[1]            This matter began as two discrete, but related applications in court:

[2]            By Orders dated November 29, 2021 and January 26, 2022, the Unified Fisheries Conservation Alliance (“UFCA”) was granted intervenor status in both proceedings.

[3]            By Orders dated April 8, 2022, the parties agreed that the two applications would be converted to actions and, as well, that they would be heard together. The trials of the two actions are scheduled to be heard beginning February 10, 2025.

[4]            On June 17, 2022, the parties confirmed that the claims against the Province of Nova Scotia were being withdrawn in both the Potlotek Matter and the Sipekne’katik Matter. The claims against the Attorney General of Canada (“Canada”) remained.

[5]            On December 19, 2022, Potlotek discontinued their action, leaving only the Sipekne’katik Matter outstanding.

[6]            The parties are in the process of completing disclosure. It is anticipated discovery examinations will begin later this year.

[7]            The parties have worked collaboratively towards the common goal of an organized and efficient pre-trial process. Among other things, they developed a litigation plan and schedule. They were also able to agree upon most categories of disclosure.

[8]            Not every category of requested disclosure was agreed upon.  Canada and UFCA brought this motion seeking disclosure of a number of discrete subcategories of information contained within the following broad headings[1]:

[9]            There was also an issue regarding how to identify and process privileged documents related to:

[10]         Following the original hearing, the parties withdrew or resolved a number of disclosure requests which were originally disputed due, in part, to Potlotek discontinuing its action.  These reasons are obviously focussed on those issues which remain in dispute.  However, for clarity, those specific requests are summarized at Appendix “A” to these reasons.

[11]         I previously released a “bottom line” decision but confirmed my intention to provide written reasons.  These are those reasons.

[12]         Parties in a civil proceeding in Nova Scotia are compelled to proactively and voluntarily make full disclosure. Rule 14 confirms the presumption that full disclosure is necessary for justice in a civil proceeding (Rule 14.08(1)).  

[13]         Disclosure is defined by relevance and determined from the perspective or vantage point of a trial judge considering the claims and defences.

[14]         By way of background, briefly, the former test for disclosure was “semblance of relevance”.  It gave rise to concerns over perceived excesses largely in the form of unnecessary delay, expense, and related inefficiencies.[3]  Nova Scotia’s current Civil Procedure Rules (2009) imposed a more disciplined inquiry into whether the information in question would actually be relevant at trial – as opposed to a more wide ranging exploration of information which merely demonstrated a “semblance of relevance” on the journey toward trial.

[15]         Canada articulates the disclosure test as “relevant (and / or “likely to lead” to relevant) evidence.” (See, for example, Canada’s initial written submissions at paragraph 23.)  In support of this proposition, Canada refers to the following passage from Halifax Dartmouth Bridge Commission v Walter Construction Corp et al, 2009 NSSC 403 (“Halifax Dartmouth Bridge Commission”) at paragraph 16:

[16]         Respectfully, I disagree. The above-quoted comment in Halifax Dartmouth Bridge Commission relates to discovery examinations, and not disclosure.[4]  Expanding the test for disclosure to include information which is “likely to lead” to relevant evidence would re-introduce the “semblance of relevance” test that the current Civil Procedure Rules abolished.

[17]         “Relevant” information is that which, as a matter of logic and human experience, tends to prove or disprove a fact in issue. (See Murphy v Lawton’s Drug Stores Ltd., 2010 NSSC 289 at paragraph 20)  I return to this issue below when discussing the scope of disclosure.

[18]         As indicated, Rule 14 also confirms the perspective or approach that the Court adopts when assessing disclosure disputes.  The motions judge hearing a disclosure dispute approaches the issue by stepping into the shoes of a trial judge and asks “whether a judge presiding at the trial or hearing of the proceeding would find the document, electronic information, or other thing relevant or irrelevant.” (Rule 14.01(1)(a) and (b).  See also Rule 14.01(2) and Laushway v Messervey, 2014 NSCA 7 (“Laushway”) at paragraph 47.)[5]

[19]         Disclosure refers to the factual information contained in relevant documents and relevant electronic information.  In turn, and as indicated, relevant factual information is that which is probative of (or tends to prove/disprove) a fact in issue, or a “live” legal issue.  Obviously, factual information that has no bearing on a live legal issue is not relevant and need not be disclosed. 

