Date: 19990407
Docket: T-4178-78
BETWEEN:
JOSEPH APSASSIN, Chief of the Blueberry River Indian Band,
and JERRY ATTACHIE, Chief of the Doig River Band, on behalf
of themselves and all other members of the Doig River Indian
Band, the Blueberry River Band, and all present descendants
of the Beaver Band of Indians
Plaintiffs
- and -
HER MAJESTY THE QUEEN THE RIGHT OF CANADA as represented
by the Department of Indian Affairs and Northern
Development and the Director of the Veterans Land Act
Defendant
REASONS FOR ORDER
HUGESSEN J.
INTRODUCTION
[1] This is a preliminary determination of a question of law stated pursuant to Rule 220 by an Order of this Court dated 19 November, 1998. The question is in the following terms:
| Are any persons i.e. present descendants of the Beaver Band of Indians, who are not members of the Doig River Indian Band and the Blueberry River Indian Band for the time being, entitled individually or as a group to be considered members of the collectivity which has the right to the proceeds of judgment. |
BACKGROUND
[2] By judgment of December 14, 1995 (revised May 23, 1996), the Supreme Court of Canada allowed an appeal by the plaintiffs as presently described in the style of cause herein and ordered:
| The appellants are entitled to damages against the Crown for breach of fiduciary duty with respect to mineral rights in Indian Reserve 172 as were conveyed by the Director of the Veterans" Land Act after August 9, 1949 by agreement for sale and, in the case of conveyances to Pacific Petroleum and Clement Brooks, by deed. The action is remitted to the Federal Court, Trial Division, for assessment of damages accordingly. |
[3] On March 2, 1998, this Court entered a consent Order fixing the damages, inclusive of interests and costs, in the amount of $147,000,000. The Order went on to specify that it did not create any rights in favour of persons described in the style of cause as "present descendants of the Beaver Band of Indians" or in favour of persons described in paragraph 3 of the Statement of Claim as "all descendants of the Beaver Band of Fort St. John and the St. John Beaver Band, ascertain and unascertained and their legal personal representatives". The Order further stated that the rights of such persons (herein sometimes referred to as the "claimants") were to be determined in accordance with a procedure laid down in an appendix to the Order.
[4] That procedure provided for the publication of notices and the filing of claims by persons claiming entitlement to the proceeds of the judgment. The Order itself also provided for the creation of a trust fund in the amount of $12,000,000 to secure the payment of any such claims without, however, limiting the amount of such claims to the value of the fund. Almost 500 persons have now filed claims in accordance with the terms of the Order of March 2, 1998. The time for filing further claims has now long since expired.
[5] On November 19, 1998, this Court, in granting a motion brought by the plaintiffs and opposed by the claimants, stated the preliminary question of law set out at the beginning of these reasons. That Order set a timetable for the filing of the Case necessary for the determination of the question and for the exchange of memoranda. The matter was heard in Vancouver, B.C., on March 3 and 4, 1999.
THE ISSUES
[6] These reasons will deal with the issues raised herein under three headings as follows:
| 1) Disqualification of the presiding judge; |
| 2) Res Judicata and issue estoppel; |
| 3) Entitlement |
DISQUALIFICATION OF THE PRESIDING JUDGE
[7] At the opening of the hearing on March 3, 1999, Mr. Ferguson, counsel for one group of claimants, asked that I disqualify myself from hearing and deciding the question of law. I dismissed that application without calling on other counsel and gave brief oral reasons for doing so. Since the matter may go further, I think it proper to summarize those reasons here.
[8] The grounds on which I was asked to disqualify myself were based on Reasons which I had given in support of an Order of February 24, 1999, disposing of a motion brought by some of the claimants pursuant to Rule 369. That motion sought an advance order for the payment of claimants" costs on a solicitor and client basis. In the course of my reasons for dismissing that motion I indicated that it was my view that as yet no claimant had established any entitlement to any part of the proceeds of the Order of March 2, 1998 and that it would, accordingly, be wrong to make the order sought. That view was contrary to one expressed by many, if not all, of the claimans who made submissions to the effect that the question of entitlement had been settled in their favour by the judgment of the Supreme Court of Canada. Mr. Ferguson"s point was that, since I had expressed an opinion on an issue in the case before me, I should disqualify myself.
[9] It is my view that the opinion expressed by me in my Reasons of February 24, 1999, was a necessary part of the decision of the matter which was then before me. Where a judge, as a part of and in the course of judicial duties, gives an opinion as to the state of the law on any given question, that fact does not disqualify that judge from hearing, still less from continuing to hear, matters in which that or related questions may be in issue. If it were otherwise, no judge could render any interlocutory judgment in a case for fear of being disqualified from continuing with the trial. If the argument were pushed to the extreme, no judge could render any reasoned decision in any case for fear of disqualification from hearing other cases. It is part of a judge"s duty to express his or her view of the law on a matter relevant and necessary to the decision of a question before the Court. If the judge is wrong, there is an appellate structure in place for the correction of error. But judicial duty requires us to decide and to give our reasons, right or wrong. By fulfilling that duty, we do not thereby exhibit bias and disqualify ourselves from the further performance of our functions.
RES JUDICATA AND ISSUE OF ESTOPPEL
[10] The strongest and initially most persuasive argument raised by the claimants in support of an affirmative answer to the question of law is that it has already been settled in their favour by the Supreme Court of Canada. That judgment declares entitlement by the "appellants". Those are the persons who appeared in the style of cause then, as they do now, and include all present descendants of the Beaver Band. Entitlement was not part of the remit of the Supreme Court and the matter has accordingly now been settled once and for all. A person who can show that he or she meets the description of the class of represented plaintiffs is a beneficiary of the judgment.
[11] In my view, this argument fails for two reasons.
[12] In the first place, the force of res judicata does not rest upon the level of court which rendered the judgment invoked in support of the argument; rather, it depends upon the character of finality of that judgment. Accordingly, a judgment of the Supreme Court of Canada is no more and no less binding as res judicata than a judgment of this Court. 1 What is important is that the judgment has finally disposed of the question. Where successive judgments are rendered in the same matter, as is the case here, it is natural that they should build upon one another and that later judgments may interpret, modify or colour the sense which is to be given to earlier judgments. It may even be that through error or inadvertence, a later judgment in a case will contradict an earlier one in the same case. Where that happens, and assuming that both judgments have that character of finality which is the lynchpin of any argument of res judicata, it is the later in date which must normally prevail, it being the latest and presumably the most informed expression of the Court"s opinion.
[13] In this regard, the highly technical doctrine of res judicata becomes, in the circumstances of this case, a two-edged sword for the claimants. Whatever be the proper reach and meaning of the judgment of the Supreme Court of Canada in this matter, it was before this Court when it made the Order of March 2, 1998. That Order contains specific provisions with regard to the entitlement of the present claimants:
| THIS COURT FURTHER ORDERS that this judgment and the settlement reached do not create any rights in favour of persons described in the style of cause as "present descendants of the Beaver Band of Indians" or in favour of persons described in paragraph 3 of the Statement of Claim as "all descendants of the Beaver Band of Fort St. John and the St. John Beaver Band, ascertained and unascertained and their legal personal representatives", including any right to claim entitlement to share in the Settlement Proceeds. The question of their entitlement remains to be resolved in accordance with Appendix "A" and upon further order of the Court; |
| ... |
| THIS COURT FURTHER ORDERS that the question of the right of persons described in the style of cause as "present descendants of the Beaver Band of Indians" or persons described in paragraph 3 of the Statement of Claim as "all descendants of the Beaver Band of Fort St. John and the St. John Beaver Band, ascertained and unascertained and their legal personal representatives" (the "Descendants") to claim entitlement to share in the Settlement Proceeds will be determined in the manner provided in Appendix "A" of this Order |
[14] Nothing could be clearer: the Court, on March 2, 1998, ordered in the most formal terms that the question of the entitlement of the present claimants remained open and was to be determined by the Court in accordance with the procedure laid down in that Order. That is the process in which we are now engaged.
[15] There can be no question as to the final character of the Order of March 2, 1998. The time for launching an appeal therefrom has long since expired. In the course of a case management meeting held on September 16, 1998, in Vancouver, I drew the attention of counsel to the fact that the Order of March 2 was final and had not been appealed. No application was made then or later to extend the time for appeal. The Order binds the claimants and establishes beyond peradventure that the question of entitlement to the proceeds of the judgment had not been settled by the Supreme Court of Canada. If that Order was wrong, so be it; the time for doing anything about it is long past.
[16] This brings me to the second reason for dismissing the res judicata argument which is, of course, that in my view the Order of March 2, 1998, was not wrong, and did not contradict the judgment of the Supreme Court of Canada and that the latter did not settle the question of entitlement in any way. To understand the reason why I took, and still take that view, it is necessary to know something of the history of the action and its progress through the various levels of court as it appears from the materials included in the Case. I should add that those materials were all drawn to the Court"s attention by counsel for the plaintiffs prior to March 2, 1998.
[17] The action was brought in September 1978, alleging, amongst other things, breach of fiduciary duty by the Crown in connection with its dealings with Indian reserve 172. That reserve consisted of land which had been set aside by the Crown in accordance with what is now section 18 of the Indian Act2 for the use of the Beaver Band. However, at the time the action was brought the Beaver Band had ceased to exist; the year before it had been divided into two separate Bands; the Doig River Band and the Blueberry River Band. Those Bands succeeded to the rights of the Beaver Band and they continue to exist to this day. However, the fiduciary duty which was found by the Supreme Court of Canada to have been breached in 1949 had, of course, at that time, been owed to the Beaver Band only.
[18] At the opening of the trial in January, 1987, there was some discussion between counsel then representing the Bands and the trial judge, Mr. Justice Addy. The latter was clearly concerned that the style of cause, especially when read in conjunction with paragraph 3 of the Statement of Claim, was open to the interpretation that the representative plaintiffs were purporting to represent deceased persons and persons as yet unborn. Counsel confirmed that it was his intention to represent descendants of the Beaver Band but that he had no objection to the addition of the word "present" before the word "descendants" in the style of cause which was amended accordingly. The question as to whether these "present descendants" constituted the same or a different class with differing interests from the members of the two successor Bands does not appear to have come up then or later.3 In particular, it did not come up in the final judgment of Addy J.; it did not need to since the judge was of the view that the action should be dismissed. Likewise, when the matter reached the Court of Appeal, the question of the precise composition of the represented class of plaintiffs did not arise for the same reason. Finally, it is apparent from the extensive reasons for judgment of the Supreme Court of Canada that the matter was not argued before or even considered by that Court.
[19] What is clear, both from the formal judgment of the Supreme Court of Canada and from the reasons given to support it, is that the breach of fiduciary duty for which the Crown was found to be liable in damages was in respect of Indian reserve 172 and that it was the Beaver Band which was the beneficiary of the duty which had been breached.
[20] The rule of res judicata is a technical rule but it is not, for all that, totally devoid of common sense or divorced from the realities of how courts and judges work. It is a commonplace that the doctrine applies only to what was actually decided by the Court or was necessarily incidental thereto. In my view, it is manifest that at no point in the litigation"s progress through the courts was the question of the entitlement of descendants of the Beaver Band who are not members of either of the successor Bands decided. Addy J. and the Court of Appeal did not decide it because they did not have to; the Supreme Court of Canada did not decide it because it was not asked to. The action was treated throughout as having been brought by the successors to the Beaver Band, whoever they might be, and that is where it rests4. The question is open and falls now to be decided.
[21] Before leaving the question of res judicata, it is appropriate to deal briefly with the related question of estoppel which was also raised by some claimants as a separate argument. It is said that the representative plaintiffs are estopped from now denying that the present claimants have any entitlement to the proceeds of the judgment since they have, by their own actions, named them in the style of cause and cannot resile from what they have done.
[22] The argument is spurious. The present claimants have suffered no prejudice by being named in the style of cause and, if they have any rights (which would otherwise have been statute-barred), they are now in a position to assert them. There is no suggestion that any claimants have been lulled into inaction and it is difficult to conceive what action they might have taken if they had not been included in the style of cause. There is no suggestion that any claimant has detrimentally changed his or her position as a result of the action of the representative plaintiffs.
[23] Secondarily, I would add that in any event, it is trite law that estoppel cannot be the foundation for a claim of right; it is a shield and not a sword and if the claimants are entitled to share in the proceeds, it must be for some other reason.
ENTITLEMENT
[24] This brings me, at last, to the question of entitlement. Once all arguments based on res judicata or estoppel are set aside, it is a relatively simple matter to determine that the present claimants have no entitlement whatever to the proceeds of the judgment.
[25] Indian reserve 172 was set apart for the Beaver Band. A Band is a creature of statute under the Indian Act. It is a body of Indians for whom lands have been set aside by the Crown and for whose benefit such lands are held. A Band is not the same thing as a first nation. Its membership is not determined by inheritance or descendancy but by the law itself. A Band is a collectivity and the rights which a Band has in reserves which are set apart for it are collective and not individual rights. While such rights may include aboriginal or treaty rights, they are vested only in the Band. They are not transmissible by inheritance; a descendant of a Band member does not acquire any of the latter"s rights in the collectivity unless such descendant is, or becomes, him or herself a member of the Band.
[26] The rights of the Beaver Band in Indian reserve 172 were collective rights enjoyed by the members for the time being of that Band. When that Band ceased to exist those rights passed to the members of the two successor Bands, the Blueberry River and Doig River Bands. Since those rights were collective and not individual rights, they could neither be exercised by nor transmitted to individuals . The breach of fiduciary duty which has been established in this case was owed to the Beaver Band and the right of action which resulted therefrom was transmitted to the successor Bands. That right was equally a collective right which belonged and still belongs collectively and not individually to the members for the time being of those Bands. It is membership and not ancestry which determines entitlement to reserve lands and, in consequence, to the damages flowing from any breach of fiduciary duty in relation to those lands. Therefore, descendants who are not Band members can have no share in the proceeds of judgment.
[27] Some claimants assert entitlement to the proceeds of judgment as a result of rights flowing to them as descendants of the signatories of Treaty 8. That claim is equally misconceived. It confuses those aboriginal and treaty rights which flowed to those first nations which signed or adhered to Treaty 8 with the rights of the Beaver Band in reserve 172 which was set aside by the Crown for that Band in partial compliance with the Crown"s treaty obligations. Membership in a first nation, and the enjoyment of any aboriginal and treater rights which may flow from such membership, is quite different from membership in a Band and the enjoyment of the rights which flow from that status. Of course, the two may and often do overlap, but that does not make them the same.
[28] I have not found it necessary to study in any detail the provisions of the Indian Act dealing with transfers into and out of Bands and the consequences thereof. While those provisions deal with the rights of persons who cease to be members of a Band to be paid out or to acquire a share of collective rights in a new Band, they do nothing to support any claim by persons who are not now members of any particular Band to have a claim to share in the collective rights of that Band. That is the position of the present claimants and it fails.
CONCLUSION
[29] The question will be answered in the negative. There will be no order as to costs.
"James K. Hugessen"
Judge
__________________1 Stare decisis is, of course, something else altogether. The authority of a judgment as precedent is very much a function of the place occupied in the judicial hierarchy by the court which rendered it.
3 Former Rule 1711(1)(now 114(1)) seems to make it clear that all the represented plaintiffs should have had the "same interest"as the representatives..
4 One might draw an analogy to an action brought in the name of an estate which has not yet been settled; the entitlement of the estate is a separate question from the identification of the heirs.