Waquan v Canada (Attorney General), 2016 ABQB 191

Court of Queen’s Bench of Alberta Citation: Waquan v Canada (Attorney General), 2016 ABQB 191 Date: 20160331 Docket: 1501 01939 Registry: Calgary Between: Archie Waquan, Norbert Poitras and Amanda Poitras on Their Own Behalf and on Behalf of the Members of the Mikisew Cree First Nation Plaintiffs - and - The Attorney General of Canada, Former Deputy Minister of Aboriginal Affairs and Northern Development Michael Wernick, Her Majesty the Queen In Right of Alberta, Neil Reddekopp, Shaun Mellen, Ron Stevenson, Sheila Read, Robert Janes, Robert Freedman, N.

Kate Kempton, Cook Roberts LLP, Olthuis, Kleer, Townshend LLP, Miller Thomson LLP, John Doe I, John Doe II, John Doe III, Jane Doe I , and Jane Doe II Defendants _______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________

[ 1 ] The Defendants the Attorney General of Canada, Michael Wernick, Shaun Mellen, Ron Stevenson and Sheila Read have applied for an Order striking the Plaintiff’s action in its entirety, or in part. The Application is supported by the Mikisew Cree First Nation, which though not a party to this Action, was granted leave to make representations in respect of this Application. Although this Application has been brought only by the Defendants named above, all parties were given an opportunity to participate in the hearing of this matter and are thus bound by this decision.

Background [ 2 ] The Plaintiff Archie Waquan (“Chief Waquan”) is a member of the Mikisew Cree First Nation (“MCFN”). Chief Waquan was the elected Chief of MCFN from 1984 to 1986, 1990 to 1993, 1996 to 1999 and from 2002 to 2005.

MCFN is a party to Treaty No. 8, which was signed in 1899 and provides, inter alia : And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves, the same not to exceed in all one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families; and for such families or individual Indians as may prefer to live apart from band reserves, Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each Indian, the land to be conveyed with a proviso as to non- alienation without the consent of the Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to be made in the manner following, namely, the Superintendent General of Indian Affairs shall depute and send a suitable person to determine and set apart such reserves and lands, after consulting with the Indians concerned as to the locality which may be found suitable and open for selection.

Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any band as She may see fit; and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty's Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained. [ 3 ] In 1996, on his own behalf and on behalf of members of MCFN, Chief Waquan brought Court of Queen’s Bench of Alberta Action No. 9601-18174 (“the 1996 Action”) against persons including the Attorney General of Canada (“Canada”) and Her Majesty the Queen in Right of Alberta (“Alberta”).

In the 1996 Action, the Plaintiffs alleged that in the course of negotiating Treaty No. 8, Canada had failed to inform the Plaintiffs of the value of their lands; negligently and fraudulently misrepresented to the Plaintiffs the fact that their right to hunt would not be curtailed by Treaty No. 8; concealed from the Plaintiffs the fact that they would be subject to federal legislation; and concealed the fact that Canada would control the Plaintiffs’ membership in an effort to reduce its obligations under the terms of the Treaty.

The Plaintiffs alleged that it was the policy of Canada only to recognize land claims under Treaty No. 8 on the basis of a shortfall in lands set aside for reserves calculated as the date of the first survey of the reserve, refusing to recognize an increased entitlement based on increased population.

They further alleged that Canada had failed to make adequate provisions or provided compensation for the influx of new members of MCFN as a result of the passage in 1985 of Bill C-31, which abolished those provisions of the Indian Act that removed Indian status from Indian women who married non-Indian men. [ 4 ] Also in the 1996 Action, the Plaintiffs alleged, by virtue of the Natural Resources Transfer Agreement of 1930, the responsibility for setting aside Crown lands for the purpose of fulfilling the terms of Treaty No. 8 was given to Alberta; and Alberta had failed to allocate or transfer sufficient Provincial Crown land in satisfaction of the Plaintiffs’ entitlements under Treaty No. 8. [ 5 ] On March 10, 2010, after an unchallenged referendum vote by the members of MCFN, followed by a band council resolution, MCFN Chief Roxanne Marcel and Councillors Steve Courtoreille, Willie Courtoreille, Russell Kaskamin, Terry Marten, Philip Tourangeau, and Juanita Whitehead signed a Settlement Agreement (“the Settlement Agreement”) on behalf of MCFN in respect of the 1996 Action.

The Settlement Agreement, which is dated for reference August 19, 2009, contains a confidentiality clause binding both Canada and MCFN and was filed with the Court under seal. It is necessary to set out some its provisions in detail. [ 6 ] The Settlement Agreement is stated to be between MCFN, the Members of the Mikisew Cree First Nation, and Canada. It purports to settle all matters, allegations, claims and causes of action arising directly or indirectly out of the 1996 Action as well as a 1986 Treaty Land Entitlement Agreement between Canada and MCFN.

