T-66-86
Walter Patrick Twinn suing on his own behalf and
on behalf of all other members of the Sawridge
Band, John Daniel McLean suing on his own
behalf and on behalf of all other members of the
Sturgeon Lake Band, Wayne Roan suing on his
own behalf and on behalf of all other members of
the Ermineskin Band, Raymond Cardinal suing on
his own behalf and on behalf of all other members
of the Enoch Band, Bruce Starlight suing on his
own behalf and on behalf of all other members of
the Sarcee Band, and Andrew Bear Robe suing on
his own behalf and on behalf of all other members
of the Blackfoot Band (Plaintiffs)
v.
The Queen (Defendant)
INDEXED AS: TWINN V. CANADA
Trial Division, Strayer J.-Toronto, September
18, 19; Ottawa, October 31, 1986.
Practice - Pleadings - Motion to strike - Constitutional
validity of amendment to Indian Act re determination of band
membership - Test on motion to strike: whether plaintiff has
arguable case - Many arguable issues as to aboriginal rights
- Charter ss. 1 and 2(d) issues not to be rejected at this stage
- Federal Court Rules, C.R.C., c. 663, RR. 408, 409, 412,
415, 419(1)(a),(c),(d),(/), 474, 1711 - An Act to amend the
Indian Act, S.C. 1985, c. 27, ss. 6, 7, 10, 11 - Indian Act,
R.S.C. 1970, c. I-6, ss. 5 to 11, 12(1)(b), 13, 14, 109(2)
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 35 (as am. by Constitution Amendment Procla
mation, 1983, SI/84-102) - Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(d), 15, 25, 27,
28 - An Act providing for the organization of the Department
of the Secretary of State of Canada, and for the management
of Indian and Ordnance Lands, S.C. 1868, c. 42.
Practice - Parties - Standing - Constitutional validity of
amendment to Indian Act re determination of band member
ship - Parties entitled to bring action on behalf of respective
bands - Interest in constitutional behaviour by Parliament
Appropriate other members of band joined as plaintiffs in
class action - Non-accord of two band members not basis for
dismissing action - Federal Court Rules, C.R.C., c. 663, RR.
408, 409, 412, 415, 419(1)(a),(c),(d),(f), 474, 1711 - An Act to
amend the Indian Act, S.C. 1985, c. 27, ss. 6, 7, 10, 11.
Native peoples - Registration - Amendment to Indian Act
re determination of band membership - Whether inconsistent
with guarantee of aboriginal rights in Constitution Act, 1982,
s. 35 - Whether plaintiffs entitled to bring action on behalf of
respective bands - An Act to amend the Indian Act, S.C.
1985, c. 27, ss. 6, 7, 10, 11 - Indian Act, R.S.C. 1970, c. I-6,
ss. 5 to 11, 12(1)(b), 13, 14, 109(2) - An Act providing for the
organization of the Department of the Secretary of State of
Canada, and for the management of Indian and Ordnance
Lands, S.C. 1868, c. 42 - Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 35 (as am. by
Constitution Amendment Proclamation, 1983, SI/84-102) -
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.), ss. 1, 2(d), 15, 25, 27, 28 - Federal Court Rules,
C.R.C., c. 663, RR. 408, 409, 412, 415, 419(1)(a),(c),(d),(f),
474, 1711.
Constitutional law - Aboriginal peoples - Whether
amendment to Indian Act re determination of band member
ship in violation of Constitution Act, 1982, s. 35 - Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 35 (as am. by Constitution Amendment Proclama
tion, 1983, SI/84-102) - An Act to amend the Indian Act,
S.C. 1985, c. 27, ss. 6, 7, 10, 11 - Indian Act, R.S.C. 1970, c.
I-6, ss. 5 to 11, 12(1)(b), 13, 14, 109(2).
Constitutional law - Charter of Rights - Fundamental
freedoms - Freedom of association - Whether amendment
to Indian Act re determination of band membership impairing
freedom of association - Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(d), 15, 25, 27,
28 - An Act to amend the Indian Act, S.C. 1985, c. 27, ss. 6,
7, 10, 11 - Indian Act, R.S.C. 1970, c. I-6, ss. 5 to 11,
12(1)(b), 13, 14, 109(2).
On April 17, 1985, An Act to amend the Indian Act came
into force. Among other things, that Act modified the rules
relating to band membership. The plaintiffs, six Indians suing
for themselves and on behalf of their respective bands, chal
lenge the validity of these amendments. The plaintiffs argue
that the legislation infringes on the aboriginal right of Indian
bands to determine their own membership as guaranteed in
section 35 of the Constitution Act, 1982 or interferes with their
freedom of association, guaranteed by paragraph 2(d) of the
Charter.
