Docket: T-2428-14
Citation:
2017 FC 1049
Ottawa, Ontario, November 20, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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ONION LAKE CREE
NATION AS REPRESENTED BY ITS DULY ELECTED OKIMAW FOX, AND COUNCIL
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Plaintiff
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and
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THE GOVERNOR
GENERAL OF CANADA, HER MAJESTY THE QUEEN AS REPRESENTED BY THE MINISTER OF
ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT CANADA, AND THE ATTORNEY GENERAL
OF CANADA
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Defendants
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ORDER AND REASONS
I.
Overview
[1]
This decision relates to a motion brought by the
Plaintiff, Onion Lake Cree Nation [OLCN], in its action challenging the
constitutionality of the First Nations Financial Transparency Act, SC
2013, c 7 [the FNFTA]. In the course of this action, the Defendants (the
Governor General of Canada, Her Majesty the Queen as represented by the
Minister of Aboriginal Affairs and Northern Development, and the Attorney
General of Canada) brought a motion to have the Governor General removed as a
party to the action and the allegations in the Statement of Claim pertaining to
him struck. In a decision dated May 9, 2017, Prothonotary Lafrenière granted
the Defendants’ motion [the Decision]. In the present motion, OLCN appeals the
Decision pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106.
[2]
As explained in greater detail below, the
Plaintiff’s appeal is dismissed, because I have found no error by the
Prothonotary in concluding that it is plain and obvious that the Plaintiff’s
claim against the Governor General discloses no reasonable cause of action.
After taking into account the Plaintiff’s arguments surrounding the roles and
responsibilities it argues are borne by the Governor General, I find that the
Prothonotary correctly concluded that the Plaintiff’s claim against the
Governor General is not justiciable.
II.
Background
[3]
In its Statement of Claim, OLCN asserts that
that it was formed in 1914 and that it is comprised of two Treaty Peoples
(Makaoo and Seekaskootch) who are the successors to those who made a treaty
with the Crown in 1876 at Waskahikanis (now Fort Pitt, Saskatchewan) [the
Treaty]. Referred to as Treaty 6, the Treaty is a treaty within the meaning of
section 35 of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11).
[4]
The FNFTA was passed by the House of Commons and
the Senate during the 41st Parliament and received royal assent from the
Governor General on March 27, 2013. In November 2014, the Plaintiff commenced
the within action challenging the constitutionality of the FNFTA and seeking
various forms of relief arising from the passage and implementation of that
statute. In its Statement of Claim, OLCN asserts that the Defendants owe Treaty
members a fiduciary duty to implement the written, oral and implied terms of
the Treaty but that the Defendants have implemented their Treaty obligations in
a manner which breaches this fiduciary duty and other obligations owed to OLCN.
The Statement of Claim alleges that such implementation breaches the
Defendants’ fiduciary duty to administer lands and dispose of any interest for
the “use and benefit of” OLCN; gives rise to a
duty to consult which the Defendants failed to do; offends the honour of the
Crown; and offends s 15 of the Canadian Charter of Rights and Freedoms.
In particular, OLCN asserts that the passage and implementation of the FNFTA is
a breach of the Defendants’ Treaty obligations and a violation of its Treaty
rights.
[5]
In asserting these claims, OLCN’s Statement of
Claim includes specific allegations against the Governor General. It asserts
that the Governor General, as the representative of the Sovereign, is the
protector of the honour of the Crown in its dealings with First Nations and, in
particular, OLCN, and that the Governor General has breached his fiduciary duty
to consult with them and has offended the honour of the Crown by not upholding
the Treaty. The Statement of Claim also alleges that the Defendants passed the
FNFTA into law without royal consent from the Governor General, representing
either a departure not in accordance with the honour of the Crown or the Governor
General fulfilling his duty, in circumstances where the honour of the Crown and
its obligations were not met, by declining to give royal consent to the Act.
[6]
Relying on Rules 221(1)(a), (b) and (f) of the Federal
Courts Rules, the Defendants moved to strike the Governor General as a
defendant and the following paragraphs of the Statement of Claim:
2. The Defendant the Governor General of Canada is the representative
of Her Majesty the Queen in Right of Canada, the Crown, and is named in these
proceedings as her representative.
[…]
16. The
Defendant, the Governor General of Canada, having been appointed by Royal
Proclamation and then Letters Patent of March 23, 1931, attested to all the
powers and authorities lawfully belonging to the then King of England by virtue
of the British North America Act, 1967-1946, and thereafter by
Letter Patent and in such Commission conferred in by those Letters Patent, and
together with such Commission that issued to the Governor General under the
Great Seal of Canada, and under such laws that were and are in force in Canada.
17. The
Defendant, the Governor General of Canada, has the power to Summons, Prorogue
or Dissolve the Parliament of Canada, being the lawful representative of the
Queen and, inter alia, to give and does deliver the Throne Speech on behalf of
the Queen of England each and every year.
18. The
Defendant, Her Majesty The Queen as Represented by The Minister Of Aboriginal
Affairs is the Minister responsible for the obligations, duties and liabilities
as owed and to be delivered to the Plaintiff by reason of Treaty and Common
Law.
