Date: 20130408
Docket: T-2007-12
Citation: 2013 FC 350
Ottawa, Ontario, April 8, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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THAHOKETOTEH
OF KANEKOTA
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Plaintiff
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and
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HER MAJESTY
THE QUEEN
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Defendant
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REASONS
FOR ORDER AND ORDER
[1]
The Plaintiff, who is self represented, commenced an action
against Her Majesty the Queen [the Crown or the Defendant] in this Court by
serving and filing a Statement of Claim on November 5, 2012. The Plaintiff
seeks:
[A] declaration that [HMQ] is
under the “legal duty” type of “Trust” within the meaning of In re Indian
Claims (1896) and section 109 of the Constitution Act, 1867, not to
apply or permit the application of federal or provincial law to the Grand River
or Haldimand Tract except by treaty in compliance with the Royal
Proclamation of 1763 and proven, in the event of dispute, before the
Standing Royal Committee consulted by the Order in Council (UK), 1704.
[2]
Beyond a description of himself as being “Onkwehonwe . . .
of the Kanionkehaka [. . . Mohawk] Nation”, the Plaintiff pleads no facts.
Rather, the Plaintiff’s Statement of Claim consists of a series of legal
submissions. In the final paragraph 14 of his Statement of Claim, the Plaintiff
states that:
The only genuine issue is the prima
facie identity of the proper law of the territory and corresponding trust
relationship between the parties, a question of constitutional jurisdictional
law alone that is settled for stare decisis purposes.
[3]
On this basis, the Plaintiff proposes that the action be
disposed of on the basis of Rule 220(1)(a) of the Federal Courts Rules,
SOR/98-106 as a preliminary question of constitutional law and,
concurrent with his Statement of Claim, also filed a “Motion Record” asking the
Court to determine the above question.
[4]
On January 3, 2013, the Defendant filed a Motion to strike
the Plaintiff’s action. The Defendant asserts that the action should be struck
on the basis that it is plain and evident that the claim cannot succeed (Rule
221(1)(a)).
[5]
For the reasons which follow, I agree with the Defendant
and will strike the action without leave to amend. There are two overarching
reasons for this conclusion: (a) there are no factual underpinnings to the
claim; and (b) the action has no reasonable grounds of success.
Lack of Factual Context
[6]
The Plaintiff seeks a substantial declaration of his
constitutional rights. However, the fatal flaw in his Statement of Claim is
that it sets out no specific allegations against the Defendant, beyond what I
infer to be a vague and general assertion that the Defendant has not recognized
the land rights of the Kanionkehaka Nation or the trust relationship between
that First Nation and the Crown. No instances or details of how this alleged
failure has impacted the Plaintiff are pleaded. This is not an appropriate
situation to decide a pure question of law, since the question posed is
entirely hypothetical and lacks factual context.
[7]
A cause of action must lie on material facts. This is
particularly true of actions in which a plaintiff seeks to resolve a constitutional
question. As has been clearly pointed out by the Supreme Court of Canada,
“Constitutional questions should not be discussed in a factual vacuum” (Kitkatla
Band v. British Columbia (Minister of Small Business, Tourism and Culture),
2002 SCC 31 at para 46, [2002] 2 S.C.R. 146).
[8]
I am cognisant that this Court is willing to adjudicate pure
questions of law in certain instances. For example, in Daniels v Canada (Minister of Indian Affairs and Northern Development), 2008 FC 823, [2008] FCJ
No 1025 [Daniels (Hugessen J)], Justice Hugessen refused to strike a
statement of claim for declaratory relief vis-à-vis the rights of non-status
Indians and the Métis.
[9]
However, in contrast to the present case, the Statement of
Claim in Daniels disclosed many material facts and presented much more
than a hypothetical legal question As described by Prothonotary Hargrave in an
earlier decision involving the same claim (Daniels v Canada (Minister of
Indian Affairs and Northern Development), 2002 FCT 295 at para 5, [2002] 4
FC 550):
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 subsection 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. [Emphasis added.]
