Date: 19990120
Docket: T-66-86
BETWEEN:
BERTHA L"HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
WAYNE ROAN suing on his own behalf and on behalf of
all other members of the Ermineskin Band, and
BRUCE STARLIGHT suing on his own behalf and
on behalf of all other members of the Sarcee Band
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant (Applicant)
- and -
NATIVE COUNCIL OF CANADA
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
REASONS FOR ORDER
(Delivered from the Bench at Edmonton, Alberta
on January 20, 1999)
HUGESSEN J:
[1] The Crown moves in these proceedings for two orders, the first being to strike Wayne Roan, acting on his own behalf and on behalf of all other members of the Ermineskin Band, as a plaintiff, and the second being to sever the trials herein.
[2] The action itself was recently substantially amended on leave by the filing of a Fresh As Amended Statement of Claim. It is an action for declaratory relief brought on behalf of three First Nations or Indian Bands. The plaintiffs, are named individuals, acting on behalf of those Bands or First Nations. I set out below paragraphs 1 to 4 and 28 of the Fresh As Amended Statement of Claim:
| 1. The plaintiffs state that each of the plaintiff Indian Bands (hereinafter referred to as the "First Nations") are Indian Bands recognized, inter alia , by the Crown and the Indian Act with reserve lands located in the Province of Alberta. At various dates commencing in 1876 and extending through to 1899 representatives of the First Nations executed instruments of adhesion to Treaty No."s 6, 7 and 8 respectively with Her Majesty the Queen ("Her Majesty"). |
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| 2. The plaintiffs state that the First Nations existed as distinctive polities with their own institutions, customs and traditions, governing themselves by their own laws,, prior to the European colonization of North America and/or the assertion of sovereignty by European states. They were further recognized as such by the Crown with the execution of their respective treaties and the subsequent setting aside of their reserve lands. |
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| 3. In the alternative, the plaintiffs state that the First Nationals existed as distinctive polities with their own institutions, customs and traditions, and governed their own membership by their own laws, prior to the European colonization of North America and/or the assertion of sovereignty by European states. They were further recognized as such by the Crown with the execution of their respective treaties and the subsequent settings aside of their reserve lands. |
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| 4. The plaintiffs state that the First Nations have unextinguished Indian and/or Aboriginal title to their reserve lands. |
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| 28. The plaintiffs therefore claim as follows: |
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| a. a declaration that the Amendments are inconsistent with the provisions of section 35 of the Constitution of Canada to the extent that they infringe or deny the right of each of the First Nations to their self-government, their right to determine their own membership and their right to unextinguished Indian title tot heir reserve lands, and therefore to that extent are of no force or effect; |
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| b. a declaration that the Amendments are inconsistent with the section 35 rights of the First Nations protected by section 25 of the Charter, and therefore to that extent are of no force or effect; |
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| c. in any event, a declaration that the Amendments are inconsistent with the further rights of the First Nations protected by section 25 of the Charter, and therefore to that extent are of no force or effect; |
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| d. their costs of this action on a solicitor and his own client scale; and |
| e. such further and other relief as this Honourable Court may deem just. |
[3] Earlier in these proceedings a discontinuance was filed on behalf of the Ermineskin Band by counsel duly representing that Band. That counsel has furnished an affidavit in these proceedings and I set out here paragraphs 15 and 16 of that affidavit:
| 15. On Monday, December 14, 1998, I spoke personally with Chief Gerry Ermineskin, the duly elected Chief of Ermineskin Indian Band, who re-confirmed to me that Mr. Wayne Roan has no authority whatsoever to represent the Ermineskin Indian Band in this or in any other action, or to instruct counsel on behalf of the Ermineskin Indian Band. |
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| 16. To the best of my knowledge, information and belief and after having reviewed the matter with Chief Gerry Ermineskin, Chief of the Ermineskin Indian Band, it is clear to me that the Ermineskin Indian Band and its Band Council do not wish to participate in this action and wish their name struck from the style of cause. Furthermore, the Band does not consent to Mr. Wayne Road acting in any representative capacity on behalf of the Ermineskin Indian Band in this action. |
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[1] That evidence has not been contradicted and indeed that affidavit has not been cross-examined.
[2] In earlier interlocutory proceedings in this matter, Mr. Justice Strayer, then of this Division, had to deal with a not wholly dissimilar application bearing on the standing of the individual plaintiffs to sue. He found that the plaintiffs had standing but he added these words1:
| I also made it clear that if evidence were to be brought - and there is no indication that any such evidence exists - that this action is a complete sham with little or no support in the bands on whose behalf it is brought, the Court might have to consider further an action to strike the statement of claim. But that is not the situation before me. |
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[at page 464]
[3] While the evidence before me might be stronger, the fact that it is wholly uncontradicted, that the Band on behalf of whom Mr. Roan seeks to assert rights has specifically resiled from participation in the action, and that the rights themselves which are asserted are communal rights which are not susceptible of individual exercise and, indeed, are not asserted as such in the Statement of Claim, leads me to the conclusion that, indeed, Mr. Roan is not a proper party to be a plaintiff in this action and that to allow him to continue as such would be an abuse of the process of the Court.
[4] Accordingly, I am going to enter an order striking Wayne Roan acting in his own behalf and on behalf of all other members of the Erminskin Band from the Style of Cause and from the action.
[5] This brings me now to the second aspect of the Crown"s motion which seeks to sever the claims of the remaining plaintiffs, namely the Sawridge and the Sarcee Bands. It is now clear, and I say with respect that it was not so clear at the time that the present action was brought many years ago, that claims for aboriginal and treaty rights are both Band specific and fact specific. The passage which most clearly states the present rule is from the judgment of the Chief Justice in the decision of R. v. Van Der Peet2:
| Aboriginal rights are not general and universal; their scope and content must be determined on a case-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community. |
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[at page 559]
[6] The Federal Court Rules 1998 are very liberal in their treatment of joinder of parties and causes of action and they are intended to be untechnical and to facilitate the just resolution of actions in the most expeditious, efficient and least costly manner. There is, in my mind, no doubt whatever that the claims asserted by the Sawridge and the Sarcee Bands meet the requirements for joinder set out in Rule 102. There are certainly going to be some common issues of law and of fact in the two claims.
[7] The right to join, however, is subject to an overriding discretionary power of the Court to sever claims where, as Rule 106 puts it, "the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party."
[8] Giving the matter the best consideration of which I am able, I have concluded that while there are common issues of law and fact in this matter, by far the more important and burdensome issues will be separate3 and that the establishment by each plaintiff of the asserted aboriginal rights and the extent thereof is very likely to occupy a far greater proportion of trial time than such common issues of law and fact as may arise, most of which, in my view, are likely to be matters relating to the extent of infringement or to possible defences which may be asserted. As a consequence, I think that joinder will cause undue complication and delay and I am going to order that the two claims of the two remaining Bands be separately asserted.
[9] I am also in my order going to make provision for counsel to apply to me as Case Management Judge for directions as to any technical questions that may need to be straightened out as a result of the two orders I am entering today. There will certainly be some amendments required to the Statement of Claim and we will require to do some changing of the Court file numbers so as to separate the two matters out.
[10] Both parties have sought costs. I am not going to make an order as to costs. Costs will be in the discretion of the judge or judges who hear the claims on the merits in due course.
"James K. Hugessen"
Judge
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1 Twinn v. Canada, [1987] 2 F.C. 450 at page 464.
2 [1996] 2 S.C.R. 507
3 The Crown has filed evidence that the two Bands occupy lands in widely separate parts of Alberta and are governed by different treaties; again, this evidence is not contradicted and the plaintiffs have filed no evidence as to possible commonality of issues.
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