Gamblin v. Norway House Cree Nation Band Council et al., (2012) 424 F.T.R. 125 (FC)

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: January 19, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 424 F.T.R. 125 (FC);2012 FC 1536

Gamblin v. Norway House Cree Nation (2012), 424 F.T.R. 125 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. DE.059

Maggie Myrna Lorraine Gamblin (applicant) v. Norway House Cree Nation Band Council and the Attorney General of Canada (respondents)

(T-434-06; 2012 FC 1536; 2012 CF 1536)

Indexed As: Gamblin v. Norway House Cree Nation Band Council et al.

Federal Court

Mandamin, J.

December 20, 2012.

Summary:

The applicant, a member of the Norway House Cree Nation (NHCN), sought an order declaring a Resolution (BCR/050) by the respondent NHCN Band Council void ab initio, as well as an order quashing the Council's decision purporting to ratify the Resolution. Both Canada and Manitoba had relied on BCR/050 in regards to a lump sum payment of some $6.4 million by Manitoba Hydro to NHCN under the "Claim 138 First Nations Settlement Agreement". The issues were: (a) whether the Federal Court had jurisdiction to hear the application for judicial review; (b) whether the Council complied with NHCN procedural laws concerning approval of BCR/050; and (c) whether this was an appropriate instance for the Court to exercise its jurisdiction to grant relief.

A Prothonotary of the Federal Court, in a decision reported at [2011] F.T.R. Uned. 59, ordered the Attorney General of Canada (Canada) added as a respondent, at Canada's request. The application for judicial review was contested solely by Canada. The Council took no position, made no submissions and did not attend the hearing.

The Federal Court dismissed the application. The Court had jurisdiction to hear the judicial review application. The challenged BCR/050 was not approved in compliance with NHCN procedural laws. However, the Court declined to exercise its jurisdiction to grant the relief sought.

