Federal Court Strips Claimant’s Judicial Review Application

OUTCOME: Struck Out

Date: 20260626 Docket: T-591-23 Citation: 2026 FC 869 Ottawa, [NAME_1], June 26, 2026 PRESENT: The Honourable Mr. Justice Duchesne Case Management Judge BETWEEN: [NAME_2], [NAME_4], [NAME_5], [NAME_6], [NAME_7], AND [NAME_8] Applicants and ATTORNEY GENERAL OF CANADA (REPRESENTING THE MINISTER OF CROWN-INDIGENOUS RELATIONS), THE [NAME_11] AND THE [NAME_9] [COMPANY_12]. Respondents

REASONS AND

ORDER I. Overview [ 1 ] The Respondent [NAME_11] [[NAME_13]] has brought a motion to strike the Applicants’ amended application for judicial review [[NAME_15]] on the basis that it is plain and obvious that it is doomed to fail for various reasons. [NAME_13]’s overarching argument is that the Applicants are seeking to review government policy and legislative choices in government-to-government negotiations that is not subject to judicial review. [ 2 ] The Respondent Attorney General of Canada [[NAME_16]] supports [NAME_13]’s motion to strike and echoes [NAME_13]’s overarching argument, although he makes distinct submissions on the issue of whether the Applicants have standing to seek the relief they seek. [ 3 ] The Applicants oppose [NAME_13]’s motion and argue that [NAME_13] and [NAME_16] do not meet the high threshold required for [NAME_15] to be struck. [ 4 ] By way of very general summary, the Applicants plead that the Minister of Crown-Indigenous Relations [the Minister] made a reviewable decision within the meaning of section 18.1 of the Federal Courts Act [the FCA ] when he signed the [NAME_9]-Government Recognition and Implementation Agreement on February 23, 2023 [the 2023 Agreement] on behalf of the Government of Canada after [NAME_18] approved the 2023 Agreement and authorized him to do so. The Applicants allege that by doing so, the Minister purports to recognize the existence of tens of thousands of new persons bearing rights pursuant to Section 35 of the Constitution Act, 1982 [Section 35 or Section 35 Rights] throughout [NAME_19] with no ancestral connection to any historic communities capable of recognition pursuant to Supreme Court of Canada jurisprudence. This recognition of [NAME_19] through a historic self-government agreement, it is alleged, is incorrect, unreasonable, procedurally unfair to the Applicants, and reviewable by this Court. [ 5 ] The outcome of this motion turns on whether the notice application is so clearly improper from that it is bereft of any possibility of success, is affected by an obvious, fatal flaw striking at the root of this Court’s power to entertain the application, or, to state it more directly, is plainly and obviously doomed to fail. As will be discussed below, the determination reached on this motion is not the result of weighing evidence or preferring one party’s perspective and evidence over the other. Rather, the determination reached flows from a careful review of what is actually alleged by the Applicants in [NAME_20] in light of the content of the 2023 Agreement and of the other documents also incorporated into [NAME_15] by reference. [ 6 ] For the reasons that follow, [NAME_13]’s motion is granted. The Applicants’ AAJR will be struck in substantial part as explained below, without leave to amend. [NAME_15] is nevertheless not struck in its entirety and those allegations and the relief sought pertaining to the whether the Minister’s conduct in entering into the 2023 Agreement was inconsistent with the honour of the Crown in its dealing with [NAME_21] survive this motion.

II. The applicable law on a motion to strike [ 7 ] Although initially framed as a motion to strike pursuant to Rule 221 of the Federal Courts Rules , SOR/98-106 [the Rules ] and pursuant to the Court’s plenary jurisdiction to restrain the misuse of its processes, the parties agreed at the hearing of this motion and in their oral arguments that the source of this Court’s power to strike the application is found in the Court’s plenary powers as described in [NAME_22] Management (Canada) Inc. v. Canada (National Revenue) , 2013 FCA 250 [ [NAME_22] ] and the cases cited therein, and more recently in [NAME_23] v. Canada (Attorney General), 2018 FCA 199 [ [NAME_23] ], and not in Rule 221 ( [NAME_24] v. Assistant Commissioner Policy and Programs , 2022 CanLII 117825 (FC), at para. 5). The applicable test is articulated in [NAME_22] at paragraph 47 as follows: [ADDRESS] will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft of any possibility of success” There must be a “show stopper” or a “knockout punch” – an obvious, fatal flaw striking at the root of this Court’s power to entertain the application. [ 8 ] The Federal Court of Appeal confirmed in [NAME_23] that regardless of the words used to describe the flaw in an application that is sufficient to cause it to be struck, the threshold to strike is that it must be plain and obvious that the application is doomed to fail. [ 9 ] Determining whether it is plain and obvious that the Applicants’ application is doomed to fail requires the Court to read the application to get at its “real essence” and “essential character” by “reading it holistically and practically without fastening onto matters of form” ( [NAME_22] at paras 49-50; [NAME_23] , at para 34). This means that the Court must go beyond how the Applicants have framed their notice of application and read their originating document with a view to understanding its real essence, to having a realistic appreciation of the application’s essential character ( [NAME_25] v. Canada (Citizenship and Immigration) , 2020 FCA 145, at para. 4; [NAME_22] , at paras. 49 and 50). [ADDRESS] must look through and past sophisticated wordsmithing and clever drafting that may make an issue sound like an administrative law issue when it is nothing of the sort ( [NAME_22] , at para. 49). [ 10 ] As set out in [NAME_23] at paragraph 36, an application for judicial review can be doomed to fail at any of the three following stages:

I. Preliminary objections. An application not authorized under the Federal Courts Act , R.S.C., 1985, c. F-7 or not aimed at public law matters may be quashed at the outset: [NAME_22] at para. 68; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall , 2018 SCC 26; Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605. Applications not brought on a timely basis may be barred: section 18.1(2) of the Federal Courts Act. Judicial reviews that are not justiciable may also be barred: [NAME_27] v. Canada (Foreign Affairs and International Trade Canada) , 2015 FCA 4, 379 D.L.R. (4th) 737. Other possible bars include res judicata , issue estoppel and abuse of process ( [NAME_28] v. [COMPANY_29]., 2001 SCC 44, [2001] 2 S.C.R. 460; Toronto (City) v. [NAME_30]., Local 79 , 2003 SCC 63, [2003] 3 S.C.R. 77), the existence of another available and adequate forum for relief (prematurity) ( Canada (Border Services Agency) v. [COMPANY_31] , 2010 FCA 61, [2011] 2 F.C.R. 332; [NAME_22] at paras. 81-90) and mootness ( [NAME_32] v. Canada (Attorney General) , 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342).

II. The merits of the review. Administrative decisions may suffer from substantive defects, procedural defects or both. Substantive defects are evaluated using the methodology in [NAME_33] v. [NAME_34] , 2008 SCC 9, [2008] 1 S.C.R. 190; procedural defects are evaluated largely by applying the factors in [NAME_35] v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. In certain circumstances, the application is doomed to fail at this stage right at the outset. For example, an application based on procedural defects that have been waived has no chance of success: [COMPANY_36]. v. Canada (Attorney General) , 2009 FCA 116 (CanLII), [2010] 2 F.C.R. 488, 314 D.L.R. (4th) 340.

III. Relief . In some cases, the relief sought is not available in law ( [NAME_22] at paras. 92-94) and so the application can be quashed in whole or in part on that basis. [ 11 ] The facts pleaded in the notice of application are to be taken as true while reading the application broadly with a view to accommodating inadequacies in the drafting of the allegations made. Accepting facts as pleaded in the notice of application as true for the purposes of the motion does not entail that characterisations of fact or speculations contained in the notice application should be considered as true. Opinions pleaded as fact and speculation characterized as logical and imminent consequences ought to be carefully filtered from the appreciation exercise. [ 12 ] A key component of the Court’s pleading appreciation exercise is that of scrutinizing documents that are incorporated by reference into the application and led into evidence on the motion, and discerning whether the facts pleaded in the application are consistent with the material facts reflected in the documents relied upon ( [NAME_22] , at para. 54). [ADDRESS] need not accept alleged material facts as true if they are inconsistent with the content of documents incorporated into the notice of application by reference ( [NAME_38] v Canada , 2023 FC 968, at para 50). [ 13 ] What evidence adduced in the future might or might not show is not to be considered. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless ( R. v. [COMPANY_39] ., 2011 SCC 42 , [2011] 3 S.C.R. 45, at para. 23). [ 14 ] The principles of pleading contained in the Rules and in our jurisprudence require that the grounds alleged in the notice of application be concise but not bald, complete, exhaustive and stated with particularity ( Canada (Attorney General) v. [COMPANY_40]., 2021 FCA 244, at paras 10-12, [NAME_22] at paras 38-41; Rule 301). The relevant material facts in support of the grounds must also be included. The applicant should not include the evidence that will be submitted in the record, or list all the individuals who will produce sworn statements in support of the application. While not all the evidence will be in the notice of application for judicial review, the grounds must all be stated at this preliminary stage of the proceeding ( [NAME_22], at paras. 38-46; [COMPANY_41]. v. Canada (Attorney General) , 2021 FC 732 at paragraphs 37 to 39, aff’d 2022 FCA 103 [ [COMPANY_41] ]). [ 15 ] Where procedural fairness is in issue, it is not enough for an applicant to say that their right to procedural fairness was violated. The applicant must go further and identify the facet of procedural fairness they say was violated and how it was violated ( [NAME_22] , at para 43). Similarly, an applicant who alleges that a decision is incorrect in law must allege the law relied upon and how the decision sought to be reviewed is incorrect. If an applicant alleges that the decision sought to be reviewed is unreasonable, then the application should include particulars of how and why the decision is unreasonable. A failure to adequately plead allegations that if proven could lead a court to exercise its discretion on judicial review is fatal to an application for judicial review ( [COMPANY_41] ). III. [NAME_15] A. The allegations [ 16 ] The Applicants plead at paragraph 1 of [NAME_15] that their application is: for the judicial review of the decision of the Minister of Crown-Indigenous Relations and Northern Affairs Canada (the “Minister”) to enter into the [NAME_9] Government Recognition and Self-Government Implementation Agreement (the “Agreement”) with the [NAME_11] (the “Decision”). The Minister and the [NAME_11] (“[NAME_14]”) signed the Agreement on February 23, 2023, and that Agreement was made public on February 24, 2023. [ 17 ] They also plead at paragraph 2 of [NAME_15] that: Through the Agreement, the Minister purports to recognize the existence of tens of thousands of new persons bearing rights under s.35 of the Constitution Act, 1982 , through [NAME_19] with no ancestral connection to any historic communities capable of recognition pursuant to the test set out by the Supreme Court of Canada. This recognition poses an existential threat to the constitutionally protected rights of the [Applicants] who have used, occupied and stewarded their territory since time immemorial, consistent with their Anishinaabe laws. The Minister’s decision to enter into the Agreement was incorrect and unreasonable. [ 18 ] The Applicants seek different types of relief, pleaded as follows:

