T-624-87
MONTANA BAND, Chief Leo Cattleman,
Marvin Buffalo, Lillian Potts, Cody Rabbit and
Darrell Strongman, Councillors of the Montana
Band suing on their own behalf and on behalf of
the members of the Montana Band of Indians
SAMSON BAND, Chief Omeasoo and Arnup
Louis, Victor Bruno, Leo Bruno, Frank Buffalo,
Robert Swampy, Terry Buffalo, Twain Buffalo,
Dolphus Buffalo, Emil Cutknife, Raymond Cut-
knife, Lester B. Nepoose, Jim Simon and Stanley
Buffalo, Councillors of the Samson Band, suing on
their own behalf and on behalf of the members of
the Samson Band of Indians
ERMINESKIN BAND, Chief Eddie Littlechild
and Ken Cutarm, Arthur Littlechild, Richard Litt-
lechild, Lawrence Wildcat, Emily Minde, Lester
Frayne, Maurice Wolfe, Brian Lee, Gordon Lee,
John Ermineskin, Lawrence Rattlesnake, and
Gerry Ermineskin, Councillors of the Ermineskin
Band, suing on their own behalf and on behalf of
the members of the Ermineskin Band of Indians
LOUIS BULL BAND, Chief Simon Tbreefingers,
and John Bull, Theresa Bull, Henry Raine, George
Deschamps, Harrison Bull, Winnie Bull, Jerry
Moonias, Herman Roasting, Councillors of the
Louis Bull Band, suing on their own behalf and on
behalf of the members of the Louis Bull Band of
Indians (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: MONTANA BAND OF INDIANS V. CANADA (T.D.)
Trial Division, Jerome A.C.J.—Edmonton, Octo-
ber 10, 1989; Ottawa, February 16, 1990.
Practice — Pleadings — Motion to strike — Indian bands
seeking declaration Ruperts Land Order of 1870 constitutional
instrument obliging Government of Canada to protect their
interests as self-governing entities and means of maintaining
material well-being and entailing fiduciary obligation —
Bands also seek declaration International Covenant on Civil
and Political Rights binding on Canada and applies to plain
tiffs — Defendant seeking order striking amended statement
of claim as no breach of duty alleged — Failure to identify
grievance must lead to statement of claim being struck —
Plaintiffs acknowledge action brought to assess next step:
negotiation or litigation — Courts to avoid such two-phase
process — Defendant entitled to know full case to be met and
to have understanding of every aspect of litigation — Court's
role of resolving disputes impossible if dispute not identified in
statement of claim — Plaintiffs given 60 days to file new
pleading.
Constitutional law — Aboriginal and treaty rights — Indian
bands seeking declaration constitutional instruments including
Royal Proclamation of 1763, Constitution Act, 1867 and Rup-
ert's Land Order of 1870 (admitting Rupert's Land and North
western Territory into Canada) obliging Government of
Canada to protect plaintiffs' interests as self-governing entities
and means of maintaining material well-being, and declara
tion constitutional instruments entailing fiduciary obligation
to plaintiffs — Bands also seek declaration International
Covenant on Civil and Political Rights binding on Canada and
applies to them — Failure to identify grievance must lead to
statement of claim being struck.
Native peoples — Indian bands seeking declaration Crown
bound by constitutional instruments, including Ruperts Land
Order, creating obligations to protect bands' interests as self-
governing entities and means of maintaining material well-
being — Motion to strike amended statement of claim for
failure to allege breaches of duty by defendant — Plaintiffs
admitting purpose of action to assess next step: negotiation or
litigation — Motion granted but, in view of importance of case
to Native Peoples and Government of Canada, plaintiffs given
60 days to file new pleading.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], s. 146.
Federal Court Rules, C.R.C., c. 663, RR. 419, 1723.
International Covenant on Civil and Political Rights,
Dec. 19, 1966, [1976] Can. T.S. No. 47, ss.
1(1),(2),(3), 27.
Rupert's Land and North-Western Territory Order
[R.S.C., 1985, Appendix II, No. 9] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 3).
