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Indigenous - Statutory Interpretation. Waterhen Lake First Nation v. Canada [Nowegijick interpretive principle]
In Waterhen Lake First Nation v. Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here challenging the striking of a Specific Claims Tribunal claim dealing with 'traditional harvesting'.
Here the court considered the Nowegijick 'ambiguity' interpretive principle:(5) Genuine ambiguity and the Nowegijick principle
[114] The Applicant claims that, contrary to the Tribunal’s view, the language of the Act, including the reference in paragraph 15(1)(g) to activities of an "“ongoing and variable nature”" is not clear and unambiguous. In its view, the Tribunal should have resolved any ambiguity or doubt in the words of the Act in a manner that favours the Applicant, as required by the interpretive principle set out in Nowegijick. The Applicant submits that the Tribunal erred in applying instead the "“narrow and technical legal standard of ‘genuine ambiguity’”".
[115] This submission is without merit. The Tribunal, relying on the decision of the Saskatchewan Court of Appeal in George Gordon First Nation v. Saskatchewan, 2022 SKCA 41 at paras. 53-54, 2022 CarswellSask 136 [George Gordon], held that the Nowegijick principle did not apply to the interpretation of legislation absent genuine ambiguity: Decision at para. 7. Its conclusion finds support in the decisions of the Supreme Court in R. v. Blais, 2003 SCC 44 at paras. 37–38, [2003] 2 S.C.R. 236 cited in George Gordon, and in Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85 at para. 68, 3 S.C.R. 746 [Osoyoos]. There, a majority of the Court described the Nowegijick principle as follows:... [I]f two approaches to the interpretation and application of an enactment are reasonably sustainable as a matter of law, then the interpretation or application that impairs the Indian interests as little as possible should be preferred, so long as the ambiguity is a genuine one, and the construction that is favourable to the Indian interests is one that the enactment will reasonably bear, having regard to the legislative purposes of the enactment: see Nowegijick, supra; Mitchell, supra; Semiahmoo Indian Band, supra, per Isaac C.J., at p. 25; and Sparrow, supra, at p. 1119, per Dickson C.J.
[Emphasis added.] [116] The Tribunal’s approach is also supported by the recent decision of this Court in Little Black Bear First Nation v. Kawacatoose First Nation, 2024 FCA 119 at para. 80, leave to appeal to SCC pending, Court File 41458, 2024 CarswellNat 5015, which upheld as reasonable the Tribunal’s interpretation of an Order in Council creating a fishing reserve under Treaty 4, including its finding that, in the absence of genuine ambiguity, the Nowegijick principle had no application. After pointing to the passage from Osoyoos cited above, this Court noted that the Supreme Court of Canada had confirmed that courts need resort to external interpretive aids, like the principle of strict construction of penal laws or the presumption of conformity with the Canadian Charter of Rights and Freedoms, only where a provision gives rise to a genuine or real ambiguity. This will occur if "“its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear and of the purpose of the provision”" or, in other words, "“if differing readings of the same provision cannot be decisively resolved”" through the modern approach to statutory interpretation: LaPresse inc. v. Quebec, 2023 SCC 22 at para. 24, 485 D.L.R. (4th) 652. The Tribunal found no genuine ambiguity in the jurisdiction-conferring provisions of the Act. The Applicant has not established that this conclusion was unreasonable.
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