NATIVE PEOPLES |
Treaty Seven Grand Chief Chris Shade v. Canada (Attorney General)
T-1934-02
2003 FCT 327, Gibson J.
20/3/03
19 pp.
Judicial review in respect of introduction to Parliament on October 9, 2002, of Bill C-7 First Nations Governance Act, without full and meaningful consultation with First Nation members of Confederacy of Treaty Six First Nations, and Confederacy of Treaty Seven First Nations--Respondents seeking order striking applicants' notice of application for judicial review on basis discloses no reasonable cause of action pursuant to Federal Court Rules, 1998, r. 221--On its face, r. 221 applies only to actions and not to applications for judicial review--Open to Court to extend by analogy principles of r. 221 to application for judicial review--David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) holding direct and proper way to contest originating notice of motion allegedly without merit is to appear and argue at hearing of motion itself--Three issues: (1) whether plain and obvious application for judicial review cannot succeed; (2) whether application scandalous, frivolous or vexatious; (3) whether application abuse of process of Court--If any issues answered in affirmative, is this "very exceptional" case where application for judicial review should be struck--Applicants urged they had legitimate expectation of full and meaningful consultation prior to introduction of legislation in question--In Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, Supreme Court dealt with doctrine of legitimate expectations--Right to be consulted and duty of fairness not justiciable because seeking to challenge process of legislation--Courts do not intervene during legislative process in Parliament and legislatures-- Formulation and introduction of Bill part of legislative process with which courts will not meddle--Reservations expressed with respect to S.C.C.'s reasoning when applied to facts herein--Supreme Court extended respect courts owe to Parliament not only to parliamentary process but to legislative process--Quotation from La Constitution du Canada by G.-A. Beaudoin referring to "legislative process in Parliament", not to broader concept of legislative process as espoused by Supreme Court in Canada Assistance Plan case--Beaudoin's statement not providing support for broader deference-- Supreme Court's analysis, applied broadly, would allow Ministers of Crown to create legitimate expectations in First Nations peoples, as well as perhaps others, for which Ministers could not be held responsible before courts--Such result alarming if alternative remedy not available to persons such as applicants herein --Alternative remedy does exist on facts herein, i.e. applicants could present grievances to Parliamentary Committee undertaking consultations on Bill-- Even though alternative remedy to current proceeding might not appeal to applicants, it is remedy open to them and application for judicial review bereft of any possibility of success--Application within ambit of limited and exceptional class of applications for judicial review appropriate to strike-- Application struck on ground application plain and obvious cannot succeed--Federal Court Rules, 1998, SOR/96-108, r. 221.