Yale First Nation v. HMTQ In Right of Canada et al 2001 BCSC 746
This case involved an alleged agreement between the Yale First Nation and the Minister of Fisheries to allow a pilot sale fishery in the year 2000 pursuant to the Aboriginal Communal Fishing Licence Regulations.
In an application for summary judgment under Rule 18A, the Yale First Nation sought a declaration that a document purporting to record the agreement was an enforceable agreement.
The Crown opposed the application for summary judgment and also sought a declaration under Rule 19(24) that the plaintiff’s claim be struck as disclosing no reasonable claim.
With respect to the summary judgment portion of the application, the court admitted parole evidence to find that the written agreement contained a condition precedent to the effect that the agreement was contingent upon the Department of Fisheries obtaining a similar agreement from a neighbouring First Nations group. Since such an agreement was not obtained, the condition precedent was not satisfied and the agreement was not enforceable.
In obiter, the court also said that given the decision of Comeau’s Seafoods Ltd. v. Canada (Fisheries and Oceans) (1997), 142 D.L.R. (4th) 193 (S.C.C.), even if the condition precedent had been satisfied, the Minister could not have been forced to issue a fishing licence.
With respect to the application to strike under Rule 19(24), the court was sympathetic to the Crown’s argument that at best the agreement was only an agreement authorize the issuance of a licence. And since the Minister had the discretion under section 7 of the Fisheries Act to revoke that authorization at any time prior to the licence being issued, no damages could flow. However, since the Federal Court of Appeal in Comeau’s Seafoods “did not state that such a claim [for damages] could never be successful”, the court did not strike the plaintiff’s claim.
In obiter, the court also suggested that under the circumstances, the plaintiff may not have been entitled to declaratory relief because the declaration only concerned a future right (the issuance of a fishing licence) as opposed to an existing right. Given the Comeau decision, the court suggested the plaintiff’s rights did not ripen until a licence had actually been issued.
Editor’s Note: Unfortunately, the reasons for judgment in this case do not show the actual wording of the written agreement signed by the Yale First Nation. If the actual agreement only referred to the Minister agreeing to “authorize” the issuance of a licence, then I would agree with the obiter comments of the court. However, if the agreement were simply to issue a licence, I would think the plaintiff would have a reasonable prospect of at least obtaining a judgment for damages. See for example paragraphs 74-7 of the Court of Appeal judgement in Comeau Seafoods; Puddister Trading Corporation Ltd. v Canada (28 May 1997), No. T-168-92 (Fed. Ct. T.D.) (Simpson J.) (digested herein); But see: Aucoin v. Canada (Minister of Fisheries and Oceans)  F.C.J. No. 1157; 2001 FCT 800 at para. 47-8.