), 49 O.R. (2d) 705 (C.A.), appeal to
S.C.C. dismissed, with qualification, [1988] 2 S.C.R.
1045. In that case, in dismissing the appeal the
Supreme Court of Canada did so substantially for
reasons given by MacKinnon A.C.J.O. for the Onta-
rio Court of Appeal but added the following com
ment (at page 1046):
At one point, however, the reasons state that the provinces are
powerless to regulate fishing for commercial purposes. That is
undoubtedly true of general legislation for that purpose. We
would not wish, however, to be taken as accepting the proposi
tion that the provinces lack jurisdiction to make such regula
tions in respect of provincially-owned fisheries as an aspect of
their power to administer their public property. Any such regu
lations would, of course, be subject to overriding federal legis
lation.
There really is no dispute about the intergovern-
mental arrangements that are in place for general
administration of the Fisheries Act and the Ontario
Fishery Regulations, 1989 by provincial officers and
I accept the submission of the plaintiffs that notice be
taken of that relationship. I do not accept, however,
the inference from this that I understand the plaintiffs
would have me draw. It seems to me the plaintiffs
would have me conclude that everything done by
provincial officers that affects fisheries in the prov
ince is based upon authority delegated in accord with
federal legislation. Rather, as I see it, provincial
officers here may act with authority based upon dif
ferent sources. (See: Re Peralta and The Queen,
supra). In relation to licensing and other matters of
administration of federal legislation they may be del
egates of the federal government acting under its leg
islative authority in relation to seacoast and inland
fisheries under subsection 91(12) of the Constitution
Act, 1867. In relation to conservation of provincial
resources or of purchase and sale of fish within the
province they act within legislative authority of the
province in relation to property and civil rights in the
province or local and private matters in the province
under subsections 92(13) and (16) of the Constitution
Act, 1867. Acting in the latter capacity they are not
delegates of federal authority for the Parliament of
Canada, for the federal government has no legislative
authority that may be delegated. In this case, the let
ter of March 27 from a provincial officer refers to
both federal and provincial statutory provisions and it
must be taken at face value as relying upon both fed
eral and provincial legislative provisions referred to
as the basis of advice to purchasers of fish.
I turn to the issues of jurisdiction raised at the
hearing of preliminary issues, dealing first with the
question of this Court's jurisdiction in relation to the
provincial Minister in the action initiated by the
plaintiffs, and then with the question of jurisdiction to
award an order in the nature of an injunction against
Her Majesty the Queen, the federal Minister and
"fishery officers"
Jurisdiction in relation to the provincial Minister
In the statement of claim no relief is sought specif
ically directed against the Minister of Natural
Resources (Ontario), though he is impleaded as a
defendant who is alleged to act under authority dele
gated by the federal Minister. The application for
interlocutory relief sought includes an interlocutory
injunction restraining the provincial Minister, and his
officers, from interfering with the plaintiffs' aborigi
nal and treaty right to harvest and market fish caught
in traditional waters and from enforcing section 33 of
the Fisheries Act and section 4 of the Ontario Fishery
Regulations, 1989 against purchasers of the plain
tiffs' fish.
On behalf of the defendant Minister of Natural
Resources (Ontario) it is urged that the action be dis
missed as against him for want of jurisdiction. It is
argued there is no affidavit evidence or allegation
that, in the activities giving rise to the action, he has
acted as a delegate of federal authority; that the role
here played by the provincial Minister is substantially
based in large part, upon jurisdiction vested in him by
valid provincial law; that section 17 of the Federal
Court Act, supra, as amended, does not vest in this
Court jurisdiction over the provincial Minister in any
action; and finally that the laws here acted upon by
him are not exclusively laws of Canada within sec
tion 101 of the Constitution Act, 1867.
While for the plaintiffs it is urged that the provin
cial Minister is here impleaded in his capacity as a
delegate of federal authority, it is not at all clear that
actions taken by him to which the plaintiffs object are
undertaken under any authority delegated under the
Fisheries Act or the regulations. Moreover, the act
which ultimately precipitated this action, the sending
of the letter of March 27 is clearly based at least in
part on section 72 of the Game and Fish Act, a matter
that at this stage must be taken to be within the legis
lative competence of the provincial legislature. That
clearly is not a law of Canada within section 101 of
the Constitution Act, 1867, a criterion for jurisdiction
of this Court (See: R. v. Thomas Fuller Construction
Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695; Roberts v.
