Montana First Nation v. Canada, 2007 FCA 218

Date: 20070606

Dockets: A-129-06

A-130-06

A-60-06

 

Citation: 2007 FCA 218

 

CORAM:       NOËL J.A.

                        EVANS J.A.

                        SHARLOW J.A.

 

BETWEEN:

A-129-06

 

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

Appellants

(Plaintiffs)

and

 

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, HER MAJESTY THE QUEEN, the ATTORNEY GENERAL OF CANADA, and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

Respondents/Cross-Appellants

(Defendants)

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/Cross-Appellants

(Third Parties)

and

 

ERMINESKIN CREE NATION, Chief Gerald Robert Ermineskin, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the members of the Ermineskin Band of Indians

Respondents

(Third Parties)

 

AND BETWEEN:

A-130-06

 

SAMSON CREE NATION and 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, Chief Lena Cutknife, and Dolphus Buffalo, Florence Buffalo, Kurt Buffalo, Pat Buffalo, Cecile Crier, Patrick Cutknife, Walter Lightning, Barbara B. Lightning, George Montour Sr., Donna Potts Johnson, Rose Saddleback and Marvin Yellowbird and Chief Florence Buffalo, suing on their own behalf and on behalf of all the members of the SAMSON CREE NATION, SAMSON BAND and SAMSON INDIAN BAND

Appellants

(Plaintiffs)

and

 

HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA

Respondents/Cross-Appellants

(Defendants)

and

 

MONTANA BAND and Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Frederick Strongman, Coldy Sr. and Dick Rabbit, 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

 

ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, 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

Respondents

(Third Parties)

 

 

 

 

AND BETWEEN:

A-60-06

 

ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, 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)

 

 

 

Heard at Ottawa, Ontario, on June 4, 5 and 6, 2007.

Judgment delivered from the Bench at Ottawa, Ontario, on June 6, 2007.

 

REASONS FOR JUDGMENT OF THE COURT BY:                                                    EVANS J.A.

 

Date: 20070606

Dockets: A-129-06

A-130-06

A-60-06

 

Citation: 2007 FCA 218

 

CORAM:       NOËL J.A.

                        EVANS J.A.

                        SHARLOW J.A.

 

BETWEEN:

 

A-129-06

 

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

Appellants

(Plaintiffs)

and

 

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, HER MAJESTY THE QUEEN, the ATTORNEY GENERAL OF CANADA, and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

Respondents/Cross-Appellants

(Defendants)

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/Cross-Appellants

(Third Parties)

and

 

ERMINESKIN CREE NATION, Chief Gerald Robert Ermineskin, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the members of the Ermineskin Band of Indians

Respondents

(Third Parties)

 

AND BETWEEN:

A-130-06

 

SAMSON CREE NATION and 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, Chief Lena Cutknife, and Dolphus Buffalo, Florence Buffalo, Kurt Buffalo, Pat Buffalo, Cecile Crier, Patrick Cutknife, Walter Lightning, Barbara B. Lightning, George Montour Sr., Donna Potts Johnson, Rose Saddleback and Marvin Yellowbird and Chief Florence Buffalo, suing on their own behalf and on behalf of all the members of the SAMSON CREE NATION, SAMSON BAND and SAMSON INDIAN BAND

Appellants

(Plaintiffs)

and

 

HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA

Respondents/Cross-Appellants

(Defendants)

and

 

MONTANA BAND and Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Frederick Strongman, Coldy Sr. and Dick Rabbit, 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

 

ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, 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

Respondents

(Third Parties)

 

 

 

 

AND BETWEEN:

A-60-06

 

ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, 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 JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on June 6, 2007)

EVANS J.A.

[1]               These are the reasons of the Court in Files A-129-06, A-130-06, and A-60-06. The original will be filed in A-129-06, and copies in the other two files.

[2]               Despite the thorough arguments of counsel, the appeals will be dismissed substantially for the careful reasons given by Justice Hansen of the Federal Court. Her decision is reported as Montana Band v. Canada, 2006 FC 261.

 

[3]               Most of the issues raised by the appellants are questions of fact, or of mixed fact and law, on which the Judge’s conclusions may be reversed on appeal only if vitiated by palpable and overriding error. We are not persuaded that she committed such errors. Nor are we satisfied that the Judge made any material error on a question of law. We would make only two observations on the issues argued before us.

 

[4]               First, regardless of which party bore the burden of proof, and what was the relevant standard of proof, on the question of the continuation of the existence of the Bobtail Band, the Judge’s finding that there was “overwhelming evidence” that on or around October 1887 the Bobtail Band ceased to exist (paragraph 522 of the reasons) is fully dispositive of the issue.

 

[5]               Second, with respect to the submissions made on behalf of the Samson Band and the Ermineskin Band that the Agreement of August 10, 1887, should be set aside as unconscionable or inconsistent with the honour of the Crown, we are not satisfied that, on the basis of the evidence, the terms of the Agreement were unconscionable or involved conduct on the part of the Crown that breached its duty to act honourably in its dealings with Aboriginal peoples. In reaching this conclusion, we have assumed, without deciding, that the Samson and Ermineskin Bands have standing to attack the propriety of an Agreement between other parties, namely Chief Bobtail and his family, and the Crown.