Administrative Law - Topic 3207

Judicial review - General - Discretionary nature of judicial review - [See Courts - Topic 4021 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - The applicant, a member of the Norway House Cree Nation (NHCN), sought an order declaring a Resolution (BCR/050) by the respondent NHCN Band Council void ab initio - Both the respondent Canada and the province of Manitoba had relied on BCR/050 in regards to a lump sum payment of some $6.4 million by Manitoba Hydro to NHCN under the "Claim 138 First Nations Settlement Agreement" - The Federal Court found that the NHCN procedural requirements for approving a Council resolution were not observed, but declined to exercise its discretion to grant the relief sought - The drawbacks to finding BCR/050 to be invalid far outweighed the Council's procedural violations - Manitoba Hydro had long since made the payment, and NHCN had already spent the monies - Declaring BCR/050 invalid would undermine the security and finality of the settlement of claim 138 - The applicant had obtained her answer in relation to the question of "good governance" - A declaration that BCR/050 was invalid had serious implications for the NHCN itself - Finally, a majority of the NHCN leadership were in favour of BCR/050, although they did not do so in an open manner required by the NHCN procedural requirements - See paragraphs 84 to 100.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals - An issue in this judicial review application was whether the Federal Court had jurisdiction to hear a judicial review application concerning a decision by the custom elected respondent Band Council - The Federal Court stated that "[t]he jurisprudence holds the Federal Court has jurisdiction to judicially review decisions of custom First Nation councils and related agencies. Case law reveals those decisions usually involve an exercise by the custom First Nation council of a statutory power under the Indian Act or matters concerning the holding of office as either chief or councillor. In the latter instance, since a chief or councillors selected under custom may exercise statutory powers under the Indian Act, given the definition in section 2 of the 'council of the band', it follows that decisions by custom electoral officers or custom election appeal panels affecting custom office holders can be related to an exercise of statutory power." - See paragraph 40.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals - The Federal Court considered whether it had jurisdiction to hear the within judicial review application concerning two impugned decisions (Resolutions) by the respondent Band Council (custom elected) - The decisions related to the provision of potable water for the members of the Norway House Cree Nation (NHCN), pursuant to the "Claim 138 First Nations Settlement Agreement" - The antecedents to the decisions went back decades to 1977 - The respondent Canada submitted that the impugned decisions were "private law" in nature, i.e., they were not decisions made pursuant to the exercise of a statutory authority but were instead an exercise of an Indian Band's inherent power to contract and settle claims - The Federal Court disagreed - The decisions were made by a First Nation entity that was federal in nature - The NHCN derived its jurisdiction from both the federal common law of aboriginal rights and its capacity to exercise federal statutory powers conferred on a council of an Indian band by the Indian Act - The jurisdiction the NHCN Council was exercising related to First Nation governance and was a matter of public interest - See paragraphs 50 to 54.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals - The Federal Court questioned whether it had jurisdiction to judicially review a decision of a custom First Nation, which did not involve a question of private law, did not involve the exercise of a federal statutory power or prerogative order, and did not relate to the election or holding of office as chief or councillor - Having regard to the following considerations, the court concluded that it had jurisdiction for judicial review of governance decisions - First, a First Nation was cloaked with a federal nature; it was important to have a forum available to seek recourse - Second, there were repeated findings that the court had jurisdiction with respect to varied proceedings involving decisions by custom First Nation councils - Third, the case law also confirmed the common law of aboriginal title and aboriginal and treaty rights as being federal common law - Finally, the exercise of authority by a custom First Nation council was an exercise by a federal entity of its jurisdiction for governance in a manner analogous to the exercise of authority by a federal board, commission or other tribunal - See paragraphs 55 to 61.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals - The applicant, a member of the Norway House Cree Nation (NHCN), sought an order declaring a Resolution (BCR/050) by the NHCN Band Council void ab initio, as well as an order quashing the Council's decision purporting to ratify the Resolution - The Federal Court considered whether it had jurisdiction to hear a judicial review application concerning a decision by the custom elected Council - Addressing that issue involved determining if the Council was a "federal board, commission or other tribunal" for the purposes of s. 18.1 of the Federal Courts Act - The question further involved a determination whether the Council was exercising powers encompassed by s. 18.1 of the Act when it made the impugned decisions - In the result, the court concluded that the BCR/050 decision and the subsequent ratification were decisions which the court had jurisdiction to judicially review - The Council's authority to make decisions was derived from their election as the governing body of the NHCN - The evidence demonstrated that the Council were exercising their authority as the elected leaders of the NHCN - Their positions as elected Chief and Councillors authorized them to make decisions on behalf and for the benefit of the members of the NHCN - Their decisions in this matter related to governance of the NHCN - See paragraphs 62 and 63.

Indians, Inuit and Métis - Topic 6232

Government - Band councils (incl. chief and councillors) - Resolutions - The applicant, a member of the Norway House Cree Nation (NHCN), sought an order declaring a July 21, 2005 Resolution (BCR/050) by the respondent NHCN Band Council void ab initio, as well as an order quashing the Council's February 7, 2006 decision purporting to ratify the Resolution - The applicant did not allege that the February 7, 2006 meeting was not a duly constituted Council meeting - Both the respondent Canada and the province of Manitoba had relied on BCR/050 in regards to a lump sum payment of some $6.4 million by Manitoba Hydro to NHCN under the "Claim 138 First Nations Settlement Agreement" - The Federal Court held that the ratification of BCR/050 was flawed in that it was pre-determined before the approval vote - No notice was given to all of the members of the NHCN Council for a meeting to consider BCR/050 on July 21, 2005 - Although the merits of BCR/050 were debated before the vote ratifying it three to one, the ratification process could not be considered anything other than having been predetermined - The vote was taken long after the parties had acted on BCR/050 and provided the NHCN Councillors no realistic opportunity to decide other than for ratification - See paragraphs 68 to 83.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - The applicant, a member of the Norway House Cree Nation (NHCN), applied for an order declaring a Resolution by the respondent NHCN Band Council (a custom First Nation council), void ab initio, as well as an order quashing the Council's decision purporting to ratify the Resolution - Canada was added as a respondent - The applicant submitted that the application concerned matters of the jurisdiction and vires of the actions of the NHCN Council under the Indian Act and the NHCN Guidelines - The Federal Court stated that "[t]his case requires the consideration of the NHCN Council's jurisdiction or authority and interpretation of the NHCN rules governing the decision-making process of its elected council. I agree with the Applicant the issue involves interpretation of the NHCN governance law concerning council decision making. Such questions ... involve a question of law and I consider the appropriate standard of review correctness." - See paragraphs 24 to 27.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - [See Courts - Topic 4021 ].