In consideration of the payment of settlement funds by Canada to MCFN and the mutual fulfillment of other promises made by the parties, MCFN on behalf of its members provided the following release: 6.3 The First Nation on its behalf and on behalf of its Members forever releases, remises, and discharges Canada from any and all actions, causes of action, suits, claims, demands, specific claims, damages, costs, expenses, promises, undertakings, obligations or liabilities, of whatever kind in nature, whether known or unknown, and whether in law, in equity or otherwise, that the First Nation, or any Members, ever had, now has, or may have in the future by reason of or in any way relating to or arising out of: (

a) the Action; (

b) the research, preparation, negotiation, execution, ratification and implementation of this Settlement Agreement and the Trust Agreement, including any and all fees, costs and disbursements; (

c) the Referendum Procedure and the execution of this Settlement Agreement by the First Nation; (

d) the Referendum Vote and any errors or omissions in the Voters List for the Referendum Vote;

(

e) the representations and warranties of the First Nation as set out in

Article 13; (

f) the Settlement Funds not being “Indian moneys” within the meaning of the Indian Act; ... (

k) the absence of an interpreter fluent in the language of the Members at any Information Meetings and at the polling stations during the Referendum Vote; and (

l) any errors or omissions in the information provided to the Members regarding the Settlement Agreement, the Trust Agreement and the Referendum Vote by the Council, the First Nation’s independent legal counsel, the First Nation’s Independent financial advisor or the Chief Electoral Officer. 6.4.

The First Nation and its Members agree not to assert any actions, causes of action, suits, claims, demands, specific claims, damages, costs, expenses or liability, of whatever kind or nature, whether known or unknown, and whether in law, in equity or otherwise, that the First Nation, or any Members, ever had, now has, or may have in the future in any proceeding against Canada by reason of or in any way relating directly or indirectly to, or arising out of, any of the items released pursuant to

Article 6.3. [ 7 ]

Article 7 of the Settlement Agreement provides an indemnity to Canada: 7.1. The First Nation agrees to indemnify and forever save harmless Canada from and against any and all obligations, liabilities, duties, losses or damages resulting directly or indirectly from any actions, causes of action, suits, claims, demands, specific claims, damages, costs, expenses, promises, undertakings, obligations or liabilities, of whatever kind or nature, whether known or unknown, and whether in law, in equity or otherwise, by whomsoever advanced, in any proceeding brought against Canada by reason of or in any way relating directly or indirectly to, or arising out of, any of the matters set out in

Article 6.3. 7.2 Canada shall assume and control the defence of any proceeding against Canada, any negotiations, and any settlement (whether or not proceedings have been instituted), as the case may be, referred to in

Article 7.1. 7.3 Any demand by Canada for indemnification shall be made in writing, and if the amount so claimed is not paid by the First Nation within sixty (60) days of receipt of such notice, Canada shall be entitled to invoke all rights and remedies provided by law to recover the amount for which Canada requests indemnification. [ 8 ] Conditions precedent to the execution of the Settlement Agreement are set out in

Article 8: 8.1. The conditions precedent to the First Nation executing this Settlement Agreement are as follows: (

a) a duly executed Band Council Resolution, in the form attached as

Schedule “J'', is delivered to Canada; (

b) a duly executed Band Council Resolution in the form attached as

Schedule “L", is delivered to Canada confirming that: i. the Council has reviewed the Chief Electoral Officer’s written report provided in accordance with the Referendum Procedure and has declared that the Members have approved and agreed to the terms and conditions of this Settlement Agreement and the Trust Agreement by way of a favourable Referendum Vote in compliance with

Article 11 of this Settlement Agreement; ii. the Council is satisfied that all conditions in relation to the Settlement Agreement have been satisfied; and iii. the Council is authorized to execute this Settlement Agreement together with any further documents necessary to give effect to this Settlement Agreement; (

c) a duly executed Band Council Resolution, in the form attached as

Schedule “M”, is delivered to Canada confirming that: i. in the case where no request for review of the Referendum Vote has been made, the time period within which to make such a request for review has expired; or ii. in the case where requests for review of the Referendum Vote have been made, all such requests for review have been finally resolved. [ 9 ] Following the execution of the Settlement Agreement, the 1996 Action was dismissed by way of a Consent Judgment dated April 1, 2010, made by Mr. Justice Stevens of this Court (“the Consent Judgment”).

The Present Action [ 10 ] This Action was commenced by way of a Statement of Claim filed on February 18, 2015 and amended February 20, 2015. The Plaintiffs are described in the style of cause as follows: Archie Waquan, Norbert Poitras and Amanda Poitras on Their Own Behalf and on Behalf of the Members of the Mikisew Cree First Nation. [ 11 ] Paragraph 2 of the Amended Statement of Claim states: 2.

