COURT FILE NO.: CV-11-440069

DATE: February 26, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GRAND CHIEF DIANE KELLY, ON HER OWN BEHALF AND ON BEHALF OF ALL BENEFICIARIES OF TREATY 3; CHIEF ERIC FISHER, WABASEEMOONG INDEPENDENT NATIONS; CHIEF KIMBERLY SANDY-KASPRICK, NORTHWEST ANGLE #33 FIRST NATION; CHIEF SIMON FOBISTER, GRASSY NARROWS FIRST NATION; CHIEF PAMELA PITCHENESE, EAGLE LAKE FIRST NATION; CHIEF CHARLES MCPHERSON, COUCHICHING FIRST NATION

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA

Defendant

Robert J.M. Janes for the Plaintiffs

Paul Evraire, Q.C., Janet Brooks, and Diane Fernandes for the Defendant

HEARD: February 3, 2013

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION AND OVERVIEW

[1] The web page of Canada’s Department of Aboriginal Affairs and Northern Development says that “starting in 1701, in what was to eventually become Canada, the British Crown entered into solemn treaties to encourage peaceful relations between First Nations and non-Aboriginal people.” Given the passage of 312 years, one might have thought that Aboriginal people, non-Aboriginal people, the Crown, and the courts would have figured out the procedure to litigate a civil dispute about treaty rights. However, the motions now before the court and the modern common-law work-in-progress jurisprudence reveal that this optimistic thought would be wrong, and rather, there are uncertainties about the civil procedure for an Aboriginal rights claim.

[2] The action before the court is a proposed representation action to enforce the “maintain schools” part of Treaty 3 between Her Majesty the Queen (the “Crown”) and those who were at one time known as the Saulteaux Tribe of the Ojibway Indians at the Northwest Angle on the Lake of the Woods. The Plaintiffs allege that the Crown has breached Treaty 3, and the Plaintiffs allege that the Crown has breached its fiduciary duties to the beneficiaries of Treaty 3.

[3] The Plaintiffs are: (1) Grand Chief Diane Kelly, who was elected by the Anishinaabe Chiefs and Councillors to lead the Grand Council and to represent the Grand Council in its relationship with the Government of Canada; (2) Chief Eric Fisher, who is the Chief of the Wabaseemoong Independent Nations; (3) Chief Kimberly Sandy-Kasprick, who is the Chief of Northwest Angle #33 First Nation; (4) Chief Simon Fobisher, who is the Chief of Grassy Narrows First Nation; (5) Chief Pamela Pitchenese, who is the Chief of Eagle Lake First Nation; and (6) Chief Charles McPherson, who is Chief of Couchiching First Nation. Chiefs Kelly, Fisher, Sandy-Kasprick, Fobisher, Pitchenese, and McPherson are Anishinaabe and Aboriginal persons within the meaning of s. 35 of the Constitution Act, 1982 and Indians within the meaning of s. 91 (24) of the Constitution Act, 1867 and the Indian Act, R.S.C. 1985, c. I-5.

[4] There are three motions before the Court. First, the Plaintiffs seek an amendment to their Statement of Claim to replace three co-Plaintiffs. Second, pursuant to Rule 12.08 of the Rules of Civil Procedure, the Plaintiffs seek an order authorizing a representation action to have Grand Chief Warren White made the representative plaintiff for the collective that the Plaintiffs contend is the beneficiary of Treaty 3. Third, the Crown moves under Rule 21 to have the Plaintiffs’ action dismissed as non-justiciable and as not disclosing a reasonable cause of action.

[5] The Crown also submits that in the event that its Rule 21 motion is dismissed, then the Plaintiffs’ Rule 12.08 motion to constitute a representation action should also be dismissed because it fails the test for authorizing a representation action. Further, the Crown challenges Grand Chief White’s authority to represent the beneficiaries of Treaty 3. The Crown disputes that Chief White has been authorized to bring the action for the rights holders, which the Crown asserts are 28 Indian bands.

[6] To be more precise, in the first motion, the Plaintiffs bring a motion to amend their Statement of Claim to: (1) substitute for Grand Chief Kelly, Grand Chief Warren White, who was newly elected by the Anishinaabe Chiefs and Councillors to lead the Grand Council and to represent the Grand Council in its relationship with the Government of Canada; (2) to substitute for Chief Sandy-Kasprick, Chief Dave Paul, who is the Chief of Northwest Angle #33 First Nation; and (3) to substitute for Chief Pitchenese, Chief Arnold Gardner, who is the Chief of Eagle Lake First Nation. Like the chiefs they would replace, Chiefs White, Paul, and Gardner are Anishinaabe and Aboriginal persons within the meaning of s. 35 of the Constitution Act, 1982 and Indians within the meaning of s.91 (24) of the Constitution Act, 1867 and the Indian Act.

[7] But for its Rule 21 motion and its opposition to the Plaintiffs’ Rule 12.08 motion, the Crown would not oppose the various substitutions of co-Plaintiffs.

[8] In the second motion, pursuant to Rule 12.08 of the Rules of Civil Procedure, the current Plaintiffs ask that Grand Chief White be authorized to bring this action as a representation action on behalf of all beneficiaries of Treaty 3.

[9] The Crown resists the second motion. It disputes that Grand Chief White’s action satisfies the test for authorization as a representation action. Of the various criterion for a representation action order, the Crown submits that his action does not satisfy: (1) the cause of action criterion; (2) the representative plaintiff criterion, in particular because Grand Chief White is not the appropriate representative for the Treaty 3 rights holders; and (3) the preferable procedure criterion. In the last regard, the Crown submits that a test case to determine who is or are the Treaty 3 rights holder would be the preferable procedure to a representation action under Rule 12.08.

[10] As for its own motion pursuant to Rule 21, the Crown submits that the Plaintiffs’ action should be dismissed. To be more precise, there are three branches to the Crown’s Rule 21 argument. The Crown submits: (1) that Grand Chief White’s claim of breach of fiduciary duty is untenable; (2) that his breach of treaty claim is non-justiciable because Grand Chief White’s grievance is political and not juridical; and (3) that the breach of Treaty 3 claim is non-justiciable because the proposed action is designed to be an investigation - a sort of judicial commission - about how the Treaty might have been breached by the Crown and, accordingly, the Crown does not know and cannot know the case it is being asked to meet, and, thus, the claim is non-justiciable.

[11] As I will explain below, my answer to these arguments is that although in the circumstances of this case, there could be a justiciable breach of Treaty 3 claim and although there are at least two procedural ways to have that breach of Treaty 3 claim adjudicated, nevertheless, the Plaintiffs’ proposed representation action is procedurally unsound and it is non-justiciable.

[12] In my opinion, it would be possible for Chief White to bring an action on behalf of the beneficiaries of Treaty 3 provided that: (1) he was authorized to do so by all of the 28 reserve bands (by band council resolutions); or (2) if he joined as party defendants those bands that did not authorize his representation action. The justiciable issue for the action would be some articulation of the issue whether the Crown is presently breaching the maintain schools promise of Treaty 3 at any of the 28 reserve communities.

[13] In my opinion, although Chief White is a proper party to advance the Treaty 3 claim, his proposed representation action as it is currently constituted wants for necessary parties and, as presently framed and pleaded, the action is not procedurally sound. Further, in my opinion, the action, as presently conceived, does not show a tenable claim for breach of fiduciary duty, and it is in other respects non-justiciable for the two reasons submitted by the Crown.

[14] Therefore, I conclude that the Plaintiffs’ proposed representation action fails to satisfy the cause of action criterion for authorization as a representation action. The claim, as presently conceived, also fails the representative plaintiff and preferable procedure criteria.

[15] Thus, for the reasons that follow, the Crown’s Rule 21 motion should be granted and the current Plaintiffs’ Rule 12.08 motion should be dismissed.

B. METHODOLOGY

[16] It may be helpful to the parties to understand the skeleton of the argument that underlies these Reasons for Decision and my substantive conclusions. The bones of the argument are as follows:

• The interpretation of a treaty between Canada and a group of Aboriginals and the declaration of rights under the treaty are justiciable issues. The determination of whether a treaty has been breached is a judiciable issue. (This point is not disputed.)

• Because the rights under Treaty 3 are communal rights and because the court’s decision about the treaty rights will bind all the rights holders, it is necessary that all the persons affected by the decision be before the court. The rights holders are necessary parties to the action, and there can be no opting-out.

• If a rights holder under a treaty is an Indian band, because it has the legal capacity to sue or to be sued, it can, by band council resolution, authorize an action against the Crown.

• If, however, the rights holders under a treaty are an unincorporated association, then the rights holders can sue only if the court authorizes a representation action.

• Thus, depending on who are the rights holders, the claim for a breach of a treaty may be an action by an Indian band as plaintiff and/or it may be a representation action by a representative plaintiff for the rights holders under the treaty.

• The test for a representation action is similar to but not identical with the test for a class action under the Class Proceedings Act.

• In the case at bar, there is a dispute about whom are the rights holders under Treaty 3. Grand Chief White would have it that the rights holders are the unincorporated association comprised of the beneficiaries of Treaty 3. The Crown, however, would have it that the rights holders are the 28 reserve bands, who have the capacity to sue or be sued without the necessity of the court authorizing a representation action.

• Thus, in the case at bar, to resolve the dispute about who is the rights holder and to have the proper parties before the court, requires that Grand Chief White either: (1) bring a representation action for the beneficiaries of Treaty 3 with the authorization of all of the 28 reserve bands (by band council resolutions); or (2) bring a representation action but join as a party defendant any band that does not authorize his representation action. Grand Chief White has done neither and, therefore, his proposed action is not procedurally sound.

• In addition to the problem of joining all the necessary parties, as currently framed, the action fails the test for a representation action because it fails the cause of action criterion, the representative plaintiff criterion, and the preferable procedure criterion.

• The case at bar fails these criteria because: (1) necessary parties are not before the court; (2) the breach of fiduciary duty claim is untenable; and (3) the breach of Treaty 3 claim is non-justiciable because: (a) it is political and not juridical and (b) it is inquisitorial and the Crown is not told the legal case it must defend against.