The Royal Proclamation, 1763, R.S.C., 1985, Appendix
11, No. 1.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Operation Dismantle 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.
REFERRED TO:
Solosky v. The Queen, [1980] 1 S.C.R. 821; (1979), 105
D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16 C.R. (3d) 294;
30 N.R. 380.
COUNSEL:
Thomas R. Berger and Ron Shulman for
plaintiffs.
Duff F. Friesen, Q.C. for defendant.
SOLICITORS:
Thomas R. Berger, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application for an order
pursuant to Rule 419 of the Federal Court Rules
[C.R.C., c. 663] striking the plaintiffs' statement
of claim came on for hearing before me at Edmon-
ton, Alberta on October 10, 1989. At the conclu
sion of argument I indicated that I would take the
matter under reserve, and that these written rea
sons would follow.
According to the plaintiffs' amended statement
of claim, the plaintiffs, with the exception of the
Montana Band, are Indian tribes, or successors to
tribes, who are aboriginal occupants of territory
within what was once known as Rupert's Land.
The Montana Band was established as a band
within Rupert's Land under the Indian Act after
1870. All the individual plaintiffs are descended
from Indians who were aboriginal occupants of
Rupert's Land in 1870.
The amended statement of claim describes a
complex series of proclamations, statutory provi
sions, resolutions and orders dating from 1670,
when the Royal Charter of King Charles II first
granted trading privileges with respect to land
which became known thereafter as Rupert's Land.
The proclamations and orders relate in part to the
protection of Indian tribes within Rupert's Land,
and to the protection of lands reserved to the
Indians as their hunting grounds.
The Royal Proclamation, 1763 [R.S.C., 1985,
Appendix II, No. 1], which, as the amended state
ment of claim describes, set up new colonies in
North America and provided "that measures
should be taken to protect the Indian tribes ...
connected with the British Crown" (amended
statement of claim, page 3) stated specifically in
its preamble:
... the several Nations or Tribes of Indians with whom We are
connected, and who live under our Protection, should not be
molested or disturbed in the Possession of such Parts of Our
Dominions and Territories as, not having been ceded to or
purchased by Us, are reserved to them ... as their Hunting
Grounds. (Amended statement of claim, page 3)
The plaintiffs allege that "as a matter of policy
and practice, and as a matter of law", the princi
ples embodied in the Royal Proclamation of 1763
applied to Rupert's Land.
Section 146 of the Constitution Act, 1867 [30 &
31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1) [R.S.C., 1985, Appendix II,
No. 5]] provided for the admission of Rupert's
Land and the North-Western Territory into the
Union. Provision was made on
146... .
... Address from the Houses of Parliament of Canada to admit
Rupert's Land and the North-Western Territory ... into the
Union, on such Terms and Conditions in each case as are in the
Addresses expressed and as the Queen thinks fit to approve,
subject to the provisions of this Act; and the Provisions of any
Order in Council in that Behalf shall have effect as if they had
been enacted by the Parliament of the United Kingdom ....
Following that provision, on June 23, 1870 the
Rupert's Land and North-Western Territory
Order [[R.S.C., 1985, Appendix II, No. 9] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 3)] ("Rupert's
Land Order") was signed, admitting Rupert's
Land and the North-Western Territory into
Canada as of July 15, 1870. The plaintiffs allege
that:
In the preamble to the Order, Her Majesty signified Royal
approval of the terms and conditions relating to the admission
of Rupert's Land into Canada set out in [certain] Resolutions
and in the Second Address.
The plaintiffs maintain that among these, "the
following undertaking by the Government of
Canada contained in the Second Address was
approved by Her Majesty":
... That upon the transference of the territories in question to
the Canadian Government it will be our duty to make adequate
provision for the protection of the Indian tribes whose interests
and well-being are involved in the transfer.