The Plaintiff Chief Waquan, acts on his own behalf and on behalf of the members of the MCFN, all of whom have an interest in these proceedings as members of classes of beneficiaries having constitutionally protected rights to lands in severalty or lands in common

under Treaty No. 8, including his wife, his daughter Patricia Marie Waquan-Noskiye, and his grandsons, Connor Waquan-Noskiye, and Carter Archie William Waquan-Noskiye. Chief Waquan’s daughter and grandsons were born after 1982. [ 12 ] MCFN is governed by its Chief and Council, who are elected every three years. The present Chief of MCFN is Steve Courtoreille. The Plaintiffs do not allege that they have been granted authority by MCFN to represent MCFN or any of its members. In addition to the pleadings in this matter, the Applicants rely upon the Affidavit of Chief Courtoreille, dated May 26, 2015.

Chief Courtoureille was questioned on this Affidavit, but the key facts are not in dispute: the 1996 Action was concluded following a referendum and Band Council Resolution authorizing the Settlement Agreement, and a further Band Council Resolution confirming no request for a review of the Referendum Vote; and the Chief and Council of MCFN did not and do not authorize or approve the individual plaintiffs to act as representatives of MCFN, nor to commence this new action. [ 13 ] Many of the allegations in the present Action are a reiteration of the claims and relief sought in the 1996 Action and were therefore purportedly resolved by way of the Settlement Agreement and Consent Judgment.

This application therefore turns in a fundamental way on the question of whether the Plaintiffs have standing to set the Consent Judgment aside or to seek the relief pleaded in the Amended Statement of Claim. [ 14 ] At paragraph 5 of the Amended Statement of Claim, the Plaintiffs state that the Consent Judgment was entered into without the Defendants complying with their constitutional, fiduciary or professional obligations, including making disclosure of material and relevant facts to Justice Stevens.

At paragraph 6, the Plaintiffs seek to set aside the Consent Judgment, allowing them to pursue the claims brought in the 1996 Action as if the Consent Judgment had never been entered, and they further seek to pursue such claims on the basis that any payments made to MCFN members in 2010 or after were simply a token and partial payment for loss of use of lands, resources and royalties owed under Treaty No. 8, and not actual consideration for the settlement of claims for land in severalty or in common. [ 15 ] The allegations with respect to the 1996 Action, the Settlement Agreement and the Consent Judgment are set out in some detail in paragraphs 85 to 152 of the Amended Statement of Claim.

In essence, the Plaintiffs allege that Alberta contrived to arrange for MCFN to obtain a second legal opinion with respect to the 1996 Claim and that, thereafter, their solicitor Jeffrey Rath was replaced as solicitor for MCFN without notice to, or the consent of, Chief Waquan. [ 16 ] The Plaintiffs plead that the new solicitors, through negligence, in breach of fiduciary duties and/or in conspiracy with Alberta and Canada, arrived at a settlement of the 1996 Action that substantially undervalued MCFN’s interests.

The Plaintiffs allege that the Settlement Agreement was never distributed to the Plaintiffs or to MCFN members, that independent legal advice was not provided to individual MCFN members, and MCFN members were not advised by Canada or MCFN itself of the effects of the Settlement Agreement on rights to land in severalty or rights to land on the basis of the current population of MCFN. The Plaintiffs allege Chief Waquan repeatedly asked for copies of the Settlement Agreement prior to voting against it in the MCFN referendum, and that it was never provided to him or to the other Plaintiffs.

After the approval of the Settlement Agreement by referendum and by resolution of the MCFN Band Council, the Plaintiffs contend that the Defendants failed to disclose material facts to Justice Stevens, including the failure to provide copies of the Settlement Agreement and independent legal advice to Chief Waquan and the MCFN members he represented; that the Defendants had engaged in conduct or benefited from conduct in respect of the disruption of the retainer of Mr.

Rath; that the Settlement Agreement was based upon a gross undervaluation. [ 17 ] In addition, it is alleged that the Settlement Agreement was structured in such a way that cash payouts would be made to MCFN members, which operated as a direct financial incentive to vote in favour of an agreement that was in fact prejudicial to their own constitutionally protected rights to land in severalty or to land in the future.

In addition, the Plaintiffs plead that the referendum vote and Settlement Agreement itself could not and did not have the effect of extinguishing individual rights to land in severalty under Treaty No. 8. Issues: [ 18 ] The Attorney General of Canada that this Action should be struck because: (

a) the individual plaintiffs have no authority to represent the MCFN and are not entitled to bring a derivative action on its behalf; (

b) the individual plaintiffs have no standing to bring this action on their own in the circumstances of this case; (

c) a representative action is not appropriate in the circumstances of this case. [ 19 ] It is Canada’s position that the claims in this action are claims of collective rights, relating a settlement entered into by a collective, with respect to claims arising from treaty. Consequently, the claims in this Action cannot be brought by individual plaintiffs and must be brought by the collective. Canada further contends that the Plaintiffs cannot bring a derivative claim on behalf of MCFN because their claim does not fall within any exception to the Rule in Foss v.