[20]         The process of identifying the live legal issues and then, for the purposes of disclosure, assessing what factual information may be probative of those issues begins with the pleadings.  Thus, as a practical matter, the time for fulfilling the duty to deliver or make disclosure begins to run at the close of pleadings (Rules 15.03(1) and 16.07).[6]

[21]         I note in passing that the pleadings are not the sole determinative factor.  The Court may, for example, also take evidence into account Saturley v CIBC World Markets Inc., 2012 NSSC 57 (“Saturley 1”) at paragraph 46.  See also Brown v Cape Breton (Regional Municipality), 2011 NSCA 32 (“Brown”) at paragraph 12.  However, in this motion, the parties have yet to make disclosure and so there was very limited evidence presented.  Thus, while the pleadings are not the only factor to be considered in a motion for disclosure, they are of particular importance here.

[22]         In any event, the pleadings are intended to identify the live legal issues and, more importantly, the material facts which bear upon those issues.  Thus:

[23]         The questions become: What is materiality or, better put, what facts or factual information is considered “material”? 

[24]         In R v Candir, 2009 ONCA 915 (leave to appeal to SCC dismissed), the Ontario Court of Appeal wrote: “Evidence is material if what it is offered to prove is in issue [at the proceedings] according to the governing substantive and procedural law and the allegations contained in the indictment [or the civil pleadings.]” (at paragraph 49)  In 2420188 Nova Scotia Ltd. v Hiltz, 2011 NSCA 74, the Nova Scotia Court of Appeal wrote that a “material fact” is one which is essential to a cause of action or defence (at paragraph 27).  Similarly, in the subsequent decision of Coady v Burton, 2013 NSCA 95, the Court of Appeal wrote that a material fact is an “important factual matter that anchors the cause of action or defence” (at paragraph 42).

[25]         The importance of “material facts” to the underlying cause of action or defence is more apparent when one considers summary judgment on evidence.  Rule 13 enables the Court to summarily allow or dismiss an action where, among other things, there is “no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence.”

[26]         That said, disclosure does not become circumscribed by whatever facts are deemed material or, worse, whatever facts a party decides are “material” and includes in their pleadings.  The Court obviously retains the discretion to identify the essential, material facts.  Moreover, the existence of a material fact may be made more or less probable through collateral or secondary facts and would therefore be relevant. Thus, factual information regarding collateral or secondary facts must also be disclosed.  However, to be clear, there must be a sufficient connection to the material fact to engage the disclosure obligation.  And this connection is determined by applying logic and experience, having regard to the applicable governing law.   In short, the factual information may not be directly connected to a material fact expressly identified in the pleadings but it still must be sufficiently material to the legal issues.  Otherwise, the disclosure obligation becomes constrained by arbitrary (not principled) considerations and effectively boundless.

[27]         The Court imposes these limitations and controls to ensure that the scope of disclosure is grounded in the law and also to avoid the sort of unrestrained or unbridled disclosure that historically rendered the litigation process inefficient or unwieldy.  Consequently, where the connection between factual information and the underlying material facts becomes so tenuous or suspect, the demand for disclosure is deemed an overreach extending well beyond the acceptable bounds of disclosure.  These types of disclosure demands are sometimes described as “fishing expeditions” where parties cast aimlessly for information based on nothing more than the hope of catching something significant.  I revisit these sorts of checks on the disclosure process in greater detail below.

[28]         In sum:

[29]         In rare cases, the obligation to disclose information in a civil proceeding may also be driven by an underlying legal proposition, the validity of which is in question.  The Court retains the discretion to control disclosure in these situations but will exercise that discretion only in the clearest of cases.  I return to this issue below.

[30]         Nova Scotia’s Civil Procedure Rules emphasize the importance of full disclosure (Rule 14.08(1)). Thus, for example,  any party seeking to modify their disclosure obligations must rebut that presumption by establishing that the modification is necessary to make the cost, burden and delay of disclosure proportionate to the likely probative value of the evidence and the importance of the issues in the proceedings to the parties (Rules 14.08(3) and (4)). It is not necessary to discuss Rule 14.08(3) or (4) in this case as no party is seeking to limit their disclosure on the basis of proportionality.

