Ochapowace First Nation et al. v. Canada (Attorney General) et al., (2007) 316 F.T.R. 19 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: September 14, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 316 F.T.R. 19 (FC);2007 FC 920

Ochapowace First Nation v. Can. (A.G.) (2007), 316 F.T.R. 19 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. SE.023

Chief Denton George, Ross Allary, Elvis Henry, Audrey Isaac, Gerald Kenny, Petra Belanger and Lila George, on Behalf of the Ochapowace First Nation (Indian Band No. 71) and Chief Murray Ironchild, M. Brenda Kaiswatum, John Rockthunder, William Lavallee, Nelson Watetch, Delbert Kaiswatum, Valerie Ironchild, Jason Wesaquate, Alphonse Obey, Harold Kaiswatum, Wayne Pratt, Dennis Wesaquate and Keith Francis on Behalf of the Piapot First Nation (Indian Band No. 75), Being Member First Nations of the Qu'appelle Valley Indian Development Authority (QVIDA) (applicants) v. The Attorney General of Canada and the Royal Canadian Mounted Police (respondents)

(T-971-06; 2007 FC 920)

Indexed As: Ochapowace First Nation et al. v. Canada (Attorney General) et al.

Federal Court

de Montigny, J.

September 14, 2007.

Summary:

The applicant First Nations applied for judicial review of a decision of the Royal Canadian Mounted Police not to lay trespass or other charges against the Prairie Farm Rehabilitation Administration and the Saskatchewan Watershed Authority in relation to their activities on, and affecting, the First Nations' reserve lands.

The Federal Court dismissed the application.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - [See Administrative Law - Topic 3345 ].

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - The applicant First Nations applied for judicial review of a decision of the Royal Canadian Mounted Police (RCMP) not to lay trespass or other charges in relation to activities on, and affecting, the First Nations' reserve lands - The Federal Court held that much of the material included in the applicants' supporting affidavits had to be excluded as there was no evidence that the material was before the decision maker when the decision was made - The court rejected the applicants' contention that it was up to the respondents to prove that the information in question was not taken into account by the RCMP when it made its decision - The court further stated that the issue could have been avoided had there been a request pursuant to rule 317 of the Federal Courts Rules to obtain the material relevant to the application that was in the possession of the decision maker - Although the applicants' counsel suggested that he could only have requested material that he did not already have, such a construction of rule 317 would subvert its purpose - The court stated that "the prudent course of action would be to request from a tribunal or other decision maker the relevant material that is in its possession if there is any prospect of a debate as to what was before the tribunal when it made its decision" - See paragraphs 9 to 19.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals (incl. ministers) - The applicant First Nations applied for judicial review of a decision of the Royal Canadian Mounted Police (RCMP) not to lay trespass or other charges against the Prairie Farm Rehabilitation Administration and the Saskatchewan Watershed Authority in relation to their activities on, and affecting, the First Nations' reserve lands - The applicants argued that the RCMP did not take into account their aboriginal and treaty rights and the fiduciary duty owed to the First Nations - The Federal Court dismissed the application on the ground that the court did not have jurisdiction to entertain it - A decision by the RCMP to initiate a criminal investigation could not be characterized as a decision by a "federal board, commission or other tribunal" within s. 18.1 of the Federal Courts Act - The court further held that even if a decision not to lay charges by the RCMP could properly be the subject of an application pursuant to s. 18.1, it could find nothing in the conduct of the RCMP that met the flagrant impropriety test - There was no authority to support the view that there was an established or potential treaty right of First Nations to assistance from the RCMP - Nor was there any evidence to support an aboriginal right to assistance by the RCMP - Further, the fiduciary duty owed by the Crown to First Nations people was not extended to the RCMP as the RCMP was not an organ of the Crown - See paragraphs 40 to 71.

Courts - Topic 4049.1

Federal Court of Canada - Jurisdiction - Federal Court - Criminal matters - [See Courts - Topic 4021.1 ].

