Damages for Interfering with Aboriginal Fishing Rights

In Matsqui First Nation v. Canada (Attorney General), 2012 BCSC 492, the British Columbia Supreme Court rejected a recent attempt by the Department of Fisheries and Oceans to derail a claim by the Matsqui First Nation for damages for DFO having improperly denied them access to their aboriginal fishing rights.  The Matsqui sought damages in the Supreme Court for management decisions made in the 2010 fishing season that Matsqui says infringed their Section 35 aboriginal fishing rights.  Canada brought a motion seeking to strike out the claim and bring the case to a halt on the basis that it should have been brought in the Federal Court.


Justice Fenlon rejected the greatest part of this attack.  She applied the recent series of Supreme Court of Canada cases concerning the doctrine of collateral attack to hold that the claim for damages -- even if it was based upon an attack on the constitutionality of a Federal decision -- could be brought in the Supreme Court rather than the Federal Court.  Justice Fenlon rejected this proposition holding that the Telezone line of cases essentially limited the doctrine of collateral attack in these circumstances (and the jurisdiction of the Federal Court) to situations where a claimant actually seeks to set aside a decision or have an order made forcing a Federal minister or board to do something.


This decision is welcome in that it continues the process of simplifying the jurisdictional issues created by the existence of the Federal Court when decisions or actions by the Federal government are being challenged.  It is still unfortunate though that if one wants the Federal government to actually do something proceedings must be taken in Federal Court (and must be taken by way of judicial review).  This creates real challenges when a claim is launched against joint Federal-Provincial undertakings.  For example, aquaculture is jointly regulated by the Federal and Provincial governments.  The Federal governments issues licences to allow the aquaculture activities to occur while the Provincial governments issue the foreshore tenures and water lots needed to actually physically situate the activities in the environment.  Naturally consultation and infringement issues often arise in this context with both governments and often the adequacy of the consultation process can only be appreciated by looking at both government's actions.  Unfortunately to question the Federal licence one must pursue the issue in Federal Court (if one wants something done about the decision) while the proceedings against the Province must be pursued in Supreme Court.  A move to resolve this jurisdictional problem and allow for a "one challenge -- one court" approach would be welcome.