Hodgson v. Ermineskin Indian Band No. 942
T-2553-91
Hargrave P.
10/9/99
23 pp.
Motion to strike statement of claim or portion thereof-Plaintiffs descendants of Fred, Mina Hodgson, made Band members by 1937 resolution of Ermineskin Band Council-In 1944 Minister of Mines and Resources allegedly wrongly deleting names of Fred, Mina Hodgson, five of plaintiffs from Band registration-Plaintiffs alleging allowing deletion of their names from Band membership breach of fiduciary duty owed to plaintiffs-Band seeking to strike statement of claim, paras. 10, 11-Para. 10 alleging Band, council publicly stated sections of Indian Act dealing with Band membership unconstitutional, and control of membership in Band Aboriginal right held by individual bands-Par. 11 alleging Band, council refusing, continuing to refuse to honour 1937 resolution-Band seeking to have all references to Band removed from prayer for relief so that only claim for relief against Band possibility of declaration plaintiffs Band members since 1937-Band alleging: (1) no reasonable cause of action as not owing any fiduciary duty to plaintiffs; (2) Court not having jurisdiction over claim for damages or equitable relief-(1) Band submitting relevant dates 1944 (when Minister made decision to cancel Band membership), 1991 (when Band refused to allow reinstatement)-Arguing 1937 resolution nullified by 1944 Ministerial decision; no cause of action against Band, only against Minister-Band also submitting not owing fiduciary duty as plaintiffs not members of Band at any relevant time-To strike pleadings on basis no fiduciary duty owed since plaintiffs not shown in Band, government records as Band members between 1944, 1991 requiring too narrow analysis-Plaintiffs not limiting claim as commencing in 1944, but going back to November 1937-Possibility of fiduciary duty going back to 1937 arguable-Band knowing of claim for some time-Band council, showing ordinary care, skill, prudence in carrying out fiduciary duties, might be expected to put aside sufficient funds to cover eventuality of plaintiffs being reinstated as members before making general distribution to those listed by Band as members-In absence of authority showing fiduciary duty not owed in present circumstances, categories of fiduciary duty not closed-As possible breach of fiduciary duty by all defendants could succeed, motion dismissed-(2) Band submitting no statutory grant of jurisdiction-Possible Federal Court having statutory jurisdiction under Federal Court Act, s. 17(2)-S. 17(2)(a) giving Trial Division concurrent jurisdiction where land, goods, money of any person in Crown's possession-Crown holding Indian moneys in trust for all Band members herein-Plaintiffs claiming to be Band members; Band disputing membership claim-While legislated transfer of control of Band money, Minister still having some obligations eg. reporting requirement, overseeing capacity-Ongoing obligation in part based on concept Minister may not abdicate legislated responsibility-Even though Minister delegated money management to Band, cannot say Minister having absolutely no responsibility-Requirements of s. 17(4), granting concurrent jurisdiction to Trial Division to determine disputes where Crown under obligation "in respect of which are or may be conflicting claims", may have been met-Band arguing no conflicting claims-Submitting Crown having neither authority nor duty to determine Band membership, having delegated control of Band membership to Band-Referring to Indian Act, s. 10(9) providing Indian Affairs and Northern Development shall have no further responsibilities with respect to Band list from date Band taking control of membership-S. 10 not extending exemption from further responsibility to Minister-Minister may have obligation to require Band, as agent to take heed of grandfathering Band membership provisions under ss. 10(4),(5)-Band's analysis of s. 10 also deficient as plaintiffs' claim not only as to present membership, but also as to past membership-Band submitting neither claims against Crown nor asserts any obligation conflicting with obligations alleged to be owed to plaintiffs, nor claims any interest or asset being claimed by plaintiffs-Several possibilities of competing claims eg. whether obligation of payment of that of Crown or Band or divided obligation-S. 17(4) not requiring positive allegation in statement of claim of competing claim, but only that may be competing claims flowing from facts pleaded-S. 17(5)(b), extending Court's jurisdiction to matters in which relief sought by any person by reason of performance of duties as servant, agent of Crown, not best, but possible grant of jurisdiction-Plaintiffs alleging Band dealing with membership as servant, agent of Crown under authority delegated by Minister of Indian Affairs and Northern Development pursuant to Indian Act, s. 10-Difficulties: (1) Band council not usually servant, agent of Crown, although possible in certain circumstances; (2) statement of claim not expressly stating Band servant, agent of Crown-Whether employment, agency relationship depending on nature of agreement, circumstances of relationship-None of points raised by Band approaching persuasiveness, certainly required to strike out any portion of statement of claim-Federal Court Act, R.S.C., 1985, c. F-7, s. 17(2)(a) (as am. by S.C. 1990, c. 8, s. 3), (4) (as am. idem), 5(b) (as am. idem)-Indian Act, R.S.C., 1985, c. I-5, s. 10 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4).