T-1858-84
Pacific Fishermen's Defence Alliance, Prince
Rupert Fishermen's Co-operative Association,
Co-op Fishermen's Guild, Pacific Trollers Asso
ciation, Pacific Gillnetters Association, Pacific
Coast Fishing Vessel Owners' Guild, Northern
Trollers Association, Gulf Trollers Association,
Fishing Vessel Owners' Association of British
Columbia and Deep Sea Trawlers Association of
B.C. and B.C. Wildlife Federation (Plaintiffs)
v.
The Queen in right of Canada, Minister of Indian
Affairs and Northern Development and Fred Wal-
chli (Interim Federal Negotiator, Nishga Land
Claim) (Defendants)
and
Nisga'a Tribal Council (Intervenor)
INDEXED AS: PACIFIC FISHERMEN'S DEFENCE ALLIANCE V.
CANADA
Trial Division, Dubé J.—Vancouver, February 4
and 12, 1987.
Native peoples — Aboriginal rights — Fishing rights —
Negotiations — Interlocutory injunction denied — Plaintiffs
having no right to intervene in negotiations between Crown and
Indians — No serious issue to be tried — Fisheries and
aboriginal rights within exclusive jurisdiction of Parliament
— No duty of fairness to third parties — National government
speaking for all interested parties — Consultations sufficient
— Granting injunction would prejudice negotiations —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 7, 25 — Constitution Act, 1867, 30 & 31 Vict., c.
3 (U.K.) (R.S.C. 1970, Appendix II, No. 51 (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), ss. 91(12), 92 — Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 35(1),(3)
(as added by Constitution Amendment Proclamation,
SI/84-102) — Fisheries Act, R.S.C. 1970, c. F-14.
Fisheries — Associations of commercial fishermen seeking
injunction to restrain conclusion of land claims agreement
between tribal council and federal Crown — Whether Crown
having power to abrogate right of access to sea fishery
Whether transfer to Indians of federal right to manage fisher
ies ultra vires — Aboriginal rights including fisheries —
Public right to fish may be regulated on tidal waters by
federal government — Plaintiffs cannot oppose settlement of
aboriginal rights enshrined in Constitution — Minister
authorized to issue and cancel fishing licences — No irrepa-
rable harm since reallocation of fishery to Indians to be by
purchase of licences at fair market value.
Practice — Parties — Intervention — Associations of
commercial fishermen having no right to intervene in negotia
tions between Crown and Indians on aboriginal fishing rights
— No serious issue to be tried — No irreparable harm —
Balance of convenience against granting interlocutory injunc
tion — Federal Court Rules, C.R.C., c. 663, R. 469.
The Crown in right of Canada and the Nisga'a Indians of
British Columbia were in the process of negotiating native land
claims. The negotiator indicated that he was proposing to grant
a portion of the tidal fisheries to the Nisga'a as part of the
settlement.
All but one of the plaintiffs are associations of licensed
commercial fishermen operating on the tidal fisheries of British
Columbia. To protect their interests before it is too late to do
so, they seek an interlocutory injunction under Rule 469 to
restrain the defendants from concluding an agreement with the
Nisga'a until trial or further notice.
The plaintiffs allege that they have a right of access to the
sea fishery which cannot be restricted by the Crown, that the
rights to the sea fishery are vested in the Crown in right of
British Columbia, that the federal Crown cannot abandon its
sovereign legislative power over fisheries to the Nisga'a or that
granting exclusive fishery rights to the Nisga'a would deprive
the plaintiffs of liberty protected by section 7 of the Charter.
They say that an agreement before trial would deprive them of
their remedy but that an injunction would cause no prejudice to
the defendants.
The Crown replies that fisheries are within the exclusive
jurisdiction of the federal Parliament, that the plaintiffs' tem
porary right to specific fisheries is subject to federal manage
ment and control and that fisheries are included in the aborigi
nal rights recognized and affirmed in the Constitution and
which the federal government has the duty to negotiate with
Indians in an attempt to settle them. The Crown points out that
the plaintiffs' contention is a novel one and argues that it would
be disruptive if the Crown were obliged to bring in as parties to
the negotiations outside groups with private interests. Informa
tion and consultation should be enough. Furthermore, the
negotiator has no authority to finalize any agreement. It was
further argued that, the negotiator not being a board or presid
ing officer at a hearing, the plaintiffs have no right in law to a
fair hearing at a negotiating procedure between two other
parties. The Crown finally argues that stopping the negotia
tions would cause irreparable harm.