19. By Royal
Proclamation of 1763, RCS 1985 APP. 11, No. l, reserved lands possessed
by the First Nations in North America belonged by Treaty unless ceded to the
Crown by lawful surrender in accordance with procedures set out in the said
Royal Proclamation.
20. The
said Royal Proclamation set out a policy for the British Crown to treat and
deal with all First Nations fairly and honourably, inter alia, to protect the
First Nations people from exploitation and illegalities by anyone for any
reason.
21. Aboriginal
title, at all material times, was established by the said Royal Proclamation
and formed the corner stone for the Treaty with the Government of Canada and
the Defendant, Governor General, was and is established as the Protector of the
Honour of the Crown in all its dealings and undertakings with First Nations,
and in particular, the Plaintiff herein.
22. The
Honour of the Crown encompasses a duty by the Federal Government to always act
honourably in the performance and implementation of those undertakings and
obligations imposed on the Defendants in favour of the Plaintiff by the express
and implied words and intent of the Treaty.
23. The
Plaintiff has sovereign control over its area of reserved lands by exercising
its own system of customs and laws governing the First Nation people of the
Plaintiff, Onion Lake, consistent with their Treaty.
24. The
Defendant, the Governor General, has breached his fiduciary duty, duty to
consult as well offended the Honour of the Crown owed to the Plaintiff by not
upholding the terms of the Treaty.
[…]
78. The
Defendants passed into law the Act without Royal Consent by the Defendant
Governor General and this omission represents a departure not in accordance
with the Honour of the Crown.
79. Alternatively,
the Defendant, Governor General did not give Royal Consent to the said Act, and
therefore fulfilled his duty to the Sovereign Crown and to the Plaintiff in
circumstances where the Honour of the Crown and its obligations were in fact
not met as hereinbefore stated this Statement of Claim, then the Defendants
have acted as hereinbefore set out without the Royal Consent of the Governor
General.
[7]
The Defendants also moved to strike one of the
paragraphs of the prayer for relief in the Statement of Claim, which seeks a
declaration that the Governor General has failed to fulfil his duties to
protect OLCN and to adhere to and fulfil Treaty rights.
[8]
Prothonotary Lafrenière heard the Defendants’
motion in a special sitting on November 16, 2016, and on May 9, 2017 he granted
the motion, issuing the Decision summarized below.
III.
Prothonotary’s Decision
[9]
The Prothonotary identified the issues before
him as: (1) whether the Governor General is properly named as a party to this
action; and (2) whether the Statement of Claim articulates a claim against the
Governor General that is litigable and justiciable in this Court. He then
identified the applicable test on a motion to strike under Rule 221(1)(a) as
whether it is “plain and obvious” that the claim
discloses no reasonable cause of action and, in relation to striking
allegations as an abuse of process, he noted the Court’s inherent jurisdiction
to prevent abuse where a proceeding is clearly futile or plainly has no chance
of success.
[10]
In considering the first issue, the Prothonotary
rejected the Defendants’ argument that s 48(1) of the Federal Courts Act,
RSC 1985, c F-7, which prescribes a means of instituting a proceeding against
the Crown, precluded naming the Governor General as a defendant. While s 48(1)
refers to a form that includes a general heading reflecting “Her Majesty the Queen” as defendant in a proceeding
against the Crown, the Prothonotary concluded that the language in s 48(1) is
permissive, not mandatory.
[11]
The Defendants also submitted that the claim
against the Governor General should be struck as redundant under Rule
221(1)(b), because Her Majesty the Queen is already named as a defendant. The
Defendants contended that there was no basis for naming an individual such as
the Governor General in the absence of an allegation of personal liability
against the individual. The Prothonotary noted the acknowledgement by OLCN that
His Excellency the Right Honourable Governor General David Johnston is not
being sued in his personal capacity but also that OLCN maintains that distinct
declaratory relief is sought and available as against the Governor General
because of his role in upholding treaties as the Sovereign’s surrogate in Canada.
The Prothonotary referred to OLCN’s argument that the power to make and honour
treaties is vested in the Sovereign’s royal prerogative and observed that OLCN
is challenging not only the constitutionality of the legislation but also the
exercise of the royal prerogative in a manner that it alleges derogates from
its Treaty rights, such prerogative being distinct from Parliament’s
legislative power.
[12]
The Prothonotary described the essence of the
claim against the Governor General as asserting that he had a duty to OLCN not
to grant royal assent to a law which derogates from treaty rights that he was
obliged to protect, this duty being separate and distinct from that owed by Her
Majesty the Queen or the constitutionality of the legislation. However, the Prothonotary
concluded that it was not necessary for the purpose of the motion to fully
develop this issue, because the manifestation of the honour of the Crown may
arguably be divisible. As such, the Prothonotary was not prepared to strike the
Governor General as a party solely on the basis of s 48 or Rule 221(1)(b).
[13]
In connection with the second issue, whether the
Statement of Claim articulates a justiciable claim against the Governor
General, the Defendants asserted that the only manner in which the Governor
General is alleged to have been involved in the matter giving rise to this
action was by conferring royal assent on the FNFTA. The Prothonotary expressed
agreement with this characterization of the claim against the Governor General.
