Date: 20011211
Docket: A-656-01
Neutral citation: 2001 FCA 387
CORAM: ROTHSTEIN J.A.
BETWEEN:
CHIEF LARRY COMMODORE, CHIEF OF THE SOOWAHLIE INDIAN
BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE SOOWAHLIE INDIAN BAND, AND ON BEHALF OF HIMSELF
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF DAVID SEPASS, CHIEF OF THE SKOWKALE INDIAN BAND,
ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE
SKOWKALE INDIAN BAND, AND ON BEHALF OF HIMSELF
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF JOE HALL, CHIEF OF THE TZEACHTEN INDIAN BAND,
ON BEHALF OF HIMSELF AND OTHER MEMBERS OF THE
TZEACHTEN INDIAN BAND, AND ON BEHALF OF HIMSELF
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF FRANK MALLOWAY, CHIEF OF THE YAKWEAKWIOOSE
INDIAN BAND, AND CHIEF DALTON SILVER, ACTING CHIEF OF THE YAKWEAKWIOOSE INDIAN BAND, ON BEHALF OF
THEMSELVES AND ALL OTHER MEMBERS OF THE
YAKWEAKWIOOSE INDIAN BAND, AND ON BEHALF OF
THEMSELVES AND ALL OTHER MEMBERS
OF THE STO:LO ABORIGINAL NATION
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CITY OF CHILLIWACK
Intervener
Heard at Vancouver, British Columbia, on December 10, 2001.
Judgment delivered from the Bench at Vancouver, British Columbia, on December 11, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20011211
Docket: A-656-01
Neutral citation: 2001 FCA 387
CORAM: ROTHSTEIN J.A.
BETWEEN:
CHIEF LARRY COMMODORE, CHIEF OF THE SOOWAHLIE INDIAN
BAND, ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE SOOWAHLIE INDIAN BAND, AND ON BEHALF OF HIMSELF
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF DAVID SEPASS, CHIEF OF THE SKOWKALE INDIAN BAND,
ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE
SKOWKALE INDIAN BAND, AND ON BEHALF OF HIMSELF
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF JOE HALL, CHIEF OF THE TZEACHTEN INDIAN BAND,
ON BEHALF OF HIMSELF AND OTHER MEMBERS OF THE
TZEACHTEN INDIAN BAND, AND ON BEHALF OF HIMSELF
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF FRANK MALLOWAY, CHIEF OF THE YAKWEAKWIOOSE
INDIAN BAND, AND CHIEF DALTON SILVER, ACTING CHIEF OF THE YAKWEAKWIOOSE INDIAN BAND, ON BEHALF OF
THEMSELVES AND ALL OTHER MEMBERS OF THE
YAKWEAKWIOOSE INDIAN BAND, AND ON BEHALF OF
THEMSELVES AND ALL OTHER MEMBERS
OF THE STO:LO ABORIGINAL NATION
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CITY OF CHILLIWACK
Intervener
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver, British Columbia
on December 11, 2001)
ROTHSTEIN J.A.
[1] This is an appeal from a decision of Nadon J. dismissing the appellants' motion for, what is, in substance, an interlocutory injunction enjoining the Government of Canada from transferring a 62 hectare portion of the former Canadian Forces base at Chilliwack to the Canada Lands Company. The Canada Lands Company is a non-agent Crown corporation devoted to developing federal lands and disposing of them. The transfer is to take place on December 14, 2001 and this appeal has therefore been brought and heard on an expedited basis.
[2] The underlying proceeding, as originally framed, was a judicial review brought by the appellants on July 14, 2000 asking the Trial Division of this Court to declare invalid or unlawful, a June 16, 2000 Order in Council authorizing the transfer of the subject lands to the Canada Lands Company. On application of the respondent, the judicial review was converted to an action pursuant to section 18.4 of the Federal Court Act by Rouleau J. on January 29, 2001. The appellants are appealing that decision and the appeal is to be heard in Vancouver on January 28, 2002. No further steps have been taken in the Trial Division.
[3] The basis for Nadon J.'s dismissal of the interlocutory injunction application was that the appellants did not establish that they would suffer irreparable harm from the transfer of the subject lands. We have concluded that there is no basis for this Court to interfere with Nadon J.'s discretionary decision and indeed, based on the arguments made before this Court, we agree with his reasons for dismissing the motion.
[4] The appellants allege that the land is reserve land or is subject to aboriginal title. The respondent accepts that the appellants have raised a serious issue in respect of aboriginal title. The arguments therefore centre on irreparable harm and balance of convenience.
