Date: 19990519
Docket: 99-T-12
BETWEEN:
LAURA MEDEIROS, KATHY AUDETTE, ESTHER CARISEE, CAROLINE CHARLEBOIS, FLORENCE GODON, LUCIA KOSTER, SAPHIRA LEVESQUE, MARTHA MALAIGRANDA, DONNA MARTIN, ROBERT MAYHEW, ALFREDO MEDEIROS, LAURA MEDEIROS JR, NOAH MEDEIROS, RACHEL MILLER, PETER MILLER, ALICE PEEVER, AMBROZINA POST, MARY SUTHERLAND, SOPHIE TARDIF, ADELINE TAYLOR, ALEX. TAYLOR, BONNIE TAYLOR, DAVID B. TAYLOR, DAVID TAYLOR, DONALD TAYLOR, GILBERT TAYLOR, LAWRENCE TAYLOR, LLOYD TAYLOR, LORETTA TAYLOR, MINNIE TAYLOR, SIMEON TAYLOR, THERESA TAYLOR, WILLIAM TAYLOR, EVA WESLEY, STELLA (ZACHARIE) WRIGHT, LOWLA ZACHARIE, RICHARD ZACHARIE, LIN ZACHERIE and PETER ZACHERIE
Applicants/Moving Party
- and -
GABRIEL ECHUM (Chief of Ginoogaming First Nation) in his personal and in his representative capacity, LAWRENCE TOWESGISHIG (Band Councillor of Ginoogaming First Nation) in his personal and in his representative capacity, BRUCE MENDOWEGAN (Band Councillor of Ginoogaming First Nation) in his personal and in his representative capacity, JOHN MENDOWEGAN (Band Councillor of Ginoogaming First Nation) in his personal and in his representative capacity, ELZEAR TAYLOR (Band Councillor of Ginoogaming first Nation) in his personal and in his representative capacity, CALVIN TAYLOR (Band Councillor of Ginoogaming First Nation) in his personal and in his representative capacity), KEN CHARLES (Band Councillor of Ginoogaming First Nation) in his personal and in his representative capacity, THE CHIEF AND COUNCIL OF GINOOGAMING FIRST NATION FROM TIME TO TIME and GINOOGAMING FIRST NATION
and
ONTARIO POWER GENERATION INC.
Respondents
REASONS FOR ORDER
SHARLOW J.
[1] Ginoogaming First Nation is an "Indian band" within the meaning of the Indian Act. Some but not all of its members reside on the Ginoogaming Reserve at Long Lake, Ontario. All of the applicants but one are non-resident members. Some of them live at or near Hornepayne, Ontario and others have relatives who live at Hornepayne. Hornepayne is approximately 180 kilometres from the Ginoogaming Reserve.
[2] As I understand it, the applicants seek judicial review of at least two decisions of the Council of Ginoogaming First Nation. The first is the decision to enter into an agreement settling certain claims relating to Ontario Hydro's past and present activities in and around Long Lake, Ontario. The second is a decision or series of decisions to the effect that the proceeds of the settlement agreement will be used to benefit only the members of Ginoogaming First Nation residing on the Ginoogaming Reserve to the exclusion of non-resident members, including the applicants.
[3] The applicants cannot proceed without an order extending the time to file an application for judicial review under the Federal Court Act. Subsection 18.1(2) of the Federal Court Act states that an application for judicial review of a decision of a federal board, commission or other tribunal must be made within 30 days after the time the decision was first communicated by the tribunal to the affected party, or within such further time as a judge of the Trial Division may allow.
[4] The Federal Court of Appeal said in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263, that in deciding whether to grant an extension of time, the questions to be considered are:
| (1) whether there is justification for not bringing the application for judicial review within the statutory time period; |
| (2) whether the decision that is the subject of the application is a proper subject for judicial review; |
| (3) whether there is an arguable case for the relief sought on judicial review; |
| (4) whether, in the circumstances presented, the extension is required to do justice between the parties. |
These questions are considered in turn below.
Is the delay justified?
[5] The decision to enter into the settlement agreement apparently was made on or about August 4, 1998. That is evidenced by a resolution apparently signed by five members of the Council on that date. The settlement agreement was signed in a public ceremony on August 15, 1998.
[6] I take it to be undisputed that the applicants had advance notice of a meeting to be held on August 4, 1998 at which the members of the Ginoogaming First Nation would vote on whether or not to approve the decision to enter into the settlement agreement. It is not clear whether this meeting was required only because it was a condition in the settlement agreement, or whether the nature of the decision was such that the approval of the members was required by law. In any event, the meeting was held. The applicants allege that non-resident members were not allowed to speak or vote at the meeting.
