Native Council of Nova Scotia v. Canada (Attorney General), 2002 FCT 6

                                                                                                                                          Date:    20020104

                                                                                                                            Court File No.: T-689-01

                                                                                                                   Neutral Citation: 2002 FCT 6

Ottawa, Ontario, this 4^th day of January, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                 THE NATIVE COUNCIL OF NOVA SCOTIA, a society

                               registered under the laws of Nova Scotia, and LORRAINE

                              COOK, TIM MARTIN and ELSIE RAMEY, on behalf of all

                          members and constituents of the Native Council of Nova Scotia.

                                                                                                                                                        Plaintiffs

                                                                              - and -

                      THE ATTORNEY GENERAL OF CANADA, and THE MINISTER

                     OF FISHERIES AND OCEANS, THE MINISTER OF INDIAN AND

                       NORTHERN AFFAIRS and THE INTERLOCUTOR FOR METIS

                                                       AND NON-STATUS INDIANS.

                                                                                                                                                    Defendants

                                               REASONS FOR ORDER AND ORDER

[1]                 The defendants bring this motion pursuant to Rule 221 of the Federal Court Rules, 1998, SOR/98-106, to strike out the plaintiffs' statement of claim and alternatively seek the following relief:

i.              That either all, or some, of the paragraphs 1-19, 24-25 and 27 to 34 of the Statement of Claim be struck out;

ii.             That the Native Council of Nova Scotia cease to be a party to this action;

iii.            That the Plaintiffs be required to give Notice of Constitutional Question to the Attorneys General of each Province;

iv.            An extension to the time for filing of Defence until 10 days after the Court's ruling on this motion.; and

v.             The costs of this motion.

[2]                 The plaintiffs seek leave to amend the pleadings as necessary, should the Court find that all or some of the pleadings contained in the plaintiffs' statement of claim are defective.

[3]                 In the underlying action, the individual plaintiffs are "off reserve" Indians, two of which are status Indians, one not. The plaintiffs claim that the respondent breached a duty to consult owed to them with regards to certain agreements between the defendants, the Province of Nova Scotia and the 13 Indian Act Chiefs in Nova Scotia. The agreements in question deal with the negotiation and implementation of aboriginal, treaty and land claim rights in Nova Scotia with specific reference to 1999/2000 and 2000/2001 fishing agreements. The plaintiffs seek interlocutory and injunctive relief.

[4]                 The defendants submit that, if all or substantially all of their objections to the statement of claim raised in this motion are accepted by the Court as well founded, what would then be left of the statement of claim would not disclose a reasonable cause of action, and an order striking out the statement of claim would be justified.

[5]                 The threshold for striking a statement of claim is a very high one and the statement of claim must be read as generously as possible. [Perera v. Canada, [1997] F.C.J. No. 199, online: QL, page 4 at paragraphs 21-25.] The test is whether it is plain and obvious that the claim discloses no reasonable cause of action. [Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980.] A statement of claim must disclose material facts instead of bare assertions in order to disclose a cause of action. [Vojic v. Canada (M.N.R.) (1987), 87 D.T.C. 5384 at p. 5385. ] When there is no rational argument based on evidence, the claim may be struck as being frivolous and vexatious. [Steiner v. Canada (1996), 122 F.T.R. 187, p. 189-191 at paragraphs 7 to 10 and 16.]

[6]                 I am of the view that the defendants have not met the heavy burden to have the statement of claim struck out. This is not a case where it can be said beyond doubt that the case could not succeed at trial.

[7]                 In Shubenacadie Indian Band et al. v. Attorney General of Canada, 2001 FCT 181, online: QL, at paragraph 5, Mr. Justice Hugessen stated:

I turn now to the second aspect of the motion which is to strike out the Statement of Claim as disclosing no reasonable cause of action. The principle is well established that a party bringing a motion of this sort has a heavy burden and must show that indeed it is beyond doubt that the case could not succeed at trial. Furthermore, the Statement of Claim is to be read generously and with an open mind and it is only in the very clearest of cases that the Court should strike out the Statement of Claim. This, in my view, is especially the case in this field, that is the field of aboriginal law, which in recent years in Canada has been in a state of rapid evolution and change. Claims which might have been considered outlandish or outrageous only a few years ago are now being accepted. [Emphasis mine.]

[8]                 The defendants' argument that the entire statement of claim should be struck out is based on the contention that all of their objections, taken collectively, would leave the statement of claim gutted without a reasonable cause of action. I do not accept this contention. I have carefully reviewed the statement of claim and, in my view, it is not plain and obvious that the claim discloses no reasonable cause of action. The issues raised in the statement of claim are in the field of aboriginal law, a field that is in a state of rapid evolution and change in recent years. Whether a duty to consult exists with respect to off-reserve status and/or non-status Indians and the extent to which such a duty applies in the context of this case are issues that should not be disposed of in an interlocutory proceeding.

