[1] The plaintiffs are Nisga'a people who claim that the defendants have concluded an agreement, and are about to bring into force legislation, which will extinguish their aboriginal rights in their traditional territory and will impose a third order of government upon them. They say that this legislation is unconstitutional. They say that the Nisga'a Tribal Council, which negotiated the agreement on behalf of the Nisga'a Nation, had no authority to do so. They seek a number of injunctions in the following terms:

(a) An interlocutory injunction restraining the Queen's Privy Council for Canada until trial or further Order from drawing, consenting to or delivering to the Governor General for approval the form of Order in Council contemplated in s.27 of Bill C-9 (An Act to give effect to the Nisga'a Final Agreement).

(b) An interlocutory injunction restraining the Governor in Council until trial or further Order from making the Order provided for in s.27 of Bill C-9 to bring the Nisga'a Final Agreement Act into force.

(c) An interlocutory injunction restraining the Clerk of the Queen's Privy Council until trial or further Order from registering any Order in Council passed pursuant to s.27 of the Nisga'a Final Agreement Act of Canada.

(d) An interlocutory injunction restraining the Executive Council of British Columbia until trial or further Order from drawing, consenting to or delivering to the Lieutenant Governor for approval the form of Regulation contemplated in s.70 of the Nisga'a Final Agreement Act, S.B.C. 1999, c.2.

(e) An interlocutory injunction restraining the Lieutenant Governor in Council until trial or further Order from making the Regulation provided for in s.70 of the Nisga'a Final Agreement Act, S.B.C. 1999, c.2 to bring the said Act into force.

(f) An interlocutory injunction restraining the Registrar of Regulations of British Columbia until trial or further Order from accepting for deposit or depositing or registering, any Regulation passed pursuant to s.70 of the Nisga'a Final Agreement S.B.C. 1999, c.2 purporting to bring into force the said Act.

[2] This is an extraordinary application in that it seeks an order from this court, grounded in equity, enjoining the executive from carrying out a function directed by legislation. Counsel could point to no case in which an officer of the Crown has been enjoined from drawing, registering, or filing an Order-in-Council provided for in legislation.

[3] The plaintiffs say that this court may issue an injunction enjoining the executive branch. They say that this is so because the executive, like other branches of government, must comply with the Constitution. They say that on the face of it, it is clear that this legislation is unconstitutional. In that circumstance, it is submitted, the court may take this unusual step.

[4] In RJR-MacDonald Inc. v. Canada (A.G.) [1994] 1 S.C.R. 311, Sopinka and Cory JJ., speaking for the Court on the application for interlocutory relief, discussed the circumstance when the question of constitutionality is "a simple question of law alone" and the underlying claim might be struck down at the time of the application. At page 340, the justices wrote:

[5] The underlying issue here - whether the legislation implementing the Nisga'a Final Agreement is constitutional - is not "a simple question of law alone". The plaintiffs have set out a number of matters, covered in the Nisga'a Final Agreement, which they say are unconstitutional as they amount to the establishment of a "virtual independent nation state".

[6] A review of the various matters that they have set out does not persuade me that fact is clear. It may be arguable, but when one reviews the provisions of the Nisga'a Final Agreement touching upon the various matters raised, I am far from certain that they are unconstitutional. I emphasize that I make no ruling upon the constitutional validity of the legislation, or portions of it, at this time. I simply say that it is not clear and obvious that unconstitutional conduct is threatened.

[7] I turn to the issue of whether the defendants are subject generally to an injunction in the circumstances which pertain here. I am satisfied that only in the rarest of circumstances should the court intervene in such an executive function. It is important to note that the injunction sought here would enjoin the executive from preparing the Orders-in-Council authorized by legislation passed in Parliament and in the Legislative Assembly. It cannot be said that the actions of the officials sought to be enjoined here could be unconstitutional.

[8] Indeed, Provincial and Federal statutes, as does the common law, prohibit a court from issuing an injunction against the Crown. See: Crown Liability and Proceedings Act R.S.C. 1985, c. C-50, Crown Proceeding Act, R.S.B.C. 1996, c. 89, and Musqueam Indian Band v. British Columbia, [1987] B.C.J. No. 2788 (Q.L.) (S.C.), in which Southin J., as she then was, said at page 3:

[9] Counsel for the plaintiffs submits that nevertheless, in the circumstances of this case, because of the allegation that the underlying legislation is unconstitutional, the executive may be enjoined in the manner sought by the plaintiffs. I am not persuaded.

