Date: 20120315
Dockets: A-146-11
A-165-11
Citation: 2012 FCA 90
CORAM: PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
A-146-11
BETWEEN:
CHIEF
MARTIN OWENS
Appellant
and
NELSON KEEPER, and HER MAJESTY
THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
Respondents
and
A-165-11
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Appellant
and
NELSON KEEPER, CHIEF MARTIN OWENS,
COUNCILLOR DEON LAM and DEPUTY
ELECTORAL OFFICER IAN KEEPER
Respondents
Heard at Winnipeg,
Manitoba, on March 15,
2012.
Judgment delivered from the Bench at Winnipeg, Manitoba, on March 15, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER
J.A.
Date:
20120315
Dockets: A-146-11
A-165-11
Citation:
2012 FCA 90
CORAM: PELLETIER
J.A.
DAWSON J.A.
STRATAS
J.A.
A-146-11
BETWEEN:
CHIEF MARTIN
OWENS
Appellant
and
NELSON KEEPER, and HER MAJESTY
THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
Respondents
and
A-165-11
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Appellant
and
NELSON KEEPER, CHIEF MARTIN OWENS,
COUNCILLOR DEON LAM and DEPUTY
ELECTORAL OFFICER IAN KEEPER
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on March 15, 2012)
PELLETIER J.A.
[1]
In the
circumstances of these cases, we have decided not to exercise our discretion to
hear these appeals relating to the conduct of Indian Band elections,
notwithstanding their mootness.
[2]
The Crown
asks this Court to hear these matters on the basis that, given the 2 year term
of office, the questions are elusive of review. We cannot agree. Where the
parties pursue their remedies diligently, and where the Court’s assistance is
requested in expediting applications and appeals, there is no reason why these
matters cannot be heard in a timely fashion.
[3]
As the
factors identified in Borowski v. Canada [1989] 1 S.C.R. 342, we are not
satisfied that hearing these appeals is an appropriate use of judicial
resources. In particular, we are of the view that failure of the parties to
address the role of section 78 of the Indian Act in the interpretation
of the regulations in issue in this appeal would impede our ability to reach a
conclusion with confidence.
[4]
In the
result, we will dismiss these appeals with each party to bear its own costs. In
doing so, we do not wish to be taken to be expressing an opinion as to the
soundness of the decision under appeal, cited at 2011 FC 307.
"J.D.
Denis Pelletier"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-146-11
APPEAL FROM THE ORDER OF THE FEDERAL
COURT DATED MARCH 14, 2011, DOCKET NO. T-1252-10
STYLE OF CAUSE: A-146-11
CHIEF
MARTIN OWENS v. NELSON KEEPER ET AL.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 15, 2012
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A.
DELIVERED FROM THE BENCH BY: PELLETIER, J.A.
APPEARANCES:
|
Martin U. Kramer
|
FOR THE APPELLANT
CHIEF MARTIN OWENS
|
|
Martin S.
Minuk and Melissa N. Burkett
Yvette Creft and Lisa Cholosky
|
FOR THE RESPONDENT
NELSON KEEPER
FOR THE RESPONDENT
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
ET AL.
|
SOLICITORS OF RECORD:
|
Olschewski Feuer Davie
Barristers & Solicitors
Winnipeg,
Manitoba
|
FOR THE APPELLANT
CHIEF MARTIN OWENS
|
|
Aikins, MacAulay & Thorvaldson LLP
Barristers & Solicitors
Winnipeg, Manitoba
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
NELSON KEEPER
FOR THE RESPONDENT
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
ET AL.
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-165-11
APPEAL FROM THE ORDER OF THE FEDERAL
COURT DATED MARCH 14, 2011, DOCKET NO. T-1252-10
STYLE OF CAUSE: A-165-11
HER MAJESTY THE
QUEEN IN RIGHT OF CANADA ET AL. v. NELSON KEEPER ET AL.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March
15, 2012
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER
J.A.
DELIVERED FROM THE BENCH BY: PELLETIER,
J.A.
APPEARANCES:
|
|
|
|
Yvette Creft and Lisa Cholosky
Martin S. Minuk and Melissa N. Burkett
Martin U. Kramer
|
FOR THE APPELLANT
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
ET AL.
FOR THE RESPONDENT
NELSON KEEPER
FOR THE RESPONDENT
CHIEF MARTIN OWENS
|
SOLICITORS OF RECORD:
|
|
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
Aikins, MacAulay & Thorvaldson LLP
Barristers & Solicitors
Winnipeg, Manitoba
Olschewski Feuer Davie
Barristers & Solicitors
Winnipeg, Manitoba
|
FOR THE APPELLANT
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
ET AL.
FOR THE RESPONDENT
NELSON KEEPER
FOR THE RESPONDENT
CHIEF MARTIN OWENS
|
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