T-2836-86
T-268-87
Walter P. Twinn representing all the persons who
are members of the Sawridge Indian Band (Appli-
cant) (Plaintiff)
v.
The Honourable William McKnight, the member
of the Queen's Privy Council presiding over the
Department of Indian Affairs and Northern De
velopment (Respondent) (Defendant)
INDEXED AS: TWINN V. CANADA (MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT)
Trial Division, Martin J.—Edmonton, March 18;
Ottawa, March 30, 1987.
Access to information — Application to review decision to
release copy of Band's membership rules, for injunction to
restrain disclosure and mandamus requiring respondent to
comply with ss. 19, 20 and 28 of the Act — Right to review
under s. 44 arising only after notice contemplated by s.
28(5)(a) issued — Condition precedent to issuance of notice
that respondent having reason to believe disclosure of record
contrary to obligation under s. 20 not to disclose records —
Applicant not having right to s. 44 review as no determination
essential to constitute notice within s. 28(5)(a) — Decision not
to proceed under s. 28 subject to common law review —
Respondent meeting tests in Secretary of State for Education
and Science v Metropolitan Borough of Tameside, /19761 3
All ER 665 (H.L.) — Facts upon which respondent could base
decision, and in making decision respondent took facts into
consideration — Access to Information Act, S.C. 1980-81-82-
83, c. 111, Schedule I, ss. 2(2), 19, 20, 28, 29(1), 44, 68 —
Statutory Instruments Act, S.C. 1970-71-72, c. 38, ss. 24, 25
— Copyright Act, R.S.C. 1970, c. C-30, s. 17 — Indian Act,
R.S.C. 1970, c. I-6, s. 6.
Native peoples — Band membership rules — Application to
review decision to release copy of rules under Access to
Information Act, for injunction to restrain disclosure, and
mandamus requiring respondent to comply with ss. 19, 20 and
28 — Applicant arguing financial loss if rules disclosed —
Applicant hoping to recover cost of preparation of rules from
other Bands which might use them as precedent — Respondent
arguing rules statutory instruments and thus applicant not
suffering financial loss from disclosure as already duty to
make statutory instrument available upon request — Applica
tions dismissed — Access to Information Act, S.C. 1980-81-
82-83, c. 111, Schedule I, ss. 2(2), 19, 20, 28, 29(1), 44, 68 —
Statutory Instruments Act, S.C. 1970-71-72, c. 38, ss. 24, 25
— Copyright Act, R.S.C. 1970, c. C-30, s. 17 — Indian Act,
R.S.C. 1970, c. 1-6, s. 6.
This is an application for a review of the respondent's
decision to release, to an undisclosed person, a copy of the
Band's membership rules, for an injunction restraining the
respondent from disclosing the rules and mandamus requiring
the respondent to comply with sections 19, 20 and 28 of the
Act.
The Band's rules were developed at a cost of approximately
$50,000. The Band has not made the rules available to anyone,
except on specified conditions, because it intends to recover the
costs of their preparation from other bands which might want
to use them as a precedent. The applicant says that if they are
released the Band would suffer financially because it will no
longer be able to recover the expenses incurred in their prepara
tion. The respondent submits that the rules are a statutory
instrument which must be made available to any person for
inspection upon payment of a modest fee. The respondent
submits that the applicant will not suffer any material financial
loss by reason of their disclosure under the Access to Informa
tion Act because the applicant is already under a duty to make
them available on request. The issue is whether the respondent
was correct in deciding that the release of the rules was not
contrary to paragraphs 20(1)(c) or (d).
Held, the applications should be dismissed.
