T-1685-96
Cliff Calliou acting on his own behalf and on behalf of all other members of the Kelly Lake Cree Nation who are of the Beaver, Cree, and Iroquois peoples, and Kelly Lake Cree Nation (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, and Her Majesty the Queen in Right of Canada as represented by the Honourable Ron Irwin, Minister of Indian Affairs and Northern Development (Defendants)
Indexed as: Kelly Lake Cree Nationv. Canada (T.D.)
Trial Division, MacKay J."Edmonton, March 20; Ottawa, October 31, 1997.
Practice — Pleadings — Motion to strike — Action for declarations, damages re Aboriginal rights in land and breach of trust, fiduciary, legal and equitable duties by Crown — Statement of claim not establishing material facts to disclose cause of action in damages, or for most of declaratory relief sought — Plaintiffs given opportunity to amend statement of claim to plead, in conformity with Rules, facts underlying claims.
Native peoples — Lands — Action for declarations, damages re Aboriginal rights in land and breach of trust, fiduciary, legal and equitable duties by Crown — Plaintiffs say ancestors on land since time immemorial, prior to The Royal Proclamation, 1763 — Lands exploited by others since 1899 — Statement of claim not establishing material facts to disclose cause of action in damages, or for most of declaratory relief sought — Plaintiffs must establish facts demonstrating legal right stemming from Aboriginal title or Royal Proclamation; concomitant duty of Crown, breach thereof, damages arising therefrom — Plaintiffs given opportunity to amend statement of claim to plead, in conformity with Rules, facts underlying claims.
The plaintiffs allege that they are descendants of Indians who have lived on an area of land straddling the current border of the provinces of Alberta and British Columbia since time immemorial and at least since before The Royal Proclamation, 1763 and the making of Treaty No. 8, in 1899. They seek a number of remedies, including several declarations regarding the existence of their aboriginal rights and the breach of trust, fiduciary, legal and equitable duties by the Crown. They also seek an order that the plaintiffs may adhere to Treaty No. 8 with a declaration of their rights and entitlements under that Treaty. Finally, the plaintiffs claim damages for alleged breach of duties owed to them by the defendants, damages amounting to $5.2 billion, an accounting for profits taken by the defendants from exploitation of resources of the plaintiffs, and interest.
This was an application by the defendants for an order pursuant to subsection 419(1) of the Federal Court Rules that the major portion of the plaintiffs' statement of claim be struck out on the basis that the facts alleged are insufficient to establish that the plaintiffs have a legal right in the form of Aboriginal title, or other Aboriginal rights, or entitlement to adhere to Treaty No. 8.
Held, the application should be allowed, but with leave to amend.
The impugned paragraphs of the statement of claim do not establish material facts to disclose a cause of action in damages, or for most of the declaratory relief sought. However, the plaintiffs should have an opportunity to amend the statement of claim to plead, in conformity with the Rules, the facts underlying the claims.
The plaintiffs' claim for damages is based on the allegation that their ancestors have been on the land since time immemorial and prior to The Royal Proclamation, 1763, which, it is said, applies to the land in question so that the plaintiffs' ancestors had rights recognized by that Proclamation, as well as by common law Aboriginal title. This land is also said to be subject to Treaty No. 8 of 1899, but since the plaintiffs and their ancestors never became a party to the Treaty, their rights, allegedly recognized by the Proclamation and under the doctrine of common law Aboriginal title, were never extinguished. Since 1899, their lands have been exploited by persons other than the plaintiffs and thus, the plaintiffs' rights, now entrenched by section 35 of the Constitution Act, 1982, were infringed, resulting in damages both from interference with the use by the plaintiffs of their Aboriginal lands and from the breach of the various duties allegedly owed to the plaintiffs by the Crown.
To disclose a reasonable cause of action in damages, the plaintiffs must establish facts demonstrating that they had a legal right stemming from Aboriginal title, or from the Proclamation, that the Crown had a concomitant duty and that this duty was breached, with damages arising from the breach of duty. The mere assertion of residence since time immemorial is insufficient to give rise to a cause of action based on common law Aboriginal title or other Aboriginal rights, and the factual basis for the elements of the claim to title or other rights is not pleaded.
With respect to The Royal Proclamation, 1763, to argue that it is material to the case, the plaintiffs must plead material facts that support this conclusion. Given judicial comments in other cases on the limited geographic reach of the Proclamation, it is not enough simply to state that The Royal Procalmation, 1763 existed and provided for certain protections. The plaintiffs must plead facts supporting the conclusion that their claimed lands fall within the area once known as the North-Western Territory, not Rupert's Land, and that the area was within the geographic area to which the Proclamation applied.
Paragraphs of the statement of claim do not accurately plead material facts underlying a claim that the Crown assumed duties related to their lands under Rupert's Land and North-Western Territory Order in Council of 1870. It seems inappropriate to refer to the lands as ceded to the Crown by the Hudson's Bay Company when it is also claimed that the lands were not within Rupert's Land. Nevertheless, appropriate amendments can set out the basis for any claim the plaintiffs make in relation to obligations assumed by the federal government owed to the plaintiffs under the 1870 Order in Council.
Other amendments could set out the facts in support of other paragraphs. With respect to Treaty No. 8, for example, the plaintiffs do not cite the relevant passages of the Treaty, nor do they plead any facts to support their interpretation or to justify their claim for monetary damages. With respect to Constitution Act, 1930, it is not sufficient to assert that the plaintiffs are entitled to compensation for a number of types of damages to their land, described in general terms, in the absence of further factual particulars underlying the alleged damage claims. Moreover, since the Natural Resources Transfer Agreement and the Constitution Act, 1930 have a different application in relation to British Columbia than to Alberta, in so far as the lands the plaintiffs claim lie within each of those provinces, the basis for claims concerning the Constitution Act, 1930 may have to be set out differently in relation to any lands claimed by the plaintiffs in each of the two provinces. Legal conclusions concerning the plaintiffs' entitlements arising out of their assessment of their legal rights do not set out material facts on which the legal conclusions are based.
With respect to alleged breach of trust, assuming appropriate amendments to plead material facts underlying the relationship of the plaintiffs to the Crown, it is not plain and obvious that a possible claim under that heading will fail: it may be pleaded that there has been a breach of trust-like obligations owed to the plaintiffs by the defendants.
Finally, the pleadings herein are not so flawed as to be scandalous, frivolous or vexatious, or that they would prejudice, embarrass or delay a fair trial of the action, provided appropriate amendments are made to the statement of claim.
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. 91(24).
Constitution Act, 1871, 34 & 35 Vict., c. 28 (U.K.) (as am. by Canada Act, 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 5) [R.S.C., 1985, Appendix II, No. 11].
Constitution Act, 1930, 20 & 21 Geo. V, c. 26 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 16) [R.S.C., 1985, Appendix II, No. 26].
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35 (as am. by SI/84-102, s. 2).
Federal Court Rules, C.R.C., c. 663, RR. 408, 412, 419(1).
Indian Act, R.S.C., 1985, c. I-5.