[10] In Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, Mr. Justice Beetz, speaking for the Court, noted that he was aware of only two instances where injunctions were granted to suspend the operation of legislation: Home Oil Distributors Ltd. v. British Columbia (A.G.), [1940] S.C.R. 444, and Société Asbestos Ltée c.Société nationale de l'amiante, [1979] C.A. 342 (Que. C.A.). Beetz J. concluded that these cases "present little precedent value". The Court dismissed Home Oil Distributors, a decision of the Court of Appeal of this Province some 60 years ago, as "an isolated one" and "a weak precedent".

[11] Société Asbestos was heard after the legislation was in force. It was exceptional in that it dealt with legislation that had been enacted in one language only, a clear violation of s. 133 of the Constitution Act, 1867.

[12] At page 149 of Metropolitan Stores, Beetz J. wrote:

[13] Home Oil and Société Asbestos are a far cry from the circumstances which arise here. In neither of those cases did the applicant seek to enjoin an officer of the Crown from drawing and filing an Order-in-Council.

[14] I am satisfied that in the circumstances of this case it is not appropriate to take the extraordinary step of enjoining the executive from carrying out its statutorily authorized duties.

[15] If I were wrong in that conclusion, I would nevertheless decline to grant the injunction for two reasons. First, the plaintiffs have failed to persuade me that they have met the onus upon them to demonstrate that they satisfy the three part test for the granting of injunctions. Second, the inordinate delay in bringing this application is a fatal delay when one is dealing with an equitable remedy.

[16] The three part test is whether there is a serious question to be tried, whether there is irreparable harm, and whether the balance of convenience favours the granting of the injunction.

[17] While I have earlier said that it is far from plain to me that the legislation implementing the Nisga'a Final Agreement in unconstitutional, I note that Canada concedes that there is a serious question to be tried. I conclude that is so. In doing so, I am aware of the spirited and determined submission of Mr. Arvay on this point.

[18] I am not satisfied, however, that irreparable harm has been established. Much of the alleged harm discussed in the material is speculative, and based upon the plaintiffs' view of the significance of various provisions in the Nisga'a Final Agreement. Their view may prevail; that remains to be seen. But in any case, any alleged impingement upon their rights may be tested after the legislation is implemented, even as such a challenge to the rights they say they hold now, before implementation, could be tested. This factor colours any suggestion of "irreparable harm".

[19] There is a further difficulty with the submissions concerning irreparable harm. I observed above that the plaintiffs say that the Nisga'a Tribal Council did not have the authority to conclude the Final Agreement on behalf of the Nisga'a Nation, or at least on behalf of the House of Sga'Nisim. While this is implied in a number of paragraphs in the Statement of Claim, there is no remedy sought for this alleged impropriety in the Prayer of Relief.

[20] Questioned during the proceedings about this, counsel for the plaintiffs conceded that the submission that the Nisga'a Tribal Council exceeded its authority may be irrelevant, except perhaps to an argument about cultural loss as it might pertain to this application. Indeed, Mr. Harvey took the position, as I understood it, that any power of governance exercised by the Houses, or Wilps, must devolve upon them from the provisions of the Constitution Act, 1982, and its predecessors.

[21] In response to this, counsel for the Nisga'a Tribal Council emphasized that the affidavit material filed by the plaintiffs in support of this application for an injunction repeatedly refers to the final agreement's apparent transfer of power from the Wilps to the Nisga'a Nation, and the impact that would have upon the plaintiffs, as a matter beyond what the Council was authorized to conclude.

[22] Having reviewed the affidavits, I am not persuaded the damage, which the plaintiffs would say would follow should the legislation be implemented, is irreparable.

[23] Nor am I satisfied that the balance of convenience favours the plaintiffs. In this case, four members of the Nisga'a Nation are asking the court to enjoin public authorities from executing legislation which has been passed both by the democratically elected Legislative Assembly of this Province, and by the democratically elected House of Commons. I note, of course, that this legislation has been passed as well by the Senate and that it has been ratified by a majority of the Nisga'a Nation.

[24] The plaintiffs say that they are bringing their action on behalf of all members of one House of the Nisga'a Nation, as well as an association of tribe members. One is unable, on the evidence before me, to ascertain exactly how many individuals support this action. There is affidavit evidence that the plaintiff Wilp (one of approximately 60 Houses in the Nisga'a Nation) consists of 300 members.

