A-130-06
A-60-06
BETWEEN:
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, HER MAJESTY THE QUEEN, the ATTORNEY GENERAL OF CANADA, and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondents/Cross-Appellants
(Defendants)
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians
Respondents/Cross-Appellants
(Third Parties)
and
ERMINESKIN CREE NATION, Chief Gerald Robert Ermineskin, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the members of the Ermineskin Band of Indians
Respondents
(Third Parties)
AND BETWEEN:
A-130-06
SAMSON CREE NATION and Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Chief Lena Cutknife, and Dolphus Buffalo, Florence Buffalo, Kurt Buffalo, Pat Buffalo, Cecile Crier, Patrick Cutknife, Walter Lightning, Barbara B. Lightning, George Montour Sr., Donna Potts Johnson, Rose Saddleback and Marvin Yellowbird and Chief Florence Buffalo, suing on their own behalf and on behalf of all the members of the SAMSON CREE NATION, SAMSON BAND and SAMSON INDIAN BAND
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
Respondents/Cross-Appellants
(Defendants)
and
MONTANA BAND and Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Frederick Strongman, Coldy Sr. and Dick Rabbit, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
and
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the ERMINESKIN BAND OF INDIANS and ERMINESKIN CREE NATION
Respondents
(Third Parties)
AND BETWEEN:
A-60-06
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the ERMINESKIN BAND OF INDIANS and ERMINESKIN CREE NATION
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
Respondents/Cross-Appellants
(Defendants)
and
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians
Respondents
(Third Parties)
Heard at Ottawa, Ontario, on June 4, 5 and 6, 2007.
Judgment delivered from the Bench at Ottawa, Ontario, on June 6, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Dockets: A-129-06
A-130-06
A-60-06
Citation: 2007 FCA 218
CORAM: NOËL J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
A-129-06
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, HER MAJESTY THE QUEEN, the ATTORNEY GENERAL OF CANADA, and Her Majesty the Queen in Right of Canada as represented by the MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondents/Cross-Appellants
(Defendants)
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians
Respondents/Cross-Appellants
(Third Parties)
and
ERMINESKIN CREE NATION, Chief Gerald Robert Ermineskin, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the members of the Ermineskin Band of Indians
Respondents
(Third Parties)
AND BETWEEN:
A-130-06
SAMSON CREE NATION and Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Chief Lena Cutknife, and Dolphus Buffalo, Florence Buffalo, Kurt Buffalo, Pat Buffalo, Cecile Crier, Patrick Cutknife, Walter Lightning, Barbara B. Lightning, George Montour Sr., Donna Potts Johnson, Rose Saddleback and Marvin Yellowbird and Chief Florence Buffalo, suing on their own behalf and on behalf of all the members of the SAMSON CREE NATION, SAMSON BAND and SAMSON INDIAN BAND
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
Respondents/Cross-Appellants
(Defendants)
and
MONTANA BAND and Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Frederick Strongman, Coldy Sr. and Dick Rabbit, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
and
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the ERMINESKIN BAND OF INDIANS and ERMINESKIN CREE NATION
Respondents
(Third Parties)
AND BETWEEN:
A-60-06
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightning, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the ERMINESKIN BAND OF INDIANS and ERMINESKIN CREE NATION
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA
Respondents/Cross-Appellants
(Defendants)
and
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians
Respondents
(Third Parties)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on June 6, 2007)
[1] These are the reasons of the Court in Files A-129-06, A-130-06, and A-60-06. The original will be filed in A-129-06, and copies in the other two files.
[2] Despite the thorough arguments of counsel, the appeals will be dismissed substantially for the careful reasons given by Justice Hansen of the Federal Court. Her decision is reported as Montana Band v. Canada, 2006 FC 261.
[3] Most of the issues raised by the appellants are questions of fact, or of mixed fact and law, on which the Judge’s conclusions may be reversed on appeal only if vitiated by palpable and overriding error. We are not persuaded that she committed such errors. Nor are we satisfied that the Judge made any material error on a question of law. We would make only two observations on the issues argued before us.
[4] First, regardless of which party bore the burden of proof, and what was the relevant standard of proof, on the question of the continuation of the existence of the Bobtail Band, the Judge’s finding that there was “overwhelming evidence” that on or around October 1887 the Bobtail Band ceased to exist (paragraph 522 of the reasons) is fully dispositive of the issue.
[5] Second, with respect to the submissions made on behalf of the Samson Band and the Ermineskin Band that the Agreement of August 10, 1887, should be set aside as unconscionable or inconsistent with the honour of the Crown, we are not satisfied that, on the basis of the evidence, the terms of the Agreement were unconscionable or involved conduct on the part of the Crown that breached its duty to act honourably in its dealings with Aboriginal peoples. In reaching this conclusion, we have assumed, without deciding, that the Samson and Ermineskin Bands have standing to attack the propriety of an Agreement between other parties, namely Chief Bobtail and his family, and the Crown.
[6] For these reasons, the appeals will be dismissed with costs to the Crown and the three questions will be answered as the Trial Judge answered them, except that we express no opinion on whether the purported surrender, dated June 12, 1909, would have been valid if a surrender had been necessary. In these circumstances, the cross-appeals by the Crown are moot and will be dismissed for this reason, without costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-129-06
APPEAL FROM AN ORDER OF THE FEDERAL COURT (HANSEN, J.) DATED FEBRUARY 28, 2006, IN DOCKET NO. T-617-85.
STYLE OF CAUSE: Montana Band et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: June 4-6, 2007
REASONS FOR JUDGMENT OF THE COURT BY: Noël, Evans, & Sharlow, JJ.A.
DELIVERED FROM THE BENCH BY: Evans, J.A.
APPEARANCES:
|
Michael Aasen |
FOR THE APPELLANT
|
|
Joseph McArthur Roy Millen |
FOR THE RESPONDENT, Ermineskin Cree Nation et al.
|
|
David C. Rolf |
FOR THE RESPONDENT, Samson Cree Nation et al.
|
|
Sheila Read Krista Epton |
FOR THE RESPONDENT, Her Majesty the Queen |
SOLICITORS OF RECORD:
|
Calgary, Alberta |
FOR THE APPELLANT
|
|
Vancouver, British Columbia |
FOR THE RESPONDENT, Ermineskin Cree Nation et al.
|
|
Parlee McLaws LLP Edmonton, Alberta |
FOR THE RESPONDENT, Samson Cree Nation et al.
|
|
John H. Sims, QC Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT, Her Majesty the Queen
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-130-06
APPEAL FROM AN ORDER OF THE FEDERAL COURT (HANSEN, J.) DATED FEBRUARY 28, 2006, IN DOCKET NO. T-782-97.
STYLE OF CAUSE: Samson Cree Nation et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: June 4-6, 2007
REASONS FOR JUDGMENT OF THE COURT BY: Noël, Evans, & Sharlow, JJ.A.
DELIVERED FROM THE BENCH BY: Evans, J.A.
APPEARANCES:
|
David C. Rolf |
FOR THE APPELLANT
|
|
Maria Morellato Joseph McArthur Roy Millen |
FOR THE RESPONDENT, Ermineskin Cree Nation et al.
|
|
Michael Bailey Michael Aasen |
FOR THE RESPONDENT, Montana Cree Nation et al.
|
|
Sheila Read Krista Epton
|
FOR THE RESPONDENT, Her Majesty the Queen
|
SOLICITORS OF RECORD:
|
Parlee McLaws LLP Edmonton, Alberta |
FOR THE APPELLANT
|
|
Blake, Cassels & Graydon LLP Vancouver, British Columbia |
FOR THE RESPONDENT, Ermineskin Cree Nation et al.
|
|
Miller Thomson LLP Calgary, Alberta |
FOR THE RESPONDENT, Montana Cree Nation et al.
|
|
John H. Sims, QC Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT, Her Majesty the Queen
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-60-06
APPEAL FROM AN ORDER OF THE FEDERAL COURT (HANSEN, J.) DATED FEBRUARY 28, 2006, IN DOCKET NO. T-2804-97.
STYLE OF CAUSE: Ermineskin Cree Nation et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: June 4-6, 2007
REASONS FOR JUDGMENT OF THE COURT BY: Noël, Evans, & Sharlow, JJ.A.
DELIVERED FROM THE BENCH BY: Evans, J.A.
APPEARANCES:
|
Maria Morellato Joseph McArthur Roy Millen
|
FOR THE APPELLANT
|
|
Michael Bailey Michael Aasen |
FOR THE RESPONDENT, Montana Cree Nation et al.
|
|
David C. Rolf |
FOR THE RESPONDENT, Samson Cree Nation et al.
|
|
Sheila Read Krista Epton |
FOR THE RESPONDENT, Her Majesty the Queen
|
SOLICITORS OF RECORD:
|
Blake, Cassels & Graydon LLP Vancouver, British Columbia |
FOR THE APPELLANT
|
|
Miller Thomson LLP Calgary, Alberta
|
FOR THE RESPONDENT, Montana Cree Nation et al.
|
|
Parlee McLaws LLP Edmonton, Alberta |
FOR THE RESPONDENT, Samson Cree Nation et al.
|
|
John H. Sims, QC Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT, Her Majesty the Queen
|