The applicant's right to a judicial review of the respondent's
decision to disclose the rules arises under subsection 44(1), and
only arises if a notice of the decision to disclose a record has
been given under paragraph 28(5)(b). The essential condition
precedent to the issuance of the notice is that the respondent
has reason to believe that disclosure of the record might be
contrary to his obligation under section 20 not to disclose
records. The respondent had sent three letters to the applicant
stating that the records requested did not come within any of
the exemptions for disclosure provided for in the Act. The
respondent specifically concluded that the request did not come
within section 20 and notified the applicant of his intention to
disclose the rules. As the letters were not preceded by a
determination essential to constitute them notices within para
graph 28(5)(a), the right of review under section 44, is not
available to the applicant and that portion of his application
must be dismissed. Although the respondent purported to bring
the matter under section 44 by the letter intending to give the
third party a right to appear as a party to the review, the letter
cannot have that effect because no notice had been given to the
applicant under paragraph 28(5)(b).
The real issue is whether the respondent should have issued
the notice contemplated by paragraph 28(5)(a). The right to
review the decision of the respondent not to proceed under
section 28 is more limited than a judicial review under section
44. Although the Access to Information Act does not give the
Court a statutory right to review the preliminary decision not to
proceed under section 28, there is a limited common law right
of review which has been described by Lord Wilberforce in
Secretary of State for Education and Science y Metropolitan
Borough of Tameside, [1976] 3 All ER 665 (H.L.). If a
judgment requires the existence of some facts before it can be
made, then the court can enquire whether those facts exist and
have been taken into account, whether the judgment was made
on a proper self-direction as to those facts, and whether the
judgment has not been made on other facts which ought not to
have been taken into account.
When the respondent first determined that the release of the
rules would not give rise to a result described in paragraphs
20(1)(c) or (d), he considered the rules and the application for
their disclosure before deciding that they could be disclosed.
From the reference in the letter confirming his decision to the
representation that the Band would lose the possibility of
recovering part of the cost of the rules if they were made
public, it is established that the respondent took this represen
tation into account. Although no specific mention of it is made,
he also considered the representation that public access to the
rules could result in frivolous applications for membership or
challenges to the propriety of the rules, the defence of which
could result in material loss to the Band, as indicated by the
conclusion that membership rules must have already been made
public in order to obtain the majority approval required.
In making his decision not to proceed, the respondent met the
tests described by Lord Wilberforce. Additionally, he came to
the correct conclusion.
CASES JUDICIALLY CONSIDERED
APPLIED:
Secretary of State for Education and Science y Met
ropolitan Borough of Tameside, [1976] 3 All ER 665
(H.L.).
REFERRED TO:
T. E. Quinn Truck Lines Ltd. v. Snow, [1981] 2 S.C.R.
657; 129 D.L.R. (3d) 513.
COUNSEL:
Brian R. Burrows for applicant (plaintiff).
Ingrid C. Hutton for respondent (defendant).
SOLICITORS:
McLennan Ross, Edmonton, for applicant
(plaintiff).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for order ren
dered in English by
MARTIN J.: The applicant, the Chief of the
Sawridge Indian Band, applies pursuant to section
44 of the Access to Information Act [S.C. 1980-
81-82-83, c. 111, Schedule I] for a review of the
decision made by the Head of the Access to Infor
mation and Privacy Secretariat to release to an
undisclosed person requesting the information, a
copy of the Band's membership rules. He also
applies for an injunction restraining the respondent
from disclosing the rules to any party and a man-
damus requiring the respondent to comply with
sections 19, 20 and 28 of the Act.
When this matter came before me on January
28, 1987 there was some doubt that there could be
a review pursuant to section 44. The hearing of the
application was adjourned so that counsel could
take appropriate action to remove that doubt and
ensure the application would fall within the provi
sions of section 44. Following the January 28,
1987 adjournment the respondent, on February 2,
1987, notified the person who had requested dis
closure of the rules that the applicant had request
ed a review of its decision pursuant to section 44 of
the Act and that the third party had a right to
appear. This notification was given in the follow
ing terms:
As you will see from the enclosed Notices of Motion and
Affidavits filed in the above-mentioned matters, the members
of the Sawridge and Horse Lake Indian Bands object to the
decision of the Minister of Indian and Northern Affairs to
disclose to you the copies of their respective Band Membership
Rules, and have asked the Federal Court to review the Minis
ter's decision pursuant to s. 44 of the Access to Information
Act.
