Date: 20001128
Docket: T-1685-96
BETWEEN:
CLIFF CALLIOU
acting on his own behalf and on behalf of all other
members of the KELLY LAKE CREE NATION who are
of the Beaver, Cree, and Iroquois peoples and
KELLY LAKE CREE NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE HONOURABLE RON IRWIN,
MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT, Parliament Buildings, Ottawa, Ontario
Defendants
REASONS FOR ORDER
(Delivered from the bench at Edmonton, Alberta
on November 24, 2000)
HUGESSEN J.
[1] This is a motion by the Crown to strike paragraphs 57 to 77 of the latest version of the statement of claim. I append to the written version of these reasons the paragraphs in question.
| ii. Non-existent or Fraudulent Scrip |
| 57. Further, and in the alternative, should any of the Plaintiffs' ancestors have accepted Scrip, which is not admitted but expressly denied, then the Plaintiffs state as follows. |
58. From 1876 until 1884, a large number of Indians in the Edmonton, Lac St. Anne, Peace Hills, Victoria areas, and areas north into Lac La Biche, including some ancestors of the Plaintiffs, were known as "Stragglers" and not formally attached to Bands, receiving their Treaty Payments either as Stragglers or with different Bands in different years, for the years 1876 to 1884. During this time a number of the Plaintiffs' ancestors continued to travel back and forth across the Canada - United States Border following the buffalo trade and other Indian ways of life. Other ancestors of the Plaintiffs were employed with the Hudson's Bay Company and separated from being included in Bands as dealt with by the Defendant, Her Majesty the Queen in Right of Canada.
59. In 1882, the Defendants instituted a reduced rations policy throughout the whole of the Northwest Territories. In December, 1884, a petition was drafted by Louis Riel and sent to Ottawa seeking land rights and settlement of the claims of Metis in Saskatchewan. Louis Riel proclaimed the creation of a Provisional Government of Saskatchewan on March 19, 1885, and the North-West Rebellion commenced. During April, May and June, 1885, a battalion under the command of Major General Strange and a company of 242 men under the command of Inspector A. Bowden Perry moved throughout Bear Hills, Edmonton, Lac St. Anne, Victoria, Lac La Biche, and areas north of these communities. Louis Riel was captured in late June, 1885.
60. Punishment was inflicted by the Indian Agents, and the Defendants generally, in the areas referred to in paragraph 59, upon all Indians, including the ancestors of the Plaintiffs, who were suspected of being involved in the North-west Rebellion. Punishment included arrest and confinement; the withholding of Treaty Payments; and, restrictions of hunting and fishing. Starvation was common.
61. The Half-Breed Commission came into the Edmonton area during June and July, 1885. As a result of their confinement, fear of additional repression, and starvation, some Indians in Treaty No. 6 areas, including possibly some of the ancestors of the Plaintiffs, which is not admitted but denied, are alleged to have withdrawn from Treaty and to have accepted Scrip. Scrip on its face provided for pre-emption rights to land of a value of either $160.00 or $240.00 for its holder. The issuance of Scrip was purportedly under the provisions of the Indian Act, R.S.C. 1876, as amended in 1880 and 1884 and the Dominion Lands Act.
62. On or about June 25, 1886, the Half-Breed Commission again came into the Edmonton area and more Indians, including possibly some of the ancestors of the Plaintiffs, which is not admitted but denied, are alleged to have withdrawn from Treaty and to have accepted Scrip. Agents of the Crown employed with Indian Affairs, and the Half-Breed Commission, were involved in schemes to buy Scrip which were in breach of trust, an abuse of their position, and involved duress, undue influence, bribery, and non est factum. Furthermore, such withdrawals from Treaty were granted to Indians, including possibly some of the ancestors of the Plaintiffs, which is not admitted but denied, contrary to the provisions of the Indian Act since these Indians had less than 3 white blood and had lived all of their lives as Indians, and contrary to representations made in conjunction with the signing of Treaty No. 6. Such withdrawals from Treaty were and remain a breach of Treaty No. 6.
