Date: 20071003
Citation: 2007
FC 1015
Vancouver, British
Columbia, October 3, 2007
PRESENT: The Honourable Mr. Justice Phelan
Docket: T-1254-92
BETWEEN:
CHIEF ERMINESKIN,
LAWRENCE WILDCAT,
GORDON LEE, ART
LITTLECHILD, MAURICE WOLFE,
CURTIS ERMINESKIN, GERRY
ERMINESKIN, EARL ERMINESKIN,
RICK WOLFE, KEN CUTARM,
BRIAN LEE, LESTER FRAYNN,
the elected Chief and Councillors
of the Ermineskin Indian Band and Nation
suing on their own
behalf and on behalf of all the other
members of the
Ermineskin Indian Band and Nation
Plaintiffs
and
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA,
THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
AND THE MINISTER OF
FINANCE
Defendants
Docket: T-1763-07
BETWEEN:
ERMINESKIN
INDIAN BAND AND NATION
Plaintiff
and
HER MAJESTY
THE QUEEN
Defendant
REASONS FOR INTERIM ORDER AND ORDER
[1]
The Applicant,
Ermineskin Indian Band and Nation, brought a motion under Court File No.
T-1254-92 for an order in the nature of mandamus directing the Minister
of Indian Affairs and Northern Development to pay out the Revenue Fund,
including the Pigeon Lake Split for 2007. The motion was set down for a
one-hour hearing on the regular motions day in Vancouver on October 1, 2007.
[2]
On the
preceding Friday counsel for the Respondent was only able to fax their Written
Submissions. The full record of two volumes was filed in Court at the hearing
of the motion.
[3]
As a
result of argument heard to date, it is apparent that the issues of fact and
law between the parties are now more clear and more complex.
[4]
The Applicant
has not had an opportunity to respond to the Respondent’s evidence particularly
as to the Band’s agreement to provide audited financial statements – a
condition which the Respondent says prevents the payment of the Revenue Fund.
[5]
There are
issues as to the proper file and procedure to be followed to have this matter
put before the Court. A procedure adopted under case management is not
necessarily the appropriate procedure now that judgment has been rendered and
is under appeal. There are significant issues of fact in dispute and the whole
matter of the legal regime under which payment is to be made is deserving of a
better hearing than time and circumstances permitted.
[6]
Therefore,
the Court will not render judgment at this time but will allow the parties to
submit such further evidence and argument as they deem necessary. The Court
makes the following Order.
ORDER
THIS COURT ORDERS that:
1.
The style
of cause is changed to reflect the true Plaintiffs and shall read:
Ermineskin
Indian Band and Nation
and
Her
Majesty the Queen
2.
This
matter shall be dealt with under Court File No. T-1763-07 and all material
filed to date in regard to the motion shall be transferred to this Court file.
3.
This
matter shall, until otherwise ordered, be treated as an application, whether
under s. 18 or s. 44 of the Federal Courts Act may be dealt with later
and may be of no consequence as this matter will be case managed.
4.
This
matter shall be case managed and, in accordance with the Chief Justice’s
direction, Justice Phelan shall continue in this matter as the case management
judge as well.
5.
The Applicant
shall have ten (10) days from the date of this Order to file such further and
other evidence and submission, by way of supplemental record, as it deems
necessary consistent with the Rules.
6.
The Respondent
shall have the same right to be exercised within ten (10) days of receipt of
the Applicant’s supplemental record (if any).
7.
The Applicant
shall have three (3) days thereafter to file a reply.
8.
Upon
completion of these steps or the expiry of the time limits, or at the request
of a party, a case management conference will be held to order such further
steps in order to complete this matter at any early date.
9.
Any party
may contact the Court at any time to request a conference to deal with any
matter which may be necessary to efficiently and effectively complete this
matter. If there are any immediate problems arising from this Order, the
parties are to advise the Court forthwith.
10.
Costs for
the day shall be in the cause.
"Michael
L. Phelan"
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