You are hereby notified that, by virtue of s. 44(3) of the Access
to Information Act, you are entitled to appear as a party to the
review. A copy of the Access to Information Act is enclosed
herewith for your information.
If, by that notification, counsel intended to cure
any defects so as to allow a review under section
44 she has not done so. Conditional upon the right
of a third party (the person requesting disclosure
of the information) to appear as a party to a
review under section 44 is that a notice be issued
(for the purposes of this application) under para
graph 28(5)(b). As no notice was issued under that
paragraph there can be no review under section 44.
Section 44 is as follows:
44. (1) Any third party to whom the head of a government
institution is required under paragraph 28(5)(b) or subsection
29(1) to give a notice of a decision to disclose a record or a part
thereof under this Act may, within twenty days after the notice
is given, apply to the Court for a review of the matter.
(2) The head of a government institution who has given
notice under paragraph 28(5)(b) or subsection 29(1) that a
record requested under this Act or a part thereof will be
disclosed shall forthwith on being given notice of an application
made under subsection (1) in respect of the disclosure give
written notice of the application to the person who requested
access to the record.
(3) Any person who has been given notice of an application
for a review under subsection (2) may appear as a party to the
review.
and the relevant portions of section 28 are:
28. (1) Where the head of a government institution intends
to disclose any record requested under this Act, or any part
thereof, that contains or that the head of the institution has
reason to believe might contain
(a) trade secrets of a third party,
(b) information described in paragraph 20(1)(b) that was
supplied by a third party, or
(c) information the disclosure of which the head of the
institution could reasonably foresee might effect a result
described in paragraph 20(1)(c) or (d) in respect of a third
party,
the head of the institution shall, subject to subsection (2), if the
third party can reasonably be located, within thirty days after
the request is received, give written notice to the third party of
the request and of the fact that the head of the institution
intends to disclose the record or part thereof.
(3) A notice given under subsection (1) shall include
(a) a statement that the head of the government institution
giving the notice intends to release a record or a part thereof
that might contain material or information described in
subsection (1);
(b) a description of the contents of the record or part thereof
that, as the case may be, belong to, were supplied by or relate
to the third party to whom the notice is given; and
(e) a statement that the third party may, within twenty days
after the notice is given, make representations to the head of
the government institution that has control of the record as
to why the record or part thereof should not be disclosed.
(5) Where a notice is given by the head of a government
institution under subsection (1) to a third party in respect of a
record or a part thereof,
(a) the third party shall, within twenty days after the notice
is given, be given the opportunity to make representations to
the head of the institution as to why the record or the part
thereof should not be disclosed; and
(b) the head of the institution shall, within thirty days after
the notice is given, if the third party has been given an
opportunity to make representations under paragraph (a),
make a decision as to whether or not to disclose the record or
the part thereof and give written notice of the decision to the
third party.
(7) A notice given under paragraph (5)(b) of a decision to
disclose a record requested under this Act or a part thereof
shall include
(a) a statement that the third party to whom the notice is
given is entitled to request a review of the decision under
section 44 within twenty days after the notice is given; and
(b) a statement that the person who requested access to the
record will be given access thereto or to the part thereof
unless, within twenty days after the notice is given, a review
of the decision is requested under section 44.
The applicant's right to a judicial review of the
respondent's decision to disclose the rules arises
under subsection 44(1) and only arises if a notice
of the decision to disclose a record has been given
under paragraph 28(5)(b) or subsection 29(1). As
subsection 29(1) is clearly not applicable in this
matter I need only consider section 28.
Section 28 details, among other matters, the
conditions under which the notice must be issued,
the contents of the notice, and the time limits for
representations to be made by the party opposing
the release of the record. The essential condition
precedent to the issuance of the notice is that the
respondent has reason to believe the disclosure of
the record might be contrary to his obligation
under section 20 not to disclose records. Only
paragraphs (c) and (d) of subsection 20(1) are
relevant to this application.