63. At the beginning of July, 1886, and prior to July 10, 1886, the Superintendent General of Indian Affairs issued a statement forbidding the acceptance of withdrawal from Treaty by Indians, including the ancestors of the Plaintiffs, in the Edmonton area as a result of allegations of breach of trust, impropriety, undue influence, duress, non est factum, and breach of statutory authority. Contrary to this direction of the Superintendent General of Indians Affairs, Scrip purportedly was issued to Indians, including possibly some of the ancestors of the Plaintiffs, which is not admitted but denied, after July 10, 1886.
64. By Proclamation on July 10, 1886, Queen Victoria issued an Amnesty to all persons, including the Plaintiffs' ancestors, involved in the Rebellion in 1885 in the Northwest Territories pardoning them and restoring all of their rights, lands and goods. The Plaintiffs state that this Amnesty pardoned them.
65. Further, contrary to the Amnesty, the Indian Act, and the directive by the Superintendent General of Indian Affairs, many Indians, including the Plaintiffs' ancestors, did not thereafter receive Treaty payments or other Treaty benefits and were denied their aboriginal and Treaty rights and recognition. Such actions of Canada were and are contrary to the constitutional, fiduciary, trust, equitable, and statutory obligations owed by Canada to the Plaintiffs. The Defendants have failed to provide the Plaintiffs with benefits provided to other Indians pursuant to the policies of Indian Affairs.
66. The Crown has concealed these actions from the Plaintiffs since 1885. In these circumstances the Plaintiffs say that this amounts to equitable fraud and concealment.
67. Subsequently, in 1899, a Half-Breed Claims Commission sitting as a Royal Commission at St. Albert, and other locations in the Northwest Territories, including locations in Northeast British Columbia, and the Lesser Slave Lake area of Alberta, is purported to have issued Scrip Certificates to Indians and Metis. There is no record of these Scrip payments actually being made and the Plaintiffs state that, if any of their ancestors are proven to have taken Scrip, which is expressly denied, all of these Scrip Certificates were void for lack of consideration.
68. Further, the issuance of these Scrip Certificates was contrary to the Indian Act, S.C. 1886, inter alia, Sections 13 and 126 as amended, and contrary to the provisions and representations of Treaty No. 6 and Treaty No. 8, being issued to persons who were Indians under the Indian Act and listed, or descendants of Indians listed, as Edmonton "Stragglers" under Treaty No. 6, and as adherents to Treaty No. 8, entered into in 1899. These Indians had less than 3 white blood and had lived all of their lives as Indians.
69. Further, the Plaintiffs state that these Scrip Certificates were made in breach of trust, in breach of the provisions of Treaty No. 6 and Treaty No. 8, and contrary to the provisions of the Indian Act. These Scrip Certificates were issued in circumstances where bribery, undue influence, duress, fraud, and non est factum applied, and as a consequence thereof, these Scrip Certificates were void ab initio.
70. During the same period of time, the Treaty Commissioners of Treaty No. 8 were north of Edmonton in the Lesser Slave Lake and other areas signing Treaty No. 8 with the Cree, Beaver, Chipewyan, and other Indians inhabiting the area of Northern Alberta, Northeastern British Columbia, and Northwestern Saskatchewan. Richard Secord was one of the Treaty Commissioners' party in the negotiations and the signing of Treaty No. 8 and was an agent of the Crown, Indian Affairs.
71. Richard Secord was also a partner with John McDougall doing business as a partnership under the name of McDougall & Secord. McDougall & Secord induced holders of Scrip Certificates to assign their Scrip Certificates to McDougall & Secord purporting to pay $40.00 or $50.00 being past consideration for goods from McDougall & Secord, and small quantities of cash, for Scrip Certificates with a face value of $240.00. These assignments were taken without independent witnesses, and in circumstances where non est factum applied, as well as duress, undue influence, lack of consideration, fraud and bribery. The Plaintiffs and their ancestors, if they took Scrip, which is not admitted but expressly denied, have suffered damages as a result of these actions.