Held, the application is dismissed.
Aboriginal rights include fisheries and both are within the
exclusive jurisdiction of Parliament.
Since these negotiations have been in progress for ten years,
the status quo requires that they continue. There is also no
assurance that if the plaintiffs are granted the injunction but
are unsuccessful at trial, they could reimburse for the harm to
the negotiations caused by the delay. Other negotiations with
tribes would be disturbed by the spectre of an injunction
hanging over all of them.
The arbitrator is not a tribunal and the negotiations are not a
hearing, so no duty is owed to parties outside the negotiations.
Consultation is not participation. Furthermore, only the nation
al government can speak for all interested third parties.
In view of the affidavit evidence that any change in alloca
tion of fisheries would be accomplished by the purchase of
licences at fair market value, the situation was not one involv
ing irreparable harm.
The plaintiffs had failed to establish that there is a serious
issue to be tried or irreparable harm and the balance of
convenience favours the defendants.
CASES JUDICIALLY CONSIDERED
APPLIED:
Kruger et al. v. The Queen, [1978] 1 S.C.R. 104; Spar
row v. R. (1986), 9 B.C.L.R. (2d) 300 (C.A.); Attorney-
General for the Dominion of Canada v. Attorneys-Gen
eral for the Provinces of Ontario, Quebec, and Nova
Scotia, [1898] A.C. 700 (P.C.); Attorney General of
Canada v. Fishing Vessel Owners' Association of B.C.,
[1985] 1 F.C. 791 (C.A.); American Cyanamid Co. v.
Ethicon Ltd., [1975] A.C. 396 (H.L.).
DISTINGUISHED:
Canadian Tobacco Manufacturers' Council v. National
Farm Products Marketing Council, [1986] 2 F.C. 247;
(1986), 65 N.R. 392 (C.A.); MacMillan Bloedel Ltd. v.
Mullin; Martin v. R. in Right of B.C., [1985] 3 W.W.R.
577 (B.C.C.A.).
REFERRED TO:
Attorney-General for British Columbia v. Attorney-
General for Canada, [ 1914] A.C. 153 (P.C.); Gulf Troll -
ers Assn. v. Canada (Minister of Fisheries and Oceans),
[1987] 2 F.C. 93 (C.A.).
COUNSEL:
C. Harvey for plaintiffs.
G. O. Eggertson for defendants.
J. R. Aldridge for intervenor.
SOLICITORS:
Russell & DuMoulin, Vancouver, for plain
tiffs.
Deputy Attorney General of Canada for
defendants.
Rosenbloom & Aldridge, Vancouver, for
intervenor.
The following are the reasons for order ren
dered in English by
Dust J.: This application is for an order pursu
ant to Rule 469 [Federal Court Rules, C.R.C., c.
663] that the defendants be restrained from con
cluding, initialling or announcing a land claims
agreement with the Nisga'a Tribal Council until
trial or further notice.
Apart from the B.C. Wildlife Federation, which
represents numerous sports fishermen and clubs
with interest in the fresh water fisheries of British
Columbia, the plaintiffs are associations of li
censed commercial fishermen who operate on the
tidal fisheries of the west coast of Canada.
In their statement of claim, the plaintiffs allege
that they have a right of access to the sea fishery
which is in law a liberty not to be restricted or
removed by any exercise of the prerogatives of the
Crown. In the alternative, they claim that the
rights to the sea fishery are vested in the Crown in
right of the Province of British Columbia and
cannot be abrogated by the exercise of any federal
power. They allege that any purported allocation
or grant of exclusive rights to apportion those
fisheries is ultra vires and any purported transfer
to the Nisga'a Tribe of the federal right to manage
or regulate those fisheries is ultra vires the federal
power, being an abandonment of the sovereign
legislative power vested in Parliament by the Con
stitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)]. As a further
alternative, they claim that any agreement with
the Nisga'a granting them exclusive fisheries over
these waters will deprive the plaintiffs of a liberty
pursuant to section 7 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)].