This is an application by the defendant involving four
motions: (1) to strike out the statement of claim on the ground
that it discloses no reasonable cause of action or that it is
frivolous and vexatious; (2) to strike out the statement of claim
on the ground that the named plaintiffs are not entitled to bring
the action on behalf of their bands; (3) to strike out certain
parts of the amended statement of claim as offending the rules
of pleading found in Rules 408, 409 and 412 of the Federal
Court Rules; (4) to order the plaintiffs to provide further and
better particulars.
Held, motions (1) and (2) should be dismissed; motions (3)
and (4) should be allowed in part.
In a motion to strike on the ground that there is no reason
able cause of action, the Court need decide only whether,
assuming all the facts alleged in the statement of claim to be
true, the plaintiff has an arguable case. This is a motion to
strike, not a Rule 474 application for a preliminary determina
tion of a question of law, so that even if no question of fact
remained at issue, the Court was not required to decide on
issues of law. The Court has the discretion not to strike out the
statement of claim where it is not patently clear that the
plaintiff's claim is without legal justification. In the present
case, there are many disputable issues of law as to an aboriginal
right of the plaintiffs to control their band membership.
The argument based on freedom of association, guaranteed
by paragraph 2(d) of the Charter, is by no means patently
without merit. Furthermore, the invocation of section 1 of the
Charter by the applicant will almost certainly involve questions
of fact as to whether the 1985 amendments are reasonable and
demonstrably justified in a free and democratic society. And if
it cannot be said that the statement of claim discloses no
reasonable cause of action, then a fortiori it cannot be said that
it is frivolous or vexatious.
The plaintiffs are entitled to bring the action on behalf of
their bands and to bring the action as a class action. As was
said in the Thorson case "the right of the citizenry to constitu
tional behaviour by Parliament where the issue in such behavi
our is justiciable as a legal question" will support standing by a
plaintiff to seek a declaration of invalidity of a law. And it is
appropriate that the other members of the band be joined as
plaintiffs in a class action under Rule 1711 since the aboriginal
rights are, basically, communal rights.
That some members of the band may have a more tenuous
claim to participate in aboriginal rights does not justify dismiss
ing the action since the meaning of "aboriginal" in the Consti
tution Act, 1982 is far from clear and since the share of band
assets and the way of life of many people may be affected by
the outcome. Furthermore, in view of the fact that Treaty
rights are asserted, a class action seems necessary as a few
individuals could not sue to enforce such rights. A class action
does not require the consent of other members of the class.
Therefore, the accord or non-accord of two band members
could not be a basis for dismissing the action, especially since
those who do not wish to join as plaintiffs can be added as
defendants.
Some parts of the statement of claim should, however, be
struck out as immaterial and potentially vexatious, and the
plaintiffs are ordered to provide particulars where required.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Creaghan Estate v. The
Queen, [1972] F.C. 732 (T.D.); Dowson v. Government
of Canada (1981), 37 N.R. 127 (F.C.A.); Operation
Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441; Waterside Ocean Navigation Co., Inc. v. Interna
tional Navigation Ltd., [1977] 2 F.C. 257 (T.D.); Thor-
son v. Attorney General of Canada et al., [1975] 1
S.C.R. 138; Attorney-General for Ontario v. Bear Island
Foundation et al. (1984), 15 D.L.R. (4th) 321 (Ont.
H.C.); Sykes v. One Big Union (No. 2), [1936] 1 W.W.R.
237 (Man. C.A.); Sugden et al. v. Metropolitan Toronto
Board of Commissioners of Police et al. (1978), 19 O.R.
(2d) 669 (Ont. H.C.); Pawls v. R., [1980] 2 F.C. 18
(T.D.).
REFERRED TO:
Attorney General of Canada v. Lavell; Isaac v. Bedard,
[1974] S.C.R. 1349; Lovelace v. Canada, [1983] Can.
Human Rights Yearbook 305 (U.N.H.R.C.); The Queen
v. Oakes, [1986] 1 S.C.R. 103.
COUNSEL:
J. J. Robinette, Q.C., C. D. Evans, Q.C. and
June Ross for plaintiffs.
David D. Akman and Marion E. Green for
defendant.