[31]         The point is that the Court approaches requests to limit the scope of disclosure with a degree of caution so as to not undermine the presumption of full disclosure.  Thus, the Court will not pre-determine legitimate factual or legal issues under the guise of a disclosure dispute.  In Saturley 1, Moir, J. recognized (at paragraph 45) that disclosure decisions are made well in advance of trial and that the motion judge’s perspective may be “imperfectly constructed”.  In Saturley v CIBC World Markets Inc., 2011 NSSC 4 (“Saturley 2”), Wood, J. (as he then was) also recognized this practical reality, noting at paragraph 7 that  “[i]t may not always be possible to know with certainty whether a particular piece of evidence will ultimately be determined to be relevant at trial.”  In these circumstances “the Court should take a somewhat more liberal view of the scope of relevance in the context of disclosure than it might at trial. This is subject, of course, to concerns with respect to confidentiality, privilege, cost of production, timing and probative value.” (Saturley 2, at paragraph 9)

[32]         The facts in Saturley 2 illustrate how this caution is exercised. The central legal issue related to whether the Plaintiff (an investment advisor) engaged in unauthorized discretionary trading sufficient to provide just cause for his dismissal from employment. 

[33]         Within the context of that legal issue, the Defendant disclosed emails relating to trades or client instructions authorizing trades, but did not disclose emails which were administrative or social in nature; or related more broadly to the client relationship (paragraph 21). Wood, J. determined that these additional emails “could be of assistance to the Court in assessing the evidence with respect to whether specific trades were authorized” (at paragraph 22) and he ordered their disclosure. 

[34]         For clarity, the caution expressed in Saturley 2 does not signal a retreat back to the abolished “semblance of relevance” test. It simply reflects the more practical concern that “it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant.” (See Saturley 2 at paragraphs 9 - 10, adopted by the Court of Appeal in Laushway at paragraph 49.) Consequently, the party seeking disclosure should be given benefit of the doubt as to how the trial judge might approach the issue of relevance.  Otherwise, there is a risk the trial process will be unnecessarily delayed or, worse, unnecessarily rendered unfair.

[35]         Similarly, a party cannot resist disclosure by simply challenging a point of law and insisting that the Court settle any disputed legal issues in advance of disclosure being made.  I note that there is a discretion to decline answering an issue of law in a motion for summary judgment even if there is no genuine dispute of material fact for trial (see Rule 13.04(6)(a)). The same type of discretion to decline answering an issue of law applies with even greater force where the legal issue is only raised in the context of a disclosure dispute.  Here again, the Court will generally exercise caution and decline to scrutinize the validity of a legal proposition under the guise of a disclosure dispute.

[36]         Exercising reasonable caution when addressing disclosure disputes does not mean the scope of disclosure becomes constrained only by a party’s imagination either when drafting a pleading or developing disclosure requests.  Obviously, there are limits to the caution which the Court will exercise when considering disclosure requests.  Generally speaking, these limits are often imposed based on concerns regarding the actual strength of the connection between the material facts and the disclosure request and related, more practical issues.  For the purposes of this motion, the following principles and factors are germane:    

[37]         Sipekne’katik states that the requested disclosure may include information which is confidential and privileged. This concern around privilege arises out of the Framework Agreement and related Main Table Discussions between certain Mi’kmaq communities, Canada, and the Province of Nova Scotia. 

[38]         A party is not obliged to disclose information which is privileged, even if it is relevant (Rule 14.05). [10]  The following procedures are in place to address claims of privilege:

[39]         The Court retains a discretion to supplement these Rules to better protect privileged information, if necessary in the unique circumstances of a case (Rules 15.07 and 16.14).

[40]         This category can be divided into the following three requests[11]:

[41]         Dealing with Request 1 and Request 2 and the nature and scope of the Treaty Right generally, Canada pleads and refers to those portions of the R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456 (“Marshall #1”) and R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533 (“Marshall #2”) decisions which consider:

[42]         UFCA similarly states that the Court in Marshall #1, Marshall #2 and subsequent jurisprudence was careful to confine itself to the narrow issues before it.  UFCA further contends that Marshall #1 and Marshall #2 do not hold that the Treaty Right includes a right to fish any species, in any geographic area, for trade in support of a moderate livelihood. That remains for the Plaintiffs to prove in these cases (UFCA’s Statement of Defence at paragraphs 8 – 10 and written submissions at paragraph 22).

[43]         Overall, UFCA and Canada acknowledge the Treaty Right to fish but they suggest that the phrase “to fish” remains unclear and requires further clarity to fully understand the extent and scope of the right.  Thus, for example, if the phrase “to fish” is interpreted as (and refers to) “fish” as a noun, a legitimate question arises as to what types of “fish” or specific marine species are included within that right.  If, by contrast (and as Sipekne’katik contends), the phrase “to fish” is interpreted as a verb, it would refer more broadly to the act of fishing; and the Treaty Right is not restricted to any particular species but, rather, would include any form of life that is marine and harvested for a commercial purpose.  Under this interpretation, the nature of the species is irrelevant and the Treaty Right only becomes potentially circumscribed by other things such as, for example, the historic territories where “fishing” (in the broad sense of the word) occurred.

