[2000] 1 F.C. 304
T-491-97
British Columbia Native Women’s Society, Teresa Nahanee and Jane Gottfriedson (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
and
Squamish Nation, in its capacity as party to the Framework Agreement on First Nations Land Management, and on behalf of all other First Nation Parties to the said Framework Agreement on First Nations Land Management (Intervener)
Indexed as: B.C. Native Women’s Society v. Canada (T.D.)
Trial Division, Hargrave P.—Vancouver, December 22, 1998 and August 12, 1999.
Constitutional law — Charter of Rights — Equality rights — Action for declarations Framework Agreement breaches Crown’s fiduciary duty, plaintiffs’ Charter, ss. 7, 15 rights, injunctive relief — Crown seeking to strike from statement of claim references to Framework Agreement providing for delegation of federal powers so that First Nations may withdraw lands from management provisions of Indian Act — Indian Act, Framework Agreement not making provision for matrimonial property rights for Indian women on reserves — Framework Agreement not treaty to which Constitution Act, 1982, s. 35(4), guaranteeing male/female equality rights, applies — All other Canadian women subject to provincial legislation governing division of matrimonial property — Not plain, obvious, beyond reasonable doubt portion of statement of claim relating to Framework Agreement cannot succeed.
Crown — Fiduciary duties — Delegation — Crown seeking to strike references in statement of claim to Framework Agreement providing for delegation of federal powers so that First Nations may withdraw lands from management provisions of Indian Act — Provincial legislation governing division of matrimonial property not applicable to reserve land because conflicting with Indian Act — Indian Act, Framework Agreement not dealing with property rights of Indian women living on reserves on marital breakdown — Arguable Crown having fiduciary duty to Indian women on reserves to give them same property rights on marriage breakdown as enjoyed by other Canadian women — Delegation, subject to limits, necessity — That Crown may not abdicate function one such limit — Arguable delegation of fiduciary duty may be abdication of legislative function by Crown — Not plain, obvious, beyond reasonable doubt portion of claim relating to Framework Agreement cannot possibly succeed.
Native peoples — Lands — Crown seeking to strike references in statement of claim to Framework Agreement, providing for delegation of federal powers so that First Nations may withdraw lands from management provisions of Indian Act — Provincial legislation governing division of matrimonial property not applicable to reserve land because conflicting with Indian Act — Indian Act, Framework Agreement not dealing with property rights of Indian women living on reserves on marital breakdown — Applying test in Frame v. Smith, [1987] 2 S.C.R. 99, arguable Crown having fiduciary duty to Indian women on reserves to give them same property right on marriage breakdown as enjoyed by other Canadian women — Also arguable delegation of fiduciary duty abdication of legislative function by Crown — Impugned portions of statement of claim not futile.
Administrative law — Judicial review — Declarations — Action for declarations Framework Agreement on First Nations Land Management breaches Crown’s fiduciary duty, plaintiff’s Charter rights — Crown contending action premature until land codes contemplated by Agreement coming into effect, seeking to strike references to Agreement in statement of claim — Declaratory relief having preventive role; neither injury nor wrong need to have actually been committed, threatened; plaintiffs need only show some legal right, interest in jeopardy or placed in grave uncertainty — Requirement for causal link between action, harm flowing therefrom in future — Must show recognizable, as opposed to hypothetical, speculative threat before declaratory relief will issue — Declaratory relief not precluded merely because future right placed at risk — If waiting until land codes contemplated by Agreement in effect, declaratory judgment as preventive measure becoming lesser tool.
Practice — Pleadings — Motion to strike — References in statement of claim to Framework Agreement, providing for delegation of federal powers so that First Nations may withdraw lands from management provisions of Indian Act — On motion to strike for want of reasonable cause of action, facts set out in statement of claim accepted as proven prior to determination whether plain, obvious, beyond reasonable doubt claim cannot possibly succeed — Under balance of grounds for striking out under r. 221, test as stringent, but affidavit evidence also considered — Temptation to strike out pleadings too easily to save expense, preserve Court resources — Stringent requirements necessary to avoid depriving party of day in court, prevent stifling advancement, refinement of law — Not plain, obvious, beyond reasonable doubt impugned portion of claim cannot possibly succeed.
