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Date: 20050624

Docket: T-1081-05

Citation: 2005 FC 903

Vancouver, British Columbia, Friday, the 24th day of June, 2005

Present:           THE HONOURABLE MR. JUSTICE TEITELBAUM                             

BETWEEN:

                                        CAPTAIN GEORGE QUOCKSISTER on his

                                        own behalf and on behalf of all members of the

                                                            AH-WAH-OO TRIBE

                                                                                                                                            Applicant

                                                                         - and -

                                     CAMPBELL RIVER INDIAN BAND COUNCIL

                                                           and ROBERT SEWID

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application made on short notice for an interim interlocutory injunction. Because of the urgency of the matter, I was obliged to issue a decision immediately after the parties completed their submissions.

[2]                The application, as filed, was for:

1.              An interlocutory injunction prohibiting the Campbell River Indian Band Council ("Council") from authorizing Robert Sewid to use the Quinwatsi Shrine located on the Campbell River Indian Band Reserve on June 24 and 25, 2005, and at any other time;


2.              An interlocutory injunction requiring the Council to prohibit Robert Sewid from using the Quinwatsi Shrine on June 24 and 25, 2005, or at any other time without the Applicant's consent;

3.              A writ of certiorari setting aside the decision of the Council which authorized Robert Sewid to use the Quinwatsi Shrine on June 24 and 25, 2005.

[3]                The grounds for the application for the interlocutory injunction, as listed in the Notice of Motion, are:

1.              The aboriginal rights of the Applicant and all members of the Ah-wah-oo tribe in relation to the use of the name Quinwatsi and the Quinwatsi Shrine;

2.              The practices and customs of the Ah-wah-oo tribe and the Campbell River Indian Band in relation to the use of the name Quinwatsi and the Quinwatsi Shrine;

3.              The Applicant's ownership rights in the Quinwatsi name and the Quinwatsi Shrine;

4.              The Council's fiduciary obligations, duties to consult and duties of fairness vis-à-vis the Applicant;

5.              Constitution Act, 1982, s. 35;

6.              Indian Act, R.S.C. 1985, c. I-9;

7.              Federal Courts Act, R.S.C. 1985, c. 41; and

8.              Rules 359, 372, 373 and 401 of the Federal Court Rules.

[4]                The Applicant, Captain (Chief) George Quocksister, filed three affidavits as evidence; two of the affidavits are sworn to by the Applicant and one is signed by Gerald Johnston. Chief George Quocksister also filed his own reply affidavit sworn to on June 23, 2005.

[5]                The Respondents filed the affidavits of Chief Henderson, who is Chief of the Campbell River Indian Band; of Robert Allen Pollard, who is Chief Councillor of the Campbell River Indian Band; the affidavit of Chief Robert Aul Sewid and the affidavit of Christine H. Sweet, Barrister and Solicitor, an associate in the law firm acting for the Respondent Robert Sewid.

[6]                In that I refused to issue the requested injunction immediately after the parties completed their submissions, I believe it necessary to give these very brief reasons for having done so.

[7]                It is trite law to say that an applicant for an interim interlocutory injunction has the burden to show the Court that he or she has an arguable case, will suffer irreparable harm which is not based on speculation, and that the balance of convenience is in favour of the applicant.

[8]                The standard for an "arguable case" is normally on the lower part of the scale except when the issuance of the injunction will effectively decide the case. In the case before me, after reading the affidavits of the Applicant, I was satisfied that there was enough evidence to show an arguable case.

[9]                With regard to the issue of irreparable harm, the evidence is found mainly in paragraph 36 of the Applicant's affidavit of June 21, 2005:


The Campbell River Indian Band and many aboriginal persons in the Campbell River and surrounding area have been made aware of my opposition to the Quinwatsi being used by Robert Sewid. If such a use occurs, I will be humiliated and demeaned in my aboriginal society and my tribe will be mocked. The same will be true if Sewid's family commits the sacrilege of having females perform the Hamatsa dance in the Quinwatsi. In either case, my whole family will lose face in our society. We will suffer harm that cannot be quantified in money damages.

[10]            At the end of the hearing, I explained that I was not satisfied with this evidence. I explained that the evidence of humiliation is purely speculative. In fact, I would think that there would be no humiliation because the Applicant can show that he took steps to prevent the use of the Quinwatsi.

[11]            The affidavits filed by the Respondents clearly show that the balance of convenience favours the Respondents. I do not believe it necessary to repeat in these brief reasons what is stated in the affidavits.

[12]            The application will be denied with costs in favour of the Respondents. I wish to commend all counsel for their preparedness and presentation in such short notice.

                                               ORDER

THIS COURT ORDERS that the application for an interim interlocutory injunction is denied, with costs in favour of the Respondents.

(Sgd.) "Max M. Teitelbaum"

Judge


                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1081-05

STYLE OF CAUSE: CAPTAIN GEORGE QUOCKSISTER

on his own behalf and on behalf of all members of the AH-WAH-OO TRIBE v. CAMPBELL RIVER INDIAN BAND COUNCIL and ROBERT SEWID

PLACE OF HEARING:                                 Vancouver, BC

DATE OF HEARING:                                   June 23, 2005

REASONS FOR ORDER AND ORDER: TEITELBAUM J.

DATED:                                                           June 24, 2005

APPEARANCES:

Ms. Wendy A. Baker                                        FOR APPLICANT

Ms. Rosanne M. Kyle

Mr. Simon R. Wells                                           FOR RESPONDENT, Campbell

Ms. Dianne Rideout                                           River Indian Band Council

Mr. Stan Ashcroft                                              FOR RESPONDENT, Robert Sewid

SOLICITORS OF RECORD:

Miller Thompson LLP                                        FOR APPLICANT

Vancouver, BC

Davis & Company LLP                                                 FOR RESPONDENT, Campbell

Vancouver, BC                                                 River Indian Band Council

Ashcroft & Company                                        FOR RESPONDENT, Robert Sewid

Vancouver, BC


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