While the Statement of Claim alleges that the Governor General breached his
fiduciary duty in a number of ways, the Prothonotary found that the only
discernable allegation of such a breach was the Governor General’s involvement
in the passage of the FNFTA by giving royal assent.
[14]
The Prothonotary then reviewed recent case law
of this Court and the Federal Court of Appeal (canvassed later in these
Reasons) which considered the role of the Governor General in granting royal
assent and the jurisdiction of the courts over the legislative process. The
Prothonotary concluded that the Governor General’s discretion with respect to
granting royal assent is entirely controlled by the convention of responsible
government; that the Governor General’s role forms part of the legislative process
over which the courts have no oversight; and that no duty to consult arises
during the legislative process. While noting OLCN’s argument that the creation
and honouring of treaties is vested in the royal prerogative, which is
constitutionally distinct from the Canadian Parliament’s legislative power, the
Prothonotary held that this did not assist the Plaintiff in showing a
justiciable claim against the Governor General.
[15]
Finding that the claim against the Governor
General was not justiciable, the Prothonotary concluded that it was plain and
obvious that the allegations in the impugned paragraphs of the Statement of
Claim did not disclose a reasonable cause of action. He therefore ordered those
paragraphs struck and the Governor General removed as a defendant in the
action, although granting leave for OLCN to amend its Statement of Claim to
include some of the allegations contained in those paragraphs, which did not
relate directly to the role of the Governor General, elsewhere in its claim.
IV.
Issue
[16]
OLCN describes the issue in this appeal as
whether the Prothonotary erred by limiting his analysis of the justiciability
of the claim against the Governor General to the justiciability of the act of
royal assent.
V.
Standard of Review
[17]
The parties are agreed, and I concur, that the
standard of correctness applies to the Court’s review of the issue raised by
OLCN. In Hospira Healthcare Corporation v Kennedy Institute of Rheumatology,
2016 FCA 215 at para 79, the Federal Court of Appeal confirmed that the
standard of review set out in Housen v Nikolaisen, 2002 SCC 33 at para
8, applies to appeals from decisions of prothonotaries. The standard of review
for findings of fact and findings of mixed fact and law is palpable and
overriding error. For questions of law, the standard is correctness. The
parties are agreed that the Decision was based on a determination of law and
that the applicable standard of review is, therefore, correctness.
VI.
Analysis
[18]
The parties are also agreed that the
Prothonotary employed the correct test in considering the Defendants’ motion to
strike. Where they diverge is on the question of whether he applied that test
correctly.
[19]
In support of its position that the Prothonotary
erred, OLCN states that it is not asking the Court to set aside the Governor
General’s act of royal assent. Rather, it is seeking a declaration that the
Governor General has a duty to honour the Treaty and that he failed in that
duty in the enactment of the FNFTA. OLCN explains that its claim against the
Governor General is premised upon the following three issues: (a) whether the
Governor General is the proper situs of the honour of the Crown to
uphold the Treaty; (b) the content of that duty to uphold the honour of the
Crown; and (c) whether the Governor General breached that duty through acts or
omissions relating to the FNFTA. OLCN takes the position that each of these
issues is both novel and justiciable. OLCN argues that the Prothonotary erred
in concluding that it was not necessary for the purpose of the motion before
him to fully develop these issues.
[20]
The Defendants respond that the Governor
General’s only role in relation to the FNFTA was the granting of royal assent,
the act upon which the Prothonotary’s analysis focused. They take issue with
OLCN’s position that the Governor General had, or should have had, any other
role, arguing that this would be contrary to the principles underlying Canada’s
system of responsible government. The Defendants also argue that, even if the
Governor General had duties of the sort alleged by OLCN, these would be
exercised in the context of the legislative process and, by extension of the
authorities upon which the Prothonotary relied, would be non-justiciable.
[21]
As a first point, I note that I find no error
arising from the Prothonotary’s statement that it was not necessary for the
purposes of the motion to fully develop the issue as to the Governor General’s
duty to OLCN. The Prothonotary made this statement in the course of considering
the first issue in his analysis, i.e. whether the Governor General was properly
named as a party to the action. The Defendants argued that it was redundant to
name the Governor General when Her Majesty the Queen was already named as a
defendant. The Prothonotary characterized the essence of the claim against the
Governor General as an assertion that he had a duty to OLCN, separate and
distinct from that owed by Her Majesty the Queen or the constitutionality of
the legislation, not to grant royal assent to a law which derogated Treaty
rights that he was obliged to protect. The Prothonotary then noted that the
manifestation of the honour of the Crown, such as a duty to consult, may
arguably be divisible among various Crown emanations. Therefore, he was not
prepared to strike the Governor General as a party solely on the basis of s 48
of the Federal Courts Act or Rule 221(1)(b) of the Federal Court
Rules, which permits the striking of a pleading on the ground that it is
immaterial or redundant.
[22]
As I read the Prothonotary’s analysis, he was
not prepared to conclude that it was redundant for OLCN to have named the
Governor General, given that the honour of the Crown is arguably divisible.
