Date:
20100216
Docket: A-414-08
Citation: 2010 FCA 48
CORAM: LÉTOURNEAU J.A.
NADON J.A.
DAWSON J.A.
BETWEEN:
LUCKY MAN CREE NATION
Appellant
and
ROBERTA FAYE OKEMOW-CLARK,
GRACE MARY OKEMOW, JOYCE OKEMOW, ALVIS HOWARD OKEMOW, EUGENE CALVIN OKEMOW,
DWAYNE CLIFTON OKEMOW, CRYSTAL LYNNE OKEMOW, EUGENIA BERYL OKEMOW, EFFREM
HOWARD OKEMOW, TERRENCE DAVID OKEMOW, BOBBY JAY OKEMOW, LANNY MICHAEL OKEMOW
and ELAINE PELLETIER
Respondents
Heard at Saskatoon,
Saskatchewan, on February 16, 2010.
Judgment delivered from the Bench at Saskatoon, Saskatchewan, on February 16, 2010.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date:
20100216
Docket:
A-414-08
Citation:
2010 FCA 48
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
DAWSON J.A.
BETWEEN:
LUCKY MAN
CREE NATION
Appellant
and
ROBERTA FAYE OKEMOW-CLARK, GRACE MARY
OKEMOW, JOYCE OKEMOW, ALVIS HOWARD OKEMOW, EUGENE CALVIN OKEMOW, DWAYNE CLIFTON
OKEMOW, CRYSTAL LYNNE OKEMOW, EUGENIA BERYL OKEMOW, EFFREM HOWARD OKEMOW,
TERRENCE DAVID OKEMOW, BOBBY JAY OKEMOW, LANNY MICHAEL OKEMOW and ELAINE
PELLETIER
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Saskatoon, Saskatchewan, on February 16,
2010)
LÉTOURNEAU
J.A.
Issues on appeal
[1]
This
appeal challenges the findings made by de Montigny J. (judge) of the Federal
Court on an application for judicial review. In granting the application, he
ordered that the decision to exclude the respondents from the Lucky Man Cree
Nation Band (Band) list be quashed. As a follow-up, he ordered that the issue
of the respondents’ membership in the Band be remitted to the Chief and Council
of the Band to be dealt with in accordance with the Band’s Membership Code
(Code) and the Indian Act.
[2]
The
judge’s decision was rendered on July 18, 2008 and the exclusion decision from
the Band list goes back to the year 2004.
[3]
The
appellant raises five grounds of appeal. We reproduce them:
1.
the judge erred in concluding that a final decision had been rendered
by a Federal Board or tribunal which gave rise to judicial review proceedings
in the Federal Court;
2.
the judge erred in finding that the internal remedies provided by the
Band under the Code and the Band Election Act, ratified on July 21, 2000
were inadequate;
3. the judge erred when
he quoted from a wrong version of the Code;
4.
the judge made an overreaching order when he ordered that the
respondents and their descendents be reintegrated in the Band; and
5.
the judge erred in awarding costs to the respondents when the judicial
review application was allowed in part only.
Analysis of the judge’s
decision and contentions of the appellant
[4]
We
are of the view that this appeal cannot succeed on any of these grounds.
[5]
There
was ample evidence to support the judge’s conclusion that a decision was taken to
exclude the respondents from the Band list and deprive them of their voting
rights at the 2004 election and the right to run for that election. That
evidence also showed that that decision was “a decision, order, act or
proceeding of a federal board, commission or other tribunal” which was properly
the subject of judicial review.
[6]
The
appellant claims that the decision is not its decision, but rather the decision
of former Chief King acting alone. We do not think that the distinction made by
the appellant is relevant. The fact is that a decision was made which affected
the rights of the respondents. It does not matter whether it was a decision of
the Band acting on its own or a decision of the Band implementing the former
Chief’s decision.
[7]
The
appellant also submits that there has been no final decision since the dispute
regarding the exclusion of the respondents from the Band list, or the
deprivation of some of their rights, still continues today.
[8]
The
very fact that the dispute continues today, some six years after the events, in
our view, confirms that a decision was taken and that that decision was final.
Otherwise, the respondents would either at all times have been members of the
Band list and enjoyed their rights as members or could have by now been
reintegrated on the Band list and have their rights fully restored.
[9]
We
agree with the judge that the respondents had exhausted all adequate internal
remedies. As the judge found, the remedies advanced by the appellant were
either unavailable or inadequate.
[10]
As
for the third ground of appeal, even assuming that the judge referred to a
wrong version of the Code, we are satisfied that the error, if any, was not
material to his decision.
[11]
The
fifth ground of appeal relates to the costs of the proceedings in the Federal
Court awarded to the respondents. The judge having found for the respondents on
the main issue before him, i.e. whether they were properly excluded from the
Band list, he allowed costs in their favour. We see no basis on which to
disturb his discretionary determination.
[12]
We
are left with the allegation that the judge’s decision was wrong in that he
purported to reinstate all the respondents and their descendents in the Band
while stating that he was merely maintaining the status quo.
[13]
With
respect, the appellant’s submission cannot succeed. It is obvious from the
evidence and the record that the status quo that the judge was
maintaining was the status quo ante, that is to say that he was putting
the respondents in the same position as they were before the impugned decision
to exclude them from the Band list was taken.
[14]
For
the sake of clarity, what the judge’s Order does in essence is to put the
respondents in the position they were before the decisions of former Chief King
and the Chief Electoral Officer were made in 2004, and send the issue of
the respondents’ membership in the Band back for a determination, something the
appellant does not oppose.
Conclusion
[15]
For
these reasons, this appeal will be dismissed with costs.
“Gilles
Létourneau”
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