Royal Proclamation, 1763 (The), R.S.C., 1985, Appendix II, No. 1.
Rupert's Land and North-Western Territory Order (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 3) [R.S.C., 1985, Appendix II, No. 9].
Society Act, R.S.B.C. 1996, c. 433.
Treaty No. 8 (1899).
cases judicially considered
applied:
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; Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; 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; Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406; (1994), 113 D.L.R. (4th) 67; 23 Imm. L.R. (2d) 1; 164 N.R. 370 (C.A.); Glaxo Canada Inc. v. Department of National Health & Welfare of Government of Canada et al. (1987), 15 C.P.R. (3d) 1; 11 F.T.R. 121 (F.C.T.D.); Famous Players Canadian Corporation Limited v. J.J. Turner and Sons Ltd., [1948] O.W.N. 221 (H.C.); Lawrence v. R., [1978] 2 F.C. 782; (1978), 42 C.C.C. (2d) 230 (T.D.); Montana Band of Indians v. Canada, [1991] 2 F.C. 30; [1991] 2 C.N.L.R. 88; (1991), 120 N.R. 200 (C.A.); Waterside Ocean Navigation Co., Inc. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.); McMillan v. Canada (1996), 108 F.T.R. 32 (F.C.T.D.); R. v. Horse, [1988] 1 S.C.R. 187; (1988), 47 D.L.R. (4th) 526; [1988] 2 W.W.R. 289; 65 Sask. R. 176; 39 C.C.C. (3d) 97; [1988] 2 C.N.L.R. 112; 82 N.R. 206; R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; (1995), 130 D.L.R. (4th) 193; [1996] 2 C.N.L.R. 25; 190 N.R. 89; Steiner v. Canada (1996), 122 F.T.R. 187 (F.C.T.D.); Creaghan Estate v. The Queen, [1972] F.C. 732; (1972), 72 DTC 6215 (T.D.); Mayor, &c., of City of London v. Horner (1914), 111 L.T. 512 (C.A.); Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. et al. (1982), 64 C.P.R. (2d) 206 (F.C.T.D.).
considered:
Regina v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892 (C.A.); Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470; [1993] 5 W.W.R. 97; 30 B.C.A.C. 1; [1993] 5 C.N.L.R. 1; 49 W.A.C. 1 (B.C.C.A.); affg (1991), 79 D.L.R. (4th) 185; [1991] 3 W.W.R. 97 (B.C.S.C.).
referred to:
Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518; (1979), 107 D.L.R. (3d) 513; [1980] 5 W.W.R. 193; [1979] 3 C.N.L.R. 17 (T.D.); Tagish Kwan Corp. (Bankrupt) v. Canada (1994), 89 F.T.R. 293 (F.C.T.D.); R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 80 B.C.A.C. 81; 200 N.R. 1; 130 W.A.C. 81; R. v. Adams, [1996] 3 S.C.R. 101; (1996), 138 D.L.R. (4th) 657; 110 C.C.C. (3d) 97; [1996] 4 C.N.L.R. 1; 202 N.R. 89; Imperial Chemical Industries PLC v. Apotex Inc. (1990), 31 C.P.R. (3d) 517; 36 F.T.R. 315 (F.C.T.D.); 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; revg (1988), 52 D.L.R. (4th) 25; [1988] 5 W.W.R. 193; 52 Man. R. (2d) 291; [1988] 3 C.N.L.R. 39 (Man. C.A.); Vojic (L.) v. M.N.R., [1987] 2 C.T.C. 203; (1987), 87 DTC 5384 (F.C.A.); Tagish Kwan Corp. (Bankrupt) v. Canada (1994), 82 F.T.R. 140 (F.C.T.D.); Canada v. Mayer (1996), 208 N.R. 145 (F.C.A.); Cyr v. Canada (Federal Penitentiary, Director), [1992] F.C.J. No. 561 (T.D.) (QL); Mayflower Transit Ltd. v. Marine Atlantic Inc. et al. (1989), 29 F.T.R. 30 (F.C.T.D.); Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313; (1973), 34 D.L.R. (3d) 145; [1973] 4 W.W.R. 1; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; 153 D.L.R. (4th) 193; 99 B.C.A.C. 161; [1998] 1 C.N.L.R. 14; 220 N.R. 161; 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; Meyers and Lee v. Freeholders Oil Co. and Canada Permanent Trust Co. (1956), 19 W.W.R. 546 (Sask. C.A.); Copperhead Brewing Co. v. John Labatt Ltd. (1995), 61 C.P.R. (3d) 317; 95 F.T.R. 146 (F.C.T.D.).
MOTION to strike statement of claim as disclosing no reasonable cause of action. Motion allowed, with leave to amend.
counsel:
Priscilla E. S. Kennedy for plaintiffs.
William J. Blain for defendants.
solicitors:
Parlee McLaws, Edmonton, for plaintiffs.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order rendered in English by
MacKay J.: The defendants seek an order pursuant to subsection 419(1) of the Federal Court Rules [C.R.C., c. 663] that portions of the plaintiffs' statement of claim be struck out. When this matter was heard, in oral argument, counsel for the defendants submitted that should this Court strike out the portion of the pleadings objected to by the defendants, it should also consider striking out the entire statement of claim for failing to disclose a reasonable cause of action.
In the alternative, if this Court were to decide not to strike out the paragraphs of the statement of claim, or were to allow the plaintiffs to amend their claim or plead further and better particulars, the defendants submit that the plaintiffs must meet the requirements of Rule 408. That rule obliges the plaintiffs to state material facts, not merely conclusions of law, in a clear and precise form.
If the statement of claim is not struck out, the defendants also seek an order for directions regarding the time for filing the statement of defence and for such other further directions for the conduct of this action as this Court deems to be reasonable and just, including an order requiring the plaintiffs to put on notice other parties potentially affected by the relief requested in its claim.
Background
By the plaintiffs' statement of claim the individual plaintiff, Cliff Calliou, is said to be acting on his own behalf and on behalf of all other members of the Kelly Lake Cree Nation as described in the style of cause. The individual plaintiffs, the members of that Nation, are said to have the same interest in these proceedings, and are all said to be "Indians" within the meaning of section 91(24) 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]], the Imperial Order in Council of June 23, 1870 [Rupert's Land and North-Western Territory Order (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 3) [R.S.C., 1985, Appendix II, No. 9]], the Constitution Act, 1871 [34 & 35 Vict., c. 28 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 5) [R.S.C., 1985, Appendix II, No. 11]], the Constitution Act, 1930 [20 & 21 Geo. V, c. 26 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 16 [R.S.C., 1985, Appendix II, No. 26]] and the Constitution Act, 1982, [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and they are also said to be "aboriginal peoples" within the meaning of the Constitution Act, 1982 . The plaintiffs do not claim any status arising under the Indian Act, R.S.C., 1985 c. I-5 for the plaintiffs individually or the Kelly Lake Cree Nation.