Courts - Topic 4076

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Production of documents - [See Administrative Law - Topic 3345 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See Courts - Topic 4021.1 ].

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Courts - Topic 4021.1 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 4

Duty owed to Indians by third parties - [See Courts - Topic 4021.1 ].

Police - Topic 3007

Powers - General - Discretion respecting charges - [See Courts - Topic 4021.1 ].

Cases Noticed:

Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49 (T.D.), refd to. [para. 9].

Moktari v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 25 (T.D.), refd to. [para. 9].

Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.), refd to. [para. 9].

McConnell v. Canadian Human Rights Commission et al., [2004] F.T.R. Uned. 667; 2004 FC 817, affd. [2005] N.R. Uned. 188; 2005 FCA 389, refd to. [para. 9].

Chopra v. Canada (Treasury Board) et al. (1999), 168 F.T.R. 273 (T.D.), refd to. [para. 9].

Canadian Tire Corp. v. Canadian Bicycle Manufacturers Association et al. (2006), 346 N.R. 186; 2006 FCA 56, refd to. [para. 10].

Merchant (2000) Ltd. v. Canada (Attorney General) (2001), 281 N.R. 362; 2001 FCA 301, refd to. [para. 19].

Bastide et al. v. Canada Post, [2005] F.T.R. Uned. B87; [2006] 2 F.C.R. 637; 2005 FC 1410, refd to. [para. 21].

Ly (Q.H.) v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 706; 2003 FC 1184, refd to. [para. 21].

Akomah v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 70; 2002 FCT 99, refd to. [para. 21].

P.S. Partsource Inc. v. Canadian Tire Corp. (2001), 267 N.R. 135; 2001 FCA 8, refd to. [para. 21].

Inhesion Industrial Co. v. Anglo Canadian Mercantile Co., [2000] F.T.R. Uned. 354; 6 C.P.R.(4th) 362 (T.D.), refd to. [para. 23].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 23].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 23].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 40].

R. v. Poirier, [1989] M.J. No. 379 (Prov. Ct.), refd to. [para. 41].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 41].

Director of Public Prosecutions v. Humphreys, [1976] 2 All E.R. 497 (H.L.), refd to. [para. 42].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 43].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275, refd to. [para. 44].

Henco Industries Ltd. v. Haudenosaunee Six Nations, [2006] O.J. No. 4790 (C.A.), refd to. [para. 45].

Zhang v. Canada (Attorney General) (2006), 288 F.T.R. 115; 2006 FC 276, affd. (2007), 365 N.R. 277; 2007 FCA 201, refd to. [para. 46].

Winn et al. v. Canada (Attorney General) (1994), 84 F.T.R. 115 (T.D.), refd to. [para. 46].

O'Malley v. Canada et al., [1997] F.T.R. Uned. 547 (T.D.), refd to. [para. 46].

Stucky v. Canada (Attorney General) (2004), 267 F.T.R. 203; 2004 FC 1769, refd to. [para. 46].

Labrador Métis Nation et al. v. Canada (Attorney General) (2005), 276 F.T.R. 219; 2005 FC 939, refd to. [para. 46].

Kostuch v. Alberta (Attorney General) (1995), 174 A.R. 109; 102 W.A.C. 109 (C.A.), refd to. [para. 48].

Thiessen v. Manitoba et al. (2002), 165 Man.R.(2d) 93; 2002 MBQB 149, refd to. [para. 48].

R. v. Beaudry (A.) (2007), 356 N.R. 323; 2007 SCC 5, consd. [para. 49].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 55].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 60].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 64].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 64].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18.1 [para. 56].

Federal Courts Rules, 1998, rule 317 [para. 19].

Counsel:

Mervin Phillips, for the applicants;

Chris Bernier, for the respondents.

Solicitors of Record:

Phillips & Company, Regina, Saskatchewan, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard on May 15 and 16, 2007, at Regina, Saskatchewan, before de Montigny, J., of the Federal Court, who delivered the following decision on September 14, 2007.