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T-1843-89
Mary Deer and William Rainey (Plaintiffs) v.
The Mohawk Council of Kahnawake, being the Council of the Kahnawake Band, purporting to be duly constituted under the Indian Act, Grand Chief Joe Norton, in his capacity as Grand Chief of the Kahnawake Band and Chief of the Mohawk Council of Kahnawake, Davis Rice, Walter Good- leaf, Hazel Lazare, Paul G. Deer, Melvin Jacobs, John Bud Morris, Thomas Phillips, Richard White, Joe Delaronde, Billy Two Rivers, and Alvin Delisle, the Councillors of the Mohawk Council of Kahnawake, in their capacities as Councillors of the said Council, and the Honour able Pierre Cadieux, in his capacity as Minister of Indian Affairs and Northern Development and in his capacity as Superintendent General of Indian Affairs and Her Majesty the Queen (Defendants)
INDEXED AS: DEER V. MOHAWK COUNCIL OF KAHNAWAKE (T.D.)
Trial Division, Dubé J. —Montréal, November 8; Ottawa, November 23, 1990.
Practice — Pleadings — Motion to strike — Appeal from order striking paragraphs of statement of claim alleging Min ister of Indian Affairs and Queen breaching duty to enforce Indian Act and Charter — Plaintiffs married and residing on reserve — Band Council passing resolution requiring female plaintiff to evict non-Indian husband — Statement of claim alleging Minister charged with enforcing Act; aware of Band Council's actions, but doing nothing to stop them — Appeal allowed — Not "plain and obvious" and "beyond doubt" no case against Queen and Minister — Novelty of cause of action not militating against plaintiffs — Courts reluctant to strike allegations concerning Crown's fiduciary obligations to Indians.
Native peoples — Appeal from order striking paragraphs of statement of claim containing allegations Minister of Indian Affairs and Northern Development and Queen breaching duty to uphold law — Plaintiffs married and residing on reserve — Band Council passing resolution requiring female plaintiff to evict non-Indian husband — Statement of claim alleging Minister charged with enforcing Act; knew of Band Council's actions, but took no steps to prevent them — Alleging breach of duties under Indian Act and Charter Appeal allowed —
Not plain and obvious no cause of action Review of Band
Council's powers under Indian Act Although Act criticized,
still valid and Minister having vast powers thereunder —
Judicial reluctance to strike allegations of breach of fiduciary obligation owed by Crown to Indians.
This was an appeal from an order of the Senior Prothonotary striking out paragraphs of the statement of claim alleging that the Minister of Indian Affairs and Northern Development was responsible for the enforcement of the Indian Act; that he knew of the actions of the other defendants, but took no action to prevent those actions, and therefore the Minister and the Queen breached their duties under the Act and Charter. Para graphs in the prayer for relief seeking declarations to that effect were also struck. Consequently the Minister and the Queen were struck out as defendants. The plaintiffs are mar ried and live on the Kahnawake reserve. The Mohawk Council pursuant to a resolution, demanded that the female plaintiff, who is an Indian and a band member, evict her non-Indian husband. The Senior Prothonotary held that the main question was the validity of a by-law and that the Minister was not entitled to intervene and decide whether a Council's by-law was ultra vires. The plaintiffs argued that the legality of the by-law was only one of a number of important issues raised in the statement of claim. They wanted to assert their right to live together on the reserve according to the Indian Act as amended in 1985 and the Charter. Their position is that the Queen and the Minister have a duty to uphold the law, and to ensure that moneys disbursed by the band council are properly spent. The Crown argued that it was for tribunals to decide the validity of a by-law, not the Minister, as an Indian band council is an elected public authority, with powers similar to those of rural municipalities in that it can pass by-laws covering matters similar to municipal by-laws. The issue was whether it was "plain and obvious" and "beyond doubt" that the plaintiffs have no cause of action against the Queen and the Minister.
Held, the appeal should be allowed.