The Kelly Lake Cree Nation is a society incorporated in July, 1996 under the British Columbia Society Act, R.S.B.C. 1996, c. 433. It is apparent that different groups within the Kelly Lake community currently vie for recognition and authority. Many, if not all of the members of the Kelly Lake Cree Nation were formerly members of another society, the Kelly Lake First Nation, earlier incorporated under the B.C. Society Act, from which they had resigned. In the name of the Kelly Lake First Nation steps were initiated to indicate an intent to adhere to Treaty No. 8, before this action was commenced by the plaintiffs. The Kelly Lake Cree Nation is thus a society under B.C. provincial law but has no status under the Indian Act as a band.
The plaintiffs allege they are descendants of Indians who have lived on an area of land straddling the current border of the provinces of Alberta and British Columbia since time immemorial and at least since before The Royal Proclamation, 1763 [R.S.C., 1985, Appendix II, No. 1] and the making of Treaty No. 8 in 1899. In recent times their ancestors and the plaintiffs have concentrated their living and residence at Kelly Lake, British Columbia. The land they claim is substantial, lying within the southern region of the territory to which Treaty No. 8 applies, as is described in paragraph 2 of the amended amended statement of claim. By their response to demand for particulars, the plaintiffs state the lands in question lie within an area "now referred to as the Northwest Territories".
The plaintiffs seek a number of remedies in their action against the Crown, including several declarations regarding the existence of their Aboriginal rights and the breach of trust, fiduciary, legal and equitable duties by the Crown. Included in declaratory relief sought is an order that the plaintiffs may adhere to Treaty No. 8 with a declaration of their rights and entitlements under that Treaty. Further the plaintiffs claim damages for alleged breaches of duties owed to them by the defendants, damages in amounts which I understand total $5.2 billion, an accounting for profits taken by the defendants from exploitation of resources of the plaintiffs, and interest.
On October 24, 1996, a response to demand for particulars was filed by the defendants, providing some particulars, for some of the paragraphs now objected to, and minor amendments to the statement of claim were filed on February 6 and 19, 1997.
The paragraphs of the amended amended statement of claim at issue are paragraphs 4, 5, 9 (except that the defendants do not dispute the fact in paragraph 9 that the plaintiffs have never adhered to Treaty No. 8) and paragraphs 10 to 22 inclusive. These paragraphs, objected to by the defendants, read as follows:
4. Pursuant to the Royal Proclamation, 1763, it was provided that all Indian lands were to be reserved and protected from, inter alia, settlement without having been ceded or purchased by the Crown.
5. On June 23, 1870, The Rupert's Land and North-Western Territory Order-in-Council was issued and pursuant to that Order-in-Council, the Governors and Company of Adventurers of England trading into Hudson's Bay ("Hudson Bay Company") ceded to Her Majesty the Queen all of or any of their "lands, territories, rights, privileges, liberties, franchises, powers, and authorities whatsoever granted, or purported to be granted" by certain Letters Patent in 1670.
. . .
9. Although there have been numerous adhesions to Treaty No. 8, the Kelly Lake Cree Nation and the Plaintiffs generally being in an area remote to those at issue, have never signed such an adhesion to Treaty No. 8, or become a party thereto, and no action of the Plaintiffs or deed of the Plaintiffs subsequent to that date, including the receipt of any benefits, could have had the effect of extinguishing or otherwise affecting the aboriginal rights, Indian title, and personal usufructuary rights of the Plaintiffs.
10. The said Treaty No. 8 purported to effect the surrender and cession by the bands and Indians who were party thereto to the Government of the Dominion of Canada of all rights, titles, privileges whatsoever to the lands described in the said Treaty as well as to all other lands in the Dominion of Canada.
11. Under the said Treaty No. 8, Her Majesty the Queen agreed and undertook to lay aide reserves for such bands as desire same on the basis of one square mile for each family of five (5) and to provide land in severalty to the extent of one hundred and sixty acres to each Indian for such families or individual Indians as may prefer to live apart from band reserves, subject to certain conditions respecting the selection of lands, the surrender of lands and the appropriation of lands.
12. Treaty No. 8 did not and could not extinguish the Indian title and aboriginal rights, and personal and usufructuary rights of the Plaintiffs and their ancestors, and is without effect upon such title and rights in the absence of an adhesion to the Treaty by the Plaintiff Kelly Lake Cree Nation and the other individual Plaintiffs or their duly authorized representatives.
13. All of the aboriginal rights, Indian title and personal and usufructuary rights of the Plaintiffs have never been extinguished and are subsisting accordingly, the Constitution Act, 1982 applies.
14. The Plaintiffs retained their aboriginal rights to the lands and the natural resources associated therewith, as well as retaining their rights to self-determination, which rights are constitutionally protected by section 35 of the Constitution Act, 1982.
15. Alternatively, if Treaty No. 8 had the effect of extinguishing said title and rights of the Plaintiffs, or otherwise affecting them, which is denied, then the Plaintiffs are, at a minimum, entitled to the rights and benefits specified in Treaty No. 8, and more particularly the Plaintiffs are entitled to the setting aside of a reserve of land pursuant to the said Treaty No. 8, the Constitution Act, 1930 and the Indian Act, R.S.C. 1985, c. I-5 within their traditional lands.
16. In the further alternative, the Plaintiffs are entitled to have the said Treaty No. 8 declared to be null and void and of no force and effect as a result of the non-fulfilment by the Defendant, Her Majesty the Queen in Right of Canada of her obligations thereunder.
17. As well Her Majesty the Queen in Rights of Canada without colour of right, entered into the Constitution Act, 1930 contrary to the aboriginal rights, Indian title, and/or personal and usufructuary rights of the Plaintiffs, and as a result, the Plaintiffs have and continue to suffer damages.
18. Further, the aboriginal rights, Indian title, and/or personal and usufructuary rights of the Plaintiffs are a trust and an interest other than that of the Crown in Crown lands in British Columbia and in Alberta within the meaning of the Natural Resources Transfer Agreement being the Constitution Act, 1930, consequently, these lands, natural resources, mines, and minerals are and continue to be subject to the trust and interest of the Plaintiffs.
19. The Plaintiffs are therefore entitled to the exclusive use and occupation of the areas described above and to the natural resources thereof, and to a Declaration of these rights.
20. The Defendants, Her Majesty the Queen in Rights of Canada and the Minister of Indian Affairs and Northern Development, contrary to their obligation to protect the Plaintiffs, to ensure their welfare, well-being and comfort and to advance their development and to enhance their status, have breached their fiduciary, trust, constitutional, statutory, common law, and equitable obligations owed to the Plaintiffs, have failed to act exclusively for the benefit of the Plaintiffs and in their best interest and have failed to protect and preserve the rights, interests and property of the Plaintiffs.
21. The Plaintiffs are also entitled to a Declaration that they may execute an adhesion to Treaty No. 8 and to receive a reserve as provided for in that Treaty, as well as the exclusive use and benefit of all the natural resources in, upon or under the said resource.
22. Further, the Plaintiffs are also entitled to compensation for damages to their lands, inter alia, for destruction of wildlife upon which the Plaintiffs rely, for destruction of other natural resources, and for the conversion of mines and minerals and other natural resources, for interference with the aboriginal use of the land including traditional activities, trap-lines, traps and trapping equipment, fishing and hunting, and for interference with religious and burial sites and with cultural, traditional and spiritual values.
These paragraphs constitute the bulk of the statement of claim, which consists of only 22 paragraphs and a prayer for relief seeking various declarations and damages.
The parties' arguments
It is well settled that a pleading should only be struck out in plain and obvious cases where, when all the facts alleged are assumed to be true, the pleading discloses no reasonable cause of action.1 To establish a reasonable cause of action in damages, the plaintiffs must plead material facts that demonstrate the existence of a legal right, a duty to observe that right, a breach of the legal right and its associated duty, and finally, damages.2
The defendants submit that the facts alleged are insufficient to establish that the plaintiffs have a legal right in the form of Aboriginal title, or other Aboriginal rights, or entitlement to adhere to Treaty No. 8. The facts alleged are said to fail to meet the requirements set out in Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development3, namely, that the group claiming title demonstrate they have inhabited the land since sovereignty was asserted by England and that they have lived as an organized society exercising their jurisdiction over that land to the exclusion of other organized societies. Moreover, aside from the claim of Aboriginal title to lands, the defendants urge that the plaintiffs have not alleged the facts of relevant historical and cultural traditions, practices and customs necessary to demonstrate a continuing Aboriginal right to engage in an activity, custom or tradition, in accord with the teaching of R. v. Van der Peet4 and R. v. Adams.5
The defendants submit that many of the impugned paragraphs are conclusions of law and legal argument, regarding the effect of historical and current statutory and common law, and these paragraphs contain little in the way of material facts. Certain paragraphs are said to be recitations of law that are contrary to settled jurisprudence and thus, should be struck out.6
Further, the defendants argue that facts are not pleaded to show that there was a legal duty on them to observe an alleged legal right. Thus, it is urged the plaintiffs fail to allege any facts defining the scope and nature of the fiduciary, trust, constitutional, statutory, common law and equitable obligations the defendants are said to owe to the plaintiffs and they fail to allege sufficient facts to demonstrate that any alleged duty owed by defendants to the plaintiffs was breached.
The defendants submit that the plaintiffs also fail to meet the requirements for declaratory relief. To be entitled to declaratory relief, the issues raised by the plaintiffs must be real and not theoretical issues in which the plaintiffs have a vital and real interest which the defendants, in this case the Crown, has a true interest to oppose.7 It is submitted that there is as yet no real issue in the case at bar for the Crown has not been given the opportunity to fulfil any alleged obligations it may have with regard to the plaintiffs. Further, because the plaintiffs are not members of a recognized Indian band and the individual plaintiffs are not registered Indians under the Indian Act, and they do not allege in the statement of claim the basis of their claims to be Indians, the plaintiffs have not shown that they have a vital and real interest in the primary matter at issue, that is, Aboriginal title, upon which their claims to other rights here raised are based.
Finally, the defendants argue that the plaintiffs' pleadings fail to satisfy the requirements of the Court's Rules; namely, they fail to define the question in controversy between the litigants; they fail to give fair notice of the case which has to be met; they fail to assist the Court in its investigations of the truth; and they are insufficient to constitute a record of the issues involved in the action so as to prevent future litigation upon matters adjudicated between the parties. Thus, the pleadings are said to be frivolous and vexatious and they may prejudice, embarrass or delay the trial of this action.
For their part, the plaintiffs urge that it is not plain and obvious that there is no reasonable cause of action with respect to the allegations contained in the statement of claim. They cite Dumont v. Canada (Attorney General)8 as authority for the proposition that the proper interpretation of the provisions of constitutional documents, such as The Royal Proclamation, 1763 and the Constitution Acts, 1930 and 1982, is a matter best left to be determined at trial. Further, the plaintiffs submit that the pleadings are not immaterial or irrelevant, that no actual prejudice is established, and it is not obvious that the pleadings are forlorn and futile. Nor is there anything in the paragraphs which is prejudicial, embarrassing or vexatious. Finally, the plaintiffs submit that the pleadings should not be struck out on the basis of an abuse of process. They urge the claims set out are not yet determined, and that res judicata or issue estoppel doctrines are not applicable.
The applicable principles
Pleadings are struck for failing to disclose a reasonable cause of action only where, in the words of the Supreme Court of Canada, it is "`plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action".9 In determining whether this "plain and obvious" standard is met, the court is to assume that "the facts as stated in the statement of claim can be proved"10 and, indeed, to deem these facts proved.11 Madam Justice Wilson summarized the test to be applied in striking out a pleading in this way:
. . . the test in Canada . . . assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.12
In Roach v. Canada (Minister of State for Multiculturalism and Citizenship),13 the Federal Court of Appeal had occasion to interpret the Supreme Court's judgments in the context of subsection 419(1) of the Rules:
. . . if it is "plain and obvious" or "beyond doubt" that the appellant cannot succeed, the declaration should be struck out, but if there is "some chance of success" or "a chance that the plaintiff might succeed", the action should be allowed to proceed to trial.
A document such as a statement of claim or, as in this case, a declaration does not contain the evidence required to prove the facts that the plaintiff alleges. The facts alleged may or may not be proven at the trial"that is, it may or may not be shown that the appellant holds the views he alleges he holds and it may or may not be shown that the potential negative consequences will actually transpire. One of the driving reasons behind the high threshold for striking out a statement of claim for disclosing no reasonable cause of action is to prevent a court from embarking on a resolution of factual issues raised in a case in the absence of any evidence. The danger of such a course is obvious: there is an inadequate record upon which to make the factual determinations necessary to the disposition of a case. Further, a statement of claim contains only a skeleton of a legal argument, which will be fleshed out in submissions before the trial Court. It is only in the most obvious of cases, therefore, that the opportunity to present evidence and full legal argument should be denied a litigant.
Nevertheless, where bare conclusions are set out without a supporting factual basis, a claim has been found not to disclose a reasonable cause of action.14 In this regard, I note Mr. Justice Rouleau's decision in Glaxo Canada Inc. v. Department of National Health & Welfare of Government of Canada et al.15 where he sets out the basic rules of pleading as follows:
The rules governing pleadings establish the fundamental rule that the plaintiff is under an obligation to plead material facts that disclose a reasonable cause of action. This very basic rule of pleadings involves four separate elements: (1) every pleading must state facts and not merely conclusions of law; (2) it must include material facts; (3) it must state facts and not the evidence by which they are to be proved; and (4) it must state facts concisely in a summary form: see Odgers' Principles of Pleading and Practice, 21st ed., p. 94.
