CORAM: THE CHIEF JUSTICE
PRATTE J.A.
STONE J.A.
A-442-95
A-517-95
A-256-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Parliament Buildings, Ottawa, Ontario
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT,
Parliament Buildings, Ottawa, Ontario
THE MINISTER OF FINANCE,
Parliament Buildings, Ottawa, Ontario
Appellants
- and -
CHIEF VICTOR BUFFALO acting on his own behalf
and on behalf of all the other members
of the Samson Indian Nation and
THE SAMSON INDIAN BAND AND NATION
Respondents
A-519-95
A-535-95
A-254-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant
(Defendant)
- and -
CHIEF JEROME MORIN acting on his own behalf
as well as on behalf of all the
MEMBERS OF ENOCH'S BAND OF INDIANS
AND THE RESIDENTS THEREOF ON AND
OF STONY PLAIN RESERVE NO 135
Respondents
(Plaintiffs)
A-521-95
A-534-95
A-252-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE HONOURABLE THOMAS R. SIDDON,
Minister of Indian Affairs and Northern Development, and
THE HONOURABLE DONALD MAZANKOWSKI,
Minister of Finance
Appellants
(Defendants)
- and -
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT,
GORDON LEE, ART LITTLECHILD, MAURICE WOLFE,
CURTIS ERMINESKIN, GERRY ERMINESKIN,
EARL ERMINESKIN, RICK WOLFE, KEN CUTARM,
BRIAN LEE, LESTER FRAYN,
the elected chief and Councillors of the Ermineskin Band
and Nation suing on their own behalf and on behalf of
all the other members of the Ermineskin Band and Nation
Respondents
(Plaintiffs)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta,
on Wednesday, January 22, 1997)
PRATTE J.A.
These nine appeals, which were heard together pursuant to an order made by the Chief Justice, are directed against orders of the Trial Division in three actions brought against the Crown by three Indian Bands.
In each one of these actions, the judge issued three orders:
| (1) an order dismissing an application of the Crown for an order that the plaintiff Band be compelled to produce documents and answer questions on discovery with respect to the Band's investment and spending patterns; |
| (2) an order dismissing another application of the Crown that the plaintiff Band be required to produce documents and answer questions on discovery relating to the needs, the rates of return and investment strategies suitable for that part of their funds that was held for them by the Crown in the Consolidated Revenue Fund; and |
| (3) an order striking out, on the application of the plaintiff Band, a paragraph of the statement of defence of the Crown. |
As we indicated at the hearing, by telling counsel for the respondents that we needed to hear them only with respect to the appeals from the orders striking out part of the Crown's statements of defence, we are all of the view that the appeals from the orders dismissing the Crown's applications should be dismissed for the reasons given by the judge of first instance.
The other appeals are directed against orders striking out an identical paragraph of the Crown's statement of defence to each action. That paragraph contains the following allegation:
| "In those cases where the Plaintiffs have made their own investments of funds from the capital or revenue accounts, they have failed to obtain returns on investment as favourable as that obtained on the other funds left with the Crown." |
In order to appreciate the relevance of that allegation, it is necessary to recall that, in their long and convoluted statements of claim, the respondents claim, inter alia, that they are entitled to damages for the loss that they suffered by reason of the Crown's failure to manage and invest as it should have done monies that it held as trustee or fiduciary for their benefit. It is common ground that the above-quoted paragraph of the Crown's statement of defence is not relevant to that part of the respondents' claim. However, the Samson Band and the Enoch Band, in their statements of claim also assert that the Crown ought to have paid them the sums that it held for their benefit; they accordingly seek a mandatory injunction directing the Crown to pay them those monies. As their statements of claim do not disclose the basis for that allegation and that demand, it is reasonable to assume, in our opinion, that they are founded not only, as was argued by counsel for the respondents, on the Bands' allegation of unconstitutionality of the Indian Act, but also on the provisions of the Indian Act which confer on the Crown the discretion to transfer to Indian Bands the administration of their funds. The fact that a Band has, in the past, obtained an insufficient rate of return on its investments would clearly be a consideration that might justify the Crown's refusal to exercise that discretion in favour of that Band. It cannot be said, therefore, that the paragraph in question in the statements of defence of the Crown to the actions of the Samson and Enoch Bands, does not disclose a reasonable defence. The same cannot be said, obviously, of the same paragraph in the statement of defence to the action of the Ermineskin Band which did not seek the return of the monies held for them by the Crown.
For these reasons, the appeals against the order striking out paragraph 31 of the statement of defence of the Crown to the Samson Band's action and paragraph 30 of the Crown's statement of defence to the Enoch Band's action will be allowed and the other appeals will be dismissed.