[5] The substance of the appellants' irreparable harm argument can be briefly stated. They say they were the historical owners of the land, that in the past the land was a place for meeting and for travel routes, that hunting and gathering took place on the land and that fishing took place nearby. Accordingly, they have an historical connection to the land and if it is disposed of, that connection will be lost. Although the land was occupied by the Canadian Forces, they say they have always claimed their right to the land.
[6] Under section 35 of the Indian Act, the Crown is empowered to expropriate Indian reserve land. The fact that land is reserve land, even taken together with the historical significance of the land to an Indian band, is not sufficient to preclude an expropriation. The issue is only one of proper compensation. Even when the Crown wrongly disposes of reserve land, the claim is for breach of fiduciary duty and the remedy is damages. In this case, the government will dispose of land that it owns and in respect of which there is only a claim to reserve status or aboriginal title. As in the case of expropriation or wrongful disposition of reserve land, the remedy here, if the appellants are successful, would be damages.
[7] The appellants have demonstrated no special circumstances relating to the land. They say they require the land to sustain themselves. The historical connection which the appellants claim is unrelated to their anticipated use of the land and there is no evidence as to why this particular land is required having regard to their anticipated use. The appellants have not established a case of irreparable harm. It is sufficient to conclude that if, as the appellants allege, the disposition of the land constitutes a breach of a fiduciary duty by the respondent, the Court will be in a position to order damages or to fashion such other remedy as may be suitable based on the evidence before it.
[8] Nadon J. raised, but did not find it necessary to deal with, the balance of convenience in his reasons. We are satisfied on the evidence that the balance of convenience favours the respondent. The appellants made a number of arguments. One is that the appellants and the residents of Chilliwack are neighbours and permitting the disposition to proceed will upset that relationship. However this argument cuts both ways. The City of Chilliwack, on behalf of its citizens, intervened to oppose the interlocutory injunction application.
[9] A second argument is that the respondent was proceeding with the disposition notwithstanding that this case is still pending in the Court. A disposition in these circumstances would, they say, undermine the integrity of the judicial review application as it would render a decision moot. However, it appears that the appellants have taken no steps to expedite proceedings or, indeed, to move the matter along at all. They are not in a strong position to make this argument.
[10] Third, the appellants say the disposition should await judgment by the Supreme Court of Canada in an unrelated case which they say could shed light on the parties' rights in this case. However, there are many uncertainties both as to when the Supreme Court might render its decision, but more importantly, whether it would resolve the present matter. This is not a compelling argument for granting an injunction.
[11] A further argument pertains to land claims negotiations. However, the process and outcome and their bearing on the present litigation is unclear. Little weight can be accorded to this consideration.
[12] The respondent and the City of Chilliwack say there are important public uses for the land in question. One important use is the provision of a school which is needed because of current overcrowding in the area. Doubt as to the future status of the land has inhibited investment to upgrade a recreational centre and building to be used for a library that are located on the land. The City also says there will be residential construction, an increase to the City's tax base from development of the land, payment to the City of $7.5 million by Canada Lands Company for development of off site services and, from a planning perspective, integration of the land into the community. These are all balance of convenience considerations that weigh in favour of the respondent.
[13] It is also relevant that the appellants have not provided an undertaking as to damages, which is normal in interlocutory injunction proceedings. The failure to provide an undertaking is not always fatal to an applicant. Counsel pointed out that the appellants are financially unable to provide such an undertaking. While that may be understandable, this still is a factor that favours a respondent in a balance of convenience assessment. See Lavoie v. Canada (Minister of the Environment) 1998, F.C.J. 1213 at paragraph 14 per Hugessen J.
[14] We have no hesitation concluding the balance of convenience favours the respondent.
[15] The appeal will be dismissed with costs to the respondent and intervener.
(Sgd.) "Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-656-01
STYLE OF CAUSE: Chief Larry Commodore et al. v. AGC
PLACE OF HEARING:Vancouver, BC
DATE OF HEARING: December 10, 2001
REASONS FOR December 11, 2001 : ROTHSTEIN J.A.
CONCURRED IN BY: NOËL, MALONE JJ.A.
DATED: December 11, 2001
APPEARANCES:
Louise Mandell/Clarine Ostrove FOR THE APPELLANT
John Hunter/Michael Stephens FOR THE RESPONDENT
Jennifer Chow/Malcolm Palmer FOR THE RESPONDENT
Reece Harding/Sukhbir Manhas FOR THE INTERVENER
SOLICITORS OF RECORD:
Mandell Pinder FOR THE APPELLANT
Vancouver
Davis & Co. FOR THE RESPONDENT
Vancouver
Morris Rosenberg FOR THE RESPONDENT
Attorney General of Canada
Lidstone Young FOR THE INTERVENER
Vancouver