As appears from affidavits filed in support of
this motion, the plaintiffs wrote on May 3, 1984 to
the then Minister of Indian and Northern Affairs
("the Minister") requesting a right to a fair hear
ing in the Nisga'a land claims negotiations, which
the plaintiffs feared involved a proposal to grant a
portion of the fishery to the Nisga'a Tribal Coun
cil. On June 8, 1984 the chief federal negotiator,
John Bene, ("the negotiator") answered that no
agreement had been reached and that negotiations
were continuing. (The defendant Fred Walchli is
the present negotiator.) On June 26, 1984 the then
Minister advised that "at this exploratory stage,
all discussions between the various parties, the
Federal Government, the British Columbia Gov
ernment and the Nisga'a Tribal Council, are being
held in camera". Some three meetings were held
between the Offices of Native Claims and repre
sentatives of the plaintiffs. The latter were briefed
in general terms but no documents were produced.
Further correspondence followed. In the course
of injunction proceedings launched before the
Supreme Court of British Columbia, a document
was filed indicating that the negotiator was
proposing to grant a portion of the fisheries to the
Nisga'a Tribal Council as part of a claim
settlement.
The plaintiffs say that they are alarmed at the
prospect of the negotiator reaching an agreement
with the Nisga'a Tribal Council granting away a
portion of the fisheries and fear that once an
agreement in principle is reached after a decade or
more of negotiating, there will be very little room
for further negotiation. They want their action
before this Court to be resolved before the defend
ants are allowed to come to an agreement without
the plaintiffs' participation.
The plaintiffs also point to a recent address of
the present Minister to the House of Commons,
December 18, 1986 announcing "a comprehensive
native land claims policy" and to a published
policy paper wherein the Minister wished "to
make it clear that the mandate of all federal
negotiators will explicitly require that third parties
be consulted".
It is trite law that in order to obtain an inter
locutory injunction, the applicant must show: (1)
that there is a serious issue to be tried; (2) that he
will suffer irreparable harm; (3) that the balance
of convenience favours him.
In support of their application for an injunction,
the plaintiffs argue that there is indeed a serious
issue to be tried. They assert that there will be
irreparable harm if an important portion of the
western fisheries is taken away from them and
allocated to the Nisga'a Tribe. They allege that
the balance of convenience weighs in their favour
as negotiations could still continue until trial, pro
vided no agreement is signed before that date.
In MacMillan Bloedel Ltd. v. Mullin; Martin v.
R. in Right of B.C., [1985] 3 W.W.R. 577, the
British Columbia Court of Appeal granted an
injunction to two Indian bands restraining Mac-
Millan Bloedel from logging on an island lying off
the west coast of Vancouver. The injunction raised
two questions which the Court answered in the
affirmative: whether there is a fair issue to be
raised as to the existence of the right and whether
the property should be preserved in its present
actual condition until the question can be disposed
of at trial. The Court held that if an injunction
prevents MacMillan Bloedel from logging pending
the trial, and the Court eventually decides that
MacMillan Bloedel has the right to log, then the
timber will still be there and MacMillan Bloedel
will not have suffered an irreparable harm.
The plaintiffs claim that, similarly in the instant
case, if the injunction is granted and the plaintiffs'
action is dismissed at trial, the negotiations can
still continue; whereas should an agreement be
concluded between the government and the
Nisga'a Tribal Council before trial, then it will be
too late for the plaintiffs to make their case.
The plaintiffs allege that they are interested
parties in the matter. They exercise a public right
to fish on Canadian tidal waters. That right will be
affected by a claim settlement. They have a right
to a fair hearing and that right has been confirmed
by government policy, so they claim.
The plaintiffs canvassed a 1913 Privy Council
decision, Attorney-General for British Columbia
v. Attorney-General for Canada, [1914] A.C. 153.
The Court held therein that the right of fishing in
the sea is a public right, not dependent upon any
proprietary right, and that the Dominion has the
exclusive right of legislating with regard to it.
They rely mostly on these pronouncements of
Viscount Haldane (at page 167):
But in the case of tidal waters (whether on the foreshore or in
estuaries or tidal rivers) the exclusive character of the title is
qualified by another and paramount title which is prima facie
in the public.
and (at page 169):
But their Lordships are in entire agreement with him on his
main proposition, namely, that the subjects of the Crown are
entitled as of right not only to navigate but to fish in the high
seas and tidal waters alike ... The right into which this prac
tice has crystallized resembles in some respects the right to
navigate the seas or the right to use a navigable river as a
highway...