Canada, [1989] 1 S.C.R. 322, per Wilson J. at page
330). In so far as the letter of March 27 refers to sec
tion 33 of the Fisheries Act, the provincial Minister's
officials may be deemed to act as delegates of federal
authority in bringing to the attention of fish buyers
federal legislation here considered applicable. But
any prosecution for violation of a federally imposed
prohibition may well be a matter of the administra
tion of justice within the province under subsection
92(14) of the Constitution Act, 1867, an issue not
addressed in argument.
Finally, it is well settled that this Court does not
have jurisdiction under section 17 of the Federal
Court Act, which provides for general causes of
action, over any person except the Crown (Her Maj
esty in Right of Canada), her servants or agents.
Where the remedy sought is an injunction or declara-
tory relief under section 18 [as am. by S.C. 1990, c.
8, s. 4], that may only be granted against any federal
board, commission or other tribunal as defined in
subsection 2(1) [as am, idem, s. 1] of the Act. The
definition expressly excludes "any ... body consti
tuted or established by or under a law of a province
or any ... person or persons appointed under or in
accordance with a law of a province" (Federal Court
Act, supra, subsection 2(1)). Relief against persons
other than the federal Crown is not provided by sec
tion 17 and that section does not give this Court juris
diction to grant relief against a province (Varnam v.
Canada (Minister of National Health and Welfare),
[1988] 2 F.C. 454 (C.A.), at page 462 and The Queen
in Right of Canada v. Chief William Joe et al., [ 1984]
1 C.N.L.R. 96 (F.C.A.), at page 97, affd [1986] 2
S.C.R. 145). That applies similarly in the case of a
provincial Minister, a matter clearly specified in rela
tion to declaratory or injunctive relief provided for
under section 18 of the Federal Court Act in relation
to agencies of the federal government.
Thus, I conclude that the defendant Minister of
Natural Resources (Ontario) is not a proper party to
this action and thus to the application for an interloc
utory injunction. I agree with the submission that as
against the Minister of Natural Resources (Ontario)
the action should be dismissed for this Court lacks
jurisdiction in relation to that Minister.
Injunctive relief and other defendants
1) An injunction and Her Majesty the Queen
An interlocutory injunction is sought against Her
Majesty the Queen as contemplated by the provisions
of section 52 of the Constitution Act, 1982 preventing
the Crown from interfering with the plaintiffs'
aboriginal and treaty right
... to harvest and market fish caught in their traditional
waters, and further, ... from enforcing the provisions of the
Fisheries Act, Section 33 and the Ontario Fishery Regulations,
Section 4 as against the purchasers to the Plaintiffs' fish, and
more particularly [four named purchasers] ....
Provisions of the Constitution Act, /982 raised in
this action and the application for interlocutory relief
include sections 35 and 52. These provide in part:
35. (1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and
affirmed.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in para
graph (a) or (b).
Section 52, it is submitted, would permit the setting
aside of legislation or regulations inconsistent, inter
alia, with aboriginal rights recognized in accord with
subsection 35(1) of the Constitution Act, 1982. Here
it is urged that the Minister of Natural Resources,
(Ontario) has acknowledged the aboriginal right
claimed by the plaintiffs. Affidavits of staff persons
of the United Church of Canada and of the Aborigi
nal Rights Coalition (Project North) exhibit similar
letters in which the Minister acknowledges that the
Government of Ontario, in the Saugeen Ojibway fish
eries negotiations "does not contest the native claim
to an aboriginal right to a fishery, nor the native
claim to an aboriginal right to fish commercially."
While the application of section 52 may be an
issue to be assessed at trial, in my view it is not a
basis for interlocutory injunctive relief at this stage.
The plaintiffs did not argue and I am not persuaded,
that section 52, either directly or by implication,
affects the application, in accord with the plain mean
ing of its wording, of section 22 of the Crown Liabil
ity and Proceedings Act, R.S.C., 1985, c. C-50 as
amended [by S.C. 1990, c. 8, s. 20], which provides:
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.
This provision, enacted by S.C. 1990, c. 8, section 28
and in force from February 1, 1992 by virtue of
SU 92-6, reflects the immunity of the Crown and its
servants from injunctive orders which was tradition
ally recognized at common law. The statutory provi
sion does not reduce the Crown's long-recognized
immunity from an injunction.
