Pelican Lake First Nation v. Bill et al., (2003) 243 Sask.R. 285 (QB)

• Judge: Klebuc, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 12, 2003
• Jurisdiction: Saskatchewan
• Citations: (2003), 243 Sask.R. 285 (QB);2003 SKQB 566

Pelican Lake First Nation v. Bill (2003), 243 Sask.R. 285 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. JA.039

Chief Peter Bill, Councillor Gilbert Chamakese, Councillor Romeo Thomas, Councillor Willie Thomas, Councillor Allan Thomas, Councillor David Thomas and Councillor Peter Sakebow, as representatives of the Chief and Band Council of the Pelican Lake First Nation (plaintiffs) v. Edward Bill, Fred Thomas, Donald Abbot, Glen Thomas, Norman Thomas, Bernice Bill, Leslie Bill, Jimmy Bill, Roger Wayne Thomas, Sidney Bell, Dennis Bill, Laureen Thomas, Kimberly Bill, Cheryl Thomas, Randy Harris, Sammy Bill, Annabelle Harris, Harvey Abbot, Marilyn Thomas, Arlene Sakebow, Harriot Myo, Doris Ahenakew, Jones Thomas, Pancy Harris and Mary Harris (defendants)

(2003 Q.B.G. No. 271; 2003 SKQB 566)

Indexed As: Pelican Lake First Nation v. Bill et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Klebuc, J.

December 12, 2003.

Summary:

An April 14, 2000 Band election was set aside. Indian and Northern Affairs and Northern Development (INAND) and a corporate administrator entered into an "Interim Third Party Agreement" whereby the administrator would administer funds payable by INAND to the Band under a funding arrangement. At a Band membership meeting, a substantial number of members present passed a motion approving the administrator managing the funds and a motion to have the ex-Chief and Council (the plaintiffs) elected at the April 14, 2000 election to be the administrators of the agreement until the next election. The plaintiffs sued the defendants for damages for, inter alia, wrongfully blocking their access to Band property. Some of the defendants applied under s. 65 of the Queen's Bench Act for an order appointing a receiver and manager for the Band with power to manage and operate the Band's businesses and assets until the Federal Court of Appeal determined the validity of a Band election.

The Saskatchewan Court of Queen's Bench dismissed the application.

Indians, Inuit and Métis - Topic 6228

Government - Band councils (incl. chief and councillors) - Replacement by receiver - An April 14, 2000 Band election was set aside - Indian and Northern Affairs and Northern Development (INAND) and a corporate administrator entered into an "Interim Third Party Agreement" whereby the administrator would administer funds payable by INAND to the Band under a funding arrangement - At a Band membership meeting, a substantial number of members present passed a motion approving the administrator managing the funds and a motion to have the ex-Chief and Council (the plaintiffs) elected at the April 14, 2000 election to be the administrators of the agreement until the next election - The plaintiffs sued the defendants for damages for wrongfully blocking their access to Band property and interfering with Band employees in the discharge of their duties - Some defendants applied for the appointment of a receiver and manager for the Band with power to manage and operate the Band's businesses and assets until the Federal Court of Appeal determined the validity of a February 28, 2001 Band election, wherein the plaintiffs were elected as Chief and Council - The Saskatchewan Court of Queen's Bench dismissed the application because the applicant defendants had not set forth their claim against the plaintiffs, the nature of their interest in the assets, or their status to seek the appointment of a receiver, in a statement of claim or counterclaim - Further, the appointment of a receiver and manager would not be just or convenient in these circumstances.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - Indian and Northern Affairs and Northern Development (INAND) and a corporate administrator entered into an Interim Third Party Agreement (management agreement) whereby the administrator would administer funds payable by INAND to an Indian Band under a funding arrangement - At a Band membership meeting, a substantial number of Band members present passed, by a very wide majority, a motion approving the administrator managing the funds - The applicants submitted that the management agreement was null and void because it was executed on behalf of the Band without the approval of a Band Council as required by s. 2(3)(b) of the Indian Act - The Saskatchewan Court of Queen's Bench rejected the submission - The management agreement was not an agreement between INAND and the Band but one between INAND and the administrator, a third party - In the result, the Band was not bound by its provisions - See paragraph 29.

Receivers - Topic 1505

Grounds for refusing grant - Failure of applicants to commence action - The applicants sought the appointment of a receiver and manager for an Indian Band - The Saskatchewan Court of Queen's Bench stated that a "... moving party must commence a legal action against the defendants and in such action establish a prima facie legal right to the relief sought regardless of whether the right claimed arises pursuant to a security instrument or otherwise. Thus, only after an action has been commenced by way of statement of claim or a counterclaim may the moving party bring a motion for the appointment of a receiver and manager. To proceed otherwise would leave courts with no pleadings defining the scope of the issues, the nature of the moving party's claims, or the other party's position." - See paragraph 25.

Cases Noticed:

First Investors Corp. Ltd. v. 237208 Alberta Ltd. (1982), 20 Sask.R. 335 (Q.B.), refd to. [para. 16].

Gentra Canada Investments Inc. v. Lehndorff United Properties Canada et al. (1995), 169 A.R. 138; 97 W.A.C. 138 (C.A.), refd to. [para. 17].

Moose Jaw Merchandisers Ltd. et al. v. Westport Enterprises Ltd. (1971), 23 D.L.R.(3d) 21 (Sask. Q.B.), refd to. [para. 20].

Chapman et al. v. Chicago et al. (1991), 52 O.A.C. 308; 5 O.R.(3d) 220 (Div. Ct.), refd to. [para. 21].

Heron Seismic Services Ltd. et al. v. Peepeekisis Indian Band (1990), 87 Sask.R. 66; 74 D.L.R.(4th) 308 (Q.B.), affd. (1991), 86 D.L.R.(4th) 767 (C.A.), refd to. [para. 29].

Authors and Works Noticed:

Bennett, Frank, Receiverships (1985), generally [para. 18].

Bennett, Frank, Receiverships (1999), pp. 3, 4, 91, 134 [para. 19]; 142, 143 [para. 25].

McKeague, Neva R., The Queen's Bench Rules of Saskatchewan: Annotated (3rd Ed. 2001), p. 33-3 [para. 8].

Counsel:

Benjamin J. Partyka, for all plaintiffs;

J. Ronald Cherkewich, for the defendants Jones Thomas, Elder Norman Thomas, Elder Fred Thomas, Elder Pancy Harris, Elder Leslie Bill, Elder Jacob Bill (Jacob Bill not listed in style of cause).

This application was heard by Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following decision on December 12, 2003.