Having decided on that basis to reject the Defendants’ argument that the claim
should be struck under Rule 221(1)(b), it was unnecessary for purposes of
disposing of that argument to further develop the issue surrounding the duty
resting with the Governor General.
[23]
However, turning to the second issue considered
by the Prothonotary, i.e. whether the Statement of Claim articulates a
justiciable claim against the Governor General, it is necessary to canvass the
argument raised by OLCN in this appeal that its claim asserts justiciable
issues independent of the Governor General’s role in granting royal assent.
[24]
I note that, despite taking that position, OLCN
still presents arguments that relate specifically to the Governor General’s
role in granting royal assent. While OLCN asserts that the situs of the
honour of the Crown to uphold the Treaty is an issue that can only be developed
through discovery in the within litigation, its position is that such situs
is the office of the Governor General, as the delegate of the Sovereign who
entered into the Treaty. In explaining its arguments surrounding the content of
the resulting duty of the Governor General to uphold the honour of the Crown,
OLCN returns to arguments surrounding the granting of royal assent.
[25]
OLCN describes the content of the Governor
General’s duty not to derogate from the Treaty as being characterized by the
Governor General’s role in approving or disapproving legislation and thus
exercising, as surrogate, the royal prerogative. OLCN notes that the
Prothonotary relied on commentary by Professor Peter W. Hogg in concluding that
the grant of royal assent is now a constitutional convention over which the
Governor General has essentially no discretion. However, in reliance on other
commentary by Prof. Hogg, OLCN asserts that this convention is superseded by a
constitutional imperative that the Governor General act on constitutional and
lawful advice. It takes the position that the office of the Governor General
has more than a ceremonial role, that there are circumstances where that office
can properly refuse royal assent, and that the present case represents an
example of such circumstances. OLCN states that the essence of its complaint is
that the Governor General failed to act on proper advice and thereby derogated
its rights under the Treaty.
[26]
In contrast, the Defendants take the position
that the Governor General has no discretion over the decision to confer royal
assent but, in keeping with constitutional conventions governing Canada’s
system of responsible government, must always a grant assent to a bill which
has passed both Houses of Parliament.
[27]
In considering the parties’ respective positions
on the Governor General’s role in granting royal assent, it is useful to refer
to the particular comments by Prof. Hogg upon which they rely. Both parties
refer to the same publication: Peter W. Hogg, Constitutional Law of Canada,
5th ed, vol 1 (Toronto: Thomson Carswell, 2007). At page 9-22 of his chapter on
Responsible Government, the same reference upon which the Prothonotary relied,
Prof. Hogg states as follows:
The Governor General, who must complete the
legislative process by conferring the royal assent on a bill enacted by both
Houses of Parliament, plays no discretionary role whatsoever. It is true that
the Constitution Act, 1867, by s. 55, gives the Governor General the power to
withhold the royal assent from a bill, and the power to reserve a bill for the
signification of the Queen’s pleasure; and by s. 56 gives to the Queen the
power to disallow a Canadian statute. But the imperial conference of 1930
resolved that the powers of reservation and disallowance must never be
exercised. This conference and the full acceptance of responsible government
have established a convention that the Governor General must always give the
royal assent to a bill which has passed both Houses of Parliament. There is no
circumstance which would justify a refusal of assent, or reservation, or a
British disallowance. [Emphasis added.]
[28]
OLCN relies on the following passage from the
same chapter of Prof. Hogg’s publication:
The Governor General has certain “personal
prerogatives” or “reserve powers” which he or she may exercise upon his or her
personal discretion. Whereas in the exercise of governmental powers generally
the Governor General must act in accordance with the advice of the Prime
Minister or cabinet, there are some occasions on which he or she may act
without advice, or even contrary to advice.
The definition of those occasions when the
Governor General may exercise an independent discretion has caused much
constitutional and political debate. But it is submitted that the basic
premise of responsible government supplies the answer: so long as the cabinet
enjoys the confidence of a majority in the House of Comments, the Governor
General is always obliged to follow lawful and constitutional advice which is
tendered by the cabinet. But there are occasions, as we have seen, when a
government continues in office after it has lost the confidence of the House of
Commons, or after the House of Commons has been dissolved. There are also
occasions, for example, after a very close election, or after a schism in a
political party, where for a period it is difficult to determine whether or not
the government does enjoy the confidence of a majority in the House of Commons.
In all these situations, it is submitted that the Governor General has a
discretion to refuse to follow advice which is tendered by the ministry in
office. [Emphasis added.]
[29]
OLCN’s position is that the reference to “lawful and constitutional advice” in the above
passage contemplates not only advice received from a government that enjoys the
confidence of the House of Commons but also advice that is otherwise in
compliance with the government’s constitutional and legal obligations. Applying
these principles to the present case, OLCN argues that the Governor General, in
granting royal assent to the FNFTA, did not receive advice on the proposed
statute’s compliance with legal and constitutional requirements and did not
assess the bill for such compliance. In other words, OLCN argues that the
Governor General was obliged to assess the constitutionality of the proposed FNFTA,
and specifically its consistency with the Crown’s obligations under the Treaty,
before granting royal assent.
