Date: 20050624
Docket: T-1081-05
Citation: 2005 FC 903
Vancouver, British Columbia, Friday, the 24th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
CAPTAIN GEORGE QUOCKSISTER on his
own behalf and on behalf of all members of the
AH-WAH-OO TRIBE
Applicant
- and -
CAMPBELL RIVER INDIAN BAND COUNCIL
and ROBERT SEWID
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application made on short notice for an interim interlocutory injunction. Because of the urgency of the matter, I was obliged to issue a decision immediately after the parties completed their submissions.
[2] The application, as filed, was for:
1. An interlocutory injunction prohibiting the Campbell River Indian Band Council ("Council") from authorizing Robert Sewid to use the Quinwatsi Shrine located on the Campbell River Indian Band Reserve on June 24 and 25, 2005, and at any other time;
2. An interlocutory injunction requiring the Council to prohibit Robert Sewid from using the Quinwatsi Shrine on June 24 and 25, 2005, or at any other time without the Applicant's consent;
3. A writ of certiorari setting aside the decision of the Council which authorized Robert Sewid to use the Quinwatsi Shrine on June 24 and 25, 2005.
[3] The grounds for the application for the interlocutory injunction, as listed in the Notice of Motion, are:
1. The aboriginal rights of the Applicant and all members of the Ah-wah-oo tribe in relation to the use of the name Quinwatsi and the Quinwatsi Shrine;
2. The practices and customs of the Ah-wah-oo tribe and the Campbell River Indian Band in relation to the use of the name Quinwatsi and the Quinwatsi Shrine;
3. The Applicant's ownership rights in the Quinwatsi name and the Quinwatsi Shrine;
4. The Council's fiduciary obligations, duties to consult and duties of fairness vis-à-vis the Applicant;
5. Constitution Act, 1982, s. 35;
6. Indian Act, R.S.C. 1985, c. I-9;
7. Federal Courts Act, R.S.C. 1985, c. 41; and
8. Rules 359, 372, 373 and 401 of the Federal Court Rules.
[4] The Applicant, Captain (Chief) George Quocksister, filed three affidavits as evidence; two of the affidavits are sworn to by the Applicant and one is signed by Gerald Johnston. Chief George Quocksister also filed his own reply affidavit sworn to on June 23, 2005.
[5] The Respondents filed the affidavits of Chief Henderson, who is Chief of the Campbell River Indian Band; of Robert Allen Pollard, who is Chief Councillor of the Campbell River Indian Band; the affidavit of Chief Robert Aul Sewid and the affidavit of Christine H. Sweet, Barrister and Solicitor, an associate in the law firm acting for the Respondent Robert Sewid.
[6] In that I refused to issue the requested injunction immediately after the parties completed their submissions, I believe it necessary to give these very brief reasons for having done so.
[7] It is trite law to say that an applicant for an interim interlocutory injunction has the burden to show the Court that he or she has an arguable case, will suffer irreparable harm which is not based on speculation, and that the balance of convenience is in favour of the applicant.
[8] The standard for an "arguable case" is normally on the lower part of the scale except when the issuance of the injunction will effectively decide the case. In the case before me, after reading the affidavits of the Applicant, I was satisfied that there was enough evidence to show an arguable case.
[9] With regard to the issue of irreparable harm, the evidence is found mainly in paragraph 36 of the Applicant's affidavit of June 21, 2005:
The Campbell River Indian Band and many aboriginal persons in the Campbell River and surrounding area have been made aware of my opposition to the Quinwatsi being used by Robert Sewid. If such a use occurs, I will be humiliated and demeaned in my aboriginal society and my tribe will be mocked. The same will be true if Sewid's family commits the sacrilege of having females perform the Hamatsa dance in the Quinwatsi. In either case, my whole family will lose face in our society. We will suffer harm that cannot be quantified in money damages.
[10] At the end of the hearing, I explained that I was not satisfied with this evidence. I explained that the evidence of humiliation is purely speculative. In fact, I would think that there would be no humiliation because the Applicant can show that he took steps to prevent the use of the Quinwatsi.
[11] The affidavits filed by the Respondents clearly show that the balance of convenience favours the Respondents. I do not believe it necessary to repeat in these brief reasons what is stated in the affidavits.
[12] The application will be denied with costs in favour of the Respondents. I wish to commend all counsel for their preparedness and presentation in such short notice.
ORDER
THIS COURT ORDERS that the application for an interim interlocutory injunction is denied, with costs in favour of the Respondents.
(Sgd.) "Max M. Teitelbaum"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1081-05
STYLE OF CAUSE: CAPTAIN GEORGE QUOCKSISTER
on his own behalf and on behalf of all members of the AH-WAH-OO TRIBE v. CAMPBELL RIVER INDIAN BAND COUNCIL and ROBERT SEWID
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 23, 2005
REASONS FOR ORDER AND ORDER: TEITELBAUM J.
DATED: June 24, 2005
APPEARANCES:
Ms. Wendy A. Baker FOR APPLICANT
Ms. Rosanne M. Kyle
Mr. Simon R. Wells FOR RESPONDENT, Campbell
Ms. Dianne Rideout River Indian Band Council
Mr. Stan Ashcroft FOR RESPONDENT, Robert Sewid
SOLICITORS OF RECORD:
Miller Thompson LLP FOR APPLICANT
Vancouver, BC
Davis & Company LLP FOR RESPONDENT, Campbell
Vancouver, BC River Indian Band Council
Ashcroft & Company FOR RESPONDENT, Robert Sewid
Vancouver, BC
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