Harbottle, (1843), 2 Hare 189 . [ 20 ] Finally, Canada argues that the Plaintiffs have not met the requirements for a representative action, first because representative plaintiffs must have standing to pursue an action, but also because in the circumstances of this case, success for one member of the purported class would not be success for all. [ 21 ] Though the Plaintiffs agreed, in their Brief and in the course of argument, that aspects of this claim may properly be characterized as derivative, they rely on exceptions to the Rule in Foss v. Harbottle .

Specifically, the Plaintiffs contend that MCFN is under a disability because of the indemnity given to Canada in the Settlement Agreement and is therefore unable to bring this Action on its own behalf. The Plaintiffs further argue that some of the Treaty rights – in particular rights to land in severalty - that were purportedly dismissed as a result of the Settlement Agreement and Consent Judgment are individual in nature. They contend that these rights could not be extinguished by a referendum vote of MCFN, nor are they collective rights such that a claim in this regard must be brought by the

collective. [ 22 ] The issues, therefore, are: (

a) The test for striking a claim; (

b) Whether the Plaintiffs may bring this Action on behalf of MCFN or Members of the Mikisew Cree First Nation; (

c) Whether the Plaintiffs may bring this Action on their own behalf; (

d) Whether a class action is appropriate in the circumstances of this case. The Test for Striking a Claim [ 23 ] Rule 3.68 of the Alberta Rules of Court (“ARC”) provides: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out;

(2) The conditions for the order are one or more of the following: ... (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process;

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). [ 24 ] The parties are agreed that the appropriate test for striking out a claim for disclosing no reasonable claim is set out in R. v. Imperial Tobacco Ltd. , 2011 SCC 42 , at para.17: A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action... Another way of putting the test is that the claim has no reasonable prospect of success.

Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial. The Plaintiffs’ Standing to Bring this Claim on Behalf of MCFN or its Members [ 25 ] Many of the allegations pleaded in the Amended Statement of Claim are identical to those in the 1996 Action. In essence, the Plaintiffs claim aboriginal rights and title to Treaty No. 8 lands; they allege misconduct in relation to the negotiation, and breaches of Treaty No. 8.

The remedies sought in the present Action are also essentially identical to those sought in the 1996 Action, and include a declaration that any purported release of Treaty rights made by MCFN is of no force and effect; a constructive trust on royalty revenues retained by the Province of Alberta and aggravated damages. Canada contends, and the Plaintiffs concede, that in the usual course of events it is the Chief and Council that have standing to sue for the collective treaty rights of the members of a Native Band.

The Plaintiffs argue, however, that they may bring this Action as a derivative claim and also that there are elements of the claim that are not collective in nature and therefore may be brought by the Plaintiffs as individuals. [ 26 ] The collective nature of band rights was described by Slatter J. (as he then was) in Papaschase Indian Band No. 136 v Canada (Attorney General), 2004 ABQB 655 , aff’d: 2008 SCC 14 , at para.181: Claims by Indian Bands are usually collective claims; they generally assert rights that belong to the Band as a whole, and not to any individual member...

Specifically, they are not combined claims, that is they are not a number of individual claims joined together for procedural reasons. How true Band claims can be asserted is entirely a function of the legal status of the Band. If a Band is a recognized legal entity, like a corporation, then the Band (and only the Band) can sue to enforce the rights in its own name. In exceptional circumstances a derivative claim might be permitted to advance a Band right.

If the Band is not a legal entity, like an unincorporated association, then the Band (and not any individual member) can sue to enforce those rights, but only by a derivative action by representative plaintiffs. [ 27 ] The plaintiffs in Papaschase claimed to be the descendants of a moribund Indian Band that had apparently applied to withdraw from Treaty No. 6 in 1886 and disintegrated, surrendering reserve lands to Canada, with some members electing to join other Bands.

Slatter J. concluded that most of the claims pleaded belonged to the Papaschase band, not to the individual plaintiffs who in his determination could not claim for themselves the Band’s rights. [ 28 ] In Te Kiapilanoq v British Columbia , 2008 BCSC 54 , Parrett J. struck a proposed representative action centered around a claim for aboriginal title, brought by the plaintiff on his own behalf “as a Squamish Indian Hereditary Chie and person on behalf of all Squamish Indian people”. A substantially similar action had been brought by the Squamish Indian Band itself. Parrett J. held, at para.25:

In my respectful view, the elected Council representing the Squamish Nation is the proper party with the authority of this defined classof people to conduct a case which is aimed at determining the questions of Aboriginal rights and title. The collective nature of theserights requires an authority from the people who are, in this case, collectively represented by their elected Council. [29] Similarly, in Quinn v.