[44]         Sipekne’katik argues that Canada and UFCA are attempting to re-open questions that have already been clearly decided by the Supreme Court of Canada in Marshall #1 and Marshall #2. They accuse Canada and UFCA of advancing positions that are “based on an artificially narrow, and incorrect, reading of the Supreme Court of Canada jurisprudence regarding the Plaintiffs’ Treaty Rights.” (See paragraph 38 of Sipekne’katik’s written submissions.) 

[45]         Sipekne’katik states that the controversy which gave rise to Marshall #2 was specifically focussed on the lobster fishery.  In Marshall #2, the West Nova Fishermen's Coalition applied for a rehearing to address the federal Crown’s regulatory authority over the east coast lobster fisheries generally and, as well, sought a new trial to allow the Crown to justify for conservation or other purposes the licensing and closed season restriction. Paragraph 15 of Marshall #2 specifically confirms that the Coalition’s concerns “largely relate to the lobster fishery”.  Sipekne’katik points to other paragraphs in Marshall #2 that refer to the lobster fishery in the context of the Treaty Right (see, for example, paragraphs 21, 30, 38 and 42 of Marshall #2).

[46]          Sipekne’katik ultimately argues that the notion that the Courts to date have only recognized a Treaty Right for eel (not the Treaty Right to fish for any other marine species) is contrary to binding precedent and constitutes an improper attempt to somehow manufacture a controversy that does not actually exist in law.   Sipekne’katik invokes the decision of Farrar, J.A. in Intact for the proposition that a party cannot just make any assertion in a pleading and then demand disclosure.  It concludes that: “The law is clear: the Treaty Right is not a species-specific right. Pleading that it is does not make it so.” (See paragraph 50 of Sipekne’katik’s written submissions.)

[47]         In my view, the Court should exercise caution and decline the discretion to decide upon the validity of the legal arguments being advanced by Canada and UFCA around the scope and nature of the Treaty Right and these particular disclosure requests. My reasons include:

[48]         To be clear, this decision does not determine, and should not be interpreted as determining, any of these issues or any other issue regarding the scope and nature of the Treaty Right and, in particular, whether the Treaty Right is not marine specific.  I make no conclusions beyond declining the discretion to determine the legal and factual questions which underpin this disclosure request.

[49]         Request 3 seeks documents regarding the negotiation, execution, implementation and interpretation of the Treaty or the Treaty Rights, and in particular, the “trade clause” of such Treaty. This documentary request is made by UFCA, and not Canada.

[50]         UFCA’s written submissions are almost entirely dedicated to the issue surrounding whether the recognized Treaty Right is limited by fish (or marine) species and geography.  UFCA’s written submissions regarding Request 3 are linked to these first two issues but condensed into a single sentence at paragraph 33:  “Likewise, documents regarding the negotiation, execution, implementation and interpretation of the Treaty Rights, and in particular the ‘trade clause’ on which the Plaintiffs rely, are again directly relevant in assessing the nature and scope of the Treaty Rights.”

[51]         In my view, Request 3 is unclear and overly broad.  And the brief submission offered in support of the request is more conclusory than explanatory.  Disclosure requests should be focussed and not excessively far-reaching.  The concerns which Farrar, J.A. expressed at paragraph 35 of Intact (reproduced at paragraph 36 above) are applicable here. 

[52]         I appreciate the disclosure request focusses on the “trade clause” but it does not appear to be confined only to the trade clause.  The request has the hallmarks of a “basket clause” provision without being sufficiently tethered to the issues and material facts.  The connection between this request for factual information and defining the nature and scope of the Treaty Right is unclear.  For example, I am not certain how execution of the Treaty is probative of any material fact.  In addition, I am concerned that factual information regarding the “implementation and interpretation” of the Treaty Right creates the risk of an apparently unlimited exploration into how the parties acted in response to the Treaty Right over the centuries after it originally came into existence.  

[53]         At this early stage and absent a more focussed request and clear argument as to relevance, I am not prepared to order disclosure of the information referenced in Request 3.  Additional information and evidence may become available which offers greater clarity and focus.

[54]         This request seeks disclosure of “policy level” documents addressing subsidies, transfers or other funding provided to Sipekne’katik and members thereof to support their livelihood by the federal and provincial governments over the past five years.  For greater certainty, UFCA confirms that this request does not include operational-level documents addressing subsidies, transfers or funding provided to Sipekne’katik or members thereof, such as documents relating to particular individuals.  As indicated, this information is requested by UFCA, and not Canada.  UFCA contends that this request is relevant to the meaning of a “moderate livelihood”.

