T-2618-85
Chief Bernard Ominayak, Chief of the Lubicon
Lake Band of Little Buffalo Lake, Alberta, suing
personally and on behalf of the members of the
Lubicon Lake Indian Band and The Lubicon Lake
Band, a body of Indians recognized under the
Indian Act, of Lubicon Lake and Little Buffalo
Lake, Alberta (Plaintiffs)
v.
The Honourable William McKnight, Minister of
Indian Affairs and Northern Development and
The Queen in right of Canada (Defendants)
INDEXED AS: OMINAYAK V. CANADA (MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT)
Trial Division, Strayer J.—Ottawa, March 3 and
24, 1987.
Judicial review — Prerogative writs — Mandamus —
Motion to strike statement of claim seeking declaration and
mandamus to compel defendants to fund plaintiffs' legal
proceedings — Motion allowed concerning mandamus only —
Mandamus not issuing against Her Majesty eo nomine —
Mandamus lies against officer of government if by law
automatically obliged to perform specific function upon occur
rence of certain specific events, thereby creating duty owed to
identifiable person and no discretion in respect thereof —
Statement of claim not disclosing such duty — Statement of
claim referring to general responsibilities under departmental
Act and obligation of Crown under federal law including
statutory and common law — Pleading alleging sufficient
funds under Minister's control to assist plaintiffs but not
alleging statutory obligation re: funds — Funding provisions
in Appropriation Act and Estimates discretionary.
Practice — Pleadings — Motion to strike — Application to
strike statement of claim for not disclosing reasonable cause of
action — Statement of claim seeking declaration defendants
legally obliged to fund plaintiffs' legal proceedings and man-
damus against Minister and Her Majesty to pay amount —
Application dismissed, except prayer for mandamus struck —
Dismissal of prior motion for mandamus on ground that such
matter properly subject of statement of claim, and grant of
right for leave to apply to abridge times for exchanging
pleadings not precluding Court from deciding statement dis
closing no reasonable cause of action — Mandamus not issu
ing against Her Majesty eo nomine — Statement of claim not
disclosing specific duty of Minister to fund litigation in
present circumstances — Mandamus not issuing against
Minister — Remaining issues doubtful, but complex — Not so
plain and obvious that action for declaration cannot succeed
that it should be struck out — Federal Court Rules, C.R.C., c.
663, R. 419(1)(a).
Native peoples — Motion to strike statement of claim
seeking declaration defendants obliged to fund plaintiffs' legal
proceedings and mandamus to compel performance of duty —
Various court actions to secure plaintiffs' rights in certain
lands — Prayer for mandamus relief only struck — Indian
Act, R.S.C. 1970, c. I-6.
Crown — Practice — Mandamus not available against
Crown eo nomine: Reg. v. Lords Commissioners of the Trea
sury (1872), 7 Q.B. 387.
This is an application to strike out the statement of claim on
the ground that it does not disclose a reasonable cause of
action. The statement of claim seeks a declaration that the
defendants are legally obliged to fund the plaintiffs' legal
proceedings, and mandamus against both the Minister and Her
Majesty to pay this amount. The plaintiffs have been involved
in legal proceedings in various courts to secure their rights in
certain lands. They have incurred liabilities of over $1,400,000
and anticipate that a further $2,000,000 will be required.
Held, the application should be dismissed apart from striking
the prayer for mandamus relief.
Rouleau J. dismissed a motion for mandamus to require the
Minister to fund legal proceedings on the ground that such a
matter should be tried by way of a statement of claim. How
ever, he granted the right for leave to apply to abridge the
times under the Rules for exchanging pleadings. Those direc
tions do not preclude a further decision of the Court that that
statement discloses no reasonable cause of action. This is
additionally obvious because the plaintiffs, notwithstanding the
dismissal of their motion for mandamus proceeded to seek
mandamus in their statement of claim.
Mandamus cannot issue against Her Majesty eo nomine:
Reg. v. Lords Commissioners of the Treasury (1872), 7 Q.B.
387. Therefore mandamus will not lie against Her Majesty the
Queen in right of Canada. Mandamus can lie against an officer
of the government if by law he is automatically obliged to
perform a specific function upon the occurrence of certain
specific events, such obligation giving rise to a duty which he
thereby owes to some identifiable person and in respect of
which he has no discretion to exercise for which he is answer
able instead to the Crown or to Parliament. The statement of
claim does not disclose such a specific duty. As for a statutory
duty, the statement of claim only mentions the general respon
sibilities which the Minister has under his departmental Act,
and the obligation of the Queen under "federal law, including
statutory and common law" in respect of a fiduciary duty she
owes to the plaintiffs. Neither the Appropriation Act nor the
Estimates for the current fiscal year spell out a clear obligation
of the Minister to fund litigation upon the occurrence of such
events as have transpired here. Such funding provisions are
clearly discretionary.
The rest of the statement of claim should not be struck out.
The Court should not strike out any claim except "in plain and
obvious cases": Attorney General of Canada v. Inuit Tapirisat
of Canada et al., [1980] 2 S.C.R. 735. It is not so plain and
obvious that the plaintiffs cannot succeed with respect to their
action for a declaration that it should now be struck out. Their
claim may be doubtful. Claims under the Charter and the
Canadian Bill of Rights may well depend on their ability to
establish that the fiduciary duty of the defendants extends to
funding. Whether a general obligation of the Crown as fiduci
ary to provide funding for Court actions whenever requested
can be extrapolated from that principle is a complex question
that remains unanswered.
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.); Ominayak v. Canada
(Minister of Indian Affairs and Northern Development),
order dated December 12, 1985, Federal Court, Trial
Division, T-2618-85, not yet reported.
CONSIDERED:
Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335;
Kruger v. The Queen, [1986] 1 F.C. 3; (1985), 58 N.R.
241 (C.A.); Lubicon Lake Band (The) v. R., [1981] 2
F.C. 317 (T.D.); confd. 13 D.L.R. (4th) 159 (F.C.A.);
Ominayak v. Norcen Energy Resources Ltd. (1983), 29
Alta. L.R. (2d) 151 (Q.B.); affd [1985] 3 W.W.R. 193;
[1985] 1 S.C.R. xi; (1985), 58 N.R. 122.
REFERRED TO:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; Minister of Finance of British
Columbia v. The King, [1935] S.C.R. 278; [1935] 3
D.L.R. 316; Grand Council of the Crees (of Quebec) v.
R., [1982] 1 F.C. 599; (1981), 124 D.L.R. (3d) 574
(C.A.); Reg. v. Lords Commissioners of the Treasury
(1872), 7 Q.B. 387.
COUNSEL:
James A. O'Reilly and Mark G. Peacock for
plaintiffs.
I. G. Whitehall, Q.C. for defendants.
SOLICITORS:
Byers, Casgrain, Montréal, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application to strike out
the statement of claim, amended as of November
27, 1986 in the above action on the ground that it
does not disclose a reasonable cause of action.
By way of background to the present action, it
should be noted that in April, 1980 the plaintiffs
and others instituted legal proceedings in this
Court against the Crown in right of Canada, the
Crown in right of Alberta, and a number of oil
companies for declarations that the plaintiffs had
certain aboriginal rights in respect of a large area
of Northern Alberta, including the mineral rights
in such land, a declaration that any alienation of
rights to hydro-carbons under such lands by the
Crown in right of Alberta be declared unconstitu
tional and void, a declaration that Treaty No. 8 of
1899 did not effect the surrender of rights of the
plaintiffs, an order requiring the defendants in that
action to pay to the plaintiffs royalties on revenues
from all hydro-carbons extracted during a certain
period, plus all the revenues from any leases, etc.
of these hydro-carbons, and in the alternative that
those defendants pay compensation to the plain
tiffs of one billion dollars; declarations that the
Crown in right of Canada and the Crown in right
of Alberta are in breach of their constitutional and
statutory duties and are ordered to take the neces
sary steps to enable the Crown in right of Canada
to fulfill its obligations.