[10]
Moreover, the record before the trial judge who ultimately
heard the action was immense, including extensive expert testimony and over 800
exhibits, containing selections from over 15,000 documents (Daniels v Canada
(Minister of Indian Affairs and Northern Development), 2013 FC 6 at para
70, [2013] FCJ No 4 [Daniels (Phelan J)]).
[11]
Before me, I have no such statement of claim and no such
record. There is nothing in the Statement of Claim to describe how the Plaintiff
suffered harm in the absence of the declaration sought or how the declaration
could assist him.
[12]
In Daniels (Hugessen J), above at para 7, Justice
Hugessen described the requirements for obtaining declaratory relief as
follows:
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), [1991] S.C.C.A. No. 164, 136 N.R. 421).
[13]
In the case before me, the Plaintiff has raised an issue
that is “merely hypothetical or academic”. In the circumstances, I am of the
view that the action should be struck on the basis that it lacks a cause of
action.
No Reasonable Cause of Action
[14]
However, in the event that I am wrong and that this
Statement of Claim pleads a justiciable issue, I turn to the question of
whether there is a prospect that the claim will succeed. In other words, are
the allegations made in the Statement of Claim sustainable on their merits? The
answer, in my view, is “no”.
[15]
The test for striking a claim is well known. As set out in R
v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17, [2011] 3 S.C.R. 45, “a
claim will only be struck if it is plain and obvious, assuming the facts
pleaded to be true, that the pleading discloses no reasonable cause of action”.
[16]
The Plaintiff’s entire claim rests on two documents.
Firstly, he argues that the Grand River and Haldimand Tract should not be
subject to federal or provincial law, except as allowed by treaty, in
accordance with the Royal Proclamation of 1763, RSC 1985, App II, No 1 [Royal
Proclamation]. Secondly, the Plaintiff asserts that the Standing Royal
Committee constituted by an Order in Council dated 1704 has jurisdiction over
any dispute in this regard.
[17]
In my view, both of these arguments are fatally flawed;
neither the Royal Proclamation nor the 1704 Order in Council has the
effect asserted by the Plaintiff.
Royal Proclamation
[18]
Contrary to the contention of the Plaintiff, the Royal
Proclamation does not and cannot preclude the application of federal and
provincial law within the land at issue. The Royal Proclamation was
revoked before the land interest asserted by the Plaintiff first arose,
rendering the proclamation irrelevant.
[19]
The Royal Proclamation is an exercise of royal
prerogative (Chippewas of Sarnia Band v Canada (Attorney General) (2000),
51 OR (3d) 641 at paras 186-192, 195 DLR (4th) 135 (CA) [Chippewas]). As
such, it may be displaced by statute (Black v Canada (Prime Minister) (2001),
54 OR (3d) 215 at para 27, 199 DLR (4th) 228 (CA)).
[20]
The problem for the Plaintiff is that the Royal
Proclamation, insofar as it may have affected the lands that are the
subject of the Plaintiff’s pleadings, was revoked by the Quebec Act, 1774 (UK),
14 George III, c 83 [Quebec Act]. In particular, section IV of the Quebec
Act repealed the Royal Proclamation as it relates to the government
and administration of justice in Quebec and southern Ontario, which, at that
time, formed part of Quebec.
[21]
This understanding of the history of the Royal
Proclamation gives rise to the fatal flaw in the Plaintiff’s argument. The
Plaintiff relies on a land grant to the Mohawks in the Haldimand
Proclamation of 1784. Aboriginal interests protected by the Royal
Proclamation, while in force, continued in accordance with section III of
the Quebec Act (see, for example, St Catharines Milling and Lumber Co
v Ontario (Attorney General) (1887), 13 SCR 577 at 648; Ontario
(Attorney General) v Bear Island Foundation (1989), 68 OR (2d) 394 at 410,
58 DLR (4th) 117 (CA) aff’d [1991] 2 S.C.R. 570, 83 DLR (4th) 381 [Bear Island]).
However, the interest now asserted by the Plaintiff did not arise until after
the repeal of the Royal Proclamation. The Royal Proclamation
cannot have any legal relevance to an interest in land that did not exist until
after it was revoked.
