Date: 20001128
Docket: T-2391-88
BETWEEN:
LOUISE MARTEL, MARY GROSS, DORA THOMSON,
MONICA GLADEAU, MILDRED BARIL, CORA
ARNOLD, EMILY STOYKA, FLORA ANDERSON,
PATRICIA JONES, HAZEL FREEMAN, JOYCE P.
COOK, SARA SCHUG, ELIZABETH PERROTT, NORA
ORR, MARY MIERAU, MARLENE COURTOREILLE, and
JANICE WANDA LIGHTNING
Plaintiffs
- and -
CHIEF JIM OMEASOO, THE COUNCIL OF THE
SAMSON BAND and THE SAMSON BAND OF INDIANS,
and HER MAJESTY THE QUEEN IN RIGHT OF
CANADA and THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER
(Delivered from the bench at Edmonton, Alberta
on November 23, 2000)
HUGESSEN J.
[1] This is a motion brought by the Crown to strike paragraphs j, k, l and m and that part of paragraph f which refers to the United States of America in the third party notice which has been filed by the band. I here set out the relevant paragraphs:
| (f) The Band has determined who its citizens are, since time immemorial and continues to do so. It has conducted itself as, and been recognized as, a nation by the United States of America and by Great Britain and her Dominion of Canada. It is an inherent right of a nation to determine who its citizens are. |
| (j) At least as early as 1831, the Cree ancestors of the Band were recognized by the government of the United States of America as a nation. At the invitation of the government of the United States, Chief Maskeeptoon, Chief of the Cree ancestors of the Band, attended in Washington, D.C. and conducted talks with the government of the United States. |
| (k) In 1851, Chief Maskeeptoon who was also known as "Broken Arm", was present at and a party to, the Treaty of Fort Laramie between the government of the United states of America and the Chiefs of the Indian nations residing and hunting east of the Rocky Mountains and south of the Missouri River including the Sioux, Cheyennes, Arrapahoes, Crows, Assinaboines, Gros-ventre Mandans and Arrickaras as well as the Blackfoot, Crow, and Cree. The citizens of the nation who Chief Maskeeptoon represented, were determined by the nation or Band and not by the United States of America. |
| (l) In 1855, Chief Maskeeptoon was present at and a party to, the Treaty with the Blakfeet between the government of the United States and the Chiefs of the Indian nations who occupied for the purpose of hunting, the territory of the Upper Missouri and Yellowstone Rivers, including the Blackfoot Nation consisting of the Piegan, Blood, Blackfoot, and Gros Ventres, the Flathead nation consisting of the Flathead, Upper Pend D'Oreille and Kootenay, the Nez Perce, the Crows, the Assinboins, the Crees, the Snake, the San Arcs, and the Auncepa-pas bands of Sioux. The citizens of the nation who Chief Maskeeptoon represented, were determined by the nation or Band and not by the United States of America. |
[2] As I read them, these paragraphs amount to an assertion by the Band of a claim to international sovereignty and nationhood to international personhood, if you will.
[3] The test on a motion to strike is of course well known, it is that it must be plain and obvious to the Court which hears the motion that the claim or that part of it which is attacked cannot succeed if the matter is allowed to go forward to trial.
[4] In my view, that test is not met here. While it is no doubt true as counsel for the Crown moving party asserts that no court in Canada has ever recognized such a claim it is also the case that such claims have been recognized in other jurisdictions and unless and until authority in this country establishes that the claim cannot be entertained, I think, I must allow it to go forward, even though I entertained serious doubts as to its likelihood of success. I repeat again, the test is that it must be plain and obvious, beyond doubt that the claim cannot succeed.
[5] It is not, as I say, clear to me that the claim is doomed to fail. The allegations that the Band has in some way and to some extent had some form of sovereignty recognized to it by a foreign power and in particular by the United States of America, it is in my view clearly relevant to that claim. It is indeed one of the accepted test of international personality to ask if the person claiming such status has been recognized by others in the international community, and as I understand the impugned allegations here, they are an assertion that that is precisely what has happened to the Band in historical times.
[6] There is one final point that I would mention. This is the second motion to strike that the Crown has brought with respect to this third party claim. While I do not think the Crown is foreclosed from moving as it has, I do think that the fact that it did not take this point which if it had thought about it timely, it could and it should have taken at the time it brought its first motion to strike, that fact, I say, is one that I could properly take into account when exercising my discretion as to whether or not to grant the present motion to strike. Taking it into account as I do, and given the views I have already expressed, I conclude that the Crown's motion should be dismissed with costs.
Judge
Ottawa, Ontario
November 28, 2000