• With the necessary parties not being before the court and with the failure of the Plaintiffs to satisfy the test for a representation action, the Crown’s motion should be granted and the Plaintiffs’ motions should be dismissed without prejudice to the Plaintiffs commencing a properly fashioned action for the breach of Treaty 3.

[17] To develop this argument, My Reasons for Decision will be organized under the following headings:

• Introduction and Overview

• Methodology

• Factual Background

o The Negotiation of Treaty 3

o The Plaintiffs’ Claim on behalf of the Beneficiaries of Treaty 3

o The Authority of the Plaintiffs to Sue on behalf of the Beneficiaries of Treaty 3

• Aboriginal Rights, Aboriginal Title, and Aboriginal Treaty Rights

o Introduction

o Non-treaty Aboriginal Rights

o Treaty Rights

• The Breach of Fiduciary Duty Claim

• Representation Actions

• The Civil Procedure for Aboriginal Rights Claims and Breach of Treaty Claims

• The Justiciability of the Plaintiffs’ Breach of Treaty Claim

• Conclusion

C. FACTUAL BACKGROUND

1. The Negotiation of Treaty 3

[18] Prior to 1873, the lands and waters in and about the watershed of the Lake of the Woods were used and occupied by Anishinaabe people who were or are variously referred to as the Saulteaux, the Ojibway, the Boundary Waters Ojibway, or the Boundary Waters Anishinaabeg.

[19] Beginning in 1871, Canada appointed Treaty Commissioners for the purpose of negotiating a Treaty with the Boundary Waters Anishinaabeg. Treaty negotiations occurred in 1871 and 1872 without success.

[20] In 1873, Canada appointed three new Treaty negotiators, Chief Commissioner Alexander Morris, who was the Lieutenant Governor of the Northwest Territories, Commissioner Simon J. Dawson, and Commission Joseph Alfred Norbert Provencher.

[21] In September, 1873, the Commissioners and the Saulteaux meet at the Northwest Angle of Lake of the Woods to negotiate a treaty.

[22] The Plaintiffs plead that the Boundary Waters Anishinaabeg had a Grand Council, comprised of all of the chiefs and leaders of the Boundary Waters Anishinaabeg and the Plaintiffs plead that the Grand Council led the negotiations on behalf of the Boundary Waters Anishinaabeg.

[23] There were preliminary discussions on September 30, 1873, and substantive negotiations began October 1, 1873 and continued for three days. On the third day, the Anishinaabeg and the Crown agreed on the terms of Treaty 3.

[24] The Plaintiffs plead in their Statement of Claim that it was the intervention of the Chief of Lac Seul that saved the negotiations. The Chief of the Lac Seul suggested that providing schools for the Anishinaabe would be the way for the parties to come to an agreement. The Statement of Claim pleads:

21. On the second day of negotiations the parties reached an impasse and it appeared that the negotiations would fail for the third time. However, at this point in the negotiations, the Chief or Lac Seul intervened in the negotiations and proposed that a solution might be found provided that, as part of the arrangement reached between them, provision was made for the education of the Anishinaabe. This exchange was recorded by the newspaper reporter who was present as follows:

CHIEF (of Lac Seule) "I understand the matter that he asks; if he puts a question to me as well as to others, I say so as well as the rest. We are the first that were planted here; we would ask you to assist us with every kind of implement to use for our benefit, to enable us to perform our work; a little of everything and money. We would borrow your cattle; we ask you this for our support. I will find whereon to feed them. The waters out of which you sometimes take food for yourselves, we will lend you in return. If I should try to stop you--it is not in my power to do so; even the Hudson's Bay Company -that is a small power--I cannot gain my point with it. If you give what I ask, the time may come when I will ask you to lend me one of your daughters and one of your sons to live with us; and in return I will lend you one of my daughters and one of my sons for you to teach what is good, and after they have learned, to teach us. lf you grant us what I ask, although I do not know you, I will shake hands with you. This is all I have to say."

GOVERNOR—“I have heard and I have learned something. I have learned that you are not all of one mind. I know that your interests are not the same--that some of you live in the north far away from the river, and some live on the river, and that you have got large sums of money for wood that you have cut and sold to the steamboats; but the men in the north have not this advantage. What the Chief has said is reasonable; and should you want goods I mean to ask you what amount you would have in goods, so that you would not have to pay the traders' prices for them. I wish you were all of the same mind as the Chief who has just spoken. He wants his children to be taught. He is right. He wants to get cattle to hellp him to raise grain for his children. It would be a good thing for you all to be of his mind. and then you would not go away without making this treaty with me."

[25] In the result a treaty was consummated. The Crown drew up the terms of Treaty 3, and the treaty was read to the Anishinaabeg and explained to them by a representative of Canada.

[26] The parties to Treaty 3 are described as follows:

ARTICLES OF A TREATY made and concluded this third day of October, in the year of Our Lord one thousand eight hundred and seventy-three, between Her Most Gracious Majesty the Queen of Great Britain and Ireland, by Her Commissioners, the Honourable Alexander Morris, Lieutenant-Governor of the Province of Manitoba and the North-west Territories; Joseph Alfred Norbert Provencher and Simon James Dawson, of the one part, and the Saulteaux Tribe of the Ojibway Indians, inhabitants of the country within the limits hereinafter defined and described, by their Chiefs chosen and named as hereinafter mentioned, of the other part.

[27] Treaty 3 provides for the surrender of lands and the creation of reserves. (There are 28 reserve communities within the Tract 3 tract. Two are in Manitoba and 26 are in Ontario.) By way of summary:

• Treaty 3 recites that Her Majesty wished to open up for settlement a track of land occupied by the Saulteaux Tribe of the Ojibway Indians and to make a treaty with them and that her Majesty’s Commissioners had asked the Indians if the track of land by their respective bands to name certain Chiefs who should be authorized to conduct negotiations and to sign the Treaty. The recital continues that the Indians named persons as requested. The recital lists the Indians named. The recitals end by indicating that the Commissioners and the Indians agreed upon a Treaty.

• The terms of Treaty 3 are then set out. For their part, The Saulteaux Tribe of the Ojibbeway Indians surrender the defined track of land, embracing an area of fifty-five thousand square miles to Her Majesty. The Saulteaux Tribe promises to strictly observe the Treaty, to conduct and behave themselves as good and loyal subjects of Her Majesty and to obey and abide by the law.

• For her part, Her Majesty the Queen agrees to lay aside reserves for farming lands, due respect being had to lands at present cultivated by the said Indians, and also to lay aside and other reserves for the benefit of the Indians, to be administered and dealt with for them by Her Majesty’s Government of the Dominion of Canada, in such a manner as shall seem best, other reserves of land in the said territory.

• Her Majesty agrees to maintain schools for instruction in the reserves.

• Her Majesty gifts twelve dollars for each man, woman and child belonging to the bands to show the satisfaction of Her Majesty with the behaviour and good conduct of Her Indians. She agrees to conduct a census and to pay annually the sum of five dollars per head.

• Her Majesty agrees to pay each Chief duly recognized an annual salary of twenty-five dollars per annum, and each subordinate officer, not exceeding three for each band, fifteen dollars per annum. Each Chief and subordinate officer is to receive a suitable suit of clothing once in every three years and each Chief shall receive, in recognition of the closing of the Treaty, a suitable flag and medal.

• Her Majesty agrees to expend $1,500 per year in the purchase of ammunition and twine for nets for the use of the Indians. She agrees to supply agricultural tools (hoes, spades, ploughs, scythes, harrows, axes, saws, files, grind-stones, augers, etc.) in specified amounts to any band cultivating the soil for the encouragement of the practice of agriculture among the Indians.

• Her Majesty agrees that she will not allow intoxicating liquor to be sold on the reserves.

• Her Majesty agrees that Her Indians shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.

2. The Plaintiffs’ Claim on behalf of the Beneficiaries of Treaty 3

[28] The Plaintiffs plead that the original Grand Council continues and is comprised of the chiefs of the Anishinaabeg that are beneficiaries of Treaty 3. The Plaintiffs plead that the Grand Council serves to advance the interests of all of the communities who are part of Treaty 3. The Grand Council is led by a Grand Chief (Ogichidaa/Ogichidaakwe), who is elected by the Anishinaabe leaders (Chiefs and Councillors) and who speaks on behalf of the Grand Council and represents the Grand Council in dealing with the Crown and governments.

[29] With the Grand Chief as the representative plaintiff, the Plaintiffs seek to bring a representation action on behalf of the beneficiaries of Treaty 3, which would comprise the entirety of the Anishinaabe Nation. The Plaintiffs submit that the rights holder for the beneficiaries of Treaty 3 is the contemporary Grand Council that represents the 28 First Nation reserve communities of the Anishinaabe Nation. They submit that the Grand Council is the successor to the Grand Council that led the negotiation on behalf of the Boundary Waters Anishinaabeg in 1873.

[30] The Plaintiffs allege that taken as a whole, Treaty 3 imposes on Canada a duty to provide educational services to the beneficiaries of Treaty 3 and that Canada has breached the Treaty. In asserting that there is an education right under Treaty 3, the Plaintiffs rely on the record of the Treaty 3 negotiations, described above, and the text of Treaty 3, which states:

And further, Her Majesty agrees to maintain schools for instruction in such reserves hereby made as to Her Government of Her Dominion of Canada may seem advisable whenever the Indians of the reserve shall desire it.

[31] The Plaintiffs plead in paragraphs 36 and 37 of their Statement of Claim that delivering education services adequate to satisfy Treaty 3 requires Canada to take into account the special circumstances of the beneficiaries of Treaty 3. Paragraphs 36 and 37 state:

36. The delivery of educational services that are sufficient to satisfy the Treaty 3 Education Right therefore requires taking into account a number of special circumstances, including, without limitation:

(a) the beneficiaries of Treaty 3 are situated in a remote area;

(b) the beneficiaries of Treaty 3 who reside on reserve are in many cases situated in small and remote communities throughout the area covered by Treaty 3;

(c) the beneficiaries of Treaty 3 suffer from the disadvantage of having lower levels of educational achievement amongst the parents of pre-school and school aged children;

(d) the beneficiaries of Treaty 3 suffer from the fact that there are fewer Anishinaabe teachers and other educational professionals available from amongst their own populations (making it more difficult to recruit local teachers);

(e) the population of the Anishinaabeg generally, and the Treaty 3 beneficiaries in particular, is growing much more quickly than the Canadian population; and

(f) Treaty 3 beneficiaries do not have the benefit of existing educational infrastructure, such as schools and libraries at a level comparable to non­ Aboriginal communities.