3. The Applicant makes application for: ORDERS a) an order in the nature of certiorari quashing the Agreement and declaring that the Agreement is invalid and of no force or effect, on the grounds that: i) the Decision to enter into the Agreement was unlawful; ii) the Decision to enter into the Agreement was unreasonable and was reached unreasonably; iii) The Decision to enter into the Agreement involves a constitutional question and question of central importance to the legal system, and was incorrect; iv) The Decision to enter into the Agreement was an unreasonable exercise of the Minister’s discretion; v) The Minister did not provide the First Nations with the requisite procedural fairness in reaching the Decision to enter into the Agreement; vi) The Minister failed to fulfill the Duty to Consult and Accommodate prior to reaching the Decision to enter into the Agreement; vii) The Minister’s conduct in making the Decision to enter into the Agreement was inconsistent with the Honour of the Crown; b) in the alternative to 3(a), an order in the nature of certiorari quashing the Decision to enter into the Agreement and declaring that the Agreement is invalid and of no force or effect, on the grounds described in paragraph 3(a)(i) to 3(a)(vii); c) in the further alternative to 3(a) and 3(b), an order in the nature of certiorari quashing the Decision of the Minister to: i) determine that the “[NAME_19] by [NAME_13]” (as that term is defined in the Agreement, hereinafter “[NAME_14]”) is a [NAME_9] collectivity forming part of the [NAME_10] (s.6.01 of the Agreement); ii) determine that [NAME_13] are an Aboriginal People (s. 6.02 of the Agreement); (1) determine that the [NAME_42] is an Aboriginal People; iii) define the [NAME_10] arbitrarily and without specificity (s.1.01 of the Agreement); iv) determine that the [NAME_10], at large, used and occupied the [NAME_10], at large (s.6.01, Recital D(ii), s 1.01 “[NAME_10]”); and declaring invalid, and of no force or effect, those portions of the Agreement; d) An order directing the Minister to promptly initiate and engage in deep, meaningful and funded consultation with the Applicants prior to, and at regular and reasonable intervals while engaging in, any further Crown conduct towards implementing the Agreement, including and especially, any Crown conduct associated with the negotiation of a Treaty as contemplated in Part VI of the Agreement; INJUNCTIONS e) an interim and/or interlocutory injunction prohibiting the Applicant from taking any steps to implement or perform the Agreement; f) in the alternative to 3(e), an interim and/or interlocutory injunction prohibiting the Applicant from taking any steps to implement or perform the Agreement other than steps for which injunctions cannot be granted because of Parliamentary prerogative; DECLARATIONS g) a declaration that the Minister’s Decision to enter into the Agreement was incorrect, and, or in the alternative, was unreasonable; h) In the alternative to 3(g), a declaration that the Minister’s decision to do the following was incorrect and/or unreasonable: i) determine that [NAME_13] is a [NAME_9] collectivity forming part of the [NAME_10] (s.6.01); ii) determine that [NAME_13] is an Aboriginal People (s. 6.02); (1) determine that the [NAME_42] is an Aboriginal People; iii) define the [NAME_10] arbitrarily and without specificity (s.1.01); iv) determine that the [NAME_10], at large, used and occupied the [NAME_10], at large (s.6.01 Recital D(ii), s 1.01 “[NAME_10]”); i) A declaration that the Duty to Consult and Accommodate (“Duty”) was owed by the Minister to the Applicants prior to making the Decision; j) A declaration that the Minister failed to discharge the Duty prior to the Decision; k) A declaration that the Minister failed to act in a manner consistent with the Honour of the Crown in making the Decision; l) if necessary, an order allowing for an extension of time to make this application for judicial review; m) costs of this application; and n) such further relief as counsel may advise and this [ADDRESS] may deem just. [ 19 ] The material facts alleged by the Applicants may be summarized as follows. [ 20 ] The Applicants, all of whom except for the [NAME_8] are signatories of Treaty 9, are all members of the Wabun Tribal Council. They allege that the 2023 Agreement and the Decision to enter into it is unreasonable and incorrect for various reasons. [ 21 ] The Applicants allege that they have traditionally used and continue to use their traditional territory, which they define collectively as an irregular area stretching from Timiskaming in the East, Lake Superior in the West, North of Hearst and Kapuskasing in the North and slightly North of the North shore of Lake Huron in the South. The Applicants’ members are alleged to have lived and relied on the lands, waters and resources in their territory since time immemorial. [ 22 ] This territory and the ability of communities to self-govern themselves within it is one of the issues in this proceeding. [ 23 ] The Applicants plead that in 2017, the Crown and the Province of [NAME_1] recognized six historic [NAME_19], including the [NAME_43] [the [NAME_45]]. The [NAME_45] territory is alleged to lie almost entirely within the Applicants’ traditional territory. [ 24 ] The Applicants commissioned a report that they provided to the Minister that demonstrated that none of the six historic [NAME_19] recognized in 2017, including the [NAME_45], meet the test laid out by the Supreme Court of Canada in R. v. Powley , 2003 SCC 43 [ Powley ] to be recognized as [NAME_19]. The conclusion suggested from the Applicants’ report is that [NAME_13], and the communities that are comprised in it, are not in fact or in law proper [NAME_19] or Aboriginal Peoples. [ 25 ] The Applicants plead that Canada signed a [NAME_9] Government Recognition and Self-Government Agreement with [NAME_13] in 2019 [the 2019 Agreement] without consulting the Applicants. The 2019 Agreement is alleged to have set out a path to recognize [NAME_13] as a [NAME_9] government with jurisdiction over core governance matters and territories as identified and described in the 2019 Agreement. [ 26 ] The Applicants allege that they and multiple other First Nations in [NAME_1] wrote to the Prime Minister and to involved ministers between August 31, 2022, and January 2023 to alert them and outline what they considered would negatively affect their Section 35 Rights following the recognition of the [NAME_45]. They also communicated their objection to the recognition of [NAME_14] as Aboriginal Peoples and requested that they be meaningfully consulted with respect to any such recognition, and, that Canada question the evidence substantiating such recognition. [ 27 ] Aside from the absence of consultation with them, the Applicants allege that the Crown’s recognition and inclusion of the [NAME_45] as a [NAME_9] community is contrary to the Applicants’ Section 35 Rights. They also plead that the 2023 Agreement is contrary to their Section 35 Rights because it gives the [NAME_45] and [NAME_14] rights to and governance over the Applicants’ described traditional territory by including territory claimed by the [NAME_45] as part of the “[NAME_10]” as defined in the 2023 Agreement itself. [ 28 ] The Applicants’ AAJR sets out allegations as to what the Applicants allege the 2023 purports to do. They plead that the 2023 Agreement follows and builds on the 2019 Agreement, and that it irreparably harms the Applicants’ rights, at least, by: a) increasing competition for resources in the Applicant’ traditional territory by allowing all [NAME_46], a larger population by orders of magnitude, to claim harvesting rights in the Applicants’ traditional territory; b) worsening significant cumulative impacts and the Applicants’ ability to continue their traditional way of life, as promised to the Treaty 9 Applicants in the Treaty; c) in part as a result of (a) and (b), creating severe conservation challenges for the lands, waters and resources on which the Applicants rely; d) eroding the Applicants’ own rights by offering equivalent rights to people who are not required to demonstrate continuity between a historical Indigenous group and modern community; and, e) creating confusion for other levels of government and proponents operating in the Applicants’ traditional territory as to who the relevant rights-holders are for the purposes of consultation and accommodation, including when negotiating Impact Benefit Agreements, which are a tool used to prevent and reduce impacts to the First Nations’ s.35 Rights. [ 29 ] The Applicants allege that they have standing to bring [NAME_20] because they are each directly and adversely affected by the 2023 Agreement. They allege various bases for how they are affected, including that no [NAME_9] community was present on their traditional territory at the time of effective European control over the same. [ 30 ] The Applicants also allege having public interest standing to bring [NAME_20], and that [NAME_20] raises serious and justiciable issues including the Minister’s authority to make the decision to enter into the 2023 Agreement. [ 31 ] As to the specific grounds of review pleaded, the Applicants allege that the Minister’s decision to enter into the 2023 Agreement was unlawful and should be reviewed on the standard of correctness because it involves Section 35 Rights and questions of central importance to the judicial system as a whole. [ 32 ] They also plead that the Minister’s decision, or parts of it, was a determination of the scope of Section 35 Rights and was incorrect for a variety of identified reasons, least of which is that the Crown determined that [NAME_14] communities are Aboriginal Peoples capable of holding Section 35 Rights, did so without engaging in a Powley analysis for each community, and it erred in law by incorrectly conflating [NAME_46] with mixed-race individuals who self-identify as [NAME_9]. [ 33 ] The Applicants plead in the alternative that the Minister’s decision to enter into the 2023 Agreement was unreasonable for similar reasons to those alleged in connection with their argument that the decision was unlawful. They also allege that the Minister’s decision is incoherent and contains no rational chain of analysis, is not supported by the facts, and to the extent that it was discretionary, was an unreasonable exercise of Ministerial discretion. [ 34 ] In this sense, the Applicants plead that the Minister’s decision is akin if not precisely and adjudicative decision that may be made by an administrative decision maker in the usual course of the administrative state despite the fact that no actual decision with reasons of any kind, or any adjudicated result, is alleged to have been made. The only decision alleged is the decision to sign the 2023 Agreement. [ 35 ] The Applicants also allege that in making the decision to sign the 2023 Agreement, the Minister failed to consider international law principles of self-determination and thereby acted unreasonably. [ 36 ] The Applicants allege that the Minister reached the decision to enter into the 2023 Agreement reached in a manner that was procedurally unfair to them despite having had notice from them that they claimed a direct interest in the decision due the adverse impacts the 2023 Agreement would have on their constitutionally protected rights. [ 37 ] Finally, the Applicants allege that the Minister breached the duty to consult and to accommodate, and failed to conduct himself in a manner that is consistent with the Honour of the Crown in its dealings with the Applicants as [NAME_21]. B. The real essence of [NAME_15] [ 38 ] Having considered the content of [NAME_15] holistically, the Court concludes that the real essence of the relief sought by the Applicants is the invalidation of the 2023 Agreement. They seek the invalidation of the 2023 Agreement based on their own interpretation of what the 2023 Agreement purports to do or permits in connection with their traditional territory. [ 39 ] [ADDRESS] observes that the Applicants do not allege that they took any litigation steps in connection with the agreements between the [NAME_13] entered into in 2017 and 2019 or with the steps that led to them. [ADDRESS] also observes that the 2019 Agreement remains untouched and is not a target of the Applicants’ claims despite that the 2019 Agreement and all that it sets out appears from the wording of the 2023 Agreement to remain in force between [NAME_13] and the Crown regardless of the outcome of this proceeding. That predecessor yet still in force agreement and the negotiations pertaining to it are alleged as material facts that occurred over the Applicants’ occasional objections. [ 40 ] The common threads throughout [NAME_15] are the allegations that: a) the 2023 Agreement is the result of a decision that is reviewable by this Court and falls within the scope of the FCA ; b) the 2023 Agreement was entered into in breach of the Crown’s duty to consult Applicants; and, c) the Applicants believe that there is a territorial component to the 2023 Agreement that affects their Section 35 Rights in and to their traditional territory. [ 41 ] Because the 2023 Agreement is incorporated by reference into [NAME_15], the Court must carefully review its content to determine whether the allegations made by the Applicants with respect to its content and its likely or possible effects on their alleged rights is consistent or at odds with the wording of the 2023 Agreement. If they are at odds, then it would appear that the allegations made in [NAME_15], and the relief sought may be doomed to fail as the document the Applicants rely on as the basis of their allegations might not support their key allegations of material fact. [ 42 ] Much was made of the interpretation of the 2023 Agreement during the hearing of [NAME_13]’s motion. Each party sought to propose an interpretation of the 2023 Agreement and the Applicants suggested that the Court should provide an interpretation of the 2023 Agreement in these reasons. [ 43 ] It is not the Court’s function to interpret the 2023 Agreement in a determinative manner on this motion. That is a function for the merits judge. It is proper for the Court to consider the 2023 Agreement and to consider whether it is ambiguous and requiring interpretation, or is unambiguous and not requiring interpretation to be understood and applied. If the 2023 Agreement is unambiguous and does not require interpretation, then it may be relied upon as the measure against which the Applicants’ allegations of material fact in support of the application may be considered to determine whether [NAME_15] is doomed to fail. If the 2023 Agreement is ambiguous and may be interpreted in different ways, then that might support a finding that it is not plain and obvious that the Applicants’ AAJR is doomed to fail because its allegations of material fact would at least be arguable.