That action was commenced in this Court,
which on November 19, 1980 [Lubicon Lake Band
(The) v. R., [1981] 2 F.C. 317] (confirmed on
appeal May 5, 1981 [13 D.L.R. (4th) 159]) dis
missed the action against all defendants except
Her Majesty in right of Canada on the grounds
that this Court lacked jurisdiction against any of
the other defendants. What remained of that
action in this Court is still pending.
In February, 1982 the present plaintiffs and
others commenced action in the Court of Queen's
Bench of Alberta against Her Majesty the Queen
in right of Alberta and against a number of oil
companies to assert their alleged aboriginal or
treaty rights in respect to the same matters. They
sought, and were refused, an interim injunction in
the Alberta Court of Queen's Bench (Ominayak v.
Norcen Energy Resources Ltd. (1983), 29 Alta.
L.R. (2d) 151, and this decision was upheld by the
Alberta Court of Appeal ([1985] 3 W.W.R. 193),
with leave to appeal being refused by the Supreme
Court of Canada ([1985] 1 S.C.R. xi; (1985), 58
N.R. 122).
In November 1985, the present plaintiffs
applied in this Court for a writ of mandamus to
require the then Minister of Indian Affairs, the
Honourable David Crombie,
... to provide Applicants by way of a grant, advance or loan
forthwith a total amount of $2,250,000 to be used by Appli
cants for the discharge of its debts incurred in connection with
the court proceedings and for the future ...
That is, they sought funding to support their other
proceedings in both this Court and the Alberta
Court of Queen's Bench. On December 12, 1985
Rouleau J. of this Court dismissed that motion
[Ominayak v. Canada (Minister of Indian Affairs
and Northern Development), T-2618-85, not yet
reported], essentially on the ground that man-
damus was not an appropriate remedy and that
such a matter should be tried by way of a state
ment of claim. The plaintiffs then filed a statement
of claim in this Court on April 15, 1986 seeking
both a declaration and mandamus to the effect
that the defendants are obliged to provide "by way
of a grant, advance or loan" the amount of
$2,250,000 and that the defendant the Honourable
David Crombie should be ordered to so provide
that amount. It will be noted that in that proceed
ing, unlike the application for mandamus, Her
Majesty the Queen in right of Canada was added
as a defendant. This statement of claim was exten
sively amended on November 27, 1986 and it is the
statement so amended which is in question before
me. The relief sought continues to be a declaration
that the defendants have the legal obligation to
provide the plaintiffs "by way of a grant, advance
or loan" funds to enable the plaintiffs to carry on
their various legal proceedings, and mandamus
against both the present Minister, the Honourable
William McKnight, and her Majesty, to pay this
amount. The amount sought has now grown from
$2,250,000 to $3,400,000. Paragraph 26 of the
statement of claim, which for present purposes I
must assume to be true, states that the plaintiffs
have so far incurred unpaid liabilities in these
various proceedings in excess of $1,400,000 and
anticipate that a further $2,000,000 will be
required for them to carry on their actions.
Whereas the plaintiffs in the present action
consist only of the chief and members of the
Lubicon Lake Band and the Band itself which is
stated to be "a body of Indians under the Indian
Act", the original action in this Court, T-2048-80,
was brought not only on behalf of the Band but
also on behalf of "all the members . .. of the Cree
Community of Little Buffalo Lake" and the state
ment of claim in that case indicates that approxi
mately one-half of the individual plaintiffs therein
are persons not registered under the Indian Act
[R.S.C. 1970, c. E-6] but are of Cree ancestry.
The action in the Court of Queen's Bench of
Alberta is brought, inter alia, on behalf of
all the 150 members of the Lubicon Lake Band and 100 other
native members of the Cree community of Little Buffalo Lake
as well as on behalf of certain individual claim
ants. What significance the variations in the plain
tiffs from case to case may have is for future
consideration but it should be noted that the right
to funding from the federal treasury for the pros
ecution of the other two cases is being asserted in
the present case only on behalf of certain of the
plaintiffs in those other two cases.