Also of relevance is Rule 412, which states that raising "a question of law or an express assertion of a conclusion of law . . . shall not be accepted as a substitute for a statement of material facts on which the conclusion of law is based". Subsection 412(1) explicitly permits the pleading of any point of law, but while it is not inappropriate to plead conclusions of law, these are to be supported by sufficient material facts pleaded. The following passage from Famous Players Canadian Corporation Limited v. J. J. Turner and Sons Ltd.16 reflects an acceptable approach:
It is quite proper and necessary to set forth the legal conclusion which the party will ask the Court to adopt, provided that conclusion is adequately supported by the statement of facts which are material to that result. I concede, of course, that the plea of a legal proposition cannot be allowed to stand alone; the facts upon which it is based must be given. On the other hand, it is equally objectionable simply to plead facts without mentioning the legal consequences which the party will contend flow from the existence of those facts, for otherwise the opposite party and the Court may be left under a complete misapprehension as to the outcome which the party pleading will seek to secure at the trial. Pleadings are meant to disclose fairly the proposition being presented by the party pleading, and many examples come to mind where to limit the document to recital of facts would be to defeat the fundamental purpose.
Nevertheless, where pleadings contain only legal assertions phrased in a fashion inconsistent with the settled jurisprudence, they may disclose no reasonable cause of action and may be struck out.17 Moreover, in Lawrence v. R.,18 Mr. Justice Mahoney made clear that the Court need not assume that a pleaded assertion of law is correct in evaluating whether the pleadings disclose a reasonable cause of action. In his words:
It is for the Court, not the pleader, to say what the law is. Here, I am bound to accept the plain language of the statute in preference to what the statement of claim imputes to it.
In the context of the case at bar, these propositions must be read in light of the Supreme Court decision in Dumont.19 At issue in that case was whether the Court could issue declarations regarding the constitutional validity of several pieces of federal legislation enacted between 1871 and 1886. The Manitoba Court of Appeal [(1988), 52 D.L.R. (4th) 25] held that the declarations sought could serve no useful purpose and struck out the statement of claim. In reversing the Court of Appeal, Madam Justice Wilson, writing for the Supreme Court, held that the outcome of the case was not "plain and obvious", and further:
Issues as to the proper interpretation of the relevant provisions of the Manitoba Act, 1870 and the Constitution Act, 1871 and the effect of the impugned ancillary legislation upon them would appear to be better determined at trial where a proper factual base can be laid.20
Dumont was later relied upon by the Federal Court of Appeal in Montana Band of Indians v. Canada.21 In that case, the plaintiffs sought, inter alia, a declaration that the Constitution Act, 1867 rendered the Rupert's Land and North-Western Territory Order22 of 1870 a constitutional instrument binding on the federal and provincial governments. The Court of Appeal held that the outcome of the case was not "plain and obvious" and indicated that the situation arising from a complex series of constitutional instruments, invoked in support of the declarations sought, was not dissimilar to that considered in Dumont . Thus, it would appear that where the pleadings relate to the interpretation of provisions of historical constitutional acts, the Court should be slow to strike out pleadings when applying the "plain and obvious" test.
Moreover, in considering whether to strike out a statement of claim in its entirety or to permit amendments, the Court will only act to strike out the statement where it is clear that "by no proper amendment can the statement of claim be revised so as to disclose a reasonable cause of action".23 In Jerome A.C.J.'s words, in McMillan v. Canada,
The burden on the applicant under rule 419(1)(a) is heavy since the court will only strike out portions of pleadings if it is clear that the claim cannot be amended to show a proper cause of action . . . . Indeed, there must not be a scintilla of a legitimate cause of action for a claim to be struck without leave to amend.24
The pleadings here at issue
My basic conclusion, in regard to the paragraphs in question of the statement of claim, is that they do not establish material facts to disclose a cause of action in damages, or for most of the declaratory relief sought. Yet, after hearing counsel for the parties, I conclude the plaintiffs should have an opportunity to amend the statement of claim to plead in conformity with the Rules, the facts underlying their claims.
In this case, the nature of the plaintiffs' claim for damages, as I understand it, is that their ancestors have been on the land since time immemorial and since before the time of The Royal Proclamation, 1763, which, it is said, applies to the land in question so that the plaintiffs' ancestors had rights recognized by that Proclamation, as well as by common law Aboriginal title. This same land is also said to be subject to Treaty No. 8 of 1899, but since the plaintiffs and their ancestors never became a party to the Treaty, their rights, allegedly recognized by The Royal Proclamation, 1763 and under the doctrine of common law Aboriginal title, were never extinguished. Since 1899, their lands have been exploited by persons other than the plaintiffs and thus, the plaintiffs' rights, now entrenched by section 35 [as am. by SI/84-102, s. 2] of the Constitution Act, 1982, were infringed, resulting in damages both from interference with the use by the plaintiffs of their Aboriginal lands and from the breach of the various duties allegedly owed to the plaintiffs by the Crown.
It seems to me that to disclose a reasonable cause of action in damages, the plaintiffs must establish facts demonstrating that they had a legal right stemming from Aboriginal title, or from the Proclamation, that the Crown had a concomitant duty and that this duty was breached, with damages arising from the breach of duty. The plaintiffs assert in the statement of claim that they are Aboriginal people whose ancestors have inhabited the land, to which they claim Aboriginal title, since time immemorial. I assume, for the purposes of this motion, the truth of this assertion. Yet, counsel for the defendant points out that this mere assertion of residence since time immemorial is insufficient to give rise to a cause of action based on common law Aboriginal title or other Aboriginal rights, and that the factual basis for the elements of the claim to title or other rights is not pleaded. I agree. In the absence of additional material facts pleaded by the plaintiffs, it is clear and obvious, in my view, that the claim to common law Aboriginal title, or to other Aboriginal rights, based on the facts pleaded in the statement of claim, would fail.
As for the plaintiffs' implicit claim from paragraph 4 that The Royal Proclamation, 1763 is a source of the rights claimed, I note that in Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development,25 that Proclamation was viewed as a separate source of Aboriginal title, distinct from common law Aboriginal title as first acknowledged by the Supreme Court of Canada in Calder et al. v. Attorney-General of British Columbia.26
For the defendant it is urged that jurisprudence has settled that The Royal Proclamation, 1763 did not apply to the territory now within the boundaries of the provinces of Alberta and British Columbia, and as a consequence, the plaintiffs' claims, in so far as they rely on the Proclamation, should be struck. That contention is based upon the following comment of Lord Justice May in Regina v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta:27
The territory of what is now the Province of Alberta was part of Rupert's Land, which was granted to the Hudson's Bay Company by their Charter of 1670. As such the Indians occupying it were expressly excluded from the reservation of sovereignty in the Proclamation of 1763 . . . .
That same conclusion about the Proclamation with reference to lands within British Columbia was approved by the British Columbia Court of Appeal in Delgamuukw v. British Columbia28 where four justices agreed that The Royal Proclamation, 1763 did not apply to British Columbia. In this regard, Hutcheon J.A. wrote that:
. . . the language of the Royal Proclamation applied only to the benefit of certain lands and specified Indians: the language did not extend to the lands and people totally unknown to the drafters of the Proclamation.29
Similarly, Wallace J.A., in his judgment, with which two other members of the Court concurred on this point, reasoned as follows:
The trial judge comprehensively reviewed the evidence and arguments on this issue in his reasons (pp. 287-307) and concluded that the Royal Proclamation, 1763 never applied to British Columbia. In part, his reasons for this conclusion are expressed at p. 305, where he stated:
The tenor of the Proclamation in its historical setting clearly relates to the practical problems facing the Crown in its then American colonies. Two of the Indian clauses of the Proclamation actually state that they are prescribed for "the present", and a fair reading of the document makes it clear that it relates to and applies for the use of the said Indians, who are those with whom the Crown was connected, etc., and over whom the Crown then exercised sovereignty.