[55]         All parties agree that the meaning of a “moderate livelihood” is a live issue in this litigation.   Thus, documents and electronic information which are relevant to the meaning of a “moderate livelihood” would obviously be subject to disclosure.  The outward simplicity of this statement, however, becomes gnarled by contentious questions that have legal, financial, political and social dimensions.  For example, the parties use slightly different words to describe the Treaty Right and how it interacts with the concept of a “moderate livelihood”. 

[56]         Both Canada and UFCA state that the Treaty Right is the right to fish in pursuit of a moderate livelihood (emphasis added). By contrast, Sipekne’katik claims a treaty right to fish and to sell that fish for (or to support) a moderate livelihood (emphasis added). These differences may seem minor but looks can be deceiving.  The parties obviously took care in expressing the nature of the Treaty Right.  The differences are, in my view, intentional and important.

[57]         The right to fish in pursuit of a moderate livelihood might suggest that the predominant goal of the Treaty Right is economic in nature in the sense of being solely dedicated to ensuring such access to the commercial fishery as necessary to earn a “moderate livelihood”.  If this financial outcome is ultimately acquired (i.e. a “moderate livelihood” is achieved through whatever means), an issue arises as to whether the right to pursue a moderate livelihood might be correspondingly curtailed.  In other words, the relationship between a “moderate livelihood” and Sipekne’katik’s access to the commercial fishery is inversely proportional.  The closer Sipekne’katik comes to achieving a “moderate livelihood”, the less it may require access to the commercial fishery.  Equally, the further Sipekne’katik  is from achieving a “moderate livelihood”, the more it may require access to the commercial fishery.

[58]         By contrast, the right to fish for a moderate livelihood places the emphasis on access to the commercial fishery and suggests that such access is the predominant goal of the Treaty Right.  Thus, access to the commercial fishery is not affected by (or subject to adjustment based on) government subsidies depending upon how close Sipekne’katik may be to achieving a “moderate livelihood”, however that term might be defined.

[59]         I make no comment or determination (and my decision should not be interpreted as having made a comment or determination) regarding either possible interpretation.  I simply observe reasonable differences in how the Treaty Right is expressed and possibly interpreted.

[60]         Sipekne’katik contends that this particular request pushes the disclosure process beyond the realm of relevancy because it is predicated upon the false premise that the Treaty Right can be curtailed by government funding, transfers or subsidies already received by Sipekne’katik.  Taken to its logical conclusion, Sipekne’katik is concerned that its access to the Treaty Right might be surrendered or waived (in whole or in part) if government assistance is sufficient to create a “moderate livelihood” - even if any such assistance is unrelated to the fishery.  At paragraph 61 in it’s written submissions, Sipekne’katik concludes that: “The Treaty Right exists separate and apart from subsidies and transfers provided by the federal or provincial governments.”

[61]         UFCA takes a different view.  It notes that the definition of “moderate livelihood” remains unclear other than it is somewhere between bare subsistence and “accumulated wealth” (referencing paragraph 75 of Ahousaht). At paragraph 39 in its written submissions, UFCA concludes that:

[62]         A number of live legal issues remain, including:

[63]         In my view, the disclosure request is relevant (and seeks factual information which is material) to the determination of these questions. The concept of a “moderate livelihood” lies at the heart of the Treaty Right. How a “moderate livelihood” should be defined and measured is obviously an extremely important and sensitive issue in this case.

[64]         I am not prepared to deny this disclosure request or otherwise make determinations as to what sources of information might be excluded on this issue of a “moderate livelihood” at this early stage in the proceeding. Among other things, I have no evidence (including opinion evidence) as to:

[65]         I also note that UFCA is requesting “policy level” documents.  UFCA does not precisely define this term (“policy level”) except to say that it does not include “operational level” documents. My understanding is “policy level” documents generally include information sufficient to identify the aggregate amount and/or sources of government subsidies, transfers or other funding (if available); their underlying purpose; and the policy choices which prompted this financial assistance.  It does not include more detailed information regarding how any such assistance is administered. The parties are at liberty to seek further clarity on this issue, if required.

[66]         The more specific subcategories of requested disclosure are:

[67]         In Request 1, Canada seeks information related to “historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous and non-Indigenous groups”. 

