Date: 20021120
Docket: T-1619-01
Neutral citation: 2002 FCT 2012
BETWEEN:
FRANCIS WAHSATNOW
Plaintiff
and
HER MAJESTY THE QUEEN
IN THE RIGHT OF CANADA as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendant
BACKGROUND
[1] This action was begun as some form of a representative action. However, for various reasons, including that Mr Wahsatnow, a lay litigant, could act for himself, but not as an advocate for a group, he amended the style of cause. This left a claim for personal relief as set out in Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 at 557.
[2] The Plaintiff seeks declaratory relief based upon loss of Wahsatnow or Muskegwatic Reserve No. 126 when the Wahsatnow or Muskegwatic Band was transferred to an allocation of land, Muskegwatic Reserve No. 125A, on a similar area of land on the Saddle Lake Reserve. The date of the movement of the Muskegwatic Band to the Saddle Lake area is somewhat unclear. At one point the Plaintiff sets out that the Muskegwatic Band 126 has been under alien leadership since 15 July 1897:
| 7e) Muskegwatic Band 126 has been under Alien Leadership since July 15, 1897, of which was forced unconstitutionally to become responsible of many changes affecting the Treaty Rights endorsed by Chief Bear Ears, Lasting, As Long As The Sun Shines and the Rivers Flow, whereas, presently, disposition Muskegwatic Band Members 126, as Alien to Treaty Indian. |
Elsewhere in the Statement of Claim there is a reference to 8 July 1904, when what was the Muskegwatic Reserve, before the move of the Muskegwatic Band to Saddle Lake, became government land. The History of Waskatenau and Districts, provided as particulars and to which I will shortly refer, puts the date of the legal documentation of the amalgamation of Bands and the Saddle Lake land allocation in 1900, but with movement to Saddle Lake beginning as early as 1891.
[3] Present-day maps refer to a town of Waskatenau. While the Wahsatnow, Muskegwatic or Bear Ears Reserve is not shown on present-day maps, it was likely in the Waskatenau area, for the Plaintiff, in a reply to particulars, refers to a The History of Waskatenau and Districts. Judging by the present-day location of Waskatenau the Wahsatnow or Muskegwatic Reserve No. 126 was situated some 50 miles north-east of Edmonton, on the North Saskatchewan River.
[4] The movement of the Plaintiff's Band to the new Reserve, some form of an amalgamation, is said to have resulted in a continuing abuse of the Muskegwatic people by the Saddle Lake Reserve people.
[5] The Defendant moves to strike out the Statement of Claim for two reasons. First, the Defendant submits that the relief being sought by the Plaintiff is based on Aboriginal rights, which are collective rights, not rights which will support the claim of an individual and thus Mr Wahsatnow, who has no status to seek relief in a personal capacity, lacks a cause of action. Second, the Defendant submits that the Statement of Claim does not set out a concise statement of material facts and thus Mr Wahsatnow being in breach of Rule 174, the Statement of Claim should be struck out as an abuse of process.
[6] The motion to strike out the Statement of Claim was initially scheduled for hearing on 22 August 2002, but was adjourned at the request of the Plaintiff. The motion subsequently came on for hearing on 22 October 2002, with the Plaintiff again requested an adjournment, the adjournment being denied, but with leave to submit written argument. This sequence of events, leading to leave to the Plaintiff to submit written argument, is set out in a Direction of 22 October 2002 as follows:
| This motion, filed 3 July, 2002, was originally set for hearing 22 August, 2002. Following commencement of that hearing, I adjourned so that the plaintiff could arrange for an interpreter.
This adjourned motion came on for hearing this morning. The plaintiff had not served and filed the mandatory motion record which is specified by Rule 365 and which my order of 22 August, 2002, required be served and filed by 27 September, 2002. |
|
This morning the plaintiff requested a further adjournment of the motion. The plaintiff said that his interpreter, who had apparently been studying and working on the motion, was unable to attend in Court today. I explained to the plaintiff not only that a straightforward [sic] motion, such as is this motion, could not be adjourned at will, but also that I was not interested in the interpreter's views about treaties, history and the motion. I pointed out that the role of the interpreter was a mechanical role, for his or her task was to translate from one language to another, without adding to or subtracting from what the speaker said. An interpreter may not be an advocate.
So that the motion might proceed, I asked counsel for the Defendant to make the Defendant's submissions, which he did, in basic terms. Counsel referred to the portions of the Defendant's argument, as set out in the Defendant's motion record, upon which the Defendant relied. I then pointed out to the plaintiff the basic areas with which he must deal in order to answer the Defendant's motion. The Plaintiff was not prepared to proceed today.