And, further at p. 306:
I am further satisfied beyond any doubt that the Crown was not "connected" in any way with the Indians of the Canadian west in 1763. They did not live under the Crown's protection, and they owed the Crown no actual, legal or notional allegiance.
There is nothing which persuades me that this Proclamation, either by its language or by the intention of the Crown, applies to the benefit of the plaintiffs or to the lands of present day British Columbia.
I agree, for the reasons stated by the trial judge, with his conclusion that the Royal Proclamation, 1763 has never applied directly to British Columbia.30
It may be instructive to refer to Chief Justice McEachern's trial decision in Delgamuukw31 with which a majority of the Court of Appeal concurred:
I do not propose minutely to consider every word of the Proclamation because I am satisfied its language demonstrates beyond any question that it applied only to the benefit of certain lands and specified Indians.
As to lands, I have no doubt the lands of North America north and west of the headwaters of the Mississippi were not lands over which the British Crown had any authority in 1763, except for Rupert's Land, which was not within the reach of the Proclamation.
Counsel for the plaintiffs urges that the applicability of The Royal Proclamation, 1763 to the land in question, at least within Alberta, in this case has yet to be determined by the courts and that the pronouncements of Lord Justice May in Ex parte Indian Association of Alberta must be regarded as a generalization that fails to consider which portions of the present province of Alberta were or were not within the bounds of Rupert's Land. In their response to demand for particulars, the plaintiffs claim that the lands they and their ancestors have inhabited were, until 1876, part of what is now referred to as the Northwest Territories. I assume that means the lands lie in what was known in 1870 as the North-Western Territory. Reference was made at the hearing to several geographic and historical sources in support of the plaintiffs' view that the land in question was not, in fact, part of Rupert's Land. Yet even if this were the case, it does not necessarily follow that The Royal Proclamation, 1763 applied to those lands. The region in question is north and west of the headwaters of the Mississippi, in the zone that Mr. Justice McEachern in Delgamuukw, viewed as outside the scope of The Royal Proclamation, 1763, and in his view of the Proclamation, the plaintiffs' ancestors would not have been among the "specified Indians" to whom The Royal Proclamation, 1763 referred.
Nevertheless, keeping in mind the admonishments of the Supreme Court and the Federal Court of Appeal that the interpretation of provisions of historical constitutional documents, in which category I include The Royal Proclamation, 1763, is a matter best decided at trial, at this stage I do not consider that it has yet been determined that the lands claimed by the plaintiffs were not subject to that Proclamation. The applicability of the Proclamation may best be resolved in light of the facts the plaintiffs may adduce at trial, taking into account the general conclusions about that matter by McEachern C.J. in Delgamuukw and of Lord May in the Indian Association of Alberta case.
Yet, to argue that The Royal Proclamation, 1763 is material to this case, in my view the plaintiffs must plead material facts that support this conclusion. Given judicial comments in other cases on the limited geographic reach of the Proclamation, it is not enough simply to state that The Royal Proclamation, 1763 existed and provided for certain protections. The plaintiffs must plead facts supporting the conclusion that their claimed lands fall within the area once known as the North-Western Territory, not Rupert's Land, and that the area was within the geographic area to which the Proclamation applied.
Paragraph five of the statement of claim refers to the Rupert's Land and North-Western Territory Order in Council and states that by that Order the Hudson's Bay Company ceded to her Majesty all its lands. It seems to me this does not describe historic facts accurately nor does it set out any basis for a claim that the lands claimed by the plaintiffs were subject to or affected by that Order in Council.
The plaintiffs ascribe the secession of the company's lands to the Order dated 1870 when in fact the Company's lands were ceded by a deed of surrender in 1869, to Her Majesty, and became a part of Canada by the 1870 Order in Council. The plaintiffs, it seems to me, intend to rely upon paragraph 14 of the terms and conditions upon which the North-Western Territory and Rupert's Land were made part of Canada as provided in the 1870 Order and quoted in paragraph 6 of the statement of claim, to argue that the Canadian government henceforth had an obligation to negotiate compensation for Indians whose lands were opened for settlement. If the plaintiffs' "fact" that their lands as claimed lie in what was the North-Western Territory, not in Rupert's Land, it is arguable that the terms of the 1870 Order in Council are applicable in the plaintiffs' claim in relation to the lands in issue.
If that is right, paragraph 5 as pleaded, and indeed paragraph 6 which was not questioned by the defendants' motion, do not accurately plead material facts underlying a claim sought to be expressed in the statement of claim that the Crown assumed duties related to their lands under the 1870 Order in Council. It seems to me inappropriate to refer to the lands as ceded to the Crown by the Hudson's Bay Company when it is also claimed the lands were not within Rupert's Land. Nevertheless I believe that appropriate amendments can set out the basis for any claim the plaintiffs make in relation to obligations assumed by the federal government owed to the plaintiffs under the 1870 Order in Council.
With regard to paragraph 9, I agree with counsel for the defendants that there appears to be a contradiction between the plaintiffs' pleading here that their ancestors were generally in an area "remote to those at issue" in the context of Treaty No. 8 and their submission in paragraph 2 that they have lived in the region covered by Treaty No. 8 since time immemorial. In my view any contradiction can be cleared up by amendment. It is not a departure from a previous pleading that would justify a striking of the pleading under paragraph 419(1)(e ) of the Rules. Rather, paragraph 9 appears to reflect the plaintiffs' view that adhesions to Treaty No. 8 were made first with First Nations affected by the movement of prospectors in the Yukon gold rush; namely, those along the route from Edmonton to Pelly River, Yukon. The plaintiffs' claimed lands were "remote" from this route and they were not subsequently approached by the Treaty Commissioners, though their lands also fell within the geographic area subject to Treaty No. 8. By affidavit it is averred that originally there was no road access to the plaintiffs' lands and that when commissioners were engaged in 1950 in further negotiations for adhesions under Treaty No. 8, they could not reach the plaintiffs' lands because a bridge on the only access road was washed out. These facts alleged do not appear in the statement of claim. In addition to denying any action by the plaintiffs to extinguish their rights, an amended paragraph might well set out the facts on which the area in question can be said to have been "remote", e.g. lack of access to the area by normal mode of travel, lack of contact, if such there was, with other peoples, including settlers, trappers, miners or others of European origin.
Turning now to paragraphs 10 through 22, I am in substantial agreement with the defendants that these paragraphs primarily set out statements of law and declarations of the legal rights claimed by the plaintiffs. I note that in their response to demand for particulars, the plaintiffs acknowledge that paragraphs 15-22 "contain legal argument and conclusions. The material facts are stated in earlier paragraphs of the statement of claim."
