Council of the Première Nation Malécite de Viger et al. v. Genest et al., (2006) 304 F.T.R. 92 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: November 17, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 304 F.T.R. 92 (FC);2006 FC 187

Maliseet First Nation v. Genest (2006), 304 F.T.R. 92 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2006] F.T.R. TBEd. DE.005

Le Conseil de la Première Nation Malécite de Viger, Aubin Jenniss, Martine Bruneau, Pierre Nicolas et Ernest Daniel Nicolas (demandeurs) v. Jean Genest, en sa qualité de grand chef de la Première nation malécite de Viger et L'Honorable Andy Scott, en sa qualité de ministre des Affaires indiennes et du Nord Canada (défendeurs)

(T-518-05; 2006 CF 187; 2006 FC 187)

Indexed As: Council of the Première Nation Malécite de Viger et al. v. Genest et al.

Federal Court

de Montigny, J.

November 17, 2006.

Summary:

The Council of the Première Nation Malecite de Viger and its four chief councillors brought an application for judicial review, asking the court to declare illegal certain acts and decisions by the respondent, Grand Chief Genest, and to void those decisions insofar as they were acts and decisions made without the consent of the majority of councillors present at a properly convened meeting of the Band Council.

The Federal Court allowed the application. The unilateral decisions by the Grand Chief were of no force or effect since they had no basis in the Indian Act or in the custom of the Band as noted in its various bylaws.

Indians, Inuit and Métis - Topic 6222

Government - Band councils (incl. chief and councillors) - Powers - The Council of the Première Nation Malecite de Viger and its four chief councillors brought an application for judicial review asking the court to declare illegal certain acts and decisions made by the respondent, Grand Chief Genest, and to void those acts and decisions insofar as they were made without the consent of the majority of councillors present at a properly convened meeting of the Band Council - The Grand Chief relied on the situation of urgency in which he found himself in order to justify his decisions - He referred to the councillors' systematic opposition to everything which he proposed and his inability to carry out his duties in such a climate - The Federal Court allowed the application for judicial review, holding that the unilateral decisions by the Grand Chief were of no force or effect since they had no basis in the Indian Act or in the custom of the Band as noted in its various bylaws - The Grand Chief's claim of urgency was not established - At best, there was only an argument that he had no other alternative faced with the Council's systematic refusal to cooperate with him - A lack of cooperation could not be likened to an urgency - Urgency had to arise from an unforeseen factual situation commanding immediate decisions and not from a deadlock resulting from deep political dissension - Further, urgency normally dictated that the decisions made in that context be ratified as quickly as possible by the competent authority - See paragraphs 30 to 43.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - The council of the Première Nation Malecite de Viger and its four chief councillors brought an application for judicial review asking the court to declare illegal certain acts and decisions made by the respondent, Grand Chief Genest, and to void those acts and decisions insofar as they were made without the consent of the majority of councillors present at a properly convened meeting of the Band Council - The Federal Court considered the four factors of the pragmatic and functional approach and concluded that the Grand Chief's decisions were reviewable on a standard of correctness - See paragraphs 25 to 28.

Cases Noticed:

Conseil de la première nation malécite de Viger v. Crevette du Nord Atlantique Inc., 2006 QCCS 57, refd to. [para. 15].

Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.), refd to. [para. 19].

Frank v. Bottle, [1994] 2 C.N.L.R. 45; 65 F.T.R. 89 (T.D.), refd to. [para. 19].

Jenniss v. Jenniss, [2000] 1 C.N.L.R. 134 (C.S.Q.), refd to. [para. 19].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [2000] 1 F.C. 325; 243 N.R. 302 (F.C.A.), refd to. [para. 25].

Francis et al. v. Mohawk Council of Kanesatake et al., [2003] 4 F.C. 1133; 227 F.T.R. 161 (T.D.), refd to. [para. 25].

Leonard and Kamloops Indian Band et al. v. Gottfriedson, [1982] 1 C.N.L.R. 60 (B.C.S.C.), refd to. [para. 25].

Isolation Sept-Iles Inc. v. Bande des Montagnais de Sept-Iles et Maliotenam, [1989] 2 C.N.L.R. 49 (Que. C.A.), refd to. [para. 25].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81; 110 D.L.R.(4th) 1, refd to. [para. 27].

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 27].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey), [2002] 4 S.C.R. 710; 299 N.R. 1; 175 B.C.A.C. 161; 289 W.A.C. 161; 2002 SCC 86, refd to. [para. 27].

Authors and Works Noticed:

Comtois, Suzanne, Vers la primauté de l'approche pragmatique et fonctionnelle (2003), pp. 107 to 125 [para. 27].

Woodward, Jack, Native Law (2005), p. 164 ff. [para. 20].

Counsel:

Paul-Yvan Martin, for the applicants;

Édith Fortin, for the respondent, Jean Genest;

Tania Hernandez and Marie-Ève Robillard, for the respondent, Department of Justice.

Solicitors of Record:

Martin, Camirand, Pelletier, Montreal, Quebec, for the applicants;

Reinhardt, Bérubé, Fortin, Sainte-Foy, Quebec, for the respondent, Jean Genest;

Minister of Justice Canada, Ottawa, Ontario, for the respondent, Department of Justice.

This application was heard on January 16-18, 2006, at Quebec, Quebec, before de Montigny, J., of the Federal Court, who delivered the following decision on November 17, 2006.