The Federal Court dismissed a judicial review application brought by the Squamish Indian Band on the basis that no reviewable “decision” had been made.

Since at least 2001, the Squamish Indian Band has sought to increase its entitlement, pursuant to the Aboriginal Fishing Strategy, to fish sockeye salmon in the Fraser River. They have sought an increase from 20,000 sockeye per year to 70,000. Discussions between the Squamish and the DFO have been ongoing. O’Reilly reviewed the history of these discussions, and characterized them as “prolix and protracted”. In a letter dated May 17, 2013, a Director of DFO for the Lower Fraser Area informed the Squamish that DFO was not yet in a position to increase their allocation. The Squamish interpreted this letter as a rejection of their request, and sought judicial review.

The Court held that the May 17 letter was not a “decision” subject to judicial review. O’Reilly J. noted that a judicial review application can be made before a final decision, but the proper approach is to decline relief until a final decision is made in order to avoid fragmenting the process. He held:

Here, I find that the May 17, 2013 letter did not contain a final decision regarding the Band’s request for a larger salmon allocation. Certainly, looking at the length of time between the Band’s request and the date of the letter, and the extensive discussions that led up to it, I can understand why the Band found its contents to be discouraging and indicative of an inclination to deny its request. However, the letter itself did not contain a decision. Mr. Verret neither granted nor denied the Band anything. He simply outlined further steps to be taken. The subsequent letter of May 8, 2014 was more particular and may well be amenable to judicial review, but I need not decide that question here.

In the circumstances, however, to permit the Band to obtain a judicial review of the May 17, 2013 letter would certainly fragment the process which, if allowed to proceed without undue interruption, may well result in a satisfactory resolution of the Band’s request. Accordingly, I decline to grant the relief the Band seeks.

O’Reilly commented that the frustration of the Squamish was understandable, and the DFO could have dealt with the Band’s request more expeditiously. He also noted that the DFO moved swiftly after this litigation was commenced, indicating that “DFO could have moved forward on the Band’s request in a more timely way, had it been motivated to do so”.

The judicial review application was dismissed but, due to the circumstances of this case, the Squamish were awarded their costs.

http://www.canlii.org/en/ca/fct/doc/2014/2014fc884/2014fc884.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law