Albert v. Norway House Cree Nation, docket T-2026-97

Date: 19971125

Docket: T-2026-97

BETWEEN:

     ALEC ALBERT, * * * MAGGIE

     MYRNA GAMBLIN, * * * BRYAN

     ALLAN HART, * * * and WILLIAM

     YORK, S.R., et al.,

     Applicants,

     - and -

     * * * the CHIEF AND COUNCIL

     OF THE NORWAY HOUSE

     CREE NATION,

     Respondents.

     REASONS FOR ORDER

MULDOON, J.

[1]      The style of cause, which is so long that the title of documents has to go on the third page, instead of the first, has been abridged by Court order for practical reasons, to appear as above shown. The original style of cause was not abolished and may still be referred to by interested persons.

[2]      This is an application for judicial review and for an injunction, as stated by the applicants in their originating notice of motion (doc.1) thus:

1.      an Order of Injunction enjoining the Respondents or any other party from holding any second referendum seeking ratification of the Master Implementation Agreement (hereinafter "MIA");

2.      A declaration that all steps taken by the Respondents, in the furtherance of holding a second referendum on the question of ratification of the MIA, are a nullity;

3.      costs on a solicitor and his own client basis;

4.      * * *

[3]      The grounds asserted are these:

1.      The Federal Court Act, s.44;

2.      the Indian Act, R.S.C. 1985, c.I-5 and Indian Referendum Regulations, C.R.C. 1978, c.957, amended SOR/94-369;

3.      the Respondent is ultra vires in ordering that a second referendum be held seeking the ratification of the MIA;

4.      the Respondents has failed to comply with the Indian Referendum Regulations relating to the holding of a second referendum;

5.      that the Notice of Vote does not factually represent the results and consequences of the first referendum;

6.      * * *

[4]      The application is supported by

1.      the Affidavit of Mr. Bryan Hart to be filed;

2.      Article 14 of the Master Implementation Agreement, and

3.      * * *

[5]      The originating notice of motion was filed on September 15, 1997. It came first for a hearing by telephone conference call before Mr. Justice Teitelbaum on September 19, 1997, who ordered:

Because of the many issues in this case and because of the lateness by the Applicants to bring this matter before the Court, the present application is adjourned to September 29, 1997 at 10:00 a.m. for a two day hearing in Winnipeg, Manitoba.

The Applicants are permitted to amend their Originating Notice of Motion by no later than 4:30 p.m. September 23, 1997 and serving a copy of same on all other parties.

[6]      Accordingly, the applicants filed an amended originating notice of motion (doc. 8) which in its essential parts now seeks the following relief:

1.      [same]

2.      An Order of Injunction enjoining the Respondent, Chief and Council, from relying upon any referendum decision in a matter of this magnitude where the standard is simple majority;

3.      An Order of Injunction enjoining the Respondent, Chief and Council, from relying upon or using the results of the second referendum herein for any purpose whatsoever;

4.      A declaration that all steps taken by the Respondents, in the furtherance of holding a second referendum on the question of ratification o the MIA, are a nullity;

5.      A declaration that the referendum which is to be held on September 23, 1997 is a nullity;

6.      A declaration that the vote under the referendum is a nullity;

7.      costs on a solicitor and his own client basis;

8.      * * *

[7]      The grounds asserted are these:

1.      [same]

2.      [same]

3.      the Respondent, Chief and Council, is a federal board as defined in s.2 of the Federal Court Act;

4.      on or about August 21, 1997, the Respondent, Chief and Council, decided to hold a second referendum seeking the ratification of the MIA;

5.      the Respondent acted ultra vires in ordering that a second referendum be held seeking the ratification of the MIA;

6.      the Respondents have failed to comply with the Indian Referendum Regulations relating to the holding of a second referendum;

7.      that the Notice of Vote does not factually represent the results and consequences of the first referendum;

8.      a matter of this magnitude should not be decided on a referendum vote requiring a simple majority;

9.      the Applicants would suffer irreparable harm that could not be compensated by an award of damages;

10.      the Applicants do not have sufficient funds to realistically permit it to provide any undertaking as to damages;

11.      * * *

The supporting material remained the same.

[8]      The adjournment granted by Teitelbaum, J. therefore permitted the respondents willy-nilly to hold the impugned second referendum because there was no Court order enjoining them from doing so.

[9]      The parties filed a veritable plethora of documentation which it has taken the Court no little time to assimilate. A palpable personal animus between the parties and, alas, their respective lawyers, merely got in way in the process of adjudication and was rather juvenile, as revealed in the transcript, pp. 298-300.

[10]      Anyone who would come to this dispute uninformed would think that it is an arbitrary and despotic gambit to hold second [and possibly subsequent] referenda on the same question until the desired result, presumably, can be obtained. That, however, is not what the facts reveal. The highly imperfect affidavit by Fred Muskego, sworn September 18, 1997, and filed on the respondents' behalf, is quite helpful. The applicants' counsel made some justifiably disparaging commentaries about that affidavit (i.e. paragraph 33 states sheer non-factual speculation and ought to be disregarded entirely), but took no specific proceedings to strike it in part or in whole.

[11]      Mr. Muskego qualifies himself in the following passages:

3.      That prior to being elected as a Norway House Cree Nation Councillor, I was employed by the Norway House Cree Nation as a Northern Flood Agreement Negotiator. My duties included assisting in the negotiation of a Master Implementation Agreement (hereinafter "MIA"). I continue to be involved in the process.

4.      That on or about 1978, the Government of Canada, pursuant to section 35 of the Indian Act, ratified the Northern Flood Agreement (hereinafter "NFA") which thereafter came into force.

5.      That attached hereto and marked as Exhibit "A" is a copy of the NFA.

6.      That the parties to the NFA were Government of Canada (hereinafter "CANADA"), the Government of Manitoba (hereinafter "MANITOBA"), the Manitoba Hydro-Electric Board (hereinafter referred to as "HYDRO") and the Norway House Cree Nation, which First Nation was formerly represented with respect to the NFA by the Northern Flood Committee Inc.

7.      That on or about October 1994, and in response to the wishes of the members of the Norway House Cree Nation expressed at a meeting of members, Norway House Cree Nation agreed to enter into negotiations with the other parties to the NFA - CANADA, MANITOBA and HYDRO, with a view to concluding a comprehensive MIA.

8.      Attached hereto and marked as Exhibit "B" is a draft copy of the proposed MIA prepared around May 1997. Changes to Article 14 were subsequently agreed to by the parties, and a copy of the current version of Article 14 is attached hereto and marked as Exhibit "C".

[12]      The above mentioned Northern Flood Agreement (NFA) was made on December 16, 1977 by four parties, the Government of Manitoba, Manitoba Hydro, The Northern Flood Committee, Inc., and the Government of Canada. The above mentioned committee is described among the parties, on p. 1, as "a corporation acting with the financial support of Canada, which was incorporated by the Indian Bands of Nelson House, Norway House, Cross Lake, Split Lake and York Factory, and negotiated on their behalf ("Committee").

[13]      The significance and import of the NFA can be appreciated from a reading of its preambular provisions, thus:

A.      Hydro and Manitoba are engaged in the development of hydro-electric power through projects commonly known as the Lake Winnipeg Regulation and Churchill River Diversion Project ("the Project" as hereinafter defined);

B.      As a result of the Project, the water regime of certain waters, rivers, lakes and streams has been, or will be modified;

C.      As a result of the modification of the water regime, adverse effects have occurred, and may continue to occur, on the lands, pursuits, activities and lifestyles, of the residents, individually and collectively, of the Reserves of Cross Lake, Nelson House, Norway House, Split Lake and York Landing ("the Reserves" as hereinafter defined);

D.      The parties wish to ensure that all persons as defined herein, who may be, or have been, directly or indirectly, adversely affected by the Project shall be dealt with fairly and equitably;

E.      Uncertainty as to the effects of the Project, with respect not only to the Project as it exists at the date of this Agreement but also as it may develop in the future, is such that it is not possible to foresee all the adverse results of the Project nor to determine all those persons who may be affected by it, and, therefore it is desirable to establish through the offices of a single arbitrator a continuing arbitration instrument, to which any person adversely affected may submit a claim, and as well as to fully empower such arbitrator to fashion a just and appropriate remedy;

F.      Canada and Manitoba acknowledge the need to set forth the principles on which compensation will be based in respect of those matters set forth in this Agreement;

G.      Canada, by virtue of its jurisdiction and responsibility for Indians and lands reserved for Indians, is committed to playing an active role in providing opportunity for the continued viability of the communities and, in particular but without limitation, in making available resources and expertise to the communities in planning and improving the social and economic conditions of the communities, and in ensuring that the special rights of Indians, including those arising from Treaty 5, are adequately protected;

H.      Canada agrees that it is necessary to coordinate its normal program responsibilities for the Bands or the members thereof with the benefits and measures provided by and/or pursuant to this Agreement.

[14]      Of importance in these circumstances are the provisions of article 25 of the NFA. It runs:

25.1      This Agreement, with the exception of the provisions of Article 24, shall remain in force and be binding upon the parties hereto, for the lifetime of the Project, including any substantially similar redevelopment thereof. It is understood and agreed that this provision shall remain in force and be binding upon the successor to any party hereto, and upon the heirs, executors, and successors of any claimant.

25.2      Wherever this Agreement gives the Committee any rights, powers or obligations as a party, in the event that the Committee ceases to represent the Bands, then such rights, powers and obligations of the Committee shall devolve on the Bands or on any new entity designated by them as their representative.

[15]      How would one know that the Committee had ceased "to represent the Bands", meaning the five designated bands? At the time any one of the five concluded that the Committee ceased to represent it adequately or at all, or sought to assert its independence from such representation, that would surely be the event contemplated in article 25.2. That event is described in Fred Muskego's paragraph 7, as occurring around October, 1994. The Norway House Cree Nation expressed a view to concluding a comprehensive Master Implementation Agreement (MIA) of which a draft is exhibit B, as seen on its p. 2.

[16]      The said draft MIA contains a preliminary "manner-and-form" provision which sets out how the MIA is to come into force and effect through prescribed execution, if it is to come into force at all. The Norway House Cree Nation is a band of individuals which cannot conveniently execute any document by a democratic majority of its members' signatures. That would be utterly impractical. So the intended parties' MIA negotiating delegates set out a manner-and-form requirement for permitting the Norway House Cree Nation to execute the MIA without requiring a majority of the members individually to sign. Unlike the direct democracy of the ancient Greeks, this is a form of representative democracy, naturally requiring a majority of adult members to approve, before the representatives would be entitled to execute the MIA on behalf of the Norway House Cree Nation (NHCN).

[17]      In the draft, the "manner-and-form" provision for valid execution, if at all, by the NHCN, is expressed in article 14, bearing the title Ratification and Execution. If one sees the NHCN's execution of the MIA, one knows that its representatives must have proceeded in the manner and according to the form (substance and formalities) provided by, and in, article 14. It is a preliminary requirement. It is little different from the rubric found in some contracts providing "* * * execution of this agreement by [some corporate entity] shall be attested by the signatures of its proper officers in that behalf, and the impression of its corporate seal". That is a manner-and-form provision for valid execution of the particular agreement. If the proper officers sign and the corporate seal be impressed, then one knows that the corporate entity's execution is valid for those purposes, but not otherwise. Behind the scenes it could probably take approval by a resolution of the corporate entity's directors, and/or even its shareholders or members.

[18]      There is nothing untoward about such a provision and especially in this instance, since it is predicated on democratic majority rule. Majority rule is indeed the rule, as shown in paragraphs 8, 9 and 10 of Fred Muskego's uncontradicted affidavit:

8.      Attached hereto and marked as Exhibit "B" is a draft copy of the proposed MIA prepared around May 1997. Changes to Article 14 were subsequently agreed to by the parties, and a copy of the current version of Article 14 is attached hereto and marked as Exhibit "C".

9.      That the parties to the MIA are CANADA, MANITOBA, HYDRO and the Norway House Cree Nation.

10.      None of the Applicants in this Federal Court Case are [sic] Parties to either the NFA or the MIA.

Those who formulated the draft MIA, exhibit B, subsequently agreed to amend article 14 which, in its present text, exhibit "C", runs thus, with these pertinent selected amended and original provisions:

14.2.1      Initial Referendum

(e)      A Referendum shall be conducted on Reserve with polls for voting at the Norway House Multiplex on Tuesday, July 29, 1997 in Winnipeg at the Aboriginal Centre at 181 Higgins Avenue on Saturday, July 26, 1997, from 9:00 a.m. to 8:00 p.m. on both days, in accordance with the secret ballot procedures prescribed by sections 4 to 20 of the Indian Referendum Regulations, C.R.C. 1978, c.957, as amended by SOR/94-369, (the "Referendum"), exception that:

(i)      the term "elector" as used in that Regulation shall be read as "Adult Member",

(ii)      the date of the Referendum shall be deemed to be "the date of the voting" for the purpose of subsection 4(1) of the said Regulations,

(iii)      at least two (2) weeks prior to the date of the Referendum, there shall be an advance poll held on Reserve and in Winnipeg, the Winnipeg advance poll to be held at the Aboriginal Centre on a Saturday,

(iv)      the day of the advance poll shall be set forth in the notice posted by the electoral officer under subsection 4(1) of the said Regulations, and

(v)      the advance poll shall be conducted substantially in accordance with the procedures for voting on the date of the Referendum with such modifications as may be reasonably necessary;

(f)      all Adult Members shall be entitled to vote in the Referendum. A list of "electors" within the meaning of the Indian Act (Canada) shall be compiled separately from the list of other Adult Members and the votes of each list of voters be separately tabulated and reported;

(g)      This Agreement shall be approved by the Referendum if:

i)      a majority of those Adult Members eligible to vote, vote,

ii)      a majority of votes cast approve this Agreement, and

iii)      a majority of the "electors" within the meaning of the Indian Act (Canada) entitled to vote, approve this Agreement.

[19]      The draft MIA goes on to provide in its new article 14, that which the applicants so vehemently oppose:

14.2.2      Second Referendum.      If the requirements of Article 14.21(g)(i) and (ii) are met but, based on the statement of results provided under Article 14.2(h), the requirement of Article 14.2.1(g)(iii) is not met, then, provided a majority of the "electors" within the meaning of the Indian Act (Canada) who voted, voted to approve this Agreement, then the results of the Referendum conducted under Article 14.2.1 shall be appended to this Article 14 and if the Parties are satisfied that the Referendum conducted under Article 14.2.1 demonstrated very substantial support for the Agreement, a further referendum ("Second Referendum") shall, as soon as possible following the Initial Referendum, be conducted as follows:

(a)      a Second Referendum shall be conducted on Reserve with polls at the Norway House Multiplex, and in Winnipeg with polls at the Aboriginal Centre at 181 Higgins Avenue, in accordance with the secret ballot procedures prescribed by sections 4 to 20 of the Indian Referendum Regulations, C.R.C. 1978, c.957, as amended by SOR/94-369, excepting that:

i)      the term "elector" as used in that Regulation shall be read as "Adult Member", and

ii)      the date of the Second Referendum shall be deemed to be "the date of the voting" for the purpose of subsection 4(1) of the said Regulations,

(b)      all Adult Members shall be entitled to vote in the Second Referendum. A list of "electors" within the meaning of the Indian Act (Canada) shall be complied separately from the list of other Adult Members and the votes of each list of voters shall be separately tabulated and reported;

(c)      having regard to the results of the Referendum conducted under Article 14.2.1 and notwithstanding Article 14.2.1(g), this Agreement shall be approved by the Second Referendum if:

i)      a majority of the Adult Members who vote in the Second Referendum approve this Agreement, and

ii)      a majority of the "electors" within the meaning of the Indian Act (Canada) who vote in the Second Referendum, vote to approve this Agreement;

(d)      the Second Referendum will be conducted by Canada, who shall provide to Chief and Council, Manitoba and Hydro a statement in a form similar to that required under Section 19 of the Indian Referendum Regulations, C.R.C. 1978, c.957, as amended by SOR/94-369, with the votes of each list of voters separately tabulated and reported; and

(e)      any appeals associated with the Second Referendum shall be dealt with in accordance with Sections 31 and 32 of the Indian Referendum Regulations, C.R.C. 1978, c.957.

14.2.3      Ballots          The ballots for the Referendum and the Second Referendum shall be written in both English and in Cree syllabics.

14.2.4      Condition Precent [sic]          The approval of this Agreement by referendum under this Article 14 is a condition precent [sic] to this Agreement and to the ratification and execution of this Agreement.

14.2.5      Agreement of No Force and Effect      This Agreement shall be without force and effect and without prejudice to any of the Parties, unless and until it has been duly ratified and executed by all of the Parties, and the Indenture, which is to be concurrently executed, has been likewise executed.

IN WITNESS WHEREOF the Parties have executed this Agreement on the dates indicated below.

Signed, sealed and delivered

in the presence of:

Norway House Cree Nation

_________________________

Chief

_________________________

Councillor

_________________________

Councillor

_________________________

Councillor

_________________________

Councillor

____________________          _________________________

witness                  Councillor

_________________________

Councillor

on the day of , 1997

Her Majesty the Queen in Right of the Province of Manitoba

Per:

on the day of , 1997

The Manitoba Hydro-Electric Board

Per:

on the day of , 1997

Her Majesty the Queen in Right of Canada

Per:

on the day of , 1997

[20]      In Fred Muskego's paragraph 10, he says that none of the applicants herein is a party to either the NFA or the MIA, and that is formally true, but, the Court presumes, all or most of the applicants are adult electors entitled to vote in the referenda. It will be noted that the prospective parties to the draft MIA, in article 14, picked and chose and adopted some, but not all, of the voting mechanisms provided in the Indian Referendum Regulations, C.R.C.1978, Chap. 957, as amended by SOR/94-369. There is nothing illegal about that. It must be noted, however, the referendum which is a manner-and-form requirement of the MIA, is not a referendum pursuant to the regulations, only some of which are adopted in the draft MIA. The applicants argued that the respondents were bound to proceed under the regulations alone, and their failure so to proceed must be reviewed and quashed by this Court.

[21]      The Indian Referendum Regulations have a stated purpose. They operate, when in the discretion of the Minister, or of a band council, it is decided to canvass the band's electors by vote on "a proposed absolute surrender or designation" according to regulation 3(1). Such purpose is not stated to be exclusive in regard to canvassing a band's electors in a democratic manner and form.

[22]      In any event, the provisions of draft MIA article 14.2.2 came into life as a result of the first referendum. The second referendum, held on September 23, 1997, prior to the hearing of this case, gave a favourable ratification to the MIA.

[23]      In their written argument, the applicants state:

5.      Under the MIA the Applicants will be locked into the MIA forever and will have their rights against Hydro, et al, under the NFA extinguished. This step will later be confirmed by legislation contemplated under the MIA. This legislation will mandate that the Applicants fall under the MIA claims process and not the NFA. Article 10.8.1 of the MIA states:

Recommendation. Canada and Manitoba shall recommend the enactment of legislation providing that a claim for compensation which may be made under both the NFA the NFA and this Agreement shall be exercised only in accordance with this Agreement.

[24]      The applicants assert that the MIA represents an improvident measure for the NHCN including themselves; and it is not for this Court either to affirm or negate that assertion. The providence or not of the MIA is not a subject for judicial review, as the decision to provide for a second or supplemental referendum is not a subject for judicial review, for there is nothing unlawful to quash in the amended formulation of article 14, nor in holding a second referendum pursuant to it.

[25]      The main thrust of the applicants' oral arguments can be found in the hearing transcript, pp. 75 to 105. Essentially the applicants' principal point is that, since the referendum provision, article 14.2.2 with subsequent provisions is incorporated in the draft MIA as an amendment to it, and since the draft MIA has not yet been executed, how can article 14.2.2 et seq. have any force and effect? Of course, it does not of itself have force and effect. It is a manner-and-form provision with which the Norway House Cree Nation, democratically represented by its Chief and Council, has been preparing itself to execute the MIA by compliance with the MIA's requirements for the Norway House Cree Nation's execution of the agreement. There has been no shortage of democratic expression of the will of the people in this process, initiated by the Chief and Council. Had it been the will of the people - the adult electors - the MIA could have been rejected, as well as ratified.

[26]      The applicants argue even more deeply. They say that there is no authority in the Indian Act, the Indian Referendum Regulations or any other law or tradition to empower the Chief and Council to hold referenda. They urge that anyone who did not like the first referendum ought to have appealed under regulation 31, or "rest in peace".

[27]      The applicants sought an injunction but, since the second referendum has been held now on September 23, 1997, that request is moot. At best they could seek certiorari to quash the referendum and prohibition to prevent the Chief and Council from acting on it. More to the point is the declaration which they have sought, and it would not be moot.

[28]      The respondents cite Corbière v. Minister of Indian Affairs (1993) 67 F.T.R. 196, a decision of Mr. Justice MacKay who wrote:

There is no statutory or regulatory process for ratification of a settlement agreement of a land claim. That process in this case is provided for in the agreement itself.

(paragraph [11])

Counsel for the respondents then argued that even if the MIA were a land claim settlement agreement, there is no prescribed statutory or regulatory process, but such does not defeat ratification, if it be provided for in the agreement itself, that is, the MIA. So the agreement here, before ratification provides how the Chief and Council - by what manner and in what form - may execute and thereby ratify the agreement.

[29]      The respondents further correctly argue that since the MIA is not "a proposed absolute surrender or designation" stated in regulation 3(1), it is not obligatory to follow the Indian Referendum Regulations, but that nothing prohibits the respondents from "using" them by borrowing or adopting certain provisions for democratic voting purposes. Here the evidence discloses that the Chief and Council did request a second, confirmatory vote - if such it would turn out to be - and that the Minister did consider it advisable so to do, and did conduct it. So, the respondents argue, even if the regulations were applicable here (which they correctly deny) there was nothing improper or illegal in holding that second referendum. It is important to note the repeal of regulation 30(2) which imposed a hiatus of two years before permitting a second referendum.

[30]      Counsel for the respondents argues that it is only natural that the NHCN express its will be means of its Chief and Council - and all the moreso after a positive vote in favour of the proposed ratification of the MIA. The party is the NHCN, the Chief and Council are, in effect, merely the NHCN's amanuensis as is the Government of Canada which conducted the referenda. In this regard, the respondents cited Six Nations Traditional Hereditary Chiefs v. Minister of Indian Affairs (1991) 43 F.T.R. 132, a decision of Mr. Justice Rouleau, who demonstrated the Minister's discretionary authority, as for example, pursuant to section 4 of the Department of Indian and Northern Affairs Act, R.S.C. 1985, Chap. I-6, as well as pursuant to sections 3 and 74 of the Indian Act. The judgment is instructive, including its reference to R. v. Sparrow [1990] 1 S.C.R. 1075, 111 N.R. 241. Rouleau, J. held that "the result of a referendum is only an opinion expressed by the aboriginal peoples, not an interference with aboriginal rights". (Paragraph [28]).

[31]      Is the MIA such an interference with the NHCN's aboriginal rights, as the applicants urge? It is not, unless one believes that a majority of aboriginal people voting to ratify the MIA are interfering with aboriginal rights. Merely to say it is to understand that such a proposition cannot stand.

[32]      This Court earlier, above, stated that if anyone does not like the MIA or believes that ratifying it would be improvident, it is nothing to this Court. However, this Court is obliged to defend the Constitution, not least of is section 35 which basically recognizes aboriginal and treaty rights. The applicants alleged that the MIA breaches their treaty rights. However, article 13.13.3 of the MIA provides:

13.13.3      Treaty Rights.      Nothing in this Agreement is intended to alter the aboriginal or treaty rights of Norway House Cree Nation or other aboriginal peoples recognized and affirmed under section 35 of the Constitution Act 1982. The Parties are, pursuant to the terms of this Agreement, implementing the NFA by compensating and making provision for future compensation:

(a)      in cash or kind; and

(b)      through the implementation of compensatory and mitigatory arrangements to address Adverse Effects on:

(i)      Norway House Cree Nation,

(ii)      a Member,

(iii)      a group of Members, or

(iv)      the respective property, resources or assets of Norway House Cree Nation, Members or groups of Members or the exercise of their rights.

(Muskego - exhibit B)

The above provision satisfies the Court that section 35 is not going to be breached, and that is sufficient in these circumstances.

[33]      All in all, the Court finds the respondents' arguments - those which are relevant to the issues in contention - to be compelling. The applicants' notice of motion, and their requests for relief are dismissed. Neither side deserves to be awarded costs on this record, so no costs are awarded to any party hereto.

    

Judge

Ottawa, Ontario

November 25, 1997