0001
1 No. T-176-00
2 IN THE FEDERAL COURT OF CANADA
3 TRIAL DIVISION
4 BETWEEN:
5 HENRY RAINE, JONATHAN BULL, JOSEPH C. DESCHAMPS
CLYDE ROASTING and RUSTY THREEFINGERS and
6 EACH OF THEM AS COUNCILLORS OF THE LOUIS BULL TRIBE
ON THEIR OWN BEHALF AND ON THE BEHALF OF THE
7 MEMBERS OF LOUIS BULL TRIBE and
THE LOUIS BULL TRIBE
8
9 Applicants
10 - and -
11 COUNCIL OF THE LOUIS BULL TRIBE,
HELEN BULL, CHIEF OF THE LOUIS BULL TRIBE,
12 SOLOMON BULL, VIRGIL DESCHAMPS and ELAINE ROASTING
13 Respondents
14
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16
17 R E A S O N S F O R J U D G M E N T
18
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20
21
22
23 Calgary, Alberta
24 August 24, 2000
25
26
27
0002
1 Proceedings taken at Federal Court of Canada, Fourth Floor,
2 635-8th Avenue S.W., Calgary, Alberta
3 -------------------------------------------------------------
4 August 24, 2000
5 The Honourable Federal Court of Canada
Mr. Justice M. Teitelbaum
6
R.T. McKall, Esq. For the Applicants
7
J. Braiden, Esq. For Chief Helen Bull and
8 Appointed Council of the
Louis Bull Tribe
9
J. Thorlakson, Esq. ) For the Elected Council of
10 G. Petel, Esq. ) The Louis Bull Tribe
11 R.A. Cairns, Esq., Q.C. For Solomon Bull, Virgil
Deschamps and Elaine Roasting
12
J. Bury, Ms. Attorney General of Canada
13
G. Ikert, CSR(A) Official Court Reporter
14
15 ------------------------------------------------------------
16 THE COURT: I am going to read to you my
17 decision.
18 These are my brief reasons for the
19 conclusions that I have come to after reading the material
20 put before me and after listening to the oral submissions
21 made by counsel of the parties. I am proceeding in this
22 manner, that is giving my reasons from the bench, because of
23 the urgency of the matter placed before me.
24 I will start my decision with the procedural
25 issue.
26 The plaintiffs-applicants, hereinafter
27 referred to in my decision as applicants, commenced legal
0003
1 proceedings in this file, T-176-00, with a Statement of
2 Claim dated February 1, 2000 in which, briefly stated, the
3 applicants allege that certain actions of the
4 defendants-respondents, hereinafter referred to as the
5 respondents, have allegedly damaged the reputation of the
6 Louis Bull Tribe.
7 On August 10, 2000, the applicants filed in
8 this file, file T-176-00, a Notice of Motion presentable for
9 August 14, 2000. The Notice of Motion was presentable in
10 Vancouver. In the Notice of Motion presentable in
11 Vancouver, the applicants requested an order enjoining and
12 restraining all persons, except certain named persons, from
13 acting as councillors of the Louis Bull Tribe, directing
14 certain letters of termination to be of no force or effect
15 and enjoining and restraining any interference with the
16 employees of the Louis Bull Tribe or of the Tribe's
17 co-managers or with the elected councillors.
18 On August 14, 2000, Mr. Justice Pelletier
19 ordered that the application was adjourned upon terms and
20 conditions which were consented to by counsel for the
21 parties.
22 The hearing of the application took place in
23 Calgary on August 22 and 24, 2000.
24 The motion before me made by the present
25 applicants is for, according to the Notice of Motion, and I
26 will read from the Notice of Motion:
27 "(a) enjoining and restraining, until further
0004
1 Order of the Court, any person or persons
2 except Helen Bull, Jonathan Bull, Solomon
3 Bull, Joseph C. Deschamps, Virgil Deschamps,
4 Henry Raine, Clyde Roasting, Elaine Roasting
5 and Rusty Threefingers from acting or
6 purporting to act as a Councillor of the
7 Louis Bull Tribe;
8 (b) directing that the letter from Helen Bull
9 to Jonathan Bull, Joseph C. Deschamps, Henry
10 Raine, Clyde Roasting and Rusty Threefingers
11 dated August 2, 2000 terminating their
12 positions as Councillors of the Louis Bull
13 Tribe are of no force and effect;
14 (c) directing that the letter from
15 Chief Helen Bull to Mowbrey Gil Inc. dated
16 July 30, 2000 terminating the Management
17 Agreement between the Louis Bull Tribe,
18 Mowbrey Gil Inc. and Indian and Northern
19 Affairs Canada is of no force and effect;
20 (d) enjoining and restraining, until further
21 Order of the Court, Helen Bull, Solomon Bull,
22 Virgil Deschamps, and Elaine Roasting from
23 interfering or obstructing:
24 i) the Manager, Mowbrey Gil Inc. or
25 any other accounting firm in the
26 performance of its duties under the
27 Management Agreement;
0005
1 ii), the Councillors Jonathan Bull,
2 Joseph C. Deschamps, Henry Raine,
3 Clyde Roasting and Rusty
4 Threefingers in the performance of
5 their duties as Councillors of the
6 Louis Bull Tribe; and
7 iii) the employees of the Louis
8 Bull Tribe and its business
9 operations in the performance of
10 their duties."
11 At the commencement of the hearing, the issue
12 of jurisdiction was raised by the respondents. The issue
13 that was raised, if I understood it correctly, is that the
14 applicants could not proceed by way of a motion in the
15 manner that they did. The respondents submit that the
16 applicants should have proceeded by way of a judicial review
17 application to attack the decision of Helen Bull dated
18 August 2, 2000 whereby the Chief unilaterally terminated the
19 position of the applicants as councillors of the Louis Bull
20 Tribe.
21 Pursuant to Rule 57 of the Federal Court
22 Rules, the court has the discretion to convert an incorrect
23 originating document to a different originating document so
24 as not to cause the dismissal of an originating document on
25 procedural grounds.
26 Notwithstanding the objection made by the
27 respondents at the start of the hearing, I am satisfied I
0006
1 would not refuse to hear the present application.
2 As I have said, Rule 57 of the Federal Court
3 Rules gives me the discretion to convert a proceeding to a
4 procedurally correct procedure. Furthermore, in a motion to
5 attack a procedural irregularity, the moving party "bears
6 the burden of proving that the motion was bought as soon as
7 practical after learning of the irregularity." (See Agawa
8 versus Hewson, T-764-98, June 18, 1998, FCTD.)
9 In the present case, the motion should have
10 been brought, at the latest, to the notice of the court when
11 the parties to the present dispute appeared before
12 Mr. Justice Pelletier in Vancouver on August 14, 2000. This
13 was not done.
14 I agree with the submission of respondents
15 that the procedure that should have been used to attack
16 Chief Helen Bull's decision of August 2, 2000 to remove the
17 applicants as councillors of the Louis Bull Tribe should
18 have been by way of a judicial review application.
19 Therefore, using my discretion, I hereby
20 convert the applicants' action to a judicial review
21 application. If, as a result of this decision, the
22 respondents are of the opinion that certain allegations
23 alleged in the original Statement of Claim are invalidly
24 alleged, the respondents may apply to the court for a
25 remedy.
26 If the applicants believe it is necessary to
27 make amendments, they may do so within a delay of 15 days of
0007
1 today's date.
2 The most pressing issue that I must now
3 decide is the validity of the decision of Chief Helen Bull
4 of August 2, 2000 whereby Chief Helen Bull removed or
5 disqualified the applicants as councillors of the Louis Bull
6 Tribe notwithstanding the fact that the applicants had been
7 legally elected as councillors.
8 As the parties have stated, from my decision,
9 all the other important issues will follow.
