Montana Indian Band v. Canada, (1997) 140 F.T.R. 30 (TD)

• Judge: Reed, J.
• Court: Federal Court (Canada)
• Case Date: September 18, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 140 F.T.R. 30 (TD)

Montana Indian Band v. Can. (1997), 140 F.T.R. 30 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. DE.025

Montana Band, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta (plaintiffs) v. Her Majesty The Queen (defendant) and Samson Band, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians (third party) and Ermineskin Band, Chief Gerald Robert Ermineskin and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians (third party)

(T-617-85)

Chief Florence Buffalo acting on her own behalf and on behalf of all of the other members of the Samson Cree Nation and Band and The Samson Cree Nation and Indian Band (plaintiffs) v. Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development, Parliament Buildings, Ottawa, Ontario (defendants)

(T-782-97)

Indexed As: Montana Indian Band v. Canada

Federal Court of Canada

Trial Division

Reed, J.

November 3, 1997.

Summary:

The Montana Indian Band asserted that a 1909 surrender of certain reserve lands from the Samson and Ermineskin bands was invalid and should have been obtained from the Montana Indian band. The Crown issued third party notices claiming that if the Montana Indian Band succeeded, the Crown could seek contribution or indemnity from the Samson and Ermineskin bands or their members. The Samson band sued the Crown asserting a continuing right in the lands and claiming that the surrender was invalid because it was obtained by fraud and without legal authority. Alternatively, if the surrender was valid, an earlier surrender of part of the reserve by the Montana band was invalid. The two actions were consolidated. The Crown moved for third party directions, including directions requiring band council members to defend on behalf of those members of their respective bands who were not under a legal disability and an order that the Chief of each band be appointed guardians ad litem of the infants and mentally incompetent members of their respective bands. The third parties opposed the directions sought, asserting that the bands could sue and be sued in their own names.

The Federal Court of Canada, Trial Division, issued directions without the additional provisions sought by the Crown respecting representation.

Courts - Topic 103

Stare decisis - Authority of judicial decisions - English, American and foreign authorities - American decisions - The Federal Court of Canada, Trial Division, rejected United States jurisprudence as being relevant to its consideration of the issue of whether or not Indian bands had the capacity to sue and be sued - See paragraphs 8 to 13.

Indians, Inuit and Métis - Topic 2110

Nations, tribes and bands - Bands - Powers - Nature of - The Federal Court of Canada, Trial Division, considered the capacity of Indian bands to sue and be sued - See paragraphs 7 to 27 - The court stated that "[b]ecause the capacity of a band (band council) to sue or be sued arises by implication from and is tied to the statutory powers and obligations conferred on it, the extent of its capacity to sue or be sued has uncertain boundaries. That is, the band or band council has not been given corporate status commensurate with the powers of a natural person. Uncertainties as to the extent of the capacity of a band to sue and be sued have been avoided, however, by framing claims as class actions." - See paragraph 26.

Indians, Inuit and Métis - Topic 8735

Practice - Representative actions - On behalf of band and nation - An Indian band sued the Crown, respecting the validity of a 1909 surrender of reserve lands by members of the third party Indian bands - The action was consolidated with another action - Each style of cause named the band and then stated that certain band members were acting on their own behalf and on behalf of all band members - The Crown moved for third party directions requiring band council members to defend on behalf of those members of their respective bands who were not under a legal disability and an order that the Chief of each band be appointed guardians ad litem of the infants and mentally incompetent members of their respective bands - The Federal Court of Canada, Trial Division, held that the representation orders sought were unnecessary, because of the way the pleadings were framed - See paragraphs 27 to 37.

Indians, Inuit and Métis - Topic 8735

Practice - Representative actions - On behalf of band and nation - [See Indians, Inuit and Métis - Topic 2110 ].

Practice - Topic 138

Persons who can sue and be sued - Infants - Guardian ad litem - Appointment of - [See first Indians, Inuit and Métis - Topic 8735 ].

Practice - Topic 264

Persons who can sue and be sued - Legal personality - Indian band - [See Indians, Inuit and Métis - Topic 2110 ].

Practice - Topic 306

Parties - General - Naming of in style of cause - [See first Indians, Inuit and Métis - Topic 8735 ].

