Eagle Speaker et al. v. Canada et al., 2000 ABQB 1016

• Judge: McMahon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 01, 2000
• Citations: 2000 ABQB 1016;(2000), 326 A.R. 40 (QB)

Eagle Speaker v. Can. (2000), 326 A.R. 40 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. OC.099

Pauline Eagle Speaker (Nee: Bastien), Jacqueline Big Bull, Annabelle Buffalo, Ada Buffalo, Gordon Buffalo, Elizabeth Crow Flag, Walter Crow Shoe, Albertine Cartmill (Nee: David), Michael David, Emma Lee Warrior (Formerly Emma David), June Christine Yellow Horn (Nee: David), Roberta Iron Shirt, Kenneth Potts, Nellie Potts, Tyrone Potts, John Prairie Chicken, Albert Prairie Chicken, Mark Strikes With A Gun, John Alexander Weasel Bear and Ida Yellow Horn (plaintiffs) v. Her Majesty The Queen in Right of Canada, The Anglican Church of Canada, The Anglican Diocese of Calgary, The Archbishop of The Anglican Diocese of Calgary and The Missionary Society of The Anglican Church of Canada (defendants) (No. 9906-00249)

In The Matter Of Certain Claims Arising From Indian Residential Schools;

And In The Matter Of Case Management of the Residential School Claims

(Action No. 9901 15362; 2000 ABQB 1016)

Indexed As: Eagle Speaker et al. v. Canada et al.

Alberta Court of Queen's Bench

Judicial District of Lethbridge

McMahon, J.

February 24, 2000.

Summary:

Former residents of Indian residential schools in Alberta sued Canada and various bodies of the Anglican Church of Canada (the Church), who operated a school, for damages for "loss of a meaningful education as well as various forms of abuse and deprivation while in attendance at the schools". Among other causes of action, the plaintiffs alleged that the Church acted in breach of Treaty 7. The Church, who was not a party to Treaty 7, moved to strike those allegations. In the alternative, the Church sought to have the matter determined in a preliminary fashion, in accordance with Rule 220.

The Alberta Court of Queen's Bench dismissed the motion. The Church's relationship with the signatories to the Treaty and its intended involvement in the performance of the Treaty obligations was a matter that had to be determined on the evidence.

Editor's Note: See [2002] A.R. Uned. 563, paras. 78 and 79, where the court stated that no evidence was uncovered indicating that the Church assumed any of the obligations under Treaty 7.

Indians, Inuit and Métis - Topic 4402

Treaties and proclamations - General - What constitutes a treaty - The Alberta Court of Queen's Bench stated that a treaty was not a contract in the ordinary sense nor was it an executive act between two or more sovereign states - As stated by author Jack Woodward, in Native Law (1990), at p. 405: "An Indian Treaty is a contract in a class of its own ... the law of Canadian Indian Treaties has developed on a case by case basis, without reference to theoretical foundations. It is an evolving field of common law ..." - See paragraph 12.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect of - Former residents of Indian residential schools in Alberta alleged that various bodies of the Anglican Church of Canada (the Church), who operated a school, violated Treaty 7 obligations toward them - The Church, who was not a party to Treaty 7, moved to strike those allegations - The Alberta Court of Queen's Bench dismissed the application - It could at least be argued that the Treaty gave to the plaintiffs certain educational entitlements which the factual allegations in the statement of claim said were assumed by the Church - In those circumstances, it would be an error to determine the question of the Church's responsibility, if any, flowing from Treaty 7 on the basis of pleadings only, and prior to discoveries and without evidence of the historical context in which the Treaty was negotiated, signed and carried into performance.

Practice - Topic 2249

Pleadings - Striking out pleadings - Bars - Issues to be tried - [See Indians, Inuit and Métis - Topic 4404 ].

Cases Noticed:

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 20 C.C.P.B. 283 (C.A.), refd to. [para. 5].

Alberta (Treasury Branches) v. Ghermezian et al. (1999), 249 A.R. 240; 72 Alta. L.R.(3d) 164 (Q.B.), refd to. [para. 5].

Cerny v. Canadian Industries Ltd. et al., [1972] 6 W.W.R. 88 (Alta. C.A.), refd to. [para. 7].

Pacific Western Airlines Ltd. v. Gauthier - see Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises and Gauthier et al.

Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises and Gauthier et al. (1977), 2 A.R. 166; 2 Alta. L.R.(2d) 52 (C.A.), refd to. [para. 7].

Hay River Town v. R. (1979), 101 D.L.R.(3d) 184 (F.C.T.D.), refd to. [para. 12].

Authors and Works Noticed:

Woodward, Jack, Native Law (1990), pp. 404 [para. 8]; 405 [para. 12].

Counsel:

F.G. Vaughn Marshall (Ruston Marshall), Tom Stepper, Jane-Ann Summers and Graham Neil (Merchant Law Group), Les Meiklejohn, Fran Huck (Huck, Andrews, Butler, Birchard), Michael MacDonald (Parlee McLaws), Dan P. Carroll and P.J. Faulds (Field Atkinson Perraton), Rupesh Joshi, Diana Goldie (First Street Law Office), Donna Oliver (Ahlstrom Wright Oliver & Cooper), A.R. Collins, Noble Ernest Shanks (Davis & Shanks), Virginia M. May, Q.C. (May Jensen Gruber Shawa) and Jeffrey R.W. Rath (Rath & Company), for the plaintiffs;

Larry Huculak and Linda Fleury (Dept. Justice Canada), W.R. Donlevy (Donlevy & Company), Frans F. Slatter and J.J. Gill (McCuaig Desrochers), Phyllis A. Smith, Q.C. (Emery, Jamieson), Ray Baril and C. Lang (Chomicki Baril), J. Philip Warner (Bishop & McKenzie), Garth Dymond and P.S. Clark (Clark Dymond McCaffery), William Paul, Wm. Quigley (Bennett Jones) and Aaron Fox (McDougall, Ready) for the defendants.

McMahon, J., of the Alberta Court of Queen's Bench, Judicial District of Lethbridge, heard this motion on February 1, 2000, and delivered the following reasons for judgment on February 24, 2000.