Ahenakew v. Canada, 2003 FCT 306

Date: 20030313

Docket: T-1105-02

Neutral citation: 2003 FCT 306

BETWEEN:

                                THE MAJESTY THE QUEEN IN RIGHT OF CANADA,

JEAN CHRÉTIEN, THE PRIME MINISTER OF CANADA,

ROBERT NAULT, THE MINISTER OF INDIAN AFFAIRS

                                                                                                                             Applicants (Defendants)

                                                                              - and -

SENATOR DAVID AHENAKEW, REPRESENTING HIMSELF,

AND ON BEHALF OF THE SENATE OF THE

FEDERATION OF SASKATCHEWAN INDIAN NATIONS

AND THE FEDERATION OF SASKATCHEWAN INDIAN NATIONS

                                                                                                                             Respondents (Plaintiffs)

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 The applicants, defendants in this action, seek an order striking out the statement of claim of the respondents, pursuant to Rule 221(1)(a) on the basis that it discloses no reasonable cause of action, or in the alternative, pursuant to Rules 221(1)(c) and (f) on the basis that it is frivolous, vexatious and an abuse of the process of the Court.

[2]                 The applicants say the statement of claim discloses no reasonable cause of action because none of the relief sought is available since if awarded it would have the effect of curtailing the freedom of speech and debate in Parliament assured by statute and the constitution. It is said that the injunctive relief claimed cannot be granted against the Crown, or against the Prime Minister, or the Minister of Indian Affairs in the circumstances alleged. Further, it is urged that the relief sought is beyond the jurisdiction of this or any Court to grant and thus, it should be struck as frivolous, vexatious or an abuse of the process of the Court.

[3]                 For the respondents, plaintiffs in the action, it is submitted that the statement of claim does indeed disclose reasonable causes of action and that the claims set out are not frivolous and vexatious nor an abuse of the Court process. Moreover, the relief sought is within the Court's authority to grant.

[4]                 The action was initiated because of concerns of the plaintiffs arising from the introduction of then Bill C-61, the First Nations Governance Act, by government of the day, in the Parliament of Canada on June 14, 2002. On that day the Bill was given first reading. Parliament adjourned on June 21, 2002 and on September 16, after the statement of claim and the defence were filed in this proceeding, the first session of the 37th Parliament was prorogued. Bill C-61 and other bills earlier introduced but not enacted are legally considered to have been suspended and to be of no effect. As is sometimes said, "they died on the order paper". Their contents are of no legal significance, at least for this proceeding, except for comparison with any subsequent legislative proposal for the same general purposes.

[5]                 A new session of the Parliament of Canada, the second session of the 37th Parliament, commenced on September 30, 2002. Shortly thereafter, a new bill, C-7, a successor to Bill C-61, was introduced in the House of Commons and subsequently, on October 9, 2002, it was read the first time and referred then to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources of the House. The Committee has had several meetings since then, including public hearings, commencing in January, 2003.

[6]                 At the time this application was heard, on September 26, 2002, Bill C-61 had ceased to exist and Bill C-7 had not yet been introduced. Argument on the application was heard on the assumption that a new bill would be introduced as a successor to, and in substantially the same terms as Bill C-61. As we have seen, Bill C-7 was introduced. As noted on the cover of that Bill published by the House of Commons, Bill C-7 is said to be "printed, pursuant to order made October 7, 2002, in the same form as Bill C-61 of the first session of the 37th Parliament, at date of prorogation."

Is the action moot?

[7]                 In a formal sense, the plaintiffs' action is moot, since the relief sought is in relation to legislative action as proposed in Bill C-61. Counsel did not strongly argue the issue of mootness. Simply striking the action on grounds that it is moot, would merely invite a second action now with reference to Bill C-7, the current Bill, which is in essence the same as its predecessor. I propose to deal with the application on its substantive merits and to permit, if the statement of claim is to survive, its amendment so that it is directed to Bill C-7 introduced in Parliament on October 7, 2002. That, it seems to me, is consistent with Rule 3 of the Federal Court Rules, 1998 which directs application of the rules "so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits." With that guidance in mind, I move to consider the merits of the motion to strike under Rule 221(1).

Does the action disclose a reasonable cause of action?