SOLICITORS:
Davies, Ward & Beck, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Facts
This is an application involving four motions by
the defendant: (1) that the amended statement of
claim be struck out under Rule 419(1)(a) [Federal
Court Rules C.R.C., c. 663] on the ground that it
discloses no reasonable cause of action, and under
Rule 419(1)(c) on the ground that it is scandalous,
frivolous and vexatious; (2) that the amended
statement of claim be struck out under Rule
419(1)(a),(d) and (f) on the ground that the
named plaintiffs are not entitled to bring the
action on behalf of their bands; (3) that in the
alternative, certain paragraphs of the amended
statement of claim be struck out as offending the
rules of pleading found in Rules 408, 409 and 412;
and (4) that in the further alternative, the plain
tiffs be ordered to provide further and better par
ticulars pursuant to Rule 415.
The plaintiffs consist of six Indians suing on
their own behalf and on behalf of their bands (all
based in Alberta) as they were constituted prior to
April 17, 1985. On that date, there came into force
An Act to amend the Indian Act, S.C. 1985, c. 27
which purported to entitle certain additional per
sons to band membership and to change in various
ways the regime relating to band membership. The
plaintiffs commenced an action seeking a declara
tion that the amendments insofar as they are
inconsistent with the guarantee of aboriginal rights
found in section 35 of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] are of no force and effect. The plaintiffs,
therefore, are claiming an infringement of a con-
stitutionally-guaranteed aboriginal right of Indian
bands to determine their own membership. In the
alternative, the plaintiffs seek a declaration that
the imposition on the bands of additional members
pursuant to the amendments to the Indian Act,
without the consent of the bands is an interference
with their freedom of association as guaranteed in
paragraph 2(d) of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)].
The 1985 amendments change eligibility to be
registered under the Indian Act, R.S.C. 1970, c.
I-6. Prior to 1985, the Indian Act, sections 5 to 14
set out a scheme for determining who was an
Indian for the purposes of the Act. The most
renowned (or notorious) of these provisions was
paragraph 12(1)(b) which disentitled Indian
women who married non-Indian men from remain
ing registered as Indians, and thereby also disenti-
tled the children of such a union from Indian
status. This disentitlement did not apply to Indian
men who married non-Indian women and, in fact,
such a marriage conferred Indian status on their
non-Indian wives. This has, of course, been a point
of contention and public debate for some years.
Some disentitled Indian women took their case to
the Supreme Court of Canada in Attorney General
of Canada v. Lavell; Isaac v. Bedard, [ 1974]
S.C.R. 1349, unsuccessfully claiming that this law
conflicted with the Canadian Bill of Rights
[R.S.C. 1970, Appendix III]. When there was no
remedy in that forum, one such person took her
case to the United Nations Human Rights Com
mittee, established under the Protocol to the Inter
national Covenant on Civil and Political Rights
[Dec. 16, 1966, [1976] Can. T.S. No. 47] to which
Canada acceded in 1976, in Lovelace v. Canada,
[1983] Can. Human Rights Yearbook 305 which
was decided in her favour. The issue returned to
the political forum with the drafting and adoption
of the Charter, with the amendment to section 35
of the Constitution Act, 1982 in 1983 [Constitu-
tion Amendment Proclamation, 1983, S1/84-102]
and again upon the enactment of the 1985 amend
ments to the Indian Act which are in issue in this
case.
It appears that with the coming into force of
section 15 of the Charter on April 17, 1985,
Parliament felt obliged to change paragraph
12(1)(b) and other provisions of the Indian Act in
an effort to grant equal protection and benefit of
the law to both sexes. The resulting provisions are
found in the new sections 6 and 7 of the amended
Indian Act. Among those thereby enabled to
obtain Indian status are the following. Indian
women who married non-Indian men and who had
been excluded under paragraph 12(1)(b) or
ordered enfranchised under subsection 109(2) are
entitled to be registered as Indians pursuant to
paragraph 6(1)(c) upon application to the Regis
trar. The children of these women are also so
entitled upon such application. Also reinstated are
children who lost Indian status at age 21 because
both their mother and father's mother had gained
status through marriage to an Indian, and children
who had lost status through being "protested out"
upon proof that they were illegitimate offspring of
an Indian woman and a non-Indian man. Non-
Indian wives of Indian men are now excluded
under paragraph 7(1)(a) as are any children of
such women and non-Indian men.
The Registrar is empowered by section 11 of the
amended Act to grant membership in a band
(through inclusion in a Band List) to persons who
are newly entitled to be registered as Indians
under section 6 and who were, or their parents
were, a member of that Band at the time of loss of
Indian status.
An Indian band is entitled to assume control of
its own membership under section 10 by the estab
lishment of membership rules. It may not however
exclude members reinstated under the new section
6 for the reasons that they were reinstated. These
persons will therefore become permanent members
of the band unless they infringe some other band
rule in the future.