[68]         I pause briefly to note that UFCA’s written submissions limit their request to documents regarding historical reliance upon, and participation in, the fishery to non-Indigenous groups, consistent with the Supreme Court of Canada’s language originally in Gladstone and then repeated in Marshall #2. UFCA states:

[69]         In any event, all parties agree that this disclosure request is relevant to the issue of justification in so far as non-Indigenous groups (e.g. UFCA) are concerned.  The controversy relates to whether the same request is relevant to the issue of justification in respect of Indigenous groups (e.g. Sipekne’katik, in this case).  That is a legal issue.

[70]         The notion that “historical reliance upon or participation in” the lobster fishery is relevant to justification and can be traced directly back to the following passage at paragraph 41 of Marshall #2 which, in turn, is a quote from the earlier decision of R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723 (“Gladstone”):

[71]         Similarly, on the issue of justification, in Delgamuukw v British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010 (“Delgamuukw”), the Supreme Court of Canada said:

[72]         These statements make it abundantly clear (and, again, the parties agree) that, in the right circumstance, historical reliance upon, and participation in, the fishery by non-aboriginal groups is a live legal issue in the context of accommodating the Treaty Right or justifying an infringement of that right. 

[73]         Under the heading “Justification – Key Required Documents”, Canada’s initial written submissions quote paragraph 41 from Marshall #2 (reproduced at paragraph 70 above).  Canada then offers the following more expansive conclusion at paragraph 25:

[74]         Canada explains its proposed legal basis for suggesting that historical reliance upon, and participation in, the fishery includes both non-Indigenous groups (as Marshall #2 clearly states) and Indigenous groups in a footnote.  Footnote 24 states, inter alia:

[75]         Canada’s reference to the “thread of continuity” concept invokes the following introductory statements from Marshall #1:

[76]         In summary, Canada advances the legal proposition that the doctrine of justification is sufficiently expansive that historical reliance upon or participation in the Atlantic inshore lobster fishery of Indigenous groups may, in the right circumstances, justifiably infringe the Treaty Right. Or, better put, that factual information related to that legal proposition is relevant and sufficiently material to justify disclosure. Yet, the Supreme Court of Canada has only acknowledged the historical reliance and participation in the fishery by non-Indigenous groups as being relevant in this context (i.e. justification).

[77]         In my view, this request for factual information is not relevant to the issue of justification. To the extent it is necessary, this is also a rare and exceptional circumstance where the Court should exercise its discretion to determine the legal proposition being raised in support of this disclosure request. Respectfully, the legal proposition that the doctrine of justification expands to include historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous groups is obviously wrong and clearly contrary to established authority binding upon this Court. Overall, disclosure demands for factual information to prove/disprove this proposition regarding Sipekne’katik’s historical reliance or participation in the lobster fishery is neither relevant nor sufficiently material to the issue of justification.

[78]         I begin with a somewhat minor point.  Canada argues that “historical reliance upon or participation in the Atlantic inshore lobster fishery by Indigenous groups would be relevant to and / or likely to lead to relevant evidence in its defence and should be produced.” (See footnote 24 to Canada’s initial written submissions, emphasis added.) As indicated in paragraphs 13 - 15 above, the test at disclosure is relevance and not “likely to lead to relevant evidence.” 

[79]         More substantively, Canada’s Statement of Defence neither identifies the information in this disclosure request as a material fact nor connects it to a material fact. Canada’s Statement of Defence also does not align with the position being taken in this motion.  At paragraph 21, Canada pleads:

[80]         Canada’s pleading specifically limits the relevance of historical reliance and participation in the fishery on the issue of justification to non-Indigenous groups, in accordance with the Supreme Court of Canada’s decision in Gladstone, Marshall #2 and Delgamuukw referenced above.

[81]         Canada’s pleading does not extend the relevance of historical reliance and participation in the fishery on the issue of justification to Indigenous groups, again in accordance with the Supreme Court of Canada’s decision in Gladstone, Marshall #2 and Delgamuukw referenced above.

[82]         Gladstone, Marshall #2 and Delgamuukw are binding upon this Court and, in my view, they are clear.  All of them confirm that historical reliance upon or participation in the fisheries by non-Indigenous groups is relevant to the issue of justification. And it is notable that the Supreme Court of Canada repeatedly made this point by referring to non-Indigenous groups. In other words, groups that are not Indigenous - as opposed to groups that are Indigenous. The Supreme Court of Canada clearly intended that this aspect of the justification analysis did not include historical reliance upon or participation in the fisheries by Indigenous groups.

