Date: 20060619
Dockets: A-552-05
A-554-05
Citation: 2006 FCA 228
CORAM: LINDENJ.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
SAWRIDGE BAND
Appellants
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA, AND NATIVE WOMEN'S
ASSOCIATION OF CANADA
Interveners
AND BETWEEN:
TSUU T'INA FIRST NATION
Appellants
and
HER MAJESTY THE QUEEN
Respondent
and
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA, AND NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] The appellants, the Sawridge Band and the Tsuu T'ina First Nation, have appealed against two orders of Russell J. of the Federal Court, dated November 7 and 8, 2005, prohibiting them from calling certain witnesses, and from entering certain expert reports, at the trial of their actions against the Crown. The most controversial aspect of the orders is their exclusion of witnesses on the ground that the evidence which they propose to give is irrelevant to the appellants' actions as pleaded.
[2] The Judge's decisions and lengthy reasons for the orders are reported as Sawridge Band v. Canada, 2005 FC 1476, and Sawridge Band v. Canada, 2005 FC 1501. The appeals were consolidated by an order of this Court, dated February 7, 2006: Sawridge Band v. Canada, 2006 FCA 52. I shall refer to the Sawridge Band and the Tsuu T'ina First Nation collectively as "the appellants", and to their actions against the Crown as "the action". These reasons deal with both appeals and a copy should be inserted in each Court File.
[3] The orders under appeal were made pursuant to motions by the Crown, which, in turn, arose out of actions by the appellants requesting the Court to declare invalid certain amendments to the Indian Act, R.S.C. 1985, c. I-5, made in 1985 and 1988 ("Bill C-31").
[4] The appellants say that Bill C-31 abrogates their constitutionally protected aboriginal right to determine their membership by unilaterally imposing upon them certain categories of members. By limiting the appellants' right to determine their membership, Bill C-31 infringes an existing aboriginal and treaty right protected by subsection 35(1) of the Constitution Act, 1982, and based on their customs, practices, law, traditions, treaties, and aboriginal title to reserved land. The appellants maintain that membership of a First Nation is a matter for the Nation itself to decide, not Parliament, since control over membership is integral to the identity of a self-governing aboriginal people.
[5] Bill C-31restores to membership of a First Nation several categories of persons who had at one time been members but who, for a variety of reasons, had lost their membership. They include those who were members, or entitled to membership, of a First Nation on April 17, 1985, (the date when section 15 of the Canadian Charter of Rights and Freedoms came into effect), illegitimate children of status Indian mothers, and women who had married a non-status man.
B. LITIGATION HISTORY
[6] This litigation has a protracted and difficult history, which is ably and fully described in the reasons of Russell J. Suffice it to say here that the action was commenced in 1986, and was tried over some 90 days in 1993 and 1994. Judgment was rendered by a Judge of the Federal Court in 1995 (Sawridge Band v. Canada, [1996] 1 F.C. 3 (T.D.)), but was set aside by this Court in 1996, and a new trial ordered, on the ground that statements by the trial judge gave rise to a reasonable apprehension of bias: Sawridge Band v. Canada, [1997] 3 F.C. 580 (C.A.).
[7] The matter was returned to the Federal Court, and Hugessen J. was appointed case management judge in June 1997. However, since 1998 the case has been mired in apparently interminable rounds of discoveries, motions and appeals. In March 2004, Hugessen J. scheduled the second trial to start on January 10, 2005, but it did not proceed because of further motions, including a challenge to the impartiality of Russell J., who was assigned in March 2004 to be the trial judge. January 2007 is the present target date, partly to enable current counsel, who took over in mid 2005, to be ready for trial.
[8] Justices Hugessen and Russell have both criticized previous counsel for failing to move the matter to trial. In an order of March 2004 (reproduced in Sawridge Band v. Canada, 2005 FC 607 at para. 40), Hugessen J. required the parties to produce a list of witnesses whom the appellants proposed to call at trial and to provide summaries of the evidence that they proposed to give ("will-says").