The plaintiffs are seeking a declaration that the
defendant is now bound by the aforementioned
constitutional instruments, including the Ruperts
Land Order, arguing that:
By virtue of Section 146 of the Constitution Act, 1867, the
terms and conditions approved by Her Majesty in the Rupert's
Land Order and the obligations assumed by the Government of
Canada in relation to the Indian tribes of Rupert's Land
thereby became constitutional instruments binding on the Gov
ernment of Canada and the Parliament of Canada as well as
the provinces. (Amended statement of claim, page 10)
The plaintiffs further argue that:
The Ruperts Land Order, since it had, by virtue of the Consti
tution Act, 1867, force and effect as if enacted by the Imperial
Parliament, became a part of Canada's Constitution, and
affirmed the distinct place of the tribes located in Rupert's
Land within Canada's federal system, that their interests as
self-governing and self-determining tribes within Canada were
to be respected and the means to their well being supplied.
(Amended statement of claim, page 10)
On the basis of these arguments the plaintiffs seek
a declaration stating that by these constitutional
instruments the Government of Canada is bound
to protect their interests as self-governing entities
and their means of maintaining their material
well-being, and a declaration that these constitu
tional instruments entail a fiduciary obligation to
the plaintiffs.
The plaintiffs further seek a declaration that
Articles 1 and 27 of the United Nations Interna
tional Covenant on Civil and Political Rights
[Dec. 19, 1966, [ 1976] Can. T.S. No. 47] are
binding on Canada and that they apply to the
plaintiffs. Articles 1 and 27 read as follows:
ARTICLE 1
1. All peoples have the right of self-determination. By virtue
of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obliga
tions arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In
no case may a people be deprived of its own means of
subsistence.
3. The States Parties to the present Covenant, including
those having responsibility for the administration of Non-Self-
Governing and Trust Territories shall promote the realization
of the right of self-determination, and shall respect that right,
in conformity with the provisions of the Charter of the United
Nations.
ARTICLE 27
27. In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not
be denied the right, in community with the other members of
their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language.
The plaintiffs maintain that by virtue of custom
ary international law and by virtue of its ratifica
tion by Canada on May 16, 1976, the Internation
al Covenant on Civil and Political Rights is
binding on Canada. With respect to Article 27 of
the Covenant, the plaintiffs submit that:
... although, by reason of their being aboriginal people they
are not a minority in the usual sense, nevertheless they are
entitled to the benefit of Article 27, being a minority for the
purposes of the said Article.
In a notice of motion dated September 8, 1989,
the applicant seeks an order pursuant to Rule 419
of the Federal Court Rules striking the amended
statement of claim. Counsel for the applicant has
stated that the plaintiffs' failure to allege breaches
of duty on the part of the defendant means that
the Court is being asked to entertain an action for
a purely advisory declaration. Relying on, inter
alia, the Supreme Court of Canada's decisions in
Operation Dismantle et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; and Solosky v. The Queen,
[1980] 1 S.C.R. 821, the applicant argues that the
Court ought not to entertain an action for a decla
ration where there is no dispute over the rights of
the plaintiffs. The applicant maintains that the
amended statement of claim does not raise an issue
that would enable the Court to determine the
basis, nature, extent or purpose of Canada's obli
gations to protect the interests of the plaintiffs,
and that accordingly the amended statement of
claim "discloses no reasonable cause of action".
The plaintiffs, too, rely heavily on the decisions
in Operation Dismantle and Solosky (supra),
maintaining that they have a legal interest in
seeking this declaration of right, and that it is this
real interest that forms the basis of their cause of
action. Counsel for the plaintiffs has described the
legal interest in the following terms:
[T]he plaintiffs say we are Indian bands or tribes in
Rupert's Land. We always have been. We are still here. And
we say that we want the Court to declare that we are entitled to
the benefit of the undertaking made by Canada that the
Government of Canada acknowledges its duty to take adequate
measures to protect the interests and well being of the tribes.
We want that declaration. And if we succeed in getting it, then
we will in a sense have achieved an amendment to the Constitu
tion because a provision that Canada says is not binding upon it
will then be binding upon it.