Practice - Topic 983

Parties - Representation orders - When available - [See first Indians, Inuit and Métis - Topic 8735 ].

Cases Noticed:

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1997] 2 C.N.L.R. 16; 111 F.T.R. 161 (T.D.), refd to. [para. 15, footnote 7].

Mount Pearl (City) et al. v. Newfoundland (Minister of Provincial and Municipal Affairs) (1991), 99 Nfld. & P.E.I.R. 271; 315 A.P.R. 271 (Nfld. T.D.), consd. [para. 17].

Cholod et al. v. Regina (City), [1976] 2 S.C.R. 484; 6 N.R. 525, consd. [para. 18].

Cholod et al. v. Baker et al. - see Cholod et al. v. Regina (City).

Gallagher v. Armstrong (1911), 3 Alta. L.R. 443 (T.D.), consd. [para. 19].

Keewatin Tribal Council Inc. v. Thompson (City) et al., [1989] 5 W.W.R. 202; 61 Man.R.(2d) 241 (Q.B.), refd to. [para. 20].

St. Regis Indian Band Council v. Public Service Alliance of Canada and Canada Labour Relations Board, [1982] 2 S.C.R. 72; 44 N.R. 136; [1982] 4 C.N.L.R. 94, refd to. [para. 23].

Clow Darling Ltd. v. Big Trout Lake Indian Band, [1990] 4 C.N.L.R. 7; 70 O.R.(2d) 56 (Dist. Ct.), refd to. [para. 24].

King v. Gull Bay Indian Band (1983), 38 C.P.C. 1 (Ont. Dist. Ct.), refd to. [para. 24, footnote 13].

Bannon v. Pervais (1989), 68 O.R.(2d) 276 (Dist. Ct.), refd to. [para. 24, footnote 13].

Kucey v. Ballantyne (Peter) Indian Band Council, [1987] 3 W.W.R. 438; 57 Sask.R. 29; [1987] 3 C.N.L.R. 68 (C.A.), refd to. [para. 24, footnote 13].

Whitebear Band Council v. Carpenters Provincial Council of Saskatchewan and Labour Relations Board (Sask.), [1982] 3 W.W.R. 554; 15 Sask.R. 37; 135 D.L.R.(3d) 128 (C.A.), refd to. [para. 24, footnote 13].

Joe v. Findlay, [1987] 2 C.N.L.R. 75 (B.C.S.C.), refd to. [para. 25].

Authors and Works Noticed:

Gilbert, L., Entitlement to Indian Status and Membership Codes in Canada (1996), pp. 14, 15, 73, 74 [para. 10].

Henderson, W., Litigating Native Claims (1985), 19 Gazette 174, generally [para. 26, footnote 14].

Imai, S., Logan, K., and Stien, G., Aboriginal Law Handbook (1993), pp. 113, 114 [para. 12, footnote 6].

Imai, S., The 1997 Annotated Indian Act (1997), p. 6 [para. 22, footnote 12].

Reiter, R., An Examination of the Evolving Concept of Band Councils, their Authorities and Responsibilities, and their Statutory Instruments of Power (1990), pp. 1.10, 1.18 [para. 20, footnote 9]; 2.11 [para. 22, footnote 12].

Rogers, Ian MacFee, The Law of Canadian Municipal Corporations (2nd Ed. Supp. 1997), pp. 1, 2, 10, 1313, 1314 [para. 15, footnote 8].

Woodward, Jack, Native Law (1990), pp. 14 [para. 20, footnote 10]; 395, 396 [para. 22, footnote 12]; 397 [para. 21, footnote 11].

Counsel:

Edward H. Masters, for the plaintiff;

Geoffrey S. Lester, for the defendant;

Pricilla Kennedy, for the third party, Samson Band;

Maria Morellato, for the third party, Ermineskin Band.

Solicitors of Record:

Burke-Robertson, Ottawa, Ontario, for the plaintiff;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant;

Parlee McLaws, Edmonton, Alberta, for the third party, Samson Band;

Blake, Cassels & Graydon, Vancouver, British Columbia, for the third party, Ermineskin Band.

These actions were heard at Calgary, Alberta, on September 18, 1997, before Reed, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on November 3, 1997.