The plaintiffs submit, therefore, that they have
a strong case and are entitled to a status quo
pending trial. Should negotiations be concluded
before trial, they say they will have been deprived
of their remedy, whereas an injunction would
cause no prejudice to the defendants. The injunc
tion would merely postpone any announcement as
to the fishing component of the negotiations and
the negotiations will be free to proceed with agree
ments on other elements being negotiated, viz.
land, forests, etc.
On the other hand, I must accept the first
proposition of the Crown, that aboriginal rights do
exist and they include fisheries. Dickson J. (now
Chief Justice of the Supreme Court of Canada)
said as follows in Kruger et al. v. The Queen,
[1978] 1 S.C.R. 104, wherein he said [at page
109] that:
Claims to aboriginal title are woven with history, legend,
politics and moral obligations.
Another relevant decision is that of the British
Columbia Court of Appeal, Sparrow v. R. (1986),
9 B.C.L.R. (2d) 300. At the outset the Court
states that:
Before April 1982 it was clearly the law that fishing by Indians,
even if in exercise of an aboriginal right to fish was subject to
any controls imposed by the Fisheries Act, R.S.C. 1970, c.
F-14, and the regulations made thereunder.
The issue in that appeal was whether that power to
regulate is now limited by subsection 35(1) of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)].
In a 1898 Privy Council decision, Attorney-
General for the Dominion of Canada v. Attorneys-
General for the Provinces of Ontario, Quebec, and
Nova Scotia, [1898] A.C. 700, the Privy Council
held inter alia that the enactment of fishery regu
lations and restrictions is within the exclusive
competence of the federal parliament and is not
within the legislative powers of provincial legisla
tors.
As to the 1913 Privy Council decision above
referred to by the plaintiffs, although that judg
ment recognizes to the public a general right to
fish, that right may be regulated on tidal waters by
the federal government. Viscount Haldane said (at
page 169):
But to the practice and the right there were and indeed still
are limits, or perhaps one should rather say exceptions.
and (at page 170):
... that no public right of fishing in such waters, then existing,
can be taken away without competent legislation. (My
underlining.)
The competent legislation is obviously the Fisher
ies Act [R.S.C. 1970, c. F-14].
In a Federal Court of Appeal decision released
on November 3, 1986, Gulf Trollers Assn. v.
Canada (Minister of Fisheries and Oceans),
[1987] 2 F.C. 93, wherein Marceau J., on behalf
of the Court, held that in the exercise of the
Parliament's legislative competence under subsec
tion 91(12) of the Constitution Act, 1867, it may
establish close and open times for catching fish,
not only for the purpose of conservation but also
for a purpose of socio-economic nature. Referring
to the distribution of legislative powers under sec
tions 91 and 92 between the central Parliament
and the provincial legislatures, he said that the
distribution was made on the basis of classes of
subjects, not of interests or concerns.
The Crown submits that Parliament may
manage the fishery on socio-economic or on other
grounds, including allocation to Indians. If, in the
course of management, damages are caused to
other parties, then compensation is available: in
that sense allocation of quotas or licences does not
cause irreparable damages to present holders of
fishing licences.
Amended Part 1 of the Constitution Act, 1982
(i.e. the Canadian Charter of Rights and Free
doms) now provides under section 25 that the
guarantee in the Charter shall not be construed so
as to abrogate or derogate from any aboriginal
treaty or other aboriginal rights. Subsection 35(1)
provides that the existing aboriginal and treaty
rights of the aboriginal peoples of Canada are
recognized and affirmed. Subsection 35(3) [as
added by Constitution Amendment Proclamation,
SI/84-102] defines "treaty rights" as including
rights "that now exist by way of land claim agree
ments or may be so acquired".
In short, the plaintiffs cannot in principle oppose
the settlement of aboriginal rights which are rec
ognized by the courts and enshrined in the Consti
tution. Obviously, settlement and negotiations are
the better way to proceed and there is no room for
all interested groups to be present. Their interests
are represented by the Government of Canada.