It may also be noted that the claims submitted
on behalf of the plaintiffs in the other actions are
somewhat varied, such as that their ancestors were
not parties to Treaty No. 8 and thus their aborigi
nal rights were not extinguished, or in the alterna
tive that if they were parties they have yet to
receive the lands that were to be reserved for them
pursuant to that treaty.
Before dealing with the substance of the motion,
I should deal with a point which was raised by
counsel for the plaintiffs-respondents to the effect
that Rouleau J. in the mandamus application had
already dealt with the question of whether the
plaintiffs have a reasonable cause of action and
had recognized that they have such a cause. This
argument was based on statements in the order of
the learned Motions Judge in which he
granted the right to make application to this Judge with respect
to abridging times provided for under the Rules for the
exchange of pleadings and the conducting of examinations for
discovery or cross-examination of affidavits.
Rouleau J. also in his order granted leave to the
parties to submit a unilateral application for a
special trial date.
I do not interpret those directions as precluding
a further decision by this Court, after a statement
of claim has been filed, to the effect that that
statement discloses no reasonable cause of action.
It is not necessary for me to consider the founda
tion or scope of the leave given, upon dismissal of a
motion for mandamus, to amend the proceedings
into a statement of claim. But I think it is clear
that it does not preclude the statement of claim
being attacked, once its full dimensions are seen,
on the ground that it discloses no cause of action.
This is additionally obvious because the plaintiffs,
notwithstanding the dismissal of their motion for
mandamus on the ground that it was an inappro
priate remedy, proceeded to seek mandamus as
one of the forms of relief in their statement of
claim.
The principles applicable to a motion under
paragraph 419(1)(a) of the Rules [Federal Court
Rules, C.R.C., c. 663], to strike out an action on
the grounds that it discloses no reasonable cause of
action, are well known. In Attorney General of
Canada v. Inuit Tapirisat of Canada et al., [1980]
2 S.C.R. 735 the Supreme Court confirmed that
all the facts pleaded in the statement of claim
must be deemed to have been proven and the
Court should not dismiss the action or strike out
any claim except "in plain and obvious cases" and
where "the case is beyond doubt". As stated by
Pratte J. in Creaghan Estate v. The Queen, [ 1972]
F.C. 732 (T.D.), at page 736 the reference in the
Rules of this Court to there being "no reasonable
cause of action" means that the Court is not
expected to decide whether the suit is truly found
ed in law but simply whether the plaintiff has an
"arguable case". See also Operation Dismantle
Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441, at pages 450 and 487.
With respect to the claim for relief for man-
damus, I am satisfied, for reasons similar to those
of Rouleau J., that such a claim cannot succeed on
the basis of these pleadings and should be struck
out. It is of course well established law that man-
damus cannot be issued against Her Majesty eo
nomine: see e.g., Reg. v. Lords Commissioners of
the Treasury (1872), 7 Q.B. 387, at page 394.
Therefore mandamus will not lie against Her
Majesty the Queen in right of Canada. It is equal
ly clear that mandamus can lie against an officer
of the government if by law he is automatically
obliged to perform a specific function upon the
occurrence of certain specific events, such obliga
tion giving rise to a duty which he thereby owes to
some identifiable person and in respect of which he
has no discretion to exercise for which he is
answerable instead to the Crown or to Parliament:
see, e.g., Minister of Finance of British Columbia
v. The King, [1935] S.C.R. 278; [1935] 3 D.L.R.
