Federal Court Decisions

Date: 20020219

Docket: T-1244-92

Neutral citation: 2002 FCT 176

BETWEEN:

                                       PERCY RICHARD WARD AND BERT WARD

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                  SAMSON CREE NATION NO. 444 AND CHIEF AND

                                     COUNCIL OF SAMSON CREE NATION NO. 444

                                                                                                                                                    Defendants

                                                                              - and -

                                       HER MAJESTY THE QUEEN as represented by

                                   THE MINISTER OF INDIAN AND INUIT AFFAIRS

                                                                                                                                                    Defendants

                                                        REASONS FOR JUDGMENT

(Delivered from the bench in Edmonton, Alberta

on Thursday, February 14, 2002)

HUGESSEN J.

[1]                 By their motion for summary judgment, the plaintiffs seek declarations that they are members of the Samson Band. They placed their claim to membership of the Band on several bases. Amongst others, they dispute the effect and validity of an alleged taking of scrip by their grandfather in 1886. They also rely upon the admission of their father to the Band in 1937, at the Band's request, after both the plaintiffs were born, and his subsequent removal from the Band list by the government in 1944, the validity of which is now contested and which was done over the Band's objections. While I do not say that the plaintiffs' claim to membership based on either of those grounds is necessarily bad, I do say that I cannot safely determine those grounds on a motion for summary judgment. The evidence is solely documentary. The documents themselves, as is so often the case in these types of claims, are confusing and often contradictory and, as is very rarely the case in this type of claim, there is no expert evidence before the Court to assist it in construing the documents and understanding their context. I accordingly do not think that these are matters upon which the Court could safely draw the necessary conclusions of fact one way or the other.

[2]                 There is, however, one aspect of the claim upon which I can rule with comfort. In 1987, following the coming into force of amendments to the Indian Act, which are still popularly known as Bill C-31, S.C. 1985, c. 27, the plaintiffs' names were added to the Samson Band's list by the Registrar. That was with effect June 29, 1987. The Indian Act, R.S.C. 1985, c. I-5, as amended, makes provision for protests to inclusions or exclusions from a band's list effected by the Registrar and there was no timely protest filed by the Band, or by anybody else, for the inclusion of the two plaintiffs on the Samson Band list, which is accordingly beyond dispute.

[3]                 The Band, I am told by counsel, has always taken the position that the Registrar has had no power to establish the Band's membership. That position, of course, requires a contention that the provisions of the Indian Act are inoperable, inapplicable or unconstitutional and that is apparently the position that the Band has chosen to take. However, it has not taken that position on this motion for summary judgment. Its pleadings in the action itself do assert that the Band is not subject to the provisions of Bill C-31 but the law is clear that on a summary judgment application, each party must put its best foot forward and must produce to the Court the evidence and the arguments that it has in support of its position. On this summary judgment motion, there has been no evidence produced in support of the Band's position on the constitutional question and there has been no notice given in accordance with section 57 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. So the matter cannot be decided in the Band's favour on this summary judgment motion, which means that it must be decided against the Band, whose constitutional defence is therefore dismissed.

[4]                 Accordingly, a declaration will issue that the plaintiffs, at least since June 29, 1987, have been members of the Samson Band. One of the plaintiffs, Percy Ward, died since the institution of the current proceedings and, of course, his membership in the Band will have come to an end on the date of his death. The other plaintiff, Bert Ward, is still alive and his rights as a member of the Band remain entire.

[5]                 I will hear counsel on the issue of costs and on any other consequentials; in particular, as to what, if anything, needs to be done with the remainder of the action.

                                                                                                                                                                                                                                      

                                                                                                                                                               Judge                      

Ottawa, Ontario

February 19, 2002