T-617-85
Montana Band, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
and
Samson Band, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians (Third Party)
and
Ermineskin Band, Chief Gerald Robert Ermineskin and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians (Third Party)
T-782-97
Chief Florence Buffalo acting on her own behalf and on behalf of all of the other members of the Samson Cree Nation and Band and the Samson Cree Nation and Indian Band (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (Defendants)
Indexed as: Montana Bandv. Canada (T.D.)
Trial Division, Reed J."Calgary, September 18; Ottawa, November 3, 1997.
Practice — Parties — Third party proceedings — Capacity of Indian bands to sue and be sued — No need for separate representative as guardian ad litem for members of class under legal disability.
Native peoples — Capacity of Indian bands to sue and be sued — No need for separate representative as guardian ad litem for those under legal disability.
The Montana Band initiated an action against the Crown to have a 1909 surrender of reserve lands declared invalid. The Crown issued notices adding the Samson and Ermineskin bands as third parties. The Crown then brought this motion for third party directions pursuant to Rule 1729 of the Federal Court Rules. It also sought an order requiring the band council members to defend on behalf of those members of their respective bands who are not under a legal disability and an order requiring that the chief of each of the third party bands be appointed guardians ad litem of the infant and mentally incompetent members of their respective bands.
Held, an order as to third party directions in the usual form should issue, omitting the additional positions asked.
Bands can sue and be sued in their own names and the orders sought are unnecessary. The basis of that juridical status cannot be found in constitutional documents, which make no reference to "bands", nor in the case law of the United States of America, because American experience in this respect is much too different from the Canadian experience, nor on an analogy to municipalities, which have been given the capacity to sue or be sued by legislation or other legal instrument.
The band has been described as an enduring entity with its own government, a unique type of legal entity under Canadian law, in a class by itself. Case law has recognized that because of the particular powers and obligations imposed by statute on a band council there must exist an implied capacity to sue and be sued with respect to the exercise of those powers and the meeting of those obligations. Uncertainties as to the extent of that capacity have been avoided by framing claims as representative or class actions.
The manner in which the parties have been named, that is naming the band first and then stating that certain band members (usually the elected councillors) are acting on their own behalf as well as on behalf of all other members of the band, covers any uncertainties about legal status that might exist. This is a normal way of proceeding. It will be open to individuals who fall within the class covered by the class action to apply to the Court not to be included in the represented class but to have independent status.
statutes and regulations judicially considered
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91(24), 132.
Constitution Act, 1930, 20 & 21 Geo. V, c. 26 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 16) [R.S.C., 1985, Appendix II, No. 26], s. 1.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], Part VII.
Federal Court Rules, C.R.C., c. 663, RR. 1700, 1711, 1729, Form 55 (as am. by SOR/79-57, s. 36).
Indian Act, R.S.C., 1985, c. I-5, ss. 2 "band", 74.
Indian Act, 1876 (The), S.C. 1876, c. 18.
Interpretation Act, R.S.O. 1990, c. I.11.
Royal Proclamation, 1763 (The), R.S.C., 1985, Appendix II, No. 1.
Rupert's Land and North-Western Territory Order, R.S.C., 1985, Appendix II, No. 9, s. 14.
Urban Municipality Act, 1970 (The), S.S. 1970, c. 78.
cases judicially considered
applied:
Keewatin Tribal Council Inc. v. Thompson (City), [1989] 5 W.W.R. 292; (1989), 61 Man. R. (2d) 241; [1989] 3 C.N.L.R. 121; [1989] 2 C.T.C. 206 (Q.B.); Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72; (1982), 139 D.L.R. (3d) 9; 82 CLLC 14,208; [1982] 4 C.N.L.R. 94; 44 N.R. 136; Clow Darling Ltd. v. Big Trout Lake Band (1989), 70 O.R. (2d) 56; [1990] 4 C.N.L.R. 7 (Dist. Ct.); Joe v. Findlay (1987), 12 B.C.L.R. (2d) 166; [1987] 2 C.N.L.R. 75 (S.C.).
distinguished:
Mount Pearl (City) et al. v. Newfoundland (Minister of Provincial and Municipal Affairs) (1991), 99 Nfld. & P.E.I.R. 271; 315 A.P.R. 271 (S.C.T.D.); Cholod et al. v. Baker et al., [1976] 2 S.C.R. 484; (1976), 59 D.L.R. (3d) 728; [1976] 2 W.W.R. 609; 6 N.R. 525; Gallagher vs. Armstrong (1911), 3 Alta. L.R. 443 (S.C.T.D.).
referred to:
Canadian Pacific Ltd. v. Matsqui Indian Band, [1997] 2 C.N.L.R. 16 (F.C.T.D.); King v. Gull Bay Indian Band (1983), 38 C.P.C. 1 (Ont. Dist. Ct.); Bannon v. Pervais (1989), 68 O.R. (2d) 276; [1990] 2 C.N.L.R. 17 (Dist. Ct.); Kucey v. Peter Ballantyne Band Council, [1987] 3 W.W.R. 438; (1987), 57 Sask. R. 29; [1987] 3 C.N.L.R. 68; 16 C.P.C. (2d) 59 (C.A.); Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al., Re (1982), 135 D.L.R. (3d) 128; [1982] 3 W.W.R. 554; 15 Sask. R. 37 (C.A.); Afton Band of Indians v. A.G.N.S. (1978), 85 D.L.R. (3d) 454 (N.S.S.C.).
authors cited
Gilbert, Larry. Entitlement to Indian Status and Membership Codes in Canada. Scarborough, Ont.: Carswell, 1996.
Henderson, W. "Litigating Native Claims" (1985), 19 Gazette 174.
Imai, Shin et al. Aboriginal Law Handbook. Scarborough, Ont.: Carswell, 1993.
Imai, Shin. The 1997 Annotated Indian Act. Scarborough: Carswell, 1997.
Reiter, Robert A. An Examination of the Evolving Concept of Band Councils, their Authorities and Responsibilities, and their Statutory Instruments of Power. Edmonton: First Nations Resource Council, 1990.
Rogers, Ian MacFee. The Law of Canadian Municipal Corporations, 2nd ed. Agincourt, Ont.: Carswell, 1997.
Woodward, Jack. Native Law. Toronto: Carswell, 1990.
MOTION for third party directions pursuant to Rule 1729 of the Federal Court Rules following addition of Samson and Ermineskin Bands as third parties (Montana Band v. Canada, [1991] 2 F.C. 273; [1993] 2 C.N.L.R. 123; (1991), 44 F.T.R. 183 (T.D.); affd by [1993] 2 C.N.L.R. 134; leave to appeal to S.C.C. denied, [1993] 2 S.C.R. v; 3 C.N.L.R. v; 185 N.R. 320n).
counsel:
Edward H. Masters for plaintiff.
Geoffrey S. Lester for defendant.
Priscilla E. S. Kennedy for third party Samson Band.
Maria A. Morellato for third party Ermineskin Band.
solicitors:
Burke-Robertson, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defendant.
Parlee McLaws, Edmonton, for third party, Samson Band.
Blake, Cassels & Graydon, Vancouver, for third party, Ermineskin Band.
The following are the reasons for order rendered in English by
Reed J.:
Request for Third Party Directions
The defendant in T-617-85 brings a motion for third party directions pursuant to Rule 1729 of the Federal Court Rules [C.R.C., c. 663]. The validity of the notices issued by the defendant adding the third parties to that action was confirmed by Mr. Justice Strayer in a decision dated February 1, 1991.1 While a motion for directions was originally part of the motion before Mr. Justice Strayer, this was not proceeded with at that time because counsel expected that these matters could be resolved by agreement among counsel. Mr. Justice Strayer's decision confirming the validity of the addition of the third parties to the action was affirmed by the Federal Court of Appeal on October 8, 1992 [[1993] 2 C.N.L.R. 134]. Leave to appeal that decision was denied by the Supreme Court on May 27, 1993 (S.C.C. File No. 23349) [[1993] 2 S.C.R. v].
Nature of the Actions
The cause of action (T-617-85) to which this motion relates is one in which the plaintiffs (the Montana Band) assert that in 1909 the defendant accepted a surrender of certain reserve lands from individuals who had by that time become members of the Samson and Ermineskin bands. The Montana Band asserts that it was they or their ancestors from whom the surrender should have been obtained and that the surrender that was accepted is therefore invalid. The defendant Crown issued third party notices claiming that if the plaintiffs are correct, then, the Crown can seek a contribution or indemnity from the Samson and Ermineskin Bands (or band members) for funds paid to them pursuant to the invalid surrender.
The third party Samson Band subsequently commenced an action (T-782-97) against the Crown asserting a continuing right in the reserve lands and claiming that the 1909 surrender was invalid because it was obtained by fraud and without legal authority. The Samson Band argues, alternatively, that if the 1909 surrender by the Samson and Ermineskin band members was valid, an earlier surrender of part of the reserve by the Montana Band, in 1901, is invalid. Actions T-617-85 and T-782-97 have now been consolidated.
Third Party Directions Necessary for those under a Legal Disability?
Many of the provisions of the proposed third party directions, sought by the present motion, follow in form and content those set out in Form 55 of the Federal Court Rules [as am. by SOR/79-57, s. 36]. Those provisions are not in dispute. Counsel for the Montana Band, however, expressed concern that the involvement of the third parties not be allowed to delay the progress of his client's claim. That claim was commenced in 1985. In order to accommodate that concern, it was agreed that qualifying words (unless otherwise ordered) be included in several paragraphs of the directions to make it clear that further orders of the Court could modify the terms of participation by the third parties, including, if necessary, an order requiring that the third party issue be tried separately from the Montana Band's claim against the defendant. Equally the terms of consolidation of T-617-85 and T-782-97 make it clear that those actions can be ordered to be tried separately, despite their present consolidation, should the result of that consolidation be that the plaintiffs' action in T-617-85 is subjected to delay.
The main point of contention between the defendant and the third parties is the defendant's request for directions that certain named individuals be ordered to represent the band members for the purposes of this litigation. An order is sought requiring the band council members to defend on behalf of those members of their respective bands who are not under a legal disability. An order is requested that the Chief of each band (Victor Buffalo in one case, Gerald Robert Ermineskin in the other) be appointed guardians ad litem of the infant and mentally incompetent members of their respective bands.
These requests raise in the eyes of the third parties the contentious question of whether Indian bands can sue and be sued in their own names" whether they have juridical status. Counsel for the third parties assert categorically that bands can sue and be sued in their own names and that orders requiring band council members to act on behalf of all legally competent band members, and requiring the band chiefs to act on behalf of those who are under a legal disability are simply inappropriate and unnecessary.
Indian Band (Band Council) Capacity to Sue and be Sued
The argument that Indian bands have the capacity to sue and be sued proceeded from several different legal starting points.
a) Constitutional Recognition
If I understand counsel's argument correctly, one such argument is that the bands have juridical status because they have been recognized in various constitutional documents,2 and have been recognized, at least in the United States jurisprudence, as having such status. In that country the concept of domestic dependent nations was adopted to describe Indian tribes.
I did not find in the documents to which I was referred, apart from Treaty No. 6, references to Indian bands. The documents contain references, for example, to Indian tribes, Indians and lands reserved for Indians, and Aboriginal treaty or other rights, but not to Indian bands. Treaty No. 6, which is not a constitutional document, was negotiated in 1876; the relevant adhesion for present purposes was signed in 1877.