The amendments entitle certain other persons to
reinstatement on June 28, 1987 if the band either
does not assume control of its own membership
before then or does assume such control but con
sents to admit these people to membership. Per
sons who were voluntarily enfranchised pursuant
to an order made under subsection 109(1) and
were therefore excluded under subparagraph
12(1)(a)(iii) will be eligible. Persons who lost
status because, before 1951, they resided outside
Canada for more than five years without consent
of the Superintendant General, will be entitled to
reinstatement as will persons who lost status
before 1920 because they received a university
degree or entered into a profession. The children of
the above are also entitled, provided that they are
not excluded by section 7, as their parents may be
deemed registered posthumously.
In motion (1) the applicant, in effect the Gov
ernment of Canada, claims that there is no cause
of action disclosed by the statement of claim or
that it is frivolous, vexatious, etc. It has admitted,
for the purposes of this motion only, that an
aboriginal right to determine membership did exist
in the bands prior to 1868. However, it claims that
such right was extinguished either by the Indian
Act of 1868 [An Act providing for the organiza
tion of the Department of the Secretary of State
of Canada, and for the management of Indian and
Ordnance lands, S.C. 1868, c. 42] (which had
eligibility provisions for status similar to the later
Act as it stood prior to the 1985 amendment), or
by treaties subsequent to 1868. It contends that if
such aboriginal right was extinguished as a matter
of law prior to 1982, there is no cause of action
under section 35 of the Constitution Act, 1982.
Similarly, it argues that there is no cause of action
under paragraph 2(d) of the Charter as Parlia
ment has, since 1868, determined band member
ship and therefore bands are not consensual
"associations". A change in the requirements for
status therefore cannot infringe upon any freedom
of association. It is argued that if freedom of
association of band majorities is involved, this
cannot be protected to the prejudice of the free
dom of individuals to join the band. Further, it is
argued that the freedom protected by paragraph
2(d) must be qualified by the provisions of other
sections of the Charter such as sections 1, 15, 25,
27 and 28. The remaining contentions of the
Crown with respect to the other motions are more
technical and can best be addressed along with my
conclusions.
Conclusions
Motion (1)—I should first discuss the nature of
a motion to strike a statement of claim. The
principles applicable to such a motion are clearly
stated in Attorney General of Canada v. Inuit
Tapirisat of Canada et al., [1980] 2 S.C.R. 735,
at page 740:
... all the facts pleaded in the statement of claim must be
deemed to have been proven. On a motion such as this a court
should, of course, dismiss the action or strike out any claim
made by the plaintiff only in plain and obvious cases and where
the court is satisfied that "the case is beyond doubt": Ross v.
Scottish Union and National Insurance Co. ((1920), 47 O.L.R.
308 (App. Div.)).
The pertinent paragraphs of Rule 419(1) are as
follows:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
(c) it is scandalous, frivolous or vexatious,
With respect to the grounds stated in Rule
419(1)(a), it is important to note that it requires
that there be "no reasonable cause of action". The
significance of this language was clearly explained
by Pratte J. in Creaghan Estate v. The Queen,
[1972] F.C. 732 (T.D.), at page 736 where he said
that the inclusion of the word "reasonable" means
that the Court need not decide whether the suit is
truly founded in law but instead whether, assum
ing all the facts alleged in the statement of claim
to be true, the plaintiff has an "arguable case".
LeDain J. said in Dowson v. Government of
Canada (1981), 37 N.R. 127 (F.C.A.), at page
138 that to strike out on these grounds it must be
"plain and obvious that the action cannot suc
ceed". This statement was approved by the
Supreme Court of Canada in Operation Dismantle
Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441, at pages 450, 487. I understand this to mean
that a judge hearing such a motion should not
strike out a statement of claim just because he
does not think the plaintiff's case is sound in law,
if it is possible that a trial judge might uphold the
claim.
Counsel for the applicant in the present motion
appeared at times to take the position that if it
could be shown that there was no question of fact
remaining at issue (or at least not admitted for the
purposes of this motion), and if the remaining
issues in the action were questions of law only,
then the Court should decide those questions of
law on a motion to strike out the pleadings for
want of any reasonable cause of action. In other
words, the Court should decide the matter on such
a motion as if it were dealing with an application
under Rule 474 for a preliminary determination of
a question of law. To this end he admitted for the
purposes of this motion that the plaintiffs were the
relevant descendants of bands which had, prior to
1868 (the year of the adoption of the first Indian
Act) the aboriginal right to control the member-
ship in their respective bands. He contended, how
ever, that as a matter of law such rights had been
extinguished by treaty and by statute long before
the adoption of the Constitution Act, 1982, section
35 (which guaranteed "existing" aboriginal rights)
with the result that no such aboriginal right to the
control of band membership "existed" in 1982.
