T-2327-97
BETWEEN:
ALEC CHINGEE, SHARON SOLONAS, TANIA SOLONAS,
ELIZABETH SOLONAS, and PATRICK PRINCE in their
capacity as Chief and Councillors of the
McLeod Lake Indian Band,
Plaintiffs,
- and -
HARRY CHINGEE, VICTOR CHINGEE, GILBERT CHINGEE,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS
and THE ATTORNEY GENERAL OF CANADA,
Defendants.
Let the attached certified transcript of my Reasons for Order delivered orally from the Bench at Vancouver, British Columbia on June 4, 1998, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Max M. Teitelbaum"
Judge
VANCOUVER, BC
June 5, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
(Before The Honourable Mr. Justice Teitelbaum)
VANCOUVER, B.C.
June 4, 1998
T-2327-97
BETWEEN:
ALEC CHINGEE, SHARON SOLONAS, TANIA SOLONAS, ELIZABETH SOLONAS, and PATRICK PRINCE in their capacity as Chief and Councillors of the McLeod Lake Indian Band,
Plaintiffs,
AND:
HARRY CHINGEE, VICTOR CHINGEE, GILBERT CHINGEE, THE MINISTER OF INDIAN AND NORTHERN AFFAIRS and THE ATTORNEY GENERAL OF CANADA,
Defendants.
MR. C. HARVEY, Q.C., Appearing for the Plaintiffs;
MR. S. ASHCROFT, Appearing for the Defendants, Harry Chingee, Victor Chingee and Gilbert Chingee;
MS. R. KYLE, Appearing for the Defendant the Attorney General of Canada.
REASONS FOR ORDER
TEITELBAUM, J.: (Orally)
I am going to allow the question of law to be submitted for the following reasons.
First, I am satisfied that it is ini the interest of justice that this question of law be heard as quickly as possible. I am satisfied after hearing the submissions made by the three of you today that there is, in my opinion, a good possibility that if this question of law is determined, it may lead to a settlement between the parties which is something, as I expressed the last time we met, should take place since this appears to be a fight amongst family and members of the Band.
So I am going to allow the question as submitted with the taking out, of course, the words "with regard to referendum". I entirely agree with the submission made by Ms. Kyle, that there are only two facts that have to be agreed to in order to have this legal question determined. "Is the McLeod Lake Indian Band a legal band," as she put it, "and is the band one governed by custom?". The only two relevant facts are that the McLeod Lake Indian Band is a Band, and there is no question of that, and "Is it a custom band?" and I think that there is no question as to that.
I do not agree with Mr. Ashcroft that it's important, in order to determine this legal question, to know what the custom is. That's not in issue with regard to the legal question as submitted.
I was going to suggest to Mr. Harvey that he not - - if I determine that there is a question to be determined, that we not proceed with the summary judgment because you don't have one and the other at the same time, and I think that was a wise decision to not proceed with regard to the summary judgment aspect.
Therefore I'm going to allow the following question: Does the McLeod Lake Indian Band, "the Band", have the authority (a) to determine the applicable custom whether electoral, heredity, or any other method for selection of a chief and council of the Band; (b) to settle the terms of such custom by majority decision of either the Band members attending a general meeting of the Band convened with notice?
MR. HARVEY: I think the word "either" should come out as well.
THE COURT: Oh, yes, okay. So to settle the terms of such question by majority decision of the Band members attending a general meeting of the Band convened with notice.
I'm giving you this decision from the bench because I know how urgent it is that you know where you stand. I normally would have preferred writing detailed reasons, but I don't think it's necessary in this particular case.
As I stated before, I am satisfied that the question as presently stated is a pure question of law, and can, and again I repeat, be useful in settling the entire dispute between the parties. I agree with Ms. Kyle's submission that deciding how custom is determined by a Band is a pure question of law. And I agree again with Ms. Kyle that the court is not going to decide what is the custom, what was the custom, or what will be the custom, but simply can a band determine its own custom by means of a meeting and causing a change. This had nothing whatsoever to say about what is the custom.
Having said that, the application is granted.
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2327-97
STYLE OF CAUSE: Alec Chingee, and others,
Plaintiffs,
- and -
Harry Chingee, and others,
Defendants.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF TEITELBAUM, J.
dated June 4, 1998
APPEARANCES:
Mr. Christopher Harvey for Plaintiff
Mr. Stan Ashcroft for Chingee Defendants
Ms. Rosanne Kyle for Attorney General of Canada
SOLICITORS OF RECORD:
Mr. Christopher Harvey
Russell & DuMoulinfor Plaintiff
Mr. Stan Ashcroft
Ganapathi, Ashcroftfor Defendant
George Thomson for Attorney General of Canada
Deputy Attorney General
of Canada