This was a motion to strike out portions of a statement of claim which, overall, deals with perceived Indian reserve property rights discrimination against Indian women. The statement of claim alleged that the Framework Agreement on First Nations Land Management was deficient in that it does not make provision for Indian women on reserves who, unlike all other Canadian women, have in law and in practice no matrimonial property rights. This deficiency was said to be discriminatory, a breach of the Crown’s fiduciary duty and contrary to Charter, sections 7 and 15. The statement of claim sought declarations that the Framework Agreement breached the Crown’s fiduciary duty and the plaintiff’s Charter rights, together with interim injunctive relief to prevent the Crown from executing either the Framework Agreement or any derivative agreement with a First Nation. The Crown sought to have references to the Framework Agreement struck out for want of a reasonable cause of action and as vexatious, frivolous and abusive. The Framework Agreement provides for a delegation of federal powers so that a signatory First Nation may withdraw its lands from the management provisions of the Indian Act. It does not provide for equal rights between men and women. The Framework Agreement is not a treaty to which Constitution Act, 1982, subsection 35(4) would apply, thus guaranteeing male and female equality. Provincial legislation governing the division of matrimonial property does not apply to reserve land because such provincial legislation conflicts with the Indian Act. The Indian Act contains no provision for dealing with property rights, including a matrimonial home, on the breakdown of a marriage or relationship. This lacuna, the plaintiffs submitted, was a breach of Charter, section 15 which provides for equal protection and equal benefit of the law, without any discrimination, and a breach of section 7 of the Charter, which provides for life, liberty and security of the person. The plaintiffs alleged that the Crown has a fiduciary obligation to all Indians, including to married Indian women on reserves. The alleged duty is one of even-handedness.
The issues were: (1) whether the Crown owes a fiduciary duty to the plaintiffs; (2) whether such a fiduciary duty may be delegated; and (3) whether the preventive declaratory relief sought by the plaintiffs is available.
Held, the motion should be dismissed.
On a motion to strike out for want of a reasonable cause of action, the facts set out in the statement of claim must be taken as proven, and then it must be determined whether it is plain, obvious and beyond reasonable doubt that the claim cannot possibly succeed. Under the balance of the grounds for striking out under Federal Court Rules, 1998, rule 221, the test is at least as stringent, but any affidavit evidence must also be considered. It may be that, in an effort to save expense and to preserve the Court’s resources, there is a temptation to strike out too easily. Such stringent requirements are necessary to avoid depriving a party of a proper and deserved day in court, and to prevent stifling the advancement or refinement of the law.
(1) The fiduciary duty owed by the Crown to Indians is still in a state of flux and evolution, but there was an arguable case that the Crown owed a fiduciary duty to Indian women on reserves to give them the same property rights on the breakdown of a relationship as are enjoyed by other Canadian women. Applying the test set out in Frame v. Smith for whether there exists a fiduciary relationship, it was arguable that the Crown has the discretion and power to rectify the present situation, that it can unilaterally exercise the power to affect the legal and practical interests of both married and marriageable Indian women living on reserves, and that the potential beneficiaries of all of this are in a particularly vulnerable position.
(2) The plaintiffs do not wish to challenge each signatory First Nation’s land use legislation, legislation which may be discriminatory toward Indian women on reserves. However, delegation of power is an ever increasing necessity, for it would be virtually impossible for the Crown to set out, in any one of the multitude of its enactments, detailed rules which would apply in each situation. Yet there must be some limit on delegation. One limit is that the Crown may not abdicate its function. It was perhaps arguable that since the Crown has an obligation to act in the best interest of Indians, the Crown could be held accountable for failing to act in the best interests of Indian women on reserves. In essence, delegation of a fiduciary duty might be an abdication of legislative function by the Crown. This argument is difficult, but not necessarily fruitless.
(3) Declaratory relief has a preventive role, for neither injury nor wrong need to have actually been committed or threatened; a plaintiff need only show that some legal right or interest is either in jeopardy or has been placed in grave uncertainty. But there must be a causal link between an action and the harm flowing from it in the future. A court needs to be shown a recognizable threat, as opposed to a hypothetical or speculative threat before declaratory relief will issue. Declaratory relief is not precluded merely because it is a future right which has been placed at risk. The Crown contended that the action was premature until the land codes contemplated by the Framework Agreement come into effect as no one’s interest in a home or in property on a reserve is affected until the land regime is in place. This argument missed the point raised in the statement of claim, which must be taken as proven, that the Crown has abrogated its duty to married and marriageable Indian women on reserves by omitting what ought to be contained in the Framework Agreement by way of protection from discrimination. If one were to ignore this sort of aspect, the declaratory judgment would, as a preventive measure, become a lesser tool.
In considering whether portions of the statement of claim ought to be struck out under the additional heads for striking out a pleading pursuant to subsection 221(1) of the Rules, 1998, the statement of claim was considered in light of the affidavit material that the First Nations will be required to establish rules and procedures applicable on marriage breakdown in their land codes and that there will be a land code ratification process by both First Nations and the Crown. The intervening First Nations suggested that this would be the time to challenge specific First Nations land codes. Again, this missed the point. The plaintiffs’ complaint was not about what the First Nations may or may not do, but rather against the Crown for not only omitting to deal, in the Framework Agreement, with a fiduciary duty but for, in effect, assigning the fiduciary duty.
It was not plain, obvious and beyond reasonable doubt that the portion of the claim, relating to the Framework Agreement, could not possibly succeed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(4).
Federal Court Rules, C.R.C., c. 663, R. 419.
Federal Court Rules, 1998, SOR/98-106, r. 221.
Indian Act, R.S.C., 1985, c. I-5.
CASES JUDICIALLY CONSIDERED
APPLIED:
Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Frame v. Smith, [1987] 2 S.C.R. 99; (1987), 42 D.L.R. (4th) 81; 42 C.C.L.T. 1; [1988] 1 C.N.L.R. 152; 78 N.R. 40; 23 O.A.C. 84; 9 R.F.L. (3d) 225.
CONSIDERED:
Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 [1999] 2 C.N.L.R. 60; (1998), 156 F.T.R. 1 (T.D.).
REFERRED TO:
Ricafort et al. v. Canada (1988), 24 F.T.R. 200 (F.C.T.D.); Burton v. Canada, [1996] F.C.J. No. 1059 (F.C.T.D.) (QL); Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; (1990), 74 D.L.R. (4th) 321; [1990] 6 W.W.R. 385; 49 B.C.L.R. (2d) 273; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 117 N.R. 321; Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279; (1990), 67 D.L.R. (4th) 159; [1990] 4 W.W.R. 127; 65 Man. R. (2d) 182; [1990] 2 C.N.L.R. 19; 105 N.R. 228; Martel v. Samson Band, [1999] F.C.J. No. 374 (T.D.) (QL); Derrickson v. Derrickson, [1986] 1 S.C.R. 285; (1986), 26 D.L.R. (4th) 175; [1986] 3 W.W.R. 193; (1986), 1 B.C.L.R. (2d) 273; [1986] 2 C.N.L.R. 45; 65 N.R. 278; 50 R.F.L. (2d) 337; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; (1997), 153 D.L.R. (4th) 193; 99 B.C.A.C. 161; [1998] 1 C.N.L.R. 14; 220 N.R. 161; R. v. Furtney, [1991] 3 S.C.R. 89; (1991), 66 C.C.C. (3d) 498; 8 C.R. (4th) 121; 8 C.R.R. (2d) 160; 129 N.R. 241; 51 O.A.C. 299; Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1; Algoma Central Railway v. Canada (1987), 10 F.T.R. 8 (F.C.T.D.).
AUTHORS CITED
Jones, D. P. and A. S. de Villars. Principles of Administrative Law, 2nd ed. Toronto: Carswell, 1994.
MOTION to strike, for want of a reasonable cause of action or as being frivolous and vexatious, portions of a statement of claim for declaratory relief and an interim injunction regarding the Crown’s delegation of its fiduciary duty toward married Indian women with respect of the Framework Agreement on First Nations Land Management. Motion denied.
APPEARANCES:
barbara findlay for plaintiffs.
Charles G. Stein for intervener.
William Henderson for intervener.
Beverly Hobby for defendant.
SOLICITORS OF RECORD:
Dahl findlay Connors, Vancouver, for plaintiffs.
Ratcliff & Company, North Vancouver, for intervener.
William Henderson, Toronto, for intervener.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order rendered in English by
[1] Hargrave P.: These reasons arise out a motion to strike out portions of a statement of claim which, overall, deals with perceived Indian reserve property rights discrimination against Indian women on the termination of a marriage or indeed against Indian women in a common law relationship or contemplating marriage or a relationship. Included in the statement of claim are allegations that the Framework Agreement on First Nations Land Management between the following First Nations: Westbank, Musqueam, Lheit-Lit’en, N’Quatqua, Squamish, Siksika, Muskoday, Cowessess, Opaskwayak Cree, Nipissing, Mississaugas of Scugog Island, Chippewas of Mnjikaning, Chippewas of Georgina Island and the Government of Canada (hereinafter the Framework Agreement), negotiated between the Crown and various First Nations, is deficient in that it does not take into account or make provision for Indian women on reserves who, unlike all other Canadian women, have in law and in practice no matrimonial property rights. This deficiency is said to be discriminatory, a breach of the Crown’s fiduciary duty and contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
[2] The statement of claim seeks a broad spectrum of relief. Pertinent to the Framework Agreement the plaintiffs, who have both a representative and a direct personal interest in all of this, seek declarations that the Framework Agreement breaches the Crown’s fiduciary duty and the plaintiffs’ Charter rights, together with interim injunctive relief to prevent the Crown from executing either the Framework Agreement or any derivative agreement with a First Nation. It is the references to the Framework Agreement which the Crown wishes struck out.
[3] I have concluded that the defendant’s motion must fail. The portions of the claim concerning the Framework Agreement are not plainly, obviously and beyond doubt pleadings which cannot possibly succeed.
THE FRAMEWORK AGREEMENT
[4] At issue is the propriety of the references to the Framework Agreement in the statement of claim. The Crown says that these references ought to be struck out.
[5] The Framework Agreement provides for a delegation of federal powers, “government to government” between various First Nations and the Queen in right of Canada, so that should a signatory First Nation wish to withdraw its lands from the management provisions of the Indian Act [R.S.C., 1985, c. I-5], it may do so and thus “exercise control over their lands and resources for the use and benefit of their members” (see preamble to the Framework Agreement).
[6] The Framework Agreement is, for a framework, quite comprehensive. Yet it concerns the plaintiffs that, despite its detailed approach, it does not address a present disparity between the rights of Indian women living on reserves, on a marriage or relationship breakdown and the rights of all other Canadian women.
[7] I do not intend to set out any portions of the Framework Agreement and the fairly extensive amendment. However, given the detailed approach of the Framework Agreement and for example I would refer to Part IV, dealing with law making powers, the want of any provision dealing with equal rights, women and men, stands out. All the more so given the present climate on this issue.
[8] Unfortunately the Framework Agreement is not in the nature of a treaty, to which subsection 35(4) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982 c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] would apply, thus guaranteeing male and female equality.
[9] It is this omission of equality which the plaintiffs wish to challenge. The challenge is not vis-à-vis the intervening First Nations, either now or once each puts in place its code of management, but rather it is in opposition to the Crown and the perceived side-stepping or contracting out, by the Crown, of its fiduciary obligations to Indian women.
ANALYSIS
Striking Out a Pleading
[10] The Crown’s motion to strike out the portions of the statement of claim related to the Framework Agreement contains various options. The Crown says not only is there want of a reasonable cause of action in the challenge of the Framework Agreement, but also those portions of the action founded on the Framework Agreement are at least vexatious, frivolous and abusive. While the Crown has filed a defence, all of these options are still open. This is so because a motion to strike out for want of a reasonable cause of action, under paragraph 221(1)(a) [of the Federal Court Rules, 1998, SOR/98-106], may be brought at any time. While the filing of a defence, without condition, is a bar to striking out under the balance of the provisions of rule 221, a defence raising similar objections does not constitute a bar: see for example Ricafort et al. v. Canada (1988), 24 F.T.R. 200 (F.C.T.D.), at page 202 and Burton v. Canada, [1996] F.C.J. No. 1059 (F.C.T.D.) (QL), in which I summarized the law, referring to Rule 419 [of the Federal Court Rules, C.R.C., c. 663], now replaced by rule 221 (at page 4 (QL)):
A motion to strike out a pleading, for want of a reasonable cause of action, under Rule 419(1)(a), may be brought at any time. However, in the case of a motion to strike out under the remaining provisions of Rule 419(1), in this instance (c), that it is scandalous, frivolous or vexatious or (f), that it is an abuse of the process of the Court, the filing of a defence will bar such an application: see for example Nabisco Brands Ltd. v. Procter & Gamble Co. (1985), 5 C.P.R. (3d) 417 at 418 (F.C.A.). However, there is an exception in an instance in which a party seeking to strike out has raised the same objections to the statement of claim both in the defence and in the motion to strike out: see Ricafort v. Canada (1988), 24 F.T.R. 200 at 202 and Montreuil v. The Queen, [1976] 1 F.C. 528at 529.
[11] On a motion to strike out for want of a reasonable cause of action, I must take as proven the facts set out in the statement of claim and then determine, without the assistance of any affidavit material, whether it is plain, obvious and beyond reasonable doubt that the claim cannot possibly succeed; see for example Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at page 967 and following; Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, at page 280; and Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at pages 486-487. Under the balance of the grounds for striking out under rule 221 the test is at least as stringent, however I must take into account any relevant affidavit evidence.
[12] This law on striking out of pleadings is sometimes referred to as trite law. Yet it bears repeating for otherwise, perhaps in an effort to save expense for all concerned and to preserve the resources of the Court, there is a temptation to strike out a pleading too easily. To strike out without keeping strictly to the safeguards of the stringent requirements is to deprive a party of what may well be a proper and deserved day in court and perhaps in the process, on occasion, stifle the advancement or refinement of the law. However, where a proceeding is fruitless and will not lead to a practical result, the resources of all concerned ought not to be squandered.
Principal Issues
[13] While peripheral matters were touched upon by counsel the three principal issues are whether there is a fiduciary obligation owed by the Crown to the plaintiffs, whether such a fiduciary duty may be delegated, and whether the preventive declaratory relief sought by the plaintiffs is available. If the answer to any of the issues is an absolute negative, in the sense that the plaintiffs will not succeed on one or the other of the issues, the section of the statement of claim dealing with the Framework Agreement must be struck out. I will deal first with whether there is a fiduciary obligation upon which the plaintiffs might rely. The exploration of that issue requires examination of the statement of claim as a whole.
Fiduciary Duty
[14] Consideration of whether that part of the statement of claim dealing with the Framework Agreement ought to be struck out should be in the context of the whole of the statement of claim. Moreover, I ought to read the statement of claim with “a generous eye and should only strike it if it is plain and obvious that the pleading must fail at trial”: Martel v. Samson Band, [1999] F.C.J. No. 374 (T.D.) (QL), at paragraph 2.
[15] The statement of claim begins by explaining who the parties are and their concerns. The British Columbia Native Women’s Society is concerned with family relations and education on a broad scale. Ms. Nahanee is an unmarried Squamish woman who lived with a non-Aboriginal man, off-reserve, but chose not to marry for that would have brought about status problems. Ms. Gottfriedson is in a long-term common-law relationship, living not on her partner’s reserve, but on her own reserve: she has declined to marry as she does not wish to leave her own reserve. She lives on property which is in her mother’s estate. Certainly the Society and Ms. Gottfriedson have direct current concerns, one general and one more specific. Ms. Nahanee, with past decisions dictated by the position of Indian women living on reserve, may not have a concrete present difficulty dictated by the lack of equal property rights, but she, together with other Indian women living on reserve, may certainly have future difficulties as a result of the clear inequality of rights, an inequality of both a legal and a factual nature. The plaintiffs’ dispute is with the Crown, not with the intervener.
[16] The plaintiffs point out that there is a lacuna in the Indian Act in that provincial family relations type legislation, governing the division of matrimonial property, does not apply to reserve land because such provincial legislation is in conflict with the Indian Act: for example see Derrickson v. Derrickson, [1986] 1 S.C.R. 285, at page 293 and following. This lacuna, the plaintiffs submit, is a breach of section 15 of the Charter which provides for equal protection and equal benefit of the law, without any discrimination, for the Indian Act contains no provision for dealing with property rights, including a matrimonial home, on the breakdown of a marriage or relationship.
[17] The statement of claim goes on to set out that the certificates of possession for most homes on reserves are held by husbands and that on a break up of a marriage the woman is left in the lurch. This is particularly so if she has followed her husband to his reserve, for then, the statement of claim sets out, as a matter of current and historical fact, there is no place on the husband’s reserve where the wife may live after the breakup of a marriage. Examples of this problem then follow at paragraphs 34 through 37 of the statement of claim.
[18] Beginning at paragraph 38 of the statement of claim and running through to paragraph 46, the plaintiffs allege that the Crown has a fiduciary obligation to all Indians, including to married Indian women on reserves. The alleged duty is one of even-handedness. The result of lack of appropriate legislation is said to be, among other things, discrimination against Indian women living on a reserve, contrary to section 15 of the Charter and a breach of section 7 of the Charter, which provides for life, liberty and security of the person. I now turn to an examination of this fiduciary duty.
[19] Notwithstanding a number of modern and current cases dealing with the nature of the fiduciary duty owed by the Crown to Indians, and here one need only look, for examples, as far as the cases used in the analysis of fiduciary duty in Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (T.D.), a decision of Mr. Justice Rothstein, as he then was, the fiduciary duty owed by the Crown to Indians is still in a state of flux and evolution. However, as Mr. Justice Rothstein points out, at page 77 of Fairford, many judges still refer to the guide setting out the general characteristics of a fiduciary relationship, styled as “rough and ready”, prepared by Madam Justice Wilson, writing in dissent in Frame v. Smith, [1987] 2 S.C.R. 99, at page 136:
Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:
(1) The fiduciary has scope for the exercise of some discretion or power.
(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
This framework of the general characteristics of a fiduciary relationship is particularly helpful in going toward establishing whether a fiduciary duty is owed by the Crown to married or marriageable Indian women on reserves. The duty is said to be a duty not to leave them with property rights far inferior to those enjoyed by women elsewhere in Canada. The nature of this fiduciary duty is a necessary part of a consideration of whether the next portion of the statement of claim, dealing with the Framework Agreement, ought to be struck out.
[20] I have said that the fiduciary duty owed by the Crown to Indians is in a state of flux and evolution. Even one of the most current of cases touching upon fiduciary duty, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, leaves one with the view that the nature, scope and application of the duty is unsettled. In that case, by way of example, the Chief Justice commented that, as between the Crown and Aboriginal peoples, “the requirements of the fiduciary duty are a function of the ‘legal and factual context’ of each appeal.” (page 1108). In the present instance, counsel for the plaintiffs makes an arguable case that the Crown owes a fiduciary duty to the plaintiffs, particularly when one considers the rough and ready test of Madam Justice Wilson in Frame v. Smith (supra). Counsel for the plaintiffs makes an arguable case that there is a duty owed to Indian women on reserves to give them the same property rights on the breakdown of a relationship as are enjoyed by other Canadian women.
[21] More specifically, applying Frame v. Smith, there is an arguable case that the Crown has the discretion and power to rectify the present situation, can unilaterally exercise the power to affect the legal and practical interests of both married and marriageable Indian women living on reserves and the potential beneficiaries of all of this are in a particularly vulnerable position.
Delegation of the Fiduciary Duty
[22] The plaintiffs’ argument continues to the effect that the Crown’s fiduciary obligation toward married Indian women on a reserve cannot be delegated to the signatory bands by means of the Framework Agreement. Counsel for the plaintiffs admits that the Crown may generally delegate, but says that the Crown may not delegate a fiduciary obligation which would result in a breach of the Charter. Here I run into some difficulty, but not an absolute difficulty, with the plaintiffs’ argument.