The question of extinguishment was argued at
some length by both sides.
I do not accept that such questions of law could
or must be determined on such a motion. I under
stand Rule 419(1)(a) to leave me with the discre
tion not to strike out the statement of claim where
it is not patently clear that the plaintiff's claim is
without legal justification, I am satisfied that there
are many disputable issues of law with respect to
the existence or non-existence, and the abridge
ment or non-abridgement, of an aboriginal right of
the plaintiffs to control their band membership.
Without in any way seeking to define the issues for
the trial, it appears to me that there are many
arguable legal issues such as the effect of the
various Indian Acts on such an aboriginal right
(assuming it exists as the applicant has done for
the purpose of this motion). Did those provisions
specifically extinguish band control? Did they
"occupy the field" with the effect of extinguish-
ment by implication of any control by the bands?
What is the proper interpretation of Treaties 6, 7
and 8 to which the ascendants of these plaintiffs
were allegedly parties? These are all matters
which must be canvassed at more length and with
greater care. The argument on this motion, even
though it took some three and one half days, did
not permit me more than an overview of some of
these matters.
Further, with respect to the relief sought by the
plaintiffs for a declaration that the 1985 amend
ments infringe their freedom of association as
guaranteed by paragraph 2(d) of the Charter, I
believe this is also an arguable claim which is by
no means patently without merit. It will be neces
sary to consider whether the Indian bands repre
sented by the plaintiffs are "associations" within
the meaning of the Charter. Must such associa-
tions be purely consensual? Can it be said that
bands which have included certain members by
force of law are consensual associations? Also, it is
contended by the applicant that to the extent, if
any, that there is impairment of freedom of asso
ciation, this is a limitation supportable by section 1
of the Charter or is in aid of the vindication of
other Charter rights such as those in section 15 or
section 28. Without now going into all of the
difficult issues which will be involved in the inter
pretation of the various Charter sections, suffice it
to say that the invocation of section 1 by the
applicant will almost certainly involve questions of
fact as to whether the 1985 amendments are
reasonable and demonstrably justified within the
meaning of that section. The applicant urges that
no evidence will be necessary here because the
justification of the 1985 amendments is self-evi
dent. It may be self-evident to the applicant but, as
pointed out by the respondents, even if the appli
cant chooses to meet the possible onus on it under
section 1 by means of argument alone, it will be
open to the respondents (plaintiffs) to rebut the
applicant's (defendant's) position with evidence.
Such evidence could go to the question of "propor-
tionality" and "impact" of the 1985 amendments,
such matters clearly being relevant and probably
requiring the introduction of evidence: see, e.g.
The Queen v. Oakes, [1986] 1 S.C.R. 103, at
pages 137-140.
It is therefore not possible to say that the state
ment of claim discloses no reasonable cause of
action and I am dismissing motion (1) as based on
paragraph 419(1)(a) of the Rules.
I am also dismissing motion (1) as based on the
grounds of paragraph 419(1)(c) of the Rules that
the statement of claim is "scandalous, frivolous, or
vexatious". If it cannot be said that the statement
of claim discloses no reasonable cause of action,
then a fortiori it cannot be said that it is frivolous
or vexatious. See Waterside Ocean Navigation
Co., Inc. v. International Navigation Ltd.,
[1977] 2 F.C. 257 (T.D.). (Counsel for the appli
cant abandoned during argument his assertion in
the notice of motion that the statement of claim
was also "scandalous".)
Motion (2)—In this motion the applicant asks
that an order be made under Rule 419(1)(a),(d)
and (f) that the statement of claim be struck out
on the grounds that:
(a) the named Plaintiffs are not entitled to bring the within
action on behalf of all the other members of their respec
tive Bands; and
(b) the Plaintiffs are not entitled to bring the within action as
a class action.
It will be noted that with respect to each of the
individual plaintiffs named in the style of cause he
sues "on his own behalf and on behalf of all other
members of the ... Band". The statement of claim
was amended on April 14, 1986 with the addition
of the following paragraph:
4A The other members of the Sawridge Band, the Sturgeon
Lake Band, the Ermineskin Band, the Enoch Band, the Sarcee
Band and the Blackfoot Band on whose behalf the said Walter
Patrick Twinn, John Daniel McLean, Wayne Roan, Raymond
Cardinal, Bruce Starlight and Andrew Bear Robe are suing,
respectively, do not include persons who purportedly have
become members of any of the said Bands by virtue of the
operation of sections 8 to 14.3, both inclusive, of the Indian
Act, as amended by section 4 of an Act entitled An Act to
Amend the Indian Act, S.C., 1985, c. 27.