"Louis Pratte"
J.A.
CORAM: THE CHIEF JUSTICE
PRATTE J.A.
STONE J.A.
A-442-95
A-517-95
A-256-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Parliament Buildings, Ottawa, Ontario
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT,
Parliament Buildings, Ottawa, Ontario
THE MINISTER OF FINANCE,
Parliament Buildings, Ottawa, Ontario
Appellants
- and -
CHIEF VICTOR BUFFALO acting on his own behalf
and on behalf of all the other members
of the Samson Indian Nation and
THE SAMSON INDIAN BAND AND NATION
Respondents
A-519-95
A-535-95
A-254-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant
(Defendant)
- and -
CHIEF JEROME MORIN acting on his own behalf
as well as on behalf of all the
MEMBERS OF ENOCH'S BAND OF INDIANS
AND THE RESIDENTS THEREOF ON AND
OF STONY PLAIN RESERVE NO 135
Respondents
(Plaintiffs)
A-521-95
A-534-95
A-252-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE HONOURABLE THOMAS R. SIDDON,
Minister of Indian Affairs and Northern Development, and
THE HONOURABLE DONALD MAZANKOWSKI,
Minister of Finance
Appellants
(Defendants)
- and -
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT,
GORDON LEE, ART LITTLECHILD, MAURICE WOLFE,
CURTIS ERMINESKIN, GERRY ERMINESKIN,
EARL ERMINESKIN, RICK WOLFE, KEN CUTARM,
BRIAN LEE, LESTER FRAYN,
the elected chief and Councillors of the Ermineskin Band
and Nation suing on their own behalf and on behalf of
all the other members of the Ermineskin Band and Nation
Respondents
(Plaintiffs)
Heard at Edmonton, Alberta, on Wednesday, January 22, 1997.
Judgment rendered from the Bench on Wednesday, January 22, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: PRATTE J.A.
IN THE FEDERAL COURT OF APPEAL
A-442-95/A-517-95/A-256-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Parliament Buildings, Ottawa, Ontario
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
Parliament Buildings, Ottawa, Ontario
THE MINISTER OF FINANCE,
Parliament Buildings, Ottawa, Ontario
Appellants
- and -
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of
all the other members of the Samson Indian Nation and
THE SAMSON INDIAN BAND AND NATION
Respondents
A-519-95/A-535-95/A-254-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant/(Defendant)
- and -
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the
MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS
THEREOF ON AND OF STONY PLAIN RESERVE NO 135
Respondents/(Plaintiffs)
A-521-95/A-534-95/A-252-96
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE HONOURABLE THOMAS R. SIDDON,
Minister of Indian Affairs and Northern Development, and
THE HONOURABLE DONALD MAZANKOWSKI,
Minister of Finance
Appellants/(Defendants)
- and -
| CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYN, the elected chief and Councillors of the Ermineskin Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Band and Nation |
Respondents/(Plaintiffs)
REASONS FOR JUDGMENT
OF THE COURT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NOS.: A-442-95, A-517-95, A-256-96, A-519-95, A-535-95, A-254-96, A-521-95, A-534-95, A-252-96
STYLE OF CAUSE: Her Majesty the Queen v. Chief Victor Buffalo et al.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 22, 1997
REASONS FOR JUDGMENT OF THE COURT(Chief Justice, Pratte, Stone JJ.A.)
DELIVERED FROM THE BENCH BY: Pratte, J. A.
APPEARANCES:
Mr. Alan D. MacLeod, Q.C.. for Her Majesty the Queen Mr. Clarke Hunter
Mr. James O'Reilly for Chief Victor Buffalo & the Mr. François Joyal Samson Indian Band and Nation Mr. Edward H. Molstad, Q.C.
Mr. Marvin R.V. Storrow, Q.C.for Chief John Ermineskin & the
Ms. Maria Morellato Ermineskin Band & Nation
No one appearing for Chief Jerome Morin & the Enoch's Band
SOLICITORS OF RECORD:
Macleod Dixon for Her Majesty the Queen Calgary, Alberta
O'Reilly & Associés Montréal , Quebec
Parlee McLaws Edmonton, Alberta
Rae & Company for Chief Victor Buffalo & the
Calgary, AlbertaSamson Indian Band & Nation
Blake Cassels & Graydon for Chief John Ermineskin & the
Vancouver, B.C. Ermineskin Band & Nation
Biamonte Cairo & Shortreed for Chief Jerome Morin & the
Edmonton, Alberta Enoch's Band