20. (1) Subject to this section, the head of a government
institution shall refuse to disclose any record requested under
this Act that contains
(c) information the disclosure of which could reasonably be
expected to result in material financial loss or gain to, or
could reasonably be expected to prejudice the competitive
position of, a third party; or
(d) information the disclosure of which could reasonably be
expected to interfere with contractual or other negotiations
of a third party.
As a result of receiving two requests for copies
of the Band's rules the respondent sent three let
ters to the applicant dated respectively October 3,
1986, December 2, 1986 and December 15, 1986.
In each letter the respondent stated that, in his
view, the records requested did not come within
any of the exemptions from disclosure provided for
in the Act and thus would be disclosed. In the
letter of December 15, 1986 the respondent reite
rated his position and stated specifically that the
documents requested did not come within the
exemptions provided for in section 20 of the Act.
Having come to the conclusion that section 20
was not applicable, or perhaps more accurately,
that he had no reason to believe section 20 might
be applicable, the respondent notified the appli
cant of the request and of his intention to accede
to it. As the letters, or notices, to the applicant
were not preceded by a determination essential to
constitute them notices within the meaning of
paragraph 28(5)(a), the right of review under
section 44, which arises only after the notice con
templated by paragraph 28(5)(a) is issued, is not
available to the applicant and that portion of his
application must therefore be dismissed.
Although the respondent purported to bring the
matter under section 44 by the letter of February
2, 1987 intending to give the third party a right to
appear as a party to the review, the letter cannot
have that effect because no notice has been given
to the applicant under paragraph 28(5)(b).
The real issue to be determined in this matter is
not whether the rules should or should not be
disclosed, but whether the respondent should or
should not have issued the notice contemplated by
paragraph 28(5)(a). In this respect, and in support
of his motion for the injunction and the man-
damus, the applicant argues that the respondent
should have determined the rules might contain
information which would prohibit their release
pursuant to paragraphs 20(1)(c) and (d) and thus
he should have issued the notice under section 28.
Had the notice been issued pursuant to section 28,
as the applicant claims ought to have been done, it
would have enabled the applicant to obtain a
Court review of the decision to release the rules. It
is for that reason the applicant seeks an order
compelling the respondent to comply with the
provisions of sections 19, 20 and 28 of the Act.
Once again a procedural point was raised in
passing, and that was whether such a request
should be instituted by application or in an action.
Out of an abundance of caution the applicant,
following the January 28, 1987 adjournment, com
menced an action against the respondent claiming
substantially the same relief as he claims by way
of this application. In that action he has applied
for an interim injunction asking for the relief
pending trial. Both the present application and the
application for the interim injunction in the action
were heard together on March 18, 1987 at Edmon-
ton. Because the applicant is before me seeking the
same relief both by way of application and in an
action I do not find it necessary to determine
which of the two procedures is appropriate.
Instead I will bypass that issue and deal directly
with the merits of the applicant's submissions.
The Band's rules were developed under the
provisions of the Indian Act [R.S.C. 1970, c. I-6].
Pursuant to section 10 of that Act the applicant's
Band duly voted to accept the rules which had
been prepared at a cost of approximately fifty
thousand dollars ($50,000). After acceptance by
the Band the rules were forwarded to the Minister
who, on September 25, 1985, notified the applicant
pursuant to subsection 10(7) of the Indian Act
that the Band had control of its own membership.
The applicant has been careful to see that the
rules have not been made available to anyone,
except on specified conditions, even to the point of
recalling all copies which were made available to
the Band electors for the purpose of voting on
them. The reason given by the applicant for refus
ing to circulate the rules is his intention to recover
the costs of their preparation from other bands
which might want to use them as a precedent when
preparing their own rules.
In this respect all requests for copies of the rules
are referred to the applicant who determines on
what, if any, conditions the rules will be made
available. He also determines, in respect of each
request for a copy of the rules, the amount, if any,
the person requesting the copy will be obliged to
pay. The applicant claims a proprietary right to
the rules and says that if they are released the
Band would no longer be able to recover the
expenses incurred in their preparation and could
reasonably be expected to suffer financially. Alter
natively, it is submitted that their release could
reasonably be expected to interfere with negotia
tions which the applicant has with other bands for
their conditional release as a precedent.
To this argument the respondent says the rules
are a "statutory instrument" within the meaning
of the Statutory Instruments Act [S.C. 1970-71-
72, c. 38] pursuant to sections 24 and 25 of which
they must be made available to any person for
inspection upon payment of a modest prescribed
fee of about one dollar ($1) per page. There being
an obligation to make the rules available for this
modest fee, counsel for the respondent submits the
applicant has not shown he will suffer any material
financial loss by reason of their disclosure under
the Access to Information Act because the appli
cant is already under a duty to make them avail
able on request. She applies the same reasoning to
the applicant's claim that disclosure of the rules
can be expected to interfere with the applicant's
negotiations with other bands to sell them copies of
the rules.
To the argument that the applicant's proprietary
rights to the rules will be effectively lost by their
disclosure, counsel for the respondent refers to
section 17 of the Copyright Act [R.S.C. 1970, c.
C-30] which provides that the disclosure of any
document under the provisions of the Access to
Information Act is not to be taken as an authoriza
tion to any person to do anything that, by the
Copyright Act, only the owner of the copyright has
the right to do.
In reply counsel for the applicant submits that
the rules are not a statutory instrument within the
meaning of the Statutory Instruments Act; that if
the rules are a statutory instrument and are to be
made available then, by virtue of section 68 of the
Access to Information Act, which _ exempts from
the provisions of the Act material available for
purchase by the public, the respondent has no
authority, under the Access to Information Act to
release the rules.
Furthermore, submits counsel for the applicant,
if the respondent's submission with respect to the
obligation of the applicant to make the rules avail
able is correct, then there is already in place a
procedure for permitting access to the rules and,
therefore, subsection 2(2) of the Access to Infor
mation Act, which provides that the Act is not
intended to replace existing procedures, should be
read to exclude an application under the Access to
Information Act for the rules which can be
obtained through the existing procedure provided
for in the Statutory Instruments Act.
If I have correctly understood counsel's argu
ments they appear to be directed to having me
determine whether the respondent made the cor
rect decision when he decided that the release of
the rules was not constrained by virtue of para
graphs 20(1) (c) or (d) of the Act. Presumably, if
on my evaluation of the facts I should come to a
different conclusion, I would be expected to direct
the respondent to comply with the provisions of
section 28 by issuing the notice contemplated by
paragraph 28(5)(a) so as to allow the applicant to
have his review under section 44.
While I may be permitted to take that type of
course in a judicial review under section 44 I have,
in my view, a far more limited right to review the
decision made by the respondent not to proceed
under section 28.
The right of this Court under section 44 of the
Access to Information Act to review the decision
of the respondent to release the rules is a statutory
one. It arises, as already indicated, only when the
respondent has proceeded under section 28 and
after exhausting the procedures provided for in
that section the decision to release the document
remains unchanged and is challenged by a third
party such as the applicant in this matter.
Before proceeding under section 28, however,
the respondent must make a separate decision. He
must decide if the information he intends releasing
contains or might contain information which he
can reasonably foresee might be expected, for the
purposes of this application, to result in a material
loss to the applicant or interfere with its contractu
al negotiations with other bands for the use of the
rules. That preliminary decision or determination
is not reviewable under section 44 which review, as
I understand the legislation, would entitle the
Court in a proper case, to substitute its decision for
the respondent's decision.
In effect the applicant asks that I review the
preliminary decision i.e. the decision by the
respondent not to proceed under section 28
because the rules did not contain information the
disclosure of which he could reasonably foresee
might cause material loss to the applicant or inter
fere with his contractual negotiations.
Although the Access to Information Act gives
the Court no statutory right to review that decision
there is a limited common law right of review of
such decisions which has been described by Lord
Wilberforce in Secretary of State for Education
and Science y Metropolitan Borough of Tameside,
[1976] 3 All ER 665 (H.L.), at pages 681-682 as
quoted by Laskin C.J.C. with approval in T. E.
Quinn Truck Lines Ltd. v. Snow, [1981] 2 S.C.R.
657, at pages 668-669; 129 D.L.R. (3d) 513, at
pages 521-522:
... if the Secretary of State 'is satisfied'. This form of section
is quite well known, and at first sight might seem to exclude
judicial review. Sections in this form may, no doubt, exclude
judicial review on what is or has become a matter of pure
judgment. But I do not think that they go further than that. If
a judgment requires, before it can be made, the existence of
some facts, then, although the evaluation of those facts is for
the Secretary of State alone, the court must enquire whether
those facts exist, and have been taken into account, whether the
judgment has been made on a proper self direction as to those
facts, whether the judgment has not been made on other facts
which ought not to have been taken into account. If these
requirements are not met, then the exercise of judgment,
however bona fide it may be, becomes capable of challenge.
Although the words of the Act do not specifical
ly require the respondent to "be satisfied" the
release of the information might or would or would
not offend paragraphs 20(1)(c) or (d), that is
precisely the decision the respondent is required to
make before he determines whether or not to issue
the notice under section 28. Accordingly my
review of the respondent's decision is limited to the
principles set out in the passage quoted.
When the respondent first determined, on Octo-
ber 3, 1986, that the release of the rules would not
give rise to a result described in paragraphs
20(1)(c) or (d), he had before him the Band's
membership rules and an application for their
disclosure. From the correspondence sent to the
applicant it is apparent that he considered the
rules and the application and determined that the
rules could be disclosed under the provisions of the
Act. To paraphrase Lord Wilberforce's first test,
there were existing facts upon which the respond
ent could make the decision, evaluation or deter
mination which he did make, and in making that
decision the respondent took those existing facts
into consideration.
In addition to the rules themselves and the
application for their disclosure the respondent,
after he had made his preliminary decision,
received on October 15, 1986 the following
representation on behalf of the applicant:
We appreciate that you have concluded the document does not
fall within the statutory exemptions and accordingly you have
not given the Band the notice contemplated by Section 28 of
the Access to Information Act.
While we have not had the opportunity to consider the matter
carefully, having only received your letter yesterday, it appears
possible to us that the band rules would be exempt under
Section 20(1)(c) or (d) of the Act. Although we have not had
the opportunity to review the matter with the degree of care
which we would like before making a formal submission to you
on the point, it does appear to us that public access to the band
rules could well encourage frivolous or vexatious applications
for membership or challenges to the propriety of the rules, the
handling or defense of which could result in material financial
loss to the Band.
We would think that the existence of this possibility should be
sufficient to permit the "head of the institution" (whom we
presume to be the Minister) to have "reason to believe" that
the documents "might contain" information of the type
described in Section 20(1)(c) or (d) and to justify invocation of
the Section 28 procedure.
On October 17 the following additional
representation was made to the respondent on
behalf of the applicant:
Further to my letter of October 15, 1986 and to our telephone
conversation of October 16, I wish to bring to your attention
another factor which I suggest you might well consider in
determining whether the Sawridge Indian Band Membership
Rules are a document within the description of Section
20(1)(c) and (d) of the Access to Information Act.
The Rules were developed by the Band at considerable expense.
I am advised by Chief Twinn that he estimates the cost to have
been somewhere in the area of $50,000. The Rules therefore
have a significant monetary value. If other bands wish to use
them in the development of their own Rules it is reasonable
that the Sawridge Indian Band should be able to receive from
such other bands a contribution towards the expenditure it
incurred. It undoubtedly would consider the circumstances of
the band making the request in determining the level of pay
ment to require. Release of the Rules by your Department
would, however, eliminate the possibility of recovery of any of
the cost and would therefore result in material financial loss to
the Band and interfere with contractual or other negotiations
with other bands. Clearly the situation is within Section
20(1)(c) and (d).
