Matsqui First Nation v Canada

The Supreme Court of British Columbia issued a decision on August 7, 2015 in <a href="" title="Matsqui First Nation v. Canada"><i>Matsqui First Nation v. Canada (Attorney General)</i></a>, dismissing an application from the Crown for exemption from mandatory mediation due to the impracticability of settlement.


In the underlying action, the Matsqui First Nation (MFN) is seeking a declaration of unjustified infringement of an Aboriginal right to fish salmon for domestic purposes within a specific area of the Fraser River. MFN contends that the Department of Fisheries and Oceans (DFO) infringed upon this fishing right during the 2010 season when licences were not issued. The MFN are seeking an award of damages to compensate for the unjustified infringement of their rights.

In its defence, the Crown asserts that the management of the Fraser River is an intricate process that includes a number of factors that require discretionary balancing, and that all of the MFN’s food, social, and ceremony needs with respect to salmon were met in the 2010 season. The Crown also puts the MFN to strict proof of the existence of an Aboriginal right to fish salmon in the area claimed.

Before trial, the Crown was issued a notice to mediate from the MFN, triggering a mandatory mediation process pursuant to s. 23(c) of British Columbia’s Notice to Mediate (General) Regulation. The Regulation states that mediation must take place if an official notice is given, and that the parties involved must have the authority to settle. The Crown claimed that mediation was impractical in this matter, due to the complexity of the issues and the lack of a “mandate” or authority for DFO to resolve claims involving the definition of a constitutional right or reconciliation between Aboriginal peoples and Crown sovereignty. The Crown therefore applied for an exemption from engaging in mediation.


Kent J held that mediation is an important process that should be encouraged. Mediation should not be seen as futile even if it appears that there is little possibility or room for concessions. While Kent J agreed that the claims in this case present formidable difficulties for mediation, he also contended that the mediation process could produce results not available through the court. He cited case law to the effect that a commitment of good faith from both parties in mediation can have the effect of reducing legal costs, trial time, and sometimes resolve the dispute outright.

Kent J referenced the fact that MFN was most likely aware that mediation would not provide a remedy involving the declaration of the Aboriginal right they sought to prove. Why then would they provide a notice for mediation? Kent J stated that there could be little harm in engaging in mediation and there was always the possibility that some creative solution or accommodations could come through the confidential exchange of information. If ratification of a settlement by higher powers in government was required, the process of mediation would still be integral to creating the possibility of some understanding or agreement between the parties. Even though the present case raised issues that could not ultimately be settled outside court due to their constitutional complexity, mediation provides an opportunity for settlements that may be distinct from the relief sought in litigation.