VERNA SMITH, BEVERLY NAPESIS, HANK GEORGE NAPESIS, CHAD HORSEMAN, TINA HORSEMAN, KEVIN GARTH HORSEMAN, GLEN HORSEMAN, HOWARD HORSEMAN, DANIEL JOHN NAPESIS, TIFFANY ALICESON NAPESIS, LYDIA NAPESIS, DIANE GLADUE, GARY RUSSELL GLADUE, LOUIS JOACHIM, CLIFFORD ARTHUR, FABIAN LAGLACE, KELLY ROY GLADUE, DOREEN ROSE DUCHARME, DELAINAH LEE WALKER, YVONNE RYAN, LAVERN McCULLOUGH, ROLAND JAMES McCULLOUGH, ELSIE (LAGLACE) LETENDRE, LARRY McCULLOUGH, KENNTH PETER McCULLOUGH, RAYMOND PAUL McCULLOUGH, MARLENE DESJARLAIS, DANIEL GLADUE, GEORGINA VICTORIA CARDINAL, TERRY BADINE, VIOLET LILLIAN APSASSIN, LEEANNE HOWES, HARLEN WAYDE DAVIS, VIRGINA LALONDE, ALICE BEATRICE CALIOU, DONALD RICHARD DAVIS, VERNA CLARENCE RICHTER, LESTER STANLEY DAVIS, KURT WILLIAM RICHTER, BEATRIC JEAN DAVIS, ANGELINE HERMAN, DELAIN ROSE GAUTHIER (DAVIS), DINAH HELEN DAVIS, WANDA JOAN CAMPBELL, DAVID CONRAD RICHTER, BRANDY DAVIS, VICTORIA DAVIS, DON CORRIN WILBERT BLUE, CRISTOPHER STEVEN RICHTER, MADELEINE BLUE, AMANDA DAVIS, LENORA BLUE, SHARALEE YVONNE WALKER LAGLACE, MICHAEL WALKER, LANA GARBITT, CALVIN NAPESIS (ARNAULT), JEAN R. GARRIER, AMBER NAPESIS, CANDICE NAPESIS, DALLAS NAPESIS, ISAAC NAPESIS, MADELAINE WILSON, EDWARD PATRICK WILSON, LENA BAILEY WILSON, EVELYN FERGUSON, HARVEY WILSON, MABEL JESSEE DONOVAN (LAGLACE), ANDREA M. NAPESIS (CARDINAL), ERNEST F. HORSEMAN, MILES GLADU, MARY PEDERSEN, KELLY LLOYD JOACHIM, VERA LAGLACE, LARRY LAWRENCE LAGLACE, LORETTA LAGLACE, FLORA LAGLACE, CLIFF WALKER, JUANITA BATTLE, IYLEENE JOACHIM, RUDOLPH LAGLACE, ARTHUR McCULLOUGH, DONALD FERGUSON, JR., DAVID DESJARLAIS, DUSTIN EDWARDS, BRUCE DESJARLAIS, DIANE M. GLADUE, GARY GLADUE, OLIVER GLADUE, ROBERT GLADUE, COLIN GLADUE, R. JAMES McCULLOUGH, ERNEST McCULLOUGH, ROBERT LEON WILSON, AMANDA JOYCE FERGUSON, LEROY JOHN WILSON, GARY DWAYNE FERGUSON, KAREN NAPESIS and PATRICIA JANSEN
Applicants
- and -
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT (CANADA), ATTORNEY GENERAL OF CANADA and HORSE LAKE FIRST NATION and the members of the Horse Lake First Nation as represented by its Chief and Council
Respondents
(Delivered from the Bench at Edmonton, Alberta
on October 17, 2002)
[1] I have before me a motion to amend brought by the applicants. Apart from one minor uncontroversial matter, the motion seeks two distinct types of amendments:
[2] The First is to add a Charter argument to the previous procedural arguments alleged against the ratification by the respondent Band of the Settlement Agreement and the Banking Agreement.
[3] The second, seeks to convert the original application which was brought by 98 named individuals, (since reduced by discontinuances to 94) to a representative application in which 3 named applicants alone would appear as the applicants.
[4] The Charter amendment would add the following to the relief claimed:
II. AA. A declaration that the Applicants and each of them have been denied their rights to the equal protection and equal benefit of the law without discrimination contrary to Section 15 of the Canadian Charter of Rights and Freedoms and are entitled to participate in the ratification of the Settlement Agreement and the Banking Agreement and to share in the enjoyment of the fruits of the Settlement Agreement and the Banking Agreement equally with the present members of the Horse Lake First Nation.
[5] It would also add the following to the grounds:
III. The grounds for the application are:
AA. The Applicants and each of them have been denied their rights to the equal protection and equal benefit of the law without discrimination contrary to Section 15 of the Canadian Charter of Rights and Freedoms, in that:
The Applicants and each of them are Indians, the majority pursuant to the provisions of what is commonly known as the Bill C-31 amendment to the Indian Act. The applicants and each of them are descendants of past and present members of the Horse Lake First Nation, formerly known as the Beaver Indians of Dunvegan. By virtue of the acts of the Respondents and the combined effect of Bill C-31, the Horse Lake First Nation Membership Code established pursuant to Bill C-31, the Indian Act Referendum Regulations and the Horse Lake Band Election Regulations the Applicants have been denied: membership in the Band, participation in the ratification of the Settlement Agreement and the Banking Agreement and any interest in the fruits of those agreements.
[6] A good deal of the argument before me addressed the difficulty that the proposed Charter claim might encounter. However, as I conceive it, it is, not my duty on a motion of this sort to decide whether or not the proposed new claims will succeed and I will make no further comment on that question.
[7] There is however, one objection to the amendment which I consider to be critical. The rule is clear that only one decision may be attacked on an application for judicial review (see Rule 302.) The original application here attacks one decision, namely, the decision of the Band to ratify the Settlement Agreement and the Banking Agreement. From a reading of the proposed amendment, however, and particularly the proposed new ground mentioned in paragraph III AA above, it is clear to me that the proposed new proceeding does not directly put in issue the ratification vote or the decision made by the ratification vote as such but rather, and much more fundamentally a myriad of earlier decisions relating to membership in the Band of some or all of the named applicants which denied them membership (and the attendant right to vote). Furthermore, it attacks the underlying legislative decisions by which Bill C-31, the referendum regulations and the Band's membership code were adopted. In my view, it would be improper to allow such an amendment because the proposed new proceeding would itself be in clear contravention of the rules. Furthermore, the proposed new proceeding would, in my view, be quite unmanageable. The number of decisions being attacked is almost unknown. They include as I said, legislative decisions and they include individual decisions with regard to applications for membership by some but not all of the named applicants. This is not a proceeding to which the rapid and summary process envisaged by rules 300 and following for applications for judicial review is properly applicable.
[8] Turning to the second proposed amendment, I am equally of the view that it would not be proper to allow the proposed conversion of this present litigation, which, as I have said, is an application for judicial review by 94 named persons, into representative litigation. Since the litigation, as presently framed, is perfectly viable and I have heard nothing to say that it will not be manageable, I can see no necessity for the change. What is more, I do not think that the proposed representative litigation meets the tests laid down by the Supreme Court of Canada in the case of Western Canadian Shopping Centres Inc. v. Dutton [2001]2 SCR 534. The proposed represented classes are not homogenous. They are ill-defined and there are important differences not only between the classes but within and between members of each class. Just to take a very simple example, the lists produced on the cross-examination of the deponent indicate that in these groups there are some who made applications for membership that were accepted, there are some who made applications for membership that were refused, there are some who appealed those refusals, there are some who did not make applications for membership at all, there are some who live on the reserve, there are some who live off the reserve and so on. These are all important and relevant facts in any determination of an individual's right to be a member of the Band and to cast a vote in a referendum. And I do not, as I say, see any homogeneity in the proposed classes. They do not have the same interest, therefore, I think they should not be treated as a class.
[9] Finally, I am not satisfied, although this is a relatively minor consideration, that the proposed representative applicants being apparently persons of few means would be appropriate to replace the 94 named applicants who are presently on the style of cause. Accordingly, the motion will be dismissed.
Judge
Ottawa, Ontario
October 18, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-348-01
STYLE OF CAUSE: VERNA SMITH ET AL V. THE MINISTER OF INDIAN AFFAIRS ET AL
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 17, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: October 18, 2002
APPEARANCES:
Dan Carroll FOR THE APPLICANTS
Derik Lloyd FOR THE RESPONDENT HORSE LAKE FIRST NATION
Paul Shenher FOR THE RESPONDENT THE QUEEN
SOLICITORS ON THE RECORD:
Field Atkinson Perraton
Edmonton, Alberta FOR THE APPLICANTS
Fraser Milner Casgrain
Calgary, Alberta FOR THE RESPONDENT HORSE LAKE FIRST NATION
Morris Rosenberg FOR THE RESPONDENT THE QUEEN
Deputy Attorney General of Canada