[9] Hugessen J.'s order of March 2004 was designed to provide a substitute for oral discovery, which the parties had shown themselves incapable of conducting in a productive and focused manner, as evidenced, for example, by the appellants' submission of 14,000 written interrogatories. This order would also reduce disruptions to the trial, once started, caused by lengthy arguments over the admissibility of evidence.
[10] Because of the appellants' repeated failure to comply, in different ways, with Hugessen J.'s order of March 2004, none of the potential witnesses on behalf of the appellants were eligible to be called to testify at trial as of the September date set by Hugessen J. for the disclosure of witnesses and the filing of will-says. As a result, the appellants would be limited at the re-trial to the evidence in the record of the first trial. However, during the fall of 2004, Russell J. gave the appellants further opportunities to comply. As a result of the first order under appeal, 24 of the 57 potential witnesses specifically considered by Russell J. were permitted to be called.
[11] Russell J. prohibited the appellants from calling the other 33 potential witnesses, most of whom had failed in various ways to comply with the Court's previous will-say orders. Ten were excluded because they were not on the list of potential witnesses which Hugessen J. had ordered to be filed by September 2004, while others were excluded because they had failed to file their will-says by the prescribed last date, December 14/15, 2004, or had not filed a sufficiently detailed will-say to enable other parties to understand what evidence they proposed to give.
[12] In their memorandum of fact and law, the appellants did not specifically challenge the exclusion of witnesses on one or more of the grounds described above, nor on the ground that the witnesses' proposed evidence merely expressed their political opinion. At the hearing, however, current counsel said that the appellants were appealing against the order in its entirety.
[13] Counsel took the Court to passages from several of these will-says in order to demonstrate that they contained material which would assist the appellants to make their case at trial. Be that as it may, it was within the discretion of Russell J. not to permit witnesses to be called because of the appellants' non-compliance with Court orders. Counsel offered no basis on which this Court could or should interfere with this discretionary order. Accordingly, to the extent that the appellants are appealing against the exclusion of those who had not complied with previous Court orders regarding the filing of will-says, the appeals must fail.
[14] The appellants' real challenge, however, focuses on the exclusion of a small number of witnesses on the ground that their evidence is irrelevant to the issues raised by the action. It would appear that between 4 and 8 of the 57 potential witnesses who were the subject of the first order of Russell J. under appeal were excluded solely on the ground that their proposed evidence was irrelevant to the issues in the action.
[15] In the second order under appeal, Russell J. excluded five expert reports prepared between 1991 and 1999 by a Dr Miguel Alfonso Martinez for a committee of the United Nations. The reports contain a broad-sweeping study of treaties between indigenous peoples and states around the world, including Canada and the treaties relied on by the appellants in the present case as one of the bases of their claim to self-government.
[16] Russell J. concluded that, as he interpreted the scope of the pleadings, Dr Martinez' reports were not relevant to the issues raised in the appellants' action. Any minimal relevance that they might have was outweighed by the increase in the cost and length of the trial that their admission as evidence would entail. However, he also held that the parties could refer to these publicly available reports as background.
C. ISSUES AND ANALYSIS
[17] The heart of the dispute between the parties in these appeals over relevance is as follows. The Crown and the interveners say that the only issue in the action, as pleaded is whether Bill C-31 infringes on the appellants' aboriginal right to determine its membership. This right, they argue, must be proved directly, on the basis of evidence pertaining to the appellants' laws, traditions, customs and practices respecting membership. They agree that, if established by the evidence, such a right may be an incident of aboriginal self-government.
[18] The appellants, on the other hand, argue that their right to determine membership may be proved indirectly, if they can establish that they have a right to self-government. This latter right is defined for the purpose of these proceedings at paragraph 26 of the appellants' memorandum of fact and law as "an historical jurisdiction over matters which are internal to themselves and integral to their cultural identity", including "the right to have and maintain societal relationships" (paragraph 38).
[19] The appellants argue that control over membership is central to self-government. Hence, the right to control membership can be proved by establishing an aboriginal right to self-government, a right which is inherent, aboriginal, recognized by treaties, and protected by subsection 35(1) of the Constitution Act, 1982. The appellants say that they have pleaded in the alternative that the right to control membership is, in effect, parasitic on the right to self-government. Accordingly, evidence calculated to prove the existence of the right to self-government is relevant to proving a right to control membership, which is the subject of the action.