[30]
OLCN takes the position that Prof. Hogg is
incorrect in asserting, in the first passage above, that the Governor General
must always give royal assent to a bill which has passed both Houses of
Parliament. OLCN supports its position by reference to Arthur Berriedale Keith,
The Constitutional Law of the British Dominions (London: MacMillan,
1933), which states that the Governor General could not, with propriety, assent
to certain forms of legislation which may be regarded as prohibited by the
essential status of the Dominions. Examples include bills which would sever the
Dominion from the Crown or alter the succession to the throne. OLCN also refers
to the decision of the Supreme Court of Canada in Reference re the Power of
the Governor General in Council to Disallow Provincial Legislation and the
Power of Reservation of a Lieutenant Governor of a Province, [1938] S.C.R. 71,
as confirming, in relation to the Lieutenant-Governor of Alberta, the power of
reservation for the signification of the pleasure of the Governor General of
bills passed by the provincial legislative assembly.
[31]
The Defendants argue that the interpretation of
the Governor General’s role advocated by OLCN would be wholly inconsistent with
Canada’s system of responsible government. They take the position that
requiring the Governor General to independently assess the legality or
constitutionality of proposed legislation would effectively thrust that office
into a judicial role. The Defendants interpret the reference to lawful and
constitutional advice tendered by cabinet in Prof. Hogg’s statement as
referring to the presentation of a bill that has passed both Houses of
Parliament. The Defendants assert that, while the courts are final arbiters of
legality and constitutionality, the government would not knowingly present for
royal assent a bill that is either unlawful or unconstitutional. Their position
is that a bill that has passed through both Houses represents the will of the
Canadian people, as expressed through the House of Commons and sanctioned by
the Senate, and that the Governor General is required by constitutional
convention to give royal assent to such a bill.
[32]
I find the Defendants’ position on this
question compelling. I have difficulty with the proposition that the Governor
General is intended to have a role as arbiter of the legality or
constitutionality of proposed legislation. However, it is not necessary for the
Court to arrive at a determination on this question. While both parties devoted
considerable effort to advancing their respective positions on the discretion,
or lack thereof, afforded to the Governor General in the decision to grant
royal assent, ultimately I find that this question has little impact on the
issue of whether the Prothonotary erred in concluding that OLCN’s claim against
the Governor General is not justiciable. The Prothonotary’s decision did not
turn on a conclusion that the Governor General was without any discretion in
the conferral of royal consent. I recognize that the Prothonotary stated that
there was no allegation in the Statement of Claim that the Governor General
failed to act on proper advice and that OLCN asserts in this appeal that it is
advancing such an allegation. However, I read the Prothonotary’s decision as
turning not on that point but rather on the question of whether the act of
royal assent was justiciable at all.
[33]
The Prothonotary relied on the decision in Galati
v Canada (Governor General), 2015 FC 91 [Galati], which concluded
that granting royal assent is a legislative act and therefore not justiciable.
The Prothonotary analysed Galati, and its effect on OLCN’s claim against
the Governor General, as follows:
[31] In Galati v Canada (Governor
General), 2015 FC 91, Mr. Justice Rennie found that the grant of royal
assent is a legislative act and as such it is not justiciable. The central
issue in Galati was whether the Governor General exceeded the scope of
his discretion under the Royal prerogative in granting royal assent to the Strengthening
Canadian Citizenship Act, SC 2014, c 22. Justice Rennie concluded that the
Court could not adjudicate on whether the Governor General exceeded the scope
of his authority because the grant of royal assent is a legislative act and is
not justiciable. He also stated, at para 46, that the discretion to grant royal
assent “is wholly constrained by the constitutional convention of responsible
government… the Governor General does not exercise an independent discretion”.
[32] In reaching his conclusion, Rennie
J. expressed concern with the Court’s intervention into the legislative process
and, in particular, into the Governor General’s grant of royal assent. He
stated:
[35] The courts exercise a
supervisory jurisdiction once a law has been enacted. Until that time, the
Court cannot review, enjoin or otherwise engage in the legislative process
unless asked by way of a reference framed under the relevant legislation. To
conclude otherwise would blur the boundaries that necessarily separate the
functions and roles of the legislature and the courts. To review the Governor
General’s act of granting royal assent, as the applicants request, would
conflate the constitutionally discrete roles of the judiciary and the
legislature, affecting a radical amendment of the Constitution Act, 1867
and the conventions which underlie our system of government, notably the right
of Parliament to consider and pass legislation.
[33] OLCN is asking this Court to
adjudicate on whether the Governor General acted according to his obligations
under Treaty 6. This is analogous to the issue raised in Galati, which
was whether the Governor General exceeded the scope of his authority in
granting royal assent to legislation that the applicants in that case alleged
was beyond the legislative competence of Parliament. The applicants were
essentially asking the Court to find that the Governor General ought to act as
a check against inappropriate parliamentary action. However, intervening in the
legislative process to declare that the Governor General has such a duty would
be contrary to the separation of powers doctrine and parliamentary supremacy.
