Date: 20000107
Docket: T-1804-98
BETWEEN:
MÉTIS NATIONAL COUNCIL OF WOMEN,
SHEILA D. GENAILLE, JOYCE GUS, and DOREEN FLEURY
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] Before me in writing is a motion to strike the Fresh as Amended Statement of Claim (the "claim"). The claim reveals that the plaintiffs include the Métis National Council of Women ("MNCW") a non-profit organization representing some Métis women. It has 11 objects including: "to actively seek funding for the organization and its projects and activities".
[2] The MNCW also has a mandate which includes: "to promote and enhance the well-being of Métis women and families". The claim also states that the MNCW is the:
| only national Aboriginal organization that has as its primary purpose the representation of the interests of all Métis women in Canada, regardless of whether they live on or off settlements, in urban or rural areas, in Québec or other provinces, with regard to all the unique issues posed by both the agenda and their Métis heritage. |
The claim also states that the MNCW "is an independent and autonomous organization not affiliated with or related to the Métis National Council ("MNC") in any formal or organization manner. The MNC is governed by a council predominantly made up of men."
[3] The plaintiffs also include Sheila D. Genaille ("Genaille") a seventh generation Métis alleged to have a personal and direct interest in the matter set out in the claim. As president of MNCW she has been actively attempting to obtain job training and creation funding for Métis women.
[4] The plaintiffs also include Joyce Gus ("Gus") another individual plaintiff, and third generation Métis, and Doreen Fleury ("Fleury") a seventh generation Métis, both of whom have been active in the struggle for Métis women"s rights and have been active in attempting to obtain job training and creation funding for Métis women, and have made numerous unsuccessful applications to the Federal Government through the Pathways to Success Program for Aboriginal job training and employment and under the new structured Aboriginal Employment Program for job training and creation funding in order to participate in the allocation of funding to projects that will benefit Métis women, in order to obtain funding that can be translated into job training, educational and employment opportunities for native women, in order to gain the experience in the administration of such programs in order to help fund employment for themselves as Métis women, in order to increase resources available to deal with social, community, and relationship issues of particular concern to native women by virtue of their gender and their Métis heritage, and in order to deliver job training and creation programs to Métis women.
[5] Having perhaps oversimplified the qualifications of the plaintiffs, I will, subject to a similar possibility, attempt to simplify the situation giving rise to the action as follows.
[6] The Ottawa government decided to do something about the unemployment of Aboriginal people. For this purpose it nominated a committee composed of members of various organizations namely, Assembly of First Nations ("AFN"), Inuit Trapirisat Canada ("ITC"), Métis National Council ("MNC"), Native Women"s Association of Canada ("NWAC"), National Association of Friendship Centres ("NAFC"), Congress of Aboriginal Peoples ("CAP"). The function of the committee was to advise the government with regard to government spending intended to provide jobs and job training for Aboriginal people. At that time the corporate plaintiff did not exist.
[7] A scheme was devised and the government disbursed money for the purposes settled upon with the committee. The government then decided to delegate the actual allocation of funds to certain organizations being three of those from whom the members of the committee had come. The corporate plaintiff was by then in existence, but it was not asked to allocate any of the monies.
[8] The three organizations, which at first were allowed to allocate funds to spend, were those of the First Nations, the Inuit and the Métis National Organization, which entered into agreements with the government to distribute $200 million each through their regional organizations. The distribution system was to be devised to be inclusive of the objectives of the other three groups which originally participated in the committee but were not recipients directly of the $600 million provided to the three national organizations.
[9] It appears these objectives of inclusivity were not achieved and a further $20 million was provided to the three other organizations (NWAC, NAFC and CAP) represented on the original committee, non-participants in the $600 million. The $20 million was not made available to the regional subdivisions of these three additional groups. One of the three splitting the $20 million was the Native Women"s Association of Canada.
[10] None of the organizations allows participation in the allocation of funds by the corporate plaintiff. The alleged discrimination against Métis women, it is alleged, is perpetuated by the employment and training program because it authorizes Métis organizations and women"s organizations other than the corporate plaintiff and its affiliates to administer the program.
[11] The relief sought is six interim and permanent declarations and an injunction. The plaintiff also asks the Court to read into the 1997-98 or 1998-99 Regional Bilateral Agreements six terms requiring equality between men and women, equality between Métis men and Métis women, the appointment of Métis women representatives on each administrative board, equality between Métis living in Métis communities and Métis not so living, that jobs will be created equally for men and women in and outside Métis communities, and also requiring reading into the 1998-99 agreement that the MNCW is a signatory.
[12] The defendant seeks to have the claim struck on the grounds that this Court has no jurisdiction to dispose of an action seeking declarative or injunctive relief which is only available by the judicial review procedure as described by s. 18(3) of the Federal Court Act.
[13] The plaintiff states in response that the action is for declaratory relief and orders that the defendant has breached its common-law fiduciary obligations to the plaintiffs as Aboriginal persons and has violated the plaintiffs" rights under sections 15 and 28 of the Canadian Charter of Rights and Freedoms , and has violated the plaintiffs" Aboriginal rights under section 35 of the Constitution Act . The plaintiff argues that the Court"s jurisdiction arises in statutory law, common law and constitutional law, namely s.17(1) and s.48 of the Federal Court Act , Her Majesty the Queen"s fiduciary obligations to Aboriginal people, and section 15, 28, and 24(1), of the Canadian Charter of Rights and Freedoms and sections 35 and 52 of the Constitution Act, 1982.
[14] The plaintiffs further submit that the defendant in this action is clearly not a federal board, commission or tribunal and that therefore sections 18 and 18.1 of the Act have no application to the action. The plaintiffs particularly argue that s. 48 provides jurisdiction as does s. 17(1) of the Federal Court Act. They point out that Her Majesty the Queen is not a federal board, commission or other tribunal as defined in s. 2 of Federal Court Act, and the Crown cannot be named in a judicial review proceeding.
[15] The plaintiffs also state that they seek a finding that the defendant has fiduciary obligations to them as Aboriginal persons and has breached said fiduciary obligations. The plaintiff further argues that s. 24(1) of the Charter of Rights and Freedoms form an independent basis upon which the Court can order declaratory relief as sought by the plaintiffs in their amended statement of claim.
[16] In reply the defendant Crown states that the plaintiffs" challenge is to various administrative decisions made in 1995 pursuant to statutory authority to provide money for employment and training for Aboriginals. The plaintiffs are not challenging the constitutionality of the legislation pursuant to s. 52 of the Constitution Act, 1982 , but are challenging decisions made under that statutory authority. The defendant further argues that s. 48 does not confer jurisdiction; it only sets out how to serve and file claims for which the Court already has jurisdiction.
[17] The plaintiffs argue that the decision of a Minister or Ministers to enter bilateral agreements to transfer funds and devolve employment training programs directly to Aboriginals are strictly contractual agreements between the Aboriginal organizations and the federal government and involved the administration, fiscal responsibility and management of federal human resources.
[18] The plaintiff argues that s. 35(1) of the Constitution Act, 1982 has elevated unextinguished Aboriginal rights that existed before 1982 to constitutional status. The plaintiff argues that violations of Aboriginal rights recognized by s. 35(1) can be remedied under s. 52(1) of the Constitution Act, and that declaratory relief is one of the remedial options open to the Courts under s. 52(1) of the Constitution Act. The plaintiff argues that the Courts will grant declaratory relief under s. 52(1) for violations of the Crown"s fiduciary obligations to Aboriginal persons as well as for failure to engage in meaningful consultation and negotiation.
[19] In reply, the defendant states that the plaintiffs are Métis women who claim to have been denied access to the negotiation, administration and establishment of certain federal funding programs for the employment and training of Aboriginal people from 1997 to 1999. The defendant argues that the challenge is to the administrative decisions largely made in 1995 pursuant to statutory authority to provide monies for the employment and training of Aboriginal peoples and that such challenge should have been brought by way of judicial review of the federal administrative actions because the plaintiffs are challenging only the administrative decisions and not the constitutionality of the enabling legislation itself.
[20] The defendant claims that s. 48 is merely a procedural provision and does not provide an independent source of jurisdiction. The defendant submits that the plaintiffs claim challenges the administrative decisions by the Minister of Human Resource Development and the Secretary of State for Youth in 1995 (four years ago) to sign national funding agreements with MNC, NWAC, AFN, NAFC, ITC and CAP, and the regional units of MNC, AFN and ITC being organizations other than MNCW or Métis women"s groups to deliver job creation and training for Aboriginal peoples.
[21] The defendant further submits that when the Minister and the Commission made the impugned decisions to implement changes to the funding of such programs, to negotiate agreements with certain Aboriginal organizations and to allegedly refuse to negotiate with or grant the defendants funding, each were exercising delegated authority pursuant to valid federal legislation, which itself is not challenged herein. These organizations were therefore acting as a federal board commission or other tribunal within the meaning of s. 18. Accordingly, as a challenge to administrative action the plaintiffs concerns ought to have been launched as an application for judicial review under s. 18. Instead, the plaintiffs have filed an action seeking declarations pursuant to s. 17 and s. 48 of the Federal Court Act and have relied on case law which developed in the context of challenges to federal laws not administrative actions. The defendant goes on and states that the plaintiffs are not challenging any federal law or regulation, instead they challenge various administrative decisions made by officials acting pursuant to statutory authority namely, the Annual Appropriation Acts and the Unemployment Insurance Act.
[22] In summary, they argue that what is impugned is not the specific piece of legislation but the manner in which a federal program of government funding is being administered, all of which the defendant states supports the argument that this Court has no jurisdiction to entertain an action although it might have had to entertain an application for judicial review.
[23] The fiduciary duties of the Crown to Aboriginal peoples which it is alleged have not been carried out have not been particularized but, whatever they are, they presumably arise from the manner in which the various schemes outlined in the claim for the allocation of money for the provision of employment and training services to Aboriginals have been carried out or not carried out.
[24] Money does not allocate itself and operations do not "just happen". Anything involving money done by the Government is done because it is authorized by legislation and regulations made thereunder. The legislation is enacted by the Sovereign in Parliament, and if the legislation is impugned the proper defendant is the Sovereign. However, in this case it is stated that the legislation is not impugned.
[25] Given that an action is permitted or ordered by the legislation, the action will almost invariably be taken, or not, by a federal board, commission or other tribunal which terms are defined to include any body, any person or persons having or exercising or purporting to exercise jurisdiction or powers, etc. This is in brief who does, or being empowered to does not, do anything with respect to Aboriginals. The plaintiffs" counsel states, in effect, that the plaintiffs are seeking relief against the Crown for breaking its fiduciary obligation to Aboriginal women. From the relief claimed and the sections of the Constitution relied on, it is apparent that what is being complained of with regard to fiduciary obligations is that the plaintiffs have not been given the same as was given to other Aboriginal organizations. The "gift" to others and thus the complaint was at the level of the framework agreements which were made at the federal board level and not the Crown level. Thus, in seeking declarations that the plaintiffs should have been beneficiaries of or should have been allowed to allocate some of the expenditures authorized for Aboriginals for employment or training, the plaintiffs are seeking declaratory relief and they are not seeking it against the Crown in parliament for passing the legislation but are seeking it against a federal board for not including them in the board"s schemes which, as is provided by s.18(3) may be obtained on an application for judicial review made under s.18.1. That is to say, not by an action.
[26] The statement of claim will therefore be struck out. With regard to the possibility of converting to an application, it is provided in section 18.1(2) that an application for judicial review shall be made within 30 days after the time the decision or order was first communicated to the party directly affected thereby or within such further time as a Judge of the Trial Division may fix or allow. It being patent that 30 days has expired, a motion for extension would obviously be required before an application for judicial review could be filed.
"Peter A. K. Giles"
A.S.P.
TORONTO, ONTARIO
January 7, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1804-98
| STYLE OF CAUSE: MÉTIS NATIONAL COUNCIL OF WOMEN, SHEILA D. GENAILLE, JOYCE GUS, and DOREEN FLEURY |
- and -
| HER MAJESTY THE QUEEN |
MATTER CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: FRIDAY, JANUARY 7, 2000
WRITTEN SUBMISSIONS BY: Ms. Kathleen Lahey
For the Plaintiffs
Ms. Cassandra Kirewskie
For the Defendant
SOLICITORS OF RECORD: Kathleen Lahey
Barrister & Solicitor
86 Beverley Street
Kingston, Ontario
K7L 3Y6
For the Plaintiffs
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 20000107
Docket: T-1804-98
Between:
| MÉTIS NATIONAL COUNCIL OF WOMEN, SHEILA D. GENAILLE, JOYCE GUS, and DOREEN FLEURY |
Plaintiffs
- and -
| HER MAJESTY THE QUEEN |
Defendant
REASONS FOR ORDER
AND ORDER