CA 169401
CA 169403
NOVA SCOTIA COURT OF APPEAL
[Cite as: Union of Nova Scotia Indians v. Nova Scotia (Attorney General) , 2001 NSCA 110]
Roscoe, Cromwell and Oland, JJ.A.
BETWEEN:
UNION OF NOVA SCOTIA INDIANS, a body corporate,
on behalf of itself and its members and the Acadia, Chapel
Island, Eskasoni, Membertou, Shubenacadie, Wagmatcook
and Waycobah (Whycocomagh) Indian Bands, and their
members, and CONFEDERACY OF MAINLAND MI’KMAQ,
a body corporate, on behalf of itself and its members and the
Afton, Annapolis Valley, Bear River, Horton, Millbrook and
Pictou Landing Indian Bands, and their members
Appellants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA, representing
Her Majesty the Queen in Right of the Province of Nova
Scotia, HIS HONOUR THE LIEUTENANT GOVERNOR
OF NOVA SCOTIA IN COUNCIL, HONOURABLE
ERNIE FAGE, in his capacity as Minister of Natural
Resources (Nova Scotia), ATTORNEY GENERAL OF
CANADA, representing Her Majesty the Queen in Right
of Canada and the Minister of Indian Affairs and
Northern Development (Canada), MARITIMES AND
NORTHEAST PIPELINE MANAGEMENT LIMITED, a
body corporate, and MARITIMES NORTHEAST
PIPELINE LIMITED PARTNERSHIP, a limited partnership
Respondents
_____________________________________________________________________
REASONS FOR JUDGMENT
_____________________________________________________________________
Counsel: Bruce H. Wildsmith, Q.C. for the Appellants
Alexander M. Cameron for the Respondent AGNS
Jonathan Tarlton and Marie Scagliola for the Respondent,
Attorney General of Canada
E. Bruce Mellett for the Respondent Maritimes
Appeal Heard: June 5, 2001
Judgment Delivered: July 9, 2001
THE COURT: The appeal is dismissed with costs payable to each of the three separately represented Respondents in the amount of $700.00, plus disbursements as per reasons for judgment of Roscoe, J.A.; Cromwell and Oland, JJ.A., concurring.
ROSCOE, J.A.:
[1] This is an appeal from a Chambers decision of Justice William F.B. Kelly ordering that the appellants’ proceedings in which they seek orders in the nature of certiorari, mandamus, and injunctive and declarative relief, which were commenced by way of originating notice application inter partes, be converted to actions.
BACKGROUND
[2] In their applications, which were ordered to be converted, the appellants challenged Orders in Council (O.I.C.’s), made pursuant to the Crown Lands Act, R.S.N.S. 1989, c.114, granting options and easements to the respondent Maritimes and Northeast Pipeline Management Limited (M&NP) and affiliates, which permitted the installation and maintenance of natural gas pipelines on specific Crown lands throughout the province. In the first proceeding, S.H. 154599, relating to the mainland pipeline route, the appellants seek, inter alia, an order that the Minister of Natural Resources and the Executive Council of Nova Scotia be ordered to:
. . . carry out their procedural and fiduciary duties to the Mi’kmaq of Nova Scotia in respect of the use and occupancy of provincial Crown lands by M&NP, and to carry out their duty to prevent infringement of the rights and interests of the Mi’kmaq by preventing M&NP from having access to provincial Crown land for the purpose of clearing, constructing, installing, and operating a natural gas pipeline until he has carried out his duties to the Mi’kmaq.
[3] In addition, in that application, the appellants seek a declaration:
. . . that Her Majesty the Queen in right of Canada has a constitutional responsibility and fiduciary duty to the Mi’kmaq of Nova Scotia to protect and safeguard their Aboriginal title, and their Aboriginal and treaty rights and interests, in respect of provincial Crown lands along the pipeline corridor of M&NP, and that Her Majesty the Queen in right of Canada has failed to carry out properly that responsibility and is in breach of that duty.
