Date: 20080828
Docket: T-462-08
Citation: 2008
FC 975
Toronto, Ontario, August 28, 2008
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
HARRY WAWATIE, TOBY DECOURSAY,
JEANNINE MATCHEWAN AND LOUISA PAPATIE, IN THEIR CAPACITY AS MEMBERS OF THE ELDERS
COUNCIL OF MITCHIKANIBIKOK INIK (also known as ALGONQUINS OF BARRIERE LAKE)
Applicants
and
MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT
Respondent
REASONS FOR ORDER AND ORDER
[1]
This case
concerns an application for judicial review of a “decision” of the Minister of
Indian Affairs and Northern Development (“the Minister”) which the Applicants
say effectively resolved a leadership dispute.
I. Background
[2]
The
Algonquins of Barrière Lake (“ABL”) is a First Nation recognized as a Band
under the Indian Act. The ABL selects its leaders by its customs which
are codified in the Mitchikanibikok Anishinabe Onakinakewin (“MAO”).
[3]
The main
spokesman for the Applicants is Harry Wawatie, who filed an affidavit in
support of this Application. He is a former Chief of the ABL until his
resignation in July, 2006.
[4]
It appears
that ABL conducted a leadership selection process in January 2008 which, it is
alleged, purported to replace a prior Council. On January 31, 2008 the Chief
of the newly elected Council, Casey Ratt, wrote to the Minister claiming that
the selection process had been conducted in accordance with the MAO and naming
the new members of the ABL Band Council.
[5]
Harry
Wawatie took issue with the selection process and wrote to the Minister on February
4, 2008 requesting that the Minister disregard the January 31, 2008 letter from
Casey Ratt. It was Harry Wawatie’s position that “there has been no new
leadership selection process undertaken within Barrière Lake”.
[6]
In his
letter Harry Wawatie described what, in his view, were the various errors in
the selection process and alleged that the leadership selection process was not
carried out in accordance with the codified leadership selection customs set
out in the MAO. Harry Wawatie advised the Minister that in his view the
governing council of ABL continued to be the prior Council.
[7]
No steps
were taken by Harry Wawatie or the former Band Council to seek a leadership
review in accordance with the MAO nor were any proceedings commenced in Court
seeking a declaration that the Council selected during the January 2008
proceedings was properly selected pursuant to the provisions of the MAO.
[8]
Rather
than invoke the process set out in the MAO to challenge the selection process,
the Applicants brought this proceeding seeking Judicial Review of the “decision
or conduct of the Minister as communicated in the March 10, 2008 letter”. That
letter provides as follows:
Over
the past several days, the Department has received and assessed a significant
amount of information regarding the conduct of a leadership selection/review
process in Barrière Lake. Based upon all the information
submitted, the Department will register the results of the leadership selection
process held on January 30, 2008 into the Band Governance Management System.
Therefore, I wish to
inform you that effective
immediately, the Department will conduct its relationship with [the Ratt
Council].
[9]
The
Applicants concede that the Minister has no authority whatsoever to interfere
in any way with the ABL custom leadership selection processes set out in the MAO
or otherwise. Indeed, it is common ground that the Minister has no role to
play with regard to the customary election process of the ABL and that this
election process belongs to the Band because it was created by the Band, is
administered by the Band and exists independently from the Indian Act.
[10]
Further,
the Minister has no authority to interpret the Band’s custom or to decide
whether custom was followed and has no supervisory role with respect to the
election process. The Minister cannot interfere with the results of the
election and does not settle disputes with regard to ABL’s customs.
[11]
In the
ordinary course a Band advises the Minister of election results. Upon receipt
of these results, the Minister acknowledges the results and records the results
in the Band Governance System and continues its relations with a Band via the
newly elected Band Council.
[12]
As the
Minister is not a party to the custom election process and does not participate
in the selection of the leadership of ABL, the Minster takes the position that
disputes related to custom elections must be settled within the Band or the
community. The Minister may endeavour to assist the Band to resolve disputes
but it has no jurisdiction or authority to impose a Council on the Band.
II. Position of the Applicants
[13]
The
Applicants argue that the Minister reviewed materials received from the Ratt
Council. A decision was then made that the Ratt Council should be entered on
the Band Governance System. The Applicants argue that this amounts to a
decision which is open to judicial review in this Court.
[14]
They argue
that the Minister is a federal board, commission or other tribunal within the
meaning of Section 2 of the Federal Courts Act and thus, pursuant to
s.18.1 (1), the Court has the jurisdiction to review this decision.
