PRACTICE |
Privilege |
Chatham-Kent (Municipality) v. Canada (Minister of Indian Affairs and Northern Development)
T-4-00
2001 FCT 1016, Lemieux J.
13/9/01
14 pp.
Appeal from Prothonotary's dismissal of applicant's request for order requiring federal Crown to produce all its legal opinions relating to land claim submitted by Caldwell First Nation to Government of Canada relating to Point Pelee and Pelee Island in southwest Ontario--Canada accepting Caldwell First Nation's application under Specific Land Claims Policy, alleging ancestors original inhabitants, occupants, owners of Point Pelee and Pelee Island, that never surrendered Point Pelee, and that multi-year lease entered into for Pelee Island invalid--Historical research conducted--Claim, historical report sent to Justice Canada for legal advice on whether Crown having lawful obligation for purposes of negotiation from which preliminary position could be developed--In August 1995 Justice Canada providing preliminary legal opinion--Supplementary legal opinion provided on July 9, 1998 to take into account recent Supreme Court of Canada decisions in Aboriginal law area--Negotiations resulted in Canada agreeing to pay Caldwell First Nation cash compensation of $23.4 million--Prior to agreement becoming public, Caldwell First Nation applied to Chatham-Kent to have 68.8 acres which it owned in fee simple declared reserve--Chatham-Kent applied for judicial review to set aside settlement--Appeal dismissed--Prothonotary correctly relied on Begetikong Anishnabe v. Canada (Minister of Indian Affairs and Northern Development) (1997), 138 F.T.R. 109 (F.C.T.D.); affd (1998), 234 N.R. 24 (F.C.A.)--Only one of three criteria to be met to establish privilege at issue i.e. that communication intended to be confidential--Circumstances herein identical to those in Begetikong where rejected contention no solicitor-client privilege created: document stamped "Protected Solicitor-Client Privilege", provided to Court in sealed envelope--Also affidavit evidence herein that departmental policy not to disclose such opinions--No waiver of privilege, express or implied--Purpose of first opinion to advise Crown on whether should enter into settlement negotiations, evaluation of strengths, weaknesses of case on both sides, signalling of what should be obtained during negotiations in order to arrive at settlement--What was publicly disclosed was conclusion that in opinion of Justice Canada, Canada had lawful obligation to Caldwell First Nation, for purposes of negotiation, how that obligation arose and that, in circumstances, appropriate to negotiation settlement--In this context Canada always intended to keep confidential its negotiation strategy, at heart of 1995 legal opinion--Such strategy not publicly disclosed--July 9, 1998 opinion assesses guidance received from Supreme Court of Canada, assesses evidence--Canada never disclosed results of that detailed assessment--Not putting into issue legal opinions, thereby waiving them--Disclosed receipt of legal advice from Justice Canada that had lawful obligation to Caldwell First Nation for negotiating purposes.