Basically, the Crown's case is that the province
has no right to regulate tidal water fisheries and
that the federal government has the exclusive right
so to do. Subsection 35(1) of the Constitution Act,
1982 recognizes and affirms the existing aborigi
nal and treaty rights of the aboriginal peoples of
Canada. It is, therefore, the duty of the federal
government to negotiate with Indians in an
attempt to settle those rights. The plaintiffs have
no absolute right to specific fisheries. They merely
enjoy a temporary right, always subject to federal
management and control. Under the Fisheries Act,
R.S.C. 1970, c. F-14, the Minister is authorized to
issue and cancel fishing licences and he may allo
cate to the plaintiffs or to the Indians certain
fishing areas and licences. The government's task
is to determine, define, recognize and affirm what
ever aboriginal rights existed. It may not ignore
them under the guise of protecting so-called public
fishing rights.
The Crown submits that the plaintiffs are trying
to establish a novel position: never before have
government negotiators in their dealings with
Indian tribes with reference to aboriginal or treaty
rights been obliged to bring in as parties to the
negotiations outside groups with private interests.
Obviously, if that principle is accepted with refer
ence to fisheries, the same situation will prevail
with reference to land or forestry or any other
aspects of aboriginal rights. Those rights, by their
very nature, attract or disrupt other established
interests. The position of the Crown is that inter
ested parties ought to be generally informed and
consulted but not brought in as participants at the
negotiating table.
The Crown's position is also that the negotiator
has no authority to finalize any agreements. He is
merely authorized to negotiate with the Nisga'a
Indians to see if a settlement can be reached. Any
tentative settlement negotiated by him would be
subject to the approval of the Minister and other
ministers of the Crown concerned under their
respective jurisdictions and to final approval by the
Cabinet. Should legislation be required to effect
any settlement, as has happened in certain other
settlements, then Parliament would be the final
authority.
The current policy of the department, as
expressed by the Minister and referred to earlier,
is that there will be consultation with parties
whose rights are affected. There will be separate
negotiations with them. The Crown submits that if
any person or group of persons affected by the
myriad of government negotiations taking place in
the country would have a right in law to partici
pate, such a principle would in effect paralyze the
government. The negotiations with the Nisga'a
Tribe have been going for some ten years and are
not about to be completed.That process cannot be
held up so as to invite all interested parties to the
negotiating table.
According to the Regional Director General of
the Department, the Nisga'a Indians would with
draw from further negotiations with the Crown if
third parties were included. That opinion, however,
has not been confirmed by the Indians and counsel
for the intervenor does not share it.
As to the right of fair hearing, the Crown states
that the negotiator has no power to compel wit
nesses, to call for documents, or to make decisions.
He is not a board or a presiding officer at a
hearing. He is merely a negotiator. The plaintiffs
have no right in law to a fair hearing at a negotiat
ing procedure between two other parties.
Since these confidential negotiations have been
going on for the past ten years, the status quo calls
for the negotiations to continue and not to be
restrained before fruition. In a 1985 Federal Court
of Appeal decision Attorney General of Canada v.
Fishing Vessel Owners' Association of B.C.,
[1985] 1 F.C. 791, Pratte J., speaking on behalf of
the Court, dealt with injunction matters and said
at page 795 that it was wrong for the Trial Judge
to assume that the grant of the injunction would
not cause any damage to the government:
When a public authority is prevented from exercising its statu
tory powers, it can be said, in a case like the present one, that
the public interest, of which that authority is the guardian,
suffers irreparable harm.
He found that the Trial Judge did not in that case
take into consideration that the respondents'
application sought, in a sense, to disturb rather
than preserve the status quo.
I also note that there is no assurance that, if the
injunction is granted and the plaintiffs are unsuc
cessful at trial, the latter would be in a position to
reimburse for the harm caused by the delay inflict-
ed upon the negotiation proceedings. This case
cannot be isolated. Other negotiations are going on
with other Indian tribes in other provinces with
reference to other aboriginal rights. The spectre of
an injunction suspended above all these negotia
tion tables could gravely disturb and seriously
harm the progress of those negotiations as well.