[83]         If the Supreme Court of Canada wished to extend the historical reliance upon, or participation in, the fisheries by Indigenous groups as being relevant to that issue, it had at least three opportunities to do so (Gladstone, Marshall #2 and Delgamuukw). It never did.  In the circumstances, I am unable to conclude that this request is relevant.

[84]         The reason consideration of this particular factor (i.e. historical reliance upon, and participation in, the fisheries) is limited to non-Indigenous groups is self-evident.  Non-Indigenous groups share a finite lobster fishery resource with Indigenous groups. The Supreme Court of Canada recognized that reality and agreed that historical reliance upon, and participation in, the fisheries by non-Indigenous groups is a “substantial and compelling public purpose” or “objective” (see Marshall #2 at paragraph 41) [14] that:

[85]         The Supreme Court of Canada also confirmed that any such infringement based on such “substantial and compelling public purposes” must occur in a way that honours recognized treaty rights and advances the goal of reconciling indigenous rights and communities with the rest of Canadian society.  In fact, as indicated above, the Court in Marshall #2 (paragraph 41) underlined and emphasized that “In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.”

[86]         I was not provided (and could find no authority) to support the propositions that:

[87]         Respectfully, in my view, these propositions are not sufficiently material to the relevant considerations and are wrong at law having regard to the Supreme Court of Canada’s judgments discussed above including the statement that the doctrine of justification seeks to serve the broader goal of reconciliation.

[88]         Canada cites the “thread of continuity” concept as the legal basis upon which historic reliance upon, and participation in, the fishery by Indigenous groups becomes relevant to the issue of justification.  Respectfully, this “thread of continuity” concept is engaged as part of the analysis into the nature and scope of treaty rights – not justification.  Indeed, Canada written submissions reference this concept in that specific context (see paragraphs 16, 18 and 21 of Canada’s initial written submissions)  I have not been provided and cannot find any legal support for the proposition that Indigenous historical reliance upon and participation in the fishery is also exported into the issue of justification as a relevant consideration.  I note that the more recent Supreme Court of Canada decision in R v Desautel, 2021 SCC 17 refers to this notion of “thread of continuity” but, again, in the context of determining the nature and scope of aboriginal rights (at paragraph 34). 

[89]         I wish to make clear that I am mindful of the care and caution the Court must exercise so as to not compromise the presumption of full disclosure.  On this, I repeat that I have approach the issues regarding both the nature and scope of the Treaty Right and the definition of a “moderate livelihood” with such care and caution.   At this early stage in the proceedings, I am not prepared to limit the scope of disclosure on those issues.  However, in my view and for the reasons discussed above, the same level of caution is not appropriate on this specific issue (i.e. the historical reliance upon, and participation in, the fishery by the Indigenous group as a basis for justifiably infringing that groups own treaty right in the fishery).

[90]         I make two more practical observations regarding this disclosure request.  These observations are not determinative but they are relevant to the issue:

[91]         In sum, I am not prepared to allow this specific disclosure request.  In my view, respectfully, it is one of those clear cases where the disclosure request is based upon a narrow legal proposition that is obviously wrong and contrary to the law that is binding upon this Court.  It also does not align with the parties’ pleadings and there are no other considerations which would tend towards declining the discretion to consider the underlying legal issue.  In these unique and exceptional circumstances, requiring the parties to bring a further proceeding or, alternatively, be compelled to make the requested disclosure is unnecessary and would not further the promise of Rule 1.01 for a just, speedy and inexpensive determination of this proceeding.

[92]         Finally and to hopefully avoid any confusion, my determinations are obviously limited to this particular disclosure request in the context of the justification analysis.  Clearly, and as will be apparent from my decision above regarding the scope and nature of the Treaty Right, historical evidence regarding Indigenous groups and their involvement with the fisheries may be relevant in another context. 

[93]         These disclosure requests generally relate to the issue of accommodation and, more specifically, government initiatives alleged developed to promote Indigenous access to the fishery (Request 2) or increase opportunities for Sipekne’katik to participate in the fisheries management process (Request 3). 

[94]         As to Request 2, both Canada and UFCA tether this request directly to the pleadings (see, for example, paragraphs 56, 63 and 68 of Canada’s Statement of Defence) and describe these programs as an effort to accommodate and implement the Treaty Right.  UFCA’s initial written submissions, paragraphs 45 – 51 and Canada’s initial written submissions, paragraphs 28 – 31.