IV. The affidavit evidence on this motion [ 44 ] [NAME_13] and the Applicants tendered affidavit evidence on this motion. [ 45 ] As a general rule and subject to limited exceptions that do not apply here, affidavit evidence is generally not admissible in support of a motion to strike applications for judicial review ( [NAME_22] , at para. 52). An exception to this general rule is that an affidavit merely appending a document referred to and incorporated by reference into a notice of application is admissible for the assistance of the Court ( [NAME_22] , at para 54). [ 46 ] [NAME_13]’s main affidavit is brief and serves largely to append documents referred to and incorporated by reference into AAJR. Given the limits of admissible affidavit evidence on a motion to strike an application for judicial review, I find that the affidavit of [NAME_47] is admissible and may be considered on this motion insofar as it serves to introduce the following documents that are incorporated by the reference into [NAME_15] as a result of the allegations set out in [NAME_15]: a) Exhibit A to the [NAME_49] affidavit, being the “Joint Press Release, [NAME_1] and [NAME_13] announce identification of historic Metis communities,” [NAME_11] and the Government of [NAME_1] (22 August 2017), which is referred to at paragraph 15 of [NAME_15]; b) Exhibit B to the [NAME_49] affidavit, being the 2019 Agreement, which is referred to at paragraph 16 of [NAME_15]; c) Exhibit E to the [NAME_49] affidavit, being the 2023 Agreement, which is referred to repeatedly in [NAME_15]; d) Exhibit G to the [NAME_49] affidavit, being a copy of Treaty No. 9 and is referred to at a number of paragraphs of [NAME_15]; and, e) Exhibit H to the [NAME_49] affidavit, being the United Nations Declaration on the Rights of Indigenous Peoples , adopted by the United Nations General Assembly on October 2, 2007 [UNDRIP]. [ 47 ] Following a virtual case management conference held in connection with this motion, the Court granted leave to [NAME_13] to deliver a supplemental motion record that contains various documents related to and include Bill C-53. Bill C-53 is the legislation titled, “ An Act respecting the recognition of certain Metis Governments in Alberta, [NAME_1] and [NAME_50], to give effect to treaties with those governments and to make consequential amendments to other Acts ” that was been introduced in the House of Commons on June 21, 2023. The Applicants seek injunctive relief to prohibit the introduction and adoption of Bill C-53 by Parliament. Bill C-53 had not been introduced at the time of [NAME_15], and it is not specifically referred to in [NAME_15].

Accordingly, Bill C-53 and its related documentation are not properly admissible documents on this motion. They shall be disregarded for the purposes of this Order. [ 48 ] The Applicants recognized during the hearing of this motion that much of their tendered evidence was not admissible. [ADDRESS] granted the Applicants leave to withdraw the affidavit of [NAME_51] affirmed on July 25, 2023, and to serve and file a fresh affidavit, the affidavit of [NAME_54] sworn August 8, 2023, mid-hearing, under reserve of any objection or submission in that affidavit’s regard by [NAME_13] and [NAME_16]. As determined and ordered during the hearing, the affidavit of [NAME_54] sworn August 8, 2023, was admitted into evidence except for its Exhibits G, H and I that are inadmissible pursuant to [NAME_22] , and, in event, were not relied upon by the Applicants during the hearing. [ 49 ] The exhibits to the [NAME_56] affidavit that are admissible on this motion and are incorporated by reference into [NAME_15] are: a) Exhibit A to the [NAME_56] affidavit, being a copy of the “Historic Abitibi-[NAME_9] Community” Final Report dated September 1, 2022, by [NAME_57], which is referred to at paragraph 17 of [NAME_15]; b) Exhibit B to the [NAME_56] affidavit, being emails from [NAME_60] to Minister of Crown-Indigenous Relations and to the Deputy Minister of Crown-Indigenous Relations and Northern Affairs dated August 31, 2022, which are referred to at paragraph 17 of [NAME_15]; c) Exhibit C to the [NAME_56] affidavit, being a copy of a letter dated September 28, 2022, from Chief Wabie of the [NAME_8] to then Prime Minister Trudeau, and is referred to paragraph 18 of [NAME_15]; d) Exhibit D to the [NAME_56] affidavit, being a copy of a letter dated September 28, 2022, from Chief Ray of the [NAME_5] to then Prime Minister Trudeau, and is referred to paragraph 18 of [NAME_15]; e) Exhibit E to the [NAME_56] affidavit, being a copy of a letter dated September 28, 2022, from [NAME_63] for the Chief of [NAME_1] to then Prime Minister Trudeau, and is referred to paragraph 18 of [NAME_15]; and, f) Exhibit F to the [NAME_56] affidavit, being a copy of a letter dated December 16, 2022, from [NAME_63] for the Chief of [NAME_1] to then Prime Minister Trudeau and is referred to paragraph 18 of [NAME_15].

V. Factual background from the motion materials [ 50 ] The Supreme Court of Canada set out the applicable test to determine [NAME_9] 35 Rights in Powley . As a result, through Powley, a [NAME_9] community in [NAME_1] centered in and around Sault Ste. Marie was recognized and a Section 35 [NAME_9] to hunt for food was recognized. Much like it had written in [NAME_67] v. [NAME_68], 1997 CanLII 302 (SCC), [1997] 3 SCR 1010, at paragraph 186 that it is through negotiated settlements, with good faith and give and take on all sides, reinforced by judgment of the Courts that reconciliation may be achieved, the Supreme Court of Canada suggested at paragraph 50 of Powley that a combination of negotiation and judicial settlement will more clearly define the contours of [NAME_9]. [ 51 ] Through a series of events described in the Appendix to the 2023 Agreement, various [NAME_19] in [NAME_1], through [NAME_13], and the Crown pursued negotiations post- Powley . The thrust and result of those negotiations is set out in the Appendix to the 2023 Agreement and need not be set out in any great detail here. Nevertheless, a brief summary of the result is helpful to understand the larger context in which the 2023 Agreement was negotiated and signed as well as the broader context in which the allegations set out in [NAME_15] are being made. [ 52 ] In 2017, [NAME_13], Canada, and [NAME_1] signed a Framework Agreement that set out the purpose of their negotiations as being to jointly develop a government-to-government relationship between the [NAME_19] in [NAME_1] represented by [NAME_13] that advances reconciliation between the parties consistent with the purpose of Section 35 of the Constitution Act, 1982, including by: i) recognizing [NAME_13] as a [NAME_9] government with decision-making authority over its own roles and functions, processes and relationships with its Citizens and Communities; ii) establishing processes wherein the collectively-held rights and credible claims of [NAME_19] in [NAME_1] represented by [NAME_13] may be determined, recognized and respected; and, iii) working towards reaching bilateral or trilateral arrangements that invest in, support and enhance the cultural, social, physical, emotional, spiritual and economic wellbeing of [NAME_19] in [NAME_1] represented by [NAME_13] and [NAME_1] [NAME_9] generally. [ 53 ] [ADDRESS] observes that there is no allegation by the Applicants in [NAME_20] or argument in their materials that the 2017 Framework Agreement was a decision by a Minister that could be subject to judicial review, or a decision that could trigger the Crown’s duty to consult the Applicants, or that the Applicants should have been consulted prior to the 2017 Framework Agreement being entered into. [ 54 ] In January 2018, an independent review of [NAME_13] system that was supported by [NAME_1] confirmed the reliability of [NAME_13] system for identifying [NAME_9] rights-holders consistent with the criteria set out in Powley . [ 55 ] In April 2018, following an independent review of [NAME_13] system, [NAME_13] and [NAME_1] signed the Framework Agreement on [NAME_9] that recognizes and accommodates [NAME_9] harvesting rights in various areas throughout the province. [ 56 ] [ADDRESS] observes there is no allegation by the Applicants in [NAME_20] that this 2018 Framework Agreement on [NAME_9] was a decision by a Minister that could be subject to judicial review, or a decision that could trigger the Crown’s duty to consult the Applicants, or that the Applicants should have been consulted prior to the 2018 Framework Agreement on [NAME_9] being entered into. [ 57 ] The Appendix to the 2023 Agreement further describes that Canada engaged intergovernmental relations, discussions, and negotiations with [NAME_13] that have led to common understandings being reached and consolidated through a series of agreements that advance reconciliation between [NAME_13] and Canada that include the following agreements, among others: a) a Consultation Agreement dated July 31, 2015; b) [NAME_13]-Canada Memorandum of Understanding on Advancing Reconciliation dated February 3, 2017; c) the Canada-[NAME_10] dated April 13, 2017; d) the 2017 Framework Agreement referred to above, dated December 11, 2017, and, e) [NAME_13]-Canada Interim Fiscal Financing Agreement dated February 26, 2021. [ 58 ] The 2019 Agreement was updated and completed by the 2023 Agreement. As provided by article 4.06 of the 2023 Agreement, the 2019 Agreement continues to operate between [NAME_13] and Canada except as provided in the 2023 Agreement. As is explained in the Preamble to the 2023 Agreement, the 2019 Agreement set out Canada’s recognition, upon signing the 2019 Agreement, that: a) [NAME_13] has been mandated to represent the [NAME_19] by [NAME_13], as that expression is defined in the agreements; b) the [NAME_19] by [NAME_13] have an inherent right of self-government that is protected by section 25 of the Charter and recognized and affirmed by Section 35; and, c) [NAME_13] has been mandated by the [NAME_19] by [NAME_13] to implement their inherent right to self-government. [ 59 ] The Applicants allege in [NAME_20] that the 2019 Agreement was signed without consulting the Applicants and that the 2019 Agreement set out a path to recognize [NAME_13] as a [NAME_9] government with jurisdiction over core governance matters. [ADDRESS] observes that the Applicants do not allege that the 2019 Agreement was a decision by the Minister that could be subject to judicial review, or a decision that could trigger the Crown’s duty to consult the Applicants, or that the Applicants should have been consulted prior to it being entered into. [ 60 ] One of the key features of the 2023 Agreement is that, as stipulated in its Part V, section 11.01, the Minister agreed to recommend the introduction in Parliament of legislation that has the following purpose and objectives: a) advancing the longstanding goal of the [NAME_69] for recognition of their unique identity, culture, and governance on a [NAME_3]-to-[NAME_3], government-to-government basis; b) contributing to the implementation of the UNDRIP; c) recognizing the [NAME_19] by [NAME_13]’s inherent right to self-determination, including the right of self-government recognized and affirmed by Section 35 and the [NAME_9] Government’s mandate and role in representing those [NAME_19] in [NAME_1]; and d) providing a legislative framework to give legal force and effect to the Treaty contemplated by, but not included in, the 2023 Agreement. [ 61 ] Another key feature of the 2023 Agreement is that [NAME_13] and Canada agreed to negotiate a self-government Treaty that is consistent with the 2023 Agreement and protected within the meaning of Section 35 of the Constitution Act, 1982 . [ 62 ] As is set out in the 2023 Agreement at its article 4.04, the 2023 Agreement is not a treaty.

VI. Issues [ 63 ] [NAME_13] seeks an Order striking [NAME_15] in its entirety and, in the alternative, an Order striking the non-justiciable issues and/or relief sought by the Applicants that the Court is of the opinion are doomed to fail or are an abuse of process. [ 64 ] [NAME_13] pleads in its notice of motion that [NAME_15] is doomed to fail because: 1) the Minister’s signature of the 2023 Agreement was not a decision; 2) the issues raised by the Applicants are not justiciable because: a) the decision to enter into the 2023 Agreement was a part of the legislative process; b) the decision to enter into the 2023 Agreement is not otherwise amenable to judicial review; c) the allegations in [NAME_15] disclose that the Crown’s duty to consult owing to the Applicants was not engaged; 3) the Applicants do not have standing and cannot be granted standing; 4) [NAME_15] is an abuse of process; 5) [NAME_15] constitutes a collateral attached on the 2017 [NAME_1]-[NAME_14]; and, 6) [NAME_15] attempts to invalidate Canada’s recognition of [NAME_13] and disprove [NAME_9] 35 Rights on judicial review. [ 65 ] These six grounds were narrowed considerably in [NAME_13]’s written representations. In its written representations, [NAME_13] framed four issues for consideration, specifically: a) [NAME_15] should be struck because the Applicants do not plead a reviewable decision; b) the 2023 Agreement that lay at the heart of [NAME_15] is part of the legislative process and is not subject to judicial review; c) [NAME_15] discloses no cause of action with a prospect of success because the 2023 Agreement represents high-level policy and purely political choices that are non-justiciable; and, d) [NAME_15] is an abuse of process and collateral attack. [ 66 ] While not announced as a separate issue to be considered, [NAME_13] argued in its written representations that [NAME_15] does not support a claim based on the Crown’s duty to consult. [ 67 ] [NAME_16] supports [NAME_13]’s motion and the arguments [NAME_13] has advanced while adding its own arguments without filing an independent notice of motion or seeking relief on its own. [ 68 ] [NAME_16] agrees with [NAME_13] that the Applicants do not have standing to challenge the 2023 Agreement because they are not “directly affected” by it within the meaning of section 18.1(1) of the FCA . [NAME_16] also argues that the Applicants’ proceeding is premature because it seeks to attack a decision concerning harvesting rights, which is a decision that has not yet been made. [ 69 ] The Applicants argue contrary to [NAME_13] and to [NAME_16]. In their view, the Minister’s decision as alleged is subject to judicial review, the issues they have pleaded in [NAME_20] are justiciable, it is not plain and obvious that the issues they raise regarding whether the Crown acted within its constitutional authority when it recognized the [NAME_19] represented by [NAME_13] as Section 35 rights-holders issues they raise pertaining to the Crown’s actions have no prospect of success, and that their proceeding does not constitute an abuse of process. [ 70 ] The Applicants also argue contrary to [NAME_16] that they have standing to bring their proceeding and that the matters they raise are justiciable and subject to judicial review.

