Callihoo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (2006) 402 A.R. 1 (QB)

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 03, 2006
• Citations: (2006), 402 A.R. 1 (QB);2006 ABQB 1

Callihoo v. Can. (2006), 402 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AP.109

Dennis Callihoo and Rosalind Callihoo, acting on their own behalf and on behalf of all members of the Michel First Nation, and on behalf of all members of the former Michel Indian Band No. 472 and the Descendants of Members of the former Michel Indian Band No. 472 (plaintiffs/respondents) v. Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development and Her Majesty the Queen in Right of Alberta (defendants/applicants)

(0103 05606; 2006 ABQB 1)

Indexed As: Callihoo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

January 3, 2006.

Summary:

In 2001, the plaintiffs sued the federal and Alberta Crowns, claiming various rights as representatives and descendants of the former Michel Indian Band No. 472. All members of the Band were enfranchised in 1958. The plaintiffs claimed for wrongful taking of land, breaches of fiduciary and fiduciary-like duties, accounting, breach of Treaty rights and breach of constitutional rights which included breach of ss. 15 and 35 of the Constitution Act, 1982. The claims covered both pre-1958 and post 1958 circumstances. Canada and Alberta moved for a summary judgment to dismiss the action.

The Alberta Court of Queen's Bench allowed the motion except in respect of the plaintiffs' claims against Canada pursuant to ss. 15 and 35 of the Constitution Act, 1982.

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Métis - The Michel Indian Band No. 472 was enfranchised in 1958 - Members lost their Indian status - The Band ceased to exist - By virtue of 1985 amendments to the Indian Act, Indian status was restored but not membership in the Michel Band or the Michel First Nation - Representatives and descendants of Band members claimed that this violated their equality rights under s. 15 of the Charter in that they were denied the benefit of the law that was provided to Indians who were members of Bands - The Alberta Court of Queen's Bench, ruling on a motion for summary judgment, held that the plaintiffs' claim was not bound to fail - See paragraphs 102 to 111.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See Indians, Inuit and Métis - Topic 5408 ].

Indians, Inuit and Métis - Topic 506

Rights - General - Constitution Act, 1982, s. 35, interpretation - Representatives and descendants of the Michel Indian Band No. 472, enfranchised in 1958, invoked s. 35 of the Constitution Act, 1982, and claimed entitlement to the benefits of Treaty No. 6 - The Alberta Court of Queen's Bench, ruling on a motion for summary judgment, held that the plaintiffs' claim was not bound to fail - See paragraphs 112 to 120.

Indians, Inuit and Métis - Topic 2120

Nations, tribes and bands - Bands - Enfranchisement - The Alberta Court of Queen's Bench discussed the enfranchisement of Indian Bands and more particularly the enfranchisement of the Michel Indian Band No. 472 in 1958 - See paragraphs 61 to 68.

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - General - Extinguishment - The Alberta Court of Queen's Bench discussed the question of whether treaty rights under Treaty No. 6 were extinguished by the Enfranchisement of the Michel Indian Band No. 472 in 1958 - The court held that even by the most generous interpretation of the purpose of Treaty 6, the Treaty did not contemplate that Band membership and recognition under federal legislation would remain inalienable - See paragraphs 82 to 88.

Indians, Inuit and Métis - Topic 5402

Lands - General - Disposition of Indian lands - The Michel Indian Band No. 472 was enfranchised in 1958 - Some Band Lands were allocated to Band members - The road allowances were transferred to the Alberta Crown - Unallocated lands were transferred to a corporation that would hold them on behalf of the former Band members - The plaintiffs, representatives and descendants of Band members, argued that the only methods for disposal of lands under the Indian Act were surrender and expropriation - The Alberta Court of Queen's Bench rejected the argument - Enfranchisement was a separate and self-standing method of disposal - It would be illogical to require that the voting process for "surrender" be superimposed as a secondary approval process, before a Band could disburse land to its own members by enfranchisement - See paragraphs 78 and 79.

Indians, Inuit and Métis - Topic 5408

Lands - General - Whether subject to trusts - The plaintiffs were the representatives and descendants of the Michel Indian Band No. 472, which was enfranchised in 1958 - They argued that the court ought to superimpose the honour of the Crown to require that any Band interest or entitlement in land not dealt with expressly by the terms of the Enfranchisement remained extant and attributable in some form to the descendants, regardless of the intention of the parties at the time of the Enfranchisement - More particularly, the plaintiffs sought redress respecting reserve lands surrendered by the Crown in 1911, allegedly without consent or adequate compensation and in breach of the Crown's fiduciary obligations - The Alberta Court of Queen's Bench rejected the argument and dismissed the claim - No case authority existed to support the proposition that a trust-like fiduciary obligation on the Crown could survive and continue to a Band which, by its own voluntary terms, ceased to exist after full Band enfranchisement - There was no support for a court to superimpose an on-going fiduciary or trust-like duty on the Crown in respect of matters which pre-dated the enfranchisement - Any residual rights to the land were collective rights belonging to a "band" as defined to the Indian Act - The plaintiffs did not meet that definition - See paragraphs 69 to 81, 89 to 96.