The respondent replied to these representations
on December 15, 1986 in the following terms:
Further to your letter of October 17, 1986 in which you make
representations concerning membership rules of the Sawridge
Indian Band, please be advised that we have reviewed these
representations carefully and have not altered our position that
these documents do not fall within section 20 of the Access to
Information Act.
Band membership rules which have received the approval of the
Minister under the provisions of section 10 of the Indian Act
have the force and effect of regulations and a band can have no
proprietary interest in regulations.
Furthermore, as the membership rules are required to be
approved by a majority of the members of the band, it is
concluded that they have been posted, circulated or otherwise
made public.
The department will therefore release this information to the
applicant on December 31, 1986.
There were thus additional facts before the
respondent between the time of his October 3,
1986 decision and his confirmation of that decision
on December 15, 1986. Because reference is made
to the applicant's October 17 representation it is
apparent that the respondent took that into
account. Because there is no reference to the
October 2 representation it might be argued that
the repondent's failure to take it into account has
thereby flawed his decision to the extent that I
should refer the matter back to him with directions
to reconsider taking that representation into
account as well.
In my view that is not warranted. Firstly, the
October 15 representation is so clearly untenable
that the respondent may well have concluded it
would be kinder not to specifically reply to it. The
third paragraph in the respondent's December 15
reply is, in any event, an indication that it was
considered. As well the correspondence indicates
there were several telephone conversations between
the solicitor for the applicant and the respondent's
representatives in which the matter was likely
raised and disposed of. Finally the October 15,
1986 representation was, admittedly, made in
haste and was never raised again either in the
affidavit evidence or in the applicant's submission
to me as a reason for granting the relief requested.
In this respect I have concluded that counsel for
the applicant, having advanced that particular
representation in haste, wisely recognized it as
being without merit and prudently withdrew it.
I am satisfied, therefore, that in making his
decision not to proceed under section 28 of the
Act, the respondent has met the tests described by
Lord Wilberforce and I therefore have no reason
to interfere with that decision. I have come to this
conclusion without considering whether I would
have made the same determination as the respond
ent because it is not the Court's function to substi
tute its evaluation of the facts for that of the
respondent.
However, even if I were permitted or obliged to
do so I would have made the same determination.
Although sealed by order of the Court, I am
permitted to and did review the Band's rules.
While I have no reason to doubt the applicant's
affidavit evidence that the expenses associated
with their preparation came to approximately fifty
thousand dollars ($50,000) those expenses must
have been incurred in respect of matters other than
for actual drafting.
The actual preparation of the rules, of which
there are 15 on three pages, once appropriate
instructions had been received, could have been
completed in a few hours. Other expenses
incurred, such as the costs of meetings and travel
ling, might well have raised the costs associated
with the preparation of the rules to the figure
given but that would not enhance the intrinsic
value of the rules as a precedent for a third party.
If the applicant has been able to obtain some
benefit for his Band by allowing other bands to use
the rules as a precedent for drafting their own
rules he has indeed been fortunate. In this respect
the evidence is neither detailed nor convincing.
Apparently a number of copies of the rules were
given to other bands. No money which could be
directly attributed to the release by the applicant
of the rules was received in return. Instead the
evidence indicates that the Band received certain
benefits by way of support for actions it has
against the federal Government.
Given the information which the respondent had
at the time he decided not to proceed under section
28 of the Act, and in particular the rules them
selves, and given the representations which were
made subsequently, including the material in sup
port of this application, the respondent could not
then and could not now be expected to conclude
that the release of the rules would or might effect
any of the results described in paragraphs 20(1)(c)
or (d). To expect the respondent to conclude that
the release of the rules would or might give rise to
such results would be to expect him to engage in
the height of speculation.
Thus I not only conclude that the respondent
met the tests described by Lord Wilberforce but
also that he has come to the appropriate conclu
sion and could not have come to any other
conclusion.
The applications in causes T-2836-86 and
T-268-87 are therefore dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.