PRACTICE |
Preliminary Determination of Question of Law |
Shubenacadie Indian Band v. Canada (Attorney General)
T-1250-01
2001 FCT 1137, Hugessen J.
19/10/01
4 pp.
Motion by plaintiffs for order pursuant to Federal Court Rules, rr. 107 and/or 220 directing that, if application for judicial review converted into action, following issue and following question of law be determined separately and summarily on affidavit evidence and before trial of action: whether Minister of Fisheries and Oceans without lawful authority to take enforcement action against Band and members if they fished without licence or authorization from Minister as Fisheries Act and Regulations not providing Minister with criteria or standards to be applied in determining whether to licence, on what terms, livelihood fishery under Mi'kmaq Treaties of 1760-61, including Shubenacadie Mi'kmaq Treaty of March 10, 1760 (sic)--Motion dismissed--As essential facts of case in dispute, no pure question of law that can be determined; ruling thereon would require adjudication of such facts at trial--Plaintiffs wrong in thinking everything in this case has been determined in their favour by decisions of S.C.C. in R. v. Marshall, [1999] 3 S.C.R. 456 and R. v. Marshall (motion), [1999] 3 S.C.R. 533--Marshall did not concern plaintiff band or its members at all--Issue therein narrower and Court's ruling much narrower (see Marshall (motion), para. 17, 20, 22); different fishery, exercise of treaty right found to exist limited to particular area traditionally used by local community--Fact Shubenacadie Indian Band may be beneficiaries of 1760-61 Treaties by no means implying they, in fact, have treaty right to fish lobster in St. Mary's Bay, fundamental to their claim herein--Proposed severed issue question of mixed fact and law, therefore bifurcating present proceedings will lead to duplication of procedural steps and costs--Settled law that Court must exercise discretion under r. 220 considering all circumstances and having in mind that procedure contemplated thereby exceptional and should be resorted to only when Court of view that adoption of that exceptional course will indeed save time and expense: Perera v. Canada, [1998] 3 F.C. 381 (C.A.)--Federal Court Rules, 1998, SOR/98-106, rr. 107, 220.