Chacachas Indian Band v. Canada (Minister of Indian and Northern Affairs) et al., (2002) 226 F.T.R. 43 (TD)

• Judge: Hugessen, J.
• Court: Federal Court (Canada)
• Case Date: November 21, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 226 F.T.R. 43 (TD)

Chacachas Indian Band v. Can. (2002), 226 F.T.R. 43 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. DE.046

Cameron Watson, Sharon Bear, Charlie Bear, Winston Bear and Sheldon Watson, being the Heads of Family of the direct descendants of the Chacachas Indian Band, representing themselves and all other members of the Chacachas Indian Band (plaintiffs) v. Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian and Northern Affairs and the Ochapowace First Nation (defendants)

(T-2153-00)

Wesley Bear, Freida Sparvier, Janet Henry, Freda Allary, Robert George, Audrey Isaac, Shirley Flamont, Kelly Manhas, Mavis Bear and Michael Kenny, on their own behalf and on behalf of all other members of the Kakisiwew Indian Band, (plaintiffs) v. Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian and Northern Affairs and Ochapowace Indian Band No. 71 (defendants)

(T-2155-00)

Chief Denton George, Ross Allary, Laird Allary, Wesley Bear, Margaret Bear, Albert Isaac and Lloyd Bear, Chief and Councillors of the Ochapowace Indian Band No. 71 (plaintiffs) v. Her Majesty the Queen in Right of Canada and Tom Siddon, Minister of Indian Affairs and Northern Development (defendants)

(T-2463-91)

(2002 FCT 1281)

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

Federal Court of Canada

Trial Division

Hugessen, J.

December 10, 2002.

Summary:

A motion was brought in relation to the defendant Crown's claim to privilege with respect to certain documents. The documents were divided into two lists, Appendix A and Appendix B.

The Federal Court of Canada, Trial Division allowed the motion in part. The court ordered that documents listed in Appendix A, as edited by the court during the hearing, were not privileged and were to be produced. The documents listed in Appendix B were privileged and did not have to be produced.

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - [See both Practice - Topic 4585 ].

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - One of the principal issues raised in three actions was the propriety of a settlement negotiated by the defendant Crown with the Ochapowace Indian Band in 1994 - The Crown claimed solicitor and client privilege with respect to certain documents - The plaintiff Indian Bands argued that their position was somehow improved by the fact that they were alleging a breach of fiduciary duty and that that had the effect of opening up to them the benefit of any legal opinions received by the Crown on their behalf in its fiduciary capacity - The Federal Court of Canada, Trial Division, rejected the plaintiffs' argument - See paragraph 7.

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications - [See Indians, Inuit and Métis - Topic 3 and both Practice - Topic 4585 ].

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - One of the principal issues raised in three actions was the propriety of a settlement negotiated by the defendant Crown with the Ochapowace Indian Band in 1994 - The Crown claimed solicitor and client privilege with respect to certain documents - The plaintiffs argued that by pleading the 1994 settlement, the Crown had waived any claim to privilege with respect to legal advice obtained in the course of reaching that settlement - The Federal Court of Canada, Trial Division, rejected the plaintiffs' argument - The court noted that while the Crown had pleaded the settlement, it had not pleaded the receipt of legal advice in relation to the settlement - See paragraph 5.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - One of the principal issues raised in three actions was the propriety of a settlement negotiated by the defendant Crown with the Ochapowace Indian Band in 1994 - The Crown claimed solicitor and client privilege with respect to certain documents - The plaintiffs argued that the claim to solicitor and client privilege was waived because one or more of the documents already released by the Crown made mention of the fact that legal advice had been sought and obtained on certain subjects, or that certain proposed provisions of the settlement had or had not received lawyers' approval - The Federal Court of Canada, Trial Division, rejected the plaintiffs' argument - See paragraph 6.

Cases Noticed:

Lac La Ronge Indian Band et al. v. Canada and Saskatchewan (1996), 147 Sask.R. 257 (Q.B.), refd to. [para. 5].

Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 2 F.C. 762; 184 N.R. 139 (F.C.A.), refd to. [para. 7].

Samson Indian Nation and Band v. Canada - see Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Counsel:

T-2153-00:

Douglas Kovatch, for the plaintiff;

Mark Kindrachuk, for the defendant, Her Majesty The Queen;

Merviv Ozirny and Marvin Phillips, for the defendant, Ochapowace First Nation.

T-2155-00:

Robert Mitchell and Sandra Mitchell, for the plaintiff;

Mark Kindarchuk, for the defendant, Her Majesty The Queen;

Mervin Ozirny and Marvin Phillips, for the defendant, Ochapowace Indian Band No. 71.

T-2463-91:

Mervin Ozirny and Marvin Phillips, for the plaintiff;

Mark Kindrachuk, for the defendant, Her Majesty The Queen.

Solicitors of Record:

T-2153-00:

Silversides Kovatch Zborosky Beauchemin, Regina, Saskatchewan, for the plaintiff;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant, Her Majesty the Queen;

Phillips & Millen, Regina, Saskatchewan, for the defendant, Ochapowace Indian Band No. 71.

T-2155-00:

Mitchell Law Firm, Dundurn, Saskatchewan, for the plaintiff;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant, Her Majesty the Queen;

Phillips & Millen, Regina, Saskatchewan, for the defendant, Ochapowace Indian Band No. 71.

T-2463-91:

Phillips & Millen, Regina, Saskatchewan, for the plaintiffs;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant, Her Majesty the Queen.

This motion was heard on November 21, 2002, at Regina, Saskatchewan, before Hugessen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on December 10, 2002.