VII. Arguments and Analysis A. Is it plain and obvious that there is no reviewable decision alleged in [NAME_15]? (1) [NAME_13] [ 71 ] [NAME_13]’s first argument in support of its motion to strike is that the Minister’s signature of the 2023 Agreement was made on the basis of [NAME_18] authority and is not a reviewable “decision” within this Court’s jurisdiction. [NAME_13] argues that the Minister’s signature of the 2023 Agreement was not a “decision” by the Minister acting as a “federal board, commission or other tribunal” as contemplated by section 18.1 of the FCA . Rather, [NAME_13] pleads that the Minister did not make any decision whatsoever, much less a reviewable one, because, as set out in article 17.06(b) of the 2023 Agreement, the 2023 Agreement was signed only after “approval by the federal [NAME_18] authorizing the Minister to sign this Agreement on behalf of Canada”. It follows in [NAME_13]’s argument that the decision at issue is not a ministerial decision as alleged by the Applicants, but a [NAME_18] decision to enter into the 2023 Agreement. [ 72 ] [NAME_13] also argues that the alleged decision is not a reviewable decision at all because it fails to affect legal rights, impose legal obligations, or cause prejudicial effects to the Applicants ( Air Canada v Toronto Port Authority , 2011 FCA 347 at paras 28–29). [ 73 ] [NAME_13] also argues while relying on [NAME_70]) v Canada (Public Safety & Emergency Preparedness) , 2020 FC 786 at paras 11–15, and [NAME_3] v Canada , 2017 FC 1049 at paras 30–32, that the Applicants seek to attack conduct that simply affirms the rights, obligations and effects of a previous decision (the decision to enter into the 2019 Agreement), does not represent a fresh exercise of ministerial discretion, and is therefore is not reviewable by this Court. [ 74 ] [NAME_13] also argues that the Applicants’ pleading that the Minister entered into the 2023 Agreement pursuant to the Department of Crown-Indigenous Relations and Northern Affairs Act , SC 2019, c 29, s 337, [ CIRNA Act ] must be rejected as based on a misreading of the CIRNA Act in light of the events. [NAME_13] argues that the requirement of [NAME_18] approval prior to signature by the minister takes the 2023 Agreement and its signature by the Minister outside of the CIRNA Act , and that paragraph 7(b) of CIRNA Act only permits the Minister to negotiate agreements, not to authorize them. [ 75 ] . To paraphrase [NAME_13], that the Minister held the pen to sign the 2023 Agreement does not lead to the conclusion that the Minister made a decision, particularly so when the Minister was but a delegate acting on the decision of the [NAME_18]. [NAME_15] is therefore, [NAME_13] argues, doomed to fail. (2) [NAME_16] [ 76 ] [NAME_16] concurs with [NAME_13] with respect to the content and determinative nature of the source of the “decision making” or contracting authority set out at article 17.06(b) of the 2023 Agreement, but pleads further and slightly different grounds to establish that [NAME_15] is bereft of any possibility of success. [ 77 ] [NAME_16] argues that [NAME_15] is entirely premised on two incorrect allegations. The first is the allegation that the decision to enter the 2023 Agreement was an adjudicative decision concerning the existence and scope of Section 35 Rights, which it was not. The second is that the Applicants assert that the 2023 Agreement will allow [NAME_71] to claim harvesting rights in the Applicants’ traditional territory, which the 2023 Agreement will not do because is it limited to being a self-government agreement without any suggestion of harvesting or other territorially based rights. [ 78 ] [NAME_16] argues that the 2023 Agreement is not an adjudicative decision but a governance arrangement that is the result of Canada’s political decision based on a variety of policy considerations. The decision to enter into the 2023 Agreement is therefore not the type of decision that is amenable to review on substantive grounds. (3) The Applicants [ 79 ] The Applicants assert forcefully that they are challenging the Minister’s decision to sign and enter into the 2023 Agreement because the 2023 Agreement has purported to create new Section 35 Rights holders without any factual support for such determination, and that the Minister’s decision was made in the ordinary exercise of the government’s statutory powers as set out in sections 6 and 7 of the CIRNA Act . [ 80 ] The Applicants argue that it was the Minister who made the decision to sign the 2023 Agreement notwithstanding that the 2023 Agreement requires “approval by the federal [NAME_18] authorizing the Minister to sign this Agreement on behalf of Canada”. The Applicants rely on Huron-[NAME_3] of [NAME_72] v. Canada , 2014 FC 1154 [ [NAME_72] ] for the proposition that a Minister’s decision to enter into an agreement with an indigenous group is subject to judicial review in the usual course, including on grounds of the Minister’s failure to consult. [ADDRESS] observes that [NAME_72] was explicitly concerned with rights to land. [ 81 ] The Applicants also argue that [NAME_13]’s argument that the Minister made no decision at all merely because [NAME_18] approval was required has no basis in the record, or in law, and must be rejected. The Applicants argue that their allegation that the Minister made a decision independently of any [NAME_18] approval remains arguable notwithstanding [NAME_13]’s argument. In any event, they argue, if the decision to be attacked is one that was made by [NAME_18] rather than by the Minister, then the Applicants ought to be permitted to further amend [NAME_20] to plead the correct decision to be reviewed. (4) Analysis and conclusions [ 82 ] [ADDRESS] is concerned with the issue of whether the Applicants’ allegations as to the decision to be reviewed as set out in [NAME_15] are arguable or bereft of any possibility of success. [ 83 ] The first argument by [NAME_13] is that the alleged ministerial decision is not reviewable because whatever ministerial decision may have been made, it fails to affect legal rights, impose legal obligations, or cause prejudicial effects to the Applicants because the real decision at issue was a [NAME_18] decision. While the Court is prepared to accept that [NAME_13] may lead evidence and documentation on the merits that would substantiate its argument that the decision at issue is a [NAME_18] rather than a ministerial decision, [NAME_13]’s argument speaks to the merits rather than to the sufficiency of the Applicants’ AAJR allegations regarding the “decision” to be reviewed. The argument does not show that that Applicants’ allegations that a ministerial decision as alleged is unarguable or doomed to fail; it shows that [NAME_13] has arguments to make against them on the basis of evidence and arguments that are to come as to the decision that was made. [ 84 ] The Applicants allege that the Minister’s decision to enter into the 2023 Agreement is reviewable because it involved the Minister’s exercise of their statutory authority to enter into agreements with Indigenous peoples pursuant to paragraph 7 of the CIRNA Act . [NAME_13] disagrees. [ 85 ] Sections 6 and 7 of the CIRNA Act read as follows: Powers, Duties and Functions of Minister Attributions ministérielles Powers, duties and functions Compétence générale 6 The Minister’s powers, duties and functions extend to and include all matters over which Parliament has jurisdiction — and that are not by law assigned to any other department, board or agency of the Government of Canada — relating to relations with Indigenous peoples. 6 Les attributions du ministre s’étendent d’une façon générale à tous les domaines de compétence du Parlement non attribués de droit à d’autres ministères ou organismes fédéraux en ce qui a trait aux relations avec les peuples autochtones. Responsibilities Responsabilités 7 The Minister is responsible for 7 Le ministre est chargé : (a) exercising leadership within the Government of Canada in relation to the affirmation and implementation of the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982  and the implementation of treaties and other agreements with Indigenous peoples; a) d’assumer un rôle de premier plan au sein du gouvernement du Canada en ce qui a trait à la confirmation et à la mise en œuvre des droits des peuples autochtones reconnus et confirmés par l’article 35 de la Loi constitutionnelle de 1982 et à la mise en œuvre des traités et autres accords conclus avec ces peuples; (b) negotiating treaties and other agreements to advance the self-determination of Indigenous peoples; and b) de négocier des traités et autres accords pour favoriser l’autodétermination de ces peuples; (c) advancing reconciliation with Indigenous peoples, in collaboration with Indigenous peoples and through renewed [NAME_3]-to-[NAME_3], government-to-government and Inuit-Crown relationships. c) de favoriser la réconciliation avec ces peuples, en collaborant avec eux et grâce à des relations renouvelées de [NAME_3] à [NAME_3], de gouvernement à gouvernement et entre les Inuits et le Canada. [ 86 ] The Minister clearly has statutory powers to exercise and some discretion in exercising them in connection with agreements to advance the self-determination of Indigenous peoples and advancing reconciliation with Indigenous Peoples, in collaboration with Indigenous Peoples and through renewed [NAME_3]-to-[NAME_3], government-to-government relationships. [ 87 ] Whether the 2023 Agreement was entered into by Canada following a decision by the Minister made in the performance of his powers pursuant to the CIRNA Act , as alleged by the Applicants, or after a decision by [NAME_18], as is argued by [NAME_13], or after seeking policy authority from [NAME_18] only to then sign the 2023 Agreement without the need for any further approvals or authorizations as is argued by [NAME_16], is not clearly answered by the documents incorporated by reference into [NAME_15] remains an arguable question. [ 88 ] The answer to that question will likely turn on the interpretation of the signing provision contained at article 17.06 of the 2023 Agreement in light of an appropriate record regarding the approval and signature of the 2023 Agreement, and a determination of whether the minister’s signature on behalf of Canada falls within the scope of sections 6 and 7 of the CIRNA Act . A further sub-issue will also likely arise from the question of whether the minister’s or the [NAME_18]’s actions in approving or signing the 2023 Agreement constitutes conduct that falls within the ambit of section 2 of the FCA and of its definition, as interpreted by the jurisprudence, of a federal board, commission or other tribunal, so as a to constitute a reviewable decision or matter at all. [ 89 ] The jurisprudence relied upon by [NAME_13] in connection with this first argument does not assist it in demonstrating that [NAME_15]’s allegations with respect to the existence of a reviewable ministerial decision are bereft of any chance of success. [NAME_13]’s first argument is not persuasive. B. The 2023 Agreement that lay at the heart of [NAME_15] is part of the legislative process and is not subject to judicial review (1) [NAME_13] [ 90 ] [NAME_13] argues that the 2023 Agreement is part of the legislative process intended to lead to the tabling and adoption of legislation to implement the agreements achieved throughout Canada’s negotiations with [NAME_13]. [ 91 ] [NAME_13] argues that the 2023 Agreement, and in particular its Chapter 11, reflects that the 2023 Agreement and its included policy choices are part of the legislative process that animated the 2023 Agreement and shows that the relief sought by the Applicant is but an effort to stop legislation and not a proper matter for judicial review. [ 92 ] T he [NAME_14] relies upon [NAME_73] First [NAME_3] v. Canada (Governor General in Council) , 2018 SCC 40, at paragraphs 18, 54, 101 and 148 [ [NAME_73] ] for the proposition that the FCA does not allow for the judicial review of parliamentary activities, that [NAME_18] and ministers do not act pursuant to statutory powers when they are developing legislation, and that they are not acting as a federal board within the meaning of section 2 of the FCA when they are developing legislation. [NAME_13] argues that the legislative process includes upstream policy development and choices taken by government officials and ministers ( [NAME_73] at paras 32–33, 40, 50, 119–121, 164, 169–170). That the 2023 Agreement forms part of the legislative process is clear, argues [NAME_13], from the progression in the negotiation of federal recognition legislation as explained in paragraph Q of the 2023 Agreement’s preamble, which reads: Q. This Agreement consolidates and confirms the common understandings reached between the Parties, contemplates Implementation Legislation to recognize the [NAME_9] Government in Federal Law, and sets out commitments, criteria, and a process for negotiations to recognize the [NAME_19] by [NAME_13]’s self-government in a Treaty. [ 93 ] [NAME_13] argues that the content of the intended legislation is set out in great detail in Chapter 11 of the 2023 Agreement, and is referenced in almost every chapter of the 2023 Agreement and is interwoven throughout. [ 94 ] [NAME_13] argues that the common ground reached on the policy choices that are contained in the 2023 Agreement were preliminary steps that animate, inform, and underlie the preparation of a memorandum to [NAME_18] that would and did lead to “Implementation Legislation” contemplated by Chapter 11 of the 2023 Agreement. [NAME_13] argues that the 2023 Agreement set out on its face that Canada’s jurisdiction and source for the jurisdiction to enter into the 2023 Agreement is Canada’s constitutional responsibility to advance relationships with Indigenous Peoples under s. 91(24) of the Constitution Act, 1867 . [ 95 ] [NAME_13] argues that the 2023 Agreement advances Canada’s relationship with Aboriginal Peoples through policy choices and a commitment to introduce legislation to implement those choices and recognize [NAME_13]. The agreement itself does not create pre-existing Section 35 [NAME_9] rights but commits Canada to a policy of advancing its relationship with [NAME_13] by dealing with it on the basis that it represents a [NAME_9] collectivity that has rights. [ 96 ] [NAME_13] argues that the interrelated policy options and recommendations that were co-developed between [NAME_13] and federal officials and set out in the 2023 Agreement that were proposed by the Minister to [NAME_18], and ultimately approved by [NAME_18], cannot be “parsed out” from the legislative process from which they came. All of these “steps” are a part of the legislative process, and all are beyond this Court’s jurisdiction. (2) [NAME_16] [ 97 ] [NAME_16] did not make any particular submissions on [NAME_13]’s argument that the 2023 Agreement is part of the legislative process. (3) The Applicants [ 98 ] The Applicants argue that [NAME_13]’s argument that the 2023 Agreement is part of the legislative process misreads [NAME_73] and reflects a misunderstanding of the scope of section 18.1 of the FCA . [ 99 ] The Applicants argue that [NAME_13] conflates the obligations set out in the 2023 Agreement rather than consider them distinctly. The Crown’s agreement to recommend legislation pursuant to Chapter 11 of the 2023 Agreement does mean that the remainder of the 2023 Agreement forms part of the legislative process to make the underlying decision to enter into the 2023 Agreement immune from judicial review. [ 100 ] The Applicants argue that the law-making process described by the Supreme Court of Canada in [NAME_73] at paragraphs 32, 117 and 160 excludes the entry into agreements with private parties and entails, as described alternatively by various justices of Supreme Court of Canada, “the development, passage, and enactment of legislation”, those steps taken “from initial policy development to and including royal assent”, or the preparation of analyses, plans, the exploration of policy options, recommendations to [NAME_18] and the involvement of a [NAME_18]. In the Applicant’s argument, the entire legislative process is internal to the federal government and does not sweep external negotiations and agreements with private parties. (4) Analysis and conclusion [ 101 ] As is the case with [NAME_13]’s first argument, this second argument speaks to the merits rather than to the sufficiency of the Applicants’ AAJR allegations of material fact necessary to show that the Court can and should grant they relief sought. [ 102 ] A determination of whether the 2023 Agreement falls within a larger legislative process contemplated by [NAME_18] and the Federal government such as to make the matter non reviewable on judicial review requires the Court to make determinations regarding the process followed by [NAME_13], the Minister and [NAME_18] in light of the entirety of the discussions and negotiations between [NAME_13] and the Federal government summarized in the Preamble and the Appendix to the 2023 Agreement. This will require the consideration of an evidentiary record that has not been produced on this motion that will speak to the legislative process described in [NAME_73] and how such a process was followed in connection with [NAME_14]. [ 103 ] While it may be that a proper record will reveal that the 2023 Agreement and the decision to enter into it, whether by the Minister or by [NAME_18], is but part of the legislative process as contemplated by [NAME_73] , it is not plain and obvious from the allegations set out in AAJR accepting its allegations as true that the grounds alleged in connection with the alleged decision are bereft of any possibility of success. C. The 2023 Agreement represents high-level policy and purely political choices that are non-justiciable and [NAME_15] discloses no reasonable cause of action as a result (1) [NAME_13] [ 104 ] [NAME_13] argues that, to the extent that the development, signing, and implementation of the 2023 Agreement are not a part of the legislative process, they reflect [NAME_18]’s high-level policy and purely political, executive-type choices, and are not justiciable. [ 105 ] [NAME_13] relies on [NAME_27] v Canada (Foreign Affairs and International Trade Canada) , 2015 FCA 4 at para 66 [ [NAME_26] ] and its statement that exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. [NAME_13] argues that how Canada chooses to recognize an Indigenous people, collectivity or community, and their chosen representative, is an executive type of decision that is “beyond the Court’s ken or capability, taking the courts beyond their proper role within the separation of powers.” [NAME_13] also relies upon [NAME_74] v Canada , 2023 FC 126 at paras 58, 67 and [NAME_75] v Canada , 2018 FC 11 at para 30, in support of its argument. [ 106 ] [NAME_13] also argues that Canada’s policy choices given form in the 2023 Agreement do not create any Section 35 Rights. [NAME_13] argues that the 2023 Agreement commits Canada to a policy of recognizing [NAME_13] as a [NAME_9] government that has jurisdiction over its internal governance and that represents a [NAME_9] collectivity that has the rights and interests as set out in a bilateral contract. While future decisions made under the agreement might be reviewable, if they adversely impact or infringe the rights of another Indigenous community, the high-level policy and purely political recognition set out in the agreement do not ( Canada (AG) v PHS Community Services Society , 2011 SCC 44, at para 105). [ 107 ] [NAME_13] argues that Canada’s policy choices about how it will recognize and deal with [NAME_13] based on the 2023 Agreement therefore do not engage procedural fairness because there is no adjudicative conduct. (2) [NAME_16] [ 108 ] [NAME_16]’s submission as to non-justiciability differs somewhat from [NAME_13]’s argument in that [NAME_16] argues that the 2023 Agreement is a political and governance arrangement that was negotiated on a [NAME_3]-to-[NAME_3] and government-to-government basis. Assessing the wisdom of Canada’s decision to enter into it is clearly beyond the court’s ken or capability and is clearly not justiciable ( [NAME_26] at para 66). [ 109 ] In executing the Agreement on behalf of the Crown, the Minister was not a simple administrative decision-maker acting pursuant to delegated statutory authority. Rather, the decision to enter the Agreement was a political decision and an exercise of the Crown’s prerogative powers concerning its [NAME_3]-to-[NAME_3], government-to-government relations with Indigenous Peoples. [ 110 ] [NAME_16] argues that the Applicants incorrectly seek to frame the decision to enter into the 2023 Agreement as a justiciable one by characterizing it as an exercise of delegated statutory authority and the adjudication of Section 35 Rights when it is nothing of the sort. [ 111 ] [NAME_16] argues that the Crown is free to recognize rights that a court would not recognize in the context of a litigated dispute ( Mahe v. Alberta, [1990] 1 SCR 342 at 379), and that the legality of a negotiated agreement such as the 2023 Agreement does not turn on its conformity with how a court might decide the issue in the context of a judicial proceeding. Indeed, argues [NAME_16], courts should take a highly non-interventionist approach with respect to the negotiation, interpretation and implementation of modern agreements between the Crown and Aboriginal peoples ( Mohawks of the Bay of [NAME_76] v. Canada (Indian Affairs), 2013 FC 669 at paras 44-48; [NAME_50] (Attorney General) v. [NAME_77] , 2023 FCA 105, at paras 127-131; [NAME_78] v. [NAME_80] , 2017 SCC 58, at para 33). [ 112 ] [NAME_16] argues that while the 2023 Agreement is not a treaty, it contemplates and lays the groundwork for the negotiation of a future treaty that will ultimately replace the 2023 Agreement. Finding that the 2023 Agreement is amenable to review on substantive grounds, at the behest of unaffected third parties, [NAME_16] argues, would have a chilling effect on negotiations between the Crown and Indigenous peoples. It would signal that the purpose of negotiation is to mimic the judicial process, and the legality of agreements can be challenged by third parties, not only for a violation of their rights, but for failing to address claims as a court might if the matter had been litigated. [ 113 ] [NAME_16] concedes, however, that the 2023 Agreement may be reviewable for the review of its legality, whether it unjustifiably infringes the Applicants’ s. 35 Rights, whether Canada owed and breached a duty to consult, or breached any other legal duty flowing from the honour of the Crown that may be owed to the Applicants in this specific context. (3) The Applicants [ 114 ] The Applicants’ argument does not align neatly with [NAME_13] and [NAME_16]’s argument. [ 115 ] [NAME_13] and [NAME_16] argue that the 2023 Agreement is not justiciable because it reflects high-level policy choices. The Applicants consider the non-justiciability argument advanced by the Respondents as being an argument directed to the non-justiciability of the alleged ministerial decision to enter into the 2023 Agreement. [ 116 ] The Applicants argue that the ministerial decision to recognize groups as capable of holding Section 35 Rights through the 2023 Agreement when the Constitution says otherwise is matter of law, not of policy, and is clearly justiciable. The Applicants argue that [NAME_15] pleads at its paragraphs 37 to 63 that the minister’s decision to enter the 2023 Agreement was unlawful and unreasonable; was made without procedural fairness to the Applicants; and breached the minister’s honourable obligations and duty to consult and accommodate the First Nations. The reasonableness, procedural fairness, and constitutionality of the Minister’s actions, and whether the First Nations have legal rights to be consulted are squarely at the core of what courts do. [ 117 ] These questions, the Applicants argue, can be resolved with the application of law and are justiciable. [ 118 ] The Applicants take the same general position and make the same argument in connection with allegations with respect to the duty to consult: it is not beyond the Court’s capability to assess whether the duty to consult was engaged by the Minister’s Decision, and if so, whether that duty had been satisfied ( [NAME_26], at paras 69-70). [ 119 ] They also argue that [NAME_20] raises significant issues about whether the Crown acted within the bounds of its constitutional authority when it recognized the “[NAME_19] represented by [NAME_13]” as Section 35 rights-holders through the 2023 Agreement. It is sufficient at this point in the litigation for [NAME_15] to raise an arguable issue and the Applicants argue that they have done so. (4) Analysis and conclusions [ 120 ] The asymmetry in the parties’ respective position on the justiciability issue is explained by their apparent respective understanding of what is alleged in [NAME_15]. That asymmetry does not distract from the Court’s focus on whether or not the Respondents have shown through their arguments on the policy driven nature of the 2023 Agreement that the allegations set out in [NAME_15] fail to allege the core elements of a case that has a chance of success. [ 121 ] The 2023 Agreement explicitly sets out at its article 4.04 that it is not a treaty as contemplated by Section 35. Rather, as set out in its articles 1.01, 3.01 and 4.01, the 2023 Agreement is a Self-Government Recognition and Implementation Agreement that in includes its Preamble and Appendix. It is an agreement that builds on the [NAME_9] Government Recognition and Self-Government Agreement signed by the Parties on June 27, 2019, without replacing it as it continues in accordance with its terms pursuant to article 4.08 of the 2023 Agreement. The 2023 Agreement has the purposes pursuant its paragraph 3.01(a) to contribute to the implementation of UNDRIP as it relates to the [NAME_19] by [NAME_13]’s inherent right to self-determination, including the right of self-government. It also has the purpose as set out in its paragraph 3.01(e) to provide a foundation for addressing, on a government-to-government basis, the identification, assessment, and resolution of outstanding [NAME_9] claims against Canada. [ 122 ] The 2023 Agreement, as set out in its Preamble, follows on the Canada’s efforts to deal with [NAME_9], interests, and claims based on the Prime Minister of Canada’s mandate letter to the Minister of Indigenous and Northern Affairs in November 2015 to “work, on a [NAME_3]-to-[NAME_3] basis, with the [NAME_10] to advance reconciliation and renew the relationship, based on cooperation, respect for rights, our international obligations, and a commitment to end the status quo,” the Canada-[NAME_10] , and the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. It also provides for the recommendation of legislation to implement, among others, a legislative framework to give legal force to the Treaty that is contemplated by but not included in the 2023 Agreement. [ 123 ] Chapter 17 of the 2023 Agreement sets out at its article 17.04 that the Minister is the person intended to receive any communication intended for Canada and the King pursuant to the agreement, and at article 17.06 that the agreement will be signed by Canada and [NAME_13] “after approval by the federal [NAME_18] authorizing the Minister to sign” the 2023 Agreement on behalf of Canada. [ 124 ] [NAME_16]’s argument that the 2023 Agreement is a political and governance arrangement that was negotiated on a [NAME_3]-to-[NAME_3] and government-to-government basis is without doubt accurate considering the various policy directions explicitly set out in the 2023 Agreement and referred to in the paragraphs above. [NAME_13] and [NAME_16]’s arguments that 2023 Agreement contain executive-type policy decisions are also likely accurate. However, these two propositions, directed at the content of the 2023 Agreement, do not insulate the legality of the decision to enter into the 2023 Agreement from judicial review. The legality of that decision is what the Applicants have alleged is one of the bases of [NAME_20]. [ 125 ] At paragraph 63 of [NAME_26], the Federal Court of Appeal agreed with the statement that an act of the executive in pursuance of a statutory or prerogative power that affects the rights of a citizen remains justiciable. While the Court acknowledges that executive decisions to sign a treaty or similar agreement without more are not justiciable as reviewing them takes courts beyond their proper role in the separation of powers ( [NAME_26] , at paras 67 and 68), it remains that an executive decision to bring an agreement into effect allegedly in breach of another’s enforceable legal rights remains justiciable ( [NAME_26] , at para 69). That is precisely what the Applicants have alleged in [NAME_20]. [ 126 ] [NAME_13] and [NAME_16] have not persuaded me that their arguments as to the justiciability of the content of the 2023 Agreements based on policy and high-level policy choices demonstrates that the Applicants’ allegations that the decision to enter into the 2023 Agreement was made unlawfully and in breach of the Applicants’ rights is bereft of any chance of success. D. [NAME_15] and the Applicants’ alleged standing is an abuse of process and a collateral attack (1) [NAME_13] [ 127 ] [NAME_13] argues that the Applicants have no standing as of right with respect to the 2023 Agreement because they are not a party to it. [NAME_13] argues that the Applicants have also not pleaded any basis for their alleged public interest standing to contest the 2023 Agreement. [ 128 ] [NAME_13] argues that the Applicants cannot be granted standing in a judicial review proceeding to obtain orders and declarations to quash Canada’s recognition of [NAME_13] in the 2023 Agreement, and to effectively disprove the potential existence of [NAME_9] 35 Rights in Treaty 9 territory ( [NAME_81] v [NAME_68] (Forests, Lands and Natural Resource Operations) , 2017 SCC 54 at para 84). [ 129 ] Similarly, [NAME_13] argues that the Applicants have no standing to seek declaratory orders that disprove the rights of others ( Canada v. [NAME_83] 1(A), 2023 FCA 120, at para 60). [NAME_13] highlights that the Applicants are seeking declaratory orders to quash an agreement they are not parties to, to disprove [NAME_9] rights, to overturn the recognition provides to [NAME_13] in the 2023 Agreement, and seek to redefine the “[NAME_9]” expression that is defined in the 2023 Agreement. These are all abuses of process, pleads [NAME_13], and ought not to be permitted. (2) [NAME_16] [ 130 ] [NAME_16] agrees with [NAME_14] and presents a more detailed argument to demonstrate that the Applicants are not “directly affected” by the decision to enter into the 2023 Agreement and therefore have no standing pursuant to subsection 18.1(1) of the FCA to seek judicial review of the decision to enter into the 2023 Agreement. Further, [NAME_16] argues that the Applicants do not have public interest standing to seek judicial review of the decision to enter into the 2023 Agreement. [ 131 ] [NAME_16] argues the Applicants must plead facts that, if true, establish the that the decision to enter into the 2023 Agreement effects their legal rights, imposes legal obligations on them, or prejudicially affects them in some way for them to “directly affected” as is required by the FCA . Additionally, to ground private interest standing, the “directly affected” test requires more than a potential or possible impact. Standing as of right only arises where a person has been or will be directly affected by the decision being challenged ( League for Human Rights of [NAME_84] Canada v Canada, 2008 FC 732 at paras 24-26 (aff’d: 2010 FCA 307 at para 58 [ [NAME_84] ]). [ 132 ] [NAME_16] further argues that the issue of standing cannot be assessed in a general or abstract manner. Rather, standing must be determined in the context of each specific ground of review at issue ( [COMPANY_36]. v. Canada (Attorney General), 2009 FCA 116 [ [NAME_37] ] at para 28). In this case, the Applicants raise three grounds of review: a) substantive review for correctness or reasonableness; b) breach of the duty of procedural fairness; and c) breach of the duty to consult, and each must be considered separately. [ 133 ] [NAME_16] argues that there is no material difference to how the “directly affected” test applies when the considering whether the Applicants have alleged material facts that they are directly affected by the decision to enter into the 2023 Agreement. The Applicants are required to plead material facts that, if true, establish that the decision to enter into the 2023 Agreement, or the 2023 Agreement itself, effects their legal rights, imposes legal obligations upon them, or prejudicially affects them ( [NAME_84] ). [ 134 ] As to the alleged breach of the duty of consult, [NAME_16] argues that the Applicants must have pleaded material facts that, if true, establish a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights ( [COMPANY_86]. v. [NAME_87] , 2010 SCC 43, at para 45 [ Rio Tinto ]. The factual allegations must disclose an “appreciable” and “non-speculative” adverse effect on the future exercise of the right itself; an adverse effect on a First [NAME_3]’s future negotiating position does not suffice, and neither does an impact that results from current conduct or past decisions ( Rio Tinto , at para 49). [ 135 ] [NAME_16] argues that a plain reading of the 2023 Agreement reveals that the Applicants are not affected or impacted by it but rather misread it as having an effect on their land-based rights as exercised on their traditional lands, which it clearly does not. It follows that the content of the 2023 Agreement cannot directly or adversely impact the Applicants’ harvesting or other territorial and land-based rights in their traditional territory as alleged in AAJR. The Applicants’ allegations that their territorial and land-based rights are directly affected by the decision to enter into the 2023 Agreement are therefore without foundation. [ 136 ] Further, [NAME_16] argues that the Applicant’s allegation that they have public interest standing is untenable because they fail to meet the three parts of the applicable test for public standing to be granted: i) the application must raise a serious justiciable issue; ii) the applicants must have a “real stake or a genuine interest” in the issue raised; and iii) the application must be “a reasonable and effective way to bring the issue before the courts” ( Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 at para 37). [ 137 ] The Applicants, says [NAME_16], do not satisfy the first two parts of the test because the serious judiciable issue being challenged is ultimately a political decision, and the Applicants have not alleged having a genuine interest in the internal governance matters of [NAME_13]. The only interest raised by the Applicants to ground public interest standing is the potential impact on their Section 35 Rights. However, the 2023 Agreement has no potential to adversely impact those rights.

