Date: 20030826
Docket: T-1105-02
Citation: 2003 FC 998
OTTAWA, ONTARIO, TUESDAY, THIS 26TH DAY OF AUGUST, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE JUDITH SNIDER
BETWEEN:
CHIEF PERRY BELLEGARDE, REPRESENTING HIMSELF, AND
ALL MEMBERS OF SASKATCHEWAN FIRST NATIONS AND
INDIAN BANDS AND THEIR MEMBERS AND
THE FEDERATION OF SASKATCHEWAN INDIAN NATIONS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion by Her Majesty the Queen in Right of Canada, the Defendant in the underlying action, (the "Applicant") for an order pursuant to Rule 221(1)(a) of the Federal Court Rules, 1998 striking out the claim of the Respondents, the Plaintiffs in the underlying action, on the basis that it discloses no reasonable cause of action. In the alternative, the Applicant seeks an order pursuant to paragraph 50(1)(b) of the Federal Court Rules, 1998 staying the proceedings in this action pending the completion of the consultations referred to in paragraphs 28 to 35 of the Amended Statement of Claim and the enactment of the First Nations Governance Act.
Background
[2] In the underlying action, the Plaintiffs assert that the drafting and consultation process associated with Bill C-7, the proposed First Nations Governance Act, was not conducted on a foundation of full or adequate disclosure or consultation with the First Nations of Canada, to whom the Defendant owes a fiduciary duty. The Plaintiffs assert that the Defendant is required, by section 35.1 of the Constitution Act, 1982, to hold a Constitutional Conference, with the elected representatives of the First Nations, because the proposed amendments to the Indian Act, R.S.C. 1985, c. I-5 may infringe or amend constitutionally protected First Nations rights. The Plaintiffs also base their claim on the understanding of the First Nations of Canada that, based on the Constitution Act, 1982, their rights are inviolable without a constitutional conference first being held. Based on the constitution, the Applicant owes a general fiduciary duty to act in the best interests of the First Nations in Canada by including the Chiefs and Councils of the Treaty First Nations and representatives of First Nations governing institutions in the early stages of development and drafting of Bill C-7.
[3] This is not the first attempt by the Applicant to strike this claim. In Federation of Saskatchewan Indian Nations v. Canada, 2003 FCT 306, [2003] F.C.J. No. 429 (QL) ("FSIN First Motion"), MacKay J. heard and decided a similar motion in respect of the originally filed statement of claim. While ordering a number of amendments and deletions to the claim, he refused to strike the following portions of the claim:
(1) a declaration that the Defendant has breached its fiduciary obligations and duties to protect the rights and privileges of the Plaintiffs;
(2) a declaration that in the future the Defendant, 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 Canada.
Issue: Should the Amended Statement of Claim be struck or stayed?
Applicant's Submissions
[4] The Applicant argues that the Amended Statement of Claim should be struck because it discloses no reasonable cause of action. Parliament has an absolute entitlement to debate and pass resolutions freely on any subject of its own choosing and members of Parliament have an absolute freedom of speech and debate (Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; New Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319). The enactment of regulations does not give rise to a private law or sui generis fiduciary duty to consult with aboriginal peoples (Treaty Eight First Nations v. Canada (A.G.), 2003 FCT 782, [2003] F.C.J. No. 1009 (QL)). It follows that the consideration of a bill by Parliament does not give rise to any such duty. Finally, a declaration with respect to the adequacy of consultations would have the practical effect of influence or limiting the range of choices open to Parliament in dealing with a bill and would "pre-empt a possible decision of Parliament by dictating the form of legislation it should enact" (Borowski, supra at 365).
Respondents' Submissions
[5] In the Respondents' submission, the Amended Statement of Claim should not be struck as the issue has been previously decided in the Respondents' favour by this Court and is therefore res judicata. A stay of proceedings should not be granted. The Applicant should be barred from raising this issue as it should have been raised in FSIN First Motion, supra. In any event, the Amended Statement of Claim raises a reasonable cause of action.
Analysis
1. Test for a Motion to Strike
[6] 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 (Federal Court Rules, 1998, r. 221(2); Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441).
[7] The question to be asked is whether it is plain and obvious that the Amended Statement of Claim discloses no reasonable cause of action. In other words, is the action certain to fail because it contains a radical defect? (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959)
2. Motion before MacKay J.
[8] The Applicant made similar arguments related to improper intervention in the legislative process and the freedom of speech for debate before MacKay J. (FSIN First Motion, supra at para. 15). MacKay J. declined to strike the claims for declarations concerning the fiduciary duties of the Crown. His reasoning on this issue, located at paragraphs 23 and 24 of his decision was as follows:
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.
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.
[9] MacKay J. also noted, at paragraph 20, that the Plaintiffs' submissions that their aboriginal and treaty rights have already been violated by the introduction of the proposed Bill C-7, without full disclosure and consultation raise "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." According to MacKay J., the mere fact that the Plaintiffs may have difficulty persuading a trial judge to accept this submissions is not sufficient to strike the statement of claim.
3. Res Judicata
[10] Res judicata requires that the demand be based on the same cause, between the same parties and with the same object (Dumont Vins & Spiritueux Inc. v. Canadian Wine Institute, 2001 FCT 695, [2002] 1 F.C. 231; Canada v. Chevron Canada Resources Ltd., [1999] 1 F.C. 349 (C.A.)). Res judicata applies to related matters which, although undecided, could and should have been brought forward and disposed of at that time.
[11] In this case, aside from the submissions related to Treaty Eight First Nations, supra, the Applicant is raising the same issues that were raised before MacKay J. The Applicant is also requesting the same relief, but has included a request for a stay of the underlying application, something which could have been raised before MacKay J. The decision of MacKay J. can be considered final, as the Applicant did not file a notice of appeal within the required time. Finally, the parties in both motions are essentially the same. The only difference is the named representative party has changed.
