Jurisdiction And Justiciability: Hupacasath First Nation v. Canada Shows Few Decisions Shielded From Judicial Authority

In the January 9, 2015 noteworthy decision Hupacasath First Nation v. Canada (Attorney General)1, the Federal Court of Appeal provided clarity on two important issues: firstly, the federal courts' jurisdiction to review the exercise of prerogative powers; and secondly, the justiciability of the exercise of said powers - or the limits over which a court can exercise its judicial authority upon legal issues.

This bulletin outlines the ruling and reviews the scope of judicial authority granted by Parliament to the Federal Courts.

Case Background

Canada signed a reciprocal foreign investment agreement with the People's Republic of China, known as the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (the "Agreement") in September 2012. The Agreement embodies inter alia a minimum standard of treatment to foreign investors by providing a guarantee against discriminatory treatment and also provides a protection from expropriation without compensation.

The Appellant, Hupacasath First Nation, ("Hupacasath"), is a band under the Indian Act, R.S.C. 1985, c. I-5 that has 285 members living on two reserves covering roughly 56 acres of land on Vancouver Island, British Columbia. However, it asserts Aboriginal rights, including self-government rights, and title over roughly 573,000 acres of land on Vancouver Island.

Before the Federal Court2, Hupacasath alleged that the Agreement might affect Aboriginal rights and interests it has asserted over lands in British Columbia and therefore, the Minister of Foreign Affairs had an obligation to consult Hupacasath prior to entering into the Agreement.

Justice Crampton dismissed the application and found that the Agreement was unlikely to cause harm to Hupacasath, concluding that Hupacasath's asserted rights and interests were "non-appreciable" and "speculative".

Hupacasath appealed the ruling to the Federal Court of Appeal.

As a preliminary issue, the Court of Appeal had to address the issue of whether the federal courts had jurisdiction over decisions by the Government of Canada to enter into international agreements and treaties falling under the Crown's prerogative power, in light of the Ontario Court of Appeal decision in Black v. Canada (Prime Minister)3 ("Black"). The Attorney General further argued that the exercise of a Crown prerogative power is not justiciable and therefore, Hupacasath's case should...