There will be no further oral hearing of this motion. The Plaintiff must present any argument, opposing the motion to strike out the statement of claim, in writing. The Plaintiff's written argument and any affidavit material must be served and filed by close of Registry on 5 November, 2002.
Any reply to the Plaintiff's written argument, by the Defendant, must be in writing, served and filed by close of Registry on 19 November, 2002.
In the event that the Plaintiff does not serve and file written argument, I will carefully consider the Defendant's material, the Defendant's argument as made orally by counsel and the statement of claim and will make a decision on that basis alone. |
[7] I took this approach, of leave to the Plaintiff to file a written response to the Defendant's motion to strike out, for several reasons. First, Mr Wahsatnow filed no written submission in response to the Crown's motion, perhaps because he did not understand the procedure being invoked by the Crown. Second, while Mr Wahsatnow had a friend in attendance to assist in interpreting, and also to confirm that Mr Wahsatnow knew what was transpiring, Mr Wahsatnow was not prepared to make oral representations at that time. Third, before and following the Crown's submissions I drew Mr Wahsatnow's attention to the procedural aspect of the motion, as opposed to the merits of his action and indicated to him what he must address: it was proper that he have the opportunity to deal with the Crown's submissions. Finally, Mr Wahsatnow, acting for himself, seemed unaware of and was definitely unfamiliar with the procedure invoked by the Crown on its motion and thus it was fair to give Mr Wahsatnow time to reflect on the Crown's written submissions, case authorities and oral argument, with a view to obtaining assistance in order to deliver a considered response. So that there might be a considered response I had asked counsel for the Crown to make his oral presentation simple and direct, which counsel did in an admirable fashion.
[8] Mr Wahsatnow's written response to the Crown's submissions requests my removal by reason of lack of interest in treaties and history. The response goes on to refer to trespass upon and cruel treatment of the Plaintiff, who said he is "being deprived of his liberty to be protected by the law and under the benefit of the law.". The Defendant's written submissions and oral argument have not been dealt with in any material way in Mr Wahsatnow's response. Rather Mr Wahsatnow dismisses the Defendant's motion in the last two paragraphs of his submission:
| 5) The Plaintiff considers the defendant's allegation and motion records of the defendants, as interpretations and after the fact, all circumstances and irrelevant.
6) The Plaintiff relies on all Provisions recognized by the Royal Proclamation October 7, 1763 and other Documents this Honourable courts deems fit. |
Given the lack of a useful response I have dealt with this motion as I said I would in the last paragraph of my direction, that is a careful consideration of the Defendant's material, the Defendant's argument as made by counsel and the Statement of Claim, which I have read in conjunction with the particulars filed by Mr Wahsatnow.
CONSIDERATION
[9] The Statement of Claim, as I understand it, begins with an assertion that the Wahsatnow Band, formerly called the Muskegwatic Band, led by Chief Bear Ears, lived on the Muskegwatic Reserve No. 126, surveyed in 1886 and apparently now known either as the Wahsatnow Reserve or the Bear Ears Reserve. That Reserve was on the North Saskatchewan River some 16 miles north of what was then Fort Victoria, on the trail to Edmonton. It seems that at some point, perhaps over several years between 1891 and 1896 the Muskegwatic Band was moved to the Saddle Lake Reserve, which is about east north-east from Edmonton, about 100 miles downstream from Edmonton on the North Saskatchewan River. This consolidation, on the Saddle Lake Reserve, is said to have been against the wishes of Chief Bear Ears and as a result:
| ... Chief Bear Ears and his followers were deprived of their inherent Treaty Rights regarding the Transmitting of Suits, Flags, and Metals (sic.) being passed down to the Children's Children of whom were their descendants. |
Moreover, the Crown is said to have unconstitutionally intervened in the leadership of the Band so that after the death of Chief Bear Ears his children did not inherit his position, but the leadership went to one Mattoosk, who was not a descendant of Chief Bear Ears. This apparently brings us up to 1904 when the Crown, by closing down the Bear Ears Reserve made the Reserve into government land, contravening "International Law, Constitutional Law, Common Law, Royal Proclamation of October 7, 1763 and the Criminal Code of Canada by depriving the Muskegwatic Band of their Rights and Identity.".