[15]
Section 2
of the Federal Courts Act defines a "federal board, commission or
other tribunal" as:
Any body, person or persons, having,
exercising or purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament…
Thus, any jurisdiction or powers possessed by the Minister
with respect to the selection process within a Band must be conferred by
statute being in this case the Indian Act. Custom election procedure is
not governed by or subject to the Indian Act. It is an inherent power
of a Band under the Indian Act. Unless otherwise ordered under Section
74, a Band maintains autonomy and control over its electoral process. Such is
the case here. Any dispute regarding the election process is an internal
matter of the ABL and should be resolved internally by the ABL.
[16]
Thus, on
this motion to strike the issue is whether the Minister exercised any
discretionary power respecting the outcome of the electoral process within the
ABL or whether the Minister engaged in a purely administrative act by
mechanically recording the information which was provided on behalf of the ABL.
If it is the former, then this motion to strike should be unsuccessful because
it is not “bereft of any chance of success”. If it is the latter, then the
motion to strike should be granted as there is no “decision” to judicially
review and thus the Application is “bereft of any chance of success”. For the
reasons that follow it is my view that as there is no “decision” the
Application is bereft of any chance of success and must be struck out.
[17]
Notably,
no members of the Ratt Council or the new Band Chief are Respondents in this
proceeding. This is so notwithstanding that the Notice of Application seeks a
declaration that all of the acts of the new Council are null and void and of no
effect.
III. Analysis
[18]
The issue
of whether the Minister makes a decision by recording the name of the Council
members on the Band Government System constitutes a decision of a "board,
commission or other tribunal" has been dealt with on prior occasions in
this Court. In my view, those cases govern. The two most apposite cases are Algonquins
of Barrière Lake Band v. Canada (Attorney General), [1996] F.C.J. No. 175 and Wood
Mountain First Nation v. Canada (Attorney General), [2006] F.C.J. No. 1638.
[19]
In the Barrière
Lake Band case Justice McGillis observed:
5
In support of her
motion to withdraw the originating notice of motion, counsel for the applicants
has submitted that the decision of the Department to recognize the legitimacy
of the Interim Band Council has rendered her application moot. Counsel for the
Attorney General of Canada has opposed the application on the basis that the
ministerial decision was purely administrative in nature and was made solely
for the purpose of permitting the Minister to discharge his duties to the Band.
He therefore submitted that the question of the legality of the selection of
the Interim Band Council according to custom has not been determined.
Accordingly, the relief sought in the originating notice of motion has not been
rendered moot. Counsel for the remaining respondents, except for Mr. Papatie,
supported the position advanced by counsel for the Attorney General of Canada.
Mr. Papatie represented himself at the hearing and consented to the proposed
withdrawal of the originating notice of motion.
6 Following my review of the
submissions of counsel and the documentation in this matter, I have concluded
that the application to withdraw the originating notice of motion must be
dismissed. In my opinion, the question of the legality of the selection of the
Interim Band Council according to custom remains to be determined. In the
circumstances, it would not be appropriate to permit the originating notice of
motion to be withdrawn.
[20]
In
essence, in that case the Applicants, the Interim Band Council of the ABL,
sought to withdraw their originating Notice of Motion on the ground that it was
moot. The interim Band Council was recognized by the Minister and registered
accordingly subsequent to the issuance of the originating Notice of Motion.
Council for the Interim Band Council of the ABL took the position that the
recognition of the interim Band Council by the Minister disposed of the
originating Notice of Motion by effectively resolving the leadership issue and
rendered the proceeding moot. Counsel for the Attorney General opposed the
dismissal of the proceeding on the ground that the decision was purely administrative
in nature and made solely for the purpose of permitting the Minister to
discharge his duties to the ABL. It was the Attorney General’s position that
the question of legality of the selection of the Interim Band Council according
to custom had not been determined and it was therefore not proper to dismiss
the proceeding on the basis of mootness. As noted, Justice McGillis determined
that the question of the legality of the selection of the Interim Band Council
had not been determined. What flows from this decision is that the act of the
Minister in registering the Interim Band Council in the Band Governance System
was not a determination or decision on the propriety of the selection process.
[21]
The Wood Mountain case concerned an Application
for Judicial Review in respect of a letter from a representative of the
Minister in which the receipt of results of a custom election purportedly held
by the Wood Mountain Lakota Nation was acknowledged. As in this case, the
Applicants sought to judicially review the Minister’s act in registering the
result in the Band Governance System. Again, as with the ABL, the Wood
Mountain First Nation conducts its elections under Band custom. The Minister
received a Band Council resolution purportedly adopted by the Band Council and
the electoral officer’s report of the results of an election. In response, a
representative of the Minister recorded the results of the election. In
their Application, the Applicants sought production of extensive materials
relating to the alleged decision of the Minister to record the results of the
election. The Respondents objected to producing the material on the ground
that the Minister was not a tribunal within the meaning of the Federal
Courts Act and that no reviewable decision was made by the Minister or on
his behalf. Justice Strayer concluded that the action taken by the Minister of
recording the result of the election was not reviewable as it was not the
action of a "federal board, commission or other tribunal" as defined
in Section 2 of the Federal Courts Act. Justice Strayer observed:
[8] This Court has held that the reference to band custom
elections in the definition of "council of the band" in section 2 of
the Act does not create the authority for custom elections but simply defines
them for its own purposes: see Bone v. Sioux Valley Indian
Band No. 290 Council, 107 F.T.R. 133, at paras. 31-32. Thus such elections are not held under
the authority of an Act of Parliament. Counsel for the Applicants did not draw
to my attention any provision in the Act which gives to INAC the authority to
decide who has won such an election. It was held by Justice Paul Rouleau in Lac des Mille Lacs First Nation et al. v. Canada (Minister of
Indian Affairs and Northern Development), [1998] F.C.J. No. 94 (QL), at para. 4 that the Minister has no authority over
such elections. Nor does INAC have any role in determining what is band custom
for the purpose of governance of an election: see Chingee
v. Chingee, (1999), 153 F.T.R. 257, at para. 13.
[9] For
the same reason, the Applicants cannot demand materials from the Respondents
under Rule 317(1) because it authorizes a request of materials in the
possession of a "tribunal whose order is a subject of the
application". For the reasons given, there was no order here: see Gaudes v. Canada (Attorney General), 2005 FC 351; [2005] F.C.J. No. 434 (QL), at para. 16.
.
. .
[11] The Respondents asked that, for the
same reasons, I dismiss the application for judicial review without prejudice
to the rights of the Applicants to commence another proceeding against different
parties and perhaps seeking different remedies. The Applicants ask, in
the alternative, if I should find against them on their main position, that I
not dismiss the application for judicial review but allow it to be amended
keeping the same parties and adding other parties and perhaps other
remedies. I see little virtue in this having just determined that the
Respondents are not subject to judicial review in the matter as presently
pleaded. I believe it is in the interests of justice that the application
for judicial review be dismissed without costs without prejudice to the rights
of the Applicants to seek other remedies against appropriate parties. It
would appear that a declaration or a writ of quo warranto could be sought in
this Court against parties the Applicants consider to be unlawfully exercising
power. This is not, however, to be taken to be an extension of time for
seeking judicial review as provided in subsection 18.1(2) of the Federal
Court Act. Such an extension will have to be sought on a proper
motion to that effect.
The net
result in Wood Mountain was that Justice Strayer dismissed the Application but without
prejudice to the rights of the Applicants to seek other remedies against
appropriate parties.
[22]
In my
view, these two decisions govern the result in this case. While Counsel for
the Applicants strongly urged the Court to find that the Minister had in fact
made a decision which was reviewable by having "received and assessed a
significant amount of information regarding the conduct of a leadership
selection review process in Barrière Lake” that is not a reviewable decision
pursuant to Sections 2 and 18.1 of the Federal Courts Act. In my view
this situation is no different than the Wood Mountain case. The
Minister was not engaging in a reviewable decision. The result of the
Minister’s registration of the results of the election does not determine
whether or not the election was properly held pursuant to the MOA. It simply
administratively determines that the Minister will continue its relations with
the ABL via the newly elected Band Council. If the Applicants are concerned
that all of the procedures of the MOA were not followed or certain sections
were breached their remedy lies elsewhere. It is up to them to seek a review
within the ABL of the leadership currently in place, or take such other
remedies as are available to them through the very thorough process for
leadership selection set out in the MOA or otherwise. In essence, the
Applicants are seeking to do indirectly that which they have not done
directly. That is, they seek to overturn the selection process by asking this
Court to judicially review the action of the Minister instead of invoking the
process mandated by the MOA.
[23]
A motion
to strike an application puts a very high onus on the moving party [see, for
example, David Bull Laboratories v. Pharmacia Inc. et al., [1995]
1 FC 588]. Recently, the principles governing motions to strike applications
for judicial review have very usefully been analyzed in depth and summarized by
Justice Mactavish in the case of Amnesty International Canada et al. v. Chief
of the Defence Staff et al., [2007] FC 1147. Justice Mactavish’s summary
is as follows:
Legal
Principles Governing Motions to Strike
[22] Applications
for judicial review are intended to be summary proceedings, and motions to
strike Notices of Application add greatly to the cost and time required to deal
with such matters.
[23] Moreover,
as the Federal Court of Appeal observed in David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc., [1994] F.C.J. No. 1629, the striking out process is
more feasible in actions than in applications for judicial review. This
is because there are numerous rules governing actions which require precise
pleadings as to the nature of the claim or the defence, and the facts upon
which the claim is based. There are no comparable rules governing Notices of
Application for Judicial review.
[24] As
a consequence, the Federal Court of Appeal has observed that it is far more
risky for a court to strike out a Notice of Application for Judicial review
than a conventional pleading. Moreover, different economic considerations come
into play in relation to applications for judicial review as opposed to
actions. That is, applications for judicial review do not involve
examinations for discovery and a trial - matters which can be avoided in
actions by a decision to strike: David Bull, at ¶10.
[25] In
contrast, the full hearing of an Application for Judicial review proceeds in
much the same way that a motion to strike the Notice of Application would
proceed, namely on the basis of affidavit evidence and argument before a judge
of this Court.
[26] As
a result, the Federal Court of Appeal determined that applications for judicial
review should not be struck out prior to a hearing on the merits of the
application, unless the application is “so clearly improper as to be bereft of
any possibility of success”.
[27] The
Federal Court of Appeal further teaches that “Such cases must be very
exceptional and cannot include cases ... where there is simply a debatable
issue as to the adequacy of the allegations in the notice of motion”: David
Bull, at ¶15.
[28] Unless
a moving party can meet this very stringent standard, the “direct and proper
way to contest an originating notice of motion which the Respondent thinks to
be without merit is to appear and argue at the hearing of the motion itself.” (David
Bull, at ¶10. See also Addison & Leyen Ltd. v. Canada,
[2006] F.C.J. No. 489, 2006 FCA 107, at ¶5, rev’d on other grounds [2007]
S.C.J. No. 33, 2007 SCC 33).
[29] The
reason why the test is so strict is that it is ordinarily more efficient for
the Court to deal with a preliminary argument at the hearing of the application
for judicial review itself, rather than as a preliminary motion: see the
comments of the Federal Court of Appeal in Addison & Leyen, at ¶5.
[30] By
analogy to the process prescribed in the Federal Courts Rules with
respect to the striking out of statements of claim, as a general rule, no evidence
may be led on a motion to strike a Notice of Application. In addition,
the facts asserted by the Applicant in the Notice of Application must be
presumed to be true: Addison & Leyen Ltd. et al., above, at ¶6.
[31] However,
the Court is not obliged to accept as true allegations that are based upon
assumptions and speculation. Nor is the Court obliged to accept as true
allegations that are incapable of proof: see Operation Dismantle Inc. v. R.,
[1985] 1 S.C.R. 441, at ¶27.
[32] There
is an exception to the general principle that no evidence may be led on a
motion such as this. That is, where the jurisdiction of the Court is
contested, the Court must be satisfied that there are jurisdictional facts or
allegations of such facts supporting the attribution of jurisdiction: see MIL Davie Inc. v. Hibernia Management &
Development Co. (1998), 226 N.R. 369.
[33] Finally,
in deciding whether an Application for Judicial review should be struck as
bereft of any possibility of success, the Notice of Application should be read
as generously as possible, in a manner that accommodates any inadequacies in
the allegations that are merely the result of deficiencies in the drafting of
the document: see Operation Dismantle, at ¶14.
[24]
Keeping in
mind the admonition of Justice Mactavish in Amnesty International
regarding the heavy onus on the moving party and the need to read the notice of
application as generously as possible, I am not persuaded that this case can
succeed. In light of both the Wood Mountain and Algonquins of
Barrière Lake cases, this Application is bereft of any chance of success
and must be struck. However, in order to preserve any rights the Applicants
may have, the Application is struck out but without prejudice to the rights of
the Applicants to commence another proceeding for appropriate remedies against
appropriate parties subject to the requirements of subsection 18.1(2) of the Federal
Courts Act.
[25]
The moving
party seeks its costs of the motion. In the ordinary course as a successful
moving party the Respondent is entitled to costs. The Applicants have pleaded
impecuniosity. There was no evidence of impecuniosity before the Court except
for the statement in the written representations of the Applicants, although
counsel for the Applicants during oral argument did advise the Court of their
impecunious situation. Counsel for the Minister seeks costs because, as they
submitted, the law was clear that the Minister’s action was not subject to
judicial review. In the circumstances, the Respondent is entitled to its assessed
costs, if demanded.
ORDER
THIS COURT ORDERS that:
1.
This
Application is struck out without prejudice to the rights of the Applicants to
commence such other proceedings for appropriate remedies against appropriate
parties, subject to the requirements of subsection 18.1 (2) of the Federal
Courts Act.
2.
The
Respondent is entitled to its assessed costs, if demanded.
“Kevin
R. Aalto”
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