37. The cumulative effect of these special circumstances is that:

(a) the costs of delivering a level of educational services that is consistent with the Treaty 3 Education Right are inevitably greater than those that would be incurred in delivering services to the general population;

(b) the provision of educational services consistent with the Treaty 3 Education Right requires the expenditure of capital funds in order to provide basic infra-structure that is not available in Treaty 3 communities;

(c) the delivery of educational services consistent with the Treaty 3 Education Right requires the development of a curriculum and strategy that accounts for the special social, economic and educational circumstances of the Treaty 3 communities; and respects the bicultural and bilingual nature of education negotiated in Treaty #3; and

(d) the costs of delivering educational services consistent with the Treaty 3 Education Right will grow and are growing at a rate faster than that experienced by the general population.

[32] The Plaintiffs plead that the promise of schools and schooling (education services) under Treaty 3 must meet certain criteria, including: (a) being available on the reserves where the relevant Treaty 3 beneficiaries reside; (b) being of a standard that is at least equal to that provided to non-Aboriginal people; (c) being delivered in a manner that is appropriate for and addresses the needs of the Anishinaabeg; i.e., the services should be holistic and support the Anishinaabe way of life; (d) having a reasonable prospect of achieving the goal of ensuring that beneficiaries of Treaty 3 have a level of education that will allow them to fully participate in the economy and political life of Canada without sacrificing their traditional way of life, including their language; and (e) being secular and holistic in character.

[33] The Plaintiffs plead that Canada is obliged to involve Anishinaabe people in designing programs, and to provide funding that is adequate and reasonable taking into account the above criteria.

[34] In paragraphs 31 of the Amended Statement of Claim, the Plaintiffs plead the manner of the Crown’s breach of Treaty 3 in the over a century that has passed since the making of treaty in 1873. The pleading states:

31. In the decades that followed the making of the Treaty, Canada approached the provision of education in a manner that was directed at advancing an agenda of Christianization and assimilation without ensuring that a high quality education was delivered to the beneficiaries of Treaty 3. In particular, the education programs delivered to the people of Treaty 3 in the period from 1873 to at least the mid-1970s:

(a) included significant components of religious education;

(b) discouraged or punished the use of Anishinaabemowin;

(c) provided vocational or trades education rather than a comprehensive academic education;

(d) tried to remove Anishinaabe from the pursuit of their traditional ways of life and attempted to eliminate their culture and values; and

(e) utilized students as child labour for the residential schools, performing tasks such as farming, janitorial, kitchen and laundry services for half or full school days, until at least the late 1950s, thereby forfeiting the students' education.

32. These failings were later compounded by the introduction of the residential schools program which, in addition to the above noted failings, removed children from their home environments, disrupting families and traditional harvesting activities and other cultural practices, and had the intention and effect of alienating children from their cultural origins among other significant harms.

33. This reflected a failure of Canada to ensure that proper funding was made available to ensure that appropriate educational resources, including school buildings, a comprehensive curriculum, and properly qualified and supervised teachers were made available to the beneficiaries of Treaty 3 in their communities. This failure to provide adequate resources furthermore failed to prevent disease and even death among the students.

[35] In paragraphs 38 and 39, the Plaintiffs plead the nature of the breaches of Treaty 3 since the 1970s. These paragraphs state:

38. Since the 1970s Canada has continued to breach the Treaty 3 Education Right in that it has failed to:

(a) provide sufficient funding to deliver education services to the Treaty 3 beneficiaries in or near their reserves that is reflective of the special circumstances of the Anishinaabeg described above;

(b) develop strategies and curricula that are designed to address the needs of the Treaty 3 beneficiaries given the special circumstances outlined above;

(c) provide sufficient infrastructure to deliver the educational services; and

(d) properly account for the higher rate of population growth amongst the Anishinaabeg.

39. This situation has been made worse by the fact that Canada has imposed de facto limits on the growth of the budget allocated for the delivery of education services, which makes it impossible to even maintain the already inadequate levels of educational services that are being delivered.

[36] In paragraph 40, the Plaintiffs set out their breach of fiduciary duty claim. Paragraph 40 states:

40. Treaty 3 provides Canada with discretion respecting the means by which the Treaty 3 Education Right is implemented. The Honour of the Crown is at stake in the implementation of the Treaty 3 Education Right and, given that this right represents an explicit treaty promise and that Canada has no conflict of interest with other duties owed to particular Canadians in respect of the delivery of this right, the duties imposed on Canada in these circumstances rise to that of fiduciary duties.

[37] The Plaintiffs allege that as a result of the breach of Treaty 3, the level of education achieved for Treaty 3 beneficiaries is well below that of the general Canadian population and other non-Aboriginal rural populations in Canada by measures such as: literacy, numeracy, general knowledge about academic subjects; elementary school completion; high school completion; and post-secondary attendance and completion.

[38] This Plaintiffs allege that the disparity in the level of education has had and continues to have significant adverse effects on the Treaty 3 beneficiaries with respect to economic opportunities and family and traditional social structures.

[39] The Plaintiffs claim:

(a) a declaration that Treaty 3 (as defined below) imposes on Her Majesty the Queen in right of Canada ("Canada") a duty to provide education services to the beneficiaries of Treaty 3 on their reserves (the "Treaty 3 Education Right") that are commensurate with those made available to the Canadian population generally;

(b) a declaration that Canada has breached the Treaty 3 Education Right by failing to provide adequate financial resources to maintain and provide the level of educational services required pursuant to Treaty 3;

(c.) a declaration that Canada is obliged to remedy its breach of the Treaty 3 Education right by providing adequate resources to maintain an adequate system of education that includes, but is not limited to, a local system of education based on reserve or near reserve;

(d) a declaration that Canada is obliged to consult with, accommodate and involve the Grand Council of Treaty 3 and the Indian bands comprising Treaty 3 for the purpose of determining how the Treaty 3 Education Right is to be implemented and how the breach of the Treaty 3 Education Right is to be cured;

(e) a declaration that Canada was and is imposed with a fiduciary duty to implement the Treaty 3 Education Right in a manner: (i) that is consistent with the expectations of Treaty 3 signatories; (ii) that takes into account the special circumstances of the Treaty 3 beneficiaries; (iii) that delivers a level of educational services that is comparable to that received by the general Canadian population; and (iv) that has a reasonable probability of achieving similar educational outcomes as are experienced by the general Canadian population;

(f) an Order that Canada report to the Court on a monthly basis on the steps it has taken to remedy the breach of the Treaty 3 Education Right;

(g) an Order that the Parties be at liberty to apply for such further directions or orders as may be necessary to ensure that the breach of the Treaty 3 Education Right is remedied;

(h) equitable damages in the amount of $100,000,000 for the breach of the Treaty 3 Education Right;

(i) pre- and post-judgment interest (as may be appropriate);

(j) costs of this action; and

(k) such further and other orders as this Honourable Court may deem just.

[40] In paragraph 29 of their factum, the Plaintiffs explain that they are seeking declaratory and supervisory relief that is collective in its nature. Paragraph 29 states:

29. The declaratory and supervisory relief sought are collective in nature. The Plaintiffs seek a declaration that Canada must consult with, accommodate and involve the Treaty 3 beneficiaries collectively, through their communities and through the Grand Council. They seek a supervisory order that ensures that the collective Treaty 3 Education Right is cured in a manner that is consistent with the Education Right and the expectation of the Treaty 3 beneficiaries as a collective. The damages claim is not a measure of individual or band losses but instead relates to harms to the collective arising from the Crown's failure to provide adequate education services, including primary effects on the collective such as the burdens associated with low literacy and numeracy such as the inability of members of the community to participate in workplaces and the economy, and the diminished ability for Anishinaabe people to become teachers and teach within their own communities. Other collective effects deserving of redress through damages include the denial of the opportunity to provide children with the benefits of early education and educational skills at home, as well as generally undermining the family and communal social structure of Anishinaabe traditional society. Issues of the form and nature of relief are also therefore common issues to the represented class.

3. The Authority of the Plaintiffs to Sue on behalf of the Beneficiaries of Treaty 3.

[41] The Grand Council that negotiated Treaty 3 continues to exist, and it has authorized a representation action on behalf of the beneficiaries of Treaty 3. There are, however, 28 reserve communities within the tract of land demarcated by Treaty 3, and the Indian band councils of those reserve communities have not individually authorized any action against the Crown.

[42] Pursuant to the Indian Act, s. 2(3) and 74 (1), (2), (3) and the Indian Band Council Procedure Regulations, C.R.C. 1978, c. 950, s. 18(1), decisions within each of the Treaty 3 reserve communities are made by a local governing body, typically a Band Council, through band council resolutions. While a Chief is one of the Band Councillors, the Chief holds no separate authority independently of the Band Council.

[43] The Grand Council consists of the chiefs of the Anishinaabeg; i.e., the chiefs of each of the 28 Treaty 3 communities. The Grand Council is led by a Grand Chief (Ogichidaa/Ogichidaakwe), who is elected by the Anishinaabe leaders (Chiefs and Councilors) and who speaks on behalf of the Grand Council and who represents the Grand Council in dealing with the Crown and governments. The current Grand Chief is Chief White, who was elected on May 30, 2012. The Plaintiffs state that the Grand Council’s mandate is to protect and foster Treaty 3 rights and to press for their implementation.

[44] Save for administrative matters, Grand Council decisions are made by a majority vote of a quorum of at least thirteen of the 28 members. For administrative decisions, the two Manitoba communities abstain from any resolutions made.

[45] In the case at bar, the Grand Council made a decision to support this litigation and authorized the Grand Chief to act as the representative plaintiff. The original designation of Chief Kelly and the other five plaintiffs to act in this litigation came from an executive committee of the Grand Council comprised of four Chiefs. This four-member executive committee also authorized the amendments to the statement of claim that would substitute Grand Chief White as the proposed representative plaintiff and would replace two of the other named plaintiffs.

[46] The Crown alleges, however, that any action to enforce the rights under Treaty 3 must be authorized and brought by the affected 28 Band Councils making a decision by band council resolution. The Crown submits that the reserve Bands have not authorized Grand Chief White to represent any of them, and, therefore, the action before the court is not an authorized action.

D. ABORIGINAL RIGHTS, ABORIGINAL TITLE, AND ABORIGINAL TREATY RIGHTS

1. Introduction

[47] As will be noted below, in addition to treaty rights, Aboriginal groups may assert claims for communal Aboriginal rights, which include, among other possible rights, rights to fish, to hunt, to farm, to harvest, to and to have Aboriginal title, which is a sui generis communal ownership interest in land. Aboriginal groups may also assert claims for breaches of fiduciary duties or duties owed because of the honour of the Crown, which claims I will discuss in the following section of these Reasons.

[48] In this section of my Reasons for Decision, I will discuss the law with respect to Aboriginal treaty rights. Before doing so, it is necessary for me to say just a little about non-treaty Aboriginal rights. This brief discussion is necessary to provide context and later to understand the procedural issues, in general, associated with representation actions to enforce Aboriginal rights, including treaty rights.

[49] Individual Aboriginals also may have claims for individual rights owed to them by the Crown and to rights under the Indian Act. For examples, the right to be a member of a particular First Nation, the right to be paid an annuity under a treaty, and the right to occupy an assigned part of a reserve may be personal rights that could be enforced by an individual claiming membership, payment, or occupation: Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655, [2004] A.J. No. 999, (Q.B.) at paras. 174-175.

[50] The case at bar is about communal treaty rights and about an alleged breach of a communal fiduciary duty owed to the beneficiaries of Treaty 3. It is not a case about non-treaty Aboriginal rights or individual rights under the Indian Act, but, nevertheless, to understand the case at bar, it is necessary to understand how treaty rights claims fit within the bigger context of Aboriginal rights claims.

2. Non-treaty Aboriginal Rights

[51] In R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075, the Supreme Court of Canada began the development of a modern analytical framework for considering a claim alleging a breach of a communal Aboriginal right.

[52] The development of the law about Aboriginal rights, including treaty rights, continued with: R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507; R. v. Adams, 1996 169 (SCC), [1996] 3 S.C.R. 101, R. v. Côté, 1996 170 (SCC), [1996] 3 S.C.R. 139; R. v. Gladstone, 1996 160 (SCC), [1996] 2 S.C.R. 723; R. v. Badger, 1996 236 (SCC), [1996] 1 S.C.R. 771; Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010; R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456; Mitchell v. M.N.R., 2001 SCC 33; R. v. Powley, 2003 SCC 43; R. v. Marshall; 2005 SCC 43; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69; R. v. Sappier, 2006 SCC 54; Ermineskin Indian Band and Nation v. Canada 2009 SCC 9; Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 5.

[53] The theory of Aboriginal title and Aboriginal rights is that European explorers considered that by virtue of the "principle of discovery" they were at liberty to claim territory in North America on behalf of their sovereigns: Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335 at p. 378; Tsilhqot'in Nation v. British Columbia, 2012 BCCA 285 at para. 166.

[54] The assertion of Crown sovereignty crystalized pre-existing Aboriginal rights, which survived the assertion of sovereignty; i.e., the common law recognized but did not create the pre-existing Aboriginal rights: Tsilhqot'in Nation v. British Columbia, 2012 BCCA 285 at paras. 167-168.

[55] Provided that they are not inconsistent with its basic principles, the common law incorporates the traditions and customs of the Aboriginal societies as rights, giving them legal force as part of the Canadian legal system: Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para 10; also paras. 9 to 12; R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507, at paras. 15 to 21, 28 to 31, 44, 46, 49, 50, 55 to 59.

[56] Aboriginal rights are communal rights, but the rights holder; i.e., the aboriginal group that shares the right may be a family, a clan, a descent group, a hunting party, an encampment, a band, a tribe, a confederacy or a first nation: Tsilhqot'in Nation v. British Columbia, 2012 BCCA 285 at paras. 51-57, 132-136.

[57] Aboriginal rights and treaty rights are collective rights, and the proper party with the standing to assert an aboriginal rights claim or a treaty rights claim is the collective that is the rights holder: Soldier v. Canada (Attorney General), 2006 MBQB 50; Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655, [2004] A.J. No. 999, (Q.B.).

[58] The Indian Act recognizes and statutorily defines a particular kind of aboriginal community or collective described as a “band.” Most Bands exist because they are associated with an Indian Reserve, and thus the identity of a Band is very closely linked to its Reserve, and a Reserve is very closely linked to a Band: Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655, [2004] A.J. No. 999, (Q.B.) at para. 179. However, an Indian band, is not necessarily the proper entity to assert an Aboriginal right: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193 at para. 77. An Aboriginal collective with an Aboriginal right may be different and independent from an Indian Act designation as an Indian Band: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada, supra at para. 77.

[59] The definition of the proper rights holder is a matter to be determined primarily from the viewpoint of the Aboriginal group itself in accordance with its customs and habits: Tsilhqot'in Nation v. British Columbia, 2012 BCCA 285 at para. 149; Brian Slattery"Understanding Aboriginal Rights" (1987) 66 Can. Bar Rev. 727 at p. 745. The determination of who is the rights holder may require a trial.

[60] Section 35 (1) of the Constitution Act 1982 provides that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35 of the Constitution Act, 1982 provides constitutional protection for Aboriginal rights and for treaty rights. Section 35 protects Aboriginal rights and treaty rights from extinguishment and from unjustifiable infringement by legislation or other government action. The test for infringement under s. 35(1) is the same for both Aboriginal and treaty rights: R. v. Badger, 1996 236 (SCC), [1996] 1 S.C.R. 771 at para. 79; R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at para. 64.

[61] Aboriginal rights became constitutionally entrenched with the Constitution Act, 1982, but the entrenchment does not have retroactive operation, or revive rights that were extinguished before 1982: R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075, at para. 23; R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at para. 48.

[62] Before 1982, the concept of Parliamentary supremacy was in place, and Parliament was able to vary Aboriginal or treaty rights if it chose: Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655 at para. 50.

[63] In contrast to Aboriginal rights and treaty rights, an Aboriginal’s rights as the beneficiary of a fiduciary duty are not constitutionally protected and can be limited or overridden by legislation: Ermineskin Indian Band and Nation v. Canada 2009 SCC 9.

3. Treaty Rights

[64] Aboriginal treaty rights are collective rights: R. v. Sundown 1999 673 (SCC), [1999] 1 S.C.R. 393 at para. 36.

[65] Aboriginal treaty rights flow from the language of the instrument and from extrinsic evidence as to the understanding of the words as they were understood by the signatories, whereas Aboriginal rights are determined largely by the pre-contact practices of the claimant Aboriginal group: R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456, at para. 12; Ermineskin Indian Band and Nation v. Canada 2009 SCC 9 at paras. 54-55; Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237 at para. 81.

[66] The starting point for the interpretation of a treaty is the examination of the specific words used in any written document, but the strict rules of contract or statutory interpretation do not apply to the interpretation of treaty relationships: R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at paras. 4-5, 6-14; R. v. Badger, 1996 236 (SCC), [1996] 1 S.C.R. 771 at para. 52.

[67] Extrinsic evidence of the historical and cultural context at the time of the negotiation of the treaty may be received even absent any ambiguity on the face of the treaty: Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010 at para. 87; R. v. Sioui, 1990 103 (SCC), [1990] 1 S.C.R. 1025 at p. 1045; R. v. Taylor and Williams (1981), 1981 1657 (ON CA), 62 C.C.C. (2d) 227, leave to appeal refused, [1981] 2 S.C.R. xi.

[68] Where a treaty was concluded verbally and afterwards written up by representatives of the Crown, the court will not ignore the oral terms: R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at para. 12; R. v. Badger, 1996 236 (SCC), [1996] 1 S.C.R. 771 at para. 52.

[69] Interpretations of treaties and statutory provisions which have an impact upon treaty or Aboriginal rights are approached in a manner which maintains the integrity of the Crown, which is assumed to honour its promises without any sharp dealing: Simon v. The Queen, 1985 11 (SCC), [1985] 2 S.C.R. 387 at para. 41; R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at paras. 49-51.

[70] The honour of the Crown infuses the processes of treaty making and treaty interpretation, and in making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of sharp dealing: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at paras. 19, 35.

[71] In interpreting the terms of a treaty, the honour of the Crown is always at stake, and the court’s approach is to assume that the Crown was acting honourably, and the court will imply terms to make honourable sense of the treaty arrangement to produce a result that accords with the intent of both parties although unexpressed: Simon v. The Queen, 1985 11 (SCC), [1985] 2 S.C.R. 387; R. v. Sundown, 1999 673 (SCC), [1999] 1 S.C.R. 393; R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at paras. 14, 43-44. The honour of the Crown infuses every treaty and the performance of every treaty obligation and may give rise to procedural rights (e.g. consultation) as well as substantive rights: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage, 2005 SCC 69 at para. 57.

[72] The duty to consult is grounded in the honour of the Crown: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage, 2005 SCC 69 at para. 51. Even where Aboriginal rights are unproven, governments must engage in consultations with groups asserting rights at a level commensurate with the strength of the claim: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

[73] The honour of the Crown is a fundamental concept that exists as a source of obligations independent of fiduciary duties and treaty obligations: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage, 2005 SCC 69 at para. 51. The Honour of the Crown is a general principle that underlies all of the Crown's dealings with Aboriginal peoples, but it cannot be used to call into existence undertakings that were never given: Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 at para. 13.

[74] The interpretation of the treaty "must be realistic and reflect the intentions of both parties, not just that of the Aboriginal group: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage, 2005 SCC 69 at para. 28. The task of a court when interpreting a treaty is to choose from, among the various possible interpretations of the common intention at the time the treaty was made, the one which best reconciles' the Aboriginals’ interests and those of the Crown: R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 at para. 14; R. v. Sioui, 1990 103 (SCC), [1990] 1 S.C.R. 1025, at p. 1069.

[75] Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians: Nowegijick v. The Queen, 1983 18 (SCC), [1983] 1 S.C.R. 29 at p. 36. Ambiguous treaty promises must be interpreted in a manner most favourable to the Aboriginal signatories: R. v. Badger, 1996 236 (SCC), [1996] 1 S.C.R. 771, at para. 9; Ermineskin Indian Band and Nation v. Canada 2009 SCC 9 at para. 64.