[9]                 Although I have determined that the defendants have not met the onus required to have the claim struck out, I am nevertheless satisfied that the statement of claim is deficient in a number of respects that will be considered more particularly later in these reasons when I address each of the defendant's objections. Since it is not for this Court to re-draft the statement of claim, I will strike the entire statement of claim with leave to the plaintiffs to serve and file an amended statement of claim in accordance with these reasons.

[10]            At the hearing of this motion the parties agreed that the Native Council of Nova Scotia (NCNS) is not a proper representative party in these proceedings. The plaintiffs, however, submit that the NCNS should remain as a party to the action arguing that the NCNS would be an appropriate vehicle through which the defendant can effect proper consultation with off reserve status Indians in Nova Scotia.

[11]            The jurisprudence of this Court has dealt with the status of incorporated bodies representing aboriginals. In Barlow v. Canada, [2000] 186 F.T.R. 194, at paragraph 61, Mr. Justice Teitelbaum stated that an incorporated body representing aboriginals does not have treaty rights and, since it does not have the same interests in the proceeding as individuals, it cannot bring a representative action.

[12]            In Maurice v. Canada (Minister of Indian Affairs and Northern Development), (1999) 183 F.T.R. 9, Madam Justice Reed had to decide whether or not the "Metis Society of Saskatchewan Sapwagamik Local 176 Inc." should be removed as a plaintiff. At paragraphs 6 and 14 of her reasons, Justice Reed stated:

In the Statement of Claim, the Society is described as representing the interests of the Metis persons who reside in or near the community of Sapwagamik in northern Saskatchewan. The relief sought relates to the constitutional, fiduciary, statutory, common law and equitable obligations owed by the defendants to the plaintiffs. As such, the relief sought relates only to the individual plaintiffs. The Society per se, as a corporation, will not be owed those obligations, although its members may.

...

What constitutes a necessary party to litigation was discussed in Parker v. Stevens, [1998] 4 F.C. 125 (F.C.A.) at page 137. The Court quoted from the decision in Amon v. Raphael Truck & Sons Ltd., [1956] 1 Q.B. 357 at 380:

The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the construction of a clause in a common form contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some could be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. [Emphasis mine.]

[13]            In my opinion, the NCNS should be removed as a party. The NCNS, just as the Metis Society of Saskatchewan Sapwagamik Local 176 Inc., is a registered society and, as a result, does not have the same interest as the individual plaintiffs. The relief sought by the individual plaintiffs relates to the duty of consultation owed to them by the defendants. As stated by Justice Reed in Maurice, supra, the NCNS would not be owed this duty even if its members might be. I am also of the view that the NCNS is not a necessary party to these proceedings since it would not be bound by the result and its participation is not required to settle the issue before the Court.

[14]            For the above reasons, the plaintiff NCNS will therefore be removed as a party to these proceedings and the statement of claim should be amended accordingly.

[15]            Paragraph 24 of the statement of claim states, inter alia, that the individual plaintiffs bring this action as a representative action on behalf of all members and constituents of the NCNS. Rule 114 of the Federal Court Rules, 1998 provides for a representative proceeding so long as the party purporting to represent others has the same interests in the proceeding. There is a need, in an amended statement of claim, to establish the factual foundation to show that the individual plaintiffs have the same interest with respect to aboriginal and treaty rights as all other off-reserve Mi'kmaq.

[16]            Paragraphs 1 through 16 of the statement of claim describe the NCNS, its corporate status, its membership, the interests it purports to represent as well as the programs and services it offers. These paragraphs also set out in some detail the agreements, processes and protocols entered into by the NCNS with various departments of government, both federal and provincial. The allegations contained in paragraphs 1 through 16 of the statement of claim deal with allegations about the NCNS representing Mi'kmaq people in a variety of contexts and are, in my view, prolix and unnecessary. Having determined that the NCNS is not a proper party to these proceedings, the facts pleaded in these paragraphs do not disclose facts that are material to this claim.

[17]            With regards to paragraph 34 of the statement of claim, I am of the view that the affirmations by the Mi'kmaq Grand Council regarding the allegations in support of the NCNS's claim to representative status should be struck.

[18]            The defendants seek to have paragraphs 17, 18 and 19 of the statement of claim struck. The defendants argue that the plaintiffs' claim is founded upon "...the aboriginal and treaty rights of the Mi'kmaq nation." The defendants' position is that the jurisprudence makes it clear that these rights are rights of "specific aboriginal communities" and that there is no such thing as the "aboriginal and treaty rights of the Mi'kmaq nation." The defendants further argue that paragraphs 17, 18 and 19 of the statement of claim do not make any factual allegations which, if assumed to be true, could lead to the conclusion of law pleaded.