[20] Russell J. did not accept the appellants' characterization of the breadth of the action. Accordingly, he refused to permit the appellants to call witnesses who proposed to testify on the right to self-government at large, and not to confine their testimony to the specific issue of the appellants' right to determine their membership. Before considering whether Russell J. committed a reversible error in so concluding, I would make the following observations.
Three preliminary points
[21] First, this Court is very reluctant to interfere with decisions made by a judge in the course of managing a matter prior to trial, particularly one as complex, lengthy and difficult as this one. As a result of living with the matter over time, the case management judge will have acquired an overall understanding of it which an appellate court, on the basis of hearing an appeal on a particular issue, cannot possibly match in either depth or breadth.
[22] When performing essentially case management functions judges are appropriately given "elbow room" by appellate courts, so that they can get on with what is often a difficult job, calling for a mix of patience, flexibility, firmness, ingenuity, and an overall sense of fairness to all parties. These qualities are very evident in the way in which both Hugessen and Russell JJ. have performed their tasks in the present matter.
[23] In my opinion, the Court should bear the above considerations in mind when both determining and applying the standards of review appropriate to the different aspects of Russell J.'s decision by virtue of Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33">2002 SCC 33.
[24] Thus, to the extent that the decision involved an exercise of discretion (as when, for example, the Judge was deciding whether to exclude those who had failed to comply with a Court order), the appellants have a particularly high hurdle to cross. They must establish that the discretion was exercised on the basis of an erroneous view of the law or a misapprehension of the facts, or was otherwise non-judicial. On the other hand, determining the relevance of evidence is generally a question of law, subject to appellate review on a standard of correctness, as is the Judge's analysis of the judicial authorities on subsection 35(1).
[25] Second, the delays in moving this matter to trial for the second time have been chronic. There has been a history of non-compliance with orders of the Court. Challenges to interlocutory rulings have been legion: these are appeals numbers 13 and 14 by the appellants from orders made in this matter. None has succeeded. Most have been discontinued. All have caused delays and consumed the resources both of the parties and of the administration of justice. It should also be remembered that it is not only the appellants who claim to have important rights at stake. So, too, do those whom Bill C-31 makes members of the appellants, including the now elderly women who married non-aboriginal men.
[26] Third, when evidential issues are raised in the course of a trial, an appellate court will normally not entertain an appeal from an interlocutory ruling by the trial judge until the final decision in the action has been made: see, for example, Saint John Shipbuilding & Dry Dock Co. v. Kingsland Marine Corp., [1979] 1 F.C. 523 (C.A.). Whether the existing case law treats the general rule in Saint John Shipbuilding as applicable to pre-trial orders such as that before us, I need not decide. However, in my view, this Court is normally, and properly, likely to resist entertaining appeals against interlocutory orders of an evidential nature made outside a trial.
[27] Nonetheless, the present proceeding is exceptional, because of its litigation history, and the breadth of the requirement that the parties identify their potential witnesses and produce will-says. The Crown brought the present motions underlying these appeals in an attempt to resolve "philosophical differences" between the parties over the scope of the pleadings, which had first surfaced in proceedings to amend the pleadings in June 2004, and to avoid the chaos and disruptions likely to arise at the trial if the parties do not know in advance of the trial what the issues are.
[28] In the very unusual circumstances of this case, and despite the able submissions made on behalf of one of the interveners, the Non-Status Indian Association of Alberta, I am of the view that this Court should deal with the merits of Russell J.'s orders. If they are upheld, they will determine the issues in dispute and preclude the possibility of an appeal after the trial on any of the issues encompassed by the orders.
The Judge's reasons
[29] Russell J. excluded for irrelevance witnesses whose will-says indicated that their evidence would concern either the right to aboriginal self-government, as opposed to the more specific issue of membership in a First Nation, or the traditions, practices and customs of other aboriginal groups that were not related to those of the appellants. He took into account the following four factors in deciding that the appellants' pleadings did not include a claim to self-government to which the right to determine membership was parasitic.