[34]
It is noteworthy that, at paragraph 46 of
Galati, Justice Rennie refers to the same passage from Prof. Hogg that is
cited by OLCN and concludes that assent must be given by the Governor General
to a bill which has passed both Houses of Parliament as withholding assent
would be inconsistent with the principles of responsible government. This
aligns with the Defendants’ position on that question. However, the analysis by
Justice Rennie upon which the Prothonotary relies relates not to the extent of
the Governor General’s discretion in granting royal assent but rather to the
fact that granting royal assent is a legislative act and legislative acts are
not justiciable.
[35]
I can find no error in the Prothonotary’s
reliance on Galati to support his conclusion that the grant of royal
assent by the Governor General in the present case is not justiciable. OLCN
argues that Galati is distinguishable, because it arose in the context
of an application for judicial review, not an action, and because it did not
involve a challenge to the constitutionality of legislation. I find the
distinction as to the type of proceeding irrelevant to the justiciability of
this issue and that Galati is not distinguishable based on the fact that
OLCN’s action raises constitutional issues. The application in Galati,
seeking to set aside the Governor General’s assent to the Strengthening
Canadian Citizenship Act, SC 2014, c 22, was based on an argument that
provisions of the statute were beyond the legislative competence of Parliament
under the Constitution Act, 1867. While that case involved different
constitutional arguments than those raised by OLCN, the applicants in Galati
were also asserting a position based on constitutional principles, and this did
not alter the Court’s analysis that the act by the Governor General that was
being challenged was of a legislative nature and therefore not justiciable.
[36]
In arriving at his decision, the Prothonotary
also relied on the recent decision by the Federal Court of Appeal in Canada
(Governor General in Council) v Mikisew Cree First Nation, 2016 FCA 311 [Courtoreille].
In Courtoreille, Justice de Montigny, writing for the majority, quoted
from Galati with approval in arriving at the following conclusion:
[60] I am therefore of the view, for
all the foregoing reasons, that the legislative process, from its very
inception where policy options are discussed and developed to the actual
enactment of a bill following its adoption by both Houses and the granting of
royal assent by the Governor General, is a matter solely within the purview of
Parliament. Imposing a duty to consult at any stage of the process, as a legal
requirement, would not only be impractical and cumbersome and potentially grind
the legislative process to a halt, but it would fetter ministers and other
members of Parliament in their law-making capacity. As Justice Hughes astutely
observed, “[…] intervention into the law-making process would constitute undue
judicial interference on Parliament’s law-making function, thus compromising
the sovereignty of Parliament” (Reasons for Judgment at para. 71).
[37]
As indicated by the above passage, Courtoreille
dealt with the question of whether the Crown has an obligation to consult when
contemplating changes to legislation that may adversely impact treaty rights.
Justice de Montigny summarized the Court’s conclusion as follows at paragraph 3
of the decision:
[3]… I find that legislative action is not a
proper subject for an application for judicial review under the Federal
Courts Act, R.S.C. 1985, c. F-7, and that importing the duty to consult to
the legislative process offends the separation of powers doctrine and the
principle of parliamentary privilege.
[38]
OLCN points out that the Supreme Court of Canada
has granted leave to appeal Courtoreille. Also, in concurring reasons at
paragraph 87 of Courtoreille, Justice Pelletier made the following
remarks:
[87] Putting the matter another way,
the duty to consult would undoubtedly be triggered by the executive’s approval
of a project which adversely affected a First Nation’s interest in a given
territory. Can it be said that the duty to consult would not be triggered if the
same project were approved and set in motion in a special law passed for that
purpose? While this is not the case we have to decide, it does highlight the
point that the argument that the legislative process is indivisible, from
policy development to vice-regal approval, may be problematic in other
circumstances.
[39]
While conscious of the point raised by Justice
Pelletier, which may be the subject of consideration by the Supreme Court in
the upcoming appeal, I agree with the Defendants’ submission that Justice
Pelletier’s comment is obiter and that the law as it presently stands is
as expressed by the majority in Courtoreille. The Prothonotary relied on
Courtoreille both because of its endorsement of the finding in Galati,
that the grant of royal assent by the Governor General is not justiciable, and
because of its conclusion that there is no duty to consult prior to the passage
of legislation, even where treaty rights will be affected. While the
Prothonotary framed his conclusion, that the claim against the Governor General
is not justiciable, as flowing from the fact that the only action taken by the
Governor General in the present case was to grant assent to the FNFTA, it is
clear from the Decision that the Prothonotary was aware that OLCN was also
alleging that the Governor General had a duty to consult. The Prothonotary
concluded that any such duty was precluded by the binding decision in
Courtoreille. Again, I find no error in this conclusion.
[40]
However, I recognize that OLCN’s arguments in
this appeal extend beyond alleging that the Governor General had discretion not
to grant royal assent to the FNFTA and had a duty to consult prior to the
passage of that statute. OLCN relies on a treatise on the British constitution,
Walter Bagehot, The English Constitution (Oxford: Oxford University
Press, 1867, reprinted 2001) at page 64, for the principle that, under a
constitutional monarchy, the Sovereign has three rights - the right to be
consulted, the right to encourage, and the right to warn. OLCN argues that the
Governor General had these rights and was obliged to exercise them in the
context of the government’s efforts to pass the FNFTA. In essence, OLCN’s
position is that the Governor General should have warned the government that
the proposed legislation would infringe OLCN’s rights under the Treaty.
[41]
OLCN also relies upon the constitutional
convention requiring royal consent prior to Parliament passing bills affecting
the prerogatives, hereditary revenues, or personal property or interest of the
Sovereign. As an explanation of the convention, OLCN referred the Court to the
following extract from Audrey O’Brien and Marc Bosc, eds, House of Commons
Procedure and Practice, 2nd ed (Ottawa: House of Commons, 2009) at ch 16 “The Legislative Process”:
Royal Consent (which should not be confused
with Royal Assent or royal recommendation) is derived from British practice,
and is among the unwritten rules and customs of the House of Commons of Canada.
Any legislation that affects the prerogatives, hereditary revenues, property or
interests of the Crown requires Royal Consent, which in Canada originates with
the Governor General in his or her capacity as representative of the Sovereign.
Consent is necessary when property rights of the Crown are postponed,
compromised or abandoned, or for any waiver of the prerogative of the Crown. It
was, for example, required for bills in connection with railways on which the
Crown had a lien, with property rights of the Crown (in national parks and
Indian reserves), with the garnishment, attachment and diversion of pensions
and with amendments to the Financial Administration Act.
The consent of the Crown is not required
where the bill relates to property held by the Crown for its subjects. The
consent of the Crown does not, however, signify approval of the substance of
the measure; it means only that the Crown agrees to remove an obstacle to the
progress of the bill so that the latter may be considered by both Houses, and
ultimately submitted for Royal Assent.
Although Royal Consent is often signified
when a bill is read for the second time, this may take place at any stage prior
to final adoption by the House. It may take the form of a special message, but
it is normally transmitted by a Minister who rises in the House and states:
“His/Her Excellency the Governor General has been informed of the purport of
this bill and has given his/her consent, as far as Her Majesty’s prerogatives
are affected, to the consideration by Parliament of the bill, that Parliament
may do therein as it thinks fit”. If consent is not given in advance, the
Speaker will refuse to put the question for passage at third reading. If,
through inadvertence, a bill requiring Royal Consent were to pass all its
stages in the House without receiving consent, it would be necessary to declare
the proceedings in relation to the bill null and void. [Plaintiff’s
emphasis.]
[42]
The Defendants do not take issue with OLCN’s
description of this convention, as applying to bills affecting the
prerogatives, hereditary revenues, or personal property or interest of the
Sovereign, but they deny that it has any application to the present case.
[43]
OLCN acknowledges that these arguments,
surrounding its position that the Governor General has breached constitutional
duties, are novel, but submits that this is not an impediment to their
justiciability and that they should not be foreclosed on a motion to strike.
The Defendants agree that the novelty of OLCN’s claim should not militate
against it, but they submit that novel claims must still present a reasonable
cause of action to survive challenge under Rule 221. The Defendants take the
position that OLCN’s arguments surrounding the role of the Governor General are
inconsistent with Canada’s system of responsible government and that, in any
event, the duties alleged to be borne by the Governor General would all occur
within the context of the legislative process, making it clear that a claim
based on those duties is not justiciable.
[44]
In relation to OLCN’s position on the convention
of royal consent, the Defendants also submit that OLCN’s argument, as to how
the FNFTA engages a requirement for royal consent, has not been developed
sufficiently to permit consideration and response. I agree that OLCN has
provided little elaboration upon this argument, but I will analyze it in the
terms in which it has been advanced. This component of OLCN’s claim is set out
in paragraphs 78 and 79 of the Statement of Claim, reproduced earlier in these
Reasons. In its Memorandum of Fact and Law submitted in support of this appeal,
OLCN describes this aspect of its claim as follows:
43. Further to the constitutional imperative for the Crown to consult,
there is another constitutional convention requiring Royal Consent to the
discussion of the FNFTA. Bills affecting the prerogatives, hereditary
revenues, personal property or interest of the Sovereign require Royal Consent.
When the FNFTA was brought before Parliament as Bill C – 27, in
circumstances where Royal Consent was never sought or given, even though the
Bill curtailed the Governor General’s Prerogative and thus his ability to abide
by the letter and spirit of the Treaty. The Governor General’s lack of consent
on behalf of Her Majesty in respect of the FNFTA is another nonfeasance
that further demonstrates a constitutionally improper abdication of the
Governor General’s role to preserve and use the Crown prerogative as necessary
to protect the Plaintiff’s Treaty rights.
[45]
I have difficulty identifying a reasonable cause
of action asserted in paragraph 78 and 79 of the Statement of Claim, even with
the benefit of the elaboration in OLCN’s Memorandum of Fact and Law. Paragraph
79, expressed as an alternative allegation, asserts that the Governor General
did not give royal consent to the FNFTA and thereby fulfilled his duty to OLCN.
Certainly this assertion cannot give rise to a claim against the Governor
General.