E. THE BREACH OF FIDUCIARY DUTY CLAIM

[76] The elements of a claim for breach of fiduciary duty are: (1) a fiduciary relationship; (2) a fiduciary duty; and (3) breach of the fiduciary duty. See Canadian Aero Services Ltd. v. O'Malley, 1973 23 (SCC), [1974] S.C.R. 592 at para. 616; Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377; Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 34 (SCC), [1989] 2 S.C.R. 574; Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99; Aronowicz v. Emtwo Properties Inc. (2010), 2010 ONCA 96, 98 O.R. (3d) 641 (C.A.).

[77] The modern law of the fiduciary obligations of the Crown towards Aboriginals began with Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335 at pp. 349, 355, 386 and continued with: R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075; Wewaykum Indian Band v. Canada, 2002 SCC 79; Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

[78] The Federal Crown has exclusive jurisdiction in respect of Aboriginal persons, under: s. 91(24) of the Constitution Act, 1867 (“Indians, and Lands Reserved for the Indians”); s. 35(1) of the Constitution Act, 1982; and the common law. From this jurisdiction emerges a fiduciary relationship between the Federal Crown and Canada’s Aboriginal peoples. See: Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

[79] Where by statute or by unilateral undertaking, the Crown has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the Crown becomes a fiduciary and equity will supervise the relationship by holding the Crown to the fiduciary's strict standard of conduct: Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335 at p. 384. As a general principle, the Government has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples: R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075 at para. 59.

[80] In the case at bar, there is no dispute that the Crown has a fiduciary relationship with the rights holders of Treaty 3.

[81] In Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at paras. 27-36, the Supreme Court of Canada held that, in order to establish a fiduciary duty, a claimant must plead and show that: (1) the fiduciary has undertaken to act in the best interests of, and with loyalty to, the beneficiary in respect of a cognizable legal or practical interest of the beneficiary; and (2) the fiduciary must exercise discretionary power over the legal or practical interest of the beneficiary. The Crown, however, is not an ordinary fiduciary because it represents many interests, some of which cannot help but be conflicting: Wewaykum Indian Band v. Canada, 2002 SCC 79 at para. 96; Ermineskin Indian Band and Nation v. Canada 2009 SCC 9.

[82] Although Canada is in a fiduciary relationship with aboriginal peoples, not all aspects of that relationship give rise to fiduciary duties. Misconduct by a fiduciary is not necessarily a breach of fiduciary duty.

[83] A party may have a fiduciary relationship but not every obligation in a relationship is a fiduciary one: Luscar Ltd. v. Pembina Resources Ltd. (1994), 1994 ABCA 356, 24 Alta. L.R. (3d) 305 (C.A.), leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 6. In Girardet v. Crease & Co., (1987), 1987 160 (BC SC), 11 B.C.L.R. (2d) 361 (S.C.) at p. 362, where the plaintiff sued her lawyer for negligence in advising her to settle a personal injury claim, Justice Southin stated that it was a perversion of words to say that carelessness in giving advice was a breach of fiduciary duty. In K.L.B. v. British Columbia, 2003 SCC 51 at para. 48, Chief Justice McLachlin stated: “Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis.”

[84] In Varcoe v. Sterling, (1992), 1992 7478 (ON SC), 7 O.R. (3d) 204 (Gen. Div.) at p. 229; affd. (1993), 1992 7730 (ON CA), 10 O.R. (3d) 574 (C.A.). Justice Keenan, J. put it simply: “But not every wrong done by a fiduciary is a breach of that duty. It must be a wrong which is a betrayal of that trust component of the relationship.” Justice Sopinka also made this point in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 34 (SCC), [1989] 2 S.C.R. 574 at p. 596, where he stated that fiduciary obligation “must be reserved for situations that are truly in need of the special protection that equity affords.” In Hodginson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377 at p. 405, Justice La Forest, stated:

However, while both negligent misrepresentation and breach of fiduciary duty arise in reliance-based relationships, the presence of loyalty, trust, and confidence distinguishes the fiduciary relationship from a relationship that simply gives rise to tortuous liability. Thus, while a fiduciary obligation carries with it a duty of skill and competence, the special elements of trust, loyalty, and confidentiality that obtain in a fiduciary relationship give rise to a corresponding duty of loyalty.

[85] In Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, two Indian Bands were involved in a decades-long process to establish reserves, and they both sued the Crown for breach of fiduciary duty. In a judgment written by Justice Binnie, the Supreme Court upheld the lower court judgments dismissing the Bands’ competing claims. Justice Binnie held that the government had not breached any fiduciary duty.

[86] For an Aboriginal group, to succeed with the claim for breach of fiduciary duty, the plaintiff must show that the Crown acted in an unconscionable or unreasonable way inconsistent with the interests of the Aboriginal claimant: Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335 at pp. 349, 383; Wewaykum Indian Band v. Canada, 2002 SCC 79 at paras. 86, 100. Merely showing a breach of statute, or even negligence, is not enough to show a breach of fiduciary duty: Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655 at para. 83.

[87] In the case at bar, it is alleged the Crown breached Treaty 3, but assuming this misconduct is proven, in my opinion, the Plaintiffs’ have not also pleaded any basis to assert a breach of fiduciary duty.

[88] The Crown submits that the Plaintiffs have pleaded no basis for disloyalty or the type of misconduct associated with a breach of a fiduciary duty. I agree with the Crown’s argument. In my opinion, in the case at bar, the Plaintiffs have not pleaded a tenable breach of fiduciary duty claim.

F. REPRESENTATION ACTIONS

[89] The conclusion that there is no tenable breach of fiduciary duty claim does not resolve the three motions before the court. The paramount matter before the court is the Plaintiffs’ motion pursuant to Rule 12.08 of the Rules of Civil Procedure asking that Grand Chief White be authorized to bring an action for breach of Treaty 3 as a representation action on behalf of all beneficiaries of Treaty 3. In this section of my Reasons, I will discuss the law about representation actions and in the next two sections, I will analyze whether or not Grand Chief White’s action should be authorized by a representation order.

[90] In Ontario, before the enactment of the Class Proceedings Act, 1992 and amendments to the Rules of Civil Procedure, including Rule 12.08, representation actions were recognized by the common law and equity and governed by Rule 75 of the Rules of Practice, which stated:

75. Where there are numerous persons having the same interest, one or more may sue or be sued or may be authorized by the court to defend on behalf of, or for the benefit or, all.

[91] A critical element of the former Rule 75 was the idea that the representation action is on behalf of or for the benefit of numerous persons. In other words, the result of a representation action is that numerous persons (most of whom would not actually participate in the litigation) would be bound by the outcome. The represented persons would be parties to the action just as much as if they had been named as co-plaintiffs or co-defendants.

[92] In General Motors of Canada Ltd. v. Naken, 1983 19 (SCC), [1983] 1 S.C.R. 72, the Supreme Court of Canada concluded that the common law’s representation action could not be employed for class actions and that a comprehensive legislation scheme was required. Class proceedings legislation was, in part, introduced to overcome the Supreme Court’s restrictive view of representation actions at common law. A class action is a type of representation action.

[93] In the Class Proceedings Act, 1992, the Legislature removed the common law’s obstacles to representation actions on behalf of numerous persons, and under s. 5(1) of the Act, the court shall certify a proceeding as a class proceeding if: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan.

[94] A key feature of a class action under the Class Proceedings Act, 1992, which I will return to below, is that class members may opt out of a certified class action.

[95] The enactment of class action legislation did not, however, make class actions the exclusive means to advance a claim on behalf of numerous persons. Rules 10 and 12, the Rules of Civil Procedure provide other types of representation actions. Although these rules have more details, for present purposes, it is sufficient to set out rules 10.01 (1)(2), 10.03 and 12.08, which state:

REPRESENTATION OF AN INTERESTED PERSON WHO CANNOT BE ASCERTAINED

Proceedings in which Order may be Made

10.01 (1) In a proceeding concerning,

(a) the interpretation of a deed, will, contract or other instrument, or the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(b) the determination of a question arising in the administration of an estate or trust;

(c) the approval of a sale, purchase, settlement or other transaction;

(d) the approval of an arrangement under the Variation of Trusts Act;

(e) the administration of the estate of a deceased person; or

(f) any other matter where it appears necessary or desirable to make an order under this subrule,

a judge may by order appoint one or more persons to represent any person or class of persons who are unborn or unascertained or who have a present, future, contingent or unascertained interest in or may be affected by the proceeding and who cannot be readily ascertained, found or served.

Order Binds Represented Persons

(2) Where an appointment is made under subrule (1), an order in the proceeding is binding on a person or class so represented, subject to rule 10.03.

RELIEF FROM BINDING EFFECT OF ORDER

10.03 Where a person or an estate is bound by reason of a representation order made under subrule 10.01 (1) or rule 10.02, an approval under subrule 10.01 (3) or an order that the proceeding continue made under rule 10.02, a judge may order in the same or a subsequent proceeding that the person or estate not be bound where the judge is satisfied that,

(a) the order or approval was obtained by fraud or non-disclosure of material facts;

(b) the interests of the person or estate were different from those represented at the hearing; or

(c) for some other sufficient reason the order or approval should be set aside.

PROCEEDING BY UNINCORPORATED ASSOCIATION OR TRADE UNION

12.08 Where numerous persons are members of an unincorporated association or trade union and a proceeding under the Class Proceedings Act, 1992 would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all.

[96] Class actions under the Class Proceedings Act, 1992 and representation orders under the Rules of Civil Procedure are alternatives, and one or the other may be preferable depending on the particular circumstances of the case: Paramount Pictures (Canada) Inc. v. Dillon, [2006] O.J. No. 2368 (S.C.J.); Sutherland and Scott v. Hudson's Bay Company, 2005 63803 (ON SC), [2005] O.J. No. 1455 (S.C.J.); Bellan v. Fillmore Riley LLP, 2012 MBCA 84.