In paragraphs 10, 11, 12, 15, 16, and 21 the plaintiffs make assertions interpreting the scope and effect of Treaty No. 8 and ask, in their prayer for relief, for damages that allegedly flow, in part, from the Crown's breach of Treaty No. 8. They do not cite the relevant passages of the Treaty, nor do they plead any facts to support their interpretation or to justify their claim for monetary damages. For example, while the plaintiffs assert that under Treaty No. 8, Her Majesty the Queen undertook to provide a certain amount of land in return for surrender, they do not plead facts that would support a claim that Her Majesty ever breached Her duty or undertaking by refusing a claim by the plaintiffs. Yet, the plaintiffs rely on this provision of Treaty No. 8 to argue that they are entitled to a declaration of their rights and entitlements under an adhesion to Treaty No. 8. Here it is not explicitly pleaded that the plaintiffs and their ancestors did not receive any of the benefits that plaintiffs perceive ought to have been provided under the Treaty, to them as to other First Nations, nor is it pleaded that they were refused any claim to entitlement.
Paragraphs 17 and 18 concern legal interpretations of the scope, effect and implications for a claim relating to the Constitution Act, 1930. Counsel for the plaintiffs submit they intend to rely on their interpretation of the Constitution Act, 1930 to argue that the federal government did not transfer jurisdiction over the lands at issue in this case to the provinces. With respect, the materiality of this claim to the case at bar is not established by the mere assertion of this conclusion of law. Presumably the plaintiffs intend to argue the plaintiffs suffer damages by virtue of the failure of the federal Crown to guarantee to them exclusive use and occupation of the land, and its resources, to which they claim Aboriginal title. In my view, to do so, the plaintiffs must plead facts describing how the province or others have asserted jurisdiction and how the plaintiffs' alleged right to exclusive use and occupation has been interrupted. It is not sufficient, in my opinion, simply to assert in paragraph 22 that the plaintiffs are entitled to compensation for a number of types of damages to their land, described in general terms, in the absence of further factual particulars underlying the alleged damage claims.
Counsel for the defendants also submitted that paragraph 17, as phrased, is an erroneous conclusion of law. Specifically, it is argued that it is incorrect to assert that the Constitution Act, 1930 was "entered into" by Her Majesty the Queen in right of Canada. I am in agreement with this position. The origins of the Constitution Act, 1930 were summarized by the Supreme Court of Canada in R. v. Horse as follows:
In 1929 and 1930 agreements were entered into between each of the provinces of Alberta, Manitoba and Saskatchewan and the Canadian government for the primary purpose of effecting a transfer of control of natural resources and Crown lands from the Dominion government to the prairie provinces. They were confirmed by legislation enacted in each of the provinces, and by the Parliament of Canada. The United Kingdom Parliament, by enacting the Constitution Act, 1930, gave these agreements the force of law.32
I conclude from this description that it is inaccurate to say that the Government of Canada "entered into" the Constitution Act, 1930 . It was the natural resources transfer agreements that the federal government "entered into".
Moreover, the Natural Resources Transfer Agreement and the Act of 1930 have somewhat different application in relation to British Columbia than to Alberta. In so far as the lands the plaintiffs claim lie within each of those provinces, the basis for claims concerning the Constitution Act, 1930 may have to be set out differently in relation to any lands claimed by the plaintiffs in each of the two provinces.
Paragraphs 19 to 22 are also legal conclusions concerning the plaintiffs' entitlements arising out of their assessment of their legal rights, and they do not set out material facts on which the legal conclusions are based. I note that a number of the assertions the plaintiffs make here are repeated in the plaintiffs' prayer for relief.
Counsel for the defendants urged that the pleadings in paragraphs 18 and 20, characterizing the alleged Aboriginal title as a trust are contrary to settled jurisprudence. It is true that Dickson J. (as he then was) in Guerin et al. v. The Queen et al.33 was of the view that before surrender the Crown does not hold land in trust for the Indians. Further, his view was that the Crown's obligation does not somehow crystallize into a trust, express or implied, at the time of surrender. That said, in R. v. Sparrow,34 the Supreme Court of Canada spoke of the relationship requiring the Government to act in a fiduciary capacity with respect to Aboriginal peoples as follows:
The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.
Later, Mr. Justice Gonthier, speaking for the majority of the Supreme Court in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development)35 had this to say:
I should add that my reasons should not be interpreted to equate a trust in Indian land with a common law trust. I am well aware that this issue was not resolved in Guerin v. The Queen . . . and I do not wish to pronounce upon it in this case. However, this Court did recognize in Guerin that "trust-like" obligations and principles would be relevant to the analysis of a surrender of Indian lands. In this case, both the 1940 and 1945 surrenders were framed as trusts, and the parties therefore intended to create a trust-like relationship. Thus, for a lack of the better label, I think that it is appropriate to refer to these surrenders as trusts in Indian land.
What falls within the ambit of the "trust-like" relationship between Aboriginal people and the Crown remains open, and dependent on the factual circumstances in each case. In my view, assuming appropriate amendments to plead material facts underlying the relationship of the plaintiffs to the Crown, it is not plain and obvious that a possible claim under paragraph 20 will fail, that is, it may be pleaded that there has been a breach of trust-like obligations owed to the plaintiffs by the defendants.
It may be that the plaintiffs' conclusion in paragraph 18 that their alleged rights are "a trust and an interest other than that of the Crown in Crown lands in British Columbia and in Alberta within the meaning of the Natural Resources Transfer Agreement being the Constitution Act, 1930", does require amendment, at least in its reference to the Natural Resource Agreement and the Constitution Act, 1930 as one and the same. Moreover, their claimed lands, if never surrendered cannot be the basis of a "trust" with obligations owed by Her Majesty, whatever her other obligations may be unless, somehow, the basis of any holding by the Crown of the plaintiffs' lands is established to be other than by surrender. Even then, the holding of the lands would not be on the basis of regular common law trust. The basis of any other rights claimed by the plaintiffs, other than Aboriginal title to lands, should be set out to support any claim to fiduciary or trust-like obligations of Her Majesty in respect of those rights, and the alleged breach of those obligations.
With respect to the defendants' submissions that the pleadings fail to meet the requirements for declaratory judgments as set out in Montana,36 at this stage I am in substantial agreement, but since my view is that the plaintiffs' claim may yet be more appropriately set out in a further amended statement of claim, I am not prepared to strike the claims for declaratory relief at this stage.
The defendants assert that the pleadings are also frivolous and vexatious and may prejudice, embarrass or delay the trial of this action. I am not persuaded to strike the paragraphs in question on any of these grounds. In Steiner v. Canada37 Prothonotary Hargrave commented on the meaning of frivolous and vexatious:
A claim is a frivolous one where it is of little weight or importance or for which there is no rational argument based upon the evidence or law in support of the claim. A vexatious proceeding is one that is begun maliciously or without a probable cause, or one which will not lead to any practical result.
Mr. Justice Pratte (as he then was) in Creaghan Estate v. The Queen38 wrote.