[12] Whether res judicata applies in this case appears to me to turn on whether there is anything new that has arisen since MacKay J. first heard this matter (Fullowka v. Royal Oak Mines Inc. [1996] N.W.T.J. No. 29 (N.W.T.S.C.) (QL)). The Applicant acknowledges that the only new material before the Court is the Treaty Eight, supra decision. However, as discussed below, I am satisfied that Treaty Eight, supra is distinguishable. Accordingly, it is likely that the motion is barred by res judicata. Nevertheless, I have also examined the motion on its merits.
[13] If this motion is barred by res judicata, I am of the view that the application for a stay would also be barred, because it constitutes a matter that could, and should, have been brought forward and disposed of in the prior motion heard by MacKay J. (Chevron Canada Resources, supra).
4. Analysis of Motion to Strike on its Merits
[14] The reasoning of MacKay J., excerpted above, is persuasive and equally applicable to this motion to strike. As a result, I am of the view that the Amended Statement of Claim should not be struck based on the Applicant's arguments related to non-interference by the Courts in the Parliamentary process and the freedom of speech for debate, for the reasons given by MacKay J.
[15] However, the Applicant also submits that the enactment of regulations does not give rise to a private law or sui generis fiduciary duty to consult with aboriginal peoples. The recent decision of Dawson J. in Treaty Eight First Nations, supra is cited in support of this proposition.
[16] In that case, the applicants sought a declaration that the Regulations Amending the Indian Band Election Regulations, SOR/2000-391 and the Regulations Amending the Indian Referendum Regulations, SOR/2000-392 contravened aboriginal and treaty rights guaranteed under subsection 35(1) of the Constitution Act, 1982 because they were drafted and passed into law without full and meaningful consultation being conducted with First Nations peoples. The applicants also sought an order quashing the regulations.
[17] Dawson J. found that the applicants were essentially asserting an interest in the content of the regulations and held that a fiduciary duty to consult did not arise on the facts because there was no evidence that the Crown undertook discretionary control in a way that invoked responsibility in the nature of a private law duty. Dawson J. left open the possibility that a different conclusion might be reached on a different evidentiary record.
[18] In my view, this case is distinguishable from Treaty Eight First Nations, supra. In that case, the applicants asserted a general fiduciary obligation arising from the "constitutional right to governance and land" (para. 60). The regulations at issue dealt with the method in which elections and referendums would be conducted.
[19] In the present case, Bill C-7 relates to the amount of federal governmental control over Indian governments on reserves and involves substantive, major changes to the Indian Act. According to the Amended Statement of Claim, Bill C-7 will amend certain rights contained in the Royal Proclamation of 1763, the treaties and the Indian Act. This fact, in my view, is significant. Although the plaintiffs are asserting a right similar to that asserted in Treaty Eight First Nations, supra, the right to be consulted when the federal government proposes new legislation, the content of the legislation in the present case is more clearly linked to aboriginal and treaty rights. In other words, the plaintiffs have brought some evidence, in their Amended Statement of Claim, that they have a right to be consulted when the federal government proposes legislation which will take away some of their existing rights.
[20] In addition, the present case deals with section 35.1 of the Constitution Act, 1982, which was not addressed in Treaty Eight First Nations, supra and has not been the subject of any other litigation.
[21] At this preliminary stage, I cannot conclude that the claim is certain to fail. As a result, I would dismiss the motion to strike the Amended Statement of Claim.
5. Stay
[22] I would also dismiss the Applicant's alternative argument.
[23] The Plaintiffs are seeking declaratory relief requiring the Defendant, when enacting statutes with respect to First Nations people, to 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 Canada.
[24] In my view, given the nature of the relief sought by the Plaintiffs, it is not necessary to stay the action until the completion of the consultations related to Bill C-7 and the enactment of that legislation.
Conclusion
[25] In summary, this motion to strike should be dismissed either because it is res judicata or on its merits. Further, the Applicant has not persuaded me that his alternative remedy of a stay is warranted in the circumstances.
[26] The Respondents seek costs on a solicitor-client basis. While I am prepared to award costs of this motion to the Respondents, I do not think that this is a case where costs on a solicitor-client basis are appropriate.
[27] Finally, I note the Applicant requests, in the alternative, an order, pursuant to Rule 8(1) of the Federal Court Rules, 1998, extending the time for delivery of an Amended Statement of Defence to a date 30 days from the date of this decision. The request is reasonable and will be granted.
ORDER
THIS COURT ORDERS THAT:
1. The motion is dismissed with costs to the Respondents.
2. The time for filing of an Amended Statement of Defence is extended to 30 days from the date of this Order.
"Judith A. Snider"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1105-02
STYLE OF CAUSE: CHIEF PERRY BELLEGARDE, REPRESENTING HIMSELF, AND ALL MEMBERS OF SASKATCHEWAN FIRST NATIONS AND INDIAN BANDS AND THEIR MEMBERS AND THE FEDERATION OF SASKATCHEWAN INDIAN NATIONS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: Thursday, August 7, 2003
REASONS FOR ORDER AND ORDER:
THE HONOURABLE MADAM JUSTICE SNIDER
DATED: Tuesday, August 26, 2003
APPEARANCES:
Delia Opekokew FOR PLAINTIFF
Mark R. Kindrachuk FOR DEFENDANT
SOLICITORS OF RECORD:
Ms. Delia Opekokew FOR PLAINTIFF
Opekokew, Johnstone-Clarke, Barristers & Solicitors
Suite 99, 103B Packham Avenue
Saskatoon, Saskatchewan, S7N 4K4
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada