THAHOKETOTEH OF KANEKOTA Plaintiff v. HER MAJESTY, 2013 FC 350

Date: 20130408 Docket: T-2007-12 Citation: 2013 FC 350 Ottawa , Ontario , April 8, 2013 PRESENT: The Honourable Madam Justice Snider BETWEEN: THAHOKETOTEH OF KANEKOTA Plaintiff and HER MAJESTY THE QUEEN Defendant REASONS FOR ORDER AND ORDER [ 1 ] The Plaintiff, who is self represented, commenced an action against Her Majesty the Queen [the Crown or the Defendant] in this Court by serving and filing a Statement of Claim on November 5, 2012. The Plaintiff seeks: [A] declaration that [HMQ] is under the “legal duty” type of “Trust” within the meaning of In re Indian Claims (1896) and

section 109 of the Constitution Act, 1867 , not to apply or permit the application of federal or provincial law to the Grand River or Haldimand Tract except by treaty in compliance with the Royal Proclamation of 1763 and proven, in the event of dispute, before the Standing Royal Committee consulted by the Order in Council (UK), 1704 . [ 2 ] Beyond a description of himself as being “Onkwehonwe . . . of the Kanionkehaka [. . . Mohawk] Nation”, the Plaintiff pleads no facts. Rather, the Plaintiff’s Statement of Claim consists of a series of legal submissions.

In the final paragraph 14 of his Statement of Claim, the Plaintiff states that: The only genuine issue is the prima facie identity of the proper law of the territory and corresponding trust relationship between the parties, a question of constitutional jurisdictional law alone that is settled for stare decisis purposes. [ 3 ] On this basis, the Plaintiff proposes that the action be disposed of on the basis of Rule 220(1) (

a) of the Federal Courts Rules, SOR/98-106 as a preliminary question of constitutional law and, concurrent with his Statement of Claim, also filed a “Motion Record” asking the Court to determine the above question. [ 4 ] On January 3, 2013, the Defendant filed a Motion to strike the Plaintiff’s action. The Defendant asserts that the action should be struck on the basis that it is plain and evident that the claim cannot succeed (Rule 221(1)(a)). [ 5 ] For the reasons which follow, I agree with the Defendant and will strike the action without leave to amend. There are two overarching reasons for this conclusion: (

a) there are no factual underpinnings to the claim; and (

b) the action has no reasonable grounds

of success. Lack of Factual Context [6] The Plaintiff seeks a substantial declaration of his constitutional rights. However, the fatal flaw in his Statement of Claim isthat it sets out no specific allegations against the Defendant, beyond what I infer to be a vague and general assertion that the Defendanthas not recognized the land rights of the Kanionkehaka Nation or the trust relationship between that First Nation and the Crown. Noinstances or details of how this alleged failure has impacted the Plaintiff are pleaded.

This is not an appropriate situation to decide a purequestion of law, since the question posed is entirely hypothetical and lacks factual context. [7] A cause of action must lie on material facts. This is particularly true of actions in which a plaintiff seeks to resolve aconstitutional question. As has been clearly pointed out by the Supreme Court of Canada, “Constitutional questions should not bediscussed in a factual vacuum” (Kitkatla Band v.

British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31 atpara 46, [2002] 2 SCR 146). [8] I am cognisant that this Court is willing to adjudicate pure questions of law in certain instances.

For example, in Daniels vCanada (Minister of Indian Affairs and Northern Development), 2008 FC 823, [2008] FCJ No 1025 [Daniels (Hugessen J)], JusticeHugessen refused to strike a statement of claim for declaratory relief vis-à-vis the rights of non-status Indians and the Métis. [9] However, in contrast to the present case, the Statement of Claim in Daniels disclosed many material facts and presentedmuch more than a hypothetical legal question As described by Prothonotary Hargrave in an earlier decision involving the same claim(Daniels v Canada (Minister of Indian Affairs and Northern Development), 2002 FCT 295 at para 5, [2002] 4 FC 550): The claim which the Plaintiffs now bring is not for any specific rights, but rather for declarations first, as to the scope of "Indians",within subsection 91(24) of the Constitution Act, 1867; second, that they are owed a fiduciary duty by the Crown; and third, that they areentitled, in the abstract, to be negotiated with in good faith.

As I have indicated, no specific rights are set out as being sought, howeverthe Statement of Claim does enumerate a number of examples of denials and refusals met by Métis and non-status Indians, including as tohealth care benefits; education benefits; lack of access to material and cultural benefits available to status Indians; criminal prosecutionfor seeking to exercise Aboriginal rights to hunt, trap, fish and gather on public lands; and a failure on the part of the federal governmentto negotiate or enter treaties with respect to unextinguished Aboriginal rights.

It is not these denied benefits, per se, which the Plaintiffsseek to embody in the relief sought in the Statement of Claim, but rather they seek declarations which, in turn, might allow the Plaintiffs,as examples of non-status Indian and Métis people, to one day prove an entitlement to that of which they say they have been deprived.The important aspect here is that the Plaintiffs look for a designation.

That such designation may, in the future, lead to a right is not, atthis point, relevant. [Emphasis added.] [10] Moreover, the record before the trial judge who ultimately heard the action was immense, including extensive experttestimony and over 800 exhibits, containing selections from over 15,000 documents (Daniels v Canada (Minister of Indian Affairs andNorthern Development), 2013 FC 6 at para 70, [2013] FCJ No 4 [Daniels (Phelan J)]). [11] Before me, I have no such statement of claim and no such record.

There is nothing in the Statement of Claim to describe howthe Plaintiff suffered harm in the absence of the declaration sought or how the declaration could assist him. [12] In Daniels (Hugessen J), above at para 7, Justice Hugessen described the requirements for obtaining declaratory relief asfollows: The classic three requirements in this and I think in every other Court for obtaining declaratory relief are: 1. That plaintiff has an interest. 2. That there be a serious contradictor for the claim. 3.

That the issue raised and upon which a declaration is sought is a real and serious one and not merely hypothetical oracademic. (Montana Band of Indians v. Canada, (FCA), [1991] 2 F.C. 30 (C.A.), leave to appeal to S.C.C. refused

(1991), [1991] S.C.C.A. No. 164, 136 N.R. 421). [13] In the case before me, the Plaintiff has raised an issue that is “merely hypothetical or academic”. In the circumstances, I am ofthe view that the action should be struck on the basis that it lacks a cause of action. No Reasonable Cause of Action [14] However, in the event that I am wrong and that this Statement of Claim pleads a justiciable issue, I turn to the question ofwhether there is a prospect that the claim will succeed. In other words, are the allegations made in the Statement of Claim sustainable ontheir merits?

The answer, in my view, is “no”. [15] The test for striking a claim is well known. As set out in R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17, [2011] 3SCR 45, “a claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses noreasonable cause of action”. [16] The Plaintiff’s entire claim rests on two documents. Firstly, he argues that the Grand River and Haldimand Tract should notbe subject to federal or provincial law, except as allowed by treaty, in accordance with the Royal Proclamation of 1763, RSC 1985, AppII, No 1 [Royal Proclamation].

Secondly, the Plaintiff asserts that the Standing Royal Committee constituted by an Order in Councildated 1704 has jurisdiction over any dispute in this regard. [17] In my view, both of these arguments are fatally flawed; neither the Royal Proclamation nor the 1704 Order in Council has theeffect asserted by the Plaintiff. Royal Proclamation [18] Contrary to the contention of the Plaintiff, the Royal Proclamation does not and cannot preclude the application of federal andprovincial law within the land at issue.

The Royal Proclamation was revoked before the land interest asserted by the Plaintiff first arose,rendering the proclamation irrelevant. [19] The Royal Proclamation is an exercise of royal prerogative (Chippewas of Sarnia Band v Canada (Attorney General) (2000), (ON CA), 51 OR (3d) 641 at paras 186-192, 195 DLR (4th) 135 (CA) [Chippewas]).

As such, it may be displaced bystatute (Black v Canada (Prime Minister) (2001), (ON CA), 54 OR (3d) 215 at para 27, 199 DLR (4th) 228 (CA)). [20] The problem for the Plaintiff is that the Royal Proclamation, insofar as it may have affected the lands that are the subject ofthe Plaintiff’s pleadings, was revoked by the Quebec Act, 1774 (UK), 14 George III, c 83 [Quebec Act]. In particular,

section IV of theQuebec Act repealed the Royal Proclamation as it relates to the government and administration of justice in Quebec and southernOntario, which, at that time, formed part of Quebec. [21] This understanding of the history of the Royal Proclamation gives rise to the fatal flaw in the Plaintiff’s argument. ThePlaintiff relies on a land grant to the Mohawks in the Haldimand Proclamation of 1784. Aboriginal interests protected by the RoyalProclamation, while in force, continued in accordance with

section III of the Quebec Act (see, for example, St Catharines Milling andLumber Co v Ontario (Attorney General) (1887), 1887 CanLII 3 (SCC), 13 SCR 577 at 648; Ontario (Attorney General) v Bear IslandFoundation (1989), (ON CA), 68 OR (2d) 394 at 410, 58 DLR (4th) 117 (CA) aff’d (SCC), [1991] 2SCR 570, 83 DLR (4th) 381 [Bear Island]). However, the interest now asserted by the Plaintiff did not arise until after the repeal of theRoyal Proclamation.

