Attawapiskat First Nation v. Canada (Minister of Aboriginal Affairs and North Development), (2012) 416 F.T.R. 172 (FC)

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: August 01, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 416 F.T.R. 172 (FC);2012 FC 948

Attawapiskat First Nation v. Can. (2012), 416 F.T.R. 172 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. JL.034

Attawapiskat First Nation as represented by Chief and Council (applicant) v. Her Majesty the Queen in Right of Canada, as represented by The Minister of Aboriginal Affairs and Northern Development Canada (respondent)

(T-2037-11; 2012 FC 948; 2012 CF 948)

Indexed As: Attawapiskat First Nation v. Canada (Minister of Aboriginal Affairs and North Development)

Federal Court

Phelan, J.

August 1, 2012.

Summary:

Attawapiskat First Nation (AFN) applied for judicial review of a decision of the respondent Minister of Aboriginal Affairs and Northern Development to appoint a Third-Party Manager to AFN due to an alleged default by AFN under its Comprehensive Funding Agreement. The respondent withdrew the Third-Party Manager and subsequently brought a Motion to Dismiss on the basis that the judicial review was moot.

The Federal Court dismissed the respondent's motion, holding that the proceeding was not moot. The court allowed the application for judicial review. The court held that while there was a "default" under the Comprehensive Funding Agreement, the remedy selected by the respondent was unreasonable. The court declared that the respondent's decision to appoint a Third-Party Manager was unreasonable.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Attawapiskat First Nation (AFN) issued a declaration of emergency with respect to its housing crisis - The Minister of Aboriginal Affairs and Northern Development appointed a Third-Party Manager (TPM) to AFN due to an alleged default by AFN under s. 9.1(d) of its Comprehensive Funding Agreement (CFA) as the health, safety or welfare of members or recipients was at risk of being compromised - AFN applied for judicial review of the decision to appoint the TPM - AFN alleged that the Minister erred when he found the AFN to be in default of the CFA and appointed a TPM without first finding the Council to be at fault with respect to compromising the health, safety or welfare of AFN members, which AFN argued the Minister was required to do in accordance with s. 9.1(d) - Alternatively, AFN argued that the Minister erred in choosing to appoint a TPM as a remedy - The Federal Court held that on the first issue regarding the Minister's interpretation of the CFA, the applicable standard of review was correctness - On the issue of the choice of remedy, the applicable standard of review was reasonableness - See paragraphs 63 to 68.

Administrative Law - Topic 3314

Judicial review - General - Bars - Impracticality or no useful purpose - [See Courts - Topic 2286 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The Attawapiskat First Nation (AFN) applied for judicial review of the Minister of Aboriginal Affairs and Northern Development's decision to appoint a Third-Party Manager (TPM) to AFN due to an alleged default by AFN under its Comprehensive Funding Agreement (CFA) - The respondent withdrew the TPM and brought a Motion to Dismiss on the basis that the judicial review was moot - The Federal Court dismissed the respondent's motion - The court's determination of the legality of the Minister's decision to appoint the TPM would have a practical effect on the rights of the parties, for example, with respect to who should undertake the fees drawn by the TPM from the AFN's CFA funding for the provision of management services - The TPM had administered the AFN's funds between December 5, 2011, and April 19, 2012 - The legality of his actions during that period might be affected by the court's decision - Further, the proper interpretation of the CFA remained a live controversy given the fact that the parties continued to be parties to the CFA - Other funding agreements between the Government and First Nations also contained similar or identical provisions to those at issue here - The proceeding was not moot simply because the TPM had been withdrawn - Even if the proceeding were technically moot, the court exercised its discretion to determine the judicial review - See paragraphs 41 to 48.

Crown - Topic 685

Authority of ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See Administrative Law - Topic 3202 and first Indians, Inuit and Métis - Topic 6334 ].

