Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (2011) 387 F.T.R. 102 (FC)

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: March 25, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 387 F.T.R. 102 (FC);2011 FC 230

Daniels v. Can. (2011), 387 F.T.R. 102 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. FE.056

Harry Daniels, Gabriel Daniels, Leah Gardner, Terry Joudrey and the Congress of Aboriginal Peoples (plaintiffs) v. Her Majesty the Queen, as represented by The Minister of Indian Affairs and Northern Development and the Attorney General of Canada (defendants)

(T-2172-99; 2011 FC 230)

Indexed As: Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Federal Court

Phelan, J.

March 25, 2011.

Summary:

The individual plaintiffs were non-status Indians and Métis and the other plaintiff, the Congress of Aboriginal Peoples, was a group that represented Métis and non-status Indian peoples throughout Canada. The plaintiffs sought declaratory relief to establish: (1) that Métis and non-status Indians were Indians as the term was used in s. 91(24) of the Constitution Act of 1867; (2) that the Crown owed to Métis and to non-status Indians a fiduciary duty as Aboriginal peoples; and (3) that they had a right to be negotiated with, on a collective basis, in good faith by the Crown. The plaintiffs moved for an advance order for costs in order that the final preparation and trial could be funded. The action had been funded to date under the Test Case Funding Program which funding was about to expire.

The Federal Court allowed the motion and ordered the defendants to pay an amount for costs of $375,000.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - The individual plaintiffs were non-status Indians and Métis and the other plaintiff, the Congress of Aboriginal Peoples, was a group that represented Métis and non-status Indian peoples throughout Canada - The plaintiffs sought declaratory relief to establish: (1) that Métis and non-status Indians were Indians as the term was used in s. 91(24) of the Constitution Act of 1867; (2) that the Crown owed to Métis and to non-status Indians a fiduciary duty as Aboriginal peoples; and (3) that they had a right to be negotiated with, on a collective basis, in good faith by the Crown - The plaintiffs moved for an advance order for costs in order that the final preparation and trial could be funded - The action had been funded to date under the Test Case Funding Program which funding was about to expire - The grounds for the motion were that "(a) the Plaintiffs cannot afford to pay for the litigation and no other realistic funding option exists; (b) the claim is serious and there is a reasonable possibility of success; (c) it is contrary to the public interest that the case not proceed because of the Plaintiffs' lack of financial means; and (d) the issues raised are of public importance and remain unresolved" - The Federal Court allowed the motion and ordered the defendants to pay an amount for costs of $375,000.

Cases Noticed:

R. v. Caron (G.) (2011), 499 A.R. 309; 514 W.A.C. 309; 411 N.R. 89; 2011 SCC 5, refd to. [para. 15].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 15].

Manitoba Métis Federation Inc. v. Canada (Attorney General) et al. (2010), 255 Man.R.(2d) 167; 486 W.A.C. 167; 2010 MBCA 71, refd to. [para. 17].

Joseph - see Hagwilget Indian Band v. Canada (Minister of Indian Affairs and Northern Development).

Hagwilget Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2008), 328 F.T.R. 215; 2008 FC 574, refd to. [para. 24].

Counsel:

Andrew Lokan, for the plaintiffs;

Sheila Read and Donna Tomljanovic, for the defendants.

Solicitors of Record:

Paliare Roland, Toronto, Ontario, for the plaintiffs;

Myles J. Kirvan, Deputy Attorney General of Canada, Edmonton, Alberta, for the defendants.

This motion was heard in Toronto, Ontario, on February 15 and 18, 2011, by Phelan, J., of the Federal Court, who filed the following reasons for order on March 25, 2011.