[97] In Berry v. Pulley, 2011 ONSC 1378 at paras. 55-56, I compared and contrasted Rule 10 and the Class Proceedings Act, 1992 as follows:

55. .... Under the Act, class proceedings may be brought if the criteria of s. 5 of the Act are satisfied. In contrast, under rule 10.01(1), there is no certification test and representative actions may be brought for six types of proceedings (including the interpretation of instruments and the approval of an arrangement under the Variation of Trusts Act, R.S.O. 1990, c. V.1). In both class proceedings and also in proceedings under Rule 10, the court's order on the merits will bind the class members represented. In class proceedings, but not proceedings under rule 10.01, a putative class member has an opportunity to opt-out. Under the Act and under Rule 10, the court has the jurisdiction to approve settlements. Pursuant to rule 10.03, the court may relieve a person from the binding effect of an order approving a settlement; however, there is no comparable right under the Act, and settlements approved by the court are binding on class members without a right for them to be relieved from the binding effect of the court's order.

56. The utility of this comparison is that it reveals that representative proceedings in general involve a class member being bound to the outcome notwithstanding that he or she does not fully participate as a party. The comparison also reveals that in representative proceedings under the Act, the Legislature intended that class members would not have the right to be relieved of the binding effect of a settlement approved by the court. The Legislature did not, as it did with representative actions under Rule 10, reserve a right for class members to be relieved of a binding settlement, and this suggests, in turn, that if a class member wishes to have the autonomy to accept his or her own settlement, he or she must opt-out of the class proceeding.

[98] Perhaps encouraged by the enactment across the country of class action legislation, courts did not arrest the development of the common law’s version of a representation action. In 2001, the Supreme Court overruled its Naken decision.

[99] In Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, the Supreme Court accepted that the common law about representation actions could be developed to accommodate class actions. According to Western Canadian Shopping Centres Inc. v. Dutton, four conditions are necessary for a class action under the common law: (1) the class must be capable of clear definition; (2) there must be issues of fact or law common to all class members; (3) success for one class member on a common issue must mean success for all; (4) the class representative must adequately represent the class.

[100] In Ginter v. Gardon (2001), 2001 28052 (ON SC), 53 O.R. (3d) 489 at p. 494 (S.C.J.), Justice Nordheimer determined that the test for a representative order under Rule 12 of the Rules of Civil Procedure is consistent with the approach under the Class Proceedings Act, 1992. See also: MacDougall v. Ontario Northland Transportation Commission, [2004] O.J. No. 5852 (S.C.J.); Incorporated Synod of the Diocese of Huron v. Delicata, 2011 ONSC 4403 at para. 8-12; Ottawa Police Assn. v. Ottawa (City) Police Services Board, 2011 ONSC 7214.

[101] Since it is an element of any action that a reasonable cause of action be shown, it may be observed that the conditions of a common law representation action parallel or replicate the conditions for certification of a class action under the Class Proceedings Act, 1992.

[102] In the case at bar, as noted several times below and as will be discussed below, the Crown argues that the conditions for a representation order under Rule 12.08 are not satisfied.

G. THE CIVIL PROCEDURE FOR ABORIGINAL RIGHTS CLAIMS AND BREACH OF TREATY CLAIMS

[103] In this section of my Reasons for Decision, I will discuss the civil procedure for aboriginal rights claims and for breach of treaty claims, and I will explain my conclusion that the Plaintiffs’ action, as currently constituted, is deficient because necessary parties are not before the court.

[104] As I also will explain, there are, however, at least two ways that the procedural problems of the current action could be resolved.

[105] Claims to communal Aboriginal rights may be adjudicated in the context of a defence to prosecutions for regulatory offences: R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507; R. v. Gladstone, 1996 160 (SCC), [1996] 2 S.C.R. 723; R. v. Marshall, 2005 SCC 43, R. v. Sappier, 2006 SCC 54, but the preferable way to adjudicate claims to Aboriginal rights is in civil proceedings where all the proper and necessary parties are before the court.

[106] Judicial rulings as to the existence and nature of Aboriginal rights bind the rights-holding Aboriginal collective: R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507 at paras 46, 47, 52, 55, 56, 57, 69; Ontario v. Bear Island Foundation, [1996] 1 C.N.L.R. 16, (Ont. Gen. Div.), aff’d 1999 9307 (ON CA), [2000] 2 C.N.L.R. 13 (Ont. C.A.); Hiawatha First Nation v. Ontario (Minister of Environment), [2007] 2 C.N.L.R. 186 (Ont. Div. Ct.) at para 60; Perron v. Canada (Attorney General), [2003] O.J. No. 1348 (S.C.J) at paras 28-56; Oregon Jack Creek Indian Band v. Canadian National Railway Co., 1989 249 (BC CA), [1989] B.C.J. No. 211 (C.A.), aff'd 1989 4 (SCC), [1989] 2 S.C.R. 1069.

[107] Aboriginal rights and treaty rights are collective rights, and the proper party with the standing to assert an Aboriginal rights claim or a treaty rights claim is the collective that is the rights holder: Soldier v. Canada (Attorney General), 2006 MBQB 50; Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655, [2004] A.J. No. 999, (Q.B.).

[108] Persons belonging to the community to which the Aboriginal right adheres are necessary parties and should be joined as parties in an action to vindicate those rights: Oregon Jack Creek Indian Band v. Canadian National Railway Co., supra; Attorney-General for Ontario v. Bear Island Foundation. (1984), 1984 2136 (ON SC), 15 D.L.R. (4th) 321 (Ont. H.C.), at pages 331-332; Twinn v. The Queen, 1986 6882 (FC), [1987] 2 F.C. 450 at p. 462.

[109] In Oregon Jack Creek Indian Band v. Canadian National Railway Co., supra, thirty-six Indian chiefs commenced an action against the Canadian National Railway. The action was brought on behalf of the members of the respective Indian bands, and the representative plaintiffs alleged that CNR’s construction plans would constitute a trespass of their aboriginal title. The British Columbia Court of Appeal held that the communal aboriginal rights could be enforced by a representation action on behalf of the persons asserting the communal right.

[110] A class proceeding, which is a form of representation action, is inappropriate for communal Aboriginal rights or treaty rights claims because the individual class members would be entitled to opt out: Soldier v. Canada (Attorney General), 2006 MBQB 50 at paras. 70-71. Aboriginal groups are not “persons” for the purposes of class action legislation: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands) 2012 BCCA 193. A grouping of individual claims by Aboriginals may be the subject matter of a class action, but if the claims are to enforce communal Aboriginal rights, then a class action is not available, and the claim must be brought by the holder of the Aboriginal right.

[111] Pausing here, one might conclude that if a class action is not the appropriate means to prosecute an Aboriginal rights claim, then the alternative is only a representation order. That conclusion, however, would be incorrect. The subtle point is that the necessity of a representation order depends upon whether or not the holder of the aboriginal right or the aboriginal treaty claim has the capacity to be sued or sued. If the rights holder has the legal capacity to sue or be sued, then a representation order is unnecessary.

[112] Although not an incorporated body, Indian bands are statutory bodies with a variety of powers, and they are legal entities separate from their members with the status to sue or to be sued: Commandant v. Wahta Mohawks, [2006] O.J. No. 22 (Ont. S.C.J.); King v. Gull Bay Indian Band, [1983] O.J. No. 2152, 38 C.P.C. 1 (Ont. Co. Ct.); Bannon v. Pervais (1989), 1989 4315 (ON SC), 68 O.R. (2d) 276 (Ont. Co. Ct.); Clow Darling Ltd. v. Big Trout Lake Band (1989), 1989 4321 (ON SC), 70 O.R. (2d) 56 (Ont. Dist. Ct.); West Moberley First Nations v. British Columbia, [2007] B.C.J. No. 1929 (S.C).

[113] A band council may sue or be sued in its own name: Kucey v. Peter Ballantyne Band Council, 1987 986 (SK CA), [1987] S.J. No. 193, [1987] 3 W.W.R. 438 (Sask. C.A.); Whitebear Band Council v. Carpenters Provincial Council Saskatchewan, 1982 2582 (SK CA), [1982] S.J. No. 312, 135 D.L.R. (3d) 128 (Sask. C.A.).

[114] In the case at bar, if one assumes, as submitted by the Crown, that the rights holder of the Treaty 3 rights are the 28 Indian bands, then a representation order is not necessary for the 28 Indian bands, but with that assumption, the Plaintiffs’ action, as currently constituted, is defective because necessary parties, the 28 Indian bands, are not before the court.

[115] The Crown’s position raises a procedural problem. However, the problem can be solved. The available fixes for this problem are to join the Indian bands as party plaintiffs or to join them as party defendants. In either case, a representation order would not be necessary to join the Indian bands, because an Indian band has the legal capacity to sue or be sued.

[116] However, in order for a band to be added as a party plaintiff, it must have authorized its own joinder by a band council resolution. This requirement would not be an obstacle to the Plaintiffs action, because if a band council refused to join the Plaintiffs’ action, then the alternative would be for the Plaintiffs unilaterally to join the Indian band as a party defendant. In either case, a representation order would not be necessary.

[117] In the case at bar, if one assumes, as submitted by the Plaintiffs that the rights holder of the Treaty 3 rights are not the 28 Indian bands, then a representation order would be necessary. The Plaintiffs disagree with the Crown that the 28 Indian bands are the rights holders, and they assert, therefore, that the Indian bands are neither proper nor necessary parties. As noted earlier in this judgment, an Indian band, is not necessarily the proper entity to assert an Aboriginal right: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193 at para. 77. The proper party to assert a communal right might be an unincorporated association, in which case a representation order would indeed be necessary.

[118] In the case at bar, the Plaintiffs seek a representation order that Grand Chief be the representative plaintiff for the beneficiaries of Treaty 3, a group that is an unincorporated association. Where it is an Aboriginal family, clan, or other grouping that is the rights holder, there is the procedural problem that an unincorporated association does not have capacity to sue or be sued absent legislation providing otherwise, either expressly or by implication: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands) 2012 BCCA 193 at para. 65.

[119] Where the collective does not have the legal capacity to sue in its own name, then collective’s claims must be asserted by some individual members suing in a representative capacity on behalf of the group: Oregon Jack Creek Indian Band v. Canadian National Railway Co. (1989), 1989 249 (BC CA), 56 D.L.R. (4th) 404 (B.C.C.A.) at pg. 408, affirmed on other grounds 1989 4 (SCC), [1989] 2 S.C.R. 1069; Soldier v. Canada (Attorney General), 2006 MBQB 50 at para. 68. Thus, if the holder of the Aboriginal right is an unincorporated association without the capacity to sue, then the action must be brought by representation action; i.e., by a member of the group on behalf of all the members of the group: Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655, [2004] A.J. No. 999, (Q.B.) at paras. 173-181.