10 On August 2, 2000 the applicants received a
11 letter from Chief Helen Bull who, as I said, is Chief of the
12 Louis Bull Tribe. The letter reads as follows:
13 "As you are aware, the Chief of the
14 Louis Bull Band has called three Special
15 Meetings in order to determine a proper
16 course of action to deal with the occupancy
17 of the Louis Bull Administration Buildings.
18 These meetings have been scheduled for Friday
19 July 28th, at 2:00 p.m., Monday, July 31st at
20 2:00 p.m. and Wednesday, August 2nd at 11:00
21 a.m.
22 You failed to attend any of the above
23 noted meetings.
24 Pursuant to section 3(2) of the
25 Regulations Respecting Procedure at Indian
26 Band Council Meetings, which reads as
27 follows:
0008
1 No member of council may be absent
2 from meetings of the council for
3 three consecutive meetings without
4 being authorized to do so by the
5 chief of the band or the
6 superintendent, with the consent of
7 the majority of the councillors of
8 the band.
9 In light of the above, please be advised
10 that as a result of your absence at three (3)
11 Special Meetings, you are no longer eligible
12 to sit as a member of the Council of the
13 Louis Bull Band.
14 Further to the above, please be advised
15 that the personal contents of your office
16 will be available to be picked up by yourself
17 or a personal representative at the front
18 desk of the Band Offices on Thursday, August
19 3rd, 2000."
20 The applicants seek to have Chief Helen
21 Bull's letter, in which she purports to terminate their
22 positions as councillors of the Louis Bull Tribe, set aside
23 and declared invalid and of no force or effect.
24 The issues to be decided in the case in front
25 of me are as follows: First, were the five councillors'
26 offices properly terminated by the Chief? Within this issue
27 are two sub-issues which are concerned with whether the
0009
1 Chief is empowered to take such an action pursuant to the
2 Band's Tribal Policies and Principles, and whether the
3 councillors received notice of the three special meetings.
4 The second issue is whether the Chief was authorized to
5 appoint the three councillors whom she appointed following
6 her determination that the applicants had vacated their
7 seats as councillors. And the third issue is whether the
8 Band Council Resolution, which was passed by this new
9 council on August 2, 2000, and which terminates the services
10 of the accounting firm of Mowbrey Gil Inc., is valid. As I
11 have stated, the determination of the second and third
12 issues will necessarily hinge on the outcome of the first
13 issue.
14 Thus the first issue is whether the Chief's
15 termination letter is a valid one.
16 The Louis Bull Tribe Band Council elections
17 and procedure are governed by Band Custom, which is not
18 disputed by any of the parties. The following instruments
19 govern Band Council proceedings: the Louis Bull Tribal
20 Principles, which bears the alphanumeric designation
21 LBT 439/#001 and will hereinafter be referred to as the
22 "Principles", the Louis Bull Tribe No. 439 Tribal Council
23 Policies, which bears the alphanumeric designation
24 LBT 439/#002 and will hereinafter be referred to as the
25 "Policies", and the Louis Bull Tribe No. 439 Declaration of
26 Custom with Respect to the Elections of the Tribal Council.
27 The Principles and the Policies were enacted by the Louis
0010
1 Bull Chief and council on May the 7th, 1990. The
2 Declaration of Custom with Respect to the Elections of the
3 Tribal Council was enacted on January 28, 1998; however, the
4 Declaration is not relevant for the purposes of this
5 application and so it will not be referred to any further.
6 The Principles contain a section entitled the
7 Code of Ethics for Council and Standard of Conduct. Article
8 4 lists the instances in which the office of a councillor
9 should be vacated. The relevant one for the purposes of
10 this application is that contained in 4(f), which provides
11 that the office of a councillor shall be vacated if the
12 councillor "Absents himself, without being authorized, from
13 three (3) consecutive Council Meetings."