[7] It also appears that Chief Judy Mayhew was informed on or around August 6, 1998 that the agreement had been approved at the August 4 meeting. Chief Mayhew is not an applicant. In August of 1998 she was Chief of a group called Hornepayne First Nation. That is an organization that is seeking recognition as a band under the Indian Act but has not yet achieved that objective. I understand that some but not all of the applicants are members of Hornepayne First Nation.
[8] Some of the evidence before me suggests that the members of Hornepayne First Nation are legally members of the Ginoogaming First Nation only because of events early in the century that failed to recognize the separate identity of the two groups. It appears that Hornepayne First Nation occupied some of the same hunting and fishing grounds as the Ginoogaming First Nation in certain seasons, including the area in which Ontario Hydro carried out the activities that led to the claims of Ginoogaming First Nation that are covered by the settlement agreement. As I understand it, the members of Hornepayne First Nation allege that the activities of Ontario Hydro forced them to abandon their customary area near Long Lake, which is why they are now based in Hornepayne.
[9] It appears to be common ground, based on the course of dealing between the Chief of the Ginoogaming First Nation and the Chief of the Hornepayne First Nation, that the applicants would have been informed of the decision to enter into the settlement agreement at or around the same time as Chief Mayhew. If that is so, then it seems reasonable to infer that the applicants knew, within a few days after August 6, 1998, that the decision to enter into the agreement had been made. It is probable that they knew of that fact by August 15, 1998, the date of the public signing ceremony.
[10] It also appears that the Chief of the Ginoogaming First Nation wrote a letter to Chief Mayhew on August 12, 1998 advising that a decision had been made to use the proceeds of the settlement agreement to benefit only the members of Ginoogaming First Nation who reside on the Ginoogaming Reserve. It is probable that the applicants knew of that decision also by August 15, 1998.
[11] If that is so, then the application for judicial review of both decisions could have been commenced as of right on September 14, 1998. The application for an extension of time was filed on March 15, 1999. That is a delay of approximately six months.
[12] Various reasons are offered as justification for the delay in commencing the application. It is said that the applicants did not have a copy of the band resolution or the agreement until February of 1999. That may be so. It is also said that the particulars of the settlement agreement and the intended use of the proceeds was not known to the applicants in August of 1998, except by rumour. I do not accept that.
[13] The particulars of the settlement agreement were summarized in the notice of the August 4, 1998 meeting and again in the material sent to Chief Mayhew on August 6, 1998. The August 4, 1998 material refers to the intention to use the proceeds of the settlement agreement for community purposes "on our Reserve" and describes particular projects that could only relate to projects on Reserve property. The August 6, 1998 material contains similar information and also includes a section entitled "Managing the Agreement." It clearly indicates that significant portions of the proceeds are intended to be used only for resident members. That includes the planned payments of $3,000 per year for five years to each elder resident in the community.
[14] In addition, a letter dated August 12, 1998 from Chief Echum to Chief Mayhew says (emphasis added):
| The direction that we have been given is to provide for members and elders that have membership and permanent residence within Ginoogaming First Nation. They will be entitled to any existing and future claims for the Ginoogaming First Nation. You as Chief must respect this decision as we respect you and the people you represent as Hornepayne First Nation. |
In my view, this is clear notice of a decision to limit the benefits of the agreement to resident members or, more specifically, to exclude members of Hornepayne First Nation.
[15] Thus, with respect to both the decision to enter into the settlement agreement and the decision as to the use of the proceeds, the applicants probably had sufficient information on or about August 15, 1998 to commence this application.
[16] Applicants' counsel argues that the applicants have been actively pursuing their remedies. They commenced an action in the Ontario Court (General Division) on November 27, 1998, and filed a motion for an injunction in January of 1999. It was argued that the applicants needed the time between August and November to collect money and retain and instruct counsel, and there is evidence to that effect.
[17] There is also evidence that as early as December 1, 1998, counsel for the respondents put the applicants' counsel on notice that he had commenced his action in the wrong court. I understand that proceedings in the Ontario Court have been adjourned pending the determination of this Court as to whether the settlement agreement was ulta vires.
[18] Chief Echum of Ginoogaming First Nation was made aware in 1996 of the continuing interest of the Hornepayne First Nation in the progress of the negotiations with Ontario Hydro. While Chief Mayhew wrote a letter in January of 1997 indicating that she and the Council of Hornepayne First Nation had adopted a stance of "non-interference" with respect to the settlement agreement, I cannot determine how much weight to put on that letter. First, it is said to be "without prejudice" and I have no explanation for that. Second, it is addressed to a lawyer who is not involved in these proceedings. I do not know anything about the context of that letter.
[19] The material before me discloses no evidence as to whether or not Ontario Hydro was made aware, before the commencement of the Ontario action, that there was any controversy of the kind that is the subject of these proceedings.
[20] Taking into account such evidence as I have of the history of the negotiations, the steps taken after August of 1998, the nature of the complaints raised and the remedies sought, and the understandable confusion prior to December 1998 as to jurisdiction and procedural matters, I cannot find that the delay in this case was unreasonable.