Bell Pole, 2013 BCSC 892, the plaintiff’s claim, which was aimed at stopping logging activities inlands the plaintiff alleged to be within the traditional territory of the Sechelt Nation, was struck after Fisher J. concluded, at paras.17-18: As communal rights, any claims based on aboriginal rights and title may only be brought by authorized representatives on behalf of theFirst Nation. It is only representatives properly mandated by members of the First Nation who will have standing to make claims basedon these communal rights.

If a plaintiff does not plead facts or otherwise establish that he or she has no such authorization, that plaintiffwill lack standing to bring a claim based on aboriginal rights and title, and such a claim may be struck as disclosing no cause of action... Standing may be addressed as a preliminary matter in order to avoid unnecessary litigation. [30] The Supreme Court of Canada recently considered the question of whether an individual member or group of members of anaboriginal community could raise a breach of treaty rights as a defence to a tort action in Behn v Moulton Contracting Ltd., 2013 SCC26.

In that case, the Provincial Crown had granted licenses to a logging company to harvest timber on the territory of the Fort NelsonFirst Nation in British Columbia. A number of individuals from the Fort Nelson First Nation, including the defendants, erected a campthat blocked access to the logging sites and the logging company brought a tort action against them. The defendants argued that thelicenses were void because they had been issued in breach of the Crown’s constitutional duty to consult and because they violated thecommunity members’ treaty rights.

Lebel J., delivering the judgment of the Court held, at para.33: The Crown argues that claims in relation to treaty rights must be brought by, or on behalf of, the Aboriginal community. This generalproposition is too narrow. It is true that Aboriginal and treaty rights are collective in nature: see R. v. Sparrow, (SCC),[1990] 1 S.C.R. 1075, at p. 1112; Delgamuukkw, at para. 115; R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, at para. 36;R. v. Marshall, (SCC), [1999] 3 S.C.R. 533, at paras. 17 and 37; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, atpara. 31; Beckman, at para. 35.

However, certain rights, despite being held by the Aboriginal community, are nonetheless exercised byindividual members or assigned to them. These rights may therefore have both collective and individual aspects. Individual members of acommunity may have a vested interest in the protection of these rights. It may well be that, in appropriate circumstances, individualmembers can assert certain Aboriginal or treaty rights, as some of the interveners have proposed. [31] In general, therefore, treaty rights are collective rights. They are not owned by individuals and standing to enforce them vestsin the Indian Band.

Both Papaschase and Behn make room for the possibility of exceptions in certain limited circumstances, to which Iwill turn later in these Reasons, but at this stage it can be observed that most of the allegations contained in the Amended AmendedStatement of Claim relate to traditional treaty rights that only MCFN or its authorized representatives may enforce.

Indeed, the mattersraised in the present Action have already been pursued by MCFN’s authorized representatives, in the course of proceedings thatcommenced in 1996 and were case managed by the Chief Justice and Associate Chief Justice of this Court until to their conclusion in2006. Absent special circumstances warranting a derivative claim, the Plaintiffs do not have standing to bring this Action on behalf ofMCFN or its members. [32] The Plaintiffs allege that there are special circumstances that warrant a derivative claim, pointing to the Rule in Foss vHarbottle, and its exceptions.

That Rule is explained in Everest Canadian Properties Ltd. v. Mallman, 2008 BCCA 276, at paras.7-9: ...Many subsequent cases and many more academic writers... have extracted two basic principles which were stated by Jenkins L.J. inEdwards v. Halliwell, [1950] 2 All E.R. 1064 (C.A.): The rule in Foss v. Harbottle, as I understand it, comes to no more than this. First, the proper plaintiff in an action in respect of a wrongalleged to be done to a company or association of persons is prima facie the company or the association of persons itself.

Secondly,where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simplemajority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simplereason that, if a mere majority of the members of the company or association is in favour of what has been done, then cadit quaestio. Nowrong had been done to the company or association and there is nothing in respect of which anyone can sue.

If, on the other hand, asimple majority of members of the company or association is against what has been done, then there is no valid reason why the companyor association itself should not sue. In my judgment, it is implicit in the rule that the matter relied on as constituting the cause of actionshould be a cause of action properly belonging to the general body of corporators or members of the company or association as opposedto a cause of action which some individual member can assert in his own right. Jenkins L.J. noted that there were exceptions to the rule.

The first is made where a "fraud on the minority" has been perpetrated and thewrongdoers are in control of the company. In these circumstances, "the rule is relaxed in favour of the aggrieved minority who areallowed to bring what is known as a minority shareholders' action on behalf of themselves and all others." (At 1067.) Otherwise, thegrievance would never reach the court as the wrongdoers would not allow the company to sue. A second exception applies where the actcomplained of could be sanctioned only by a special majority of shareholders.