[8]                 A motion to strike on the ground the claim discloses no reasonable cause of action must be considered without admission of evidence and on the basis that the material facts alleged in the statement of claim are assumed to be true for purposes of the motion (see Rule 221(2) and Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441). In considering whether the statement of claim discloses no reasonable cause of action, Madam Justice Wilson, speaking for the Supreme Court in Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959 at 980 stated:

. . . assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? . . . Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff's statement of claim be struck out . . .

[9]                 In light of circumstance of this nature, the respondents refer to comments of my colleague Mr. Justice Hugessen in Shubenacadie Indian Band v. Canada (Attorney General), 2001 F.C.T. 181 (T.D.), who wrote, at paras. 5 and 6:

. . . 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 considered 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 . . .

[10]            Important as that approach is in assessing the claims as set out in the statement of claim in an action originated by the respondents here, it must also be borne in mind that in the Shubenacadie Indian Band case, Hugessen J. reviewed the claim as expressed, summarizing it as a claim, stated with great generality, "to aboriginal rights both by treaty and at common law". It was for that reason that he there declined the Crown's motion to strike.

[11]            In this case, the bases of the plaintiffs' claims are as follows. The representative plaintiff, Senator David Ahenakew, for himself, for the Senate of the Federation of Saskatchewan Indians, and for that Federation ("FSIN") itself, authorized by that Senate and the FSIN Legislative Assembly, brings the action. Facts pleaded and legal positions adopted as the basis for the action include these:

(1)         At the time of first contact with European explorers Indian Nations were autonomous, sovereign political entities.

(2)         The title of Indian Nations to the territory now known as the province of Saskatchewan was confirmed by the Royal Proclamation of October 7, 1763.

(3)         Five treaties, that are now known as No. 4, No. 5, No. 6, No. 8 and No. 10, relating to different parts of Saskatchewan, were negotiated and concluded between the Crown and certain Indian Nations, each of which was considered sovereign, and those treaties are considered by the plaintiffs to consist of the written versions and an oral component which may add to, vary or explain the written versions.

(4)         The Indian Nations did not relinquish sovereignty by the Treaties; rather the Treaties created a new relationship whereby the Crown respected their sovereignty and administered aspects of that on behalf of the First Nations, as a fiduciary.

(5)         The right of the Indian Nations, now the First Nations, under the treaties are recognized and affirmed by sections 25, 35 and 35.1 of the Constitution Act, 1982 and "by virtue of s. 52 of that Act the Treaties comprise part of the supreme law of Canada".

(6)         The Indian Nations were sovereign when the treaties were made and the treaties were considered as agreements between equally sovereign nations. That original sovereignty continues as the well-spring for inherent rights of self-determination, self-government, and the creation of laws and customs of First Nations within the treaty relationship.

(7)         The Indian Act is one measure for administration of some fiduciary obligations of Canada with respect to First Nations peoples; its amendment requires full disclosure and complete consultation, and insofar as that act deals with matters of inherent First Nations' rights, or provisions of the Royal Proclamation of 1763 or provisions of the Treaties, any amendment of the Act must follow requirements for a constitutional amendment set out in s. 35.1 of the Constitution Act, 1982, which provides for a constitutional conference to be convened, comprised of first Ministers of Canada and the provinces with representatives of aboriginal peoples.

(8)         The purpose of Bill C-61, and its effects, include increased federal governmental control over Indian governments on reserves, and the expansion of powers of the Minister of Indian Affairs and an increase in the Minister's intrusion into the affairs and government of Indian Nations.

[12]            The plaintiffs contend that, as introduced, the Bill in question has infringed and will further infringe their constitutional and aboriginal rights. The causes of action pleaded in the statement of claim are said to include:

(a)         failure to hold meaningful consultations prior to the creation and introduction of the bill in question;

(b)         failure to obtain written consent of the First Nations of Canada or those of Saskatchewan in this case;

(c)         failure to hold a constitutional conference, said to be required pursuant to section 35.1 of the Constitution Act, 1982, prior to the drafting of legislation that would infringe or amend constitutionally protected rights of the First Nations;

(d)         intimidation by the applicants designed to coerce compliance of First Nations and their organizations, with threats that finances extended to the organizations would be reduced if the proposed legislation is not accepted;

(e)         an anticipatory breach of the fiduciary obligations of the applicants by their failing to provide full and complete consultation leading to the written acceptance of the First Nations prior to the drafting of the Bill in question, since that legislation will necessarily lead to a breach of the Constitutional rights of First Nations peoples of Canada under the Constitution Act, 1982.

[13]            The bases for the respondents' claims are disputed by the defence filed on behalf of the applicants, particularly with reference to the efforts and scope of a program of consultation which the applicants claim was undertaken with representatives of First Nations peoples by officers of the Crown, and with reference to the implications of ss. 35 and 35.1 of the Constitution Act, 1982 in this case.

[14]            By the statement of claim, the applicants seek the following relief:

(a)         a permanent constitutional injunction prohibiting the defendants or their agents or servants from passing the Bill in question in Parliament;

(b)         declarations:

(i)          that the Bill will have no application to treaty Indians in Saskatchewan;

(ii)         that the defendants have breached their fiduciary obligations and duties to protect the rights and privileges of the plaintiffs and not to engage in improper or coercive acts against them;

(iii)        that in future, the defendants, when enacting statutes with respect to First Nations people, must act within the honour of the Crown and its fiduciary duties by conducting meaningful consultations with full disclosure to the leadership of the First Nations of Canada in advance of introducing a proposed statute;

(c)         damages against the defendant Minister, and against the defendant Prime Minister.

[15]            The Crown in this case urges that the statement of claim should be struck since on its face it seeks to have the Court intervene in the legislative process by restraining the passing of proposed legislation or pronouncing on its validity before it has become law, contrary to the Bill of Rights, 1869, 1 Wm. & Mary, sess. 2, c. 2, Art. 9 (U.K.). That Act is part of the historic constitution of Canada by virtue of the preamble to the Constitution Act, 1867, 30 & 31, Vic., c. 3 (U.K.) and by the Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 4. By the Bill of Rights it has long been accepted by the Courts that Parliament has complete freedom of speech for debate, and may pass resolutions as it alone sees fit. Long recognizing these principles, the Courts do not intervene in the legislative process.

[16]            The respondents acknowledge the significance of the principles based on the Bill of Rights of 1869, but they submit that those have application where the matter concerned in proposed legislation is within the exclusive authority of the Parliament of Canada. In this case, it is urged that their aboriginal and treaty rights may not be affected by the action of Parliament without full disclosure to, and participation by representatives of First Nations, in considering and developing proposals for change.

[17]            The process proposed before second reading and ultimate adoption of Bill C-61 was to have public hearings on the Bill by the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources of the House of Commons. That process has been initiated in relation to Bill C-7, now under consideration in the House Committee. That process does not appear to satisfy the respondents' concerns for in their view, in advance of the drafting and development of the proposed legislation, full disclosure to and consultation with representatives of First Nations, including those in Saskatchewan whom the respondents represent, is required. Further, if their aboriginal or treaty rights, secured by the Constitution Act, 1982 are to be affected by proposed legislation, they urge that a constitutional conference is required to be convened pursuant to s. 35.1 of that Act.

[18]            That section provides:

[19]            Section 25 of the Constitution Act, 1982 directs that the guarantee of rights and freedoms in the Charter of Rights shall not be construed "to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada . . .". Part 2 of that Act includes s. 35.1, supra, and s. 35 which recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada.

[20]            It is the submission of the respondents that by introduction of the proposed Bill C-7, without full disclosure to and consultation with First Nations, and without convening a constitutional conference, the applicants, defendants in the action, have already violated the respondents' aboriginal and treaty rights contrary to s-s. 35 and 35.1 of the Constitution Act, 1982. This raises issues of importance for the process of considering legislative and constitutional issues, particularly about the scope and application of Part 2 of the Constitution Act, 1982, issues not considered heretofore.

[21]            The submissions of the respondents may stretch one's concept of the workings of the law and the Constitution. That and the sense that on preliminary consideration they may have difficulty persuading a trial judge to accept those submissions, are not the tests to assess the statement of claim.

[22]            At the same time, the applicants' submission that the remedies here sought cannot be granted is one that cannot be ignored. In this regard, it is useful to consider the relief sought in three categories:

1.          A permanent injunction prohibiting the defendants or any of their agents or servants from passing Bill C-61 (now Bill C-7) in the Parliament of Canada.

In my opinion, this form of relief is not possible. No injunction may issue against the Crown or against a servant of the Crown (see Crown Liability and Proceedings Act, R.S.C. 1985, c. C-15, s. 22). That prohibition is sufficiently broad to preclude injunctive relief against Her Majesty the Queen, the Prime Minister, and the Minister of Indian Affairs and Northern Development acting within their capacities as servants of the Crown, including their activities in relation to the legislative process. More significantly, the injunction sought is directed to the role of each of the applicants in "the passing" of legislation in Parliament. Issuing such an order would clearly intervene in the process of Parliament and it is not within the authority of this Court to grant that relief under the Constitution of Canada including the Bill of Rights, 1869.

2.          Damages as against the defendant, Nault and damages as against the defendant, Chrétien.

Apparently this relief is claimed because of the perceived roles of the Minister and the Prime Minister in relation to the legislative process concerning Bill C-61 (now Bill C-7). Any judgment upholding the claim would constitute interference with the legislative process in Parliament and such relief is not within the authority of this Court. I note that in addition, no basis for any claim in damages against either the Prime Minister or the Minister is alleged in the statement of claim. No damage claims here lie against the Prime Minister or the Minister of Indian Affairs.

3.          Declaratory relief is sought in respect of:

(i)          a declaration that Bill C-61 (now Bill C-7) will have no application to treaty Indians in Saskatchewan;

(ii)         a declaration that the defendants . . . not engage in improper, unlawful, and coercive acts against them (the plaintiffs) in the form of the withdrawal of funding as punishment for disagreeing with the defendants' position.

Declarations of these sorts would be premature. They would ignore the fact that the bill in question, like any other proposed legislative action, has no legal effect until it is passed by Parliament, assented to by Her Majesty's representative, and if necessary by its terms proclaimed in force. It may be amended before it is enacted. Insofar as the declaratory relief sought concerns an order to avoid "improper, and unlawful or coercive acts", no factual basis for such relief is set out in the statement of claim apart from an allegation in paragraph 46 of that statement which simply alleges "threats that the finances extended by the federal government to [First Nations organizations] will be cut back if they do not cooperate . . .". The Court cannot presume that wrongs of the nature alleged have been, or will be committed. There is no basis for a declaratory order that the applicants should comply with the general law of the land to protect the rights and privileges of the plaintiffs.

4.          Declaratory relief in respect of:

(i)          a declaration that the defendants have breached fiduciary obligations and duties to protect the rights and privileges of the plaintiffs;

(ii)         a declaration that in the future the defendants, when enacting statutes with respect to First Nations people, must act within the honour of the Crown and its fiduciary duty to uphold treaty rights by conducting meaningful consultations with full disclosure of such proposed statutes to the leadership of the First Nations of Canada.

Declarations of this nature seek to establish for the applicants, rights claimed in the consultation process by reason of the Crown's obligation to act in the best interests of First Nations peoples, by including the Chiefs and Councils of the treaty First Nations, and representatives of First Nations institutions, in the drafting process for legislation that is perceived as likely to affect the respondents' aboriginal, treaty or constitutional interests.

[23]            The last category (numbered 4 herein) of these claims to declaratory relief, which I note makes no reference to rights arising under s. 35.1 of the Constitution Act, 1982, in essence sets out claims to rights to participate in the process to be followed where aboriginal, treaty or constitutional interests and rights of the respondents are likely to be effected. The claims may be expressed in general terms and they may require refining by more complete pleading of facts or by providing particulars on demand. Nevertheless, the general terms set out, in my opinion, in essence raise issues of the rights of the respondents to participation in the process whereby their aboriginal, treaty or constitutional rights may be affected. That participation is claimed pursuant to the Constitution Act, 1982, in part, and as I read the claim it does not seek involvement in the process of Parliament except as that may be derived from the constitution and its affirmation of fiduciary obligations of the Crown and the Government of Canada to the respondents.

[24]            In my view, at this stage it would be inappropriate to strike the statement of claim in its entirety when, as I see it, an issue of fundamental importance to the rights of the respondents is raised by the last category of claims to declaratory relief.

Is the statement of claim frivolous, vexatious and an abuse of process?

[25]            Since I find the statement of claim in part does raise a claim for declaratory relief, one that is concerned with the rights of the respondents, I am not persuaded that relief of that nature is not within the power of the Court to grant. Clearly that claim cannot at this stage be characterized as frivolous, vexatious or an abuse of process of the Court.

[26]            In the ordinary course, declaratory relief "against any federal board, commission or tribunal" is to be pursued in this Court through an application for judicial review (see the Federal Court Act, R.S.C. 1985, c. F-7, ss. 2, 18, 18.1, as amended). However, as then Chief Justice Isaac of the Court of Appeal noted in Ward v. Samson Cree Nation (1999), 247 N.R. 254 (F.C.A.) at paras. 33 - 42, simply because a party seeks a declaration does not mean that it is seeking judicial review. The law has long recognized actions for declarations of right. While that view was not shared by the majority of the Court, Justices DéCary and Rothstein agreed with the Chief Justice's disposition of the motion to strike by preserving the action in respect of the declaratory relief sought to establish the plaintiff's rights. The majority noted that under s-s. 18.4(2) the Court may direct that an application for judicial review be treated and proceeded with as an action, and in an appropriate case the Court may allow a claim for declaratory relief to proceed as an action. In my view, that is particularly appropriate in this case if a proper evidentiary base is to be developed for consideration of fundamental constitutional issues.

[27]            Moreover, this case is particularly appropriate to develop as an action since the claim seeks a declaration of rights. It is not a claim against the action of "a federal board, commission or other tribunal" as defined by s. 2 of the Federal Court Act which relates to "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament . . .".

Conclusion

[28]            In the result, for the reasons set out, I conclude that the statement of claim should be amended by striking out the request for an injunction (paragraph 51(a)), and the damage claims against the Minister and the Prime Minister (paragraphs 51(e) and 51(f)), and the declarations sought that the bill in question have no application to treaty Indians in Saskatchewan (paragraph 51(b)) and that the applicants not engage in improper, unlawful or coercive acts (the second clause of paragraph 51 (c)).

[29]            Insofar as the action seeks declarations concerning the claimed fiduciary duties of the Crown owed to the respondents in the development of legislation which may affect their

aboriginal, treaty or constitutional rights, the statement of claim may be continued. At this stage it cannot be said that this claim is certain to fail. The claims here referred to are those set out in the first clause of paragraph 51(c) and in paragraph 51(d) of the statement of claim.

[30]            Since the relief claimed against the Prime Minister and the Minister of Indian Affairs is not possible and the declaratory relief claimed and yet to be decided does not relate to fiduciary duties owed by them personally or in their official capacities apart from the Government of Canada as a whole, it is appropriate in my opinion that the statement of claim be amended to delete all reference to bases for claims against these persons or their offices. Further, the style of cause should be changed so that they are deleted from those included as defendants in the action.

[31]            An order goes setting out these directions in detail.

[32]            Costs of the application were requested by the applicants, and the respondents requested costs on a solicitor client basis. Since success on the motion is divided, costs will be ordered to be in the cause.

                                                                              "W. Andrew MacKay"             

                                                                                                      J.F.C.C.                       

Ottawa, Ontario

March 13, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1105-02

STYLE OF CAUSE: THE MAJESTY THE QUEEN IN RIGHT OF

CANADA, JEAN CHRÉTIEN, THE PRIME

MINISTER OF CANADA, ROBERT NAULT, THE

MINISTER OF INDIAN AFFAIRS

- and -

SENATOR DAVID AHENAKEW, REPRESENTING

HIMSELF, AND ON BEHALF OF THE SENATE OF

THE FEDERATION OF SASKATCHEWAN INDIAN

NATIONS AND THE FEDERATION OF

SASKATCHEWAN INDIAN NATIONS

PLACE OF HEARING:                                   Regina, Saskatchewan

DATE OF HEARING:                                     Thursday, September 26, 2002

REASONS FOR ORDER OF:    MacKAY J.

DATED:                      Thursday, March 13, 2003

APPEARANCES:

Mr. Mark Kindrachuk

FOR APPLICANTS (DEFENDANTS)

Ms. Delia Opekokew

Mr. Darren Winegarden

FOR RESPONDENTS

(PLAINTIFFS)

SOLICITORS OF RECORD:

                                     Morris A. Rosenberg

Deputy Attorney General of Canada

FOR APPLICANTS

(DEFENDANTS)

Opekokew, Winegarden

170 - 203 Packham Avenue

Saskatoon, Saskatchewan

S7N 4K5

FOR RESPONDENTS

(PLAINTIFFS)