[120] In the case at bar, the competing positions of the parties presents an apparent dilemma because who is the rights holder is a matter that cannot be determined on an interlocutory motion and must be decided as a part of the Aboriginal rights treaty claim.

[121] The dilemma, however, is more apparent than real. The fixes to the procedural problems of ensuring that the proper and necessary parties are before the court remain available. If Grand Chief White’s breach of treaty claim is justiciable, a matter which I discuss next, he is able to bring an representative action on behalf of the beneficiaries of Treaty 3 provided that: (1) he was authorized to do so by all of the 28 reserve bands (by band council resolutions); or (2) if he joins as party defendants those bands that do not authorize his representation action.

[122] I conclude, however, that given the parties’ competing positions about who is the rights holder under Treaty 3, the Plaintiffs’ action as currently constituted is procedurally unsound.

H. THE JUSTICIABILITY OF THE PLAINTIFFS’ BREACH OF TREATY CLAIM

[123] For the purposes of this section of my Reasons for Decision, I will assume that all 28 Indian bands are joined as parties. This assumption removes any problems associated with necessary parties not being before the court. The issue then becomes whether Grand Chief Whites’ proposed action should be authorized as a representation action.

[124] The assumption that all the necessary parties are before the court does not remove the issue of whether the Plaintiffs’ action needs an order under Rule 12.08 because a representation order is necessary if the Plaintiffs’ submission is correct that the rights holders are not the 28 Indian bands.

[125] The conditions for a representation order have been described above. The Crown’s argument is that those conditions are not satisfied, because the Plaintiffs’ action in non-justiciable. The Crown argues that the cause of action, representative plaintiff, and preferable procedure conditions are not satisfied because the Plaintiffs’ dispute is non-justiciable.

[126] The Crown does not dispute that courts have the jurisdiction to interpret treaties between the Crown and Aboriginals, and courts have historically adjudicated whether a treaty has been breached by the Crown. The Crown does not dispute that in modern times, courts will adjudicate whether the Crown has by legislative action contravened s.35 (1) of the Constitution Act, 1982. Nevertheless, the Crown submits that Grand Chief White’s proposed representation action about the breach of Treaty 3 is non-justiciable.

[127] Relying on Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 5, and the judgment of Chief Justice Brenner in Canadian Bar Association v. B.C., 2006 BCSC 1342, [2007] 1 W.W.R. 331 at para. 49, additional reasons 2007 BCSC 182, [2007] 5 W.W.R. 381, aff’d 2008 BCCA 92, [2008] 6 WWR 262 (BCCA), leave to appeal refused (2008), 390 N.R. 381,the Crown submits that the Statement of Claim, as presently pleaded, essentially asks for a commission of inquiry with respect to more than 100 years of educational policy and service delivery. The Crown says that in the context of this inquisition, it is impossible for it to defend itself from the allegations that it breached Treaty 3.

[128] The Crown objects to the Plaintiffs’ approach for the same reason that Chief Justice Brenner criticized the plaintiff in Canadian Bar Association v. British, supra, where the Canadian Bar Association sought to establish that there was a constitutional right to legal aid. Chief Justice Brenner dismissed the action because the Bar Association did not have standing, which is a concept closely linked to justiciability. In dismissing the action, Chief Justice Brenner criticized the Bar Association for asking the court to conduct an inquiry on the subject of civil legal aid, to define a constitutionally compliant civil legal aid scheme, to order the defendant governments to implement the scheme, and to oversee the process to ensure compliance.

[129] In Lax Kw’alaams Indian Band v. Canada (Attorney General), supra, the Plaintiff sued to establish an Aboriginal right to fish for commercial purposes but without seeking an amendment of the pleadings, the Plaintiff sought to re-characterize the right as the lesser right to fish for trading purposes. The Supreme Court of Canada held that the judge made no error in refusing to allow the plaintiff to change the nature of its aboriginal rights claim. At paragraphs 40 and 45, Justice Binnie made the following comments about characterizing a claim for Aboriginal rights within the context of civil procedure:

40. The heart of the Lax Kw'alaams' argument on this point is that "before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre-contact practices and way of life of the claimant group" (A.F., at para. 57 (emphasis in original)). I would characterize this approach as a "commission of inquiry" model in which a commissioner embarks on a voyage of discovery armed only with very general terms of reference. Quite apart from being inconsistent with the jurisprudence that calls for "characterization of the claim" as a first step, the "commission of inquiry" approach is not suitable in civil litigation, even in civil litigation conducted under rules generously interpreted in Aboriginal cases to facilitate the resolution in the public interest of the underlying controversies. ….

41. To the extent the Lax Kw'alaams are saying that, in Aboriginal and treaty rights litigation, rigidity of form should not triumph over substance, I agree with them. However, the necessary flexibility can be achieved within the ordinary rules of practice. Amendments to pleadings are regularly made in civil actions to conform with the evidence on terms that are fair to all parties. The trial judge adopted the proposition that "he who seeks a declaration must make up his mind and set out in his pleading what that declaration is", but this otherwise sensible rule should not be applied rigidly in long and complex litigation such as we have here. A case may look very different to all parties after a month of evidence than it did at the outset. If necessary, amendments to the pleadings (claim or defence) should be sought at trial. There is ample jurisprudence governing both the procedure and outcome of such applications. However, at the end of the day, a defendant must be left in no doubt about precisely what is claimed.

[130] The Crown relies on Justice Binnie’s comments as disapproving of an approach that would make an aboriginal rights claim a commission of inquiry rather than a judicial determination of legal rights. The Crown submits that a commission of inquiry approach makes an aboriginal rights claim non-justiciable.

[131] For my part, as matter of jurisprudence, I would not take Justice Binnie’s comments as far as the Crown would take them in making a largely political dispute non-justiciable. Lax Kw’alaams Indian Band v. Canada (Attorney General), supra, was not a case about justiciability. That said, Justice Binnie’s comments are at least relevant to a discussion about justiciability, because justiciability concerns the institutional role and the institutional competence of courts where the governance of society and the implementation of the rule of law is shared. Therefore, the adversarial or inquisitorial nature of the dispute is a relevant consideration in determining justiciability.

[132] A justiciable issue is a question that is appropriate for judicial determination: Canada (Attorney General) v. Downtown Eastside Sex Workers United against Violence Society, 2012 SCC 45 at para. 30; Finlay v. Canada (Minister of Finance), 1986 6 (SCC), [1986] 2 S.C.R. 607at p. 632; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 73 (SCC), [1989] 2 S.C.R. 49, at pp. 90-91.

[133] Justiciability is a doctrine founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes. The courts do not have a monopoly on deciding all disputes. An inquiry into justiciability is a rule of law inquiry about whom amongst various law makers should decide particular types of disputes. In Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), supra at paras. 49-50, Chief Justice Dickson stated:

49. …. As I noted in Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441, at p. 459, justiciability is a "doctrine ... founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes", endorsing for the majority the discussion of Wilson J. beginning at p. 460. Wilson J. took the view that an issue is non-justiciable if it involves "moral and political considerations which it is not within the province of the courts to assess" (p. 465). An inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the polity.

50. …. There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.

[134] The case law reveals that justiciability is not a monolithic concept about a court`s jurisdiction, but is more generally about the role a law court should play in a society governed by the rule of law where the responsibility for making, interpreting, applying, and enforcing the law is a shared responsibility.

[135] In Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), supra, the Auditor General of Canada, sued the Minister and Deputy Minister of Energy, Mines and Resources and the Minister and Deputy Minister of Finance to obtain the records and Cabinet documents relating to the acquisition of Petrofina Canada Inc. by Petro-Canada, a Crown corporation. The Supreme Court upheld a decision that the Auditor General had no recourse to the courts and his or her remedy was to bring the matter to the attention of Parliament.

[136] In Levitts Kosher Foods Inc. v. Levin (1999), 1999 14818 (ON SC), 45 O.R. (3d) 147 (S.C.J.), a food seller challenged the authority of a council of orthodox rabbis to set standards for kosher products and the court stayed the action as not being justiciable. However, the Levitts case was distinguished in Gruner v. McCormack, (1999), 45 O.R. (3d) 147 (S.C.J.), where a Roman Catholic priest sued the Vice-Chancellor of the Archdiocese of Toronto for defamation and the nature of the case, including its claim for damages, went beyond pure matters of canonical law.

[137] In Jackson v. Canada (Customs and Revenue Agency), 2001 SKQB 377, [2001] S.J. No. 486 (Q.B.), the Court exercised its inherent jurisdiction to stay an action as vexatious when the plaintiff sued to advance a tax protest and the Court concluded that the dispute lacked a justiciable issue and was about political issues that belonged in the political arena and not in court.

[138] In Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215 (C.A.), affg (2000), 2000 22629 (ON SC), 47 O.R. (3d) 532 (S.C.J.). the Ontario Court of Appeal held that the Court did not have jurisdiction to review the advice given by the Prime Minister of Canada to the Queen about the conferral of honours on Canadian citizens. The dispute was not legal in nature but rather concerned the exercise of a prerogative power that was not judicially reviewable (except perhaps on constitutional grounds, which were not raised in the case).

[139] In Guergis v. Novak, 2012 ONSC 4579 (S.C.J.), where the plaintiff sued the Prime Minister and others for the tort of conspiracy based on her removal from cabinet and caucus, and her expulsion as a member of a political party, the court ruled that the claims were not justiciable on the grounds of Crown prerogative and parliamentary privilege.

[140] The doctrine of parliamentary privilege precludes the courts from having the jurisdiction to review any form of disciplinary action against a member of Parliament or a Legislature: Guergis v. Novak, supra at paras. 10-21; Harvey v. New Brunswick (Attorney General), [1996] S.C.R. 876. However, in exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny: Operation Dismantle v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441. The courts have the jurisdiction to determine whether a prerogative power exists, and, if so, whether its exercise infringes the Charter or other constitutional norms: Canada (Prime Minister) v. Khadr, 2010 SCC 3. For example, courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7.