If the rule were applied in those circumstances, JenkinsL.J. observed: ... a company which, by its directors, had broken its own regulations by doing something without a special resolution which could onlybe done validly by a special resolution could assert that it alone was the proper plaintiff in any consequent action and the effect would beto allow a company acting in breach of its articles to do de facto by ordinary resolution that which according to its own regulations couldonly be done by special resolution. [Ibid.] As the Court also noted, the rule does not apply in respect of a cause of action that 'belongs to' an individual member of the corporationor association personally.

In such cases, Foss v. Harbottle "has no application at all, for the individual members who are suing sue, not inthe right of the [corporation or other association], but in their own right to protect from invasion their own individual rights as members. [33] The application of the Rule in Foss v Harbottle, in the context of aboriginal claims, was discussed by Slatter J. in Papaschase

at para.176: In discussing the enforcement of aboriginal claims, a distinction can also usefully be drawn between derivative claims, collective claims,and combined claims. A derivative claim arises when one member of a collective organization tries to assert a right that belongs to thecollective. The classic case is the decision in Foss v. Harbottle (1843), 2 Hare 189 where a shareholder tried to enforce a right belongingto the corporation. Other examples would be if a Band member tried to enforce a claim belonging to the Band, or if one member tried toenforce a right belonging to an unincorporated organization.

There is a general prohibition against derivative claims (PrudentialAssurance Co. Ltd. v. Newman Industries, [1982] 1 Ch. 204 (C.A.) at pg. 210), but there are exceptions, for example where the collectiveis for some reason itself incapable of suing. The most common reason a collective entity is incapable of suing is because it is not a legalperson, but this may occur as well if the entity lacks a controlling mind, or the proposed defendant is that controlling mind.

Purportedrepresentative actions by members of a band seeking to enforce collective rights owned by the band are a form of derivative claim notallowed unless one of the exceptions to the rule against such claims is engaged. If the band exists in a viable form, the band itself shouldsue through its representative leaders.

It is for this reason that actions by “the Chief and Councillors on behalf of all the members of theband” are a misnomer, as they are really derivative claims on behalf of the band, not on behalf of the individual members. [34] As Slatter J. points out, there may be an exception to the general prohibition against derivative claims where the collective isfor some reason incapable of suing, because it is not a legal person or because it lacks a controlling mind. Neither of these exceptionsapply to the present action. The Plaintiffs rely on the proposition that the Rule in Foss v.

Harbottle does not apply where what has beendone amounts to a "fraud on the minority" and the wrongdoers are themselves in control of the collective organization. It seems to me,however, that this would require some allegation of wrongdoing on the part of the Chief and Council of MCFN. There is no allegation offraud perpetrated against a minority of members of MCFN. Neither MCFN, nor any of its individual members, nor any Chiefs andCouncils of MCFN past or present have been named in this Action as Defendants.

Moreover, I agree with MCFN that, if the majority ofthe Band members believe that they have not been appropriately represented by the Chief and Council, there is a method by way of anelection to remedy the issue. [35] The exception to the Rule in Foss v Harbottle will not apply where, as here, the majority of the members of MCFN have thepower to remove the current Chief and Council and elect a Chief and Council that would authorize an action. The membership of MFCNis under no disability in this regard.

The Plaintiffs further argue that they should be allowed to pursue a derivative claim because theChief and Council are in a position of conflict of interest and consequently will refuse to authorize this Action, but they do not explainhow this conflict arises. The indemnity that was given to Canada under the Settlement Agreement was given by MCFN, not by the Chiefand Council personally. The Chief and Council are personally in no more of a conflict position than any other individual member ofMCFN.

Moreover, if the Plaintiffs were successful in setting aside the Consent Order on the basis of fraud, the terms of the SettlementAgreement would fall away. It seems unlikely the indemnity provisions would be severable from the rest of the Settlement Agreement.They would be void, and there would be no conflict. [36] The facts as pleaded in the Amended Statement of Claim do not support the proposition that there has been wrongdoing on thepart of the leadership of MCFN such that it is necessary to authorize a derivative action on its behalf.

The Plaintiffs do not have therequisite standing to bring an action on behalf of MCFN and/or its members. The Plaintiffs’ Standing to Bring this Action on Their OwnBehalf [37] While Slatter J. in Papaschase confirmed that, in general, claims made by Indian Bands are claims for collective rights, henoted, at para.181: Of course if the right in question is not a Band right at all, but rather a right of an individual member of the Band, then the individualmember could sue alone, or could combine with other members to form a class and sue in a class action.

Where the members of such aclass include the whole of the Band, this type of class action might look very similar to a representative action to enforce a collectiveBand right, but the two types of action are fundamentally different. [38] The question of whether the right in issue is a Band right, or an individual one, is not always straightforward. The Plaintiffscontend that the right to land “in severalty” as set out in Treaty No. 8 is an individual right that could not be extinguished by thereferendum approving the Settlement Agreement and that a claim to enforce it is not derivative, but individual.