Accordingly, if the asserted impact is insufficient to ground private interest standing, it cannot be used to ground public interest standing. [ 138 ] [NAME_16] also notes that the 2023 Agreement contains a clear non-derogation clause at its article 15.03 which acts a safeguard for the Applicants should they actually be affected by the 2023 Agreement. (3) The Applicants [ 139 ] The Applicants argue that they are directly affected by a matter and may seek judicial review of the Minister’s decision to section 18.1 of the FCA . [ 140 ] [NAME_16], the Applicants argue that to be “directly affected”, the matter must adversely affect an applicant’s legal rights, impose legal obligations on the applicant, or prejudicially affect the applicant ( [NAME_84] , at para. 58; [NAME_88] v [NAME_89] , 2017 FCA 52, at para. 2, leave to appeal refused, [2017] S.C.C.A. No. 169). The words “directly affected” are interpreted in the context of the grounds of review claimed ( [COMPANY_36] v Canada (Attorney General) , 2009 FCA 116, at para. 28). [ 141 ] The Applicants argue that standing should be addressed in the hearing on the merits with the benefit of a full record, when the effects of an administrative decision on any party can be properly assessed on the evidence, and when an alleged legal duty being owed to the Applicants can be determined. It follows that in order to strike an application based on lack of standing, it must be plain and obvious that the applicants do not have standing ( [NAME_90] v Canada (Foreign Affairs) , 2018 FC 12, at paras 24 and 94). [ 142 ] The Applicants argue that they have been directly affected by the [NAME_91]’s decision to enter into the 2023 Agreement because the 2023 Agreement recognizes that the “[NAME_9]” covers a significant portion of North American and includes the Applicants’ Treaty 9 lands. This recognition, they argue, impacts their harvesting rights and harvesting way of life even though the 2023 Agreement itself does not grant harvesting rights because the recognition of another Section 35 Rights holder in their the Treaty 9 territory fundamentally alters how Canadian law will treat the Applicants’ Aboriginal and Treaty rights to harvest and to a harvesting-based way of life. [ 143 ] The Applicants also argue that the recognition of other “Indigenous Peoples” holding Section 35 Rights such as the [NAME_9] holding in their Treaty 9 territories interferes with their ability to care for and make decisions about their territory under their own laws. [ 144 ] The Applicants further argue that the 2023 Agreement recognizes [NAME_13] as a distinct Indigenous people with respect to what appears to be the same land area that compels the Applicants to share their rights under UNDRIP with [NAME_14] groupings. This directly affects the Applicants guaranteed Rights pursuant UNDRIP to, among other things, manage their traditional lands and to benefit from them. By purporting to recognize new Aboriginal Peoples whose claimed territory overlaps that the Applicants’ traditional lands, the Applicants argue that Canada infringes their own right to self-determination, as pleaded at paragraphs 9-10 and 30 of [NAME_20]. E. Analysis and conclusions (1) Standing as parties being directly affected by the ministerial decision or the 2023 Agreement [ 145 ] [NAME_16] and the Applicants correctly set out the applicable law with respect to determining whether the Applicants have the standing to seek judicial review of the decision to enter into the 2023 Agreement. [ 146 ] Section 18.1(1) of the FCA is operative provision with respect to one’s right to seek judicial review: Application for judicial review Demande de contrôle judiciaire 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande. [ 147 ] As properly argued by [NAME_16] and the Applicants, the Applicants will have standing (as opposed to public interest standing, which will be addressed later) if they are “directly affected” by the Minister’s decision to enter into the 2023 Agreement and have alleged material facts as to how they are directly affected in [NAME_20]. This means that the Applicants will have to have pleaded material facts as to how the Minister’s decision to enter into the 2023 Agreement adversely affects their legal rights, impose legal obligations upon them, or prejudicially affect them in a direct manner ( [NAME_84] , at para 58, and the jurisprudence cited therein). [ 148 ] The Applicants plead the basis of their alleged standing at paragraphs 24 to 32 of [NAME_15]. Paragraphs 24 to 26 and 29 to 32 are argumentative allegations and do not allege material facts as to the Applicants being directly affected by the decision they seek to have reviewed. [ 149 ] Paragraph 27 alleges that the Applicants have standing because the 2023 Agreement counts the [NAME_45] as an [NAME_14] Community who will benefit from the recognition provided in the 2023 Agreement. The Applicants allege that “The territory claimed by [NAME_45] as its traditional territory (and as part of the [NAME_10]) is almost entirely within the [Applicants’] traditional territory.” [ 150 ] Paragraph 28 speaks to the historical presence of [NAME_19] in the Applicants’ traditional territory. [ 151 ] Paragraph 30 pleads the factual basis of the Applicants’ alleged standing as follows:

