Wolf v. Canada, 2002 FCT 434

Date: 20020417

Docket: T-705-97

Neutral citation: 2002 FCT 434

BETWEEN:

                                                 CHIEF LIZA WOLF on her own behalf

                                                   and on behalf of the members of the

                                                        DENE TSAA FIRST NATION,

                                                               otherwise known as the

                                                   PROPHET RIVER INDIAN BAND

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

                                              (Delivered from the Bench at Vancouver, B.C.

                                                            on Thursday, April 11, 2002)

HUGESSEN J.

[1]                 This is a motion brought by the plaintiffs under Rule 220 to state a question of law for determination by the Court or alternatively, to sever the proposed question so that it would be determined separately. I will deal with both the principal conclusion and the alternative together since, in my view, there is no substantial difference in the criteria which the Court applies in deciding whether or not to grant the claimed relief.

[2]                 The moving party has the burden of persuading the Court that it should depart from the general rule which is, of course, that normally the whole of the case is heard and determined by the Court at one and the same time. The Court has a discretion to exercise in deciding whether or not it will grant the claimed relief. In exercising that discretion the Court will consider a number of factors, in particular, the possibility that the move proposed would meet the tests of Rule 3 by saving time and money, bringing the litigation to a speedier and more just conclusion, and also the possibility that the litigation, even if it goes forward, would be simplified.

[3]                 The action itself herein involves the amalgamation of the Prophet River Band with the Fort Nelson Slave Band and their subsequent separation in an area covered by Treaty 8. While the plaintiffs do not contest the legality of the separation or the split per se, they allege that the defendant acted fraudulently, negligently and/or in violation of its fiduciary duty by approving the split despite its knowledge of the deficiencies in the referendum process and the inequitable terms of the proposed split. In consequence, the plaintiffs claim an unextinguished interest in their per capita share of the forestry, oil and gas activities on the Fort Nelson Reserve and seek damages from the defendant as compensation for that interest.

[4]                 The question which it is proposed should be stated as a question for determination by the Court or, as I say, alternatively as an issue to be severed from the main trial, is the following:

Does the referendum ballot alleged to have been used in the referendum of the amalgamated Fort Nelson Indian Band that is alleged to have taken place at the Fort Nelson Indian Reserve #2 and the Prophet River Indian Reserve #4 on November 29, 1973, have the effect of extinguishing any legal interest of the Prophet River Indian Band in the reserve lands of the Fort Nelson Indian Band?

[5]                 In the materials accompanying the motion is a copy of what is said to have been the ballot that was used in the referendum and it reads as follows:

That the Fort Nelson Band be divided into two bands to form an additional separate band to be known as the Prophet River Band. The Fort Nelson Band to retain reserves containing 23,523.2 acres and the Prophet River Band to receive the Prophet River Indian Reserve no. 4 containing approximately 924 acres. The Fort Nelson Band funds to be divided between the two bands on a per capita basis.

[6]                 The plaintiffs say that this is a pure question of law as to whether or not the referendum question was sufficient to extinguish their rights in the Fort Nelson Reserve. They say that it is a simple question, that it can be answered by a straight forward "yes" or "no", without qualifications, and that at least one possible answer will likely result in a substantial saving of time and money and will likely lead to settlement.

[7]                 I disagree. With respect, the plaintiffs approach is far too simplistic. The determination of whether or not the plaintiffs rights in the Fort Nelson Reserve were extinguished in the 1973 split will depend, at least in part, on a number of questions other than just the referendum. In particular, the Court will have to determine first what the plaintiffs' rights were and will have to look into the whole of the circumstances surrounding the split. Courts, from the Supreme Court of Canada down, have consistently insisted on the necessity of having a proper factual matrix before deciding on any questions relating to the existence or extent of aboriginal rights and the same is undoubtedly true of their extinguishment. Furthermore, even if the proposed question were answered as the plaintiffs would like, in the negative, that would not be determinative of whether or not they ever had any rights and whether or not those rights were extinguished in the split.

[8]                 Even if the referendum question were, as the plaintiffs clearly would like, found to be defective, the Court might well consider it to be none the less relevant to the ultimate question of whether or not rights were extinguished.

[9]                 Accordingly, in my view, the proposed question will not have any beneficial effect on the pending litigation and I shall dismiss the motion.

[10]            Costs in the cause to the defendant.

                                                                                                                                                               Judge                        

Ottawa, Ontario

April 17, 2002