Relief of that kind is precluded by subsection 22(1)
of the Crown Liability and Proceedings Act, in any
court. Moreover, the Federal Court Act, R.S.C. 1985,
c. F-7 as amended, under which this Court is created
and acts, vests no authority to grant injunctive relief
against the Crown. (See Grand Council of the Crees
(of Quebec) v. R., [1982] 1 F.C. 599 (C.A.), per
Pratte J.A., at page 600; leave to appeal to S.C.C.
refused [1982] 1 S.C.R. viii; sub nom.: Grand Coun
cil of the Crees (of Quebec) v. Attorney General of
Quebec et al.) Thus, Her Majesty the Queen in right
of Canada is not a proper party defendant in the
application for an interlocutory injunction.
2) An, injunction and the federal Minister
In regard to the Court's jurisdiction to award an
interlocutory injunction against the Minister of Fish
eries and Oceans, counsel for the federal defendants
urges that there is no evidence before the Court that
Ontario officials, in the letter of advice to fish buyers
sent in March 1992, were acting as delegates of the
federal Minister, despite reference in that letter to
section 33 of the Fisheries Act. Whether or not that
reference was in error, it is urged that Ontario offi
cials including the defendant Minister of Natural
Resources (Ontario) could only be acting, in view of
the division of legislative powers, in relation to mat
ters within the province's legislative jurisdiction.
Those include legislation in relation to proprietary
interests in fisheries and in relation to sales of fish
within the province, matters not within federal legis
lative competence. (See: Attorney-General for the
Dominion of Canada v. Attorneys-General for the
Provinces of Ontario, Quebec, and Nova Scotia,
[1898] A.C. 700 (P.C.) and Attorney-General for
Canada v. Attorney-General for British Columbia,
[1930] A.C. 111 (P.C.).) The arguments so addressed,
and those relating to the merits of issues raised by the
statement of claim filed by the plaintiffs, deal for the
most part with issues not fully argued, and which
were not before me in consideration of preliminary
questions of the jurisdiction of the Court. They are
best left for determination on another occasion.
The argument of significance in considering
whether the injunction sought should be granted
against the federal Minister, at this preliminary stage,
is that there is no evidence or allegations of action
directly by the Minister. If he were deemed to be act
ing, to the extent that he acts under valid legislation
no injunctive relief lies against a federal Minister, or
other officer, who is acting as servant or agent of Her
Majesty and within statutory duties assigned by the
legislature within its legislative competence. Before
the enactment of subsection 22(2) of the Crown Lia
bility and Proceedings Act, as amended, supra, it was
well settled that as a general rule an injunction will
not issue to prevent a Minister of the Crown from
carrying on statutory functions. (See: Newfoundland
Inshore Fisheries Association et al. v. Canada (Min-
ister of the Environment) et al. (1990), 37 F.T.R. 230
(F.C.T.D.); Grand Council of the Crees (of Quebec)
v. R., supra.) An exception to this immunity has been
recognized where the Minister or other Crown officer
purporting to act under a statute clearly acts beyond
the scope of statutory authority. (See: Lodge v. Minis
ter of Employment and Immigration, [1979] 1 F.C.
775 (C.A.); Baxter Foods Ltd. v. Canada (Minister of
Agriculture) (1988), 21 F.T.R. 15 (F.C.T.D.); Pacific
Salmon Industries Inc. v. The Queen, [1985] 1 F.C.
504 (T.D.); Esquimalt Anglers' Association et al. v.
Canada (Minister of Fisheries and Oceans) (1988),
21 F.T.R. 304 (F.C.T.D.).)
There is no evidence before me that the federal
Minister was here acting beyond his legislated
responsibilities within the scope of valid federal leg
islative authority. It is urged by the plaintiffs that,
though he may not have been acting directly himself
or through his departmental officers, Ontario offi
cials, acting under delegated authority, were acting
on his behalf.
As I have earlier concluded, provincial officers
could not be acting as delegates of the federal gov
ernment or of the federal Minister in referring to sec
tion 72 of the provincial Game and Fish Act. It is not
clear that in so far as they alert fish buyers to the pos
sibility of prosecution for violation of section 33 of
the Fisheries Act they purport to act as delegates of
the federal Minister, for prosecution within the prov
ince for violation of a federal statutory prohibition
may well be action in relation to the administration of
justice within the province, a matter clearly within
the competence of the province. Yet even if such an
action were considered as acting under delegation by
federal authority, at this stage, pending trial at which
will be determined the existence of the aboriginal and
treaty right claimed, the alleged infringement of that
right by section 33 of the Fisheries Act will be
assessed, and justification for any infringement will
be considered, in accord with the tests outlined in R.
v. Sparrow, supra, there is not a basis for determin
ing that action taken under delegated federal author
ity by provincial conservation officers would exceed
federal authority on constitutional grounds.
