FSIN lawsuit given green light

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An attempt by the federal government to bring a stop to the Federation of Saskatchewan Indian Nations' legal action against the First Nations governance act was not successful.

The legal action, brought by the FSIN Senate under the name of former Senator David Ahenakew, asked for "a permanent constitutional injunction prohibiting the defendants or their agents or servants from passing the bill in question in Parliament."

It also asked the court to issue several declarations.

"That the bill will have no application to treaty Indians in Saskatchewan. That the defendants [the Crown] have breached their fiduciary obligations and duties to protect the rights and privileges of the plaintiffs and not to engage in improper or coercive acts against them," and "That in future, the defendants, when enacting statutes with respect to First Nations people, must act within the honor of the Crown and its fiduciary duties by conducting meaningful consultations with full disclosure to the leadership of the First Nations of Canada in advance of introducing a proposed statute."

Lawyers for the Crown argued that if the action was allowed to continue it would curtail the freedom of speech and debate in Parliament assured by statute and the Constitution. They also argued that the legal action should be struck because it "is frivolous, vexatious and an abuse of the process of the court."

Federal Court Judge W. Andrew MacKay issued his decision on the matter on March 13 after hearing arguments in Regina on Sept. 26, 2002.

The judge noted that the lawsuit was actually filed in response to Bill C-61, which died on the order paper when Parliament was prorogued last year. But he ruled that the action could continue on Bill C-7, the proposed legislation that replaces C-61 in this sitting of Parliament.

"It is only in the very clearest of cases that the court should strike out the statement of claim," said the judge. "This, in my view, is especially the case in this field, that is the field of Aboriginal law, which in recent years in Canada has been in a state of rapid evolution and change. Claims which might have been considered outlandish or outrageous only a few years ago are now being accepted. If there is in a pleading a glimmer of a cause of action, even though vaguely or imperfectly stated, it should be allowed to go forward . . ."

Crown lawyers argued that the lawsuit asks the court to interfere with the legislative process, something that is contrary to law. In some areas, the judge agreed. He ruled that a permanent injunction barring any future legislation like Bill C-7 was not possible because it would interfere with the legislative process.

But he would not throw out the entire claim.

"In my view, at this stage it would be inappropriate to strike the statement of claim in its entirety when, as I see it, an issue of fundamental importance to the rights of the respondents...," he wrote.

MacKay decided the statement of claim should be amended by striking out the request for an injunction and the damage claims against the minister and the Prime Minister. Also removed were the request that the court declare that the bill should have no application to treaty Indians in Saskatchewan.

"Insofar as the action seeks declarations concerning the claimed fiduciary duties of the Crown owed to the respondents in the development of legislation which may affect their Aboriginal, treaty or constitutional rights, the statement of claim may be continued. At this stage it cannot be said that this claim is certain to fail," he added.