[95]         Sipekne’katik responds that the Treaty Right must be distinguished from Indigenous engagement in both:

[96]         Sipekne’katik argues that it “is artificial for Canada and UFCA to argue that other forms of participation in the fishery are relevant when the Treaty Right must co-exist alongside, but remain distinct from, both the commercial fishery and fishing for food, social, and ceremonial purposes.” (Sipekne’katik’s initial written submissions at paragraph 81)

[97]         At this stage of the proceeding, I am not prepared to compare or make binding determinations as to the various forms of participation in the lobster fishery and how they might overlap (or be distinguished from) the Treaty Right.  In my view, these are issue not appropriately addressed as a disclosure issue but should be reserved for a future hearing based on a more complete record.

[98]         This category of documents shall be disclosed.

[99]         As to Request 3, the category of documents relates to Sipekne’katik’s involvement in fisheries management.  The parties agree that the requests documents are relevant to the issue of accommodation or consultation.  (See paragraphs 82 of Sipekne’katik’s initial written submissions; paragraph 33 of Canada’s initial written submissions and paragraph 55 of UFCA’s initial written submissions.)

[100]   The controversy is whether they are also relevant to the issue of justification.  Canada and UFCA say that these requested documents are also relevant to the issue of justification. 

[101]   Sipekne’katik’s argument against disclosure as relevant to the issue of justification are effectively limited to the broad statement that:

[102]   Respectfully, I am not prepared to resolve Sipekne’katik’s question as to whether the same category of requested documents which are relevant to the issue of accommodation might also relevant to the issue of justification.  I am also uncertain as to whether there would be any practical reason to engage in that exercise for the purpose of disclosure.  In other words, the requested disclosure may be the same regardless of whether it is characterized as being relevant to the issue of accommodation.  Or, worse, Sipekne’katik’s concerns cannot be discretely addressed without potentially compromising the disclosure process.

[103]   The issues of accommodation and justification are clearly relevant and based on valid points of law.  Canada and UFCA have appropriately joined these issues in their pleadings.  Respectfully, making a determination as to whether the documents should be disclosed because they are relevant to accommodation alone (and note justification) would be premature, impractical, and prejudicial.

[104]   The requested documents shall be disclosed.

[105]   I turn now to the specific claim for privilege made by Sipekne’katik regarding the Framework Agreement and Main Table discussions, introduced at paragraph 9 above.

[106]   In the preamble to the Framework Agreement, the Provincial Crown, the Federal Crown and the 13 Mi'kmaq communities (including Sipekne’katik) acknowledged that they “may have differing views with respect to the legal status and effect of specific Mi'kmaq Treaties and the existence, scope, extent and beneficiaries of Mi'kmaq rights and title” but expressed the wish to:

[107]   The subject matter of the negotiations included: “land and water”, “natural resources, both renewable and non-renewable”; “Resolution of claims for past infringement of Mi'kmaq rights and title”; “Capital transfer (money)”; “Other financial arrangements including transfers of capital assets and funding arrangements for implementation and governance” (Article 11)

[108]   The parties further, expressly confirmed their intention “to promote efficient, effective, orderly and timely negotiations towards a resolution of issues respecting Mi'kmaq rights and title.”  (Article 11) To that end, the Framework Agreement further established “process parameters such as interim, or incremental, measures or agreements, approvals, the negotiation process, funding, termination and amendment” (Article 11) with priority being given to Mi'kmaq access to and management responsibilities regarding land and natural resources (Article 14)

[109]   Articles 33 and 34 of the Framework Agreement are particularly significant for the purposes of this disclosure motion.  They state:

[110]   To the extent any of the parties have any documentation or electronic information protected by the privilege asserted in this Framework Agreement, Sipekne’katik argues that the Court should exercise its inherent jurisdiction and also its authority under Rules 15.07 and 16.14 to depart from the procedural requirements of Rule 15.03(3)(f) and provide additional direction which will better preserve the underlying privilege.

[111]   Canada and Sipekne’katik agreed to maintain privilege over certain documents related to the Framework Agreement.  However, they disagree as to how that privilege is best protected.

[112]   Canada and UFCA state that the existing procedural requirements and protections set out in Rule 14.06 surrounding disclosure are sufficient.  Canada agrees that the Court retains a discretion to provide any necessary directions or make such procedural modifications around disclosure as may be needed in the circumstances, but that it is not necessary to exercise that discretion here.

[113]   In my view, additional directions beyond Rule 14.06 are necessary in the circumstances.  My reasons include:

[114]   In sum, the unique circumstances of this case make it clearly preferable to impose pre-emptive measures to the protect the claimed privilege then try and reactively mitigate the prejudice caused by the release of privileged information.

[115]   I direct that: