NATIVE PEOPLES |
Native Council of Nova Scotia v. Canada (Attorney General)
T-689-01
2002 FCT 6, Blanchard J.
4/1/02
11 pp.
Motion to strike statement of claim or parts thereof--In underlying action, individual plaintiffs "off reserve" Indians claiming respondent breached duty to consult owed to them with regard to certain agreements (especially 1999-2000, 2000-2001 fishing agreements) between Province of Nova Scotia and 13 Indian Act Chiefs in Nova Scotia--Motion dismissed; however, statement of claim struck with leave to plaintiffs to serve and file amended statement of claim in accordance with reasons--Not case where beyond doubt case could not succeed at trial--Field of Aboriginal law in Canada in state of rapid evolution and change in recent years; claims considered outlandish or outrageous only few years ago now being accepted: Shubenacadie Indian Band v. Canada (Attorney General), [2001] F.C.J. No. 347 (T.D.) (QL)-- Whether duty to consult exists with respect to off-reserve status and/or non-status Indians and extent to which such duty applying in context of present case issues that should not disposed of in interlocutory proceeding--Although defendants have not met onus required to have claim struck out, as statement of claim deficient in number of respects, entire statement of claim struck with leave to plaintiffs to serve and file amended statement of claim in accordance with reasons--Native Council of Nova Scotia, registered society, to be struck as plaintiff as does not have same interest as individual plaintiffs--Council not owed duty of consultation even though its members might be--Furthermore, Council not necessary party to proceedings since would not be bound by result and participation not required to settle issue before Court--Individual plaintiffs have not established factual foundation to show same interest with respect to treaty rights as all other off-reserve Mi'kmaq, therefore cannot bring action as representative action on behalf of all members and constituents of Council--In order for defendants to be able to defend action, plaintiffs must set forth in amended statement of claim material facts establishing bases for rights claims and how rights said to be infringed.