72. Further, the Half-Breed Commission knew, or should have known, of the activities of McDougall & Secord because it was a matter of public knowledge and because "assigned" Scrip Certificates were presented by McDougall & Secord to the Half-Breed Commission, and to the Crown, Indian Affairs, in order to collect the Scrip funds. The Crown is liable for, and participated in, the actions of the Half-Breed Commission and McDougall & Secord.
73. The Crown, the Half-Breed Commission, Richard Secord, and McDougall & Secord, breached their trust, fiduciary duty, Treaty, constitutional, equitable, statutory, and common law obligations owed to these Indians including the Plaintiffs' ancestors.
74. Further, the actions of the Crown, the Half-Breed Commission, and McDougall & Secord, amounted to equitable fraud.
75. The Crown has concealed these actions, since 1885, 1886, 1890, and 1899, from the Plaintiffs and, in these circumstances, the Plaintiffs say that this amounts to fraudulent concealment.
76. Further, the Plaintiffs state that the Crown was aware of the fraud in relation to Scrip by McDougall & Secord and specifically amended the provisions of the Criminal Code in 1921 in order to reduce the period of time within which an offence could be charged against Richard Secord and, as a consequence of this amendment to the Criminal Code, a private prosecution against Richard Secord for fraud in relation to Scrip in the areas affected by this claim was stayed by the Attorney General of Alberta. Such acts were, and are, contrary to the constitutional, fiduciary, trust, equitable, and legal obligations owed by the Crown to the Plaintiffs.
iii. Treaty No. 8 - No Legal Effect
77. The Plaintiffs state that the description of the lands purported to have been ceded in Treaty No. 8 was not agreed to by the Indians who are purported to have agreed to Treaty No. 8, that such description of lands was never translated to such signatories, and as a consequence thereof, has no legal effect. The Plaintiffs put the Crown to the strict proof that the signatories to Treaty No. 8 intended to, or had any right to, affect the Traditional Lands of the Plaintiffs.
2. The impugned paragraphs are a reiteration of a longer version of much the same allegations which was previously struck by me with leave to the plaintiffs to amend their pleading. There is disagreement between counsel as to why the previous order was given. I did not give reasons in support of that order and it now appears that there has been a misunderstanding as to why I ordered as I did and hence, the present motion today.
3. In my view, the impugned paragraphs, broadly speaking, are designed to counter allegations made by the Crown in its statement of defence to the effect that some ancestors of the plaintiffs had withdrawn from Treaty and released or extinguished their aboriginal rights by the taking of scrip.
4. Paragraphs 57 to 76 may be, again broadly speaking, characterized as allegations that if scrip was taken by plaintiffs' ancestors, such taking was illegal and tainted by one or more of a number of listed vices of consent. They are both in fact, in many cases and in purport, in other cases, allegations of fraud allegedly committed by the Crown or its agents in the taking of scrip.
5. As such, I have to say that they are so lacking in precision and detail, that they are irredeemable and cannot be corrected by the simple giving of particulars. While it is possible that some of the impugned paragraphs can survive with or without amendment, the collectivity of the paragraphs between numbers 57 and 76 is so vague and irrelevant as to amount in my view to improper pleading. Purely background matters such as the rebellion of 1885, the comings and goings of the Half Breed Commission and of the Treaty Commissioners are not without more relevant to any presently pleaded issue in the action.
6. Allegations that certain of the plaintiffs' ancestors did or had done to them certain things, without further identification of those ancestors and of the time and place of the events which are alleged, are so vague that they simply cannot be intelligently pleaded to. The only cure, in my view, is to strike out the whole of paragraphs 57 to 76 with liberty to the plaintiffs, if so advised, to apply to the Court for leave to further amend their pleading. In that way, we will avoid the difficulty which has arisen today of an amended pleading being filed which is subject to exactly the same attack as the pleading which had previously been struck out.
7. As to paragraph 77, it appears to amount to no more than putting the Crown to the proof of the Treaty and as such it seems to me to be a perfectly proper pleading and I do not propose to strike it. So an order will go striking paragraphs 57 to 76.
Judge
Ottawa, Ontario
November 28, 2000
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