[25] In contrast, one is able to ascertain how many members of the Nisga'a Nation have ratified the Nisga'a Final Agreement. It is a substantial number. Of 2,376 eligible voters (those permitted to register who did) 1,451 or 61% voted in favour of ratifying the Nisga'a Final Agreement. This number was 72% of those who cast ballots. On a second ballot, 73% voted in favour of the proposed Nisga'a Constitution.

[26] In Metropolitan Stores, Beetz J. dealt with the significance of the public interest in considering balance of convenience when an injunction seeks to suspend legislation. At page 135 he wrote:

[27] The degree of approval by the members of the Nisga'a Nation of both the Nisga'a Final Agreement and the Nisga'a Constitution is compelling evidence of an important sector of the public directly concerned with and endorsing the legislation.

[28] I note the material filed discloses that in both the House of Commons and in the Senate, amendments which would have delayed implementation of the legislation until constitutional challenges have been ruled upon finally by the courts were defeated. Parliament, therefore, was alive to the issue.

[29] In my view, the combination of the passage by the Legislative Assembly, Parliament, and the endorsement by a substantial majority of the Nisga'a Nation, tilts the balance of convenience significantly in favour of the defendants.

[30] Finally, I turn to the question of delay. The plaintiffs argue that they have brought their action at the appropriate time. In so doing, they rely upon my decision in Campbell v. British Columbia (Attorney General) (5 February 1999), Vancouver A982738 (B.C.S.C.), in which I ruled that it would be inappropriate for the court to determine the constitutionality of proposed legislation. At that point, the Legislative Assembly and Parliament were still involved in the deliberative process. One could not be certain of the product of that process. However, a significant portion of the material filed in support of the claim for an injunction by the plaintiffs in this action concerns the suggestion that the Nisga'a Tribal Council exceeded its authority, or acted beyond its mandate, in concluding the Nisga'a Final Agreement.

[31] The reasoning in Campbell does not apply to that issue. It would have been open to the plaintiffs at any time to bring an action claiming that the agreement was concluded on behalf of the Nisga'a Nation by a group which did not have the authority to take that step.

[32] In 1998 some of the plaintiffs brought this specific complaint to the attention of Ministers of the Crown and other officials. However, they did not commence this action until March of this year, almost two years after they raised that argument, and even this action does not raise that issue squarely. I also note that in 1998, two of the plaintiffs brought an action against the Nisga'a Tribal Council and others, alleging that the written notice of a meeting which took place in February of 1996, in which members of the Nisga'a Nation voted to approve the agreement in principle, was deficient and the council had violated its own by-laws. The plaintiffs went on to argue that the Nisga'a Tribal Council and others had conducted actions which were oppressive. This application was dismissed by the trial judge. See: Barton et. al. v. Nisga'a Tribal Council (31 July 1998), Kamloops 24853 (B.C.S.C.).

[33] The plaintiffs sought leave to appeal to the Court of Appeal. In oral reasons delivered on October 1, 1998, Goldie J.A. observed that what had gone on "inevitably reminds one that equity aids the vigilant and not those who slumber on their rights". He said that what in fact was sought was an order that would interrupt a process, the purpose of which had been well known to every member of the Nisga'a Nation and of the Council, including the plaintiffs, and which had been going on for many, many years. See: Barton et. al. v. Nisga'a Tribal Council (1 October 1998), CA025009 and CA025019.

[34] Nothing has changed from that time except that these plaintiffs have brought another allegation before the court, not that there was a deficiency in any notice, or a failure by the Nisga'a Tribal Council to follow its own by-laws, but raising constitutional issues and alleging in affidavit material that the Council did not have the necessary authority to conclude an agreement on behalf of the plaintiffs.

[35] The material discloses the latter was the view of the plaintiffs as long ago as 1997. They could have brought that application in a timely manner. A challenge to the authority of the Council is not a challenge to the constitutional validity of legislation. Nothing in the Campbell decision would have prevented them from commencing an action raising that issue. They did not. They now bring this application after the negotiations have been completed, after the Nisga'a Final Agreement has been ratified by a majority of the Nisga'a Nation, and passed by both the Legislative Assembly and Parliament. They raise constitutional objections similar to those posited in a number of other actions, some of which are scheduled to be heard in these courts commencing in mid-May. This delay has not been addressed persuasively, and, in the words of Goldie J.A. in Barton at page 9, when one is seeking an equitable remedy "delay in moving to enforce the rights in question is, in my view, fatal".

[36] For all of the above reasons, the application is dismissed.

"L.P. Williamson, J."
The Honourable Mr. Justice L.P. Williamson

April 20, 2000 -- Corrigendum issued by Justice Williamson advising that,