The question of whichrights may be characterized as collective and as individual appears to be a developing one, and to date the issue of lands “in severalty”under Treaty No. 8 has not been considered in this context. [39] In Grant v. Canada (Attorney General) (2006) (ON SC), 77 OR (3d) 481 (SCJ) a class action wasbrought by members of an aboriginal community who alleged that toxic mould developed in new housing after Canada relocated a FirstNation community.

The plaintiffs claimed this had resulted from the failure of Canada to properly assess the suitability of the newlocation for residential housing and the selection of building materials, techniques and designs, and their claims in negligence and breachof fiduciary duty were permitted to proceed as a class action. In Picard v.

Quebec (Attorney General), 2007 QCCS 2122 (SC), a classaction was permitted to proceed on behalf of all Indians within the meaning of the Indian Act who had paid a provincial fuel tax on fuelpurchased on reserves in the Province of Quebec. [40] Papaschase, Grant and Picard were considered by the Manitoba Court of Appeal in Soldier v.

Canada, 2009 MBCA 12.That case involved a class certification proceeding in respect of the entitlement to annuity payments under Treaties No. 1 and 2, whichprovide that, in return for the ceding of certain lands, Canada would “in every year ensuing pay to each Indian family of five persons thesum of fifteen dollars Canadian currency, or in like proportion for a larger or smaller family...”.

The certification judge refused to certifya class proceeding on the basis that treaty rights are collective, belonging to the band as a whole and not to individual band members, andtherefore the individual plaintiffs did not have standing to bring the claim. The Manitoba Court of Appeal dismissed the appeal on thebasis that the certification judge had not erred in concluding that a class action was not the preferable procedure for the fair and efficient

resolution of the common issues. Nevertheless, Steel JA in Soldier was of the view that the certification judge had erred in concludingthat entitlement to the annuity was a collective right for which an individual could not sue, holding, at paras.47-49: It is true that aboriginal claims usually deal with collective rights. They generally assert rights that belong to the Band as a whole, and notto any individual member... Where the collective entity does not itself have the legal capacity to sue in its own name, then collectiveclaims must be asserted by some individual members suing in a representative capacity.

As was explained in Papaschase, thesecollective rights do not vest in any particular individual, they cannot be sold or transferred, and they do not devolve on descendants underwills or by intestacy (at para. 173). They are owned by and enjoyed by the community as it exists from time to time. I note in passing that these communal aboriginal rights should be distinguished from aboriginal title. The distinction between aboriginalrights and aboriginal title is set out by the Supreme Court of Canada in Delgamuukw v. British Columbia, (SCC),[1997] 3 SCR 1010.

Aboriginal rights fall along a spectrum related to the degree specific activities have to the land. Aboriginal title is aright in land and is more than a right to engage in certain activities. Aboriginal title is not personal or individual but is a communal right held by all members of an aboriginal group. See Nemaiah Valley Indian Band v. Riverside Forest Products Ltd., (2000), 37 C.P.C. (4th)101 at para 8 (B.C.S.C.). However, some aboriginal rights are personal or private rights.

It may even be argued that different types of treaty rights should betreated differently and that, as the treaty right at issue here involves the payment of money or provision of goods to Indians by thegovernment, it is different from broader treaty rights involving hunting, fishing or other traditional Aboriginal activities (which are moreakin to Aboriginal rights). [41] Ultimately, the Court in Soldier dismissed the appeal on the basis that the proposed class proceeding was not the preferableprocedure, but with respect to the individual or collective nature of the right to the payment of the annuity under the Treaty, noted, atpara.59: ...it becomes clear that the answer to whether this is a matter of collective rights to be litigated by way of a representative action or amatter of common rights to be litigated by way of class proceedings is not so clear a matter of law that it can be said that it is plain andobvious that the plaintiffs have no standing and therefore no cause of action.

I find that the judge erred in so holding. [42] The Supreme Court of Canada considered the question in Behn, where the issue was whether an individual member or groupof members of an Aboriginal community could raise a breach of treaty rights as a defence to a tort action. Like Soldier, Behn wasultimately decided on other grounds. Lebel J. concluded that the defendants could not raise a breach of the duty to consult as a defencebecause it was an abuse of process, the defendants having failed to raise legal challenges to the timber licenses in issue at the appropriatetime.

With respect to the individual or collective nature of Aboriginal and treaty rights, Lebel J. held, at paras. 34-35: Some interesting suggestions have been made in respect of the classification of Aboriginal and treaty rights. For example, the intervenersGrand Council of the Crees and Cree Regional Authority propose in their factum, at para. 14, that a distinction be made between threetypes of Aboriginal and treaty rights: (

a) rights that are exclusively collective; (

b) rights that are mixed; and (

c) rights that arepredominantly individual. These interveners also attempt to classify a variety of rights on the basis of these three categories. These suggestions bear witness to the diversity of Aboriginal and treaty rights. But I would not, on the occasion of this appeal and at thisstage of the development of the law, try to develop broad categories for these rights and to slot each right in the appropriate one.

