Date: 19990512
Docket: T-573-99
BETWEEN:
MELVIN ISNANA
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
AS REPRESENTED BY
THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS and
MARJORIE TAWIYAKA
Defendants
REASONS FOR ORDER AND ORDER
SHARLOW J.
[1] The plaintiff claims to be the Chief of Standing Buffalo Dakota Nation and is seeking an interim injunction to stop an election for Chief which is scheduled to be held on Saturday, May 15, 1999.
[2] I have concluded that no injunction should be issued. The election should be held on May 15, 1999 as scheduled.
[3] The result of that election will determine who is Chief from that date, unless there is a successful appeal to the Senate Council pursuant to the Standing Buffalo Dakota Nation Election Act, or this Court determines in subsequent proceedings that the election is invalid or that its result should not stand.
[4] Counsel for Mr. Isnana raised several arguments that challenge the validity of the decision made on March 31, 1999 to call the election for May 15, 1999. Issues are raised as to who called the meeting, who attended, who voted. On all of these factual issues there is conflicting evidence in affidavits that have not been the subject of cross-examination. Key documents are ambiguous. I have insufficient reliable evidence as to the customary rules of Council. No explanation was offered as to why the decision made on March 31, 1999 was not challenged until this motion was filed on May 10, 1999. I cannot conclude, on the evidence before me, that there is a fatal error in the manner in which the election was called.
[5] As I see it, the root of the problem with the governance of the Standing Buffalo Dakota Nation is that there are differences of opinion, which appear to be honestly held, as to whether Mr. Isnana is now the Chief.
[6] The defendant Ms. Tawiyaka, Chair of the Senate Council, believes he is not the Chief, and she has some reason to believe that. Other members of Senate Council appear to agree. The Minister is on record as accepting the opinion of Ms. Tawiyaka. The six elected Councillors appear to have conflicting opinions on the point. Mr. Isnana himself and some others believe that Mr. Isnana is the Chief, and they have some reason to believe that.
[7] The documents submitted to me establish that Mr. Isnana was elected in November of 1998. The documents also establish that there were subsequent events that may or may not have resulted in removing him from office. There was an attempt to appeal the election to the Senate Council that may or may not have been valid. There may have been conflicting decisions of the Senate Council in December of 1998, one or both of which may have been invalid.
[8] In reasons for judgment issued April 15, 1999 in another interlocutory motion in this matter, I indicated that I did not have sufficient evidence to determine whether Mr. Isnana is the Chief or not.
[9] Those who believe Mr. Isnana is the Chief apparently took my April 15, 1999 decision as confirmation that he is the Chief. Those who believe the contrary, took my decision as confirmation that he is not the Chief. It bears repeating that I did not have sufficient evidence, on April 15, 1999, to determine whether Mr. Isnana was the Chief as of April 15, 1999.
[10] The sad fact is that I still do not have enough evidence to determine whether he is Chief. All I have before me are conflicting affidavits, untested by cross-examination, that leave many important factual questions unresolved. The uncertainty as to whether Mr. Isnana is the Chief or not has led to difficulties in the governance of Standing Buffalo Dakota Nation that will not be resolved if the election is stopped.
[11] The purpose of an interlocutory injunction is to preserve the status quo until the final disposition of the action commenced by the plaintiff. The usual starting point for consideration of an interlocutory injunction, the status quo, is unknown to me.
[12] The jurisprudence on interlocutory injunctions sets out three factors that should be taken into account. These are (1) whether there is a serious issue to be tried, (2) whether the plaintiff will suffer irreparable harm if the injunction is not granted, and (3) whether the balance of convenience favours granting the injunction.
[13] Dealing with the last of those first, it seems to me that given my conclusions on the difficulty of determining the status quo, the balance of convenience favours denying the injunction. That would be sufficient to resolve this application against Mr. Isnana, but as the other issues were fully argued I will comment on them as well.
[14] With respect to the claims against Ms. Tawiyaka, the conflicting interpretations of the events between last November and the present afford ample scope for issues that could be the subject of legal proceedings. However, counsel for Ms. Tawiyaka argues that Mr. Isnana is barred from claiming the relief he seeks because he has chosen to follow the wrong procedure. He argues that Mr. Isnana should have commenced an action for judicial review, challenging the decision of the Senate Council or the March 31, 1999 decision to call the election. If that is correct, then Mr. Isnana is not entitled to claim any relief against Ms. Tawiyaka in this action.
[15] Mr. Isnana's counsel says that because Mr. Isnana is challenging the acts of Ms. Tawiyaka that are allegedly unauthorized or unlawful, he is not limited to judicial review. However, the evidence indicates that Ms. Tawiyaka has throughout been acting in her capacity as Chair of the Senate Council, and that other decisions that form the basis of Mr. Isnana's complaints are or purport to be acts of the Senate Council or the Council. That is the very kind of decision that should be dealt with by way of judicial review. If that is so, then as far as the claims against Ms. Tawiyaka are concerned, there is no serious issue to be tried.
[16] Mr. Isnana's claims against the Minister are based on the theory that the Minister or his officials have wrongfully interfered in band affairs. The factual foundation for that claim is found in a number of letters. One was the subject of the previous motion, and I found fault with the Minister for writing a letter that gave a false impression of the Minister's authority over the determination of holders of elected offices. However, none of the other letters cited by Mr. Isnana's counsel can be criticized on that score. At most, it can be said that the Minister has not kept all of his officials properly notified of events at the Standing Buffalo Dakota Nation.
[17] As to the one letter that was the subject of the previous motion, there is ample evidence that the Minister is and always has been well aware of the limits of his authority with respect to the affairs of the Standing Buffalo Dakota Nation. Mr. Isnana's counsel argued that until that letter was received, there was no talk of a new election, and but for that letter Mr. Isnana would have retained his office as Chief. I do not accept that. The difference of opinion as to Mr. Isnana's entitlement to that office has numerous grounds. The letter may have strengthened the resolve of Ms. Tawiyaka and others who agree with her, but her opinion may yet prove to be justified. On the material before me, I cannot conclude that the letter can be the basis of a cause of action against the Minister.
[18] Nor can I accept that Mr. Isnana will suffer irreparable harm if the election is held. It remains open to him to seek his remedies in judicial review (if he can obtain leave for a late application) and whatever other remedies he believes he is entitled to in this action.
[19] The application is denied. The plaintiff will bear the costs of this motion.
"Karen R. Sharlow"
J.F.C.C.
Toronto, Ontario
May 12,1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-573-99
| STYLE OF CAUSE: MELVIN ISNANA |
Plaintiff
| - and - |
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AND NORTHERN AFFAIRS and MARJORIE TAWIYAKA |
Defendants
DATE OF HEARING: WEDNESDAY, MAY 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND ORDER BY: SHARLOW J.
DATED: WEDNESDAY, MAY 12, 1999
APPEARANCES: Mr. Tony Merchant
For the Plaintiff
Mr. Dale Kohlenberg
For the Defendant,
| Her Majesty The Queen In Right Of Canada As Represented By The Minister Of Indian And Northern Affairs |
| Mr. Terry Jordan |
| For the Defendant, |
| Marjorie Tawiyaka |
SOLICITORS OF RECORD: Merchant Law Group
| Barristers & Solicitors |
| 100-2401 Saskatchewan Drive |
| Regina, Saskatchewan |
| S4P 4H8 |
For the Plaintiff
| Morris Rosenberg |
| Deputy Attorney General of Canada |
For the Defendant,
| Her Majesty The Queen In Right Of Canada As Represented By The Minister Of Indian And Northern Affairs |
| Willows, Tulloch & Howe |
| Barristers & Solicitors |
| 300-533 Victoria Avenue |
| Regina, Saskatchewan |
| S4N 0P8 |
| For the Defendant, |
| Marjorie Tawiyaka |
FEDERAL COURT OF CANADA
Date: 19990512
Docket: T-573-99
Between:
| MELVIN ISNANA |
Plaintiff
| - and - |
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AND NORTHERN AFFAIRS and MARJORIE TAWIYAKA |
Defendants
REASONS FOR ORDER
| AND ORDER |