Federal Court Decisions

     T-714-95

Between:

     ROBERT ANDY, CHARLES NELSON, CECIL MOODY,

     SIMON SCHOONER, BRUCE SIWALLACE and DERIC SNOW,

     Applicants,

     - and -

     CYNTHIA HANUSE, HARVEY MACK, ARCHIE POOTLASS,

     ARTHUR SAUNDERS, ROBERT SCHOONER AND FRANK WEBBER,

     Respondents.

     REASONS FOR ORDER

DUBÊ, J.

     This application is for an order that a Writ for Sequestration issue as against all of the property of the respondent Archie Pootlass and that he be committed to a term of imprisonment for a term of 40 days on the grounds that he has on numerous and diverse occasions since May 6, 1995 wilfully disobeyed the order of Mr. Justice Joyal pronounced in these proceedings on May 5, 1996.

     This matter has followed a tortuous procedural route starting with an Originating Notice of Motion filed in the Whitehorse Registry of this Court on April 10, 1995 seeking to quash a decision of the Nuxalk Nation Band Council. On May 5, 1995 Mr. Justice Joyal granted an order to the applicants ordering the respondent Chief Archie Pootlass and the Band Councillors to schedule at least one council meeting a month, to comply with their duties under the Indian Act and to maintain open communications with the Administrative Office. On October 16, 1995, Mr. Justice Cullen granted the applicants a 60 day extension to file their application record in the aforementioned judicial review proceedings. The applicants failed to file their record within the extension and Mr. Justice Denault denied a further extension on February 20, 1996. On March 14, 1996 Mr. Justice McKay ordered that the applicants show cause why the judicial review proceedings ought not to be dismissed as a result of Mr. Justice Denaults order. On March 21, 1996 the applicants filed an appeal of the order of Mr. Justice Denault and on that date the applicants also filed a motion for a Writ of Sequestration and a commitment to gaol for the alleged disobedience of the respondent Archie Pootlass with respect to the order of Mr. Justice Joyal.

     That motion of sequestration and committal under Rules 1903 and 1905 of the Federal Court was heard by Mr. Justice Pinard on April 15, 1996. Mr. Pinard, J. ordered as follows:

The motion is adjourned sine die to allow full compliance with Rules 1905(2)(a) and 1905(4)(a) and the final disposition of the appeal of Mr. Justice Denault's Order. Furthermore, the motion will not be heard unless both the Applicants and Respondent Archie Pootlass, file a memorandum of fact and law at least one week before the hearing.

(my emphasis)

     In accordance with Pinard, J.'s order the applicants complied with Rules 1905(2)(a) and 1905(4)(a) and filed a brief of argument on January 17, 1997 (only three days before the hearing). They also filed on January 17, 1997 the instant notice of motion for sequestration and committal against the respondent Archie Pootlass. However, they have not fully complied with the order of Pinard, J. as they have not awaited the final disposition of the appeal of Mr. Justice Denault's order before filing this application. Neither have the applicants, in their written brief of argument or in their oral presentation at the hearing, advanced any persuasive arguments to the effect that this additional condition imposed by Pinard, J. ought to be set aside or otherwise disregarded. Consequently this application must be dismissed.

     Furthermore, it ought to be pointed out that there will be an election of the Nuxalk Nation Band Council in early February. Thus, if the majority of the electors are not satisfied with the performance of their present Chief, as the applicants claim, this will be a timely opportunity to resolve the matter.

     The motion is denied.

                             (Sgd.) "J.E. Dubé"

                                 J.F.C.C.

Vancouver, British Columbia

January 20, 1997