The action against the Queen and her Minister was not frivolous. It was not "plain and obvious" and "beyond doubt" that the plaintiffs had no case against them. The novelty of the cause of action cannot militate against the plaintiffs. It may not be sustainable throughout but it is too early to limit the issue to the validity of a by-law. In recent years, the Court has been reticent to strike out allegations concerning the fiduciary obli gations owed by the Crown to Indians. The Indian Act is still valid, although subjected to strong criticism in a recent report of the Canadian Human Rights Commission, and the Minister is still vested with vast powers and responsibilities for the proper administration of the Act.
STATUTES AND REGULATIONS JUDICIALLY CONSI DERED
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].
Federal Court Rules, C.R.C., c. 663, RR. 336(5), 419. Indian Act, R.S.C., 1985, c. 1-5, ss. 10(4), 81 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 15).
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
' et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) l; 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.
CONSIDERED:
Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; [1986] 4 C.N.L.R. 79; [1986] 2 C.T.C. 170; (1986), 86 DTC 6353; 23 E.T.R. 210; 67 N.R. 146 (C.A.); Glazer v. Union Contractors Ltd. & Thornton (1960), 25 D.L.R. (2d) 653; 33 W.W.R. 145 (B.C.S.C.); LeBar v. Canada, [1989] 1 F.C. 603; (1988), 33 Admin. L.R. 107; 46 C.C.C. (3d) 103; 90 N.R. 5 (C.A.); Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Seminole Nation v. United States, 62 S.Ct. 1049 (1942).
REFERRED TO:
Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al., Re (1982), 135 D.L.R. (3d) 128; [1982] 3 W.W.R. 554; 15 Sask. R. 37 (C.A.); R. v. Paul Indian Band and Attorney General of Alberta and Attorney General of Canada (1983), 50 A.R. 190; [1984] 2 W.W.R. 540; 20 Alta. L.R. (2d) 310; [1984] 1 C.N.L.R. (C.A.); Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72; (1982), 139 D.L.R. (3d) 9; 82 CLLC 14,028; [1982] 4 C.N.L.R. 94; 44 N.R. 136; Apsassin v. Canada (Department of Indian Affairs and Northern Development), [ 1988] 3 F.C. 20; [ 1988] 1 C.N.L.R. 73; (1987), 14 F.T.R. 161 (T.D.); R. v. Spar row, [1990] I S.C.R. .1075; [1990] 4 W.W.R. 410; 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; Desjarlais et al. v. Canada (Minister of Indian Affairs & Northern Development), [1988] 2 C.N.L.R. 62; (1987), 18 F.T.R. 316 (F.C.T.D.); R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385;
85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Blackfoot Indian Band, No. 146 (Members) v. Canada and Black- foot Indian Band, No. 146 (Chief and Councillors), [1987] 2 C.N.L.R. 63; (1986), 5 F.T.R. 23 (F.C.T.D.); Blackfoot Indian Band, No. 146 (Members) v. Canada and Blackfoot Indian Band, No. 146 (Chief and Council lors) (1986), 7 F.T.R. 133 (F.C.T.D.).
COUNSEL:
Diane Soroka for plaintiffs.
Jean-Marc Aubry for defendants Her Majes ty the Queen and the Honourable Pierre Cadieux.
Philip Schneider for defendants The Mohawk Council of Kahnawake, Grand Chief Joe Norton, Davis Rice, Walter Goodleaf, Hazel Lazare, Paul G. Deer, Melvin Jacobs, John Bud Morris, Thomas Phillips, Richard White, Joe Delaronde, Billy Two Rivers and Alvin Delisle.
SOLICITORS:
Hutchins, Soroka & Dionne, Montréal, for plaintiffs.
Deputy Attorney General of Canada for defendants Her Majesty the Queen and the Honourable Pierre Cadieux.
