Crow v. Blood Indian Band Council et al., (1996) 107 F.T.R. 270 (TD)

• Judge: Heald, D.J.
• Court: Federal Court (Canada)
• Case Date: January 30, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 107 F.T.R. 270 (TD)

Crow v. Blood Indian Band Council (1996), 107 F.T.R. 270 (TD)

MLB headnote and full text

Addison Crow (plaintiff) v. Chief Roy Fox, Monica Spear Chiefs, Martin Eagle Child, Kirby Many Fingers, Narcisse Blood, Randy Bottle, Helen Many Fingers, Richard Mills, Rodney First Rider, Peter Big Head, Bernard Tallman and Calvin Williams, representing themselves as The Band Council of the Blood Band prior to November 28, 1990 and Chief Roy Fox, Kirby Many Fingers, Narcisse Blood, Randy Bottle, Richard Mills, Rodney First Rider, Ira Tail Feathers, Lester Tail Feathers, Donald No Runner and Andy Black Water, representing themselves as The Band Council of the Blood Band for a two year term after November 28, 1990 and Martin Heavy Head, an Electoral Officer under the Amended Blood Tribal Custom Election Bylaw (defendants) and Her Majesty The Queen in Right of Canada (Minister of Indian and Northern Affairs)(third party)

(T-3061-90)

Indexed As: Crow v. Blood Indian Band Council et al.

Federal Court of Canada

Trial Division

Heald, D.J.

January 30, 1996.

Summary:

The plaintiff was a band councillor elected according to custom. He was removed from office. Later, his nomination for Chief was not accepted. The plaintiff sued for damages, alleging, inter alia, that his removal from office was illegal because it was not done in accordance with the Indian Act, s. 78, and that his removal and the refusal to accept his nomination for Chief violated the Charter, ss. 3, and 7.

The Federal Court of Canada, Trial Division, dismissed the action.

Civil Rights - Topic 161

Voting and other democratic rights - Right to be qualified for membership in legislature or parliament - General - [See Civil Rights - Topic 199 ].

Civil Rights - Topic 199

Voting and other democratic rights - Right to hold municipal or band office - Disqualification or removal - The plaintiff was a band councillor elected according to custom - He was removed from office - Later, his nomination for Chief was not accepted - He alleged that his removal and the refusal to accept his nomination for Chief violated the Charter, ss. 3 and 7 - The Federal Court of Canada, Trial Division, assumed without deciding that the Charter applied to the band's custom election bylaw and held that the Charter was not violated - The court held that s. 3 only applied to a federal or provincial election - See paragraphs 22, 23 - The plaintiff's right to liberty (s. 7) was not violated where he was not barred from participating in the election as a voter or prevented from pursuing his political ambitions in other political arenas - See paragraphs 24 to 32.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See Civil Rights - Topic 199 ].

Crown - Topic 703

Authority of ministers - Delegation of - Delegable matters - In 1976 the Assistant Deputy Minister of Indian and Eskimo Affairs revoked an order which declared that a band council was to be elected in accordance with the Indian Act - A plaintiff questioned the validity of the second order - The Federal Court of Canada, Trial Division, upheld the validity of the second order - The court accepted that "inherent in the right to make an Order, is the right to rescind, modify or vary that Order"; the power of the Minister to delegate to the Deputy Minister was "unlimited in scope" - See paragraphs 12 to 14.

Indians, Inuit and Métis - Topic 6226

Government of Indians - Band councils (incl. councillors) - Removal - Validity - The plaintiff was a band councillor elected according to custom - He was removed from office - Later, his nomination for Chief was not accepted - He alleged that his removal was illegal because it was not done in accordance with the Indian Act, s. 78 - The Federal Court of Canada, Trial Division, rejected the allegation - Sections 74 to 79 of the Indian Act only applied to band councils elected in accordance with the Indian Act, pursuant to an order made under s. 74(1), and not to councils elected in accordance with band custom - Band custom allowed the plaintiff's removal from office as well as the refusal to accept his nomination for Chief - See paragraphs 15 to 20.

Indians, Inuit and Métis - Topic 6248

Government of Indians - Elections - Chief - Qualifications for office - [See Indians, Inuit and Métis - Topic 6226 ].

Statutes - Topic 5514

Operation and effect - Delegated legislation - Orders-in-council - Revocation or repeal of - [See Crown - Topic 703 ].

Cases Noticed:

Badger v. Canada, [1991] 1 F.C. 191; 38 F.T.R. 43 (T.D.), affd. (1992), 146 N.R. 79 (F.C.A.), folld. [para. 14, footnote 5].

Jock et al. v. Canada (Minister of Indian Affairs and Northern Affairs) et al., [1991] 2 F.C. 355; 41 F.T.R. 189 (T.D.), not folld. [para. 17, footnote 9].

Haig et al. v. Canada; Haig et al. v. Kinsley, [1993] 2 S.C.R. 995; 156 N.R. 81, folld. [para. 23, footnote 10].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 26, footnote 11].

Wilson v. Medical Services Commission (B.C.), [1989] 2 W.W.R. 1 (B.C.C.A.), dist. [para. 29, footnote 12].

Budge v. Workers' Compensation Board (Alta.)(No. 2), [1987] 6 W.W.R. 217; 80 A.R. 207 (Q.B.), revd. [1991] 3 W.W.R. 1; 111 A.R. 228 (C.A.), refd to. [para. 30, footnotes 14, 15].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 24].

Indian Act, R.S.C. 1951, c. 29, sect. 2 [para. 10]; sect. 74(1) [para. 9]; sect. 78 [para. 17, footnote 8].

Counsel:

Gerald Chipeur and Heather L. Treacy, for the plaintiff;

Robert J. Wilkins, Q.C., Frederick Fenwick and E. Creighton, for the defendants;

Ingrid Hutton, Q.C., for the third party.

Solicitors of Record:

Milner Fenerty, Calgary, Alberta, for the plaintiff;

Walsh Wilkins, Calgary, Alberta, for the defendants;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, and Department of Justice, Edmonton, Alberta, for the third party.

This action was heard on December 4 to 7, 1995, at Calgary, Alberta, by Heald, D.J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 30, 1996.