Martel v. Council of the Samson Band, 2002 FCT 729

Date: 20020627

Docket: T-2391-88

Neutral citation: 2002 FCT 729

BETWEEN:

                                     LOUISE MARTEL, MARY GROSS, DORA THOMSON,

                   MONICA GLADEAU, MILDRED BARIL, CORA

                  ARNOLD, EMILY STOYKA, FLORA ANDERSON,

                 PATRICIA JONES, HAZEL FREEMAN, JOYCE P.

                COOK, SARA SCHUG, ELIZABETH PERROTT, NORA

             ORR, MARY MIERAU, MARLENE COURTOREILLE, and

                         JANICE WANDA LIGHTNING

                                                               Plaintiffs

- and -

                 CHIEF JIM OMEASOO, THE COUNCIL OF THE

             SAMSON BAND and THE SAMSON BAND OF INDIANS,

                 and HER MAJESTY THE QUEEN IN RIGHT OF

            CANADA and THE MINISTER OF INDIAN AFFAIRS AND

                          NORTHERN DEVELOPMENT

                                                               Defendants

                                               REASONS FOR ORDER AND ORDER

HUGESSEN J.

[1]                 The plaintiffs, Emily Stoyka, Sarah Schug and Geoffrey Thomson, on behalf of Dora Thomson, deceased, move for summary judgment by motion in writing pursuant to Rule 369. They seek only a declaration that they are members of the defendant Band. The Band, for its part, while not consenting, does not oppose the motions by Stoyka and Thompson. Since the evidence establishes that these two plaintiffs are entitled to membership and since the constitutional issue raised by the Band in its Statement of Defence has not been renewed in its response to the motion and no notice under section 57 of the Federal Court Act, R.S.C. 1985, c. F-7, has been given, there will be a declaration as sought.

[2]                 The Band does oppose Mrs. Schug's motion. It seeks an oral hearing and argues as well that the matter is not an appropriate one for disposition by summary judgment. As in the cases of the other two plaintiffs, however, there is no constitutional question properly before the Court. The only issues are whether the motion is appropriately made in writing under Rule 369 and whether or not the evidence is enough to support a summary finding that Mrs. Schug is entitled to Band membership. Most of that evidence is historical and documentary, going to the question of her pre-marriage status as a member of the Band. There are no serious issues of credibility. The matter is, in my view, not unduly complex and therefore entirely appropriate for determination on the written materials only. The Band's request for an oral hearing is denied.

[3]                 It is common ground that Mrs. Schug was born on December 25, 1936. Her birth certificate indicates that her father was unknown but the records of the Department of Indian Affairs show her to be the daughter of William Okeynan, No. 370 Samson Band. She remained on the register of the Samson Band and was given her own ticket number, 611, until her enfranchisement upon marriage to a non-Indian in 1959. She admits that she hardly knew her mother and never met her father, having been brought up in infancy by her maternal grandparents who were members of the Paul Band.

[4]                 There is other documentary evidence of the parentage of Mrs. Schug. The records for Paul's Band record the applicant's mother Jenny Rabbit, from No. 32 Paul's Band "1 girl married William Okeynan, No. 370 Samson Band" with an entry date of August 3, 1932. Furthermore, the records of Samson Band record the entry for July --, 1932 "Boy to man transferred from number 252 this band (George Okeynan), married Jennie Rabbit Wabanum". The entry for July 10, 1942 records "2 children taken into treaty, Sarah age 6 and Norman age 4." Finally, a certificate of enfranchisement produced as an exhibit establishes that Sarah Schug (nee Okeynan), was enfranchised from the Samson Band by Order in Council PC No. 1959-146 dated February 13, 1959 upon her marriage to a non-Indian. Prior to such enfranchisement, her name had been on the Band List without objection from anyone.

[5]                 In its argument, the Band relies on two matters : first, that it is evident from the documents that they are incomplete and that in particular a letter dated 29 January 1943, referred to in the Samson Band List entry of 10 July 1942 quoted above, is missing ; and second, that because as a child she was brought up by her maternal grandparents, members of the Paul Band, who received treaty payments on her behalf, she was de facto and by Cree custom adopted by them.

[6]                 These arguments are unconvincing. There is absolutely nothing to suggest that the missing January 1943 letter would do anything to contradict or vary the entry made in the Band List ; on the contrary, since the letter is cited as authority for the entry there is every reason to suppose that it would in fact confirm it. None of the contemporary documents supports the suggested custom adoption and the fact that treaty payments from the Samson Band were paid to the plaintiff's maternal grandparents strongly suggests that, in the Band's view, she was in fact one of their members, entered as such on their Band List, who was being looked after by a close relative from another band.

[7]                 In short, all the documents support the view that the plaintiff, Mrs. Schug, was a member of the Samson Band prior to her marriage and that she became entitled to re-admission as such upon the passage of the 1985 amendments to the Indian Act, R.S.C. 1985, c. I-2. No documents support any contrary inference. If there was any better evidence to support the Band's position, they have had ample time to produce it ; they have not. In the circumstances, summary judgment is an appropriate remedy.

[8]                 Plaintiffs Stoyka and Thomson are entitled to one set of costs as on an uncontested motion. Mrs. Schug shall have her costs on the contested motion to be assessed.

ORDER

The motions are allowed. Plaintiffs Emily Stoyka, Sarah Schug and Dora Thomson are declared to be members of the defendant Band. One set of costs of an uncontested motion to plaintiffs Stoyka and Thomson ; a separate set of costs for a contested motion to plaintiff Schug.

                                                                                                                                                               Judge                               

Ottawa, Ontario

June 27, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-2391-88

STYLE OF CAUSE:                           Louise Martel et al v. Chief Jim Omeasoo et al

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       Motion in writing pursuant to Rule 369

REASONS FOR ORDER AND ORDER : Hugessen J.

DATED:                                                June 27, 2002

APPEARANCES:

Terence Glancy                                                                              FOR PLAINTIFF

Kevin Kimmis                                                                                  FOR DEFENDANT CROWN

Priscilla Kennedy                                                                            FOR DEFENDANT SAMSON BAND

SOLICITORS OF RECORD:

Royal McCrum Duckett and Glancy

Edmonton, Alberta                                                                         FOR PLAINTIFF

Morris Rosenberg

Deputy Attorney General of Canada     FOR DEFENDANT CROWN

Parlee McLaws

Edmonton, Alberta                                                                        FOR DEFENDANT SAMSON BAND