It willsuffice to acknowledge that, despite the critical importance of the collective aspect of Aboriginal and treaty rights, rights may sometimesbe assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in theirfavour. In a broad sense, it could be said that these rights might belong to them or that they have an individual aspect regardless of theircollective nature.

Nothing more need be said at this time. [43] The issue is therefore a complex one and not so simple, as Lebel J. in Behn made clear, as to say that all Aboriginal rightsderived from treaty are collective rights which only the collective may take action to enforce. Nevertheless, in the present case I am notsatisfied that the right in issue, which is the right to land in severalty under Treaty No.8, is one that lends itself to an individual claim.The promise of land in severalty to those members of Treaty No. 8 Bands is inextricably connected to the promise of reserve lands.

Thereserve land entitlement is calculated with regard to the number of members of the Band electing to live on the reserve and thereforenecessarily with regard to the number of members of the Band who have elected to take lands in severalty. Like reserve lands, landstaken in severalty are subject to the restraint on alienation without the consent of the Governor General of Canada. These lands, likereserve lands, are set aside for the protection of the members of MCFN as a whole.

It is difficult to conceive how the MCFN couldnegotiate its land claims with Canada without the entitlement to land in severalty forming part of that negotiation. Any attempt to finallyresolve the issues between the MCFN, Canada and Alberta would have to take that entitlement into account. Class Action [44] I agree with the Defendants that this Action is a true derivative claim. For the reasons set out above, the proposedrepresentatives do not have individual standing. As such, they are not adequate representatives for a class proceeding.

Though the partiesspent some time in argument with respect to the criteria for class actions set out in Western Canada Shopping Centres Inc v Dutton,2001 SCC 46 , [2001] 2 SCR 534, it is not necessary to consider these criteria at length. The proposed representatives, lackingstanding and the consent of MCFN, do not adequately represent the proposed class, which is all members of MCFN. A class proceedingin this context would effectively challenge the right of MCFN to govern itself.

A representative action authorized by the Chief andCouncil of MCFN, such as was commenced in 1996 and concluded in 2006, is the preferable procedure. I would therefore decline tocertify class proceeding in the circumstances. Conclusion

[ 45 ] It is fundamental to the resolution of disputes between the Crown and Aboriginal People that the Crown is able to rely on the authority of the Bands with whom it deals. Federal and Provincial governments, other Aboriginal governments, the members of the First Nation, and third parties should be able to rely on the First Nation's elected leadership to speak on behalf of the membership.

If these individual Plaintiffs have standing to set aside the Consent Judgment, there is no reason that other members of MCFN might not also advance in the courts another contrary view of the nature of Treaty 8 rights and the issues that the Crown and MCFN resolved through litigation and long, complex negotiations. There would be no certainty for Canada and Alberta, nor for MCFN and its individual members. [ 46 ] The Plaintiffs have not been authorized by MCFN to bring this Action to set aside the Consent Judgment.

The allegations and relief sought in this Action are essentially identical to those in the 1996 Action. Those allegations relate to collective rights under Treaty No. 8. The additional claims, which include the allegation that the settlement of the 1996 claim was obtained by improper or fraudulent behaviour, are also claims relating to duties owed by the various Defendants to MCFN as a collective. The Plaintiffs lack standing to bring these claims. Because they do not have standing as individuals, the Plaintiffs are not adequate representatives of the proposed class of all members of MCFN.

The application to strike the Plaintiffs’ Action in its entirety is therefore allowed, because the Plaintiffs’ Action discloses no reasonable cause of action and in otherwise improper, because the Plaintiffs have no standing to bring it. [ 47 ] The parties may speak to costs in the absence of agreement. Heard on the 29 th day of September, 2015. Dated at the City of Calgary, Alberta this 31 st day of March, 2016. Neil Wittmann C.J.C.Q.B.A. Appearances: J.R.W. Rath/C. Drysdall/P. Reid for the Plaintiffs D.P. Mallon, Q.C./P.J.C. Prowse for the Mikisew Cree First Nation M. Kindrachuk/C.

Ashcroft for the Defendants Attorney General of Canada and Former Deputy Minister of Aboriginal Affairs and Northern Development Michael Wernick G.K. Epp/D. Matchett for the Defendants Her Majesty the Queen in the Right of Alberta and Neil Reddekopp K. Webber for the Defendants Robert Janes, Robert Freedman, Cook Roberts LLP and Miller Thomson LLP

J.B.C. Champion, Q.C. for the Defendants N. Kate Kempton and Olthius, Kleer, Townshend LLP R.J. Potts for the Defendants N. Kate Kempton and Olthius, Kleer, Townshend LLP