Patenaude Dubois & Associés, Longueuil, Quebec, for defendants The Mohawk Council of Kahnawake, Grand Chief Joe Norton, Davis Rice, Walter Goodleaf, Hazel Lazare, Paul G. Deer, Melvin Jacobs, John Bud Morris, Thomas Phillips, Richard White, Joe Delaronde, Billy Two Rivers and Alvin Delisle.
The following are the reasons for judgment rendered in English by
DUBÉ J.: This appeal under Rule 336(5) [Fed- eral Court Rules, C.R.C., c. 663] is from an order of the Senior Prothonotary dated June 7, 1990 granting a motion on behalf of two of the defend ants, Her Majesty the Queen and the Honourable Pierre Cadieux, and striking out paragraphs 33, 34, 35 and 36 of the plaintiffs' statement of claim and subparagraphs (i), (j), (n) and (o) of the prayer for relief and, consequently, striking out the names of these two defendants, on the ground that the paragraphs in question do not disclose a
reasonable cause of action against them. In his order, the Senior Prothonotary outlined the follow ing grounds for his decision:
1. The main question is to determine the validity of a by-law; that belongs to the Court.
2. The Minister has specific powers; for example, sections 20, 28, 32, 34, 42, 43, 51, 52, 54, 55, 56, 60, 61, 62, 63, 64, 71, 74, 91, 93, 114; the Council of the band also has specific powers; fur example 81-82-83.
3. The Minister is not entitled to intervene and decide if a by-law adopted by a band's Council is ultra vires.
It appears in the statement of claim that the two plaintiffs are married and reside on the Kah- nawake reserve. The plaintiff Mary Deer is an Indian and a member of the Kahnawake Indian Band. The plaintiff William Rainey is not. On May 23, 1989 the Mohawk Council demanded that she evict her husband pursuant to a resolution of the Council. The four paragraphs ordered struck out by the Senior Prothonotary are as follows:
33. DEFENDANT the Honourable Pierre Cadieux in his quality as Minister of Indian Affairs and Northern Development and in his quality as Superintendent General of Indian Affairs is responsible for the administration, implementa tion and the enforcement of the Indian Act;
34. DEFENDANTS the Honourable Pierre Cadieux and preceed- ing [sic] Ministers of Indian Affairs and Northern Develop ment and Her Majesty the Queen have been informed and have had knowledge of the actions of the other DEFEND ANTS in this case;
35. DEFENDANTS the Honourable Pierre Cadieux and Her Majesty the Queen have taken no action to prevent or stop the illegal actions of the other DEFENDANTS in this case nor have they taken appropriate measures to ensure the full application of the Indian Act or to ensure that the rights to which individuals such as PLAINTIFF, Mary Deer, are en titled under the Indian Act, are implemented and respected, thereby encouraging the other DEFENDANTS in this case to continue and to pursue their illegal actions;
36. The tolerance of the above-mentioned illegal actions of the other DEFENDANTS in this case and the lack of diligence in the application, implementation and enforcement of the Indian Act on the part of DEFENDANTS, the Honourable Pierre Cadieux and Her Majesty the Queen constitute a breach of their legal duties including:
(a) their duties under the Indian Act including the fiduci ary duty owed by said DEFENDANTS to Mary Deer;
(b) their duty under the Charter to ensure that the rights and freedoms guaranteed to PLAINTIFFS Mary Deer and William Rainey thereunder are respected;
(c) their duty to ensure that the other DEFENDANTS in this case, acting under authority delegated to them by legis lation enacted by Parliament, carry out their respon sibilities in a manner compatible with the terms of the enabling legislation and the Charter;
The following subparagraphs of the prayer in the statement of claim were also struck out:
(I) DECLARE that the Honourable Pierre Cadieux in his quality as Minister of Indian Affairs and Northern Development and/or in his quality as Superintendent General of Indian Affairs has been negligent in his duty to see to the proper administration, implementation and enforcement of the Indian Act;
(j) DECLARE that DEFENDANTS, the Honourable Pierre Cadieux and Her Majesty the Queen are in breach of their legal duties including:
(i) their duties under the Indian Act including the fiduciary duty owed by said DEFENDANTS to Mary Deer;
(ii) their duty under the Charter to ensure that the rights and freedoms guaranteed to PLAINTIFFS Mary Deer and William Rainey thereunder are respected;
(iii) their duty to ensure that the other DEFENDANTS in this case, acting under authority delegated to them by legislation enacted by Parliament, carry out their responsibilities in a manner compatible with the terms of the enabling legislation and the Charter;
(n) ORDER DEFENDANT Her Majesty the Queen to pay to PLAINTIFF Mary Deer the sum of $25,000.00 for suf fering and humiliation and deprivation of her legal rights;
(o) ORDER DEFENDANT Her Majesty the Queen to pay to PLAINTIFF William Rainey the sum of $10,000.00 for suffering and humiliation;
Thus, the question to be resolved is whether it is "plain and obvious and beyond doubt"' that the plaintiffs have no cause of action against Her Majesty the Queen and the Minister of Indian Affairs and Northern Development.
