Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2002 FCT 295

Date: 20020315

Docket: T-2172-99

Neutral citation: 2002 FCT 295

BETWEEN:

                                            HARRY DANIELS, LEAH GARDNER and

                                       THE CONGRESS OF ABORIGINAL PEOPLES

Plaintiffs

                                                                                 and

HER MAJESTY THE QUEEN,

as represented by THE MINISTER OF INDIAN

AFFAIRS AND NORTHERN DEVELOPMENT

and THE ATTORNEY GENERAL OF CANADA,

Defendants

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]         The individual Plaintiffs, Ms. Gardner and Mr. Daniels, are non-status Indians and Métis, respectively. The Congress of Aboriginal Peoples (the "Congress") represents Métis and non-status Indian peoples throughout Canada. They seek declaratory relief first, to establish that Métis and non-status Indians are Indians as the term is used in section 91(24) of the Constitution Act of 1867; second, that the Crown owes to Métis and to non-status Indians a fiduciary duty as Aboriginal peoples; and third, that they have a right to be negotiated with, on a collective basis, in good faith by the Crown.

[2]         The Defendants' attack on the Statement of Claim may be broken down into three general areas. First, the Defendants allege an absence of standing and authority; second, that there is a lack of material facts or particulars leading to a want of a reasonable cause of action; and finally, a catchall argument as to the Amended Statement of Claim being vexatious, prejudicial and abusive.

[3]         The standard which a defendant must meet to strike out a statement of claim, that it be plain, obvious and beyond doubt that the action will not succeed, is high. This is particularly so where interpretation of the Constitution Act of 1871 is concerned (e.g. Dumont v. Canada (1990) 67 D.L.R. (4th) 159), or a serious issue of law is involved (e.g. Vulcan Equipment Co. v. Coats Co. [1982] 2 F.C. 77 (F.C.A.), leave to appeal to the Supreme Court of Canada refused (1982) 63 C.P.R. (2d) 261), or where the issue of standing is involved (e.g. Finlay v. Canada [1986] 2 S.C.R. 607): in such instances it is often best that these questions be left for determination at trial where a proper factual basis can be established and examined. Here the Defendants do not succeed because they have not established it to be plain, obvious and beyond doubt that the action will not succeed. I will now consider this in more detail, beginning with some pertinent background facts.

BACKGROUND

[4]         To the extent that the Defendants argue want of a cause of action, I must take the facts set out in the Amended Statement of Claim as if proven. Thus, for the purposes of this motion I accept that Ms. Gardner is a non-status Indian, that Mr. Daniels is a Métis and that the Congress, which sues as a public interest plaintiff, represents both Métis and non-status Indian peoples throughout Canada, a role which it and its predecessor, the Native Council of Canada, have undertaken since 1972.

[5]         The claim which the Plaintiffs now bring is not for any specific rights, but rather for declarations first, as to the scope of "Indians", within section 91(24) of the Constitution Act, 1867; second, that they are owed a fiduciary duty by the Crown; and third, that they are entitled, in the abstract, to be negotiated with in good faith. As I have indicated, no specific rights are set out as being sought, however the Statement of Claim does enumerate a number of examples of denials and refusals met by Métis and non-status Indians, including as to health care benefits; education benefits; lack of access to material and cultural benefits available to status Indians; criminal prosecution for seeking to exercise Aboriginal rights to hunt, trap, fish and gather on public lands; and a failure on the part of the federal government to negotiate or enter treaties with respect to unextinguished Aboriginal rights. It is not these denied benefits, per se, which the Plaintiffs seek to embody in the relief sought in the Statement of Claim, but rather they seek declarations which, in turn, might allow the Plaintiffs, as examples of non-status Indian and Métis people, to one day prove an entitlement to that of which they say they have been deprived. The important aspect here is that the Plaintiffs look for a designation. That such designation may, in the future, lead to a right is not, at this point, relevant. I now turn to a consideration of all of this, beginning with some pertinent law.

CONSIDERATION

Some Pertinent Law

[6]         For the most part the law as to striking out has been set out often enough that I will only note three brief points, two of them brief.

[7]         First, the burden on the moving party is a heavy one: it must be plain, obvious and beyond doubt that the action will not succeed. Thus I should not, except as a last resort, deprive a party of a day in court.

[8]         Second, as I have already noted, with case authority, matters involving interpretation of the Constitution Act, interpretation of complex legal issues, or issues of standing ought, usually, to be left to the trial judge, who will be able to examine those issues in a full context of facts.

[9]         Third, and this is an interesting submission of counsel for the Plaintiffs, I should take into account that Aboriginal law is advancing rapidly. Thus I ought not easily to declare an action foreclosed, merely because it does not fit into a traditional mould. Here counsel refers to Shubenacadia Indian Band v. Canada, an unreported 14 March 2001 decision of Mr. Justice Hugessen in file T-1525-00. There, at paragraph 5, he notes the heavy burden on a motion to strike out, given an area in which the law is evolving, commenting that:

. . . the Statement of Claim is to be read generously and with an open mind and it is only in the very clearest of cases that the Court should strike out the Statement of Claim. This, in my view, is especially the case in this field, that is the field of Aboriginal law, which in recent years in Canada has been in a state of rapid evolution and change. Claims which might have been outlandish or outrageous only a few years ago are now being accepted.

