Louison v. Ochapowace Indian Band No. 71 et al., 2011 SKQB 87

• Judge: Pritchard, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 24, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 87;(2011), 369 Sask.R. 258 (QB)

Louison v. Ochapowace Indian Band (2011), 369 Sask.R. 258 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. FE.072

William Louison (plaintiff) v. Ochapowace Indian Band #71, 312050 Saskatchewan Ltd., Her Majesty the Queen Elizabeth II, Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Saskatchewan (defendants)

(2009 Q.B.G. No. 293; 2011 SKQB 87)

Indexed As: Louison v. Ochapowace Indian Band No. 71 et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Pritchard, J.

February 24, 2011.

Summary:

The defendants Ochapowace Indian Band #71 (Ochapowace) and 312050 Saskatchewan Ltd. (a corporation wholly owned by Ochapowace), as well as the defendant Her Majesty the Queen in Right of Saskatchewan, applied for orders under Queen's Bench Rule 173 striking out the plaintiff's statement of claim, primarily on the basis that it disclosed no reasonable cause of action or was otherwise an abuse of process. Common to both applications was the submission that the plaintiff lacked standing to bring a claim of Aboriginal or "Indigenous Title", that Aboriginal rights were held by Aboriginal people in common and could not be the subject of a personal claim.

The Saskatchewan Court of Queen's Bench allowed the applications and dismissed the action without leave to amend.

Indians, Inuit and Métis - Topic 503

Rights - General - Individuality v. collectivity - The plaintiff individual sued the defendants claiming Aboriginal or "Indigenous Title" to certain lands - The defendants Ochapowace Indian Band #71 (Ochapowace) and 312050 Saskatchewan Ltd. (a corporation wholly owned by Ochapowace), as well as the defendant Her Majesty the Queen in Right of Saskatchewan, applied for orders under Queen's Bench Rule 173 striking out the statement of claim, primarily on the basis that it disclosed no reasonable cause of action or was otherwise an abuse of process - Common to both applications was the submission that the plaintiff lacked standing to bring a claim of Aboriginal or "Indigenous Title", that Aboriginal rights were held by Aboriginal people in common and could not be the subject of a personal claim - Under his proposed amended claim, the plaintiff purported to sue not only in his personal capacity but also "in a representative capacity on behalf of all Indigenous Peoples of Saskatchewan" - The plaintiff claimed "Indigenous Title" to the disputed lands "both as an individual and collectively as part of the Indigenous People" - The plaintiff stated that he "further claims on behalf of other Indigenous Peoples of Saskatchewan a similar right to Indigenous Title to other lands subject to Indigenous Title" - The Saskatchewan Court of Queen's Bench held that despite these and other proposed amendments, the plaintiff's claim still related first and foremost to a dispute between the plaintiff and Ochapowace regarding the plaintiff's continued occupation of lands specified in the claim - The claim was clearly misguided and could not succeed - The court allowed the defendants' applications to strike the statement of claim and dismissed the action without leave to amend.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Claim for ownership - Requirements for - [See Indians, Inuit and Métis - Topic 503 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Indians, Inuit and Métis - Topic 503 ].

Cases Noticed:

Canadian National Railway Co. v. Brant et al., [2009] O.T.C. Uned. F18; 96 O.R.(3d) 734 (Sup. Ct.), refd to. [para. 2].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, folld. [para. 8].

Wahsatnow v. Canada (Minister of Indian Affairs and Northern Development) (2002), 228 F.T.R. 92 (T.D.), folld. [para. 9].

Counsel:

B.N. Stephaniuk, for the plaintiff;

M. Phillips, for the defendants, Ochapowace Indian Band # 71 and 312050 Saskatchewan Ltd.;

S.J. Harvey, for the Attorney General of Canada, for the sole purpose of asserting it as the proper party rather than the named defendant, Her Majesty the Queen In Right of Canada;

R.J. Fyfe, for the defendant, Her Majesty the Queen in Right of Saskatchewan;

No one appearing, for the defendant, Her Majesty the Queen Elizabeth II and no proof of service filed.

These applications were heard by Pritchard, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following decision on February 24, 2011.