Malonie v. Shubenacadie Indian Band

In Aboriginal Rights/Defences, Fish Cases, Judicial Review/Crown Liability on (Updated )

The applicant band member obtained a bank loan to purchase a fish boat upon the assurance of her Band Council that she would be given use of a communal snow crab licence and quota for a period of six years. She purchased the fish boat and had use of the licence and quota for three years. The Band then assigned the licence to another non-aboriginal party for a two year period. As a result, the applicant commenced a judicial review proceeding in Federal Court seeking the following:

1) An injunction prohibiting the Band from allocating the licence to anyone other than herself;
2) A declaration that the Band exceeded its jurisdiction in allocating the licence to another person.


As a preliminary matter, Band argued that its decision was not subject to judicial review by the Federal Court because in making the allocation decision the Band was not acting as a "federal board, commission or other tribunal" within the meaning of s. 2(1) of Federal Court Act. In holding that the Band was acting as a federal board, commission or other tribunal the court said as follows:

"[T]he Band Council’s decision to allocate the quota to Kaiser is reviewable because it was made under regulatory grant of authority delegated by the Minster to the Band to decide who is authorized to fish the quotas allocated by the communal licences. In other words, in this case, like the others where band council decisions have been found to be amenable to judicial review, the Council was exercising a power specifically afforded to it by regulation." [para. 31] In applying the test set out in Air Canada v Toronto Port Authority, 2011 FCA 347 the court also concluded that:

1) There were significant public aspects to the decision because the Interim Fishery Agreement with Federal Government recognized that communal licences were granted to the First Nation in order to provide members with opportunities to conduct fishing and related activities;
2) Granting of licences pursuant to a monopoly right to harvest a community resource has a significant public aspect;
3) The Band Council authority to issue communal licences was entirely "interwoven into the scheme established under the Fisheries Act and Regulations and is exercising a licensing power akin to that exercised by the Minister under section 7 of the Fisheries Act . . ." [para. 36].
4) The Band council is exercising authority delegated to it by the Minister; and
5) The decision to designate an individual under a communal licence involved the exercise of a compulsory power.


Given the court’s conclusion that the decision was subject to the jurisdiction of the court over judicial review, it followed automatically that the requirements of natural justice and procedural fairness applied to the Band. The scope of of the requirements vary depending upon a number of factors set out in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). In this particular case, the court found two important factors:

1) The applicant derived important income from having her fishing vessel fish for snow crab and that she took out a loan understanding that she would have access to the licence for five years; and
2) Given the letter the Band provided to assist with her financing and the failure of the Band to express any concerns about her performance, the applicant had a legitimate expectation that she would be advised if there was a risk of her losing the licence before the end of the five year term and that she would be given an opportunity to address any concerns and make a proposal.

Based upon these to factors the court concluded that the case fell towards the lower end of the spectrum, but was more than minimal. As result the court set aside the Band’s decision to issue the quota to another party and ordered it to re-determine who and which vessel would have use of the licence. In doing so, the Band was required to:

1) Give her notice of its intention to make a decision;
2) Give her the right to submit a proposal for her use of the licence;
3) Give her the right to address the Band’s concerns regarding lack of profitability in previous years;
4) The other party who the band had re-assigned the licence to and fished the licence for one year, should also be given an opportunity to make a proposal (the proposals of one applicant need not be disclosed to the other).

The court declined to deal with the applicant’s claim that the Band’s decision was unreasonable because it would be re-made. However the court did express the opinion that discretionary licensing decisions are afforded considerable deference. It also noted that the object of the Interim Fisheries Agreement to provide members of the First Nation with opportunities to conduct fishing and related activities, could be met "in appropriate circumstances by assigning the quota to a non-aboriginal enterprise that undertakes . . . to hire and train members . . ." [57]"