If there is in a pleading a glimmer of a cause of action, even though vaguely or imperfectly stated, it should, in my view, be allowed to go forward. In this respect the motion to strike varies dramatically from the situation where a party brings a motion for summary judgment, where the Court must grapple with the issue of law in limine. Here, the Court must read the Statement of Claim, as I say, with a generous eye and with a view to allow the plaintiff, if he can, to make his case.

To summarize, I should keep in mind the rapid evolution of Aboriginal law and read the pleading generously, with a view to allowing the plaintiff, if there is a glimmer of a cause of action, to make a case. However there is also another aspect to considering a motion to strike out where a plaintiff might hope to benefit from rapidly evolving law. Certainly, that a plea is novel is not a ground on which to strike out. Nor will I strike out a pleading which rests on a reasonably logical and arguable extension of established law, for to back away from the concept of a reasonably logical extension of law, particularly where the law is either clearly evolving, or where a category of causes of action is still open, would never allow the law to evolve at all. However, this concept must be kept within bounds for, to be fair to a defendant faced with a case which appears to stretch concepts of law too far, I must apply the law as it is, not as one might wish or forecast it to be. This rule was clearly set out by Mr. Justice of Appeal Strayer in Huseyinov v. Minister of Employment and Immigration (1995) 174 N.R. 233 at 234:

It is the duty of this court to apply the law as it is, not as it might be . . . .

This dilemma, on the one hand of a logical extension of clearly evolving law, and on the other hand of applying the law as it is, not as it might be, involves a balancing to achieve a practical result. This is in line with Rosco Pound's observation in Introduction to the Philosophy of Law (1922), that "the law must be stable, but it must not stand still.". I will deal with other points of law as they arise. I now turn to the issue of standing.

Standing of the Individual Plaintiffs

[10]       Counsel for the Defendants raises a basic initial point. He questions whether the individual Plaintiffs sue personally or in a representative capacity. This is not in itself an issue, for counsel for the Plaintiffs does not characterize this as a class or representative action. Rather, the present action is more akin to that in Dyson v. Attorney-General [1911] 1 K.B. 410, a decision of the Court of Appeal. In Dyson an individual taxpayer challenged, by way of a proceeding seeking a declaration, a notice from the Commissioners of Inland Revenue which had been sent to all taxpayers. The Crown sought to strike out the proceeding. Cozens-Hardy M.R. was of the view that the provision to strike out ought not to be applied to an action involving a serious investigation of ancient law and questions of general importance. Lord Justice Fletcher Moulton viewed the power to strike out, in the Dyson type situation, as one that ought to be used only if an action were wantonly brought, so that it was vexatious and, without doubt, for the ". . . power of arresting an action and deciding it without trial is one to be very sparingly used, and rarely, if ever, excepting in cases where the action is an abuse of legal procedure." (page 418). Lord Justice Farwell was of the view that the case raised a question of public importance:

It is obviously a question of the greatest importance; more than eight millions of Form IV have been sent out in England, and the questions asked entailed much trouble and in many cases considerable expense in answering; it would be a blot on our system's law and procedure if there is no way by which a decision on the true limit of the power of inquisition vested in the Commissioners can be obtained by any member of the public aggrieved, . . . . (page 421)

This was a broad approach indeed, allowing any member of the public, who had a personal interest, to obtain not direct relief, as in a case of petition of right, but indirect relief by way of a declaration. In leading up to the point that such a matter as Mr. Dyson's case ought not to be decided by striking out in chambers, Lord Justice Farwell noted that the case was of the greatest importance to hundreds of thousands of His Majesty's subjects and therefore, it ought not to be struck out in a summary manner, then referring at page 424 to a certain salutory practice of throwing no unreasonable difficulty in the way of such proceedings, quoting the Lord Chief Baron, Sir James Scarlett, from Deare v. The Attorney General [1835] 1 Y. & C. Ex. 197 at 208, 160 E.R. 80 at 85:

. . . it has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a Court of justice, where any real point of difficulty that requires judicial decision has occurred.

Leaving aside, for the moment, that the present sort of challenge ought not, except in the very clearest of cases, be brought on a motion, counsel for the Defendant submits that Dyson ought not to apply, for there the facts were not in dispute as they possibly are in the present instance. I do not see that as negating the general principle in Dyson, that an interested individual, an aggrieved member of the public, ought to be able to obtain declaratory relief. Indeed, that is the general thrust of the modern case law to which I now turn.

[11]       The Supreme Court of Canada has considered the issue of standing in a trilogy of cases, [1975] 1 S.C.R. 138">Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138, [1976] 2 S.C.R. 265">Nova Scotia Board of Censors v. McNeil [1976] 2 S.C.R. 265 and [1981] 2 S.C.R. 575">Minister of Justice of Canada v. Borowski [1981] 2 S.C.R. 575. In the latter Mr. Justice Martland, speaking for the majority of the Supreme Court, summarized the principles, as to standing, arising out of [1975] 1 S.C.R. 138">Thorson and of [1976] 2 S.C.R. 265">McNeil:

I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. (page 598).

In [1981] 2 S.C.R. 575">Borowski, the Plaintiff, as an individual taxpayer, sought to obtain a declaration that certain provisions of the Criminal Code were inoperative. To do so he had to meet the conditions, set out by Mr. Justice Martland above, as to standing: first, that there was a serious issue; second, that he was directly affected or genuinely interested as a citizen; and third, that there was no other reasonable and effective way to bring the issue before a court.