It is trite law that in such strike out proceedings under Rule 419 the allegations of fact advanced in the statement of claim must be taken as true and provable. In a nutshell, the plaintiffs allege that the Minister is responsible for the administration and enforcement of the Indian Act, 2 that he has been informed of the actions of the Kahnawake
' See the test in Attorney General of Canada v. Inuit Tapiri- sat of Canada et al., [1980] 2 S.C.R. 735, at p. 740.
z R.S.C., 1985, c. 1-5.
Council, that he has taken no measures to prevent these actions, and therefore that he and Her Majesty the Queen have breached their legal duties under the Act and the Canadian Charter of Rights and Freedoms [being Part I of the Consti tution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. In their prayer, the plaintiffs seek a declaration to that effect and damages.
The Senior Prothonotary held that the main question to be determined is "the validity of a by-law" and that "the Minister is not entitled to intervene". This is essentially the position taken by Crown counsel, namely that all actions complained about by the plaintiffs emanate from the band council, not from the Minister or the Queen, and that it is for the tribunals to deal with these actions if they are ultra vires.
Crown counsel argues that an Indian band coun cil is an elected public authority, dependent on Parliament for its existence, and is intended to provide a form of local government. More specifi cally, section 81 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 15) clothes the Indian band with powers usually associated with rural municipali ties, by way of delegation from Parliament, and not from the Minister or the Crown (see White- bear Band Council and Carpenters Provincial Council of Saskatchewan et al., Re). 3 The only operations or activities that a band council is empowered, to carry on are those authorized by Parliament under the Indian Act and particularly under section 81 (see R. v. Paul Indian Band and Attorney General of Alberta and Attorney General of Canada). 4 That section gives the council power to make by-laws, not inconsistent with the Act or regulations, for many specified purposes which are similarly covered by the by-laws of municipalities. The council is a designated body of persons which is given a specific role under the provisions of the Indian Act (see Public Service Alliance of Canada v. Francis et al.). 5 Of course, the Indian Act does impose certain restrictions on the actions and on
3 (1982), 135 D.L.R. (3d) 128 (Sask. C.A.), at p. 133.
° (1983), 50 A.R. 190 (C.A.), at p. 195.
5 [ 1982] 2 S.C.R. 72, at p. 78.
the rights of status Indians but they are not "to be treated at law somehow as if they were not sui juris such as infants or persons incapable of managing their own affairs .... They are fully entitled to avail themselves of federal and provin cial laws and of our judicial system as a whole to enforce their rights, as they are indeed doing in the case at bar" (see Apsassin v. Canada (Department of Indian Affairs and Northern Development)). 6
It is well known that there are strong views to the effect that the Indian Act ought to be abol ished and the Department of Indian Affairs be scrapped, to wit a recent report of the Canadian Human Rights Commission, but the Act is still on the books and the Minister is still vested with vast powers and responsibilities for the proper adminis tration of that Act.