The applicant contends, inter alia: that the
individual plaintiffs cannot sue on behalf of all of
the members of the band because they purport to
represent the bands as established by the Indian
Act, but pursuant to the current Indian Act these
bands include as well the very people whose entry
they are seeking to challenge and it is said they
cannot define the "band" for their own purposes so
as to exclude these people; that the bands also;
include people who may be status Indians but who
are not aboriginals and therefore cannot claim
aboriginal rights; that the plaintiffs cannot bring a
class action because members of the bands do not
have a common interest for reasons stated above;
and that the action cannot be maintained as a class
action because the plaintiffs have not specified the
names of the persons they represent nor do they
indicate in the amended statement of claim that
the persons they purport to represent have consent
ed to the action.
At the hearing counsel for the applicant also
sought to introduce two affidavits recently received
by him from members of the band indicating that
they were not in favour of this action. Counsel first
raised this matter on the third day of the hearing
and I refused to allow him to file the affidavits for
reasons which I will state below.
I indicated at the hearing that I would dismiss
this motion for the following reasons. What are
being sought here by the plaintiffs are declarations
that a certain law of Parliament is unconstitutional
because it abridges a freedom guaranteed by sec
tion 2 of the Charter and/or an aboriginal right
guaranteed by section 35 of the Constitution Act,
1982. I start with the proposition that, as Laskin J.
[as he then was] said in Thorson v. Attorney
General of Canada et al., [1975] 1 S.C.R. 138, at
page 163, "the right of the citizenry to constitu
tional behaviour by Parliament where the issue in
such behaviour is justiciable as a legal question"
will support standing by a plaintiff to seek a
declaration of invalidity of a law. It is possible,
although I need not and do not decide the matter,
that the six individual plaintiffs named in the style
of cause could have sought the declarations
requested in the statement of claim. In any event,
it is entirely appropriate that the other members of
the band other than the "returnees" introduced by
virtue of the 1985 amendments should be joined as
plaintiffs in a class action under Rule 1711. Basi
cally, aboriginal rights are communal rights and it
is therefore appropriate that those persons who
claim to belong to the relevant community to
which the right adheres should be joined as plain
tiffs in an action to vindicate those rights: see
Attorney-General for Ontario v. Bear Island
Foundation et al. (1984), 15 D.L.R. (4th) 321
(Ont. H.C.), at pages 331-332. It is fundamental
to the case of the plaintiffs that the aboriginal
right in question here—the right of each band to
control its own membership—is one which adheres
to the group as it was constituted before the
coming into force of the amendments on April 17,
1985. The plaintiffs are certainly entitled to frame
their action on that basis and it will remain to be
seen whether they can make out their case in fact
or in law. If they are able to do so, it will emerge
that the bands as they describe them in the amend
ed statement of claim are the legal bands. In effect
the applicant is contending that they should not be
allowed to sue on this basis because they may not
succeed in their action. This is a circular argument
which might itself be characterized as frivolous or
vexatious.
Nor would it be appropriate to dismiss the
action because some of the members of the band
may have a more tenuous claim to participate in
aboriginal rights. It is far from clear what the
meaning of "aboriginal" is as that word is used in
section 35 of the Constitution Act, 1982, and
many of the persons referred to by counsel for the
applicant as being non-aboriginal may come within
it. Apart from that, such persons may well have a
direct interest in the outcome of an action for a
declaration that the "returnees" may not be
admitted to the band, even if such plaintiffs are
not themselves aboriginals. It may well affect their
share of band assets and their way of life on the
reserve. Further, by the test of the Thorson case
and those which have followed it they surely at
least have a sufficient interest in ensuring "consti-
tutional behaviour by Parliament" in relation to
guaranteed aboriginal rights. I might also add
that, as the plaintiffs are asserting Treaty rights as
well, the class action seems necessary as a few
individuals could not sue to enforce such rights: see
Pawis v. R., [1980] 2 F.C. 18 (T.D.), at page 30.