30. In recognizing [NAME_13] in general, and [NAME_45] in particular, as Aboriginal peoples, the Decisions will impact the [Applicants] by: a) Increasing competition for resources in their traditional territory by allowing all [NAME_46], a larger population by orders of magnitude, to claim harvesting rights in the [Applicants’] traditional territory; b) Worsening significant cumulative impacts and the [Applicants’] ability to continue their traditional way of life, as promised to the [NAME_21] in the Treaty; c) In part as a result of (a) and (b), creating severe conservation challenges for the lands, waters and resources on which the [Applicants] rely; d) Eroding the [Applicants] own rights by offering equivalent rights to people who are not required to demonstrated continuity between a historical Indigenous group and modern community; e) Creating confusion for other levels of government and proponents operating in the [Applicants’] territory as to who the relevant rights-holders are for the purposes of consultation and accommodation, including when negotiating Impact Benefit Agreements, which are a tool used to prevent and reduce impacts to the [Applicants’] s. 35 rights. [ 152 ] It is apparent from these allegations that the Applicants’ standing is based on their understanding or interpretation of what the 2023 Agreement will do to: a) their traditional territory; b) their ability to continue their traditional way of life in their traditional territory; c) create conservation challenges to land and water in their traditional territory; and, e) create confusion as to who should be consulted in connection with Impact Benefit Agreements that relate to resource development. Succintly stated, the Applicants allege that their rights and Section 35 Rights in and to their traditional lands will be directly affected by the 2023 Agreement and its coming into force. [ 153 ] A review of the 2023 Agreement reveals that these allegations are inconsistent with the plain and unambiguous wording of the 2023 Agreement and have no foundation in the document they allege will impact them prejudicially. [ 154 ] The 2023 Agreement’s table of contents and a review of its Chapters and articles shows that the purpose of the 2023 Agreement is to contribute to the implementation of UNDRIP as it relates to the [NAME_9] collectivity defined in the agreement as the “[NAME_19] by [NAME_13]’s” inherent right to self-determination, including the right of self-government, and to support, advance, and recognize that collectivity’s ongoing exercise of its inherent right of self-government recognized and affirmed by Section 35 based upon Canada’s constitutional responsibility to advance relationships with Indigenous Peoples and to engage in negotiations to recognize and delineate [NAME_9]. [ 155 ] Without being exhaustive, the 2023 Agreement: a) recognizes and upholds [NAME_9] (article 4.04); b) sets out the basis for negotiations and for the recognition of those communities that comprise the [NAME_10] and their [NAME_9] Government (Chapter 6), c) contains an explicit acknowledgement that Canada is not acknowledging that the “[NAME_19] by [NAME_13]” has any particular Aboriginal or treaty rights recognized and affirmed by Section 35 of the Constitution Act, 1982 , other than those set out in the 2023 Agreement (article 6.14), and those rights do not include any territorial based rights over any specific territory: d) sets out the steps to be completed for the [NAME_9] Government to incorporate an entity or to facilitate funding arrangements and intergovernmental relationships (Chapter 7); e) sets out the jurisdiction of the [NAME_9] Government with respect to Citizenship in the [NAME_10]; [NAME_9] Government Laws pertaining to citizenship, the selection of representatives to the [NAME_9] Government; the structures, operations, procedures, assets and financial management of the [NAME_9] Government; the [NAME_9] Government’s role in the provision of child and family services to its Citizens (Chapter 7); f) the [NAME_9] Government’s work toward and ratification of a constitution that deals with its operation and a list of specific topics all of which concern good government and do not include any territorial rights or dimension (Chapter 9); g) the fiscal relationship between the [NAME_9] Government, [NAME_13] and Canada (Chapter 10); h) the timing and content of the content of implementing legislation regarding the [NAME_19] by [NAME_13] inherent right to self-determination, self-government and that the [NAME_9] Government is interests, and claims of the [NAME_19] by [NAME_13], including the right of self-government; i) Negotiations toward and the potential content of a Treaty (Chapter 12) and such Treaty’s implementation requirements (Chapter 13); j) contains explicit provisions providing for the express intention in Chapter 15 that nothing in the agreement affects, recognizes, or provides any rights recognized and affirmed by Section 35 of, a) any Indigenous community, collectivity, or people other than the [NAME_19] by [NAME_13]; or b) any other Indigenous community, collectivity, or people situated in [NAME_1] who are distinct from the [NAME_19] by [NAME_13] and not represented by the [NAME_9] Government; and, k) contains conflict rules that apply if a court finally determines that any Aboriginal People, other than the “[NAME_19] by [NAME_13]”, have Section 35 Rights that are adversely affected by a provision of the Agreement (Chapter 15, section 15.04) [ 156 ] The 2023 Agreement includes limited references to land, and none of them pertain to any lands-based Section 35 Rights or grant the [NAME_9] any rights to any lands at all. The key references in the Preamble explicitly set out that the identification of particular lands and geographic locations is to be used for the purposes of citizenship within the [NAME_10]. There is a definition of the “[NAME_10]” that is exceedingly broad and means “the area of land in west central North America used and occupied as the traditional territory of the [NAME_10], including what is now Manitoba, [NAME_50], and Alberta and extending into contiguous parts of [NAME_1], [NAME_68], the Northwest Territories, and the northern United States”, and is used as general reference point in Chapter 6 of the 2023 Agreement to identify where the [NAME_9] collectivities that together make up the [NAME_10] may be found. That description of where the [NAME_9] collectivities may be found does not give the [NAME_9] described in the 2023 Agreement any territorial rights or recognize any site-specific land-based Section 35 Rights to the [NAME_9] over parts of Manitoba, [NAME_50], and Alberta, any more than it does to the Applicants’ traditional territory as described in Treaty 9. [ 157 ] Articles 15.05 provides for replacement [NAME_9] rights in the event that Canada enters into a treaty or a land claims agreement with another Aboriginal People and that adversely affects the self-government and related rights set out in the 2023 Agreement. [ 158 ] There is nothing ambiguous in the 2023 Agreement with respect to territorial or lands-based Section 35 Rights. There is no contractual interpretation exercise to be carried out. The Applicants’ allegations that they are directly affected by the ministerial decision to enter into the 2023 Agreement as well as by the effect of the 2023 Agreement based on the alleged impacts to their territorial or lands-based Section 35 Rights are inconsistent with the 2023 Agreement and have no foundation. The allegations of material fact are simply untenable and doomed to fail as they have no basis in fact. [ 159 ] I find that the Applicants have not alleged material facts in [NAME_20] that are capable of establishing that the decision to enter into the 2023 Agreement, or the 2023 Agreement itself, affects their legal rights, imposes legal obligations upon them, or prejudicially affect them in a direct and non-speculative manner so as to give them standing to contest it through judicial review. [ 160 ] [ADDRESS] finds that the allegations in [NAME_15] do not set out material facts necessary to show that the Court can and should grant the substantive or procedural administrative law relief they seek as it concerns the 2023 Agreement and the decision to enter into it. [ADDRESS] finds that the Applicants’ grounds of administrative law review alleged, both substantive and procedural, are untenable because the material facts alleged cannot establish that the Applicants are “directly affected” entities within the meaning of section 18.1(1) of the FCA ( [NAME_84] ). The alleged material facts are based on the Applicants’ unfounded interpretation of what the 2023 Agreement may do rather than on the unambiguous provisions in the 2023 Agreement itself of what it will do. The Applicants’ administrative law claims, including with respect to the allegations regarding the proper application of the Constitution by the Crown in deciding to enter into the 2023 Agreement, are doomed to fail. [ 161 ] These findings extend to the Applicants’ claims for declaratory and injunctive relief that are dependent on and cannot be extricated from the administrative law claims they have asserted and alleged. Declaratory relief may only be granted at the Court’s discretion when the declaration sought would have some practical effect and involve a real legal issue in which the parties have a genuine legal interest ( Canada (Citizenship and Immigration) v. [NAME_92] , 2019 FCA 206, at para 59). It must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest ( [NAME_93] v. The Queen , 1985 CanLII 74 (SCC), [1985] 1 SCR 441, at para 33). The Applicants’ allegations of material fact in [NAME_20] do not, in my view, set out a genuine legal interest in or involve a real legal issue in relation to the declaratory relief sought at paragraphs 3d), 3g) and 3h) that is independent from the relief sought at paragraphs 3a) to 3c) of [NAME_15]. These specific claims for declaratory relief are therefore also doomed to fail. [ 162 ] Injunctive relief is available when the party seeking the injunction can meet the tripartite test set out in [COMPANY_94]. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311. The injunctive relief sought by the Applicants is based on their allegation found at paragraph 26 of [NAME_15] that the 2023 Agreement will have profound and irreparable impact on the Applications Section 35 territorial and land-based rights. As discussed above, the 2023 Agreement had no potential effect on the Applicants’ territorial of land-based rights. The Applicants’ allegations of material fact are without foundation in light of the unambiguous content of the 2023 Agreement. The injunction relief sought on the basis of the effect of the 2023 Agreement and of the decision to enter into it is also dependent on the administrative law claims they have described and alleged at paragraphs 3a) to 3c) of [NAME_15] and is therefore doomed to fail. [ 163 ] The jurisprudence is that a decision to grant a party leave to amend a deficient pleading or notice of application is discretionary. Leave to amend should be denied only in the clearest of cases where it is plain and obvious that no viable claims are possible on the facts alleged and there is no reason to believe that the party could improve their case by an amendment ( Canada (Attorney General) v. [NAME_95] , 2020 FCA 212, at para 49 [ [NAME_95] ]). B ecause the Applicants’ allegations of standing are based on territorial and lands based Section 35 Rights predicated upon their misreading of the content and effect of the 2023 Agreement and are inconsistent with it, there is no reason to believe that the Applicants could amend [NAME_20] to rehabilitate their allegations in support of their alleged standing as directly affected parties and improve their case for judicial review. Leave to amend the allegations of [NAME_20] as discussed above is therefore denied. (2) The Applicants’ allegations as to their public interest standing [ 164 ] The Applicants plead in the alternative that they have public interest standing to seek judicial review of the decision to enter into the 2023 Agreement. [ 165 ] The allegations to support their public interest standing are found at paragraphs 34 to 36 of [NAME_20]. The allegations do not contain any material facts; they are pure argument unsupported by allegations of material fact other than those which the Court has considered above and has found incapable of establishing that they are parties that are directly affected by the decision to enter into the 2023 Agreement or by the 2023 Agreement. The alleged material facts are no better suited to form the basis of an argument that the Applicants have public interest standing because the alleged material facts are inconsistent with the 2023 Agreement that is incorporated by reference into [NAME_15]. While it may be tempting to follow the Applicants in their argument that public interest standing should be determined at the merits phase and not at the preliminary or pleading stage, that proposition would be tantamount to the Court allowing allegations to stand on the basis of what evidence may turn up later to cure a deficient allegation that contains no material facts. That is contrary to the jurisprudence pertaining to judicial review ( [NAME_22] , at para 45). [ 166 ] [ADDRESS] finds that the Applicants’ allegations that they have public interest standing are not to be considered as true and that the same allegations are bereft of any chance of success to establish that the Applicants have standing to seek judicial review as [NAME_20] is currently pleaded. [ 167 ] The Applicants’ allegations as to public interest standing were the result an amendment their original notice of application. The Applicants have not suggested that they can amend [NAME_20] to plead a sound basis for their allegations of public interest standing and improve their case ( [NAME_95] ). Leave to amend [NAME_20] to plead a basis for their alleged public interest standing is denied. F. The duty to consult the Applicants was not triggered (1) [NAME_13] [ 168 ] [NAME_13] argues that the legal test for the Crown’s duty to consult is well-known following [COMPANY_86] v [NAME_87] , 2010 SCC 43 at paragraph 31 [ Rio Tinto ] and [NAME_3] v. [NAME_68] (Minister of Forests) , 2004 SCC 73, at paragraph 35. The requirements for a duty to consult to be triggered requires: a) the Crown’s knowledge of a potential Aboriginal claim or right; b) contemplated Crown conduct; c) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. [ 169 ] [NAME_13] argues that the Applicants fail to plead all of these necessary elements in [NAME_20]. [ 170 ] [NAME_13] further argues that the Applicants only plead aboriginal or treaty rights to hunt, fish, trap, gather plants for food, gather plants for medicine, share and transmit traditional knowledge, participate in ceremony and traditional practices, and otherwise to continue practicing and perpetuating their way of life at paragraphs 9, 10, 13, and 30(b) of [NAME_20]. [ 171 ] [NAME_13] argues that there is no conceivable reading of the 2023 Agreement that leads to the conclusion that it creates [NAME_9] harvesting rights or rights relating to land that could impact the Applicants’ pleaded rights. The Applicants have therefore pleaded rights that are completely disconnected from any potential effect the 2023 Agreement could have in relation to them. There is no duty to consult that is triggered in these circumstances. [ 172 ] [NAME_13] also argues that the Applicants fail to plead any causal relationship between the proposed government conduct or decision and a potential for adverse impacts on their pending Aboriginal claims or rights. The Applicants plead land rights while there are no land-rights at issue in the 2023 Agreement. [ 173 ] [NAME_13] argues that the Applicants’ pleas of confusion between levels of government are hypothetical, and that the 2023 Agreement will erode the First Nations’ own rights by offering equivalent rights to people who are not required to demonstrate[e] continuity between a historical Indigenous group and modern community misreads the 2023 Agreement in that the 2023 Agreement explicitly does not create Section 35 [NAME_9] rights. At its best, the 2023 Agreement recognizes and the Section 35 Rights set out in the 2023 Agreement and none beyond (article 6.14 of the 2023 Agreement). (2) [NAME_16] [ 174 ] [NAME_16] argues that the Applicants are concerned about the potential impacts of a potential future decision and that the law is clear that the duty to consult is not engaged with respect to potential impacts that may result from future decisions ( Blueberry River First [NAME_3] v. [NAME_68] (Natural Gas Development), 2017 BCSC 540, at para 2 [ Blueberry River ], and [NAME_3] v [NAME_50] ([NAME_96]), 2015 SKCA 31, at paras 88-102 [ Buffalo River ]). A potential adverse impact will be proven when the claimant has established that the impugned Crown conduct will have some appreciable and current potential to adversely impact the substance of a claimed right ( Buffalo River, at para 90). [ 175 ] [NAME_16] argues that the 2023 Agreement does not address harvesting, resource or land-related issues, and it has no relevance or bearing on the ability of [NAME_71] to assert harvesting rights in the Applicants’ traditional territory.

Accordingly, the Applicants’ concerns are premature and speculative, and no duty to consult is triggered. (3) The Applicants [ 176 ] The Applicants acknowledge the tripartite test set out in Rio Tinto . They argue that courts have consistently recognized that the Crown owes a duty to consult and accommodate an Indigenous group when the Crown enters into an agreement with another group that impacts territory over which the groups have overlapping claims ( Sambaa K’e Dene First [NAME_3] v [NAME_97], 2012 FC 204, at para. 186; [NAME_98] v Canada (Indigenous and Northern Affairs) , 2017 FC 932, at para. 192; Huron-[NAME_3] of [NAME_72] v Canada , 2014 FC 1154, at paras. 106-111, 123). [ 177 ] The Applicants argue that the 2023 Agreement recognizes the self-government right of [NAME_13] over expansive territories, which overlap entirely with the Applicants’ own territories and necessarily interacts with and impacts the Applicants’ rights to self-government. [ 178 ] Finally, the Applicants rely on [NAME_99] v [NAME_1] , 2021 ONSC 7920, for the proposition that an Indigenous group could do precisely what the Applicants have done in this proceeding – challenge the government’s recognition of [NAME_9] rights on the ground that there was a breach of the duty to consult. (4) Analysis and conclusions [ 179 ] The Applicants’ allegations pertaining to the duty of consult are set out at paragraphs 52 to 55 of [NAME_20]. [ 180 ] Like the Applicants’ public interest standing allegations, the allegations pertaining to the duty to the consult are argument unsupported by much material fact. To the extent that any material fact is pleaded, it is found at paragraph 53(c) of [NAME_15] and that refers back to the alleged impacts pleaded at paragraph 30 of [NAME_15] that have been found to be inconsistent with the 2023 Agreement and having no foundation. [ 181 ] The Applicants have pleaded that the Crown that had knowledge of a potential Aboriginal claim or right asserted by the Applicants, and that the Crown had contemplated some conduct which somehow refers to the Applicants’ traditional lands. However, there is nothing in the Crown conduct of deciding to enter into the 2023 Agreement that had the potential to adversely affect the Applicants’ Section 35 Rights based on the 2023 Agreement and its content. [ 182 ] The Applicant’s arguments based on [NAME_99] do not assist them here. [NAME_99] concerned a motion to strike a statement of claim before the [NAME_1] of Justice in a situation where there might be competing Aboriginal or indigenous interests in resources. The [NAME_1] of Appeal described the situation as being one in which what was at stake between the Indigenous parties to the case, the [NAME_101] and the [NAME_11], were harvesting rights to fish and wildlife such as deer, elk and moose in the Algonquin settlement area, which comprises the [NAME_1] watershed of the Mattawa and Ottawa Rivers. The issue arose against the backdrop of [NAME_100] negotiations with [NAME_1] and Canada under a 1994 framework to arrive at a modern-day treaty concerning, among other matters, the harvesting rights of [NAME_100] to fish, hunt and trap wildlife resources within the settlement area ( [NAME_99] , at paras 1 and 2). One of the allegations made by [NAME_100] in their statement of claim was that some Algonquins had self-identified as [NAME_9] in order to get access to harvester cards beyond the limited number allocated to [NAME_100] and that that in turn coincided with a serious decline in the moose population. The allegations made by [NAME_100] in this regard are not substantially dissimilar to the essence of the Applicants’ allegations in this proceeding. [ 183 ] The statement of claim, as described by the [NAME_1] of Appeal, set out a claim by the [NAME_101] for a declaration that [NAME_1] had breached its duty to consult to consult and accommodate their interests before it recognized the Killarney and the Mattawa/[NAME_19] and gave them unlimited harvesting rights in the settlement area. [ 184 ] The Applicants argue that [NAME_99] supports their argument that they have standing to contest the indigeneity or the entitlement to access Section 35 Rights of others claiming to be Aboriginal peoples, that is, [NAME_13] and the communities it represents. The Applicants argue that “overlapping rights to self-government, and interests in the land in which may not yet be proved as rights, are sufficient to meet the threshold for standing on a duty to consult question on a motion”. [ 185 ] [NAME_16]’s view of [NAME_99] and of its implications in this proceeding is more nuanced. [NAME_16] argues that the legal and factual issues in [NAME_99] have little if any relevance to [NAME_13]’s motion: the issues in [NAME_99] , and the duty to consult as pleaded therein, was alleged to arise from overlapping and conflicting harvesting rights claims in a single geographic area. [NAME_16] argues that there are no such overlapping and conflicting rights claims to resources in a geographic area in this proceeding and, consequently, that there is no potential for the Applicants’ pleaded territorial and land-based rights to be adversely impacted by the decision to enter into the 2023 Agreement. [NAME_99] is therefore distinguishable and does not apply to assist the Applicants. [ 186 ] [ADDRESS] agrees with [NAME_16]’s observations as to how, if at all, [NAME_99] might apply to the issues on this motion considering that the competing interests in land based resources that were at issue in [NAME_99] are not at all in issue here because the 2023 Agreement, and the decision to enter into it, do not recognize or grant [NAME_13] and its citizens any territorial land-based rights in the Applicants’ traditional territory. [ 187 ] [ADDRESS] agrees with the [NAME_1] of Appeal’s comments at paragraph 39 of [NAME_99] that whether a plaintiff or applicant can prove an entitlement to deep consultation and accommodation, and whether the Crown breached its duty to consult and accommodate, “are matters not for a pleadings motion but for trial and, more hopefully, settlement negotiations, which are much to be preferred”. That, however, presupposes that the allegations made in the underlying pleading set out the minimum material facts necessary for the Court to find that the advanced claim is not doomed to fail. [ 188 ] The issue on this motion is not whether the Applicants may be able to prove their allegations regarding the duty to consult at a hearing on the merits, but whether the Applicants have pleaded the material facts necessary to show that the Court can and should grant the relief sought ( [NAME_22] , at para 40). As discussed above, in my view they have not and there is no suggestion that an amendment to [NAME_15] could make their case better. [NAME_99] therefore does not assist the Applicants. [ 189 ] I find that the Applicants’ allegations that the duty to consult had been triggered are bereft of any possibility of success.