[4] In the second application, S.H. No. 164937, concerning the Halifax lateral of the pipeline, the appellants repeat the relief sought, as quoted in part above, and state the grounds for the application to be:
1. Her Majesty the Queen in right of the Province of Nova Scotia, the Lieutenant Governor of Nova Scotia in Council, the Minister of Natural Resources for Nova Scotia, Her Majesty the Queen in right of Canada and/or the Minister of Indian Affairs and Northern Development of Canada are in breach of Her/his/her/their duty to consult with the Plaintiffs in respect of OIC 2000-95 made March 3, 2000 and/or the report and recommendation of the Minister of Natural Resources of February 23, 2000, which duty to consult arises based on the existing jurisprudence establishing Mi’kmaq Aboriginal and treaty rights to harvest resources from Crown lands for food, social and ceremonial, and commercial purposes, coupled with the known claims of the Mi’kmaq to Aboriginal title in Nova Scotia.
2. Her Majesty the Queen in right of Canada and/or the Minister of Indian Affairs and Northern Development (Canada) are in breach of Her/his fiduciary duty to protect and safeguard the Aboriginal title and Aboriginal and treaty rights of the Mi’kmaq in Nova Scotia.
3. If OIC 2000-95 is quashed or declared null and void and of no force and effect, any option agreement based upon it has no lawful authorization.
4. If OIC 2000-95 and/or the OIC 2000-95 option agreement is/are invalid, M&NP has no lawful authorization to use and occupy the Crown lands included in them, and is a trespasser.
[5] In support of each of the two applications inter partes, the appellants filed an affidavit of Daniel Christmas, who is the Chair of the Executive Committee of the Union of Nova Scotia Indians, one of the applicants. To the second affidavit, filed in relation to the Halifax lateral application, there are 35 documents attached as exhibits. The affidavit chronicles the history of the Mi’kmaq claim to aboriginal title in Nova Scotia, the efforts to negotiate issues of concern arising from the Sable energy project with various federal and provincial departments and the corporations involved in the project, and related proceedings before the National Energy Board. Mr. Christmas deposes that:
. . . At no time were any of the organizations, persons or Bands mentioned notified or consulted, or offered or paid compensation, or offered an opportunity to be heard respecting the making of OIC 98-461, OIC 99-192 or OIC 2000-95 or the reports and recommendations that preceded them or the option agreements associated with them, and the organizations, persons, and Bands in question did not consent to or approve the construction, installation, maintenance or operation of natural gas and/or liquids pipelines on, or the use and occupation by M&NP and/or SOEI [Sable Offshore Engery Inc.] of, the provincial Crown lands included in those Orders-in-Council.
[6] In addition to the applications, the appellants brought additional proceedings, commenced by way of action, seeking declarations that the Mi’kmaq of Nova Scotia have unextinguished Aboriginal title, and Aboriginal and treaty harvesting rights in respect of the Crown lands included in the various OIC’s. These matters were the subject of a previous interlocutory appeal to this court, at which time Justice Cromwell described them as follows:
[2] . . . Briefly put, the essential claim in both the Action and the Application is that there is a duty to consult the Mi’kmaq, which was not observed, in exercising the statutory power to grant, convey, sell or dispose of Crown lands under the Crown Lands Act, R.S.N.S. 1989, c. 114. The basis of the Application is that the duty to consult arises from existing jurisprudence relating to Mi’kmaq Aboriginal and treaty rights to harvest resources from Crown lands coupled with the known claims of the Mi’kmaq to Aboriginal title. The basis of the Action is more extensive in that it asserts that if established rights and known claims are not sufficient to give rise to a duty to consult, there is actual and unextinguished Aboriginal title which, it is claimed, gives rise to such a duty.
. . .