Are the decisions reviewable?
[21] Both of the impugned decisions were made by the Council of Ginoogaming First Nation. It is well established that a decision of a band council exercising or purporting to exercise its authority in matters of band governance is a proper subject of judicial review in this Court: Coalition to Save Northern Flood v. Canada, [1995] 9 W.W.R. 457 (Man. C. A.) and Gabriel v. Canatonquin, [1980] 2 F.C. 792 (F.C.A.). I have no basis for concluding that these decisions are not of that kind. Therefore, I conclude that the decisions are reviewable.
Is there an arguable case for the relief sought?
[22] As I understand it, the applicants' argument with respect to the decision to enter into the settlement agreement is that the Council acted beyond its powers in purporting to foreclose any future actions by members of Ginoogaming First Nation who will not be sharing in the proceeds of the settlement agreement. There are waiver and release provisions in the settlement agreement that appear to have that effect.
[23] I start from the proposition that a band council has a legal obligation to exercise its powers fairly and with an even hand, and is not entitled to make arbitrary decisions that benefit one group of members to the exclusion of another group. It is arguable that any decision to treat the applicants differently from other members of Ginoogaming First Nation is subject to being quashed on judicial review unless the difference in treatment can be justified.
[24] There are several clauses in the settlement agreement that refer to "members." However, there is nothing in the agreement that gives some members more benefits than others, or requires some members to give up more than others. I conclude that there is nothing in the settlement agreement itself that is capable of supporting the applicants' claim that the Council has improperly preferred one group of members over another. I conclude that the applicants have not demonstrated an arguable case with respect to the decision to enter into the settlement agreement.
[25] I cannot say the same of the Council's decision as to the use of the proceeds of the settlement agreement. In that regard there is clear evidence of a decision to treat different members of Ginoogaming First Nation differently depending on their residence and their membership in Hornepayne First Nation.
[26] It is possible that the history of Ginoogaming First Nation and Hornepayne First Nation will prove capable of justifying the different treatment. However, I cannot decide that on the material before me. I conclude that the applicants have demonstrated an arguable case with respect to the decision made by the Council of Ginoogaming First Nation to use the proceeds of the settlement agreement to benefit only resident members.
Is an extension of time necessary to do justice between the parties?
[27] Based on the considerations outlined above, an extension of time is necessary to do justice between the parties only with respect to the decision as to the use of the proceeds of the settlement agreement. Therefore, I will grant leave for an extension of time to apply for judicial review of that decision only.
Interim Injunction
[28] The applicants also seek an interim injunction restraining the Council from disbursing the proceeds of the settlement agreement pending the determination of its application for judicial review.
[29] I have already determined that the applicants have an arguable case and I also conclude that there is a serious question to be tried. Failing some restraint on the Council's authority to deal with the funds, there is a risk of irreparable harm to the applicants if the injunction is not granted.
[30] The question of the balance of convenience was addressed in argument on the basis that an injunction might be granted to stop the performance of obligations under the settlement agreement. Since I have declined to grant leave to commence an application for judicial review of the decision to enter into the settlement agreement, there will be no injunction of that kind.
[31] With respect to the use of the proceeds, the balance of convenience is best addressed by limiting the amount of the funds that is subject to the injunction. Counsel for the respondents argue that as there are 37 applicants and 704 members of Ginoogaming First Nation, only 5.4% of the proceeds should be subject to an interim injunction. That calculation would result in an injunction covering approximately $216,000.
[32] There is some logic in that solution, but it ignores the fact that there may be members other than the 37 applicants who would benefit from a favourable decision on this judicial review even though they are not applicants. It also assumes that all of the intended uses of the funds will result in direct distributions to members. That may be so with respect to some of the intended uses (such as the annual payments to elders, and perhaps the payment of scholarships and the funding of programs to aid the disabled), but it may not be true of such expenditures as the building of a cultural centre, programs for erosion protection and environmental monitoring, and debt payments.
[33] Based on the material before me, it appears that the interests of the applicants will be sufficiently protected, and Ginoogaming First Nation will not be unduly prejudiced, if the Court orders an interim injunction with respect to $300,000 of the proceeds of the settlement agreement. That amount is to be held in trust pending the resolution of this application for judicial review.
Subsequent steps
[34] The form of application for judicial review submitted in the motion record will require amendment so that it deals only with the decision as to the use of the proceeds. The applicants will file an amended application on or before May 28, 1999. Subject to further order of the Court, these proceedings will be governed by Part 5 of the Federal Court Rules, 1998.
[35] It is undisputed that the name of the one applicant who is not a member of the Ginoogaming First Nation should be removed from the style of cause. All future documents filed in this matter should reflect that change.
Karen R. Sharlow
Judge
Ottawa, Ontario
May 19, 1999