Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Plaintiff’s motion failed for a declaration of an interim order for advanced costs. The circumstances surrounding the claim of an unjust infringement of treaty and Aboriginal rights was not sufficiently compelling or unique enough for the Court to grant this exceptional remedy.

The Plaintiff, Hubert Francis, is a Mi’kmaw and member of the Elsipogtog First Nation in the province of New Brunswick. On three occasions in 2015, officials from the Department of Fisheries and Oceans boarded his vessel and seized his catch for fishing without a valid fishing license. He asserts he is entitled to do so pursuant to treaty and Aboriginal rights. The Plaintiff and the Aboriginal crew of his vessel, have been charged with fishing without authorization in respect of the last two incidents, and are facing summary conviction proceedings under the Fisheries Act before the courts of the province of Québec.

The Plaintiff sought declarations that the prohibitions and restrictions placed upon him are an unjustifiable infringement of his treaty and Aboriginal rights. The Plaintiff asked for an interim order for advanced costs, relying on the principles in British Columbia (Minister of Forests) v Okanagan Indian Band, as he would otherwise be unable to proceed with this civil action. There is agreement among the parties that the Plaintiff must meet three criteria of the Okanagan test before the Court may order for advanced costs: (1) The party genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; (2) The claim to be adjudicated is prima facie meritorious or of sufficient merit that it is contrary to the interests of justice for the litigation to be forfeited just because the litigant lacks financial means; (3) The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

The Court concluded the Plaintiff cannot meet two of the three criteria required of the Okanagan test, therefore his motion fails. Although the Plaintiff only raised a nominal amount for a civil proceeding, there was no attempt by him to secure funding for his defense in the summary conviction proceedings. It has not been demonstrated that these issues cannot be determined fairly, adequately and without injustice in the context of the Quebec criminal proceedings. The failure of the Supreme Court to mention the availability of other fora under the specific heading of impecuniosity in both R v Caron and Little Sisters Book and Art Emporium v Canada has little relevance to the issues. Advanced cost orders must be used only as a last resort to avoid an injustice, not because it is a “preferable” mode of determining issues, where an adequate alternative mode exists. It must be to prevent an injustice for the litigant and the public at large that would result from the failure of having issues of public importance properly resolved. It should not be used as a smart litigation strategy.

Although the declarations sought by the Plaintiff in his statement of claim are limited to his own rights, it remains that the rights he asserts are, by their nature, collective rights held by the relevant Aboriginal communities or collectives. As such, they cannot be advanced as the basis of a civil claim or a declaratory action without the support of the community or collective, which he does not have. Individuals can, without the support of the relevant collective that holds the rights, assert these communal rights and have them adjudicated, to the extent necessary, in defense to criminal or regulatory offence proceedings, but individuals may not invoke them as the basis of a claim for determination of rights (R v Chevrier and Queackar- Komoyue Nation v British Columbia). To recognize an individual’s right to institute and maintain, without the support of the appropriate collective, civil actions asserting Aboriginal rights whenever they are brought “in parallel” to criminal proceedings, would ignore the unique nature of those rights and undermine the authority of the lawful representatives of the relevant band or nation to determine when and how to assert these rights. Given the Plaintiff’s lack of standing to bring this action, the second criterion of the Okanagan test, that the claim be prima facie meritorious, has not been met.