VIII. Conclusions [ 190 ] [NAME_15] contains limited allegations and grounds at paragraphs 59 to 63 pertaining to the whether the Minister’s conduct in entering into the 2023 Agreement was inconsistent with the honour of the Crown in its dealing with [NAME_21]. These allegations were not targeted by [NAME_13]’s motion and were not addressed by [NAME_16] in his representations. The proceeding may continue in their regard. [ 191 ] [ADDRESS] is alive to the potential difficulty arising from striking part of a notice of application without leave to amend and allowing the live part of the application to continue ( 876947 [NAME_1] ([NAME_102]) v. Canada (Attorney General), 2013 FCA 156, at para 10). This is not a case where the part of [NAME_15] that is struck is integrally related to the remaining portion of the application as it relates to the allegations and relief sought in connection with the Honour of the Crown in dealing with Treaty 9 Applicants. [ 192 ] It follows that the Applicants’ AAJR will be struck in substantial part but will nevertheless not be struck in its entirety. The Applicant will be granted leave to amend [NAME_20] to continue their proceeding regarding the honour of the Crown in its dealing with [NAME_21].

ORDER in T-591-23 THIS COURT’S

ORDER is that : The [NAME_11]’s motion to strike the Applicants’ Amended Application for Judicial Review is granted. The allegations contained in paragraphs 3a) to 3j), inclusively, and in paragraphs 4 to 58 of the Applicants’ Amended Application for Judicial Review are hereby struck, without leave to amend so as to assert revised claims, grounds and material facts pertaining to the relief sought and in described in in paragraphs 3a) to 3j). The Applicants are granted leave to amend their Amended Application for Judicial Review in a manner consistent with the reasons above to continue their proceeding regarding the honour of the Crown in its dealing with [NAME_21]. The parties are encouraged to confer and to find agreement on the costs of this motion. If the parties are unable to do so by August 7, 2026, then they may serve and file representations on costs not exceeding 5 pages each, exclusive of affidavits, schedules and authorities, by August 14, 2026. The determination of costs is therefore reserved to be decided following the parties’ agreement or written representations on the issue. “Benoit M. Duchesne” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-591-23 STYLE OF CAUSE: [NAME_2] et Al. v. ATTORNEY GENERAL OF CANADA et Al. PLACE OF HEARING: Toronto, [NAME_1] DATE OF HEARING: august 8, 2023, and august 9, 2023

ORDER aND

JUDGMENT: duchesne, j. DATED: june 26, 2026 APPEARANCES : [NAME_103] [NAME_106] [NAME_109] [NAME_112] For The Applicants [NAME_114] [NAME_116] [NAME_118] For The RespondentS ([NAME_14] et al.) [NAME_121] [NAME_124] [NAME_127] [NAME_130] for the respondents ([NAME_17]) SOLICITORS OF RECORD : [COMPANY_136], [NAME_1] For The [COMPANY_137], [NAME_1] For The Respondents ([NAME_14] et al.) Attorney General of Canada Toronto, [NAME_1] for the respondents ([NAME_17])