Date: 20030526
Docket: T-66-86A
Citation : 2003 FCT 665
BETWEEN:
BERTHA L'HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
- and -
T-66-86B
BETWEEN:
BRUCE STARLIGHT suing on his own behalf and
on behalf of all other members of the Sarcee Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
[1]The plaintiffs started these representative actions against the Crown in 1986, seeking declaratory relief that certain legislation (still often referred to as Bill C-31) which amended the Indian Act is unconstitutional. New class action rules came into force on November 21, 2002. Former Rule 114, which permitted and governed the bringing of such actions, was repealed and no equivalent rule permitting representative actions was adopted in its place. The plaintiffs have not applied to the Court for certification, pursuant to the class action rules.
[2] The Crown brings these motions in writing requesting that the Court compel the plaintiff bands to seek certification of these proceedings as class actions pursuant to the new Rules. The interveners Native Women's Association of Canada and Non-Status Indian Association of Alberta support the Crown's motion.
[3] The plaintiffs request an order dismissing the Crown's motion and directing that the action continue in its present form, or, alternatively, that the Sawridge Band and Tsuu T'ina First Nation be named as the plaintiff in each action.
[4] In the course of their written submissions, the plaintiffs appear to alter their position and now ask that the actions not continue in their present form as representative actions but rather that they be amended so that the respective bands should become the plaintiff in each action. That being the case, it is not necessary that I deal with the question of whether the actions can continue as representative actions, through the application of the general dispensing power granted by Rule 55. Given the great age and advanced stage that these actions have reached, I would certainly not exclude the possibility of the exercise of that power here, but, as I have said, the question need not be dealt with.
[5] The issue thus is no longer whether this Court should waive compliance with the class action rules through the exercise of discretionary power, but rather whether it should permit the plaintiffs to amend the style of cause to reflect the fact that these actions have been brought by the bands themselves. If such a result is warranted, Rule 385(1)(a) clearly gives me the power to make such an order. Reference may also be had to Rule 299.22 although, strictly speaking, the present motions do not actually seek certification but rather that the plaintiffs be forced to do so.
[6] In their statements of claim, the plaintiffs seek a constitutional declaration of invalidity. In Guimond v. Quebec (Attorney General), [1996] 2 S.C.R. 347 at paragraph 20, Justice Gonthier wrote as follows:
[...] it is not necessary to pursue a class action to obtain a declaration of constitutional invalidity and therefore... it is generally undesirable to do so.
[7] Justice Campbell of the Ontario Superior Court of Justice agreed in Perron v. Canada (Attorney General), [2003] O.J. No. 1348 at paragraphs 98-99:
I accept the admonition as set out in Guimand, supra that where constitutional invalidity is alleged, "it is generally undesirable" to use a class action. This statement to my mind does not obviate the need to look at the circumstances of a particular case.
In this case, not only can the primary issue be dealt with more effectively without a class proceeding, but also more efficiently as an individual action. The declaratory relief sought would appear to be rather more straightforward to be dealt with if unencumbered in a trial process with all the individual issues. The cost of dealing with the declaratory relief would appear substantially less than the class process.
[8] While these cases suggest that an action for declaratory relief can, in an appropriate case, be brought in a class action, such a manner of proceeding will be the exception, rather than the rule. There is, after all, no reason for an action that seeks solely to have a statutory provision declared invalid to proceed as a class action, since a declaration of invalidity can be sought as a rule by any person having the requisite interest to begin with.
[9] The only question that remains is whether a band can sue in its own right. This issue was initially not seriously contested by the Crown, which cited Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [1992] 2 C.N.L.R. 177. In that case, this Court determined that, in fact, an Indian Band was capable of suing in its own right:
There seems to me to be no logical reason why Indian bands, as such should not possess the same rights to sue as corporations for instance, and, similarly, to be subject to various resulting obligations. Although no general statutory enactment so provides, common sense seems to dictate it. I therefore find that they do possess a special status enabling them to institute, prosecute and defend a court action. It follows that those claiming to sue in the name of a band must be prepared to establish their authority to do so when and if that authority is challenged. Any such authorization of course need not be subject to any special rules, laws or procedures other than those prescribed by the traditions, customs and government of the particular band.
