Peter Ballantyne Cree Nation v. Peter Ballantyne Cree Nation (Council), docket T-801-93

Date: 20001103

Docket: T-801-93

BETWEEN:

                                

     EILEEN (BALLANTYNE) LINKLATER,

     as representing certain members of the

     PETER BALLANTYNE CREE NATION

     Plaintiffs

     - and -

     CHIEF RONALD MICHEL and the COUNCIL of

     the PETER BALLANTYNE CREE NATION

     Defendants

______________________________________________________________________________

     Docket: T-1006-93

BETWEEN:

                                

     EILEEN (BALLANTYNE) LINKLATER, OVIDE RATT and

     FRED BALLANTYNE as representing certain members of the

     PETER BALLANTYNE CREE NATION

     Plaintiffs

     - and -

     CHIEF RONALD MICHEL and the COUNCIL of the

     PETER BALLANTYNE CREE NATION

     Defendants

______________________________________________________________________________

     Docket: T-1009-93

BETWEEN:

                                

     EILEEN (BALLANTYNE) LINKLATER,

     as representing certain members

     of the PETER BALLANTYNE CREE NATION

     Plaintiffs

     - and -

     CHIEF RONALD MICHEL and the COUNCIL of the

     PETER BALLANTYNE CREE NATION,

     ROSE DORION and HENRY MORIN

     Defendants

     REASONS FOR JUDGMENTS

MacKAY, J.:

[1]          These reasons and the accompanying judgments concern three actions ordered to be heard together, ultimately on the basis of an Agreed Statement of Facts and Issues. In 1995, all three actions were commenced by statement of claim in accord with the order of Justice Jerome, then Associate Chief Justice, to replace proceedings originally commenced in 1993 by originating notices of motion seeking judicial review. When the matter came on for hearing in Saskatoon in August 1999, the Agreed Statement of Facts and Issues concerned issues raised, by some but not all of the facts alleged in the Statements of Claim concerning a purported by-election and the activities of the Chief and Council of the Peter Ballantyne Cree Nation in February 1993.

[2]          Surprisingly, all three Statements of Claim and the three Statements of Defence in these actions are similar, indeed identical, including the claims for relief and defences to them. The decisions of the Chief and Council, that are objected to in the Statements of Claim, were also included in the three originating notices of motion filed in 1993. Those notices are described in some detail in the Agreed Statement of Facts and Issues. Each sought somewhat different relief, but collectively sought the relief claimed in all three Statements of Claim.

The parties and the actions

[3]          In the Agreed Statement of Facts and Issues the parties are described not only with reference to the three actions involved in this proceeding but, it appears, also with reference to a fourth action, T-2574-93. That action involved the same parties as in the proceedings here considered and also other named individual plaintiffs, and it includes as defendants, in addition to Chief Ronald Michel and the Council, Her Majesty the Queen and an officer employed in the Department of Indian Affairs and Northern Development, Canada. That other action T-2574-93 was adjourned by Mr. Justice Campbell, to be held in abeyance pending disposition of these proceedings.

[4]          Thus, not all of those named as plaintiffs or defendants in the Agreed Statement of Facts and Issues are parties before the Court in the three actions now considered. I confirm that Eileen (Ballantyne) Linklater is a plaintiff in all three actions, in T-801-93 and T-1009-93 "as representing certain members of the Peter Ballantyne Cree Nation" (who are not named) and in T-1006-93, with Ovide Ratt and Fred Ballantyne also as named plaintiffs. In all three actions, as set out in the three styles of cause at the beginning of these reasons, Chief Ronald Michel and the Council of the Peter Ballantyne Cree Nation are defendants, and with them in T-1009-93 are Rose Dorion and Henry Morin, two members of the Council, from Pelican Narrows, elected for two year terms in 1991. The Chief and Council, chosen according to custom, are the Chief and Council within s-s. 2(1) of the Indian Act, R.S.C. 1985, c. I-5 (the "Act").

