Date: 20061222
Docket: A-60-06
Citation: 2006 FCA
423
Present: RICHARD C.J.
BETWEEN:
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris
Littlechild,
Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,
Carol
Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White,
Craig
Alton Makinaw, Councillors of the Ermineskin Band, sued on their own
behalf,
and on behalf of the ERMINESKIN BAND OF INDIANS and
ERMINESKIN
CREE NATION
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the
ATTORNEY
GENERAL OF CANADA
Respondents
/ Cross-Appellants
(Defendants)
and
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit,
Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of
all other members
of
the Montana Indian Band, all of whom reside on the Montana Reserve No. 139,
in
the Province of Alberta
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo,
Florence
Buffalo, Dolphus
Buffalo, Lawrence
Saddleback,
Larron
Northwest, Nancy Yellowbird, Barb Louis,
Keith
Johnson, Rose Saddleback and Jim Omeasoo,
Councillors
of the Samson Band, sued on their own behalf
and
on behalf of the members of the Samson Band of Indians
Date: 20061222
Docket: A-60-06
Citation: 2006 FCA 423
Present: RICHARD
C.J.
BETWEEN:
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris
Littlechild,
Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,
Carol
Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White,
Craig
Alton Makinaw, Councillors of the Ermineskin Band, sued on their own
behalf,
and on behalf of the ERMINESKIN BAND OF INDIANS and
ERMINESKIN
CREE NATION
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the
ATTORNEY
GENERAL OF CANADA
Respondents
/ Cross-Appellants
(Defendants)
and
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit,
Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of
all other members
of
the Montana Indian Band, all of whom reside on the Montana Reserve No. 139,
in
the Province of Alberta
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo,
Florence
Buffalo, Dolphus
Buffalo, Lawrence
Saddleback,
Larron
Northwest, Nancy Yellowbird, Barb Louis,
Keith
Johnson, Rose Saddleback and Jim Omeasoo,
Councillors
of the Samson Band, sued on their own behalf
and
on behalf of the members of the Samson Band of Indians
Respondents
(Third
Parties)
REASONS FOR ORDER
RICHARD C.J.
[1]
Her
Majesty the Queen in right of Canada (Canada), by motion in writing,
seeks to strike portions of the
memorandum of fact and law filed by the Ermineskin Cree Nation (Ermineskin)
in an appeal to this Court from a judgment of the Federal Court dated February
28, 2006.
[2]
Canada alleges
that, in the course of litigation over an Indian Reserve surveyed and set aside
for the Bobtail Band more than one hundred years ago, Ermineskin has repeatedly
attempted to rely upon a legal theory they did not plead, the One Group theory.
Ermineskin has made unsuccessful attempts before trial and at trial to advance
the One Group theory, even though that theory was not disclosed in their
pleadings.
[3]
The
One Group theory is a theory of liability that Ermineskin had rights to the
former Bobtail Indian Reserve No. 139 as a result of an original communal
interest held by the “Maskwachees” or Bear Hills Cree in the former Bobtail
reserve.
[4]
Canada further
alleges that, in the course of their appeal proceedings, Erminieskin has again
attempted to rely upon the One Group theory, even though no appeal based upon
that theory is disclosed in their notice of appeal.
[5]
Canada also alleges
that Ermineskin attempted to amend their notice of appeal to strengthen their
attempts to introduce the One Group theory into the appeal proceedings.
However, they were denied leave to amend their notice of appeal.
[6]
Canada submits that
all of the portions of the Ermineskin memorandum that make reference to or rely
upon the One Group theory should be struck as well as many references to the
evidence in the form of documents or reports.
[7]
Canada
further submits that appellate Courts must be able to focus on the substantive
matters that come before them, free from the distractions posed by issues that
are not properly before them and reliance upon information not fully received
into evidence.
[8]
Ermineskin
submits that there is no authority under the Federal Courts Act for a
motion to strike a memorandum of fact and law. Ermineskin submits that while
the Court has inherent jurisdiction to strike a memorandum, that jurisdiction
ought only to be exercised sparingly and in exceptional circumstances. In its
view, no such circumstances exist in this case.
[9]
Ermineskin
proposes that the Court, on the hearing of the appeal, should address the
proper scope of the appeal and that this would cause no prejudice to the Crown.
[10]
Ermineskin
also submits that all of the evidence relied upon by Ermineskin in its
memorandum of fact and law, except for a limited amount of evidence, was before
the trial Judge.
[11]
Having
considered the written representations of Canada and
Ermineskin, I propose to allow Canada’s motion in part for the following
reasons.
[12]
The
Court of Appeal should not be called upon to intervene at this stage of the
proceedings, except to enforce compliance with any applicable statutory or
regulatory provisions, the rules of court and any order that may have been made
in the proceeding.
[13]
Further,
any decision made on this motion does not limit the panel hearing the appeal
from defining the issues properly before it.
[14]
I
am not prepared to grant the broad order sought by Canada and in
particular to delete references to evidence in the form of documents or
reports. These objections can be raised more appropriately before the Court on
appeal.
[15]
Clearly,
it is open to Canada to repeat
its objections in its memorandum of fact and law. However, I grant leave to Canada to list
without comment in an appendix to its memorandum the passages and reference
notes to which it takes objection.
[16]
In
my view, paragraph 189 of the Ermineskin memorandum fails to comply with an
order of this Court concerning its grounds of appeal.
[17]
In its
notice of appeal, Ermineskin raised the following ground:
The learned trial Judge erred in failing
to give independent weight to oral history evidence called by the Ermineskin
Band which addressed matters directly relevant to the determination of the
Three Questions and, moreover, in giving excessive weight to the Indian Act
and insufficient weight to oral history, culture and treaty considerations in
determining issues relating to the existence of the Bobtail Band and the
collective interests of the Maskwachees Cree in I.R. 139.
[18]
In
a motion brought before this Court, Ermineskin sought to amend its notice of
appeal by adding to the above ground the following ground:
Further, and more specifically, the
learned trial Judge erred in giving little weight to and/or in ruling
inadmissible evidence relating to the identification and interests of the
Maskwachees Cree as one group, including their collective land holdings.
[19]
By
order dated July 7, 2006, Malone J.A. dismissed this motion on the basis that
the proposed amendments were overly broad and did not clarify the issues in
dispute.
[20]
Paragraph
189 of Ermineskin’s memorandum reads as follows:
189. Although the trial judge
admitted this latter evidence, on a number of occasions during trial, she
restricted Ermineskin’s Elders and expert witnesses from providing additional
evidence concerning the relations among the Maskwachees Cree, and the way they
viewed themselves as an identifiable group. This proposed evidence would have
demonstrated an important part of the identity and makeup of the community of
the Bobtail, Ermineskin and Samson Bands. It would have provided context to the
Crees’ notions of land rights and the effects of inter-band transfers, and
would have been relevant to the successorship issue. Erminiskin submits that
the trial judge erred in law in refusing to admit this additional important and
relevant evidence.
Expert Report of H. Dempsey,
Exhibit 4735, p. 1-5, 16-17, 26-28, 31-32, 38
Surrebutal Report of H.
Dempsey, Exhibit 4736, p. 1, 3-4
Expert Report of G. Jones,
Exhibit 4749, p. 18, 32, 52, 72
Transcript Vol. 51, February
13, 2003, p. 271.17 – p. 401.10
Transcript Vol. 52, February
18, 2003, p. 701.22 – p. 771.4, p. 841.14
Transcript Vol. 53, February
19, 2003, p. 351.16 - p. 431.9
Transcript Vol. 57, February
25, 2003, p. 901.18 – p. 1001.16
[21]
In
essence, paragraph 189 repeats the ground of appeal which Ermineskin sought to
advance in its motion to amend its notice of appeal which was denied by Mr. Justice
Malone. It does not accord with that ruling. As a result, paragraph 189 should
be struck from the Ermineskin memorandum.
[22]
Accordingly,
the appellants’ motion to strike portions of the memorandum of fact and law
filed by Ermineskin will be allowed in part only, and paragraph 189 of the
Ermineskin memorandum will be struck. The timetable established by order dated June
20, 2006, is confirmed.
[23]
The
Registry is directed to make the notation that paragraph 189 is struck on all
copies of the Ermineskin memorandum in the Court record and to provide a copy
of this order and reasons to the other parties in the appeal.
[24]
Canada is entitled
to the costs of this motion to be assessed in accordance with Tariff B and
Column III.
"J. Richard"
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