[10] In its reply submissions, however, the Crown appears to contradict its earlier concession by casting doubt on the status of a band to sue in its own right. It argues that, just because rights are communal, does not mean that they vest in the band. It cites Oregon Jack Creek Indian Band v. Canadian National Railway Co. (1989), 56 D.L.R. (4th) 404 at 410, where the British Columbia Court of Appeal appeared to cast doubt on whether a band was a legal entity in their discussion of whether the action was personal or derivative:
It is a mistake, in my view, to conclude that aboriginal rights vest in an entity (which clearly does not exist today) and to ignore the historical fact that the rights are communal, and that they are possessed today by the descendants of the persons who originally held them. They are not personal rights in the sense that they exist independently of the community, but are personal in the sense that a violation of the communal rights affect the individual member's enjoyment of those rights. Individuals representing all other persons who can claim those rights must have status to do so if any claim is to be made. To hold that only the nation can make the claim is in reality to hold that no claim can be made.
[11] In that same case (Oregon Jack Creek Indian Band v. C.N.R. (No. 2), [1990] 1 S.C.R. 117 at 118-119), however, the Supreme Court of Canada made it clear that the above statement was obiter, and it refused to decide the issue in the context of the case before it:
In pronouncing on these issues, the Court of Appeal went beyond the narrow issue before them -- whether the pleadings were clearly invalid. In our opinion, it is premature to pronounce on these questions in the absence of evidence at this early stage of the action. As the conclusions of the Court of Appeal on these issues were obiter dicta and as we are not holding that the Court of Appeal erred in arriving at these conclusions but merely that they should not be decided at this time [...] .
[12] In specifically declining to pronounce on this issue, the Supreme Court of Canada has left it open. I do not, however, interpret even the decision of the B.C. Court of Appeal in Oregon Jack as standing for the proposition that a band can never bring an action in its own right. At page 409 of the decision, the Court stated :
It is not necessary in this case to decide in what situations the band may be regarded as a legal entity for the purpose of commencing an action. It is sufficient to observe that a representative action may be brought by the members of the band council...or by a chief of a band for himself, and the majority of his band [...]
The question in this case is not whether a band, through the members of its council, can bring an action in trespass, but whether the chief of a band [...] can bring a representative action on behalf of himself and all other members of the band to enforce their communal rights.
[13] In the context of that case, I think the Court of Appeal was saying that, while rights are communal, they can still be asserted by individual members of the band. It was not saying that the band cannot bring its own action. Wewayakum, in my view, clarifies the latter issue by determining in clear language that a band, as a legal entity, can sue in it own right. With respect, that seems to me to be good law as well as sound common sense. Subject to what is said below, it also accords well with the realities of these cases.
[14] The Crown argues further that it would be inappropriate to name the bands as plaintiffs, since these actions are not brought on behalf of the bands as a whole; rather, they have been brought on behalf of a subset of the bands. I believe the Crown is essentially arguing that, since the acquired rights individuals are members of the Band pursuant to the Indian Act, these actions have been brought on behalf of only some of the band members, since they are certainly not brought on behalf of those members who only acquired their membership under Bill C-31. Thus, it is argued, since only a subset of the band has brought this action, it would be inappropriate to name the bands, in their entirety, as the plaintiffs.
[15] The question of who exactly is a member of the band is the precise question of this litigation : Are the amendments to the Indian Act, which purport to give certain individuals an acquired right to band membership, unconstitutional? This court has recently provided interim relief in the Sawridge case such that those acquired rights members be added to the band list pending the final determination of the action. As a result, if the band were named as the plaintiff in this case, it clearly would not be in accordance with the will of each of the band members. However, in my view, the question of whether the band represents all of the band members is irrelevant, since the bands are not suing in a representative capacity, rather they are suing in their own right. It is analogous to a band suing one of its members directly. Since it is already clear that a band is capable of bringing an action, the fact that all members of the band may not agree is simply irrelevant. Few corporate bodies will at all times be acting in a way which meets the unanimous approval of all their members.
[16] For the forgoing reasons, I conclude that the Crown's motions should be dismissed, but that the actions should continue with the styles of cause being amended to show in each case the relevant band or First Nation as plaintiff.
Judge
Ottawa, Ontario
May 26, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-66-86A and T-66-86B
STYLE OF CAUSE: Sawridge Band v. Queen et al and
Tsuu T'ina First Nation v. Queen et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: May 26, 2003
WRITTEN SUBMISSIONS BY:
Philip Healey, Martin Henderson FOR PLAINTIFFS
Kathleen Kohlman, Janell Koch FOR DEFENDANT, CROWN
Michael Donaldson FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Mary Eberts FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA
SOLICITORS ON THE RECORD:
Aird & Berlis
Toronto, Ontario FOR PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT, CROWN
Burnet Duckworth Palmer
Calgary, Alberta FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Eberts Syms Street & Corbett
Toronto, Ontario FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA