Date: 20010405
Docket: T-2655-89
Neutral Citation: 2001 FCT 298
BETWEEN:
ELIZABETH BERNADETTE POITRAS
Plaintiff
Applicant)
- and -
WALTER PATRICK TWINN, THE COUNCIL OF THE
SAWRIDGE BAND, THE SAWRIDGE BAND and
HER MAJESTY THE QUEEN as Represented by THE
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendants
(Respondents)
REASONS FOR ORDER
(Delivered from the Bench at Calgary, Alberta April 5, 2001)
HUGESSEN, J.
[1] This is a motion to compel the Plaintiff to answer on discovery Question No. 163 which asked her to confirm that her father Albert Potskin claimed his membership in the Sawridge Band through his father Benjamin Potskin. The question was refused on the basis that it was irrelevant.
[2] That refusal was also based upon an earlier order which I have given in this matter on September 14, 2000 in which on a motion seeking document production I held that questions relating to the Plaintiff's ancestors beyond her parents were not relevant.
[3] The grounds for that ruling as I explained at that time were that the Plaintiff's claim to band membership was made under Rule 3 (b) of the Band's Membership Rules which provide that a natural child whose both of whose parents appear on the band list is entitled to be a member.
[4] I have not changed the view which I expressed at that time. The evidence so far brought out on the discoveries which has been brought to my attention is that both of Plaintiff's parents Albert and Jeannie Potskin were on the band list that was created for the Sawridge Band under the 1951 Act, that they had been members for many years prior to 1951 and remained on the band list in Albert's case until his death and in Jeannie's case to this day.
[5] The Band could have but did not protest the inclusion of their names on the 1951 list. The Band did protest the inclusion of other names on that list. In those circumstances it seems to me that it is simply irrelevant to inquire into the status of Albert's father and grandfather and other antecedents as it is to inquire into the status of Jeannie's father, grandfather and other antecedents.
[6] It was urged on me that I should in September of last year have considered and that I should today consider the provisions of the Indian Act both prior to 1985 and subsequently as they relate to the powers of either the Registrar or now in the case of a Band that has control of its own lists such as the Sawridge Band of the Band Council to correct errors in lists.
[7] It seems to me that those provisions are wholly irrelevant to the present litigation. There is no indication that there has been any move made by the Registrar or by the Band Council to correct those lists and this litigation is not the appropriate vehicle for effecting such correction.
[8] In effect it appears to me that what the Defendant Band is attempting to do is to litigate the status of persons most of whom are now long since dead and are unable therefore to resist that contestation of their status. They do this in an indirect manner in order to dispute the Plaintiff's right to claim membership in the band. They are certainly entitled to contest Plaintiff's right to claim membership in the band but in my view they cannot now put at issue the heretofore uncontested status of those persons who I have mentioned.
[9] Accordingly the motion will be dismissed.
"James K. Hugessen"
JUDGE
Calgary, Alberta
April 5, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010405
Docket: T-2655-89
BETWEEN:
ELIZABETH BERNADETTE POITRAS
Plaintiff
Applicant)
- and -
WALTER PATRICK TWINN, THE COUNCIL OF THE
SAWRIDGE BAND, THE SAWRIDGE BAND and
HER MAJESTY THE QUEEN as Represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendants
(Respondents)
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2655-89
STYLE OF CAUSE: Elizabeth Bernadette Poitras v. Walter
Patrick Twinn et al.
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: April 5, 2001
REASONS FOR ORDER OF HUGESSEN, J.
DATED: April 5, 2001
APPEARANCES:
Mr. Terence P. Glancy FOR PLAINTIFF
Mr. Philip P. Healey FOR DEFENDANT
(Sawridge Band)
Ms. Kathleen Kohlman
and Ms. Maria Mendola-Dow FOR DEFENDANT
(Her Majesty the Queen)
SOLICITORS OF RECORD:
Royal, McCrum, Duckett & Glancy
EDMONTON, Alberta FOR PLAINTIFF
Aird & Berlis FOR DEFENDANT
TORONTO, Ontario (Sawridge Band)
and
Catherine Twinn
Slave Lake, AB
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General (Her Majesty the Queen)
of Canada
Email this Content