Smerek et al. v. Areva Resources Canada Inc. et al., 2014 SKQB 282

• Judge: Rothery, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 05, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 282;(2014), 454 Sask.R. 217 (QB)

Smerek v. Areva Resources Can. Inc. (2014), 454 Sask.R. 217 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.021

Jon Smerek, Dale Smith, Fred Pederson, Emil Bell, Max C.D. Morin, Debbie Mihalicz, Candyce Paul, Mariuis Paul, Dr. Colin Lumby, Ethel Lumby, Kirstin Scansen, Dr. Howard Woodhouse, Mel Devine, D'Arcy Hande, Lorraine Beardsworth, Susan Anderson, Phil Banworth, Jacqueline Swiderki, Bryan Lee, Robert Stuart, Crystal Frenette, Sylvia Obridgewitsch, Sandra Finley, Patricia Shalapata, Michael Bray, Myek O'Shea, Nora Gardner, Susana Deranger, Terri Sleeva, Jim W. Elliot, Norma Jean Byrd, Pat McNamara, Dr. Warren Bell, Dorothy Wigmore, Earth Alternatives, Mother Earth Justice Advocates, Dr. Helen Caldicott, Dr. Pollie Lumby, James Smith, Hues3 Campaign Committee (plaintiffs) v. Areva Resources Canada Inc., Cameco Corporation, the Northern Village of Pinehouse, Mike Natomagan, Kineepik Metis Local Inc., Vince Natomagan, Her Majest(sic) the Queen in Right of the Province of Saskatchewan, and Her Majest (sic) the Queen in Right of the Government of Canada (defendants)

(2013 Q.B.G. No. 229; 2014 SKQB 282)

Indexed As: Smerek et al. v. Areva Resources Canada Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Rothery, J.

September 5, 2014.

Summary:

In a Collaboration Agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation. In turn, the Village and Kineepik agreed to support mine operations in its locale, subject to Areva and Cameco upholding their commitments. The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan (collectively, the defendants) for alleged causes of action arising from the Collaboration Agreement. The defendants applied to strike the entire claim. Clause 5.3, entitled "Non-Abrogation and Non-Derogation of Aboriginal Rights" was particularly relevant to the application.

The Saskatchewan Court of Queen's Bench analyzed each alleged cause of action and struck the claim in its entirety for disclosing no reasonable cause of action as required by rule 7-9(2)(a). The Court dealt with the defendants' alternate submission that the claim should be struck on the basis that it was scandalous, frivolous, vexatious and an abuse of the court's process (rules 7-9(2)(b) and (e)), in the exercise of its discretion to award costs. Each of the eight defendants was entitled to costs of $2,000, payable from all the plaintiffs jointly and severally.

Civil Rights - Topic 8589

Canadian Charter of Rights and Freedom - Practice - Pleadings - In a Collaboration Agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan - They alleged Charter violations arose from the Collaboration Agreement - All eight defendants joined in an application to strike the claim, pursuant to rule 7-9 of the Queen's Bench Rules - Clause 5.3 of the Agreement, entitled "Non-Abrogation and Non-Derogation of Aboriginal Rights" was particularly relevant to the application - The Saskatchewan Court of Queen's Bench struck all pleadings alleging violation of the Charter, for disclosing no reasonable cause of action as required by rule 7-9(2)(a) - See paragraphs 40 to 50.

Contracts - Topic 9000

Rights and liabilities of strangers to contract - General - Privity of contract - In an agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan - They alleged that the Collaboration Agreement authorized mining, was void and against public policy - The Saskatchewan Court of Queen's Bench struck the claim - The agreement was a private contract entered into between Cameco, Areva, the Village, and Kineepik - Privity of contract meant that only the parties to the contract could be bound by it or entitled under it - Four of the eight defendants were not parties to the agreement - The terms of the agreement did not authorize mining - Nor could the parties to the contract authorize uranium mining - A fatal flaw was that none of the plaintiffs were parties to the contract - No exception to the doctrine of privity had been pleaded - Kineepik did not assert in the agreement that it acted as agent for the Metis Nation of Saskatchewan - See paragraphs 60 to 66.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - In an agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan, alleging various causes of action, including that the agreement was signed in violation of the "duty to consult" - The Saskatchewan Court of Queen's Bench struck the claim for disclosing no reasonable cause of action - Canada and Saskatchewan were not parties to the agreement - No facts were pleaded that could trigger a duty to consult - The plaintiffs had not alleged how they had the standing to bring such an action against the defendants - The duty to consult was a collective right of the aboriginal peoples, who could authorize an individual or organization to represent it - There was no pleading as to which First Nation community had authorized any of the plaintiffs to assert a breach of the duty to consult - See paragraphs 51 to 54.

Indians, Inuit and Métis - Topic 4

General - Duty owed to Indians by third parties - [See Contracts - Topic 9000 ].

Indians, Inuit and Métis - Topic 508

Rights - Abrogation (Charter, s. 25) - [See Civil Rights - Topic 8589 ].

Indians, Inuit and Métis - Topic 4406

Treaties and proclamations - General - When applicable - [See Indians, Inuit and Métis - Topic 8703 ].

Indians, Inuit and Métis - Topic 8703

Practice - General - Pleading infringement of right - In a Collaboration Agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan, alleging various causes of action arising from the Agreement, including for violation of Treaty 6 and Treaty 10 - The Saskatchewan Court of Queen's Bench struck the claim - Cameco and Areva were not parties to either Treaty - Neither Canada nor Saskatchewan were parties to the Collaboration Agreement - There was no pleading that any of the plaintiffs were members of the First Nations communities who had treaty rights under either Treaty, or that any First Nation community had authorized any of the plaintiffs to assert a breach of its treaty rights - See paragraphs 18 to 23.

International Law - Topic 5

General - Incorporation into domestic law (incl. customary international law) - In a Collaboration Agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan, alleging various causes of action arising from the Agreement, including for violation of the United Nations Declaration on the Rights of Indigenous People, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Universal Declaration of Human Rights - They pled no domestic legislation which had implemented any of those international instruments - The Saskatchewan Court of Queen's Bench held that without that pleading, the cause of action was fatally flawed, and struck the claim for disclosing no reasonable cause of action - See paragraphs 16 and 17.

Practice - Topic 1463

Pleadings - Statement of claim - General - Requirement of disclosing cause of action - [See Practice - Topic 2230 ].

Practice - Topic 1954

Pleadings - Particulars - Particulars in specific proceedings - Negligence action - In a Collaboration Agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan, alleging various causes of action, including negligence (paragraphs 105 and 106 of the claim) - The Saskatchewan Court of Queen's Bench struck the claim - "[F]or there to be proper pleadings for a cause of action based on negligence, the plaintiffs must plead what duty of care is owed to each of them by each of the defendants. They must set out the material facts and provide details of that breach, as it affects each of them. They must plead the damages that they each state they have suffered from the alleged breach. None of these salient pleadings are present in paragraphs 105 - 106 of this claim. Oppositely, the plaintiffs allege the defendants have acted negligently by breaching a duty of care to 'those citizens whose land will be negatively affected by the Collaboration Agreement'. The plaintiffs continue to characterize the Collaboration Agreement as authorizing uranium mining, which is clearly wrong on the face of that document." - See paragraphs 67 to 72.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - In a Collaboration Agreement, two uranium mining corporations ("Areva" and "Cameco") agreed to provide various benefits to Northern Village of Pinehouse and Kineepik Metis Local Inc., a non-profit corporation - In turn, the Village and Kineepik agreed to support mine operations in its locale, subject to Areva and Cameco upholding their commitments - The 39 plaintiffs sued Areva, Cameco, the Village, its mayor, Kineepik, its representative, Canada, and Saskatchewan (collectively, the defendants) for the following alleged causes of action arising from the Collaboration Agreement: violation of international law; violation of treaty rights; violation of the Northern Municipalities Act; violation of the Charter; violation of the duty to consult; breach of the Agreement; and negligence - The defendants applied to strike the entire claim - Clause 5.3 of the Agreement, entitled "Non-Abrogation and Non-Derogation of Aboriginal Rights", was particularly relevant to the application - The Saskatchewan Court of Queen's Bench struck the entire claim for disclosing no reasonable cause of action (rule 7-9(2)(a)).

Practice - Topic 6931

Costs - General principles - Discretion of court - [See Practice - Topic 7767 ].

Practice - Topic 7767

Costs - Special orders - Abuse of process - The Saskatchewan Court of Queen's Bench struck out the plaintiffs' claim in its entirety for disclosing no reasonable cause of action - The court dealt with the defendants' alternate submission that the claim should be struck on the basis that it was scandalous, frivolous, vexatious and an abuse of the court's process, in the exercise of its discretion to award costs - That the pleadings might well be characterized as vexatious and an abuse of the court's process was shown by the relief sought by the plaintiffs - Counsel for the plaintiffs submitted that the plaintiffs ought to be allowed to come to court to have a discussion about the matters raised in their claim - "An unrepresented litigant may misunderstand that the court is not the place to have a political discussion. A lawyer, on the other hand knows the difference. Because these plaintiffs were represented by counsel, this is an appropriate circumstance to consider costs against them" - The matter had been complex and had required considerable time in preparing briefs - The application itself took a full court day - Each of the eight defendants was entitled to costs of $2,000, payable from all the plaintiffs jointly and severally - See paragraphs 73 to 78.

Cases Noticed:

Collins v. McMahon et al., [2002] Sask.R. Uned. 96; 2002 SKQB 201, refd to. [para. 8].

Swift Current (City) v. Saskatchewan Power Corp. et al. (2007), 293 Sask.R. 6; 397 W.A.C. 6; 2007 SKCA 27, refd to. [para. 9].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 10].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 16].

Saskatchewan Federation of Labour v. Saskatchewan (2012), 390 Sask.R. 196; 2012 SKQB 62, refd to. [para. 16].

Sackaney v. Canada, [2013] T.C.J. No. 271; 2013 TCC 303, refd to. [para. 16].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 17].

Mosquito v. Stickney - see Dustyhorn Estate et al. v. Stickney et al.

Dustyhorn Estate et al. v. Stickney et al. (2004), 245 Sask.R. 132; 2004 SKQB 53, refd to. [para. 19].

Moulton Contracting Ltd. v. British Columbia et al., [2013] 2 S.C.R. 227; 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 22].

Canada Post Corp. v. Workers' Compensation Board (Sask.), [1998] 8 W.W.R. 333; 165 Sask.R. 239 (Q.B.), refd to. [para. 25].

Collins v. Saskatchewan Beach (Resort Village) et al., [2012] Sask.R. Uned. 65; 2012 SKQB 40, revd. in part (2013), 409 Sask.R. 57; 568 W.A.C. 57; 2013 SKCA 12, refd to. [paras. 26, 36].

Goulet v. Buena Vista (Village) (2012), 408 Sask.R. 267; 2012 SKQB 503, refd to. [para. 30].

Daimler Truck Financial v. Doepker Industries Ltd. (2014), 450 Sask.R. 189 ; 2014 SKQB 223, refd to. [para. 38].

R. v.Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 43].

Seniuk et al. v. Saskatchewan (Minister of Justice) et al. - see Saskatchewan Provincial Court Judges' Association et al. v. Saskatchewan (Minister of Justice) et al.

Saskatchewan Provincial Court Judges' Association et al. v. Saskatchewan (Minister of Justice) et al. (1995), 133 Sask.R. 115 (Q.B.), refd to. [para. 46].

Taypotat v. Taypotat et al. (2013), 447 N.R. 352; 365 D.L.R.(4th) 485; 2013 FCA 192, refd to. [para. 48].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 51].

Neskonlith Indian Band v. Salmon Arm (City) et al., [2012] 12 W.W.R. 1; 327 B.C.A.C. 276; 556 W.A.C. 276; 2012 BCCA 379, refd to. [para. 53].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 56].

C & J Hauling Ltd. v. Mistik Management Ltd. (2010), 351 Sask.R. 199; 2010 SKQB 60, refd to. [para. 57].

Greenwood Shopping Plaza Ltd. v. Beattie and Pettipas, [1980] 2 S.C.R. 228; 32 N.R. 163; 39 N.S.R.(2d) 119; 71 A.P.R. 119, refd to. [para. 61].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; 245 N.R. 88; 127 B.C.A.C. 287; 207 W.A.C. 287, refd to. [para. 61].

Gutheil v. Billesberger (2010), 360 Sask.R. 243; 2010 SKQB 337, refd to. [para. 64].

Sivak et al. v. Canada (Minister of Citizenship and Immigration) (2012), 406 F.T.R. 115; 2012 FC 272, refd to. [para. 68].

Harelkin v. McKay et al., [2009] Sask.R. Uned. 11; 2009 SKQB 27, refd to. [para. 69].

Counsel:

L.W. Kowalchuk, for the plaintiffs;

D.C. Hodson, Q.C., and V.L. Monar Enweani, for Areva Resources Canada Inc. and Cameco Corporation;

S.D. MacDonald, for Her Majesty the Queen in Right of Canada;

M.K. Badger, for Her Majesty the Queen in Right of Saskatchewan;

S.R. Spencer, for the Northern Village of Pinehouse, Mike Natomagan, Kineepik Metis Local Inc. and Vince Natomagan.

This application was heard before Rothery, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert. The following fiat was delivered on September 5, 2014.