. . . in my view, a statement of claim should not be ordered to be struck out on the ground that it is vexatious, frivolous or an abuse of the process of the court, for the sole reason that in the opinion of the presiding judge, plaintiff's action should be dismissed. In my opinion, a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding, whoever the judge may be before whom the case could be tried. It is only in such a situation that the plaintiff should be deprived of the opportunity of having "his day in Court".
In Waterside Ocean,39 Mr. Justice Thurlow was of the opinion that the test for striking pleadings on the ground that the proceeding is frivolous or vexatious or an abuse of the process of the Court is as stringent, if not more so, as that applied when dismissal is sought for the absence to disclose a reasonable cause of action.
Pleadings may be found to prejudice or embarrass the court or the parties when "allegations are so irrelevant that to allow them to stand would involve useless expenses and would prejudice the trial of the action by involving the parties in a dispute that is wholly apart from the issues."40
In Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. et al. Mr. Justice Dubé commented that it is well established that "in order to succeed on a motion to strike out under Rule 419(1)(b ),(c),(d),(e) and (f), the applicant must show that the pleading attacked is so clearly immaterial, frivolous, embarrassing, abusive, etc., that it is obviously forlorn and futile."41
I do not find that the pleadings here are so flawed as to be scandalous, frivolous or vexatious, or that they would prejudice, embarrass or delay a fair trial of the action, provided appropriate amendments are made to the statement of claim.
Conclusion
Assuming the material facts pleaded in the plaintiffs' amended amended statement of claim can be proved, in my opinion they do not effectively set out material facts to support the claim that the plaintiffs have Aboriginal title to the lands claimed, either at common law or by virtue of recognition under The Royal Proclamation, 1763, or to support other Aboriginal rights claimed, or that the basis of their claim to rights pursuant to Treaty No. 8 would be established. As pleaded, the claims for declaratory relief are questionable and those for damages are not established for the facts set forth in the statement of claim do not set out the bases of the duties claimed to be owed to the plaintiffs, the breach of those duties and the damages claimed.
Nevertheless, as earlier indicated in these reasons, I am not prepared to strike the questioned paragraphs let alone the statement as a whole, since in my view the plaintiffs by appropriate amendments may plead material facts to support one or more of the claims here sought to be set out. Paragraphs 5 and 9 require some amendment to accurately reflect the plaintiffs' claims, as I understand them. Paragraphs 10 to 22, primarily statements of law and declarations of the plaintiffs' legal position, if appropriately amended by pleading material facts supporting the positions there set out, may yet provide the basis for consideration of the plaintiffs' claims. These reasons include some comments with respect to particular paragraphs which I do not here repeat.
An order goes providing that the plaintiffs' may have up to 60 days to file a further amended statement of claim pleading material facts upon which all claims to relief included in that statement are based, in accord with the Rules, particularly Rules 408 and 412. The defendants may then have 30 days following service of any further amended statement of claim to file and serve a defence.
In view of the fact that another society consisting of persons apparently also claiming somewhat similar status and rights was incorporated as the Kelly Lake First Nation Society under the B.C. Society Act, I direct that a copy of the order now issued and of any further amended statement of claim be served upon that society. In the event it seeks, or its members desire, to participate in these proceedings, that may be considered upon their application under the rules concerning adding a party or intervention by a party interested in matters before the Court.
1 ;Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735.
2 Tagish Kwan Corp. (Bankrupt) v. Canada (1994), 89 F.T.R. 293 (F.C.T.D.).
3 [1980] 1 F.C. 518 (T.D.).
4 [1996] 2 S.C.R. 507.
5 [1996] 3 S.C.R. 101.
6 See, e.g., Imperial Chemical Industries PLC v. Apotex Inc. (1990), 31 C.P.R. (3d) 517 (F.C.T.D.).
7 ;Montana Band of Indians v. Canada, [1991] 2 F.C. 30 (C.A.).
8 [1990] 1 S.C.R. 279.
9 ;Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980.
10 Id.
11 Attorney General of Canada v. Inuit Tapirisat of Canada et al., supra, note 1, at p. 740 and Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at pp. 486-487.
12 Hunt, supra, note 9, at p. 980.
13 [1994] 2 F.C. 406 (C.A.), at p. 421.
14 Vojic (L.) v. M.N.R., [1987] 2 C.T.C. 203 (F.C.A.).
15 (1987), 15 C.P.R. (3d) 1 (F.C.T.D.), at p. 11.
16 [1948] O.W.N. 221 (H.C.), at pp. 221-222, cited with approval by Hargrave P., in Tagish Kwan Corp. (Bankrupt) v. Canada (1994), 82 F.T.R. 140 (F.C.T.D.), at p. 145, affirmed on other grounds, supra, note 2.
17 Supra, note 6. See also Canada v. Mayer (1996), 208 N.R. 145 (F.C.A.).
18 [1978] 2 F.C. 782 (T.D.), at p. 784.
19 Supra, note 8.
20 Id., at p. 280.
21 Supra, note 7.
22 As am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 3 [R.S.C., 1985, Appendix II, No. 9].
23 ;Waterside Ocean Navigation Co., Inc. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.), at p. 259. See also Cyr v. Canada (Federal Penitentiary, Director), [1992] F.C.J. No. 561 (T.D.) (QL); Mayflower Transit Ltd. v. Marine Atlantic Inc. et al. (1989), 29 F.T.R. 30 (F.C.T.D.).
24 (1996), 108 F.T.R. 32 (F.C.T.D.), at p. 39.
25 Supra, note 3, at p. 556.
26 [1973] S.C.R. 313.
27 [1982] 1 Q.B. 892 (C.A.), at p. 934.
28 (1993), 104 D.L.R. (4th) 470 (B.C.C.A.), now on appeal to the Supreme Court of Canada [the reasons for judgment were rendered on December 11, 1997 and may be found at [1997] 3 S.C.R. 1010].
29 Id., at p. 751.
30 Id., at pp. 593-594.
31 (1991), 79 D.L.R. (4th) 185 (B.C.S.C.), at p. 304.
32 [1988] 1 S.C.R. 187, at p. 191.
33 [1984] 2 S.C.R. 335.
34 [1990] 1 S.C.R. 1075, at p. 1108.
35 [1995] 4 S.C.R. 344, at p. 362.
36 Supra, note 7.
37 (1996), 122 F.T.R. 187 (F.C.T.D.), at p. 191.
38 [1972] F.C. 732 (T.D.), at p. 736.
39 Supra, note 23.
40 Mayor, &c., of City of London v. Horner (1914), 111 L.T. 512 (C.A.), at p. 514, cited in Meyers and Lee v. Freeholders Oil Co. and Canada Permanent Trust Co. (1956), 19 W.W.R. 546 (Sask. C.A.), at p. 549.
41 (1982), 64 C.P.R. (2d) 206 (F.C.T.D.), at p. 210. See also Copperhead Brewing Co. v. John Labatt Ltd. (1995), 61 C.P.R. (3d) 317 (F.C.T.D.).