[12]       Rather than consider each of the elements in [1981] 2 S.C.R. 575">Borowski individually, one is tempted to immediately refer to the Dumont case as an example on all fours with the present. While I will consider Dumont v. Canada, the Defendants' case for striking out also deserves a consideration in the context of the conditions set out by the Supreme Court in [1981] 2 S.C.R. 575">Borowski.

[13]       Counsel for the Crown submits that the Métis and non-status Indians do not easily fall within Dumont v. Canada (1987) 48 Man R. (2d) 4, which was reversed on appeal [1988] 5 W.W.R. 193, with the Supreme Court of Canada, (1990) 67 D.L.R. (4th) 159, subsequently agreeing with the trial judge that the action ought not to be struck out. While I will deal with Dumont as it applies to standing, the case, in this instance, has broader application and thus I will summarize it a little more thoroughly than I might otherwise.

[14]       In Dumont the Courts dealt with an alleged entitlement to certain rights by descendants of people referred to as "half breeds" in the Manitoba Act of 1870, now properly referred to as Métis. In the action the plaintiffs sought a declaration that certain Orders in Council were ultra vires the Parliament of Canada. The defendant founded its motion to strike out on two basic grounds: first, that the plaintiffs did not have standing in a public interest suit; and second, that the statement of claim failed to raise a justiciable issue. Mr. Justice Barkman dealt with the matter of standing in fairly short order: after considering a number of cases he adopted the statement of Mr. Justice Martland from Minister of Justice v. [1981] 2 S.C.R. 575">Borowski which I have set out above.

[15]       Mr. Justice Barkman, in dealing with the question of whether there was a justiciable issue, observed that the court had the jurisdiction to grant a declaratory order to persons sharing a legal relationship in respect of a real issue concerning there interests. He observed, relying on Mr. Justice Dickson's reasons in [1980] 1 S.C.R. 821">Solosky v. The Queen [1980] 1 S.C.R. 821, that while a declaration cannot cure past ills, but may affect future rights, such forward outlook did not deprive a declaration of potential utility. In [1980] 1 S.C.R. 821">Solosky Mr. Justice Dickson had this to say:

Once one accepts that the dispute is real and that the granting of judgment is discretionary, then the only further issue is whether the declaration is capable of having any practical effect in resolving the issues in the case. (page 833.)

The crux of this, in Mr. Justice Barkman's view, was whether there was a real issue and whether a declaration would have a practical effect.

[16]       In Dumont Mr. Justice Barkman also dealt with the argument that Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441 had restricted this doctrine by requiring evidence of a current violation of the rights of the plaintiffs. There, as here, if one accepts the statement of claim as if proven for the purposes of the motion, one may be satisfied that there is a current violation of the rights of the plaintiffs. Mr. Justice Barkman refused to strike out the statement of claim.

[17]       Four of the five members of the Manitoba Court of Appeal, in Dumont, struck out the statement of claim, on the basis that the issue was really academic, for in their view the only purpose of the declaration might be a future potential use by the parties in the course of negotiation of the settlement of Métis land claims. In effect, the Court of Appeal took a narrow position, that a declaration was not available as a cure for past ills and that its potential utility would not decide any issue essential to the resolution of extra-judicial claims. In reaching this conclusion, the majority of the Court of Appeal noted that "the federal government is obliged to do no more than negotiate with the Métis in good faith." (page 209), the federal government having expressed a willingness to negotiate a settlement of the claim: this is a point which has bearing in the present instance.

[18]       In dissent, Mr. Justice of Appeal O'Sullivan pointed out that the Constitution Act of 1982 recognized the existence of the Métis as an Aboriginal people with certain rights. He went on to point out both that rights could not exist without a remedy and that the rights of the Métis must be assertable by someone. They were therefore justiciable rights which the plaintiffs were capable of asserting without turning either to international bodies or to the conscience of humanity in general.

[19]       The Supreme Court of Canada, in Dumont, restored the trial decision. The view of the Supreme Court of Canada, while exceedingly brief, is consistent with much of what Mr. Justice of Appeal O'Sullivan said. The Supreme Court of Canada found that the outcome of the case was neither plain and obvious nor beyond doubt and that:

Issues as to the proper interpretation of the relevant provisions of the Manitoba Act of 1870 and the Constitution Act of 1871 and the effect of the impugned ancillary legislation upon them would appear to be better determined at trial where a proper factual base can be laid.

The court is of the view also that the subject matter of the dispute, inasmuch as it involves the constitutionality of legislation ancillary to the Manitoba Act, is justiciable in the courts and that declaratory relief may be granted in the discretion of the court in aid of extra-judicial claims in an appropriate case.

We see no reason, therefore, why the action should not proceed to trial. . . . (page 129)

The Supreme Court made it clear that the proper interpretation of the Manitoba Act and of the Constitution Act was best left to be determined at trial, in a proper factual context and that declaratory relief might be granted, in the discretion of the Court, as an aid to resolving extra-judicial claims, in an appropriate instance.

[20]       As I say, the Defendants submit that the Métis and non-status Indians, represented by the individual plaintiffs, do not easily fall within the Dumont case. Yet, in Dumont, the trial judge pointed out that he had to accept the facts as pleaded and that the Métis plaintiffs there did have standing in order to seek a declaration as to the validity of orders-in-council and legislation.

