Gift Lake Métis Settlement et al. v. Minister of Aboriginal Relations et al., [2015] A.R. TBEd. OC.074

• Judge: Browne, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 05, 2015
• Citations: [2015] A.R. TBEd. OC.074;2015 ABQB 654

Gift Lake Métis v. Aboriginal Relations, [2015] A.R. TBEd. OC.074

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. OC.074

Gift Lake Métis Settlement, Gift Lake Métis Settlement Council and Dave Lamouche, Norman Laderoute, Mildred Lamouche, Vern Cunningham, Dean Cunningham Sr., Edith Cunningham (applicants) v. Minister of Aboriginal Relations, Registrar of the Métis Settlements Land Registry, Attorney General of Alberta, Minister of Aboriginal Affairs and Northern Development Canada, Registrar of Aboriginal Affairs and Northern Development Canada and Attorney General of Canada (respondents) and Kikino Métis Settlement, East Prairie, Elizabeth, and Peavine Métis Settlements (intervenors)

(1503 07512; 2015 ABQB 654)

Indexed As: Gift Lake Métis Settlement et al. v. Minister of Aboriginal Relations et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Browne, J.

October 15, 2015.

Summary:

Under s. 75(1) of the Métis Settlement Act (MSA), an individual registered as a status Indian under the Indian Act was not eligible for membership on a Métis settlement, unless they met the requirements of s. 75(2) or 75(3.1) of the MSA. In addition, s. 90 of the MSA stated that a Métis member automatically terminated his or her settlement membership upon registering as a status Indian. Gift Lake Métis Settlement, Gift Lake Métis Settlement Council, its Chairperson, and five individual claimants brought an application challenging the constitutional validity of the inability to remove one's name from the Federal Indian registry, as well as the vires of ss. 75 and 90 of the MSA. Pending a decision on the merits of that application, the applicants sought to enjoin the Métis Settlements Land Registry (the Provincial Registrar) from removing the names of 137 individuals from the Gift Lake Settlement Membership List (the Membership List). In the alternative, they asked for a temporary suspension of the operation of ss. 75 and 90 of the MSA for those individuals. The applicants also sought an order requiring the responsible Federal authority to temporarily suspend the 137 individuals' names from appearing on the Indian Register.

The Alberta Court of Queen's Bench denied the application for an interlocutory injunction. The applicants raised serious issues to be tried. However, the applicants failed to establish a serious risk of irreparable harm that would occur if individuals' names were taken off the Membership List. The substantive rights of members outlined in the MSA were lost upon termination, and not from removal from the Membership List. Maintenance of the Membership List was simply an administrative task. The applicants had also not established a serious risk of eviction should the court refuse to grant them either of the alternative remedies. Without the risk of eviction, the loss of membership itself was not irreparable harm, as the applicants would be able to have their memberships reinstated if they were successful in the underlying application. Thus the only risk of irreparable harm lay with losing the right to vote. The court addressed that potential harm in the context of the balance of convenience. While the loss of individual democratic rights was substantial, the risk of harm to the community was greater if non-members were permitted to vote. The public interest also weighed in favour of denying the applicants' injunction. The continued application of existing legislation was presumed to be within the public interest. With respect to the remedy of temporary suspension from the Federal Indian Registry, only three of the five individual applicants had indicated an intention to remove their names if given the opportunity. The remaining individual applicants had demonstrated a qualified intention to remove themselves. There was no evidence from the other 132 people as to their desire to remove their names from the list. Thus, there was no significant factor weighing in favour of granting that remedy at this time.

Indians, Inuit and Mེtis - Topic 2107

Nations, tribes and bands - Bands and Mེtis settlements - Membership - See paragraphs 50 to 127.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - See paragraphs 101 to 125.

Injunctions - Topic 1610

Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - See paragraphs 50 to 126.

Injunctions - Topic 1617.2

Interlocutory or interim injunctions - Preventing statute enforcement or implementation - See paragraphs 112 to 122.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - See paragraphs 56 to 100.

Counsel:

Maxime Faille and Paul Seaman (Gowling Lafleur Henderson LLP), for the applicants;

Margaret Unsworth, Q.C., and Robert Normey, for Alberta Justice and Solicitor General;

Sheila M. Read and Eve Coppinger, for Justice Canada;

Richard B. Hajduk (Hajduk Gibbs LLP), for East Prairie, Elizabeth, and Peavine Métis Settlements;

Meaghan M. Conroy (MacPherson Leslie & Tyerman LLP), for Kikino Métis Settlement.

This application was heard on August 5, 2015, before Browne, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on October 15, 2015.