The Royal Proclamation cannot have any legal relevance to an interest in land that did not exist until after it wasrevoked. [22] The present situation resembles the Bear Island case.

In Bear Island, the Ontario Court of Appeal determined that the QuebecAct revoked the surrender provisions of the Royal Proclamation Consequently, a surrender that occurred after this revocation was notsubject to the surrender procedures in the proclamation (Bear Island, above at 410; see, also, Chippewas, above at paras 19, 186-219).Similarly, in the present case, an interest which arose through a land grant in 1784 cannot be protected by the Royal Proclamation,repealed in 1775.

[23] In sum, it is plain and obvious that the Royal Proclamation cannot preclude the application of federal and provincial lawbased on the arguments of the Plaintiff. Order in Council [24] The Order in Council asserted by the Plaintiff neither precludes the application of federal and provincial law, nor provides fora dispute resolution mechanism applicable to all disputes between First Nations and the Crown. [25] The 1704 Order in Council specifically addresses a particular dispute between the Crown and the Mohegans.

The purpose ofthe Commission created by the Order in Council was to protect the interests of the Mohegans in their reserve land in a peaceful manner.This dispute resolution mechanism, crafted to resolve a particular conflict over three hundred years ago, does not apply generally todisputes between First Nations and the Crown. In R v Clark, [1997] BCJ No 715 (Prov Ct) at paragraphs 33-35, Justice Friesen came tothis conclusion in the context of contempt proceedings.

Justice Bowman of the Tax Court of Canada similarly found that the 1704 Orderin Council has no legal relevance in Canada, and, even if it did, any legal effect would not be preserved by s. 109 and s. 129 of theConstitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 (Clark v Canada, [1994] TCJ No 1046 at paras 12-16, aff’d (FCA), [1997] 2 CTC 334, [1997] FCJ No 555 (CA)). [26] Moreover, any appeal to the Privy Council created by the 1704 Order in Council was abolished in

Section 52 of theSupreme Court Act, RSC 1985, c S-26 provides the Supreme Court with “exclusive ultimate appellate civil and criminal jurisdictionwithin and for Canada”.

The Supreme Court Act was declared intra vires by both the Supreme Court and Judicial Committee of the PrivyCouncil (Reference Re Supreme Court Act Amendment Act (Canada), (SCC), [1940] SCR 49 at 69-70; Ontario (AttorneyGeneral) v Canada (Attorney General), (UK JCPC), [1947] AC 127, [1947] 1 DLR 801 (PC)). [27] In sum, the 1704 Order in Council created a specific dispute resolution mechanism to resolve a specific conflict that aroseover three hundred years ago.

It is plain and obvious that this Order in Council does not have general application to disputes betweenFirst Nations and the Crown as asserted by the Plaintiff. Conclusion [28] In conclusion, it is clear and obvious that the claim of the Plaintiff cannot succeed. Furthermore, there is nothing reflected inthe pleadings that could, if amended, give rise to a cause of action. Therefore, the claim will be struck without leave to amend. [29] It follows that the Plaintiff’s motion to have this Court determine the questions in issue as a question of law, pursuant to Rule220(1)(

a) of the Federal Courts Rules, will be dismissed. ORDER THIS COURT ORDERS AND ADJUDGES that: 1. the Motion of the Defendant is granted and the action set out in the Statement of Claim of the Plaintiff is struck withoutleave to amend, with costs to the Defendant in the lump sum of $500, inclusive of taxes and disbursements; and 2. the Motion of the Plaintiff to have this Court determine a question of law pursuant to Rule 220(1)(

a) of the Federal CourtsRules is dismissed.

“Judith A. Snider” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2007-12 STYLE OF CAUSE: THAHOKETOTEH KANEKOTA v HER MAJESTY THE QUEEN PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MARCH 25, 2013 REASONS FOR ORDER AND ORDER: SNIDER J. DATED: APRIL 8 2013 APPEARANCES : Thahoketoteh of Kanekota FOR THE PLAINTIFF (ON HIS OWN BEHALF) Mr. Michael McCulloch FOR THE DEFENDANT SOLICITORS OF RECORD : Thahoketoteh of Kanekota Shelburne , Ontario FOR THE PLAINTIFF (ON HIS OWN BEHALF) William F. Pentney Deputy Attorney General of Canada FOR THE DEFENDANT