[8] As the issue of the proper characterization of the claim asserted in the Application was controversial in the hearing before us, I should record that Mr. Wildsmith accepted the following excerpt from his Factum filed on this appeal as an accurate statement of the scope of the Application and agreed that he would be bound by that statement:
. . . the premise of the Application is that existing jurisprudence establishing Mi’kmaq Aboriginal and treaty rights to harvest resources from Crown lands for food, social and ceremonial purposes, coupled with the known claims of the Mi’kmaq to Aboriginal title in Nova Scotia, are sufficient to give rise to the duty to consult. [emphasis in the original]
(See Union of Nova Scotia Indians et al. v. Nova Scotia (Attorney General et al. (1999), 180 N.S.R. (2d) 314.)
THE DECISION UNDER APPEAL
[7] The applications made by the respondents to the Chambers judge were described by him in § 16 and 17 of the decision:
[16] The applications before the court are as follows:
(a) Applications by Nova Scotia seeking an order that the Mi’kmaq Mainline and Halifax lateral applications be proceeding with “by way of Originating Notice (Action)” pursuant to Rule 37.10(e) and “such further Orders or directions” as may be necessary pursuant to Rules 37.10(e) and (g);
(b) Applications by Canada to “set aside” the two Mi’kmaq applications referred to above pursuant to Rule 9.02 on the grounds that they are not proceedings “in which the principal question is likely to be a question of law and that there will be a substantial dispute of facts with respect to the subject matter of the application”;
(c) Applications by Maritime seeking an order “striking out, setting aside or staying” the Mi’kmaq applications or declaring them unlawful, pursuant to Rules 9.02, 9.04 and 37.10 on essentially the same grounds as described in Canada’s applications.
[17] I understand that the applicants here challenge the Mainline and Halifax applications of the Mi’kmaq on the ground that the applications do not pass the test of an appropriate application pursuant to Rule 9.02 in that:
1. The Mainline and Halifax Lateral applications raise complex and disputed factual issues which are not suited to affidavit evidence.
2. The matter or matters in issue are not solely or principally a question of law but are mixed questions of facts and law and affidavit evidence will be inadequate in these circumstances.
[8] The relevant Civil Procedure Rules are 9.02:
9.02. A proceeding, other than a proceeding under Rule 57 and Rules 59 to 61,
(a) in which the sole or principal question at issue is, or is likely to be, a question of law, or one of construction of an enactment, will, contract, or other document;
(b) in which there is unlikely to be any substantial dispute of fact;
(c) which may be commenced by an originating application, originating motion, originating summons, petition, or otherwise under an enactment;
shall be commenced by filing an originating notice (application inter partes) in Form 9.02A in a proceeding between parties, and by an originating notice (ex parte application) in Form 9.02B in an ex parte proceeding.
and 37.10(e) and (g):
37.10. On a hearing of an application, the court may on such terms as it thinks just,
. . .
(e) notwithstanding rule 9.02, order the application to be continued in court as if the proceeding had begun by an originating notice (action) and order the notice and affidavits to stand as pleadings, with liberty to any party to amend or add thereto or apply for particulars thereof, and to give any other direction as is applicable;
. . .
(g) exercise such jurisdiction and grant any other order as it deems just.
[9] The Chambers judge summarized the arguments before him as follows:
[40] The main dispute between the parties appears to be whether there will be a substantial dispute of law and fact and mixed law and fact at the hearing of the Mi’kmaq applications. Most of the focus has been on the possibility of ‘disputed facts’, but the applicants also strongly argue that the interpretation and applicability of the ‘existing jurisprudence’, and as well the question of the relevance of the fact situation here to such law, will be in substantial dispute at the hearing.
[41] On the other hand, the Mi’kmaq submit that the only evidence that will be before that hearing, as far as they are concerned, will be the evidence before this hearing, as well as the “Record” it has demanded from Nova Scotia and which has not yet been provided. Their counsel, Mr. Wildsmith, argues that the applicants here have filed no substantiative evidence that would show they dispute any of the Mi’kmaq evidence filed.
[42] Throughout their submissions the applicants stated that at the Mi’kmaq applications hearing or at a trial, they would have considerable further evidence to bring forward, much of it based on the same meetings referred to between the parties and Mi’kmaq representatives. They submit this evidence would demonstrate that Nova Scotia and Canada had been “consulting” by pursuing discussions with the Mi’kmaq on their claims in general and as well that Maritimes, with Nova Scotia and Canada had consulted with the Mi’kmaq on their claims rights. The applicants submit they would require the discovery of the parties participating in these discussions as such information would be necessary to determine if Nova Scotia and Canada, had a duty to consult, the nature of the consultation required in the circumstances, and the nature and extent of the infringement, if any. The applicants say that the evidence relating to these issues are required by the legal authorities (see Delgamuukw v. British Columbia, [1997] 3 S.C.R., 1010), before a duty to consult arises, and that the hearing judge on the Mi’kmaq applications or any trial judge must have that evidence before her before she can properly conclude that Nova Scotia and Canada had, in these circumstances, a duty to consult and a fiduciary duty to protect and whether they had discharged it.
[10] After discussion and analysis of the arguments, the Chambers judge concluded:
[59] In the application of the Rules pleaded by the applicants and principally Rule 9.02, I conclude from the above that the Mi’kmaq applications are not proceedings in which “the sole or principal question at issue is, or is likely to be, a question of law.”
[60] My further findings are as follows:
(a) that the burden of proof is on the applicants in these applications;
(b) that it is open to the judge on the hearing of the Mi’kmaq applications to accept the legal argument advanced by the applicants, that is that the existence and extent of consultations with a First Nation are matters to be addressed only in the last stage of the justificatory analysis as set out in R. v. Sparrow, [1990] 1 S.C.R. 1075, R. v. Delgamuukw, supra, and other authorities, as opposed to the ex ante theory advanced by the Mi’kmaq.
(c) that if the judge who hears the matter accepts the legal theory proposed by the applicants in these applications, it is more likely than not there will be substantial disputes on the facts in relation to the duty to consult of Nova Scotia and the duty to consult of Canada with the Mi’kmaq in these circumstances.
(d) that regardless of the theory giving rise to a duty to consult determined to be appropriate by the Judge in the matter it is more likely than not there will still be substantial disputes of facts on the extent of the duty and whether that duty has or has not been satisfied by Canada and Nova Scotia.
(e) That regarding the claim of the Mi’kmaq in the Mi’kmaq applications, if the judge at the hearing or trial finds that Canada and/or Nova Scotia have a fiduciary duty to protect and safeguard Aboriginal title, and Aboriginal and treaty rights and interests in these circumstances, as claimed by the Mi’kmaq and denied by Canada and Nova Scotia, it is more likely than not that there will be substantial disputes of facts as to whether or not Canada and Nova Scotia’s involvement with the Mi’kmaq and other parties in these circumstances would establish a breach of that fiduciary duty.
(f) that the nature of the various issues raised by the various parties in numerous applications and actions relating to this dispute is such that it is presently difficult to conclude whether the granting or refusal to grant these applications would best promote the interests of a fair, just and efficient process of determining the matters in issue between the parties.
[61] I am therefore disposed on the basis of the facts, the arguments of the parties, and the findings enunciated above to conclude that there is likely to be substantial disputes of fact and I grant the applications before me and convert the Mi’kmaq applications into actions.
ISSUE
[11] The issue on appeal is whether there was reversible error by the Chambers judge in determining that there was likely to be a substantial dispute of fact on the hearing of the two applications. The standard of review of a decision of this nature is as stated by Matthews, J.A. in Eastern Canadian Coal Gas Venture Ltd. v. Cape Breton Development Corp. (1995), 141 N.S.R. (2d) 180 at §16:
This court, as well as other appellate courts, has on many occasions discussed the principles of appellate review. Our function is not to retry a case. The burden on an appellant seeking to set aside an interlocutory order such as this is indeed heavy. We should only interfere if serious or substantial injustice, material injury or very great prejudice would result if we did not. See for example, Exco Corp. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R. (2d) 331; 125 A.P.R. 331 (C.A.); Nova Scotia (Attorney General) v. Morgantaler (1990), 96 N.S.R. (2d) 54; 253 A.P.R. 54 (C.A.); Coughlan et al. v. Westminer Canada Holdings Ltd. et al. (1989), 91 N.S.R. (2d) 214; 233 A.P.R. 214 (C.A.), and Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143; 275 A.P.R. 143 (C.A.).
[12] In Minkoff v. Poole, supra, Chipman, J.A. stated the standard in the following manner at p. 145:
At the outset, it is proper to remind ourselves that this court will not interfere with a discretionary order, especially an interlocutory one such as this, unless wrong principles of law have been applied or a patent injustice would result . . .
Under these headings of wrong principles of law and patent injustice an Appeal Court will override a discretionary order in a number of well-recognized situations. The simplest cases involve an obvious legal error. As well, there are cases where no weight or insufficient weight has been given to relevant circumstances, where all the facts are not brought to the attention of the judge or where the judge has misapprehended the facts. The importance and gravity of the matter and the consequences of the order, as where an interlocutory application results in the final disposition of a case, are always underlying considerations. The list is not exhaustive but it covers the most common instances of appellant court interference in discretionary matters . . .
ANALYSIS
[13] The parties agree that the issue before the Chambers judge was whether the issues to be determined on the applications were likely to raise substantial disputes of facts. If so, the conversion order was correctly made; if not, the appellants should have been permitted to proceed by way of applications.
[14] The theory on which the appellants base their applications is that there is an ex ante duty to consult with the Mi’kmaq people. This is a relatively new legal theory which is discussed by Lawrence and Macklem, From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult, (2000) 79 Can. Bar Rev. 252. The authors summarize their postulation at p. 254 as follows:
Our premise in this Article is that the reason why the duty to consult is failing to accomplish its purpose is because it has been widely misunderstood - by parties, by counsel, and by courts. This misunderstanding arises from a tendency to regard the duty as a legal requirement that assists in determining whether the Crown is constitutionally justified in engaging in a particular action that infringes on an existing Aboriginal or treaty right of a First Nation. That is this [sic] one of its functions is no doubt true, but characterizing the Crown’s duty in this manner obscures the extent to which it also operates ex ante to minimize reliance on litigation as a means of recognizing and affirming Aboriginal and treaty rights. Properly understood, the duty to consult also acts as a prelude to a potential infringement of an Aboriginal or treaty right. Consultation requirements ought to be calibrated according to the nature and extent of Aboriginal interests and the severity of the proposed Crown action in order to provide incentives to the parties to reach negotiated agreements. In most cases, the duty requires the Crown to make good faith efforts to negotiate an agreement with the First Nation in question that translates Aboriginal interests adversely affected by the proposed Crown action into binding Aboriginal or treaty rights. By realizing the duty’s ex ante possibilities, the judiciary will have more success in its efforts to promote reconciliation between First Nations and the Crown.
[15] In their article, Lawrence and Macklem summarize the Supreme Court of Canada jurisprudence pertaining to the Crown’s duty to consult with First Nations including R. v. Sparrow, [1990] 1 S.C.R. 1075; Delgamuukw v. British Columbia, supra; and, R. v. Badger, [1996] 1 S.C.R. 771, and suggest that within the broad parameters established by these decisions, there are unanswered issues left to be determined in future cases relating to the “who, when and how of consultation”. They advance the argument that “this richer understanding of the duty” of consultation would include a duty of the Crown to consult prior to any possible infringement of an Aboriginal or treaty right that has been asserted, but upon which there has been no adjudication. A number of trial court decisions which “hint” at this position are noted.