[23] Certainly the Crown may not delegate to the First Nations that are signatory to the Framework Agreement the authority to enact subordinate legislation which violates the Charter. Yet there is no subordinate legislation at this time. At this point counsel for the plaintiffs says, not unreasonably, that she and the plaintiffs, or she and other plaintiffs, do not wish to challenge each signatory First Nation’s land use legislation, legislation which may well, given past history, be discriminatory toward Indian women on reserves. This is a point that garners some sympathy. However, delegation of power is an ever increasing necessity, for it would be virtually impossible for the Crown to set out, in any one of the multitude of its enactments, detailed rules which would apply in each situation. Counsel for the intervener submits that “The powers of parliament to delegate its legislative powers has been unquestioned”, referring to R. v. Furtney, [1991] 3 S.C.R. 89, at page 104. Yet there must be some limit on delegation. One limit is that the Crown may not abdicate its function. Jones and de Villars, on Principles of Administrative Law, 2nd ed., 1994, Carswell, point out at page 28 that:
Although the Federal Parliament and the provincial legislatures may delegate their powers, they may not abdicate their legislative functions, nor efface themselves. This limitation on the ability to delegate is inherent in the doctrine of the Sovereignty of Parliament itself: the sovereign may not abolish itself; nor may it create another sovereign. However, it is extremely difficult to draw the line between proper delegation and improper abdication of legislative powers, and the courts appear to lean in favour of the former. Nevertheless, the general lack of success in applying this principle to strike down legislation does not detract from the extreme importance in Constitutional Law of having some idea of which matters (such as the imposition of taxes) should be dealt with by the legislators themselves and not be delegated to others. Indeed, there is considerable current concern about the volume and great breadth of delegated powers which have been authorized by all levels of the legislative branch. If Parliament and the legislatures are not to become mere formalities delegating all of their real powers to the executive (who generally lead the political party which controls a majority in the legislative body), some attempt must be made to determine the proper limits on delegation. The theoretical existence of such limits has been recognized in the cases.
It is perhaps arguable that since the Crown has an obligation to act in the best interest of Indians for example with regard to an enforceable fiduciary duty as in Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335, the Crown could here be held accountable for failing to act in the best interests of Indian women on reserves. In essence, delegation of a fiduciary duty might be an abdication of legislative function by the Crown. This argument is difficult, but I am not prepared to say it is fruitless and will lead to no useful result.
Declaratory Relief
[24] Relevant to the Crown’s motion to strike out is whether the declaratory relief sought by the plaintiffs, to the effect that the Framework Agreement constitutes a breach of fiduciary duty and of the Charter, is available in a preventive situation.
[25] Pertinent in the present instance are the observations of Mr. Justice Dickson in Operation Dismantle (supra) beginning at page 455 as to declaratory relief. He points out that declaratory relief has a preventive role, for neither injury nor wrong need to have actually been committed or threatened, but rather that a plaintiff need only show some legal right or interest is either in jeopardy or has been placed in grave uncertainty. But there is a limit on such preventive declaratory relief for there must be a causal link between an action and the harm flowing from it in the future. This is set out at length by Mr. Justice Dickson. I will quote a small portion of what he says, at pages 456-457:
The reluctance of courts to provide remedies where the causal link between an action and the future harm alleged to flow from it cannot be proven is exemplified by the principles with respect to declaratory relief. According to Eager, The Declaratory Judgment Action (1971), at p. 5:
3. The remedy [of declaratory relief] is not generally available where the controversy is not presently existing but merely possible or remote; the action is not maintainable to settle disputes which are contingent upon the happening of some future event which may never take place.
4. Conjectural or speculative issues, or feigned disputes or one-sided contentions are not the proper subjects for declaratory relief.
Similarly, Sarna has said, “The court does not deal with unripe claims, nor does it entertain proceedings with the sole purpose of remedying only possible conflicts”: (The Law of Declaratory Judgments (1978), at p. 179).
None of this is to deny the preventative role of the declaratory judgment. As Madame Justice Wilson points out in her judgment, Borchard, Declaratory Judgments (2nd ed. 1941), at p. 27, states that,
… no “injury” or “wrong” need have been actually committed or threatened in order to enable the plaintiff to invoke the judicial process; he need merely show that some legal interest or right of his has been placed in jeopardy or grave uncertainty ….
Nonetheless, the preventative function of the declaratory judgment must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest before the courts will entertain the use of its process as a preventive measure. As this Court stated in Solosky v. The Queen, [1980] 1 S.C.R. 821, a declaration could issue to affect future rights, but not where the dispute in issue was merely speculative.
In short, a court needs to be shown a recognizable threat, as opposed to a hypothetical or speculative threat, before declaratory relief will issue. However, all of this does not close the door to declaratory relief merely because it is a future right which has been placed at risk.