(i) the text of the pleadings
[30] First, while acknowledging that the pleadings as amended in 1998 refer to and assert a right to self-government, especially in paragraphs 2 and 11, Russell J. considered the pleadings as a whole and concluded that they do not clearly put in issue at trial the aboriginal right to self-government as the more general right from which the appellants' specific right to control of their membership is said to flow.
[31] The June 1998 amendments to the pleadings emphasized the right to self-government, which was largely absent from the previous pleadings, which, like the pleadings in the first trial, focused firmly on the right to control membership. It is reasonable to assume that these amendments were made to enable the appellants to take advantage of events subsequent to the decision in the first trial, particularly the publication of the Report of the Royal Commission on Aboriginal Peoples and the Supreme Court of Canada's decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[32] In my opinion, Russell J. made no error of principle in his approach to the construction of the pleadings by reading them as a whole and not fixing on particular paragraphs, out of context. Nor do I disagree with his conclusion that the pleadings do not clearly assert a right to control membership which is parasitic on a broader right of self-government. It is relevant to note in this regard that the Government action complained of in the pleadings concerns issues of membership, and the only relief sought is the invalidation of the provisions of the Indian Act added by Bill C-31 dealing with membership.
[33] However, I would respectfully disagree with Russell J. if he also meant that it would be improper, as being "unnecessary" or not "required", for the appellants to plead in the alternative that a right to control their membership could be proved indirectly by establishing a right to self-government. Given the uncertainties of litigation, it is open to parties to plead in the alternative in order to guard against the possibility that they cannot prove at trial their first pleading. The question in this case, however, is whether the appellants have effectively pleaded in the alternative that self-government is an indirect source of the right to control their membership.
(ii) counsel's representations
[34] Second, Russell J. noted the explanation of the pleadings given by the appellants' previous counsel, Martin Henderson, in the course of the proceeding before Hugessen J. in June 1998, at which the appellants sought leave to amend their pleadings. Mr Henderson, the author of the pleadings, represented to the Court as follows:
...In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.
Short of writing out the rules we apply, you can't be more specific than that. And that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I can't be broad.
So when I put forward the new claim, we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government.
....
In fact, the original action and the new action are not inconsistent.
[35] The context of this representation is important. It was made in the course of the proceeding to seek leave to amend the pleadings. The amendments gave more prominence to the right to self-government. Counsel for the Crown might have been expected to, and in fact did, express concern that the proposed amendments made the action very different from the one previously tried. In these circumstances, it is understandable that Mr Henderson would want to reassure the Court, and the other parties, that the amendments did not have this effect, but were narrow in scope.
[36] Hence, Mr Henderson said, the appellants do not claim "a right to self-government at large", but only a right to "this fundamental aspect of our self-government", that is, control over membership. I do not agree with counsel for the appellants who argued that the reference to "self-government at large" meant simply that the appellants were not claiming absolute sovereignty in every aspect of their affairs. Nor do I agree that the reasons of Russell J. show that he understood the right to self-government asserted by the appellants as connoting such a broad claim.
[37] While submissions of counsel are not pleadings, they are part of the context that can be taken into account in the construction of pleadings in order to identify or resolve an ambiguity in them. This is particularly true in the present case, since Mr Henderson's statements were a contemporaneous explanation to the Court of what he meant by the proposed amendments, which he had drafted.
[38] As an officer of the court, Mr Henderson was obliged to ensure the accuracy of his representations. To permit parties, when represented by different counsel, freely to resile from representations made on their behalf to a court would bode extremely ill for the due administration of justice.
(iii) judicial reaction
[39] Third, Russell J. took into account earlier statements by Hugessen J. and himself indicating an understanding of the scope of the appellants' pleadings that is consistent with the view that the 1998 amendments did not introduce aboriginal self-government as the primary right, on which the right to control membership is parasitic.