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - The Attawapiskat First Nation (AFN) applied for judicial review of the Minister of Aboriginal Affairs and Northern Development's decision to appoint a Third-Party Manager (TPM) to AFN due to an alleged default by AFN under its Comprehensive Funding Agreement - The Minister argued that judicial review was not available because the dispute was fundamentally contractual in nature - The Federal Court held that judicial review was available - The court concluded that "the character of the matter in issue is broader than simply commercial. The matter impacts the AFN's ability to operate and manage its affairs as a 'people'; the nature of the decision-maker is as the delegate of the Minister carrying out responsibilities of a public nature owed to a group of First Nations people; the decision at issue is founded by a provision that speaks directly to the 'health, safety or welfare' of these people. It is a provision of public welfare not commercial enterprise; the Minister's relationship to the AFN is intertwined with constitutional and statutory schemes. It is a relationship of one government to another; there is no issue that the decision-maker is an agent of the federal government directed by statute, regulation and governmental policy; public law remedies such as declaration, injunction and certiorari would adequately address the challenge to the decision to appoint a TPM; the AFN are in a compulsory relationship with the Crown by virtue of the constitution and legislation. This is not a consensual submission to jurisdiction; there is no doubt that given the public, media and political profile of the housing crisis, the issues in this matter had a serious public dimension" - See paragraphs 50 to 62.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - The Attawapiskat First Nation (AFN) issued a declaration of emergency with respect to its housing crisis - The Minister of Aboriginal Affairs and Northern Development appointed a Third-Party Manager (TPM) to AFN due to an alleged default by AFN under s. 9.1(d) of its Comprehensive Funding Agreement (CFA) which stated that "The Council will be in default of this Agreement in the event: ... the health, safety or welfare of Members or Recipients is at risk of being compromised" - The AFN applied for judicial review of the decision to appoint a TPM - The AFN argued that the Minister erred when he found the AFN to be in default of the CFA and thus appointed a TPM without first finding the Council to be at fault with respect to compromising the health, safety or welfare of AFN members, which the AFN argued the Minister was required to do in accordance with s. 9.1(d) - The Federal Court disagreed - Section 9.1(d) was clear that once the Minister was reasonably of the opinion that the health, safety or welfare of members of the AFN was at risk of being compromised, the Council could be found to be in default of the CFA - Section 9.1(d) functioned as a deeming provision - The AFN equated "default" with "fault" where the two words were not synonymous - See paragraphs 69 to 74.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - The Attawapiskat First Nation (AFN) issued a declaration of emergency with respect to its housing crisis - The Minister of Aboriginal Affairs and Northern Development appointed a Third-Party Manager (TPM) to AFN due to an alleged default by AFN under s. 9.1(d) of its Comprehensive Funding Agreement (CFA) which stated that "The Council will be in default of this Agreement in the event: ... the health, safety or welfare of Members or Recipients is at risk of being compromised" - The AFN applied for judicial review of the decision to appoint a TPM - The Federal Court allowed the application - While there was a "default" under the CFA, the remedy selected by the respondent was unreasonable - The Minister chose a financial tool in the form of a TPM to address what was really an operational problem - While the AFN were having trouble addressing the housing crisis, what they lacked was not the ability to manage their finances, but the material means to do so - At the time of the crisis, financial management was not the problem - The Minister never looked at any remedy other than the appointment of a TPM despite the indications of problems with resources and equipment - The remedy chosen failed to deal with the problem at hand, which was not financial in nature - See paragraphs 75 to 91.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 42].

Irving Shipbuilding Inc. et al. v. Canada (Attorney General) et al., [2010] 2 F.C.R. 488; 389 N.R. 72; 2009 FCA 116, refd to. [para. 51].

Air Canada v. Toronto Port Authority et al. (2011), 426 N.R. 131; 2011 FCA 347, refd to. [para. 55].

Algonquins of Barriere Lake v. Canada (Minister of Indian Affairs and Northern Development) (2009), 343 F.T.R. 298; 2009 FC 374, refd to. [para. 60].

Elders Council of Mitchikanibikok Inik v. Canada (Minister of Indian Affairs and Northern Development) - see Algonquins of Barriere Lake v. Canada (Minister of Indian Affairs and Northern Development).

Kehewin Cree Nation v. Canada et al., [2011] F.T.R. Uned. 219; 2011 FC 364, refd to. [para. 60].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 64].

Canada (Fisheries and Oceans) v. David Suzuki Foundation - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 65].

Tobique Indian Band v. Canada (2010), 361 F.T.R. 202; 2010 FC 67, refd to. [para. 68].

Ermineskin Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2008), 334 F.T.R. 126; 2008 FC 741, refd to. [para. 68].

Counsel:

Katherine Hensel, Maria Golarz, Brendan Van Niejenhuis and Benjamin Kates, for the applicant;

Gary Penner and Michael Beggs, for the respondent.

Solicitors of Record:

Hensel Barristers, Toronto, Ontario, for the applicant;

Stockwoods LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on April 24 and 25, 2012, at Toronto, Ontario, before Phelan, J., of the Federal Court, who delivered the following decision on August 1, 2012.