[19]            Earlier in these reasons I have concluded that it can not be said beyond doubt that this case could not succeed at trial. I am satisfied that there may well be a cause of action but there is not, in my view, sufficient material facts pleaded. In an amended statement of claim, the plaintiffs should plead the material facts to support the conclusion of law alleged in paragraphs 17 and 19 of the statement of claim.

[20]            With respect to paragraphs 27 and 28 of the statement of claim, the plaintiffs claim that the duty to consult was breached with regards to a fishing agreement. The defendants argue that if the claim is based on treaty rights, then it is necessary that the statement of claim identify a specific treaty with any Mi'kmaq community that is alleged to include a right to fish lobster in a location covered by the fishing agreements, facts connecting the plaintiffs to such a community, specific allegations as to how the fishing agreements have infringed that right and in the case of the individual plaintiffs suing in their own right, an allegation that they have been authorized by their community to exercise that community's treaty rights. The defendants further argue that if the claim is based on aboriginal rights, then the statement of claim should reflect allegations identifying a community whose historic way of life prior to European contact involved the fishing of lobster in a location covered by the fishing agreements such that the community could be entitled to an aboriginal right to continue this fishery and facts connecting the plaintiffs to such a community.

[21]            Paragraphs 27 and 28 of the statement of claim appear to allege that the fishing agreements infringe a right enjoyed by certain Mi'kmaq people by virtue of aboriginal or treaty rights, to engage in a food, social and ceremonial fishery for lobster. The claim appears to allege that lack of consultation makes this infringement unjustifiable. I am of the view that, in order for the defendants to be able to defend the action, the plaintiffs must set forth in an amended statement of claim the material facts that establish the bases for the right(s) claimed and how the right(s) is/are said to be infringed.

Notice of Constitutional Question to the Attorneys General of each Province

[22]            The defendants seek an order requiring the plaintiffs to give notice of this action to the Attorney General of each province because there are allegations in the statement of claim that put in issue the applicability or operability of federal and provincial legislation vis-à-vis the off reserve Mi'kmaq. Essentially, the statement of claim in paragraphs 36 and 37 allege that the duty to consult is a condition precedent to enacting or enforcing against them legislation affecting their aboriginal or treaty rights. Paragraph 38 of the statement of claim alleges that this required consultation has not occurred.

[23]            Subsections 57(1) and 57(2) of the Federal Court Act, R.S.C. 1985, c. F-7 provide as follows:

57(1) Constitutional questions -

Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).

57(1) Questions constitutionnelles -

Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2).

(2) Time of notice -    Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued.

(2) Formule et délai de l'avis -

L'avis est, sauf ordonnance contraire de la Cour ou de l'office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l'objet doit être débattue.

[24]            The plaintiffs allege that they should not be required to give notice since they do not seek to have any act or regulation declared to be invalid, inapplicable or inoperable. The plaintiffs claim that they are simply seeking a declaration, injunction, certiorari or mandamus to compel the defendants to comply with the duty to consult with them prior to taking any legislative or executive step which affects their aboriginal or treaty rights.

[25]            I am of the view that that issue need not be determined at this point in the proceedings. The statement of defence has not been filed yet and the "alleged" constitutional question is not about to be argued. Subsection 57(2) of the Federal Court Act only requires the "notice" to be given 10 days before the day the "question" is to be argued. Any party could yet file such a notice. I also note that section 57 does not impose an obligation for any party to serve a notice of a constitutional question, rather the section provides that there can be no consequence on an impugned Act or regulation if the notice is not given. In any event, I conclude that it would be improper to order the plaintiffs, at this time, to give notice of constitutional question pursuant to section 57 of the Federal Court Act.

[26]            In accordance with the above reasons, I will order the statement of claim struck out with leave to the plaintiffs to serve and file an amended statement of claim consistent with these reasons no later than February 1, 2002.

[27]            The defendants will have thirty (30) days from the filing of the amended statement of claim to file their defence.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The Native Council of Nova Scotia be struck as plaintiffs.

2.         The statement of claim is struck in its entirety with leave to the plaintiffs to serve and file an amended statement of claim in accordance with these reasons no later than February 1, 2002.

3.         Subject to Rule 181(2) of the Federal Court Rules, 1998, the defendants will have thirty (30) days from filing of the amended statement of claim to file their defence.

4.         There will be no costs on this motion.

                                                                                                                                "Edmond P. Blanchard"                

                                                                                                                                                               Judge