The plaintiffs contend that the statement of claim raises a number of important issues, only one of which is the legality of the by-law in question. The plaintiffs want to assert their right to live together on the reserve by virtue of the Indian Act as amended in 1985 and the Canadian Charter of Rights and Freedoms. The Minister is responsible for the administration of the Indian Act on the reserve. He is also named superintend ent general of Indian Affairs. On that score, Mr. Justice Stone of the Federal Court of Appeal said as follows in Native Communications Society of B.C. v. Canada (M.N.R.) 7 :
A cursory examination of the Indian Act, R.S.C. 1970, c. 1-6, as amended reveals the extent of state involvement. I would note, for example, that it may have a say in: establishing of bands and the occupancy of reserve lands; the registration of Indian people, the holding, management and expenditure of Indian moneys; the compulsory taking or using, or the surren der of lands of a reserve; descent of property, wills and the distribution of property on intestacy; mental incompetency and guardianship; trading with the Indians; enfranchisement; schools. The statute is under the administration of the Minister of Indian Affairs and Northern Development who is also the superintendent general of Indian Affairs. It provides for a "superintendent" which is defined to include a commissioner, regional supervisor, Indian superintendent, assistant Indian su perintendent, etc. as well as the superintendent for a particular
[1988] 3 F.C. 20 (T.D.), at pp. 46-47. [ 1986] 3 F.C. 471 (C.A.), at p. 483.
band or reserve. From this elaborate set of provisions it may be seen that the state has assumed a special responsibility for the welfare of the Indian people. Unlike the vast majority of their fellow citizens they are rather a people set apart for particular assistance and protection in many aspects of their lives.
The plaintiffs claim that the Queen and the Minister have a duty to uphold the law. The rule respecting Indian status and band membership was substantially overhauled in 1985, so as to conform with section 15 of the Charter which came into force on April 17 of that year. Under the new rule, the band council has no power to determine who is a status Indian. It has the option, however, of adopting its own rules for band membership if it complies with the procedure and requirements set out in the Indian Act. These requirements include a prohibition of any interference with rights acquired by women who were reinstated as Indians and band members under the terms of the amend ments of the Act (see subsection 10(4)). The Mohawk Council of Kahnawake has not opted to adopt its own rules for band membership: it must therefore follow the rules set out in the Act. Both defendants may not disregard their plain duty to ensure that the Indian Act is applied and enforced.
The plaintiffs refer to a British Columbia Supreme Court decision, Glazer v. Union Contrac tors Ltd. & Thornton,' where it was found that a Minister of the Provincial Government was guilty of contempt of court for not having complied with the terms of an injunction of which he had infor mal notice. Norris J. held, at page 678, that "his actions throughout show a lack of a proper sense of responsibility in the observance of the law".
The plaintiffs also refer to a decision of our own Federal Court of Appeal, LeBar v. Canada, 9 wherein MacGuigan J. said as follows:
8 (1960), 25 D.L.R. (2d) 653 (B.C.S.C.).
9 [I989] 1 F.C. 603 (C.A.), at pp. 613 and 614.
Even if in the minds of its officials it has good reason to pause and consider, it is not enough for the Government to remain outwardly mute and disobedient in the face of a declaratory judgment, because such an apparent failure to obey the law is a ready occasion of scandal for the public. The Government must be seen to be obedient to the law. If it has some reason for uncertainty, it owes it to the principle of the rule of law to reveal its position publicly, through a legal challenge to its apparent duty as declared by the courts. In my view, the rule of law can mean no less. I therefore reject the appellant's conten tion that she had no obligation to follow the declaratory judgment in Macintyre.