[5]          I note from the Agreed Statement of Facts and Issues and an amendment to that statement that Chief Ronald Michel was originally elected in 1985 and he has since been re-elected as Chief every two years, i.e., in 1987, 1989, 1991, 1993, 1995, 1997 and 1999.

[6]          The Peter Ballantyne Cree Nation occupies reserve lands, principally at Pelican Narrows and also in surrounding communities at Sandy Bay, Sturgeon Landing, Southend, Deschambault Lake, Amisk Lake and Prince Albert, all in Saskatchewan. Like a number of other First Nations in that province its claims to land under the relevant Indian Treaty have not been resolved, though it has been acknowledged that it is entitled to further reserve lands under Treaty 6. Efforts to resolve those claims, have extended over many years. The latest major effort to resolve them led to an agreement in September 1992, among the Governments of Canada and of Saskatchewan and First Nations in the province, including the Peter Ballantyne Cree Nation. That agreement, known as the Saskatchewan Treaty Land Entitlement Framework Agreement (the "Agreement"), would be effective upon formal adherence by the bands or nations concerned, their subsequent ratification of the Agreement, and ultimately by separate agreements with each of the bands or nations who are parties to the Agreement.

The Background

[7]          In setting forth the background, I rely significantly upon the facts as agreed and set out in the Agreed Statement of Facts and Issues.

[8]          The Peter Ballantyne Cree Nation was engaged with other Indian bands in discussions with Saskatchewan provincial officers and the federal government, which discussions led to the Agreement.

[9]          The Agreement called for the individual bands, referred to as "Entitlement Bands", to follow a defined process for the execution of the Agreement. The first step was adherence, signified by the signature upon the document of the Chief of each band, and that signature required a Band Council Resolution giving the Chief authority to adhere to the Agreement.

[10]          The Agreement did not call for a referendum of the band members in order for the Chief to adhere to the Agreement but the Peter Ballantyne Band did hold a referendum on November 23, 1992, for this purpose. Some members of the band, including the individual plaintiffs, campaigned against the Agreement. The referendum did not approve adherence to the Agreement; 45% of those voting, voted in favour of the Chief signing the document, and 53% voted against that.

[11]          Thereafter, the Chief of the band and others, including some members of the Band Council, met with the representatives of the federal and provincial governments to discuss the possibility of amending the Agreement. The governments were unwilling to renegotiate the Agreement which was acceptable to a number of other bands.

[12]          In February 15, 1993, the Chief and Council met and decided to hold a second referendum of the band's members. A second referendum was then arranged and held on February 23, 1993 and a majority (64%) of the eligible voters who cast ballots were in favour of the Chief signing the Agreement to indicate the band's adherence. Two days after that referendum on February 25, 1993, the Chief and Council met and passed a Band Council Resolution authorizing the Chief to sign, indicating adherence to the Agreement. This he did on February 25, 1993.

[13]          Execution of the adherence Agreement did not bind the band to the Agreement which required a ratification vote by eligible voters of whom a majority voting were required to vote in favour of the Agreement. The ratification vote was held on November 5, 1993. Of eligible voters 67% voted then and 51.46% of all eligible voters voted yes. Thereafter, on December 10, 1993, a signing ceremony was held and the defendant Chief, with support of the Council, by Band Resolution, signed the Agreement indicating its ratification by the Peter Ballantyne Cree Nation.

[14]          I turn to portions of the Agreed Statement of Facts and Issues so far as those concern the election of Chief and Council and the events of February 1993. (Emphasis here included is from the Agreed Statement.)

E.      ELECTION OF CHIEF AND COUNCIL

35.      Prior to 1969, the office of Chief was a more or less permanent posting. In 1940, the eligible voters informally petitioned the Department to remove Joe Highway from his office because he spent all of his time trapping at Reindeer Lake [see the historical record attached hereto as Appendix A-6]. With that one notable exception, the Chief remained in office until he resigned or died. If the Chief resigned, the Department of Indian Affairs and Northern Development, acknowledged his resignation and conducted another election.

36.      The Peter Ballantyne Cree Nation conducts its elections according to band custom and practice. These elections have happened every second year since 1969 and are traditionally held during Treaty Week. It has also been Band custom to allow at least two weeks [14 days] notice before the nomination meeting and at least four weeks [28 days] between the nomination meeting and the start of the election ["Customary Election Protocol"]. As a result of this court action and to avoid future problems, these conventions have been reduced to a written instrument called the Peter Ballantyne Cree Nation Band Custom Election Act and Procedures 1994 [attached hereto as Appendix A-5]. The procedures outlined therein were followed for the band elections in 1995 and 1997.

37.      Eligible electors are Treaty Indians

a.      who are registered members of the Peter Ballantyne Cree Nation and

b.      who are over the age of majority [18 years] as of the date of the election and

c.      who are

i.      ordinarily resident of any one of the Peter Ballantyne Cree Nation communities, reserves or surrounding areas or

ii.      attending an educational institution outside of his or her community or reserve or

iii.      employed outside his or her ordinary place of residence on a reserve or Cree Nation community or

iv.      for health or housing reasons, living in or around La Ronge, Saskatoon, Creighton, Flin Flon or Wanless.

38.      For the purposes of voting, the following reserves, communities and surrounding areas are recognized as designated places of residence: Pelican Narrows, Sandy Bay, Sturgeon Landing, Southend, Deschambault Lake, Amisk Lake and Prince Albert.

     . . .

40.      Two by-elections have been held since 1969, each was called to fill a position created by the voluntary resignation of the current Band Councillor. In 1992, Bernard Jobb resigned as Councillor of Sturgeon Landing and Gertie Budd was elected in November, 1992. In 1993, George Morin resigned as Councillor of Sandy Bay and Norman Nateweyes was elected in January 1993. When these by-elections were called, the Customary Election Protocol was followed.

41.      Rose Dorion and Henry Morin were duly elected in June, 1991 as two of the five Councillors representing the Peter Ballantyne Cree Nation at Pelican Narrows. There were at that time over 800 eligible voters in Pelican Narrows.

42.      Neither Rose Dorion nor Henry Morin subsequently resigned their positions as Councillor for the Peter Ballantyne Cree Nation.

43.      The Chief and Council have a right to remove Councillors following the disqualification guidelines set out in subsection 78(2)(a) of the Indian Act which states:

78(2) The Office of chief or councillor of a band becomes vacant when

(a)      the person who holds that office

(i)      is convicted of an indictable offence,

(ii)      dies or resigns his office, or

(iii)      is or becomes ineligible to hold office by virtue of this Act

(b)      the Minister declares that in his opinion the person who holds that office

(i)      is unfit to continue in office by reason of his having been convicted of an offence,

(ii)      has been absent from three consecutive meetings of the council for three consecutive meetings of the council without being authorised to do so, or

(iii)      was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.

44.      Neither Rose Dorion nor Henry Morin had done anything to cause them to be disqualified by the Band and council pursuant to s. 78(2)(a) of the Indian Act or anything to cause them to be disqualified by the Minister pursuant to s. 78(2)(b) of the Indian Act.

F. SPECIFIC EVENTS OF FEBRUARY 1993

45.      On February 22, 1993, a meeting was called at Pelican Narrows by undetermined band members. The purpose of the meeting was to discuss the pending Second Referendum, scheduled for the next day, February 23, 1993 and to express discontent with the leadership of the Peter Ballantyne Cree Nation, and more specifically with the two Councillors from Pelican Narrows who had signed the Band Council Resolution authorizing Chief Ronald Michel to execute an Adherence Agreement. The meeting was neither called nor sanctioned by the Chief and Council. Before the meeting was called to order, Chief Ronald Michel left the meeting place. The Chief was entitled to attend a local meeting with respect to band business not only in his official capacity but also in his capacity as a member ordinarily resident in Pelican Narrows. According to the minutes of the meeting [attached hereto as Appendix A-7], of those still in attendance, 84 persons agreed "to have the 2 councillors taken out of Council rather than the other councillors". It is presumed that the "2 councillors" referred to therein are Rose Dorion and Henry Morin, although the minutes show that on a subsequent motion, 71 persons voted to have Henry Morin removed from office. According to the minutes [Appendix 7], it should be noted that there was no motion specifically asking to have Rose Dorion removed from office. [Note: At the hearing in August 1999, it was said this last note was in error for the minutes referred to include reference to Ms. Dorion being removed from office.] At the same meeting, four persons allowed their names to stand for the position of Councillor. A ballot was drawn up that included seven names: the names of the three duly elected Councillors who were not named in the non-confidence vote (Richard Highway, Graham Linklater and Melville Linklater) and the four nominees whose names were put forward at the meeting (Frederick ["Fred"] Ballantyne, Mary Ann Custer, Ivan Halcrow and Ovide Ratt).

46.      An election to "clarify 5 councillors" was called at the nomination meeting and conducted between the hours of 9:00 am and 6:00 pm on February 24, 1993 in the multi Purpose Building at Pelican Narrows. The three duly elected Councillors whose names were on the ballot were confirmed, namely, Richard Highway, Graham Linklater and Melville Linklater. Frederick Ballantyne and Ovide Ratt were "elected" from the list of new nominees.

47.      A "Band Council Resolution" [attached hereto as Appendix A-8], dated February 25, 1993 and executed by six persons all of whom purported to be Councillors, confirmed the Pelican Narrows election results. The six persons were Cornelius Ballantyne, Richard Highway, Graham Linklater and Melville Linklater, Fred Ballantyne and Ovide Ratt. No one signed as "Chief". The "Band Council Resolution" was filed with the Department of Indian and Northern Affairs. By convention and custom, the quorum required for Peter Ballantyne Cree Nation band resolutions is seven duly-elected persons.

48.      On February 24, 1993 Chief Ronald Michel sent a memorandum [attached hereto as Appendix A-9] to George McLeod, the then Band Administrator, the Program Managers, and to the Peter Ballantyne Cree Nation Councillors and Staff directing them not to recognize the results of the election called for the same day. The reasons given were:

a.      that there was lack of proper notice in Pelican Narrows and the other communities that make up Peter Ballantyne Cree Nation and

b.      that the nomination meeting precluded the current Councillors from explaining their actions and was called as an attempt to defeat the TLE.

49.      On February 25, 1993 the Chief and seven Councillors, including Rose Dorion and Henry Morin, drafted a resolution "reject[ing] any and all activities that [were] directed towards the illegitimate removal" of Rose Dorion and Henry Morin [Appendix A-4].

Points in Issue

[15]      The parties agree that the following points are in issue between them in the three actions here raised for consideration.

I.      What is the Peter Ballantyne Cree Nation "band custom" with respect to elections?

A.      What is the Peter Ballantyne Cree Nation "band custom" with respect to general elections?

B.      What is the Peter Ballantyne Cree Nation "band custom" with respect to by-elections?

C.      Can Band members remove duly elected officials who have fallen out of favour by a non-confidence vote at a local meeting when those officials have done nothing else to cause them to be disqualified by the Band and Council pursuant to s. 79(2)(a) of the Indian Act nor anything to cause them to be disqualified by the Minister pursuant to s. 78(2)(b) of the Indian Act?

D.      Is there any procedure to remove properly-elected officials before their term of office has expired when those officials have done nothing to cause them to be disqualified by the Band and Council pursuant to s. 78(2)(a) of the Indian Act nor anything to cause them to be disqualified by the Minister pursuant to s. 78(2)(b) of the Indian Act?

II.      Whether the local election of February 24, 1993 constituted a proper election or by-election.

A.      Whether the nomination meeting of February 22, 1993 was properly called.

B.      Whether Councillors Rose Dorion and Henry Morin were afforded natural justice and procedural fairness.

1.      Whether they were given sufficient notice about the meeting.

2.      Whether they were given full disclosure and knew the case to be met.

3.      Whether they were given an opportunity to respond to questions or explain their actions.

a.      Whether each party had an adequate opportunity to present its case.

b.      Whether each party had an opportunity to contradict prejudicial evidence.

4.      Whether the rules of procedure were without bias.

Who has proper authority to call an election or by-election?

Can proper electors be evicted prior to calling a meeting with respect to band matters to order?

Whether Customary Election Protocol was followed.

Can the Chief and Council ignore the results of a local by-election that does not follow Band "custom" with respect to election procedure?

[16]      The issues as stated do not include the principal issue of concern to the plaintiffs, according to their counsel who raised the matter in the course of the hearing. While in some respects it is related to issues concerning the election of councillors and the extent to which that may have a bearing on the validity of the process of the second referendum for adherence to the Agreement, the plaintiffs' principal concern is said to be with the second referendum, and the subsequent adherence, to the Agreement.

[17]      Counsel for the defendants say that the validity of the referendum and adherence process is a matter underlying the plaintiffs' claims raised for consideration in action T-2574-93 on another day. The defendants' written submissions in advance of the hearing concerned the issues set out in the Agreed Statement of Facts and Issues. Nevertheless, they did not protest strongly the Court's consideration of the basic issue raised by the plaintiffs, that is, whether the second referendum was required to be conducted in accordance with the Indian Referendum Regulations, C.R.C., c. 957, which the defendants did not accept. The Court invited post-hearing submissions on this issue and written submissions were received, of the plaintiffs in September 1999 and on behalf of the defendants in November 1999.

[18]      These issues and the interrelated consideration of the relief requested by the parties, in my opinion, are to be resolved on the basis of the Agreed Statement of Facts and Issues, including the appendices attached thereto. The arguments of counsel may of course be helpful, but they do not constitute evidence upon which the Court can rely in this matter.

                                    

Analysis

[19]      I deal first with the issues stated by the parties in the Agreed Statement of Facts and Issues. The several issues identified under item I, concerning "band custom" respecting elections, and item II, concerning the validity of the election of February 24, 1993, which I refer to hereafter as "issues concerning the by-election", are now moot. Counsel for the plaintiffs conceded they were moot, that they were "history", but urged they be considered by the Court since they are important issues concerning band custom and elections.

[20]      In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 D.L.R. (4^th) 231, 75 Sask.R. 82, 92 N.R. 110, Mr. Justice Sopinka, speaking for the Supreme Court of Canada, commented at para. 16 that a case is moot if it fails to pass the "live controversy" test, that is, if the dispute between the parties has disappeared and the issues have become academic. That decision recognized that notwithstanding that a case is moot the Court has discretion to decide the issues raised and may do so in an exceptional case.

[21]      In my opinion the issues raised concerning the by-election are now moot. None of the four persons directly affected, either the defendants Rose Dorion or Henry Morin whom the by-election sought to replace as councillors, or those purportedly elected in their place, are now members of council. A number of regular elections have since been held, and in those elections in June 1993, Rose Dorion and Henry Morin were replaced as councillors. Relief against their sitting as councillors from February 24 to June 1993, by the requested remedy of Quo Warranto or any other extraordinary or declaratory relief would not be granted at this time even if the plaintiffs' contentions should generally be upheld, for that relief would be entirely ineffective.

[22]      Moreover, any declaration or finding by the Court in regard to the custom of the band and the by-election, or the validity of the by-election as conducted on February 24, 1993, would resolve no live issue about the Peter Ballantyne Cree Nation's customary law. There is no issue of significance for the future, for in 1994, after the events of 1993, the election custom was produced in writing by the band, and it has since been followed in succeeding elections.

[23]      I am mindful of the thorough and useful written submissions of the defendants in response to the detailed issues set out by agreement of the parties. I note those were not responded to seriatim or in any detail by the plaintiffs, in writing or at the hearing, although these are issues agreed to arise from the three proceedings before me, all initiated by the plaintiffs.

[24]      In my opinion, those issues grouped under I and II as stated issues, though agreed by the parties to be raised for determination by the Court, are now moot. While there may be general interest in comment upon them, I am not persuaded there are any exceptional reasons for the Court, in the exercise of its discretion, to deal with them. To discuss these without argument of the plaintiffs, as issues without effect in reality, would produce mere obiter, and in my opinion, would not be helpful.

[25]      I come to a different view in relation to the third issue agreed upon, stated as follows:

III      Can the Chief and Council ignore the results of a local by-election that does not follow Band "custom" with respect to election procedure?

[26]      Treating that question as a general issue, without reference to the specific facts of this case and without passing judgment on whether or not custom was followed by those who arranged the by-election, I answer that question "Yes". In my view it warrants a response since the issue raised is basic to the legal regime under which the Peter Ballantyne Cree Nation or any other is governed. There can be no doubt, in my opinion, that the Chief and Council of the nation can ignore the results of a local by-election that does not follow "custom" which is applicable to the election. In so doing the Chief and Council exercise their responsibility to uphold the law, i.e., the custom, of the nation where it is applicable. If they be wrong in interpreting custom they may be subject to account, but they cannot avoid their responsibility.

[27]      I turn to the matter of the second referendum, the matter of principal concern to the plaintiffs. As noted, its validity is not raised by the Agreed Statement of Facts and Issues. Nevertheless, that matter is raised, not directly but within the general claims of the plaintiffs in their three statements of claim. In those, the Court is asked to review and set aside, a number of decisions of the Chief and Council. Those decisions include: 1) the Band Council Resolution, dated February 15, 1993, filed with the Department of Indian Affairs and Northern Development, indicating a decision by the Chief and Council to hold a second referendum on February 23, 1993, only three months after a majority of electors, voting in the referendum of November 23, had voted against adherence to the Agreement; 2) the Band Council Resolution, dated February 25, declaring null and void the by-election conducted the previous day at Pelican Narrows; and 3) that same day following the second referendum, the Band Council Resolution authorizing the Chief to execute an adherence agreement. All of these decisions, it is urged by the plaintiffs, were unlawful and they are in question in each of the actions.

[28]      The basis of the plaintiffs' argument is the view that once the decision was made by the Chief and Council to have a referendum of the electors concerning adherence to the Agreement, any referendum, here both the first and the second, was required to be conducted in accord with the Indian Referendum Regulations, C.R.C. 1978, c. 957. There are said to be no other regulations concerning a referendum and no custom setting out procedures for one. In these circumstances it is said the Regulations apply. Further it is urged that even if this were not the case, the Regulations apply pursuant to ss. 38 and 39 of the Indian Act.

[29]      Those sections concern surrenders or designations relating to interests of a band in all or part of a reserve. They provide as follows:

38. (1) A band may absolutely surrender to Her Majesty, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve.	38. (1) Une bande peut céder à titre absolu à Sa Majesté, avec ou sans conditions, tous ses droits, et ceux de ses membres, portant sur tout ou partie d'une réserve.
(2) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted.	(2) Aux fins de les donner à bail ou de les démembrer, une bande peut désigner par voie de cession à Sa Majesté, avec ou sans conditions, autre qu'à titre absolu, tous droits de la bande, et ceux de ses membres, sur tout ou partie d'une réserve.
39. (1) An absolute surrender or a designation is void unless	39. (1) Une cession à titre absolu ou une désignation n'est valide que si les conditions suivantes sont réunies:
(a) it is made to Her Majesty;	a) elle est faite à Sa Majesté;
(b) it is assented to by a majority of the electors of the band	b) elle est sanctionnée par une majorité des électeurs de la bande_:
(i) at a general meeting of the band called by the council of the band,	(i) soit à une assemblée générale de la bande convoquée par son conseil,
(ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender or designation, or	(ii) soit à une assemblée spéciale de la bande convoquée par le ministre en vue d'examiner une proposition de cession à titre absolu ou de désignation,
(iii) by a referendum as provided in the regulations; and	(iii) soit au moyen d'un référendum comme le prévoient les règlements;
(c) it is accepted by the Governor in Council.	c) elle est acceptée par le gouverneur en conseil.
(2) Where a majority of the electors of a band did not vote at a meeting or referendum called pursuant to subsection (1), the Minister may, if the proposed absolute surrender or designation was assented to by a majority of the electors who did vote, call another meeting by giving thirty days notice thereof or another referendum as provided in the regulations. [Underlining added.]	(2) Lorsqu'une majorité des électeurs d'une bande n'ont pas voté à une assemblée convoquée, ou à un référendum tenu, selon le paragraphe (1), le ministre peut, si la proposition de cession à titre absolu ou de désignation a reçu l'assentiment de la majorité des électeurs qui ont voté, convoquer une autre assemblée en donnant un avis de trente jours, ou faire tenir un autre référendum comme le prévoient les règlements. [C'est moi qui souligne.]

                

[30]      The Indian Referendum Regulations, C.R.C. 1978, c. 957 provide the procedures required for a referendum called for under the above sections of the Act, including a requirement for four weeks' notice of a referendum if it is to be held by secret ballot. Section 30 of the Regulations also provides for a subsequent referendum to be ordered by the Minister if the majority of electors did not vote in a first referendum, but the majority who did vote voted in favour of a proposed surrender.

[31]      For the defendants it is urged that, as noted, the Agreement did not require approval by the bands adhering to the Agreement other than by signature supported by a Band Council Resolution of the Chief and Council concerned. Some 25 other bands adhered to the Agreement without any referendum or other evidence of band approval except a Band Council Resolution. Moreover, neither the Indian Act nor the Indian Referendum Regulations required that the Regulations be applied in the circumstances of this case. Those Regulations clearly apply when a band seeks to surrender, or to designate, a portion or all of reserve lands to her Majesty. The defendants urge that no such surrender or designation is involved under the Agreement.

[32]      In my opinion, in the absence of statutory, regulatory or other authority requiring that a referendum on a matter other than set out by ss. 38 and 39 of the Act, i.e., a surrender or designation of reserve lands, the Chief and Council are not bound to follow the Regulations if they seek to assess support of band electors through a referendum process. The lack of any other regulations, in the absence of requirements that the Regulations here in issue shall apply, does not give rise to a legal obligation to apply the Indian Referendum Regulations. Nor is any obligation raised for the second referendum to be held under the Regulations merely because a first referendum was undertaken.

[33]      The only basis on which the Regulations would necessarily apply in the referendum here undertaken is if the Agreement is construed to provide for a surrender or designation within the terms of ss. 38 and 39 of the Act. On that issue the parties made written submissions following the hearing.

[34]      After considering those submissions and the Agreement itself, for purposes of considering requirements for the referendum in this proceeding, it is my opinion that the Agreement does not provide for a surrender or designation within the terms of ss. 38 and 39 of the Indian Act. Thus, the Indian Referendum Regulations were not mandatory in this case and the Chief and Council did not err by not following those Regulations in arranging for and conducting the referenda in November 1992 and in February 1993. This assessment is made without reference or significance for proceedings in Court file T-2574-93, which is not of concern here.

[35]      The plaintiffs' submissions are summed up as follows:

... the Peter Ballantyne Cree Nation, once it embarked upon a path of conducting referendums within the Band, then it was bound by the Indian referendum regulations whether or not the Treaty Land Entitlement Agreement was a surrender of band interests, and a release of Canada pertaining to those interests and as such was a surrender, thereby requiring that the Indian referendum regulations apply.

[36]      The interests said to be surrendered are those of the Nation to claim under Treaty 6 for land entitlement promised under that treaty and not yet provided. But the Agreement is intended to provide an agreed process to resolve that claim of the band and moreover that agreement does not provide for surrender of any such claim. Rather, it provides a process for resolution of specific claims of different bands, including the Peter Ballantyne Cree Nation. Only when those claims are resolved by a further agreement, which itself is subject to ratification by the band in question, will any provision for surrender, for example, for administration of mineral interests by the Crown, be required. The Agreement, in my opinion, does not provide for a surrender or designation within the terms of ss. 38 and 39 of the Indian Act.

[37]      Thus, there was no requirement that the Indian Referendum Regulations apply. In my view, the Chief and Council did not err in not following the requirement of those regulations in arranging the second referendum in February 1993.

Conclusion

[38]      I sum up my conclusions in regard to the issues here raised for determination.

The issues stated by agreement of the parties as listed under items I and II in the Agreed Statement, all dealing with the application of custom and the by-election arranged and held at Pelican Narrows on February 24, 1993, in my opinion, are now moot. In the exercise of my discretion I decline to determine those issues, for I am not persuaded the circumstances are exceptional or that determination of those issues, not argued in detail by the plaintiffs, would be useful.

2)      In regard to issue III, concerning whether the Chief and Council may ignore the results of a local by-election that does not follow band "custom" with respect to election procedure, my answer is "yes".

3)      In relation to the second referendum, conducted in February 1993, it is my conclusion that the Chief and Council did not commit any error in law by not following requirements of the Indian Referendum Regulations.

Remedies

[39]      In these actions the plaintiffs sought judgments to set aside the decisions of the Chief and Council in February 1993, to hold a second referendum, to conduct that referendum without reference to the requirements of the Indian Referendum Regulations, to advise others to ignore results of the by-election at Pelican Narrows and to authorize by Band Council Resolution adherence by the Chief to the Agreement. They also sought relief by orders of mandamus, of quo warranto, and an injunction, against action to adhere to the Agreement, but such relief was moot long ago.

[40]      In view of my conclusions on the issues raised by written agreement or at the hearing, I find no ground to award any of the relief sought by the plaintiffs in the three actions before me. Indeed, I conclude those actions should be dismissed.

[41]      The defendants by their statements of defence in the three actions and by their written argument also sought relief, without introduction of a claim by any formal counterclaim. In written submissions the defendants seek a number of specific declarations, some of which would be directed to respond negatively to claims advanced by the plaintiffs. Most of those requests for specific declarations go beyond the relief requested by the Defences filed in the three actions. The relief requested in the Defences is a declaratory order that the Chief and Council had full authority and right to enter the Agreement, a declaration that the February 24, 1993 by-election was null and void, and for costs on a solicitor/client basis.

[42]      Having determined not to resolve issues concerning the by-election, which in my opinion are moot, I decline to make any declaration about the February 24, 1993 by- election. I decline also to issue declaratory orders that would merely respond to the plaintiffs' claims since I dismiss those claims. In view of that it should be clear that I am not persuaded that the Chief and Council acted contrary to law in their decisions made in February 1993 to conduct a second referendum, in conducting that referendum without reference to requirements under the Indian Referendum Regulations, or in authorizing adherence to the Agreement, or in ignoring the results of the Pelican Narrows by-election and advising others to do likewise.

Costs

[43]      In the usual course of cases before this Court, costs follows the outcome and the defendants would be entitled to costs. The defendants ask for costs on a solicitor/client basis but there is no basis here for such an award.

[44]      Costs are ordered in the three actions, to the defendants in an amount as the parties may agree or, failing agreement, as may be taxed in accord with Column III of Tariff B under the Court's Rules, on the normal party and party basis. Costs of this hearing and earlier pre-trial hearings shall be included once only for all three actions heard together.

Directions for filing

[45]      Separate Judgments issue for each of Court files T-801-93, T-1006-93 and T-1009-93 and a copy of these Reasons is to be filed on each of those files.

     (signed)W. Andrew MacKay

                             JUDGE

OTTAWA, ONTARIO

November 3, 2000