316; Grand Council of the Crees (of Quebec) v. R.,
[1982] 1 F.C. 599; (1981), 124 D.L.R. (3d) 574
(C.A.). The statement of claim here discloses no
such specific duty owed to the plaintiffs. As for a
statutory duty, the statement of claim only men
tions the general responsibilities which the defend
ant Minister has under his departmental Act, and
the obligation of the defendant Her Majesty the
Queen in right of Canada under "federal law,
including statutory and common law" in respect of
a fiduciary duty she owes to the plaintiffs. In
paragraph 25 the statement of claim alleges that
the defendant Minister has under his authority
and control sufficient funds appropriated by Par
liament to assist the plaintiffs financially in the
conduct of their legal proceedings. It is not even
suggested that the Minister has a statutory obliga
tion to deliver particular amounts of money to
particular Indians or groups of Indians whenever
they choose to commence litigation. It was brought
to my attention by both counsel that in the Appro
priation Act No. 2, 1986-87 [S.C. '1986, c. 28],
Item L-55 of the Schedule is described as follows:
Loans to native claimants in accordance with terms and condi
tions approved by the Governor in Council for the purpose of
defraying costs related to research, development and negotia
tion of claims $14,303,000
Also in the Main Estimates for 1986-87 there was
an item of $300,000 for "contributions to individu
als, Indian Bands and associations for the funding
of Indian test cases". I was further advised by
counsel that the plaintiffs had in fact received
funding for negotiations of their claim. Neither the
Appropriation Act nor the Estimates for the cur
rent fiscal year spell out a clear obligation of the
defendant Minister to pay $3.4 million, or indeed
any other sum, to the plaintiffs for funding litiga
tion, upon the occurrence of such events as have
transpired here. Such provisions as there are for
funding are clearly discretionary, except that
terms and conditions may be fixed by the Gover
nor in Council for loans for research and negotia
tion. The statement of claim does not even allege
that the plaintiffs have complied with any such
terms. I can therefore see no basis in the pleadings
for the claim for mandamus in the prayer for relief
and I strike it out.
I am not going to strike out the remainder of the
statement of claim, however. I emphasize that it is
not my function to decide as a matter of law
whether the plaintiffs can make out their claim. If
it is "plain and obvious" (to use the language
approved by the Supreme Court of Canada) that
they cannot succeed then I should strike out their
statement of claim. But if it is possible that a trial
judge might decide in favour of the plaintiffs then
I should not strike it out. I am unable to say that it
is so plain and obvious that the plaintiffs cannot
succeed with respect to their action for a declara
tion that it should now be struck out. It is not
impossible that a declaration in some form might
be given. I would certainly admit to serious doubts
about their claim. Essentially, they assert that the
defendants have a fiduciary duty to advance them
money for any litigation they choose to bring in
protection of aboriginal or treaty rights. They also
allege violation of Charter [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.)] rights under sections 7 and 15
on the basis that they are denied access to the
courts because of their poverty. For the same
reason they invoke paragraph 1(a) of the Canadi-
an Bill of Rights [R.S.C. 1970, Appendix III],
alleging a denial of due process with respect to a
deprivation of their property. It appears to me that
the Charter and Canadian Bill of Rights claims
may well be dependent on their ability to establish
that the fiduciary duty of the defendants extends
to funding their litigation. If it does not, then it
seems to me that they stand in the same position as
any other aspiring plaintiffs in our society who
want public funding for litigation they may wish to
bring in defence of alleged property rights.
With respect to the fiduciary duty itself, the
plaintiffs rely heavily on the decision of the
Supreme Court of Canada in Guerin et al. v. The
Queen et al., [1984] 2 S.C.R. 335, and, to a•lesser:
extent, the decision in Kruger v. The Queen,
[1986] 1 F.C. 3; (1985), 58 N.R. - 241 (C.A.). It
will be noted that these cases principally dealt with
the obligation of the Crown to deal with Indian
reserve land, surrendered to it or taken by expro
priation, in the best interests of the Indians.
Whether one can extrapolate from that principle a
general obligation of the Crown as fiduciary or, to
put it at its broadest, as trustee of the aboriginal
title in lands whose fee simple is now owned by a
province or by private parties, to provide funding
whenever requested by the beneficiary for the
latter to bring actions for the protection of the
trust res, remains to be seen. If such an obligation
in law is found, it could then also arguably sustain
the claim by the plaintiffs based on section 35 of
the Constitution Act, 1982 [Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] which guarantees
existing aboriginal rights.
Given the complexity of these questions it is not
possible for me to say that it is "plain and obvious"
that the plaintiffs have no reasonable cause of
action. I will therefore dismiss the application
apart from striking out the prayer for mandamus
relief. Costs will be in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.