The plaintiffs also make the argument that the Crown and the Minister are responsible for use by the band of moneys voted annually and disbursed through the Department of Indian Affairs. Both have a duty to see that those moneys are used for the benefit of all Indians who are members of the band and for the proper carrying out of the duties and responsibilities of the band council. In Finlay v. Canada (Minister of Finance), 10 three Federal Cabinet Ministers named as defendants in an action moved to have their names struck out on the ground that there was no nexus to the Crown. The Supreme Court of Canada found that the plaintiff Finlay had sufficient standing and a cause of action against them. In this case, it was alleged that the payments made by the Government of Canada to the Province of Manitoba under the terms of a federal-provincial cost-sharing agree ment, authorized by the Canada Assistance Plan, were illegal and the Province was not complying with the terms of the Plan. On the merits, the plaintiff Finlay won his case at all levels.
Thus, the plaintiffs affirm there is a fiduciary duty owed by the Queen and the Minister to the plaintiff Mary Deer, a duty to ensure that moneys disbursed by the band council are properly spent. They quote an American decision, Seminole Nation v. United States," where the U.S. Supreme Court found that:
In carrying out its treaty obligations with the Indian tribes the Government is something more than a mere contracting party ... it has charged itself with moral obligations .... Payment of funds at the request of a tribal council which, to the knowledge
" [19861 2 S.C.R. 607.
'' 62 S.Ct. 1049 (1942), at pp. 1054 and 1055.
of the Government officers charged with the administration of Indian affairs and the disbursement of funds to satisfy treaty obligations, was composed of representatives faithless to their own people and without integrity would be a clear breach of the Government's fiduciary obligation.
In recent years, the concept of the fiduciary duty owed by the Crown to the Indians has been greatly discussed and expanded upon by Canadian courts. ' 2
The plaintiffs contend that there is a positive duty owed by the Queen and the Minister to ensure that the plaintiffs' rights are respected under the Charter: both have a self-executory duty to take all necessary steps to prevent and eliminate any violation of their rights. The Charter is a purposive document. Its interpretation, "a gener ous rather than a legalistic one", is aimed at fulfilling the purpose of the guarantee and secur ing for individuals full benefit of the Charter's protection. 13
Consequently, it is not "plain and obvious" and "beyond doubt" that the plaintiffs have no case against the Queen and her Minister. It is well established that the courts ought to be careful and hesitant before striking out a statement of claim, or paragraphs from a statement of claim, as dis closing no reasonable cause of action. As men tioned by Madame Justice Wilson in Operation Dismantle Inc. et al. v. The Queen et al.: 14 "nor will the novelty of the cause of action militate against the plaintiffs".
This action against the two defendants is not frivolous. It may not be sustainable throughout but it is too early to limit the issue to the validity of a by-law. In recent years, this Court has been reti cent to strike out allegations concerning the fiduci ary obligations owed by the Crown to Indians. Thus, in two decisions involving the Blackfoot
2 R. v. Sparrow, [1990] 1 S.C.R. 1075; Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; and Desjarlais et al. v. Canada (Minister of Indian Affairs and Northern Develop ment), [1988] 2 C.N.L.R. 62 (F.C.T.D.).
" R. v. Big M Drug Mart Ltd. et al., [ 1985] 1 S.C.R. 295.
4 [ 1985]I S.C.R. 441, at p. 477.
Indian Band, my colleagues Reed J.' 5 on June 11 and Teitelbaum J. 16 on November 7, 1986 denied the Crown's applications for a strike out.
Consequently, the plaintiffs' appeal is allowed with costs in the cause.
15 Blackfoot Indian Band, No. 146 (Members) v. Canada and Blackfoot Indian Band, No. 146 (Chief and Councillors), [1987] 2 C.N.L.R. 63 (F.C.T.D.).
I 6 Blackfoot Indian Band, No. 146 (Members) v. Canada and Blackfoot Indian Band, No. 146 (Chief and Councillors) (1986), 7 F.T.R. 133 (F.C.T.D.).
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