14 The Policies establish in the first section,
15 which is entitled Rules of Conduct, that all members of
16 council shall attend all council meetings, unless they
17 obtain the Chief's written permission to be absent. Article
18 1(d) of that section states that when a councillor misses
19 meetings or work without permission, the Chief shall decide
20 the disciplinary action, and that is followed by the phrase,
21 "According to Section II", which is in parentheses. That
22 second section, which is entitled Council Meetings, provides
23 that regular council meetings will be held every Monday or
24 Tuesday except the third week of each month; regular council
25 meetings are to commence at 9:30 a.m. The section also
26 provides that special council meetings may be called by the
27 chairman or Chief by verbal notice.
0011
1 Section VIII of the Policies is titled
2 Disciplinary Action. It sets out a scale of penalties for
3 absenteeism from council meetings and council workshops.
4 Missing one council meeting or workshop results in one day's
5 salary reduction. Missing a second consecutive regular
6 council meeting results in a one-week suspension without
7 pay. Missing a third consecutive council meeting results in
8 a one month suspension without pay. If there is no
9 improvement within six months, there is removal from council
10 with ratifications from the membership.
11 It is apparent that the Policies and the
12 Principles are inconsistent with regard to the appropriate
13 disciplinary action to be taken in circumstances such as
14 these. This inconsistency is further exacerbated by the
15 fact that both instruments were enacted by the Band Council
16 on the same day, that is May 7, 1990.
17 Where two enactments conflict, I am
18 satisfied, the more recent enactment usually takes
19 precedence. When two statutes come into force on the same
20 day, courts have at times accepted the one with the higher
21 chapter number to be the more recent, and thus the
22 applicable one.
23 In the instant application, I find the Louis
24 Bull Tribal Council Policies are the governing instrument
25 for the purposes of appropriate disciplinary action. The
26 Policies deal more specifically with the issue of the
27 consequences attaching to absenteeism, than do the Tribal
0012
1 Principles. Accordingly, the Louis Bull Tribe's governing
2 custom regarding absenteeism are the Policies.
3 However, the matter does not end there. The
4 Tribal Council Policies stipulate that special meetings may
5 be called by the Chief, but that verbal notice must be
6 provided for such meetings. Thus, I must now determine
7 whether the five councillors, the present applicants,
8 received verbal notice of the special meetings which the
9 Chief alleges they missed, and which she alleges she
10 called.
11 There is no issue that the five councillors,
12 the present applicants, did not receive written notice of
13 the meetings in question.
14 The first special meeting is alleged to have
15 occurred on July 28, 2000. At that date the Tribal
16 Administration Building, in which the Band Council Chamber
17 is located, was under occupation by a group of young people
18 who had taken over the building in the early morning hours
19 of July 27, 2000.
20 I am satisfied there is no evidence before me
21 that notice of this July 28, 2000 meeting was communicated
22 to the five councillors. In their sworn affidavits,
23 Councillors Clyde Roasting, Jonathan Bull, Joseph C.
24 Deschamps and Rusty Threefingers assert that they received
25 no notice of the July 28 meeting. Henry Raine, for his
26 part, stated at his cross-examination on his affidavit that
27 he did not know of the July 28 meeting.
0013
1 In her sworn affidavit, Chief Bull asserts
2 that notices of the meetings were given to the five
3 councillors through the Louis Bull Police Service, and she
4 indicates that a copy of the notice is attached as Exhibit
5 'C' to her affidavit. Exhibit 'C', however, is an undated
6 letter written by Sergeant Nyback on Louis Bull Police
7 Service letterhead. It indicates that on July 31, Mr. Clyde
8 Rabbit, who was the occupiers' appointed mediator or liaison
9 according to other evidence that I heard, contacted Sergeant
10 Nyback and requested him to notify the five councillors of a
11 meeting to take place on that day, July 31, 2000. It says
12 nothing about a July 28, 2000 meeting.
13 Under the Tribal Policies, the councillors
14 had to receive verbal notice of the special meeting. They
15 say they were not told of the July 28 special meeting, and
16 nothing in the evidence contradicts them on this point.
17 With regard to the July 31, 2000 special
18 meeting, again the Chief relies on Exhibit 'C' to her
19 affidavit as evidence that the councillors were given the
20 required verbal notice. Exhibit 'C', as noted, is a letter
21 from Sergeant Nyback. It bears the heading "ATTENTION:
22 Youth Council Group, Notification of Meeting" and reads as
23 follows:
24 "Be advised on 31 July 2000.
25 Mr. Clyde Rabbit contacted writer and
26 requested five (5) councillors to be notified
27 of a meeting to take place at 2:00 p.m. this
0014
1 date. Mr. Rabbit provided his cellular phone
2 number and writer further advised Mr. Rabbit
3 attempts would be made to assist in passing
4 information to the above noted councillors.
5 Writer contacted Mr. Clyde Roasting and
6 advised same of meeting as per requested at
7 2:00 p.m. Writer also left Mr. Rabbit's
8 phone number with Mr. Roasting. Further he
9 adviced (sic) that writer requested
10 Mr. Roasting to pass the above information to
11 additional councillors."
12 It must be noted that it is Clyde Rabbit who
13 contacted Sergeant Nyback about a meeting to take place on
14 July 31, 2000 at 2 p.m.
15 This letter is tendered as evidence of notice
16 given by the Chief of the July 31, 2000 special meeting.
17 However, there is nothing in the letter to indicate that the
18 meeting is indeed a special meeting or that it is being
19 called by the Chief. A reading of this letter leads one to
20 the conclusion that the meeting is being called by Clyde
21 Rabbit. He is not a member of the Band Council and not
22 authorized to call council meetings, regular or otherwise.
23 While this letter may have been notice of a meeting, and
24 while Clyde Roasting appears to have received notice of this
25 meeting, nothing in the evidence supports the contention
26 that the July 31, 2000 meeting was a special meeting called
27 by the Chief and that the five councillors received the
0015
1 required verbal notice.
2 Insofar as the August 2, 2000 meeting is
3 concerned, the five councillors acknowledge that they had
4 notice of it, but they chose to attend at Edmonton for a
5 meeting with representatives from Indian and Northern
6 Affairs Canada and Mowbrey Gil Inc., to discuss the
7 disruption in services caused by the occupation of the
8 Tribal Administration Building.
9 According to the Tribal Council Policies, the
10 councillors had to receive verbal notice of the special
11 meetings. It is clear they did not receive the required
12 notice, at least insofar as the July 28 meeting is
13 concerned, nor did they receive the required notice from the
14 Chief for the July 31 meeting. Thus, the five councillors
15 have not missed three consecutive meetings as the Chief
16 asserts in the termination letter. Accordingly, the Chief's
17 letter which purports to terminate their positions as
18 councillors cannot stand. The decision of the Chief of
19 August 2, 2000 terminating the applicants' positions as
20 councillors is hereby quashed and is of no force and
21 effect.
22 The Band Council Resolutions passed by the
23 Chief and the so-called appointed council on the evening of
24 August 2, 2000 cannot stand either and are hereby quashed.
25 The Band Council Resolutions are found as Exhibit 'D' to
26 Chief Helen Bull's affidavit sworn to on August 14, 2000.
27 The Policies grant the Chief extraordinary
0016
1 powers, which include the powers to appoint individuals and
2 to vest them with the powers of a regular councillor, if a
3 regular councillor cannot be summoned to attend, to a matter
4 the Chief deems emergent. The Chief made, from the evidence
5 before me, no effort to summon the five councillors to a
6 meeting on the evening of August 2, 2000. She appointed
7 three new councillors, did not assign them any tasks
8 specific to the deemed emergent situation, and proceeded to
9 pass a Band Council Resolution which, on its face, does not
10 appear to deal with the emergent situation, which was the
11 continued occupation of the Tribal Administration Building.