[16] The issue before us, at this time, is not whether the views expressed by Lawrence and Macklem are valid, but whether the trial or Chambers judge, when faced with that task, will need to decide substantial disputes of fact. The appellants submit that the legal issues involved in determining whether there is an ex ante duty to consult may indeed be complex, but the legal questions are suitable for resolution by way of an application. If their legal argument is adopted, the fact finding necessary to determine whether the duty to consult has been breached, they submit, will be limited to whether the provincial Crown and the federal Crown did consult with the Mi’kmaq respecting the decisions to grant the easements. They contend that there was absolutely no consultation and the respondents have not countered this position with any affidavit in response to that of Mr. Christmas.
[17] The respondents argue that in addition to the difficult legal issues raised, in the event that the appellants’ submissions do prevail on the applicable theory of consultation, major disputes of fact arise. It is submitted that the evidence they will present to prove that consultation did occur, will not be limited to the time immediately before the endorsement of the specific O.I.C’s, but in the context of the whole offshore natural gas undertaking, including the National Energy Board hearings and the extent of compliance by M&NP with directives to pursue consultation with the Mi’kmaq with respect to the pipelines, and the impact of the project on their Aboriginal and treaty rights.
[18] I would agree with the respondents that they would be entitled to defend the claims against them by arguing that the context of the duty to consult is much broader than that defined by the appellants. I would also agree with the respondents and the Chambers judge that if the appellants’ legal theory is applied, that is, that there is an ex ante duty to consult based on existing jurisprudence relating to Aboriginal and treaty rights and known claims of Aboriginal title, that there will be extensive, complex and major factual disputes. I would disagree with the Chambers judge’s statement quoted above at §10 (in his §60 (c)) that if the judge hearing the converted matters prefers the respondents’ legal theory, that there will be substantial disputes of fact, because in that event, the applications, as framed, would likely be dealt with more expediently.
[19] However, since at this stage it is not known whether the appellants’ or the respondents’ legal theories will ultimately be accepted, (and it is not part of our function at this stage of these proceedings to express any view about that question) the judge did not commit any reversible error when he concluded that there are likely to be substantial disputes of fact. For example, since the extent of the duty to consult could be found to depend, or its character and extent found to be affected by the degree of interference with the appellants’ rights, evidence relating to the definition and alleged infringement of those rights is likely to be adduced and likely to give rise to substantial disputes of fact. In other words, the nature of the underlying rights and the extent to which they may be infringed cannot, at this point, be excluded from consideration as irrelevant to the issues raised in the applications and are likely to give rise to substantial disputes of fact.
[20] As an example of the evidence of this nature that may be introduced, the province submitted that it may attempt to prove that the Mi’kmaq people were nomadic, and therefore any Aboriginal or treaty right to use of specific Crown lands was sporadic or seasonal, which might tend to diminish the extent of the consultation required, or impact on whether the consultation should, in this instance, be ex ante or at the justificatory stage. As well, counsel for the province contends that it may call evidence to prove that attempts to consult with the appellants were thwarted by the refusal of the Mi’kmaq representatives to agree on an agenda or framework for negotiations of outstanding claims.
[21] It is easily foreseeable that conflicting expert testimony would be tendered by all parties on some of these or other points. In these circumstances, and especially given the novelty of the appellants’ claims, a trial would better permit the full development of a record and a more thorough examination of the legal and factual issues.
CONCLUSION
[22] In deciding that the appellants’ proceedings are not those in which the sole or principle issues were likely to be questions of law and that many of the issues raised by the appellants and those that may be introduced by the respondents will involve substantial disputes of fact, Justice Kelly did not apply any wrong principle of law nor will a patent injustice result. Accordingly, I would dismiss the appeal with costs payable by the appellants to each of the three separately represented respondents in the amount of $700.00, plus disbursements.
Roscoe, J.A.
Concurred in:
Cromwell, J.A.
Oland, J.A.