[21]       The Defendants press an argument that the individual Plaintiffs do not say they are members of a distinct Aboriginal community and from this they say it follows that they do not have standing. Yet the nature of the Métis and non-status Indians is that they do not belong to Bands as defined in section 2 of the Indian Act. Here I recognize that many so-called non-status Indians only became such because they, or those from whom they have descended, in one way or another, became enfranchised and as such are a distinct community, but not such as defined as a Band under the Indian Act. Moreover, the Supreme Court of Canada has looked upon the Métis as quite distinct from other Aboriginal peoples of Canada: see R. v. Van der Peet [1996] 2 S.C.R. 507 at 558. Further, exploring the concept of the Band, the individual Plaintiffs do not, as I have already pointed out, claim any sort of site specific relief which a Band might claim, but rather the status of inclusion as Indians pursuant to the Constitution Act of 1867. I do not accept that the individual Plaintiffs must have membership in a distinct Aboriginal community, holding an unextinguished Aboriginal right, to have standing to sue for declaratory relief. In any event, what the individual Plaintiffs have is a designation or a calling of Métis and of non-status Indians, as proven, for the purpose of this motion, by the Statement of Claim and through that designation a personal direct interest in these proceedings.

[22]       Leaving these several specific cases, I now turn briefly to the three-part test from [1981] 2 S.C.R. 575">Borowski. First, there is clearly a serious question to decide, a question not previously dealt with and one which affects many individuals.

[23]       Second, taking the Statement of Claim as proven, I accept that the individual Plaintiffs are not only directly affected, but also are genuinely interested, as citizens, in obtaining certainty as to their status; in determining the existence of a fiduciary duty owed by the Crown; and in ascertaining a right to be negotiated with, collectively, in good faith by the Crown, this last point being something which was assured by the majority of the Court of Appeal in the Dumont action (supra) and clearly not disputed by either the trial judge or the Supreme Court of Canada.

[24]       Finally, there is the issue of whether there is some other reasonable and effective manner in which the Plaintiffs' issue may be brought before the Court. Clearly, neither the federal Crown nor the provincial Crown are the least bit interested in negotiating with the Métis and with non-status Indians who, as a result, are trapped in a jurisdictional vacuum between Canada and the Provinces. Therefore, even though ". . . the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.", as Chief Justice Lamer pointed out in Delgamuukw v. B.C. [1997] 3 S.C.R. 1010 at 1123, the issues in this proceeding are highly unlikely to come before the Court in the context of a suit over a specific right. Given the track record of the Crown in refusing to negotiate, it could well be generations before this issue could come before the Court in some other suitable fact situation. That is in no one's interest. To urge, at this point, that the litigation is premature, when there is no prospect of negotiation, is to throw unreasonable difficulty in the way of this proceeding, for there is a real point of difficulty which requires a timely judicial decision. Here I acknowledge that the Dumont case is perhaps headed for some sort of a determination under section 91(24) of the Constitution Act of 1867, however the parties have been litigating for over 20 years and perhaps will never reach a conclusion, let alone a timely conclusion. Thus the present proceeding is an appropriate vehicle.

Standing of the Congress

[25]       The standing claimed by the Congress is that of a public interest plaintiff. The Statement of Claim sets out that the Congress, a body corporate, has itself and through its predecessor, the Native Council of Canada, represented Métis and non-status Indian peoples throughout Canada since 1972. Its objects include the advancement of the common interest and welfare of its constituency through collective action. The means to achieve this broad objective, as set out in its supplemental Letters Patent, include discussion and cooperation with the governments of Canada, the Provinces and the Territories. To crystalize its results the Statement of Claim sets out that the Congress has the ability to enter into agreements with governments and authorities.

[26]       The Statement of Claim goes on to set out that while the Congress and its predecessor attempted and continue to attempt to engage in negotiations with the federal government, on behalf of the Métis and non-status Indian peoples of Canada, those negotiations have been and continue to be frustrated and hampered by a denial by the Crown that Métis and non-status Indians are entitled to any rights within the jurisdiction of the federal Crown and thus, in the view of the Congress, the Crown has refused or failed to negotiate in good faith, or even to negotiate at all.

[27]       The position of the Crown is that public interest standing, such as that claimed by the Congress, is only available to prevent the immunization of legislation, or public acts from challenge. Again, the Crown begins with the proposition, from [1981] 2 S.C.R. 575">Borowski (supra) at page 598, that to have public interest standing there must be "no other reasonable and effective manner in which the issue may be brought before the Court.", by which to challenge oppressive action by the Crown. I have already dealt with this concept by pointing out that this proceeding is the only timely and presently suitable way by which to canvas the present issues before a court.

[28]       Counsel for the Crown next moves to Finlay v. Canada [1986] 2 S.C.R. 607, a consideration of extension of public interest standing in a situation involving a non-constitutional challenge of an exercise of statutory authority. The Crown notes that in Finlay the Supreme Court was addressing a situation in which the core issue was the restraint of government action. I am not certain how this helps the Crown. However Finlay is certainly helpful to the Congress, for the Supreme Court, relying upon Boyce v. Paddington Borough Council [1903] 1 Ch. 109 at 114, which is to the effect that a party, even without a traditional cause of action, in a private law sense, might bring proceedings to vindicate public rights in two situations. First, the plaintiff might bring a proceeding where he or she has suffered special damages particular to that person; or second, where the public interest favours recognition of such standing:

A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right. (page 114)

The Supreme Court of Canada, at page 619 of Finlay, characterizes this as an authoritative expression of a rule.