[26] The basic premise of the Crown’s motion to strike out, as supported by the intervener, Squamish Nation, is that the Framework Agreement is merely enabling legislation. It is said to establish only a protocol between First Nations and the Crown. The Crown says it has not been ratified, or even passed by Parliament, as of the hearing of this motion. This last assertion does not come within the category of evidence, which is improper when testing for a reasonable cause of action, for the plaintiffs clearly refer to a negotiated Framework Agreement: the plaintiffs do not say it is in effect or that it has, at this point, affected them. Here I would note that while the Framework Agreement may be pending legislation, it is in fact a signed agreement, dated 12 February 1996 and extensively amended 12 May 1998, between various First Nations and the Government of Canada.
[27] The Crown contends that the action is premature, for the time to mount a challenge is when the land codes contemplated by the Framework Agreement come into effect and further that no one’s interest in a home or in property on a reserve is affected until the land regime is in place. Leaving aside that the plaintiffs’ case is not against the First Nations, this argument misses the point made by the plaintiffs in their statement of claim, which as I have noted I must take as proven when testing for a reasonable cause of action, that the Crown has abrogated its duty to married and marriageable Indian women on reserves by omitting what ought to be contained in the Framework Agreement by way of protection from discrimination. If one were to ignore this sort of an aspect the declaratory judgment would, as a preventive measure, become a lesser tool.
Other Grounds for Striking Out
[28] I considered, without extrinsic evidence, whether the plaintiffs’ claim based on the Framework Agreement ought to be struck out. Taking the facts as set out in the statement of claim and applying the law to them, the impugned portions of the statement of claim were not futile so as to be struck out. However, the Crown also pleads the balance of the grounds for striking out a pleading pursuant to subsection 221(1) of the Rules, 1998, including that the pleadings are scandalous, frivolous, vexatious or an abuse of process.
[29] In further considering whether a portion of the statement of claim ought to be struck out under the additional heads I considered the statement of claim in the light of the affidavit material filed in support of the Crown’s motion. Certainly some of the affidavit material is to the effect that the First Nations will be required to establish rules and procedures applicable on marriage breakdown in their land codes and that there will be a land code ratification process by both First Nations and the Crown. The intervening First Nations suggest this would be the time to challenge specific First Nations land codes. Again, and leaving aside that a plaintiff cannot be obliged to proceed against someone he or she has no wish to sue (Algoma Central Railway v. Canada (1987), 10 F.T.R. 8 (F.C.T.D.), at page 9, a decision of Mr. Justice Strayer, as he then was) this misses the point. The plaintiffs’ complaint is not with what the First Nations may or may not do, but rather with the Crown for not only omitting to deal, in the Framework Agreement, with a fiduciary duty but for, in effect, assigning the fiduciary duty.
[30] That the plaintiffs have tried, without success, to have changes made to the Framework Agreement through the political process, or might have some remedy at a later date against the First Nations does not, as the intervener suggests, turn this action into gadfly litigation and some form of abuse. Rather, it may be commendable to resolve the plaintiffs’ problems now and thus indicate to the Crown and to the First Nations what their duty might be.
[31] Having found not a lack of a reasonable cause of action, but rather an arguable cause of action, I am not prepared, even in the light of the affidavit evidence, to strike out the portion of the statement of claim dealing with the Framework Agreement on any of the remaining rule 221 grounds, for the Framework Agreement plea might well bring the plaintiffs a practical result.
CONCLUSION
[32] The Framework Agreement aspect is not an easy case, but it is a case that could be argued without embarrassment. There may well be a link between what is omitted from the Framework Agreement and the cognizable harm to a legal interest which, on the basis of history and events to date, is quite likely.
[33] As I have said the alleged harm is based on breach of a claimed fiduciary duty toward Indian women, a duty which, if on the particular facts of this case it arises, the Crown may not be able to avoid by, in effect, either ignoring it or delegating it to the First Nations. As to the plea of availability a declaratory remedy for an anticipated harm, that is also not without merit.
[34] The plaintiffs’ case is not an easy one. Yet I am not able to say that it is plain, obvious and beyond reasonable doubt that the portion of the claim, relating to the Framework Agreement, cannot possibly succeed.