Date: 20080702
Docket: T-2172-99
Citation: 2008
FC 823
BETWEEN:
HARRY DANIELS, GABRIEL
DANIELS,
LEAH GARDNER, TERRY JOUDREY 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
(Delivered from the Bench in Toronto, Ontario
on June 25, 2008)
HUGESSEN
J.
[1]
This is a motion brought by the defendant Crown
to strike the statement of claim or to dismiss the action. It is very similar
to a motion which was brought a number of years ago by the Crown and pleaded
before Prothonotary Hargrave and dismissed by him. That decision was not timely
appealed by the Crown (Daniels v. Canada (Minister of Indian
Affairs and Northern Development), [2002] 4 F.C. 550).
[2]
In particular,
the Crown argues today as it did in the previous motion that the case raises a
pure question of law and is analogous to a private reference.
[3]
The well-known
case of the reference Re Eskimos in the Supreme Court of Canada
is given as an example (Reference re: British North America Act, 1867
(U.K.), s. 91, [1939] S.C.R. 104).
[4]
I am
content with regard to this aspect of the motion to adopt Prothonotary
Hargrave's reasons which like so many of the decisions that gentleman rendered (his
loss is much felt by all of us) are complete, thorough, and, in my view,
entirely correct.
[5]
With
one exception, which I will come to in a minute, the points taken today
by the Crown were taken before Prothonotary Hargrave and dismissed. I would, however, add this. The analogy insisted upon by the
Crown to the Eskimos case is simply not an argument in favour of the
case’s dismissal.
[6]
The fact
that the government has the power to raise the same issues which come up in
this case and to raise them by way of a reference does not mean that those
issues cannot come before the Court in some other way. In my view, the present
action is precisely such another way and is legitimate.
[7]
The classic
three requirements in this and I think in every other Court for obtaining
declaratory relief are:
1.
That plaintiff has an interest
2.
That there be a serious contradictor for the claim.
3.
That the issue raised and upon which a declaration is sought is a real and
serious one and not merely hypothetical or academic. (Montana Band of
Indians v. Canada, [1991] 2 F.C. 30 (C.A.), leave to appeal to S.C.C.
refused (1991), 136 N.R. 421).
[8]
In
my opinion it is certainly not beyond question that those requirements have not
been met in the present case. Indeed, I think that they are all met and
satisfied.
[9]
The exception which I mentioned a minute ago, that was not
perhaps pleaded thoroughly before Prothonotary Hargrave, is the argument
concerning the Court's jurisdiction. That point was not directly taken before
Prothonotary Hargrave, although it clearly could and, in my view, should have
been.
[10]
The argument
is that this case does not meet the three criteria laid down in the ITO
case and refined in the Roberts case (ITO – International Terminal
Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Roberts v.
Canada, [1989] 1 S.C.R. 322). In my view it fails.
[11]
There is a clear statutory grant of jurisdiction to this Court in
section 17 and I would add section 18 as well of the Federal Courts Act,
R.S.C. 1985, c. F-7.
[12]
The
plaintiffs claim rights as “Indians”, as aboriginal peoples, and as
beneficiaries of the fiduciary duties owed by the Crown.
[13]
The Crown
argues that this is a “bare” constitutional question and that the only law required
to answer it is subsection 91(24) of the Constitution Act, 1876 which is
not a “law of Canada” within the meaning of the applicable case law which I have
just mentioned. The Crown in my respectful view is wrong.
[14]
Of course
section 91 and particularly subsection 24 of the Constitution Act, 1876 will
be in play. There can be no doubt of that. But that is not all that the Court
will have to apply in order to determine the questions before it.
[15]
It is
settled law now that aboriginal rights, the scope of the Crown's duties to its
aboriginal peoples, and the status of non-“Indians” (that is persons not
covered by the Indian Act, R.S.C. 1985, c. I-5) are matters of federal
law and it is a field of law which is in rapid (and I would say with respect
almost vertiginous) development.
[16]
Its sources
go back to the time of first contact but they are still with us today and are
being developed daily in judgments of the Supreme Court and us, the lower
courts.
[17]
It
is far from being plain and obvious to me that this Court is without
jurisdiction to hear this case. Indeed the contrary is my view of the matter.
[18]
The motion
will therefore be dismissed with costs.
[19]
The case
is far developed. Thousands of documents have been produced. Several
supplementary affidavits of documents have been filed. Interrogatories have
been asked and answered. Discoveries have been held and although there are some
refusals and undertakings still outstanding, they have been largely answered.
[20]
Plaintiffs
have filed their pre-trial memorandum but the Crown has not.
[21]
In
my view this motion should not have been brought.
[22]
The Crown
will pay costs to the plaintiffs which are hereby fixed and assessed in the
amount of $20,000 all inclusive, forthwith and in any event of the cause.
[23]
An order will go to that effect.
“James
K. Hugessen”
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