[22]
The present situation resembles the Bear Island case. In Bear Island, the Ontario Court of Appeal determined that the Quebec
Act revoked the surrender provisions of the Royal Proclamation Consequently,
a surrender that occurred after this revocation was not subject to the
surrender procedures in the proclamation (Bear Island, above at 410;
see, also, Chippewas, above at paras 19, 186-219). Similarly, in the
present case, an interest which arose through a land grant in 1784 cannot be
protected by the Royal Proclamation, repealed in 1775.
[23]
In sum, it is plain and obvious that the Royal
Proclamation cannot preclude the application of federal and provincial law
based on the arguments of the Plaintiff.
Order in Council
[24]
The Order in Council asserted by the Plaintiff neither
precludes the application of federal and provincial law, nor provides for a
dispute resolution mechanism applicable to all disputes between First Nations
and the Crown.
[25]
The 1704 Order in Council specifically addresses a
particular dispute between the Crown and the Mohegans. The purpose of the
Commission created by the Order in Council was to protect the interests of the
Mohegans in their reserve land in a peaceful manner. This dispute resolution
mechanism, crafted to resolve a particular conflict over three hundred years
ago, does not apply generally to disputes between First Nations and the Crown.
In R v Clark, [1997] BCJ No 715 (Prov Ct) at paragraphs 33-35, Justice
Friesen came to this conclusion in the context of contempt proceedings. Justice
Bowman of the Tax Court of Canada similarly found that the 1704 Order in
Council has no legal relevance in Canada, and, even if it did, any legal effect
would not be preserved by s. 109 and s. 129 of the Constitution Act, 1867 (UK),
30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 (Clark v Canada,
[1994] TCJ No 1046 at paras 12-16, aff’d [1997] 2 CTC 334, [1997] FCJ No 555
(CA)).
[26]
Moreover, any appeal to the Privy Council created by the
1704 Order in Council was abolished in 1949. Section 52 of the Supreme Court
Act, RSC 1985, c S-26 provides the Supreme Court with “exclusive ultimate
appellate civil and criminal jurisdiction within and for Canada”. The Supreme Court Act was declared intra vires by both the Supreme Court and
Judicial Committee of the Privy Council (Reference Re Supreme Court Act
Amendment Act (Canada), [1940] S.C.R. 49 at 69-70; Ontario (Attorney
General) v Canada (Attorney General), [1947] AC 127, [1947] 1 DLR 801
(PC)).
[27]
In sum, the 1704 Order in Council created a specific
dispute resolution mechanism to resolve a specific conflict that arose over
three hundred years ago. It is plain and obvious that this Order in Council
does not have general application to disputes between First Nations and the
Crown as asserted by the Plaintiff.
Conclusion
[28]
In conclusion, it is clear and obvious that the claim of
the Plaintiff cannot succeed. Furthermore, there is nothing reflected in the
pleadings that could, if amended, give rise to a cause of action. Therefore,
the claim will be struck without leave to amend.
[29]
It follows that the Plaintiff’s motion to have this Court
determine the questions in issue as a question of law, pursuant to Rule 220(1)(a)
of the Federal Courts Rules, will be dismissed.
ORDER
THIS COURT ORDERS AND ADJUDGES that:
1.
the Motion of the Defendant is granted and the action set
out in the Statement of Claim of the Plaintiff is struck without leave to
amend, with costs to the Defendant in the lump sum of $500, inclusive of taxes
and disbursements; and
2.
the Motion of the Plaintiff to have this Court determine a
question of law pursuant to Rule 220(1)(a) of the Federal Courts Rules
is dismissed.
“Judith
A. Snider”
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