As to the duty of fairness in a hearing, a 1986
Court of Appeal decision, Canadian Tobacco
Manufacturers' Council v. National Farm Prod
ucts Marketing Council, [1986] 2 F.C. 247;
(1986), 65 N.R. 392, held that the National Farm
Products Marketing Council which conducted a
public hearing on the advisability of recommend
ing to the Minister that a national tobacco market
ing agency be established, had a duty of fairness,
notwithstanding that it had power merely to
inquire and advise because its recommendations
could affect the rights and interests of the manu
facturers. The Court also held that fairness dictat
ed that the study be produced and considered
because it was a timely professional study relevant
to an issue of critical importance to the Council's
report to the Minister. Mahoney J. said at pages
257 F.C.; 398 N.R.:
A tribunal which inquires and recommends but does not
decide may be required to observe procedural fairness. Whether
or not the requirement exists in a given situation depends on
either or both of two considerations: (1) the actual role of the
enquiry in the decision-making process; and (2) the potential
effect of the recommendation itself absent an ensuing decision.
In my view, the arbitrator is not such a tribunal.
He is merely a negotiator attempting to bring
together two parties interested in negotiating their
respective rights and duties. He owes no duty to
parties outside the negotiations.
In short, the duty of fairness applies to a hearing
and not to negotiation proceedings. Consultation is
not participation. There is consultation going on
now with the interested third parties. If the process
is not satisfactory, there might be cause for greater
input by the interested third parties to the Minis-
ter and vice versa. That can be done at separate
sessions without disturbing the negotiations.
In these negotiations, only the national govern
ment can speak for all interested third parties. In
British Columbia, there are 26 tribes and only the
Nisga'a aboriginal rights are being negotiated.
Others are flooding the Courts. Because of their
socio-economic and political nature, it is indeed
much preferable to settle aboriginal rights by way
of negotiations than through the Courts.
It is true that in this matter Collier J. [order
dated December 18, 1986, T-1858-84, not yet
reported] has already dismissed an application to
strike out the plaintiffs' action, as the learned
Judge found that it was not "plain and obvious"
that there was no cause of action. However, the
threshold test for an injunction is much higher.
The former test was that the applicant had to show
a "prima facie case". Now, as a result of the
American Cyanamid Co. v. Ethicon Ltd., [1975]
A.C. 396 (H.L.) case, the applicant must only
show that there is a "serious issue to be tried".
That test is still more exacting than the "plain and
obvious" criterion to be applied in strike-out
procedures.
The plaintiffs seek an injunction restraining the
defendants from concluding, initialling or
announcing a land claims agreement with the Nis-
ga'a Tribal Council until trial. Such conclusion,
initialling or announcement does not constitute by
itself an actual or imminent or apprehended harm.
There is no conclusive evidence that the potential
increase in the catch of fish to be allocated to
Indians is harmful to existing commercial fisher
men. There is affidavit evidence to the effect that
any change in allocation of fisheries would be
accomplished by the purchase, at fair market
value, of existing licences and the transfer of such
licences to Nisga'a fishermen. This would be done
through voluntary transfers of licences on the part
of existing commercial fishermen. If the transferor
of a licence is not satisfied with the amount of the
compensation tendered, he may, of course, seek
remedy before the Courts. In other words, not only
is there no irreparable harm, there is no actual or
imminent harm to be apprehended.
That was not the case in the MacMillan Bloedel
injunction relied upon by the plaintiffs. There,
bulldozers were present and advancing against the
forest. I find sustenance for my view in the follow
ing extract from the British Columbia Court of
Appeal decision (at page 607):
The fact that there is an issue between the Indians and the
province based upon aboriginal claims should not come as a
surprise to anyone ... The federal government has agreed to
negotiate some claims. Other claims are being advanced ... It
is significant that no injunction has been sought in that action.
I think it fair to say that, in the end, the public anticipates that
the claims will be resolved by negotiation and by settlement.
This judicial proceeding is but a small part of the whole of a
process which will ultimately find its solution in a reasonable
exchange between governments and the Indian nations. (My
emphasis.)
In my view, therefore, while it may not be plain
and obvious that the plaintiffs have no cause of
action, they have not proved to my satisfaction
that they have a serious issue to be tried. While
this finding disposes of the instant application, I
must add that even had the plaintiffs established a
serious issue to be tried, I would still, in the
exercise of my discretion, have refused to grant the
injunction because the plaintiffs have not estab
lished irreparable harm and, furthermore, the bal
ance of convenience favours the defendants.
Consequently the application is denied with
costs in the cause.
ORDER
The application is denied. Costs in the cause.
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