Indians, Inuit and Métis - Topic 5506

Lands - Reserves or Métis lands - Nature of Indian interest in - [See Indians, Inuit and Métis - Topic 5408 ].

Limitation of Actions - Topic 10

General principles - Nature of action - Effect of - [See Limitation of Actions - Topic 1905 ].

Limitation of Actions - Topic 1905

Actions - General - Breach of fiduciary duty - In 1911, the federal Crown surrendered some reserve lands of the Michel Indian Band No. 472 - In 1958, the Michel Indian Band No. 472 was enfranchised - Some Band Lands were allocated to Band members - The road allowances were transferred to the Alberta Crown - Unallocated lands were transferred to a corporation that would hold them on behalf of the former Band members - In 2001, the plaintiffs, representatives and descendants of Band members, sued the federal Crown for breach of fiduciary duty respecting the 1911 surrender - They sought a declaration that the land was wrongfully taken without consent and contrary to Treaty 6 and in breach of Canada's fiduciary obligations - They also sought a declaration that they were entitled to compensation for the taking of the lands in 1911 - The plaintiffs also sued the provincial Crown for breach of fiduciary duty - They sought a declaration that the provincial Crown held property for the use and benefit of, or in trust for, the plaintiffs - Finally, the plaintiffs sought a declaration that they were entitled, on Charter grounds, to file claims under the federal Crown's Specific Claims Policy - The Alberta Court of Queen's Bench ruled that the claims respecting the lands were statute barred  - The essential thrust of these claims was not aimed at declaratory relief, but at judgment, and therefore those claims would have been subject to limitation periods - However, no limitations applied if property remained with Canada for the Band's benefit - The claim respecting the Specific Claim Policy was appropriate for declaratory relief and was not subject to limitation periods - See paragraphs 134 to 156.

Limitation of Actions - Topic 1907

Actions - General - Declaratory relief - [See Limitation of Actions - Topic 1905 ].

Limitation of Actions - Topic 7581

Actions against the Crown - Applicability of limitation period - General - In 1911, the federal Crown surrendered some reserve lands of the Michel Indian Band No. 472 - In 1958, the Michel Indian Band No. 472 was enfranchised - Some Band Lands were allocated to Band members - The road allowances were transferred to the Alberta Crown - Unallocated lands were transferred to a corporation that would hold them on behalf of the former Band members - In 2001, the plaintiffs, representatives and descendants of Band members, sued the federal Crown for breach of fiduciary duty respecting the 1911 surrender - They sought a declaration that the land was wrongfully taken without consent and contrary to Treaty 6 and in breach of Canada's fiduciary obligations - They also sought a declaration that they were entitled to compensation for the taking of the lands in 1911 - The plaintiffs also sued the provincial Crown for breach of fiduciary duty - They sought a declaration that the provincial Crown held property for the use and benefit of, or in trust for, the plaintiffs - Finally, the plaintiffs sought a declaration that they were entitled, on Charter grounds, to file claims under the federal Crown's Specific Claims Policy - The Alberta Court of Queen's Bench ruled that the Limitation of Actions Act, R.S.A. 1980, c. L-15 governed the claims in this action, having been discoverable before March 1, 1999 - See paragraphs 127 to 133.

Limitation of Actions - Topic 7582

Actions against the Crown - Applicability of limitation period - Charter remedies - [See Limitation of Actions - Topic 1905 ].

Limitation of Actions - Topic 7584

Actions against the Crown - Applicability of limitation period - Exercise of statutory or other public duty - [See Limitation of Actions - Topic 1905 ].

Practice - Topic 5705

Judgments and orders - Summary judgments - Requirement that question at issue be beyond doubt - [See Civil Rights - Topic 5646 and Indians, Inuit and Métis - Topic 506 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - In 2001, the plaintiffs sued the federal and Alberta Crowns, claiming various rights as representatives and descendants of the former Michel Indian Band No. 472 - All members of the Band were enfranchised in 1958 - The plaintiffs claimed for wrongful taking of land, breaches of fiduciary and fiduciary-like duties, accounting, breach of Treaty rights and breach of constitutional rights which included breach of ss. 15 and 35 of the Constitution Act, 1982 - The claims covered both pre-1958 and post-1958 circumstances - Canada moved for a summary judgment to dismiss the action - Canada filed an affidavit by Kohan, assigned litigation project manager for this action - Kohan stated that he had personal knowledge of matters deposed to except where otherwise stated - He asserted that he coordinated the records research and collection activities for Canada as conveyed by employees and contractors assigned to research relevant departmental files - Materials enclosed with the Kohan affidavit included reports and correspondence relating to the 1958 enfranchisement and materials  relating to disposal of land - Finally, Kohan asserted his belief based on the review of the material that there was no merit to the plaintiffs' claims and that he was not aware of any facts that would substantiate the action - The Alberta Court of Queen's Bench ruled that the Kohan affidavit complied sufficiently with the Rules of Court for consideration in summary judgment applications - See paragraphs 24 to 30, 37 to 56.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - In 2001, the plaintiffs sued the federal and Alberta Crowns, claiming various rights as representatives and descendants of the former Michel Indian Band No. 472 - All members of the Band were enfranchised in 1958 - The plaintiffs claimed for wrongful taking of land, breaches of fiduciary and fiduciary-like duties, accounting, breach of Treaty rights and breach of constitutional rights which included breach of ss. 15 and 35 of the Constitution Act, 1982 - The claims covered both pre-1958 and post-1958 circumstances - Alberta moved for a summary judgment to dismiss the action - Alberta filed an affidavit by Graham - Graham stated that he was a research coordinator with Alberta, with personal knowledge of the matters except where stated otherwise - He asserted that he organized and coordinated the records of Alberta and the collection of those records, including the documents disclosed in the affidavits of records of all parties, as well as the affidavit by Kohan, filed in support of Canada's motion for summary judgment - The Alberta Court of Queen's Bench ruled that the Graham affidavit complied sufficiently with the Rules of Court for consideration in summary judgment applications - See paragraphs 32 to 56.

Cases Noticed:

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67; 1998 ABCA 232, refd to. [para. 20].

Prefontaine v. Veale et al. (2003), 339 A.R. 340; 312 W.A.C. 340 (C.A.), refd to. [para. 20].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 20].

Papaschase Indian Band (Descendants of) v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 1; 2004 ABQB 655, refd to. [para. 20].

Jager Industries Inc. v. Canadian Occidental Petroleum Ltd. et al. (2000), 273 A.R. 1; 2000 ABQB 592, refd to. [para. 21].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, consd. [para. 22].

Fidkalo v. Levin (1992), 76 Man.R.(2d) 267; 10 W.A.C. 267 (C.A.), consd. [para. 22].

Western Canadian Place Ltd. et al. v. Con- Force Products Ltd. et al. (1997), 208 A.R. 179; 34 C.L.R.(2d) 139 (Q.B.), refd to. [para. 23].

First Investors Corp. and Associated Investors of Canada Ltd. v. Quinpak Developments Ltd. (1985), 37 Alta. L.R.(2d) 331 (Q.B.), refd to. [para. 38].

Yellowbird v. Samson Cree Nation No. 444 et al. (2003), 349 A.R. 208; 2003 ABQB 535, refd to. [para. 39].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2002 ABCA 110, refd to. [para. 39].

Bank of Montreal v. Kalin (1992), 131 A.R. 397; 25 W.A.C. 397 (C.A.), refd to. [para. 46].

Alberta (Treasury Branches) v. Leahy et al. (1999), 234 A.R. 201; 1999 ABQB 185, refd to. [para. 49].

Sherritt Gordon Ltd. v. Dresser Canada Inc. et al. (1994), 20 Alta. L.R.(3d) 407 (Q.B.), refd to. [para. 50].

Jason Development Corporation Ltd. and Brookdale Investments Ltd. v. Robertoria Properties Ltd. (1980), 42 A.R. 369 (Q.B. Master), refd to. [para. 55].

Owners-Condominium Plan No. 9421549 v. Main Street Developments Ltd. et al. (2004), 365 A.R. 162; 2004 ABQB 962, consd. [para. 55].

Blueberry River Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) (1999), 171 F.T.R. 91 (T.D.), affd. (2001), 274 N.R. 352; 2001 FCA 309, consd. [para. 59].

Chief Chipeewayan Indian Band v. Canada (2002), 291 N.R. 314 (F.C.A.), refd to. [para. 59].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 4 S.C.R. 344; 190 N.R. 89, consd. [para. 72].