Counsel for the plaintiffs has further submitted
that the action before me falls within the parame
ters of Rule 1723 of the Federal Court Rules.
Rule 1723 reads as follows:
Rule 1723. No action shall be open to objection on the ground
that a merely declaratory judgment or order is sought thereby,
and the Court may make binding declarations of right whether
or not any consequential relief is or could be claimed.
Rule 419 (1) of the Federal Court Rules provides:
Rule 419 (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that:
(a) it discloses no reasonable cause of action or defence, as
the case may be,
(b) it is immaterial or redundant,
(c) it is scandalous, frivolous or vexatious,
(d) it may prejudice, embarrass or delay the fair trial of the
action,
(e) it constitutes a departure from a previous pleading, or
(/) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment
to be entered accordingly.
The very close similarity between this case and
the recent dispute in Operation Dismantle, supra,
is such that both counsel argued extensively from
it. There, opponents of cruise missile testing in
Canada sought declaratory relief by way of an
action. The basis of the claim was that the testing
would contribute to an escalation in nuclear war
fare at some time in the future and thereby
increase the risk that the plaintiffs would be victi
mized. The motion to strike the statement of claim
ultimately found its way to the Supreme Court of
Canada where the decision to strike the statement
of claim was upheld. There is one significant dif
ference in the present case. In Operation Disman
tle, the harm was considered to be a future possi
bility too remote to form the basis of the plaintiffs'
action. In the present case, no grievance is identi
fied. Indeed, the plaintiffs are proceeding now on
the basis of an amended statement of claim and
acknowledge that the original statement of claim
contained very general allegations of a breach of
duty on the part of the defendant which disappear
from the amended text. After careful consider
ation, I have reached the conclusion that the fail
ure to identify any grievance must lead to the same
result in the motion to strike. At page 456 in the
Operation Dismantle decision, Dickson, J. [as he
then was] said the following:
The principles governing remedial action by the courts on the
basis of allegations of future harm are illustrative of the more
general principle that there is no legal duty to refrain from
actions which do not prejudice the legal rights of others. A
person, whether the government or a private individual, cannot
be held liable under the law for an action unless that action
causes the deprivation, or threat of deprivation, of legal rights.
And an action cannot be said to cause such deprivation where it
is not provable that the deprivation will occur as a result of the
challenged action. I am not suggesting that remedial action by
the courts will be inappropriate where future harm is alleged.
The point is that remedial action will not be justified where the
link between the action and the future harm alleged is not
capable of proof.
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 avail
able 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 declara-
tory 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 declarato-
ry 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 commit
ted 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 uncer
tainty ...
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 Solosky, supra, one of the questions was wheth
er an order by a director of a prison to censor correspondence
between the appellant inmate and his solicitor could be
declared unlawful. The dispute had already arisen as a result of
the existence of the censorship order and the declaration sought
was a direct and present challenge to this order. This Court
found that the fact that the relief sought would relate to letters
not yet written, and thereby affect future rights, was not in
itself a bar to the granting of a declaration. The Court made it
clear, however, at p. 832:
... that a declaration will not normally be granted when the
dispute is over and has become academic, or r where the
dispute has yet to arise and may not arise.
(Emphasis added.)
Counsel acknowledges that the intention of the
plaintiffs should they succeed in the present claim
for declaratory judgment is to assess the next step,
perhaps negotiation, perhaps further litigation. But
trial courts ought to avoid any such two-phase
process. The defendant is entitled to know the full
case it has to meet. Indeed, any party must have a
full understanding of the consequences of the fail
ure to defend or to concede defeat or any aspect of
the litigation. The role of the trial court is to
resolve disputes where parties are unable to do so
themselves. How is this possible if the dispute is
not identified in the statement of claim?
Accordingly, L have reached the conclusion that
the action in its present form, devoid of any griev
ance between the parties, cannot proceed. The
claim is, of course, anything but frivolous and is of
great importance to the Native Peoples and to the
Government of Canada. It is appropriate, there
fore, that the plaintiffs be given sixty days within
which to file an amended statement of claim. Costs
in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.