 

[6]               For these reasons, the appeals will be dismissed with costs to the Crown and the three questions will be answered as the Trial Judge answered them, except that we express no opinion on whether the purported surrender, dated June 12, 1909, would have been valid if a surrender had been necessary. In these circumstances, the cross-appeals by the Crown are moot and will be dismissed for this reason, without costs.

 

 

“John M. Evans”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-129-06

 

APPEAL FROM AN ORDER OF THE FEDERAL COURT (HANSEN, J.) DATED FEBRUARY 28, 2006, IN DOCKET NO. T-617-85.

 

STYLE OF CAUSE:                                                              Montana Band et al. v. Her Majesty the Queen et al.

 

 

PLACE OF HEARING:                                                        OTTAWA, ONTARIO

 

 

DATE OF HEARING:                                                          June 4-6, 2007

 

 

REASONS FOR JUDGMENT OF THE COURT BY:       Noël, Evans, & Sharlow, JJ.A.

 

DELIVERED FROM THE BENCH BY:                            Evans, J.A.

 

APPEARANCES:

 

Michael Bailey Michael Aasen	FOR THE APPELLANT
Maria Morellato Joseph McArthur Roy Millen	FOR THE RESPONDENT, Ermineskin Cree Nation et al.
David C. Rolf	FOR THE RESPONDENT, Samson Cree Nation et al.
Sheila Read Krista Epton	FOR THE RESPONDENT, Her Majesty the Queen

 

 

 

 

SOLICITORS OF RECORD:

 

Miller Thomson LLP Calgary, Alberta	FOR THE APPELLANT
Blake, Cassels & Graydon LLP Vancouver, British Columbia	FOR THE RESPONDENT, Ermineskin Cree Nation et al.
Parlee McLaws LLP Edmonton, Alberta	FOR THE RESPONDENT, Samson Cree Nation et al.
John H. Sims, QC Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT, Her Majesty the Queen

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-130-06

 

APPEAL FROM AN ORDER OF THE FEDERAL COURT (HANSEN, J.) DATED FEBRUARY 28, 2006, IN DOCKET NO. T-782-97.

 

STYLE OF CAUSE:                                                              Samson Cree Nation et al. v. Her Majesty the Queen et al.

 

 

PLACE OF HEARING:                                                        OTTAWA, ONTARIO

 

 

DATE OF HEARING:                                                          June 4-6, 2007

 

 

REASONS FOR JUDGMENT OF THE COURT BY:       Noël, Evans, & Sharlow, JJ.A.

 

DELIVERED FROM THE BENCH BY:                            Evans, J.A.

 

 

APPEARANCES:

 

David C. Rolf	FOR THE APPELLANT
Maria Morellato Joseph McArthur Roy Millen	FOR THE RESPONDENT, Ermineskin Cree Nation et al.
Michael Bailey Michael Aasen	FOR THE RESPONDENT, Montana Cree Nation et al.
Sheila Read Krista Epton	FOR THE RESPONDENT, Her Majesty the Queen

 

SOLICITORS OF RECORD:

 

Parlee McLaws LLP Edmonton, Alberta	FOR THE APPELLANT
Blake, Cassels & Graydon LLP Vancouver, British Columbia	FOR THE RESPONDENT, Ermineskin Cree Nation et al.
Miller Thomson LLP Calgary, Alberta	FOR THE RESPONDENT, Montana Cree Nation et al.
John H. Sims, QC Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT, Her Majesty the Queen

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-60-06

 

APPEAL FROM AN ORDER OF THE FEDERAL COURT (HANSEN, J.) DATED FEBRUARY 28, 2006, IN DOCKET NO. T-2804-97.

 

STYLE OF CAUSE:                                                              Ermineskin Cree Nation et al. v. Her Majesty the Queen et al.

 

 

PLACE OF HEARING:                                                        OTTAWA, ONTARIO

 

 

DATE OF HEARING:                                                          June 4-6, 2007

 

 

REASONS FOR JUDGMENT OF THE COURT BY:       Noël, Evans, & Sharlow, JJ.A.

 

DELIVERED FROM THE BENCH BY:                            Evans, J.A.

 

 

APPEARANCES:

 

Maria Morellato Joseph McArthur Roy Millen	FOR THE APPELLANT
Michael Bailey Michael Aasen	FOR THE RESPONDENT,   Montana Cree Nation et al.
David C. Rolf	FOR THE RESPONDENT, Samson Cree Nation et al.
Sheila Read Krista Epton	FOR THE RESPONDENT, Her Majesty the Queen

 

SOLICITORS OF RECORD:

 

Blake, Cassels & Graydon LLP Vancouver, British Columbia	FOR THE APPELLANT
Miller Thomson LLP Calgary, Alberta	FOR THE RESPONDENT, Montana Cree Nation et al.
Parlee McLaws LLP Edmonton, Alberta	FOR THE RESPONDENT, Samson Cree Nation et al.
John H. Sims, QC Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT, Her Majesty the Queen