[40] Thus, for example, in a proceeding in December 2000 concerning the use in the re-trial of transcript evidence from the first trial, Hugessen J. stated that the present action raises "fundamentally the same" issues as the first, and that the developments in the law on which the appellants relied "do not have the effect of changing the factual matrix": Sawridge Band v. Canada, [2000] F.C.J. No. 2111 (QL). However, Hugessen J. also recognized that there would have to be some new evidence in the re-trial of the action, and that the rapidly developing jurisprudence in the area was likely to give rise to some issues that were not canvassed at the first trial.
[41] In addition, in an order issued in June 2004 (Canada v. Sawridge Band, 2004 FC 933) Russell J. rejected most of the amendments which the appellants sought to make to the pleadings, on the ground that they would enlarge the scope of the action by introducing an important new claim, namely the aboriginal right of self-government.
(iv) aboriginal rights jurisprudence
[42] Fourth, Russell J. reviewed the jurisprudence of the Supreme Court of Canada in which aboriginal rights, including the right of self-government, have been considered: in particular, R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Pamajewon, [1996] 2 S.C.R. 821; Delgamuukw; and R. v. Mitchell, [2001] 1 S.C.R. 911. He concluded (at para. 294) that the cases suggest, "at the very least", that a right to self-government can be asserted under subsection 35(1), but that, if formulated in "excessively general terms", it is not "cognizable" under this provision.
[43] While recognizing the existence of academic commentary to the contrary, Russell J. was inclined to think (at para. 292) on the basis of the jurisprudence that the right of self-government is not a generic right, but a bundle of specific rights. On this view, the appellants could not plead that their right to determine membership was parasitic on a broader right of self-government. Rather, if the appellants could prove that they had the right to control membership, this specific right would be one of the rights constituting the right of self-government. Nonetheless, Russell J. also acknowledged that the Supreme Court had not yet expressed itself on the question of whether a claim to self-government under subsection 35(1) emanates from specific rights (such as the right to determine membership), or is a more general right from which specific rights may be inferred.
[44] Counsel did not persuade me that Russell J.'s analysis of the Supreme Court's jurisprudence on this issue was legally flawed. In my view, it was not incumbent on Russell J., in the present context, to come to a definitive conclusion on a very difficult issue on which the Supreme Court is yet to pronounce. It would be equally unwise in an interlocutory appeal for this Court to commit itself to the proposition that in no circumstances may a general claim to self-government be justiciable under subsection 35(1). These are questions for another day.
(v) summary
[45] To conclude, I have not been persuaded that, when all the circumstances of this litigation are considered, the comprehensive reasons given by Russell J. reveal that he committed any reversible error in interpreting the pleadings as not including a claim by the appellants to the control of their membership as parasitic upon a right to self-government.
[46] Further, when considering whether the will-says were relevant on the basis of his interpretation of the scope of the pleadings, Russell J. appears to have taken a cautious approach to relevance and to have given the benefit of any doubt to the appellants' potential witnesses, even leaving open the possibility that they could re-apply to be called to testify. Hence, I see no basis for this Court to interfere with the first order under appeal.
(vi) Dr Martinez' reports
[47] My conclusion that Russell J.'s first order should be upheld almost inevitably means that his second order excluding Dr Martinez' reports on the ground of irrelevance must also be upheld. The reports were said to be relevant to the issue of aboriginal self-government and to the recognition of that right in the treaties signed between colonizing powers and indigenous sovereign nations.
[48] However, counsel for the appellants argued that, even if Russell J. was correct to conclude that the pleadings in the present action do not assert a right to determine membership that is parasitic on a right to self-government, First Nations' right to control membership clearly is in issue in this action, and is a right recognized in the treaty process.
[49] In my opinion, this point is covered by Russell J.'s conclusion (at para. 88) that any minimal relevance which these reports may have is outweighed by the additional cost and delay that their admission would cause. Striking this kind of balance is within the discretion of a trial judge and, in view of the high degree of deference given to discretionary decisions, I see no basis for interfering with his decision.
D. CONCLUSIONS
[50] For these reasons, I would dismiss both appeals, and order the appellants to pay the respondent's costs in any event of the cause.
"John M. Evans"
"I agree.
A.M. Linden J.A."
"I agree.
J.D. Denis Pelletier J.A."
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