The Federal Court Trial Division struck Treaty Seven First Nations’ application for judicial review of the introduction to Parliament of Bill C-7, First Nations Governance Act. Treaty Seven alleged that the Bill was introduced to Parliament without full and meaningful consultation with the First Nation members of the Confederacy of Treaty Six First Nations and the Confederacy of Treaty Seven First Nations and, as such, sought orders in nature of certiorari and mandamus.

Administrative law – Aboriginal issues – Legislation – Government’s duty to consult – Procedural requirements – Judicial review application – No reasonable cause of action

Treaty Seven First Nations v. Canada (Attorney General), [2003] F.C.J. No. 464, Federal Court of Canada – Trial Division, March 20, 2003, Gibson J.

The Attorney-General of Canada brought an application to strike the judicial review application, pursuant to Rule 221 of the Federal Court Rules, primarily on the basis that it disclosed no reasonable cause of action. The relief sought in the original application for judicial review included an order quashing Bill C-7, an order requiring the Attorney-General to procure and support meaningful consultations with Treaty Six and Treaty Seven First Nations, and an interim and permanent injunction against the passing and enforcement of Bill C-7.

The Federal Court held that, although Rule 221 generally applies only to actions and not to applications for judicial review, its principles could be extended by analogy to applications for judicial review. Thus, the question to be applied was whether or not it was plain and obvious that the application for judicial review sought to be struck disclosed no reasonable possibility of success.

In finding that the judicial review application should be struck, the Federal Court relied on the Supreme Court of Canada’s decision in Reference Re Canada Assistance Plan (BC), [1991] 2 S.C.R. 525, wherein Mr. Justice Sopinka held that the doctrine of legitimate expectations could not be applied in this type of circumstance to prevent government from introducing legislation in Parliament. The Federal Court did express reservations about the extent of the reasoning in Reference Re Canada Assistance Plan however, by saying:

I cannot help but express my concern that Justice Sopinka’s analysis, applied broadly, would allow Ministers of the Crown to create legitimate expectations in First Nations peoples, as well as perhaps others, for which they could not be held responsible before the courts. I would find that result to be alarming if an alternative remedy were not available to persons such as the Applicants here. (paragraph 31)

The Federal Court then noted that a Parliamentary Committee had been formed to consider Bill C-7, and that the Applicants could seek an opportunity to present their grievances to the Committee and that if they were dissatisfied with the result before that Committee, and of the belief that the process was unconstitutional, “a remedy before the courts would exist at that time.” (paragraph 33)

The Federal Court considered whether the application fell “within the ambit of the limited and exceptional class of cases for judicial review that should appropriately be struck”, and determined that, given the nature of the proceeding and the binding decision in Reference Re Canada Assistance Plan, the application should be struck.

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