I am not persuaded that the plaintiffs have estab
lished any basis on which the defendant federal Min
ister of Fisheries and Oceans may be enjoined from
any action taken or proposed. Thus, in my view that
Minister is not a proper party defendant to the appli
cation for an interlocutory injunction.
3) An injunction and "fishery officers"
"Fishery officers" impleaded as defendants are not
named or otherwise personally identified. In the
statement of claim initiating the action they are
described as "those Fishery Officers appointed and
certified by the Defendant Minister of Fisheries
under the Fisheries Act within the definition of the
Act, or alternatively ... those Conservation Officers
appointed and certified by the Defendant Minister of
Natural Resources under his delegated authority, to
enforce the provisions of the said Act and Regula
tions". In the motion for interlocutory injunction
orders, in association with injunctive relief against
the Minister of Fisheries and Oceans, they are
described as "the officials and fishery officers of the
Department of Fisheries and Oceans". In addition, in
relation to the defendant Minister of Natural
Resources (Ontario), they are described as "the offi
cials and fishery officers of the Ministry of Natural
Resources", as agents of the defendant Minister of
Fisheries and Oceans, presuming they have been des
ignated as fishery officers by the federal Minister
under section 5 of the Fisheries Act.
Neither the unnamed federal departmental officers
nor the provincial ministry officers are appropriate
defendants in relation to the injunctive relief sought.
That conclusion is based on the reasons already set
out for my conclusions about jurisdiction to award
the relief sought against the designated defendant
federal and provincial Ministers, and also upon gen
eral principles.
Without a means of identifying individual defend
ants, an injunctive order, if made, could not be effec
tively served or enforced. The Court does not make
orders that are not enforceable, and even if the order
sought might be served on some "fishery officers" as
described by the plaintiffs, this Court does not con
sider it appropriate to exercise its discretion to grant
such extraordinary relief in this case in relation to
unnamed defendants. The unnamed "fishery
officers", whether that description is intended to
include federal departmental officers or provincial
departmental officers, are not proper parties in rela
tion to the injunctive relief here sought.
Conclusions
I sum up my conclusions in regard to jurisdictional
issues raised and argued at the hearing of preliminary
issues arising from the plaintiffs' statement of claim
and application for interlocutory relief in the nature
of injunction orders.
This Court lacks jurisdiction to grant relief against
the defendant/respondent Minister of Natural
Resources (Ontario) and he is not a party properly
impleaded in the action, which as against that Minis-
ter is dismissed. The style of cause in this matter,
should henceforth be amended to delete reference to
that Minister as a party defendant. If costs are
requested his costs shall be paid by the plaintiffs on
the usual party and party basis.
This Court lacks jurisdiction to grant an interlocu
tory injunction here sought against Her Majesty the
Queen. Moreover, on the evidence adduced by affida
vits in support of the application for interlocutory
injunction orders, and argument advanced, the Court
is not persuaded that there is any basis to issue the
order sought against the Minister of Fisheries and
Oceans. Further, the Court declines to exercise dis
cretion to issue an injunction order against unnamed
"fishery officers".
Since I conclude, for the reasons outlined, that this
Court lacks jurisdiction in the case of certain defend
ants and that it is not appropriate to award injunctive
relief as against all others of the defendants to the
action who are respondents to the application, the
appropriate disposition of the plaintiffs' application is
that it be dismissed, with costs to be in the cause as
between the plaintiffs and the federal defendants,
except costs of the Minister of Natural Resources
(Ontario) if he should request them. The federal
defendants' motion that they be struck from the
plaintiffs' application for injunctive relief is thus, in
effect, granted, as provided by separate order.
Finally, while this was not raised at the hearing, it
seems to me the action raises questions that may ulti
mately concern "the constitutional validity, applica
bility or operability of an Act of Parliament or of the
legislature of any province, or of regulations thereun-
der" within the terms of section 57 of the Federal
Court Act, as amended [by S.C. 1990, c. 8, s. 19]. In
view of this, counsel for the plaintiffs and for the fed
eral defendants are directed to consult concerning the
requirements of section 57 and to advise the Court,
not later than the date upon which application is
made for a date for trial in this matter, whether notice
to attorneys general as provided in that section is
appropriate and if so how and when it is to be given.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.