Date: 20010405
Docket: T-617-85
Neutral Citation: 2001 FCT 297
BETWEEN:
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
SAMSON BAND, Chief Victor Buffalo, and Larson Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightning, Stan Crane, Lawrence Saddleback, Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose, Jim Omeasoo, and Robert Swampy, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians, and
ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Arthur Littlechild, Richard Littlechild, Emily Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin band, sued on their own behalf and on behalf of the members of the Ermineskin Band of Indians,
Third Parties
- AND -
No. T-782-97
BETWEEN:
CHIEF FLORENCE BUFFALO acting on her own behalf and on behalf of all of the other members of the SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Parliament Buildings, Ottawa, Ontario
Defendants
- AND -
T-2804-97
BETWEEN:
ERMINESKIN CREE NATION and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the ERMINESKIN CREE NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
(Delivered from the Bench at Calgary Alberta, April 5, 2001.)
HUGESSEN, J.
[1] I shall cut through a good many of the technical problems which surround this motion because in my view it indicates that counsel may have misunderstood in a very fundamental way the effect of a severance order that was given by me in this case in December of last year.
[2] Let me start by describing the action in very general terms. It relates to the original Bobtail Reserve which was set aside following the adhesion of Bobtail to Treaty No. 6 I believe in 1875. At a subsequent time the Crown took what purported to be two surrenders of that reserve; one I believe in 1901, and the other in 1909, and it is the validity of those surrenders which lies at the heart of the claims by the three Plaintiff Bands.
[3] In the severance order which I gave I severed for purposes of trial issues relating to the Crown's liability for dealing with the surrendered land if the land was not validly surrendered from issues relating to the remedies which may be available to the Bands as a result of such dealing. To put it in perhaps more simple terms the first issue which will be tried separately is the issue as to whether the Crown did acquire free title to the Bobtail Reserve as a result of the 1901 and 1909 surrenders. If it did that is an end of the case. If it did not, then the issues as to what further relief may be available to the Plaintiffs will be the subject matter of the second trial. Now I have described that in very broad and general terms but I think it is adequate for these purposes.
[4] That brings me to the motion I have today with respect to discoveries. It is in my view fundamental that when an order for severance is made the severed issues which are not then going to be tried in the first trial are irrelevant for the purposes of that first trial. To put it in a very familiar context where liability and damages are severed questions relating to damages are not relevant to the trial on the issue of liability.
[5] It flows from that, that discoveries whether they be written or oral which are conducted following an order for severance should be limited to the issues which are to be tried at the first trial. Questions relating to matters which will only become relevant if they ever do become relevant at the second trial should not be put. And that brings me to the detail of the motion I have today it is quite clear from the motion materials which have been filed by the Plaintiff Samson Band that what they seek to examine on are a series of documents which bear Production Numbers 2446 to 2559 all of which are dated subsequent to the year 1975. That is to say all of which are some three-quarters of a century after the date of the first surrender and 65 years after the second surrender.
[6] Those documents can have no bearing whatever on the validity of those surrenders and they are therefore irrelevant for the purposes of the first trial and I have taken the time to explain this in some detail because there are ongoing discoveries, ongoing interrogatories and it appears to me that counsel may be under a misunderstanding as to the limits of relevance now that there has been a severance order. Only those issues relevant to the first trial should now be explored in discoveries leading up to that first trial.
[7] The consequence is that the motion will be dismissed.
"James K. Hugessen"
JUDGE
Calgary, Alberta
April 5, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010405
Docket: T-617-85
BETWEEN:
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
SAMSON BAND, Chief Victor Buffalo, and Larson Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightning, Stan Crane, Lawrence Saddleback, Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose, Jim Omeasoo, and Robert Swampy, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians, and
ERMINESKIN BAND, Chief Eddie Littlechild and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Arthur Littlechild, Richard Littlechild, Emily Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin band, sued on their own behalf and on behalf of the members of the Ermineskin Band of Indians,
Third Parties
- AND -
No. T-782-97
BETWEEN:
CHIEF FLORENCE BUFFALO acting on her own behalf and on behalf of all of the other members of the SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Parliament Buildings, Ottawa, Ontario
Defendants
- AND -
T-2804-97
BETWEEN:
ERMINESKIN CREE NATION and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the ERMINESKIN CREE NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-617-85
STYLE OF CAUSE: Montana Band et al. v. the Queen et al.
- and -
DOCKET: T-782-97
STYLE OF CAUSE: Chief Florence Buffalo et al. v. The Queen
- and -
DOCKET: T-2804-97
STYLE OF CAUSE: Ermineskin Cree Nation et al. v. The Queen
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: April 5, 2001
REASONS FOR ORDER OF HUGESSEN, J.
DATED: April 5, 2001
APPEARANCES:
Michael Bailey and FOR PLAINTIFF/
Michael Aasen (appearing as Agents) THIRD PARTY
(Montana Band)
David Rolf FOR PLAINTIFF/THIRD
PARTY
(Samson Band)
No One Appearing FOR PLAINTIFF/
THIRD PARTY
(Ermineskin Band)
- 2 -
Dogan Akman and FOR DEFENDANT
J.A. (Sandy) MacDonald
SOLICITORS OF RECORD:
Dubuc, Osland FOR PLAINTIFF/
OTTAWA, Ontario THIRD PARTY
(Montana Band)
Parlee, McLaws FOR PLAINTIFF/
EDMONTON, Alberta THIRD PARTY
(Samson Band)
Blake, Cassels & Graydon LLP FOR PLAINTIFF/
VANCOUVER, British Columbia THIRD PARTY
(Ermineskin Band)
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
OTTAWA, Ontario
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