[141] Purely academic matters are not justiciable. Apart from a judicial review function concerning procedural fairness and natural justice in the administration of a school`s decision making, the court does not have jurisdiction over matters of an academic nature: Wong v. University of Toronto, 1990 8102 (ON SC), [1989] O.J. No. 979 (Div. Ct.), affd [1992] O.J. No. 3608 (C.A.); Zabo v. University of Ottawa, [2004] O.J. No. 1499 (S.C.J.), affd 2005 22452 (ON CA), [2005] O.J. No. 2664 (C.A.); Warraich v. University of Manitoba, 2003 MBCA 58, [2003] M.J. No. 138 (C.A.); Polton v. University of Toronto (1978), 1975 709 (ON SC), 8 O.R. (2d) 749 (Div. Ct.); Derakhshan v. University of Toronto, [2000] O.J. No. 1463 (Sm. Clm. Ct.).

[142] A dispute will not be justiciable if the question lacks sufficient legal content: Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217 at paras. 26-30; Reference re Same-Sex Marriage, 2004 SCC 79 at paras. 10-11. For a dispute to be justiciable, it must have a sufficient legal component and not draw the court into a purely political controversy involving the legislative as opposed to the adjudicative process.

[143] It is not objectionable for a court to adjudicate controversies that are political, but it is objectionable for a court to hear and decide a matter in the absence of a sufficient legal component to warrant a decision by a court of law. See: Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441; Canada (Auditor Gen.) v. Canada (Min. of Energy, Mines & Resources), 1989 73 (SCC), [1989] 2 S.C.R. 49; L.M. Sossin, Boundaries of Judicial Review, 2nd ed. (Toronto: Carswell, 2012).

[144] In Reference Re Canada Assistance Plan (B.C.), 1991 74 (SCC), [1991] 2 S.C.R. 525 at para. 26, the Supreme Court stated at paras. 26:

26. While there may be many reasons why a question is non-justiciable, in this appeal the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. … In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. In Reference re Resolution to amend the Constitution, supra, at p. 884, the majority in Part II of the judgment said:

We agree with what Freedman C.J.M. wrote on this subject in the Manitoba Reference [Reference Re Amendment of the Constitution of Canada (1981), 1981 3000 (MB CA), 117 D.L.R. (3d) 1 (Man. C.A.)] at p. 13:

In my view, this submission goes too far. Its characterization of Question 2 as "purely political" overstates the case. That there is a political element embodied in the question, arising from the contents of the joint address, may well be the case. But that does not end the matter. If Question 2, even if in part political, possesses a constitutional feature, it would legitimately call for our reply.

[145] A purely political dispute is not justiciable, but this passage from Reference Re Canada Assistance Plan (B.C.) would seem to suggest that if a political dispute had any genuine legal component, then the dispute would be justiciable in a court. However, that suggestion is incorrect. The mere presence of a legal issue does not make an essentially political dispute justiciable, and the court retains discretion to defer or refer the resolution of a dispute to other decision makers.

[146] In Reference re Secession of Québec, 1998 793 (SCC), [1998] 2 S.C.R. 217 at paras. 26-28 the Supreme Court revisited the above passage from Reference Re Canada Assistance Plan (B.C.) and stated:

26. … As we stated in Reference re Canada Assistance Plan (B.C.), 1991 74 (SCC), [1991] 2 S.C.R. 525, at p. 545: …. Thus the circumstances in which the Court may decline to answer a reference question on the basis of "non-justiciability" include:

(i) if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or

(ii) if the Court could not give an answer that lies within its area of expertise: the interpretation of law.

27. As to the "proper role" of the Court, it is important to underline, contrary to the submission of the amicus curiae, that the questions posed in this Reference do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions posed by the Governor in Council, as we interpret them, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. The attempted analogy to the U.S. "political questions" doctrine therefore has no application. The legal framework having been clarified, it will be for the population of Quebec, acting through the political process, to decide whether or not to pursue secession. As will be seen, the legal framework involves the rights and obligations of Canadians who live outside the province of Quebec, as well as those who live within Quebec.

28. As to the "legal" nature of the questions posed, if the Court is of the opinion that it is being asked a question with a significant extralegal component, it may interpret the question so as to answer only its legal aspects; if this is not possible, the Court may decline to answer the question. In the present Reference the questions may clearly be interpreted as directed to legal issues, and, so interpreted, the Court is in a position to answer them.

[147] In Reference re Same-Sex Marriage, supra, the Supreme Court of Canada held that questions about: (1) whether legislation about same sex marriages was within the exclusive legislative authority of Parliament; (2) whether the legislation to legalize same sex marriages was consistent with Canadian Charter of Rights and Freedoms; (3) whether the legislation infringed freedom of religion under s. 2 (a) of the Charter; and (4) whether an opposite-sex requirement for marriage for civil purposes was consistent with the Charter all had sufficient legal content to be justiciable. However, the Supreme Court exercised its discretion on a reference and declined to answer the fourth question for reasons independent of the justiciability of the question.

[148] Having read the Canadian case law discussed below about justiciability and without meaning to be comprehensive, it appears to me that a dispute may not be justiciable for different categories of reasons, including: (1) the subject or topic of the dispute may be beyond the institutional competence of the court; (2) the subject or topic of the dispute may lack sufficient legal content; (3) the dispute may be political and not juridical, which is perhaps a variant of the insufficient legal content category; and (4) the dispute may be about investigating a problem and negotiating or recommending a solution as opposed to solving the problem by the application of law to pleaded and determined facts.

[149] In the case at bar, the Crown submits that the issues framed by the Plaintiffs do not have a sufficient legal component to warrant the intervention of this court and are best left to the executive branch of government, especially where these involve political questions. I agree with the Crown’s submission.

[150] As I read the Plaintiffs statement of claim, the essential issues framed by the Plaintiffs are twofold. The first major issue focuses on the educational policies or purposes pursued by the Crown from 1873 until today, and the second major issue focuses on whether the Crown has adequately funded education services for the beneficiaries of Treaty 3.

[151] With respect to educational policies, the Plaintiffs complain that from 1873 to the mid-1970s, the Crown delivered an education program that: (a) included significant components of non-Aboriginal religious education; (b) discouraged or punished the use of Anishinaabemowin; (c) provided vocational training rather than academic education; (d) tried to remove Anishinaabe from the pursuit of their traditional ways of life, culture and values; and (e) utilized students as child labour at residential schools. These issues of socialization, assimilation, integration, segregation, and educational goals and policies are essentially matters of political debate.

[152] With respect to funding, which is mentioned throughout the statement of claim, the Plaintiffs alleged that Treaty 3 was breached by the Crown’s failure to provide sufficient funding to deliver adequate education services and to provide sufficient infrastructure to deliver the educational services. The main declarations sought by the Plaintiffs are a declaration that the Crown has breached Treaty 3 by failing to provide adequate financial resources to maintain and provide the level of educational services required under the Treaty and a declaration that the Crown is obliged to remedy its breach by providing adequate resources. These issues about the allocation of funds are essentially matters of political debate.

[153] Relying on the Court of Appeal’s decision in Schaeffer v. Wood, 2011 ONCA 716, the Plaintiffs submit that an issue is not non-justiciable because it was born from and continues to generate contentious policy and political debate. The Plaintiffs submit that while the issue of the educating aboriginal children living on reserves is a contentious policy and political issue, this does not preclude the court from fulfilling its customary role of determining whether a treaty has been breached.

[154] In Schaffer v. Wood, Justice Sharpe stated at para. 43:

43. The fact that the legal regime the court is being asked to interpret was shaped by policy considerations and the need to balance competing interests does not, and cannot, preclude the court from exercising its customary role of interpreting the legal instruments that the legislature has provided. The SIU Regulation provides a legal framework for the exercise of the court's adjudicative authority. This authority cannot be ousted by virtue of the fact that policy debates about SIU investigations continue. Where policy issues provide "the context for, rather than the substance of, the questions before the Court", the matter is justiciable: Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, [2004] S.C.J. No. 75, 2004 SCC 79, at para. 10. As Le Dain J. stated in Finlay, at para. 33"where there is an issue which is appropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government".

[155] I do not dispute the correctness of Justice Sharpe’s ruling, but it does not help the Plaintiffs. In the case at bar, the policy and political issues are not just the context of a legal dispute before the court; rather, the alleged breach of Treaty 3 and the alleged failures to properly or adequately educate the beneficiaries of Treaty 3 are the context for a political dispute about education policies and education funding decisions that should be resolved outside the courtroom.

[156] From the perspective of justiciability, Grand Chief White’s proposed representation action has it backwards. The policy and political issues about the allegedly inadequate and not up to standard delivery of schooling to the 28 Indian reserves are the substance of the dispute and not just the context of a legal dispute about Treaty 3. As more or less conceded by Grand Chief White’s counsel during argument, the purpose of this action and the various requests for relief is to get the Crown to the negotiating table. As presently fashioned, the action is non-justiciable.

I. CONCLUSION

[157] For the above reasons, the Crown’s motion is granted and the Plaintiffs’ motions are dismissed without prejudice to the Plaintiffs commencing a properly constituted and justiciable action for the breach of Treaty 3.

[158] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Crown’s submissions within 20 days of the release of these Reasons for Decision, followed by the Plaintiffs’ submissions with a further 20 days.

Perell, J.

Released: February 26, 2013

COURT FILE NO.: CV-11-440069

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GRAND CHIEF DIANE KELLY, ON HER OWN BEHALF AND ON BEHALF OF ALL BENEFICIARIES OF TREATY 3, CHIEF ERIC FISHER, WABASEEMOONG INDEPENDENT NATIONS; CHIEF KIMBERLY SANDY-KASPRICK, NORTHWEST ANGLE #33 FIRST NATION; CHIEF SIMON FOBISTER, GRASSY NARROWS FIRST NATION; CHIEF PAMELA PITCHENESE, EAGLE LAKE FIRST NATION; CHIEF CHARLES MCPHERSON, COUCHICHING FIRST NATION

Plaintiffs

‑ and ‑

THE ATTORNEY GENERAL OF CANADA

Defendant

REASONS FOR DECISION

Perell, J.

Released: February 26, 2013.