Date: 20061018

Docket: T-1913-05

Citation: 2006 FC 1247

[ENGLISH TRANSLATION]

Montréal, Quebec, October 18, 2006

PRESENT: Richard Morneau, Esq., Prothonotary

 

BETWEEN:

CHARLES ROBERTSON

Applicant

 

and

 

 

SHELLEY ROBERTSON

WILLY ROBERTSON

CARLA ROBERTSON

TRACEY JACOBS

 

and

MOHAWK COUNCIL OF KAHNAWÁ:KE

and

MOHAWK BAND OF KAHNAWÁ:KE

Respondents

 

 

REASONS FOR ORDER AND ORDER

[1]               This is a motion to strike moved by the respondents as part of an application for judicial review undertaken by the applicant against a decision by the Council of Elders, in which the applicant’s status as Mohawk was suspended.

[2]               The respondents argue that this Court does not have ratione materiae jurisdiction to examine that decision because, in their view, the Council of Elders cannot be seen as a federal board, commission or other tribunal as defined in sections 2 and 18 of the Federal Court Rules, R.S. (1985), c. F-7, as amended.

[3]               For this motion by the respondents to be allowed, particularly as it is a motion to strike against an application for judicial review, their position must have a plain and obvious basis.

[4]               However, the Court cannot reach that conclusion.

[5]               First, although the respondents argue that the Council exists and draws its authority solely from a law passed by the Mohawk Council of Kahnawá:ke (the Council), it is not plain and obvious, as claimed by the applicant, that this situation regarding the decision in question excludes the initial participation, in the background, of provisions of the Indian Act, R.S.C. (1985), c. I-5, as amended.

[6]               Second, even if the respondents were correct in their position expressed above, the fact nonetheless remains that the Council of Elders is a creation of the Council. In that vein, it is clear that this Court is particularly reticent to place the actions of band councils out of its jurisdiction, even though it is claimed that those actions or decisions were not carried out under federal law, but by custom or any equivalent power (in this regard, see inter alia Roseau River Anishinabe First Nation v. Atkinson et al. (2003), 228 F.T.R. 167, at paras 17 to 23; Francis v. Mohawk Council of Kanesatake, [2003] 4 F.C. 1133, at paras 11 to 17, and the jurisprudence cited in those two decisions).

[7]               This motion to strike by the respondents is therefore dismissed, with costs.

 

 

“Richard Morneau”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1913-05

 

STYLE OF CAUSE:                          CHARLES ROBERTSON

                                                            and

 

                                                            SHELLEY ROBERTSON

                                                            WILLY ROBERTSON

                                                            CARLA ROBERTSON

                                                            TRACEY JACOBS

                                                            and

                                                            MOHAWK COUNCIL OF KAHNAWÁ:KE

                                                            and

                                                            MOHAWK BAND OF KAHNAWÁ:KE

 

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      October 16, 2006

 

REASONS FOR ORDER:               PROTHONOTARY MORNEAU

 

DATED:                                             October 18, 2006

 

 

APPEARANCES:

 

John Glazer	FOR THE APPLICANT
Moïra Létourneau	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Leithman & Glazer Montréal, Quebec	FOR THE APPLICANT
Legal Services Mohawk Council of Kahnawá:ke	FOR THE RESPONDENTS