[46]
Paragraph 78, in contrast, asserts that the
Defendants (which include the Governor General) passed the FNFTA into law
without royal consent and that this omission represents a departure not in
accordance with the honour of the Crown. OLCN’s Memorandum explains its
position, that royal consent was required, with an assertion that the
legislation curtails the royal prerogative and the Governor General’s ability
to abide by the Treaty. OLCN asserts that the lack of royal consent is an
omission which represents an abdication of the Governor General’s
responsibility to protect its Treaty rights. However, it is not clear how the
Governor General’s lack of consent to the proposed legislation can possibly
support a cause of action against him. It would presumably be OLCN’s position
that the Governor General should not have granted consent to the bill. The
uncontroverted facts are that no royal consent was sought and none was given.
It is therefore plain and obvious to me that these facts cannot support a cause
of action against the Governor General based on this convention.
[47]
OLCN’s arguments surrounding royal consent, as
well as its arguments based on a Sovereign’s right to be consulted, to encourage,
and to warn, also present the same difficulty that was the basis for the
Prothonotary’s conclusion that the claim against the Governor General was not
justiciable. These arguments all relate to roles that OLCN submits the Governor
General had, or should have had, in the course of the legislative process. As
explained by the Federal Court of Appeal in paragraph 60 of Courtoreille,
reproduced in full earlier in these Reasons, the legislative process, from a
bill’s very inception to its receipt of royal assent, is a matter solely within
the purview of Parliament. The responsibilities that OLCN seeks to ascribe to
the Governor General’s office all clearly fall within the parameters of the
legislative process, with which the judicial branch of government should not
interfere.
[48]
As with OLCN’s argument that the Governor
General is obliged to independently assess the constitutionality and legality
of a bill before granting assent, I find these additional proposed
responsibilities to be problematic in the context of Canada’s modern
constitutional monarchy. However, as acknowledged by OLCN, these are novel
propositions on which there is a paucity of authority, and it is unnecessary
for me to reach a conclusion on the application of responsibilities that, even
if they were applicable to the present case, would clearly not be justiciable.
Just as the granting of royal assent and the degree of consultation undertaken
in the course of the legislative process are not justiciable, it would not be
within the Court’s purview to supervise the roles that OLCN’s novel arguments
would ascribe to the Governor General.
[49]
In response to the Defendants’ argument that
these roles are all part of the legislative process and therefore not
justiciable, OLCN points out that the relief it is seeking against the Governor
General is limited to a declaration. It asks that the Court declare that the
Governor General has failed to fulfill his duties to protect OLCN and to adhere
to and fulfill its Treaty rights. I do not consider the fact that OLCN seeks
only declaratory relief to be of any assistance to it. I appreciate that, as
argued by OLCN, Rule 64 of the Federal Courts Rules provides that no
proceeding is subject to challenge on the ground that only a declaratory order
is sought and that the Court may make a binding declaration of right in a
proceeding whether or not any consequential relief is or can be claimed.
However, for the Court to issue a declaration, the subject of that relief must
still be an issue which is justiciable by the Court (see, e.g. Black v
Canada (Prime Minister) (2001), 47 OR (3d) 532 (Ont Sup Ct J), aff’d 54 OR
(3d) 215 (Ont CA); Nickerson v Nickerson (1991), OJ No 1188 (Ont Gen
Div)). The Court’s jurisdiction to grant a declaration does not apply to
non-justiciable issues any more than its jurisdiction to grant prerogative
writs or other more active forms applies to such issues.
[50]
It is accordingly my conclusion that the
Prothonotary was correct in finding that it is plain and obvious that OLCN’s
Statement of Claim discloses no reasonable cause of action against the Governor
General. I appreciate that the Prothonotary’s Decision did not analyze some of
the arguments advanced by OLCN in this appeal, surrounding royal consent and a
duty to warn; however, those arguments have failed on the same basis as those
related to royal assent and a duty to consult. As correctly found by the
Prothonotary, the Governor General’s role in the legislative process is not
justiciable. This appeal must therefore be dismissed and the Prothonotary’s
Order will remain unaltered. In so concluding, I note that I also share the
view expressed by the Prothonotary at the conclusion of the Decision, that
striking the claim against the Governor General does not leave OLCN without any
recourse. Their challenge to the constitutionality of the FNFTA remains to be
adjudicated in this action. For that matter, I read the Statement of Claim as
alleging that not only the Governor General, but also the other Defendants, are
in breach of obligations arising from the honour of the Crown, fiduciary
duties, and a duty to consult. As such, those causes of action, that OLCN
sought to advance against the Governor General, also remain to be adjudicated
against the other Defendants.
VII.
Costs
[51]
The Prothonotary awarded costs of the motion
before him, fixed in the amount of $1000.00 inclusive of disbursements and
taxes, to the Defendants in the cause. Each of the parties sought costs in this
appeal but left the amount to the discretion of the Court, although OLCN
proposed a figure in the range of $1000.00 to $4000.00. I adopt the same
approach as the Prothonotary, awarding all-inclusive costs of $1000.00 to the
Defendants in the cause.
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