Chippewas of Kettle and Stony Point v. Canada (Attorney General) et al. (1996), 95 O.A.C. 365; 31 O.R.(3d) 97; 141 D.L.R.(4th) 1 (C.A.), affd. [1998] 1 S.C.R. 756; 226 N.R. 121; 109 O.A.C. 321; 163 D.L.R.(4th) 189,  refd to. [para. 73].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 74].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, consd. [para. 74].

Oregon Jack Creek Indian Band Chief v. Canadian National Railway Co. (1989), 56 D.L.R.(4th) 404 (B.C.C.A.), affd. [1989] 2 S.C.R. 1069; 102 N.R. 76; 63 D.L.R.(4th) 607, consd. [para. 86].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 99].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 99].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1 (S.C.C.), refd to. [para. 99].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, consd. [para. 102].

Misquadis v. Canada - see Ardoch Algonquin First Nation et al. v. Canada (Attorney General).

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2003] 2 F.C. 350;  223 F.T.R. 161; [2003] 1 C.N.L.R. 67 (T.D.), affd. [2004] 2 F.C.R. 108; 315 N.R. 76; 2003 FCA 473, refd to. [para. 103].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, consd. [para. 104].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 114].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 115].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 117].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 53; 338 W.A.C. 53; 2004 SCC 73, consd. [para. 117].

Haida Nation v. British Columbia (Minister of Forests) et al. (2002), 172 B.C.A.C. 75; 282 W.A.C. 75; 2002 BCCA 462, refd to. [para. 122].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; 64 D.L.R.(4th) 577, refd to. [para. 123].

Chippewas of the Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) et al. (1999), 251 N.R. 220 (F.C.A.), refd to. [para. 123].

Stoney Indian Band v. Canada (2005), 329 N.R. 201; 249 D.L.R.(4th) 274 (F.C.A.), refd to. [para. 123].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, consd. [para. 129].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, consd. [para. 129].

James H. Meek Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 2005 ABCA 448, refd to. [para. 135].

Hill v. Registrar of South Alberta Land Registration District, [1993] 5 W.W.R. 47; 135 A.R. 266; 33 W.A.C. 266; 100 D.L.R.(4th) 331 (C.A.), leave to appeal denied (1994), 170 N.R. 79; 162 A.R. 159; 83 W.A.C. 159 (S.C.C.),  consd. [para. 135].

Kloepfer Wholesale Hardware and Automotive Co. v. Roy, [1952] 2 S.C.R. 465, refd to.  [para. 141].

Turta v. Canadian Pacific Railway Co. and Imperial Oil Ltd., [1954] S.C.R. 427, refd to. [para. 145].

King Estate v. Buckle, 1999 ABCA 343, refd to. [para. 145].

Huang v. Telus Corp. Pension Plan (Trustees of) - see Huang et al. v. Drinkwater et al.

Huang et al. v. Drinkwater et al. (2005), 372 A.R. 336; 2005 ABQB 40, consd. [para. 147].

Blair v. Desharnais (2003), 336 A.R. 174; 2003 ABQB 657, affd. (2005), 371 A.R. 196; 2005 ABCA 272, consd. [para. 152].

Daniels v. Mitchell (2004), 358 A.R. 386; 2004 ABQB 177, affd. (2005), 371 A.R. 298; 354 W.A.C. 298; 2005 ABCA 271,consd. [para. 152].

Brennenstuhl v. Trynchy et al., [2002] A.R. Uned. 193 (Q.B.), refd to. [para. 153].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 2 [para. 71]; sect. 11 [para. 105]; sect. 37 [para. 78]; sect. 109, sect. 111(1), sect. 112(1), sect. 112(3), sect. 112(4) [para. 61].

Limitation of Actions Act, R.S.A. 1980, c. L-15, sect. 4(1)(g) [para. 143].

Limitations Act, S.A. 1996, c. L-15.1, sect. 1(1)(i) [para. 149]; sect. 2(1), sect. 2(2) [para. 130]; sect. 13 [para. 131].

Authors and Works Noticed:

Sarna, Lazar, The Law of Declaratory Judgments (2nd Ed. 1988), generally [para. 152]. Counsel:

Karin E. Buss, for the plaintiffs;

Tanya M. Knobloch and Sukhpreet K. Sidhu, for the defendant, Canada;

Donald N. Kruk and Angela Edgington, for the defendant, Alberta.

Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this motion on September 8 and 9, 2005, and delivered the following reasons for judgment on January 3, 2006.