Having reached these conclusions, I rejected the
introduction of the affidavits from two band mem
bers on the grounds that they raised new issues at
a very late date in the hearing. Had I thought they
could be determinative of the question of the
standing of the other plaintiffs, I might have
adjourned the matter for further argument and
perhaps cross-examination on the affidavits. How
ever, it appeared to me that the accord or non-
accord of two members of the band could not be a
basis for dismissing the action. It appears from the
authorities that in a class action it is not necessary
that the named plaintiffs obtain the consent of
other members of the class before commencing the
action: see Sykes v. One Big Union (No. 2), [1936]
1 W.W.R. 237 (Man. C.A.); Sugden et al. v.
Metropolitan Toronto Board of Commissioners of
Police et al. (1978), 19 O.R. (2d) 669 (Ont.
H.C.). If there are some members of the class who
do not wish to join in as plaintiffs, they can be
added as defendants: Sugden case, at page 673.
Most of the cases cited by counsel for the appli
cant where class actions had not been allowed
involved claims for damages or something akin to
damages where the specific interest of each
member of the class was somehow different. In my
view these cases have little or no application to an
action for a declaration that an Act of Parliament
is unconstitutional.
I therefore am dismissing motion (2), but with
out prejudice to the rights of any person to apply
to be excluded from the action or to be added as a
defendant. I also made it clear that if evidence
were to be brought—and there is no indication
that any such evidence exists—that this action is a
complete sham with little or no support in the
bands on whose behalf it is brought, the Court
might have to consider further an action to strike
the statement of claim. But that is not the situa
tion before me.
Motion (3)—This is a motion in the alternative
to strike certain portions of the statement of claim.
I am granting some parts of this motion and
following are my reasons.
I will order that the second sentence of para
graph 5 of the amended statement of claim be
struck out on the ground that it is not material and
is potentially vexatious because of the breadth of
matters which it raises. The Crown's "dealings
with the Indian Nations" is not directly relevant to
the claim at the beginning of this paragraph that
the plaintiff bands existed as distinct entities prior
to entering into Treaties. Whatever the second
sentence may mean by its reference to "Indian
Nations", it does not state a material fact that
would tend to prove directly the propositions set
out in the first sentence. Leave will be given to
amend the statement of claim by replacing the
second sentence with some allegation, if the plain-
tiffs think appropriate, that the Crown had recog
nized their bands prior to the making of Treaties
6, 7 and 8.
With respect to paragraph 9 of the statement of
claim, I would first observe that it appears to be a
statement of law with nothing more. While this
may not be necessary or appropriate, it is relatively
harmless. By Rule 412(2), it does not, of course,
imply any allegation of material facts to support
this conclusion of law. I will therefore not strike it
out, but I will return to this matter with respect to
motion (4) concerning the particulars because I
think the plaintiffs must clearly elect as to whether
they are going to treat this merely as a question of
law, and stand or fall on that, or whether they are
going to seek to aduce evidence to "prove" the
existence of this aboriginal right by practice and
custom. In the latter case they must give some
particulars and I think the issues must be nar
rowed to the facts relevant to the plaintiff bands.
These comments on paragraph 9 apply equally
well to paragraph 11 of the amended statement of
claim.
Paragraph 13, as a simple though vague state
ment of law, is not useful pleading but I fail to see
how it can prejudice the defendant. It can not
imply any allegation of relevant facts.
Paragraphs 14 and 15, again as interpretations
of a statute are rather peculiar in a document
which is supposed to focus on "the material facts
on which the party pleading relies". Recognizing
again, however, in accordance with Rule 412(2)
that they cannot be accepted "as a substitute for a
statement of material facts on which the conclu
sion of law is based" and that no allegation of fact
is to be implied from them, I see no harm in
leaving the paragraphs in the amended statement
of claim.
While it appears to me that paragraph 16 does
allege facts which are potentially relevant to con
stitutional issues such as the application of section
1 of the Charter, I shall not strike it out but have
more to say about it in dealing with the motion for
particulars.
Motion (4)—This is a motion in the alternative
for an order under Rule 415 to require the plain
tiffs to provide the particulars set out in the
demand for particulars dated May 22, 1986 and
served by the defendant on the plaintiffs. The
plaintiffs have failed to provide the particulars
demanded. The defendant further asks that it be
given 30 days after receipt of such particulars as
ordered to file its defence.
I am not going to order the particulars referred
to in paragraph 1 of the demand. These have to do
with knowledge of and consent to the action by the
band members. For the reasons set out earlier, I do
not believe it necessary for the plaintiffs to par
ticularize in their pleadings such information. This
paragraph also seeks particulars as to whether any
of the members of the plaintiffs bands are non-
aboriginals. This information is surely available to
the defendant and I doubt that any further infor
mation is needed by it in order to plead. It can of
course seek further specifics on examination for
discovery if such information can be shown to be
relevant to the pleadings.
