Dzawada’enuxw First Nation v. Canada

Dzawada’enuxw First Nation v. Canada

The Court granted leave to file a narrow sur-reply and allowed the uncontested amendment to re-attach the claim area map, but dismissed the proposed disputed amendments seeking a bare declaration of Aboriginal rights to eulachon because they lacked a reasonable prospect of success: the pleadings did not disclose a live controversy or alleged infringement, and a standalone declaration would not serve a useful purpose or properly define the scope of the right.

Citation
2021 FC 939
Parties
Plaintiff/applicant: Dzawada'enuxw First Nation; Defendant/respondent: Her Majesty the Queen / Attorney General of Canada; Defendant/respondent: Cermaq Canada Ltd.; Intervener/respondent: Mowi Canada West Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
10 September 2021
Procedural Posture
Civil Aboriginal Rights Declaratory Action / Motion to Amend Pleadings (rule 369)
Outcome
Motion granted in part and dismissed in part: sur-reply granted; undisputed amendment allowed; disputed amendments dismissed; costs awarded to defendants.
Legal Topics
Declaration of Aboriginal Rights, Amendment of Pleadings, Declaratory Relief, Infringement Analysis, Interests of Justice, Procedural Fairness, Costs
Source Language
English
Aboriginal Law Constitutional Law Civil Procedure Administrative Law Fisheries Law Declaration of Aboriginal Rights Amendment of Pleadings Declaratory Relief +4 more

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Parties

Dzawada'enuxw First Nation

Plaintiff/applicant

Her Majesty the Queen / Attorney General of Canada

Defendant/respondent

Cermaq Canada Ltd.

Defendant/respondent

Mowi Canada West Inc.

Intervener/respondent

Procedural Posture

Civil Aboriginal Rights Declaratory Action / Motion to Amend Pleadings (rule 369)

Legal Issues

  1. 1 Whether defendant Cermaq should be granted leave to file a sur-reply
  2. 2 Whether the proposed amendments seeking a bare declaration of Aboriginal rights to eulachon have a reasonable prospect of success
  3. 3 Whether the disputed amendments would serve the interests of justice

Ratio Decidendi

The Court granted leave to file a narrow sur-reply and allowed the uncontested amendment to re-attach the claim area map, but dismissed the proposed disputed amendments seeking a bare declaration of Aboriginal rights to eulachon because they lacked a reasonable prospect of success: the pleadings did not disclose a live controversy or alleged infringement, and a standalone declaration would not serve a useful purpose or properly define the scope of the right.

Court Disposition

Motion granted in part and dismissed in part: sur-reply granted; undisputed amendment allowed; disputed amendments dismissed; costs awarded to defendants.

Orders

  • Leave granted to Defendant Cermaq to file and serve a sur-reply dated August 16, 2021 and accompanying materials; Registry to accept the sur-reply effective its submission date.
  • Plaintiff's motion for leave to make the Undisputed Amendment (re-attachment of claim area map) to its Statement of Claim is granted.