[29]       Pursuing this a little further, the Congress pleads, and here I must accept the pleading as if proven, for the purposes of this motion, that it represents Métis and non-status Indians, that it has attempted to engage in negotiations with the federal government on behalf of its constituency and that the federal government has refused to negotiate in good faith. From this the Congress argues that it has suffered special damage of a unique kind and that this is sufficient to give the Congress standing in its own right. Now this is certainly in line with both Finlay and with Dumont (supra).

[30]       Here I should refer to Native Women's Association of Canada v. Canada [1992] 3 F.C. 192. In the Native Women's Association case the Court of Appeal dealt with a claim of unequal treatment as to both government funding and as to participation in the process of constitution review by the Crown, directed against the appellant Association and its members. Indeed, participation in the constitutional review process was the primary concern of the Association. There, the Association was looked upon as a bona fide, established and recognized national voice for Aboriginal women. Here the Congress is similarly an established and recognized voice for Métis and non-status Indians. The first issue dealt with by the Court of Appeal was whether any constitutional rights of the Native Women's Association, or anyone it represented, had been infringed. Certainly the rights at issue were charter and constitutional rights, however the relevant issue, in the present instance, is that of standing of the Congress. Standing of the Native Women's Association was not an issue either at the trial level ([1992] 2 F.C. 462) or before the Court of Appeal: nor should it be an issue here.

[31]       So much for analogous case law situations. As to a more analytical approach, one might again apply the [1981] 2 S.C.R. 575">Borowski formula, which I considered earlier, the requirements being a serious and justiciable issue directly affecting or of genuine interest to the party seeking public interest standing, there being no other reasonable and effective manner in which the issue might be brought before the Court.

[32]       First, the question of whether the Métis and non-status Indians are within federal jurisdiction under section 91(24) of the Constitution Act of 1867 and whether the federal Crown owes a duty to negotiate in good faith, on a collective basis, are serious issues which, in all likelihood, are justiciable. Hogg on Constitutional Law of Canada, looseleaf edition, 1999, Carswell, treats the scope of and designation of Indians, under the Constitution Act of 1867, as an issue worth discussing, including both as to non-status Indians and the Métis people. The view of Professor Hogg is that ". . . ‘non-status Indians' are also undoubtedly ‘Indians' within the meaning of s. 91(24), although they are not governed by the Indian Act.". Professor Hogg goes on to say that the Métis are also probably Indians within section 91(24). It is just not open to find that this is not a serious question. The Supreme Court of Canada treated an analogous issue, whether the Eskimos of Quebec were Indians within section 91(24) of the BNA Act, as a justiciable issue in [1939] S.C.R. 104">Re Eskimos [1939] S.C.R. 104.

[33]       As to the duty to negotiate in good faith, I have already referred to the view of Chief Justice Lamer in Delgamuukw v. B.C. (supra) at page 1123 that there is at least a moral, if not a legal, duty to conduct negotiations in good faith. Moreover, there is an overarching fiduciary obligation or duty toward Aboriginal peoples, a point made by Chief Justice Dickson, who wrote decision of the Court in The Queen v. Sparrow [1990] 1 S.C.R. 1075 at 1108:

. . . the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.

Clearly both Chief Justice Lamer and Chief Justice Dickson looked upon good faith and upon the product of negotiations in good faith as serious and justiciable matters.

[34]       As to the second part of the [1981] 2 S.C.R. 575">Borowski test, as I understand it, the Defendants concede that the Congress has an genuine interest.

[35]       As to an alternate effective means of bringing the issue to the Court, I have already pointed out that there may not, for many years, be another opportunity to resolve the present issues. I do not accept, as urged by counsel for the Defendants, that it is not only reasonably to be expected, but extremely likely that this type of relief will be sought, in the near future, by a Métis group styling itself as a distinct Aboriginal community. Indeed, when the Crown goes on to suggest that some of these issues are already before the courts in different actions and will be before the courts in the future, that approach would seem counterproductive in that it would result in the waste of scarce judicial resources by encouraging litigation, as opposed to discussion, negotiation and mutual agreement. Indeed, this was a point made by Chief Justice Lamer in Delgamuukw, at page 1123, when he noted that, by ordering a new trial, he was not necessarily encouraging litigation, but rather that there ought to be negotiation, there referring to the moral and perhaps legal duty of the Crown to enter into negotiations in good faith.

[36]       This leads to the last point on standing which I ought to make, that is whether the principles in Finlay (supra) ought to be nipped in the bud so as to prevent the opening of the floodgates of public interest litigation. The Crown refers to an aspect touched upon by the Supreme Court of Canada in Canadian Council of Churches v. Canada [1992] 1 S.C.R. 236 to the effect that public interest standing ought not to be granted to all who wish to litigate an issue, for there must be a balance between insuring court access and preserving judicial resources. From this it is said to follow that if marginal and redundant cases were allowed to proceed the courts would soon be overburdened with the suits of well-meaning litigants with narrow outlooks.

[37]       All of this is the floodgates argument, similar to that submitted in tort claims and here I have in mind Junior Books Ltd. v. Veitchi Ltd. [1983] 1 A.C. 520, where the principle suffered an authoritative rebuke. The principle, if indiscriminately applied, leads to the drawing of an arbitrary and illogical line for its own sake: see Lord Fraser of Tellybelton at page 532. Moreover, while the floodgates argument may still have a place, it should not be used to deny a remedy merely because it may make justice available to the many, rather than the few and here I have in mind a portion of the speech of Lord Roskill, at page 539 where, commenting on the floodgates theory, he said:

. . . today I think its scope is best determined by considerations of principle rather than of policy. The floodgates argument is very familiar. It still may on occasion have its proper place but if principle suggests that the law should develop along a particular route and if the adoption of that particular route will accord a remedy where that remedy has hither to been denied, I see no reason why, if it be just that the law should henceforth accord that remedy, that remedy should be denied simply because it will, in consequence of this particular development, become available to many rather than to few.

If the Plaintiffs' rights have been infringed and here there is an arguable case for it, they ought not to be denied just because there may be many others who have rights which have been infringed in a similar manner. Rather, those others are also entitled to relief.

[38]       It is perhaps just because the floodgates argument is suspect that the Supreme Court in Canadian Council of Churches (supra), in applying the floodgates argument, was less than absolute, the qualifications running from uncertainties, through comments about striking a balance, an escape from the principle where it could be shown that there would not likely be an attack by a private litigant and exhortation to exercise a liberal and generous discretion when applying the principle.

[39]       The floodgates argument is sometimes referred to as the in terrorem argument: I do not, in most instances, give effect to it and certainly would not strike out an action on that basis. All the more so when the present case may well lead not to excessive litigation, which might otherwise be the situation, but rather to negotiation in good faith, with give and take on both sides, to achieve an extrajudicial resolution. In the present instance, while standing may not be a certainty for the Congress, there is at least an arguable case by which to accord standing. This is the test, which was applied by Chief Justice Laskin in [1976] 2 S.C.R. 265">Nova Scotia Board of Censors v. McNeil [1976] 2 S.C.R. 265, a test which was cited by Mr. Justice Le Dain, in dealing with the approach the Court ought to take, on an application to strike out a statement of claim by reason of standing, in Finlay (supra) at page 616, is this:

In granting leave, this Court indicated that where, as here, there is an arguable case for according standing, it is preferable to have all the issues in the case, whether going to procedural regularity or propriety or to the merits, decided at the same time. (page 267 of [1976] 2 S.C.R. 265">McNeil)

While [1976] 2 S.C.R. 265">McNeil involved a challenge to a statute, the principle enunciated by Chief Justice Laskin is much broader. Not only on this principle, but also given the arguable case for standing and the high onus to satisfy under Rule 221, this is not the time to deny the Congress a right to litigate merely because there may be conflicting case law bearing on standing. I now turn to the Defendants' principal argument, that the Statement of Claim is an improper pleading.

Propriety of Pleading in the Amended Statement of Claim

[40]       The Defendants begin with a proposition that the amended Statement of Claim does not comply with the requirements for proper pleading under Rule 174 and that where pleadings are not in compliance with that Rule, they are both improper and a nullity. This goes too far: where there is not compliance with Rule 174, a pleading is clearly not a nullity, for the Court may always order further and better particulars. Certainly if pleadings do not have sufficient particularity, a party is exposed to attack by way of an application for further and better particulars and indeed, that ought to be a component of a motion to strike out which relies on a want of particulars. It is only where a want of particulars leads to a successful challenge of a pleading, under Rule 221 and through a motion to strike out, that the action may come to a premature conclusion, for example where there are insufficient facts to support the claim, or the pleading otherwise runs afoul of Rule 221 and cannot be cured by an amendment.

[41]       The Defendants' arguable case as to want of a reasonable cause of action rests upon a failure by the Plaintiffs to plead that they are members of a distinct Aboriginal community, that they hold unextinguished Aboriginal rights, and either that those rights have been infringed or that Canada has failed to recognize those rights.

[42]       This analysis rests on a faulty premise, that one may apply a section 35 Charter principle, a principle which requires claims by particular communities for specific Aboriginal rights, to the present case. The present case is not one which is parallel with or analogous to R. v. Van de Peet (supra) where the plaintiff, a member of the Sto:lo Band claimed a specific Aboriginal right to sell fish, a right said to be denied by the Fisheries Act. Rather, as I have already pointed out, the present claim is not for a Band or Indian Nation specific right, but for a designation as to status. According to Dumont (supra), which I have already considered at length, such a claim may be good, for there the claim of the Métis, who sought general declaratory relief, was judged a justiciable issue by the Supreme Court of Canada. I now turn to the submission that the allegations in the amended Statement of Claim are vexatious.

Vexatious Pleading

[43]       Once a pleading has been determined to contain a potentially arguable reasonable cause of action, by applying the test for striking out and finding that the moving party has not shown the action one which, beyond doubt, plainly and obviously, discloses no reasonable cause of action, I am always hesitant even to consider whether the pleading is vexatious. This is all the more the case where statutes such as the Constitution Act of 1867 and the Manitoba Act of 1870 are relied upon, for the Supreme Court of Canada was very definite in pointing out, in Dumont (supra), at page 129, that an interpretation of those pieces of legislation ought to take place at trial with a proper factual basis. However, the Defendants say that a present absence of factual underpinnings of the Plaintiffs' claim, "including details of their membership in a distinct Aboriginal group", leaves the Defendants unable to adequately respond to the amended Statement of Claim. This is a sound concept, one set out in Mountain Prison (Inmates) v. Canada (1998) 146 F.T.R. 265 at 267, however in the present instance there is a faulty application, for the distinct Aboriginal group concept has no place in this action.