Cases Noticed:

Muskego v. Norway House Cree Nation Appeal Committee et al. (2011), 391 F.T.R. 276; 2011 FC 732, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25].

Laboucan v. Little Red River Cree Nation #447 (2010), 372 F.T.R. 262; 2010 FC 722, refd to. [para. 26].

DRL Vacations Ltd. v. Halifax Port Authority, [2006] 3 F.C.R. 516; 274 F.T.R. 293; 2005 FC 860, refd to. [para. 31].

Anisman v. Canada Border Services Agency et al. (2010), 400 N.R. 137; 2010 FCA 52, consd. [paras. 31, 43].

Devil's Gap Cottagers (1982) Ltd. v. Rat Portage Indian Band et al. (2008), 331 F.T.R. 87; 2008 FC 812, consd. [paras. 32, 37, 42].

Peace Hills Trust Co. v. Saulteaux First Nation - see Peace Hills Trust Co. v. Moccasin et al.

Peace Hills Trust Co. v. Moccasin et al. (2005), 281 F.T.R. 201; 2005 FC 1364, consd. [paras. 32, 47].

Ballantyne et al. v. Bighetty et al. (2011), 395 F.T.R. 141; 2011 FC 994, consd. [paras. 32, 39, 48].

Balfour v. Norway House Cree Nation et al., [2006] 4 F.C.R. 404; 288 F.T.R. 182; 2006 FC 213, consd. [para. 33].

Wood Mountain First Nation No. 160 v. Canada (Attorney General) et al., [2006] F.T.R. Uned. 764; 55 Admin. L.R.(4th) 293; 2006 FC 1297, refd to. [para. 34].

Gabriel v. Canatonquin, [1978] 1 F.C. 124 (T.D.), affd. [1980] 2 F.C. 792 (F.C.A.), consd. [para. 35].

Ratt et al. v. Matchewan et al., [2010] 2 C.N.L.R. 275; 362 F.T.R. 285; 2010 FC 160, consd. [para. 38].

Elders of Mitchikinabikok Inik (Algonquin of Barriere Lake) v. Algonquins of Barriere Lake Customary Council - see Ratt et al. v. Matchewan et al.

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 86].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 2 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 87].

Dennis v. Adams Lake Indian Band (2011), 419 N.R. 385; 2011 FCA 37, refd to. [para. 88].

Community Panel of the Adams Lake Indian Band v. Adams Lake Indian Band - see Dennis v. Adams Lake Indian Band.

Maloney v. Eskasoni Indian Band (2009), 278 N.S.R.(2d) 298; 886 A.P.R. 298; 2009 NSSC 177, refd to. [para. 93].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18(1)(a), sect. 18.1(2), sect. 18.1(3)(b) [para. 20].

Indian Act, R.S.C. 1985, c. I-5, sect. 2(3)(b) [paras. 21, 71].

Counsel:

Vilko Zbogar, for the applicant;

Paul Anderson and Jean-Daniel Boulet, for the respondent, The Attorney General of Canada;

Bill Haight and Jessica Saunders, for the respondent, Norway House Cree Nation Band Council.

Solicitors of Record:

Zbogar Advocate, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Attorney General of Canada;

Duboff Edwards Haight & Schachter, Winnipeg, Manitoba, for the respondent, Norway House Cree Nation Band Council.

This application was heard at Winnipeg, Manitoba, on January 19, 2012, before Mandamin, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated December 20, 2012, at Ottawa, Ontario.