[10] While the Muskegwatic Band, according to the Statement of Claim, were forced to move to the Saddle Lake Reserve, thereby becoming tributary to the alien government of Saddle Lake and being forced to surrender their rights and resources, the Muskegwatic Band did have separate land set aside for them, Muskegwatic Reserve 125A, apparent at or near the Saddle Lake Reserve. Mr Wahsatnow alleges that the Muskegwatic Band was being encroached upon by "Alien Leadership" whom I take it refers to the Saddle Lake Band leadership, the result being that the original Muskegwatic Band were "... illegally stripped of all their Treaty Rights, Lands, Resources, Self-government Rights and Rights of Treaty Payments and other distributions" which the Plaintiff and forefathers were entitled. In the result "... the children of the Muskegwatic Band 126 have lost their true genealogies by this act of ethnic cleansing.".
[11] The Statement of Claim goes on to set out that the Plaintiff addressed the Defendant, on several occasions, one being 27 April 1999, concerning the Wahsatnow or Muskegwatic 126 Band members and their discontent as a result of trespass, duress and injury vested upon them by the Crown.
[12] The Statement of Claim seeks various relief, some of which is incomprehensible, but seemingly aimed at a restoration of at least part of the status quo, including a declaration that the Muskegwatic Indian Reserve 125A be separated and barricaded to prevent any further encroachment, with governance by the Muskegwatic Band 126 members only, together with compensation for the loss of Muskegwatic Reserve 126.
[13] As I say, this is my understanding of the Statement of Claim, however a good deal of what I have set out is a paraphrasing and an interpreting of the Statement of Claim, which is somewhat disjointed and appears to contain much irrelevant material. The Defendant was also apparently confused, resulting in a 16 October 2001 demand for particulars.
[14] The particulars filed in response to the demand contained largely historical material and an interesting excerpt from a 1986 work, By River and Trail: The History of Waskatenau and Districts, published by the Waskatenau and District Historical Society. Indeed, this Waskatenau historical material would seem to form a basis for at least a part of the present claim of Mr Wahsatnow. However, that being said, the particulars raise a great number of further questions.
[15] On 7 December 2001 the Crown filed the defence which specifically concludes with pleas that there is no cause of action, that the action is oppressive, frivolous and vexatious and an abuse of the court and ought to be dismissed.
The Statement of Claim as Vexatious and Embarrassing
[16] I accept the allegations in the amended statement of claim and the particulars as true, for the purposes of this motion. The amended statement of claim, in which Mr Wahsatnow is the sole plaintiff, should be struck out on the basis that it contains many bare assertions, speculations and conclusions, which do not constitute a cause of action: see for example Ceminchuk v. IBM Canada Ltd. (1995), 62 C.P.R. (3d) 546 at 550 - 551. Indeed, as I pointed out in Ceminchuk, a statement of claim may be vexatious and embarrassing if it does not contain sufficient facts to make it possible either for the Defendant to answer by way of a defence, or for the Court to regulate, at trial (page 551). However, there is a more basic flaw than merely a failure to state sufficient acts to establish the elements in support of whatever might be cause of action.
Want of a Cause of Action
[17] This action is no longer a representative action, but rather is pleaded as a personal cause of action, involving the surrender of 12 1/4 square miles of Reserve No. 126 in return for 14 square miles in what is now called Reserve No. 125A. I accept the Defendant's characterization of what happened as the surrender of one communal property for another. In effect, what was involved here is a collective right. This becomes clear when one considers the relief claimed, set out in paragraphs 8(a) through 8(g), which includes: references to Treaty No. 6; the illegal land surrender involving the Muskegwatic Band 126; the forcing of the Muskegwatic Band 126 to renounce their hereditary treaty identity; the prayer for the reinstatement of the Muskegwatic Band 126 and its members; the seeking of a declaration that Indian Reserve No. 125A at Saddle Lake Reserve be barricaded to prevent further encroachment; that governance be by Muskegwatic Band members only; that Muskegwatic Band members be compensated for the loss of Reserve No. 126; that all who are not members of the Muskegwatic Band be removed from Reserve No. 125A; that all of the Muskegwatic Band members be compensated for damages arising through their being forced to be subject to alien governing; and that the Plaintiff be supplied with adequate working facilities and other needs in compliance with Treaty No. 6.
[18] The Supreme Court of Canada pointed out, in R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1112 that aboriginal rights are "... rights held by a collective and are in keeping with the culture and existence of that group.". Such rights are not in the nature of traditional properties right and traditional common law concepts of property, but are part of the sui generis nature of aboriginal rights. I do not see how an individual can enforce a collective right. This leads to a later statement from the Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507.
[19] In Van der Peet, at page 540, the Supreme Court pointed out that aboriginal title and aboriginal rights arose from the existence of distinct communities:
| Both aboriginal title and aboriginal rights arise from the existence of distinctive aboriginal communities occupying "the land as their forefathers had done for centuries". |
In this passage the Supreme Court referred to Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 at 328.