[44]       Examining the amended Statement of Claim itself, I am satisfied that the Plaintiffs have set out background facts sufficient to allow the Defendants to plead to the claim, the resolution of which would alleviate a live controversy and a real difficulty: in short, it could lead to a benefit for both sides. That there is presently substantial disagreement and controversy between the Plaintiffs and the Defendants, most notably as to the characterization of this claim, that is not an indication of a vexatious pleading. To elaborate, a vexatious claim and here I would note that the concepts of vexatiousness and frivolousness are usually linked, is that of a claim which is not sustainable. This concept and the law explaining it are set out in Larden v. Canada (1998) 145 F.T.R. 140 at 150:

. . . A frivolous and vexatious action includes a proceeding which is brought or carried on by a plaintiff who is not acting bona fide: it is a proceeding which will not lead to a practical result. The words frivolous and vexatious define a claim which is obviously unsustainable: Duchy of Lancaster (Attorney General) v. London and North Western Railway Co., [1892] 3 Ch. 274 (C.A.), at 277. The expression frivolous and vexatious includes proceedings which are an abuse of process: Ashmore v. British Coal Corp., [1990] 2 Q.B. 338 (C.A.), at 347. An abusive action is one which misuses or perverts the procedure of the court. It has been characterized as an action which can lead to no possible good, one where the defendants are to be dragged through long and expensive litigation for no possible benefit: see Lord Justice Bowen's Judgment in Willis v. Beauchamp (Earl) (1886) 11 P.D. 59 (C.A.), at 63.

Here the Defendants are not being dragged through litigation, even though it may be both long and expensive, for no possible benefit. Indeed, the principal relief which the Plaintiffs seek, a designation as to status, something which the Eskimo received in 1939, and a duty on the part of the federal government to negotiate with them in good faith, a duty referred to both by the Court of Appeal in Dumont (supra) and by Chief Justice Lamer in Delgamuukw (supra), is far from being a vexatious approach, but rather may lead to a sustainable claim with very possible and positive benefits.

Prejudicial Pleading

[45]       Under this line of argument the Defendants say that the amended Statement of Claim is composed of assertions, without supporting material facts. As such it is thus said to be prejudicial. Here the Defendants rely upon a passage from Caterpillar Tractor Co. v. Babcock Allatt Ltd. [1983] 1 F.C. 487 at 493:

A court proceeding is not a speculative exercise and actions are not to be launched or continued, nor are defences to be allowed to stand where it is clear that the person making the allegation has no evidence to support it and where the onus of proof rests on that person. It has, in my view, been fully established that the allegations in paragraphs 9(b) and 10(b) are frivolous and vexatious and may prejudice or embarrass a fair trial and constitute an abuse of the Court.

The concept here is that a proceeding not be an exercise in speculation, but rather that a party making allegations ought to have evidence to support them. However Mr. Justice Addy, in Caterpillar Tractor, then went on to link a prejudicial proceeding to one in which allegations are frivolous and vexatious. I have already determined that the allegations in this instance are not clearly frivolous or vexatious. Indeed, an examination of the Statement of Claim shows a clear and logical progression of facts, including as to the development of the Métis people and the growth of their distinct cultures, languages and lifestyles; the legal recognition of the Métis pursuant to various legislation; the initial recognition of non-status Indians and the erosion of their rights by reason of a narrowing of the scope of the Indian Act; the denial of status under section 91(24) of the Constitution Act of 1867; a failure or refusal to accept that a fiduciary duty is owed; and a failure or refusal to negotiate in good faith on a collective basis with Métis, non-status Indians and their representatives. Here are more than sufficient facts to allow the Plaintiffs to plead to this Statement of Claim. Taken together these facts do not set out a claim which is a speculative exercise without evidence in support. While the Defendants could, conceivably, require further particulars for trial, that is not a ground for holding that the present pleading is prejudicial to the extent that it is plain and obvious that it will not succeed and thus ought to be struck out at this stage.

Abuse of Process

[46]       The Defendants submit that, as a further alternative, the amended Statement of Claim is an abuse of the process of the Court. Here they refer to Ceminchuk v. IBM Canada Ltd. (1996) 101 F.T.R. 38 at 42 where I noted that:

The present action is also an abuse of the process of the Court in that serious allegations have been made, but no facts have been pleaded. Such irrelevant allegations are an abuse of process and should be struck out.

Here I would note that the Statement of Claim in Ceminchuk was a nasty piece of pleading. However, the Defendants do make two specific complaints of abuse. First, the Defendants say that the Plaintiffs make sweeping claims about entitlements, but do not provide factual underpinnings. I have set out, in the above consideration of prejudice, an outline of the amended Statement of Claim. There are sufficient factual underpinnings at this point.

[47]       The second ground of prejudice is a failure to plead membership in a distinct Aboriginal community, a specific unextinguished Aboriginal right and particulars of how the right has been infringed. I have already dealt with this argument a number of times. It gets the Defendants no farther in this instance. Indeed, the cases upon which the Defendants have relied, for the argument that there are insufficient material facts, all involve the assertion of particular Aboriginal rights, as contrasted with the general declarations sought here.

Nature of Declaratory Relief

[48]       The Defendants submit that the declaratory relief which the Plaintiffs seek, and I will not set that out again, is not available because it would constitute a declaration of fact. Here the reference is to Administration de Pilotage v. Pilotes (1994) 74 F.T.R. 185, where Mr. Justice Joyal dealt with an action seeking a declaration that the pilotage authority might waive compulsory pilotage. What bothered Mr. Justice Joyal was the absence of any question requiring legal interpretation of the issue, for the regulations, as to waiver of a compulsory pilot, were clear. At page 192 he observed that the Court has no jurisdiction to make a declaration of fact and for that, and other reasons, he struck out the action.

[49]       Incidental findings of fact would almost always be involved in proceedings for declaratory relief under Federal Court Rule 64. Counsel for the individual Plaintiffs refers to Harris v. Canada (2000) 187 D.L.R. (4th) 419, a decision of the Federal Court of Appeal, for an example of a declaration which would require major findings of fact. I will accept this as a valid answer. However it would be interesting to explore this a little further, beginning with the nature of the declaratory judgment:

A declaratory judgment is a formal statement by the courts pronouncing upon the existence or non-existence of a legal state of affairs. It declares what the legal position is and what are the rights of the parties. (de Smith Wolf and Jowell on Judicial Review of Administrative Action, Sweet and Maxwell, 1995 at page 735)

This makes it clear that a declaration is a finding as to what is the legal position, that is, in respect of a question of law. Yet this is not a hard and fast rule and here I have in mind Re Constitution of Canada (1982) 125 D.L.R. (3d) 1, also referred to as the Patriation Reference.

[50]       In the Patriation Reference the Supreme Court of Canada granted various declarations, including factual declarations as to the existence and scope of a constitutional convention and here I would refer to the majority decision on the second question, beginning at page 89, under the heading "Whether the Convention Exists". I would summarize the answer to the Defendants' submission that declaratory relief ought not to be granted because the declaration is one of fact, by pointing out that it is at least strongly arguable that the declarations that are sought are of law, with factual findings a byproduct. Yet, as the Patriation Reference illustrates, a declaration of fact is not unknown.

CONCLUSION

[51]       The Defendants' motion to strike out the Statement of Claim is denied. This does not necessarily mean that the Plaintiffs will succeed, however they clearly ought to be given the opportunity, at this time, to establish that they are Indians within section 91(24) of the Constitution Act, that the Queen owes them a fiduciary duty and that they have a right to be negotiated with in good faith, on a collective basis with respect to their rights, interests and needs as Aboriginal people.

[52]       Should the Plaintiffs succeed, much future litigation will be avoided because the parties will be able to enter into meaningful negotiation: if the Plaintiffs fail, much litigation will then never take place. In either situation this will provide certainty for the parties, avoid litigation and save scarce judicial resources.

[53]       As I have noted in these reasons, it is usual in bringing a motion which is based, at least in part, on a lack of particulars, to request particulars as an alternative. Having elected not to request further particulars for pleading, the Defendants ought not to further attacked the Statement of Claim, but should get on with the action: see for example Ruby Trading S.A. v. Parsons (2001) 194 F.T.R. 103 at 107 and Horii v. Canada (2001) 195 F.T.R. 163 at 166 and following.

[54]       I thank counsel for their substantial effort and the excellent presentation of their cases. However, the motion to strike out perhaps amassed a life of its own by reason of a perceived need by the federal Crown to maintain the hard line, leaving the Plaintiffs with no one with whom to negotiate. I would remind the Crown, and I do not here refer to Crown counsel, of the material which I quoted from Dyson (supra) to the effect that unreasonable difficulty ought not to be thrown in the way of procedures in which claimants, acting bona fide, bring questions of great importance to the courts in order to obtain declaratory relief. Here I will repeat what was said in Deare (supra) at page 208 and which was quoted in Dyson at page 424:

. . . It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a Court of justice, where any real point of difficulty that requires judicial decision has occurred.

[55]       Counsel for the Plaintiffs, and here I note that the individual Plaintiffs, on the one hand and the Congress, on the other hand, each had separate counsel, seek solicitor-client costs on the grounds that the motion lacked substance and had no purpose, other than to delay a plausible and indeed a serious case. I would not go so far. However the Plaintiffs shall have two sets of costs, payable forthwith, taxed within Column III.

(Sgd.) "John A. Hargrave"

                                                                                                                     Prothonotary

Vancouver, British Columbia

15 March 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-2172-99

STYLE OF CAUSE:                           Harry Daniels et al. v. HMQ et al.

PLACE OF HEARING:                     Edmonton, Alberta

DATE OF HEARING:                       February 13, 2002

REASONS FOR ORDER:              Hargrave P.

DATED:                                                March 15, 2002

APPEARANCES:

SOLICITORS OF RECORD:

Dale Gibson Associates

Edmonton, Alberta

FOR INDIVIDUAL PLAINTIFFS

Mr. Morris Rosenberg

Deputy Attorney General of Canada

FOR DEFENDANTS

Paliare Roland Rosenberg Rothstein LLP

Toronto, Ontario

FOR THE CONGRESS OF ABORIGINAL PEOPLES

Mr. Joseph Magnet

Faculty of Law - University of Ottawa

Ottawa, Ontario

OF COUNSEL FOR THE CONGRESS OF ABORIGINAL PEOPLES