It has been noted that the term "band" was created by the federal government when it enacted The Indian Act , 1876 [S.C. 1876, c. 18], to describe any "tribe, band or body of Indians" who have a reserve or an annuity.3 Larry Gilbert provides the following explanation:
It is an historical fact that Indians across North America were organized into tribes, not bands. The federal government created the term "band".4
And further at pages 73-74:
"band" is a word that was foreign to many aboriginal communities in 1850. For example, in the Algonquin world, there were villages but there were many hunters, fishermen and families who lived in the bush and travelled between villages according to the season. The "band" or the idea of a stationary body of Indians is an invention of the Government of Canada.
"Band" is presently defined in section 2 of the Indian Act:5
2. . . .
"band" means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act.
Section 74 provides a system of band government by band council. It has been asserted that the Indian Act system of political organization is not likely rooted in tradition:
First Nations had many different types of political organizations at the time of first contact with Europeans, but it is unlikely that any First Nation structured its society in the way prescribed by the Indian Act. The Indian Act imposed the European system for elections by secret ballot on Aboriginal communities. It was fiercely resisted by some First Nations, particularly those belonging to the Six Nations, and traditional councils continue to exist on some reserves. Adherents to traditional councils continue to refuse to recognize chiefs elected under the Indian Act. Canadian courts, however, do not recognize traditional councils as having governing authority.6
In so far as the United States jurisprudence is concerned, it is well to remember that that country commenced as a union of the original thirteen colonies located along the eastern seaboard and, then, expanded westward acquiring territory, incrementally, by a variety of methods including war. In Canada, however, sovereignty over almost the whole territory (certainly over that relevant for present purposes) was asserted from an early date by Britain. The issuance of the Hudson's Bay Charter in 1670 is an example of the assertion of that sovereignty. I am not prepared to accept the United States jurisprudence as relevant to the issue presently before the Court.
b) Analogous to Municipalities
Counsel argues that because Indian bands are elected bodies, they have the capacity to sue and be sued, in the same way that a municipality has such capacity. Under Canadian law, however, an elected body does not have juridical status simply because it is an elected body representing electors. Parliament does not have the capacity to sue or be sued; the Prime Minister and provincial premiers do not have legal capacity to sue or be sued on behalf of the respective governments over which they preside. It is Her Majesty in Right of Canada or the province, as a corporation sole, that is the legal personality.
Even if I were to accept that Indian band councils are similar to municipal governments,7 municipalities are bodies that have been given a corporate status as a result of legislation or some other legal instrument.8 The extent of the authority to sue or be sued may vary depending upon the relevant legislation or legal instrument. For example, in Ontario a municipality derives its right to sue and be sued from the Ontario Interpretation Act, R.S.O. 1990, c. I.11, which states that any words making any association or number of persons a corporation or body politic and corporate, vest in the corporation the power to sue and be sued.
Three cases were submitted as authority for the proposition that municipalities have the right to sue and be sued, on behalf of all the residents or electors of the municipality, not because they have been given such capacity by legislation or other legal instrument but because they are elected bodies with governmental responsibilities over a defined geographical area. The decisions do not support that position.
Mount Pearl (City) et al. v. Newfoundland (Minister of Provincial and Municipal Affairs) (1991), 99 Nfld. & P.E.I.R. 271 (S.C.T.D.), was an action brought in the name of the city, and by the mayor (as plaintiff in both a representative capacity, as representing all of the taxpayers of the City of Mount Pearl, and in his own right as a taxpayer). The action sought to prevent the implementation of a provincial enactment that would have the effect of amalgamating Mount Pearl with other towns, and would transfer Mount Pearl's fire department to the City of St. John's. Preliminary questions were raised as to the standing of both the councillors and the mayor in the proceeding. There is nothing in the decision that indicates that the city was not incorporated and lacked capacity to sue under its incorporating instrument. The capacity of the mayor to represent all the residents of the city was raised and argument thereon was postponed to a later date. The decision is not authority for the proposition that an unincorporated municipality (if such could in fact exist) has the capacity to sue or be sued.