Paragraph 2 of the demand seeks further and
better particulars in relation to paragraph 5 of the
amended statement of claim. I have already struck
out the second sentence of paragraph 5 but have
given the plaintiffs leave to amend this paragraph
by replacing the second sentence, if they wish, with
some allegation that the Crown had recognized
their bands prior to the making of Treaties 6, 7
and 8. If they so plead they should then specify the
nature, form, and approximate dates of such
recognition.
The particulars sought in paragraph 3 of the
demand are simply vexatious and have no rele
vance to the matters in issue. They will not be
ordered.
Paragraph 4 of the demand seeks particulars
with respect to paragraphs 9 and 12 of the amend
ed statement of claim. With respect to paragraph
9 of the amended statement of claim, I have
already indicated with respect to motion (3) that if
it is the intention of the plaintiffs to adduce any
evidence to prove the existence of the aboriginal
rights referred to therein, then they must provide
some particulars as to the institutions and prac
tices of bands of which they are the successors
upon which they may rely in asserting the continu
ing existence of an aboriginal right of each band to
control its own membership. With respect to para
graph 12 of the statement of claim I will not order
the particulars as requested because in my view
paragraph 12 only alleges a mixed proposition of
law and fact as to the interpretation of Treaties 6,
7 and 8. The plaintiff will, of course, be obliged to
show that they are the successors of the Indian
signatories of these treaties in the course of prov
ing the allegations in paragraph 5 of the statement
of claim.
With respect to paragraph 5 of the demand,
concerning paragraph 11 of the amended state
ment of claim, I will order particulars on the same
terms as I have done with respect to paragraph 9.
That is, if the plaintiffs intend to rely on this as
anything more than a general statement of law,
and instead use it as a basis for adducing evidence
as to the practices in institutions of their bands
with respect to control of membership prior to the
signing of Treaties 6, 7 and 8 respectively, then
they must provide particulars of those institutions
and practices. In my view this paragraph can be
seen as relevant, for the purposes of this action,
only to the extent that it alleges rights of these
bands, not of Indian bands in general.
With respect to paragraph 6 of the demand,
relating to paragraph 12 of the statement of claim,
I have already dealt above with that paragraph of
the statement of claim and am not ordering par
ticulars in respect thereto.
Nor will I order particulars of the relevant
Statutes of Canada as requested in paragraph 7 of
the demand. These are questions of law which will
be the subject of argument. One might question
the utility of paragraph 13 of the statement of
claim in this respect but it does at least explain in
a general way the position of the plaintiffs. While
there may be cases where a court should order
particulars as to statutes relied on, I cannot think
in the present case that the defendant will be taken
by surprise as to the relevant statutory provisions,
particularly after the hearing of these motions.
With respect to paragraph 8 of the demand,
where the defendant seeks particulars as to which
of the plaintiff bands if any have assumed control
of their own membership and the particulars of
any relevant bylaws adopted by them, this is surely
information already in the possession of the
defendant and I will order no particulars in this
respect.
With respect to paragraph 9 of the demand,
seeking further particulars in relation to paragraph
16 of the amended statement of claim, it appears
to me that what the defendant is seeking is more in
the nature of evidence than of facts. I am unable
to see that it will be impeded in pleading to this
paragraph by an absence of particulars and I will
therefore not order them. No doubt the allegations
in paragraph 16 of the amended statement of
claim can be the subject of extensive examination
for discovery.
With respect to paragraph 10 of the demand, I
will not order particulars as requested in sub-sub-
paragraph (a)(i) as the existence of predecessor
bands is adequately alleged in paragraph 5 of the
amended statement of claim and any additional
particulars being requested are more in the nature
of a search for evidence rather than facts. With
respect to sub-subparagraph (a)(ii) the defendant
must surely be in possession of sufficient informa
tion to plead in respect of this matter and further
information can be sought by discovery. With
respect to subparagraph (b) what the defendant is
seeking are essentially statements of law and/or
the evidence by which the plaintiffs will attempt to
prove the infringement of rights. Particulars will
not be ordered for these purposes.
As I am ordering some particulars to be pro
vided, I will as requested by the defendant allow
30 days from the date of service on it of the
particulars ordered for the defendant to file his
defence.
Costs—While the defendant has been successful
to a very limited degree in obtaining portions of
the relief sought in motions (3) and (4), the
majority of the hearing was devoted to motions (1)
and (2) in which the defendant was not successful.
Those were undoubtedly the more fundamental
and important motions. I am therefore ordering
that the defendant pay the costs of the entire
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.