[20] In Calder Mr Justice Judson dealt with, among other things, the aboriginal title to lands and territory occupied by the Nishga Tribe, some 1000 square miles in and around the Nass River, Observatory Inlet, Portland Inlet and Portland Canal, in north-west British Columbia. He pointed out that Indian title cannot be dealt with in terms of a personal or usufructuary right, that is a right granted to an individual personally to use and enjoy property.
[21] This concept of aboriginal and treaty rights, both of which appear to be the basis of Mr Wahsatnow's claim, was further defined in R. v. Sundown, [1999] 1 S.C.R. 393. There Mr Sundown belonged to a Cree First Nation that was a party to Treaty No. 6. At issue was whether Mr Sundown might cut trees in provincial park and use them to build a log cabin. Treaty No. 6 rights included an entitlement to hunt for food on land occupied by the provincial Crown, including the provincial park. In dispute was the right to build the cabin. Mr Justice Cory, who wrote the decision of the court, pointed out that any interest in the cabin was a collective right derived from treaty and the traditional expeditionary method of hunting. He went on to say that it belonged to the Band as a whole, but not to Mr Sundown or to any individual member of the First Nation. This passage is worth setting out in full:
| ... Aboriginal and treaty rights cannot be defined in a manner which would accord with common law concepts of title to land or the right to use another's land. Rather, they are the right of aboriginal people in common with other aboriginal people to participate in certain practices traditionally engaged in by particular aboriginal nations in particular territories.
36 Any interest in the hunting cabin is a collective right that is derived from the treaty and the traditional expeditionary method of hunting. It belongs to the Band as a whole and not to Mr. Sundown or any individual member of the Joseph Bighead First Nation. It would not be possible, for example, for Mr. Sundown to exclude other members of this First Nation who have the same treaty right to hunt in Meadow Lake Provincial Park.
(Page 412) |
I would repeat the key concept which appears in the case law, including in the above quotation from Sundown: aboriginal rights and treaty rights are a right of aboriginal people in common. As such they are not individual rights.
[22] In the present instance the right that Mr Wahsatnow claims may well exist, but it is not a right he himself may claim. Rather, if the right in this instance exists, it is a right belonging to all of the present Muskegwatic Band members. While Mr Wahsatnow initially tried to represent all of the Band members, he was, as a lay litigant, unable to do so.
CONCLUSION
[23] The claim which Mr Wahsatnow makes is not a personal claim, but rather a communal claim. It is not his claim to make. As such it is a claim, even accepting all that is set out in the Statement of Claim and in the particulars and allowing him the benefit of the doubt as to the meaning of a great deal of what he sets out in the Claim, which lacks a reasonable cause of action. It is a claim which plainly, obviously and beyond doubt discloses no reasonable cause of action and which cannot succeed. Nor is it a claim which, in these proceedings, can be amended so that it might succeed. This is not to say that a proper representative action would necessarily fail, but rather that the present action cannot succeed.
[24] As suggested by counsel for the Crown, we may dislike some aspects of history. Here Mr Wahsatnow's view is that his ancestors, and he through his ancestors, were dispossessed of a heritage. There is not necessarily a remedy for that which we dislike. Here there is no personal remedy available to Mr Wahsatnow.
[25] I offer no opinion, however there may well be, as suggested by Mr Wahsatnow's friend and ad hoc interpreter, abuses both present and past on the Muskegwatic Reserve No. 125A and that Mr Wahsatnow brings this action for his family as much as for himself. However the Statement of Claim seeks personal relief, relief not built on any personal right, but only on a collective cause of action which is not available to Mr Wahsatnow as an individual.
[26] The present action is struck out, without leave to amend, but without prejudice to the Muskegwatic Band, as a collective, bringing a proper representative action utilizing qualified counsel.
[27] Costs of the motion not being claimed, none are awarded. However, the Defendant may tax the costs of the action.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
20 November 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1619-01
STYLE OF CAUSE: Francis Wahsatnow v. HMTQ in the Right of Canada as Represented by the Minister of Indian Affairs and Northern Development
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: 22 October 2002
REASONS FOR ORDER: Hargrave P.
DATED: 20 November 2002
APPEARANCES:
Francis Wahsatnow PLAINTIFF on his own behalf
E James Kindrake FOR DEFENDANT
SOLICITORS OF RECORD:
Francis Wahsatnow PLAINTIFF on his own behalf
Edmonton, Alberta
Morris A Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta