Federal Appeal


Aboriginal Peoples

CROWN RELATIONSHIP
Judge ought to have refused to entertain judicial review application

Respondent company made request to respondent Minister to consent to assignment of two easements for oil pipelines located, in part, on one of First Nation’s reserves. Before Minister could make decision, First Nation commenced judicial review application seeking order prohibiting Minister from giving his consent to assignment and for declaration that Minister was legally bound to follow its instructions with respect to company’s request. Judge held that Minister did not have absolute duty to refuse to consent to assignments upon being advised that First Nation did not agree that consent should be given. Judge held that Minister had to re-examine whether First Nation’s consent was required and whether it was in First Nation’s and public’s interest to give consent to company. Judge declared that Minster should consider First Nation’s request that consent be withheld unless more favourable terms could be obtained from company. First Nation appealed and company cross-appealed. Appeal dismissed; cross-appealed allowed. Judicial review process was premature and there was no basis for Federal Court or Court of Appeal to interfere with administrative process that required Minister to decide whether he should consent to assignments sought by company. Circumstances First Nation put forward to justify its pre-emptive strike were not exceptional. There was no irreparable harm or prejudice arising from having Minister decide question before him. Judge ought to have refused to entertain judicial review application and should have allowed administrative process to run its course. Application for judicial review was dismissed.

Cold Water Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (Nov. 25, 2014, F.C.A., M. Nadon J.A., Webb J.A., and Boivin J.A., File No. A-399-13) Decision at 235 A.C.W.S. (3d) 1 was affirmed.  247 A.C.W.S. (3d) 737.

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