12 Thus it is clear that the actions of
13 Chief Helen Bull are invalid.
14 As a direct result of my above reasons, the
15 only persons able to act on behalf of the Louis Bull Tribe
16 are the elected members of the Tribe Council; that is Chief
17 Helen Bull, Jonathan Bull, Solomon Bull, Joseph C.
18 Deschamps, Virgil Deschamps, Henry Raine, Clyde Roasting,
19 Elaine Roasting and Rusty Threefingers. The letter from
20 Chief Helen Bull to Mowbrey Gil Inc. dated July 30, 2000
21 terminating the Management Agreement between the Louis Bull
22 Tribe, Mowbrey Gil Inc. and Indian and Northern Affairs
23 Canada is of no force and effect as the decision to
24 terminate the agreement was not made pursuant to a valid
25 Band Council Resolution.
26 Having finished that part of my decision, I
27 have a few comments to make with regard to the actions of
0017
1 the Chief.
2 One of the two counsel for the respondents
3 said that the parties all have a fiduciary obligation to the
4 Tribe, and I echo that, and I agree with that. All nine
5 persons, or all persons, have a fiduciary obligation to the
6 Tribe. That is why they set themselves out to be elected as
7 chief and/or councillors.
8 I have difficulty in understanding Chief
9 Helen Bull's actions with regard to signing, with the
10 consent of one or three councillors, but not with a full
11 council, a management contract in which she agrees to pay
12 liquidated damages of $10,000 in the event that that
13 contract is cancelled. I'm sorry. I said 10,000. Please
14 forgive me, the sum is $10 million, an astronomical sum for
15 managing the affairs of the Louis Bull Tribe for a period of
16 five years in the event that that contract is cancelled
17 before the termination date.
18 I find it even more incredible that Chief
19 Helen Bull signs a Declaration of Settlement without
20 consultation, without speaking to a lawyer, and there are
21 many in front of me who are exceptionally capable lawyers
22 who could have been asked for their counsel, a Declaration
23 Settlement to hand over property valued over $20 million for
24 a $10 million liquidated damage claim without any help from
25 anybody and without calling a meeting of the Band Council.
26 Now, I do not know all of the facts and I am
27 not prepared to make a judgment on that issue, except to say
0018
1 that if all the nine persons owe an obligation to the Louis
2 Bull Tribe, I cannot, understand what was behind the move to
3 hand over property having a value of over $20 million for a
4 $10 million liquidated damage claim.
5 The only persons who will suffer from the
6 dispute that is going on between the members of the council,
7 the elected members of the council, are the members of the
8 Tribe, who cannot afford to spend that kind of money. I
9 don't know the financial resources of the Louis Bull Tribe.
10 Whatever they may be, I cannot understand wasting funds that
11 could be put to much better use than paying $20 million as
12 liquidated damages for a possible maximum claim of 10
13 million.
14 I strongly urge the members of the council to
15 fulfill their fiduciary obligations to the members of the
16 Band, and to set aside all of their differences, to work
17 together for the benefit of the Band, which I believe was
18 their intention when they all ran to become chief or
19 councillors. So I beseech you, please, get together and
20 solve your problems in an amicable way, not before a court
21 where a judge only can go on the documents and evidence that
22 is placed before him or her.
23 I have before me eminent counsel who
24 presented their clients' case the very best they could.
25 Surely the members of the council, together with such
26 eminent counsel, can get together and solve their problems,
27 if not for their own personal satisfaction, at least for the
0019
1 satisfaction of the members of the Tribe.
2 ---------------------------------------------------------
3 PROCEEDINGS CONCLUDED.
4 ---------------------------------------------------------
5 Certificate of Transcript
6
7 I, the undersigned, hereby certify that the foregoing pages
8 1 to 19 are a true and faithful transcript of the
9 proceedings taken down by me in shorthand and transcribed
10 from my shorthand notes to the best of my skill and ability.
11 Dated at the City of Calgary, Province of Alberta, this 30th
12 day of August, A.D. 2000.
13
14 _________________________
15 G. Ikert, CSR(A)
16 Official Court Reporter
17
18 CAT - Printed August 30, 2000
19 GAI
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