Date: 19980123
Docket: T-2078-97
BETWEEN:
LAC DES MILLE LACS FIRST NATION
and RODERICK SAWDO
Applicants
(Respondents on Motion)
- and -
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
(Applicant on Motion)
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application by the Minister of Indian Affairs and Northern Development which I entertained on the 22nd day of January, 1998.
[2] The Motion was for an Order dismissing the application as against the respondent without prejudice to the applicants' right to commence this application against one Lawrence Chapman and others purported to be the Councillors of the Lac des Mille Lacs Indian Band.
[3] The facts as submitted, though not yet proven, may be summarized as follows.
[4] Since 1972, the provisions of the Indian Act relating to the election of Band Councillors ceased to apply to the Lac des Mille Lacs Indian Band. As a result, the elections of Band Councillors has been in accordance with Band customs. The Minister of Indian Affairs and Northern Development has therefore no authority with respect to elections conducted pursuant to the Band's proceedings. Until the most recent election of April 27, 1996, the respondent had recognized all of the elections held by the members of Lac des Mille Lacs under Band customs. From 1990 until 1996, a number of resolutions were purportedly passed by a general members' meeting of the Band. One of those resolutions was to the effect, though not yet proven, that those elected would serve for a term of two years. Elections were held in April of 1996 and, according to counsel for the applicant, Mr. Roderick Sawdo was elected Chief, and John Heafey, Clarence McKenzie and Stacey O'Neil were elected Councillors.
[5] According to the applicant's counsel and the affidavit material, though the election was duly called and held under the supervision of an independent third party, a few weeks prior to polling the former Chief, Lawrence Chapman, apparently passed an unauthorized resolution extending his term of office and that of two Councillors for a further six months period beyond their mandate.
[6] The newly elected Chief and Councillors immediately notified the Respondent, the Minister of Indian Affairs and Northern Development, of the dispute and since that time funds which are generally provided by the Minister for the administration of various services afforded this Band were suspended resulting in the members of the Band generally being deprived of assistance and opportunities.
[7] I am satisfied that the Minister is not an interested party to this dispute and has given the assurance through counsel that no further sums would be advanced but would continue to be retained in trust for the benefit of this Band until such time as the dispute has been resolved.
[8] Counsel for the applicant advised the Court that when commencing this application she was not aware of any fixed address for Mr. Chapman as well as the following: Elizabeth Boucher, Ron Bachmier and James Nayanookeesic who hold themselves out as the Council of the Band.
[9] Counsel for the applicant filed with the Court a letter dated January 21, 1998 which is attached and marked as Exhibit A to these Reasons for Order and which she received from Mr. Francis J. Thatcher, of the firm Bird & Thatcher, who acknowledges that he is a solicitor and confirms that his client are Lawrence Chapman, Elizabeth Boucher, Ron Bachmier and James Nayanookeesic. In his correspondence he indicates that he takes no position with respect to the Minister of Indian Affairs and Northern Development being struck as a party to the application and appears to consent to his clients becoming the respondents since as he suggests "they hold themselves out as the proper and legal Council of the First Nation".
[10] I am satisfied that the Minister respondent is not a proper party to this dispute but should be bound by any eventual Order of this Court which would determine who in effect is the duly elected Chief and Councillors of the Lac des Mille Lacs First Nation Band and no sums of money should be advanced until a further Order of this Court.
[11] I am hereby striking the Minister of Indian Affairs and Northern Development as the party respondent and the following names should be substituted therefor:
Lawrence Chapman,
Elizabeth Boucher,
Ron Bachmier,
James Nayanookeesic,
the purported legally elected Band Council.
JUDGE
OTTAWA, Ontario
January 23, 1998