Date: 20060531
Docket: T-183-06
Citation: 2006
FC 666
Ottawa, Ontario, May 31, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GEORGE
LESLIE MINDE
Applicant
and
ERMINESKIN CREE NATION AND
ERMINESKIN TRIBAL COUNCIL
Respondents
REASONS FOR ORDER AND ORDER
[1]
In virtue
of various Orders issued by Madam Justice Heneghan the application for judicial
review in this matter has been scheduled to proceed peremptorily on August 23,
and August 24, 2006. I am faced with a motion by Clinton Roan, Jr., and Jody
Small, two individual members of the Ermineskin Cree Nation, to intervene.
[2]
The
background to the pending judicial review is set out in the Reasons for
Judgment of Mr. Justice Belzil of the Court of Queen’s Bench of Alberta, in Ermineskin Cree Nation
v. Minde 2006 ABQB 118. In August of last year, Mr. Minde was re-elected
Chief of the Ermineskin Cree Nation, an Indian Band. Allegedly and on his own
initiative, and without the knowledge or consent of the Tribal Council, he
arranged for the purchase of heavy construction equipment. The Tribal Council
commenced an investigation through Band Elders which ultimately led to a
Council Resolution that Mr. Minde had vacated his position as Chief.
[3]
Mr. Minde
commenced an application for judicial review seeking a declaration that he
remains Chief. In the interim Mr. Justice Belzil issued an injunction at the
behest of Ermineskin Cree Nation and Ermineskin Tribal Council enjoining Mr.
Minde from entering Band offices, conducting financial transactions and generally
from interfering with staff, Band members, or Tribal enterprises.
[4]
Messrs.
Roan and Small, apparently supported by other members of the Ermineskin Cree
Nation, are critical of the Tribal Council as it is currently comprised.
Ideally, they would halt the legal proceedings both in this Court and the Court
of Queen’s Bench. The whole process is pitting elders against elders. There
ought to be a cultural and traditional resolution to this matter. The
litigation erodes the assets of the community which could be put to better use.
[5]
They say
that their intervention may assist to bring a resolution to the dispute. There
is a widespread perception within the community that they have been kept in the
dark, and that since the litigation appears to be limited to the selfish
interests of Mr. Minde and the Tribal Council, the chances of the decision,
whatever it might be, having acceptance within the community would be increased
if they were granted intervention status.
[6]
If they
were to intervene they would request that the hearing on the merits be moved
forward. Failing that, they would certainly do nothing to impede the current
schedule. As interveners they would be provided with copies of documents, which
otherwise they say they cannot afford, might wish to submit affidavit evidence
and would limit themselves to oral argument at the hearing. I pointed out that
oral argument, without advance warning by way of written representations, could
in fact result in delays should those arguments take the existing parties by
surprise.
[7]
I have
come to the conclusion that the malaise identified by Messrs. Roan and Small
would in no way be solved by granting them intervener status, and so I must
dismiss the application. The test was well established by the Federal Court of
Appeal in Canadian Union of Public Employees (Airline Division) v. Canadian
Airlines International Ltd. 2000 FCJ 220, (2000), 95 A.C.W.S. (3d) 249, and
frequently re-iterated since then, for instance in International Association
of Immigration Practioners v. Her Majesty the Queen 2004 FCJ 770,
(2004), 130 A.C.W.S. (3d) 1100. There are six criteria to be considered. Not
all have to be met.
[8]
The criteria,
and my answers thereto, are as follows:
A.
Are the
proposed interveners directly affected by the outcome?
The answer is no. They are, like
other members of the Cree Nation, indirectly affected. Those directly affected
are Mr. Minde and the Tribal Council.
B.
Does there
exist a justiciable issue and veritable public interest?
There is a justiciable issue
which has been defined. There is no overriding public interest beyond the
interests of the parties to the litigation.
C.
Is there
an apparent lack of or any other reasonable or efficient means to submit the
question to the Court?
The answer is no. No one was
able to point to anything in the tribal constitution which required the taking
of steps precedent to an application for judicial review, such as the grievance
procedure which prevails in the public service.
D.
Is the
position of the proposed intervener adequately defended by one of the parties
to the case?
The interveners are somewhat
ambivalent. On the one hand they oppose the process by which an elective Chief
could be effectively removed from office, but on the other hand they say he is
pursuing his personal agenda, rather than the overall interest of the Band. It
may be that the Band’s constitution ought to be changed, but the unfortunate
reality is that the Court system is geared to resolve private, or if you like
selfish, disputes.
E. Are the interests
of justice better served by their intervention?
I cannot see that justice
would be better served. The hearing has already been expedited. A
cross-examination of Mr. Minde on his affidavit was scheduled to take place the
day after this motion was heard. Counsel for the respondents had no objection
to the interveners and their counsel attending that cross-examination.
Furthermore, although he had no specific mandate on behalf of the Council, it
was his understanding that all documents relating to this case would be, or
should be, or will be, available for consultation. In any event, copies are
available from the Court once they are filed.
F.
Can the
Court herein decide the case on its merits without the proposed interveners?
The answer is clearly yes.
Their concern is that there ought to be a better way to resolve this dispute.
They are probably right. Litigation is inherently divisive. The answer however
lies in the hearts and minds of all those affected. The Courts are here for
those who are not able to resolve their disputes in a better way. In a sermon I
once heard, people in trouble were coming downstream to the local town. They
were helped by the townfolk. However, no one went upstream to find and correct
the cause of the problem. So it is in this case. An intervention will not solve
such problems as may exist; the answer lies upstream, within the Band.
ORDER
The application of Clinton Roan, Jr., and Jody
Small for intervener status is dismissed. There shall be no order as to costs.
“Sean Harrington”
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