[2018] 3 F.C.R. D-3
Constitutional Law
Aboriginal and Treaty Rights
Appeal from Prothonotary decision allowing defendants’ motion to remove defendant Governor General as party to underlying action challenging constitutionality of First Nations Financial Transparency Act, S.C. 2013, c. 7 (FNFTA) — Plaintiff asserting in statement of claim that Onion Lake Cree Nation comprised of two treaty peoples who are the successors to those who made treaty with Crown in 1876 — Asserting that passage, implementation of FNFTA breach of defendants’ treaty obligations, violation of plaintiff’s treaty rights — Also asserting, inter alia, that Governor General breaching fiduciary duty to consult with plaintiff, offending Crown’s honour by not upholding treaty, that FNFTA passed into law without royal consent — Prothonotary relying on Galati v. Canada (Governor General), 2015 FC 91 [2015] 4 F.C.R. 3, concluding, inter alia, that Governor General’s discretion with respect to granting royal assent entirely controlled by convention of responsible government; Governor General’s role forming part of legislative process over which courts having no oversight; that no duty to consult arising during legislative process; plain, obvious that allegations in impugned paragraphs of statement of claim not disclosing reasonable cause of action — Issue whether Prothonotary erring by limiting analysis of justiciability of claim against Governor General to justiciability of act of royal assent — Prothonotary’s decision turning on question of whether act of royal assent justiciable — Prothonotary not erring in relying on Galati to support conclusion that grant of royal assent by Governor General in present case not justiciable — Galati not distinguishable from present case — Prothonotary also relying on Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311, [2017] 3 F.C.R. 298 because of its endorsement of finding in Galati, its conclusion no duty to consult prior to passage of legislation even where treaty rights affected — Clear that Prothonotary aware that plaintiff also alleging Governor General having duty to consult — Not clear how Governor General’s lack of consent to proposed legislation supporting cause of action against him — No royal consent sought for legislation, none given — Plaintiff’s arguments surrounding Governor General’s conferral of royal consent, duty to warn failing on same basis as those related to royal assent, duty to consult — Governor General’s role in legislative process not justiciable — Appeal dismissed.
Onion Lake Cree Nation v. Canada (T-2428-14, 2017 FC 1049, Southcott J., order dated November 20, 2017, 28 pp.)