Cholod et al. v. Baker et al., [1976] 2 S.C.R. 484, was a relator action brought by the Attorney General for Saskatchewan, instituted by three plaintiff citizens/voters. The citizens applied for a writ of mandamus to compel the mayor and six named members of the council of the City of Regina to carry out their functions as required by the relevant statute. The City of Regina was also named as a defendant. In this case the plaintiffs (Cholod et al.) objected to a by-law for the expenditure of funds for a new City Hall without first putting the question to the voters as required by The Urban Municipality Act, 1970, [S.S. 1970, c. 78]. There is nothing to indicate that the City of Regina was not a corporation with the capacity to sue and be sued. This was an action in which several residents of a city sought to require the mayor and councillors to comply with the legislation governing the exercise of their authority. There is nothing in the decision, or in the way it was brought, that indicates either that a collectivity of voters have a juridical personality or that the mayor and councillors have a juridical status to sue or be sued different from that which accrues to them as natural persons.
In Gallagher vs. Armstrong (1911), 3 Alta. L.R. 443 (S.C.T.D.), there are many references to the fact that the City of Edmonton was a corporation and the plaintiffs were acting in a capacity analogous to that of shareholders of a corporation, given standing to sue the directors or trustees of the corporation (i.e., the council members) on behalf of all the shareholders. This case does not assist in the argument that an elected body that has been given no express capacity to sue or be sued acquires such as a result of its elected or governmental status.
c) Implied Capacity Arising from Statutorily Imposed Rights and Obligations and Class or Representative Actions
Neither a band nor a band council have corporate status; nor is either a natural person in the eyes of the law.9 A band is not an unincorporated association; it is not a group of tenants-in-common because membership does not confer a present right of possession of band property.10 In Keewatin Tribal Council Inc. v. Thompson (City), [1989] 5 W.W.R. 202 (Man. Q.B.), at page 215, Jewers J. described a band as an unincorporated association of a unique nature, because it is created by statute rather than by consent of its members.
The nature of a band as a party has been described:
The band, as an enduring entity with its own government, is a unique type of legal entity under Canadian law. The rights and obligations of the band are quite distinct from the accumulated rights and obligations of the members of the band. . . . In law a band is in a class by itself. No doubt the law will develop forms of proceeding appropriate to this special class of litigant without necessarily slavishly following precedents established for associations of a different nature.11
I turn then to the jurisprudence respecting the capacity of a band (band council) to sue or be sued. The jurisprudence establishes that because of the particular powers and obligations imposed by statute on a band council there must exist an implied capacity to sue and be sued with respect to the exercise of those powers and the meeting of those obligations.12
A significant decision in this regard is Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72. In that decision it was held that while the relevant legislation did not establish a band or band council as a corporate body, it did grant the band council powers which if exercised required that the band council be subject to the same liabilities as the law imposes on natural persons exercising those powers. Thus, the band council's status as an entity with legal capacity to act as an employer arose by necessary implication.
This decision was applied in Clow Darling Ltd. v. Big Trout Lake Band (1989), 70 O.R. (2d) 56 (Dist. Ct.). That decision contains reference to several earlier decisions,13 all of which held that a band council's legal status to sue or be sued in its own name arises as a result of various powers and obligations having been conferred on it, by statute. Thus a band council has the capacity to function and to take on obligations separate and apart from its individual members, as does a corporation, and representative orders were held to be not always necessary in proceedings involving Indian bands.
In Joe v. Findlay (1987), 12 B.C.L.R. (2d) 166 (S.C.) it was held that a band council's authority to bring and defend legal proceedings on behalf of the band, although not expressed in the Act, must be inferred as a necessary adjunct to give effect to the band's powers under the Act. The litigation in question was an action by the council to recover possession of part of the reserve lands which had been leased by one of the band members to non-band members. In addition to confirming that the council had legal capacity to bring such an action the Court also confirmed that it was not necessary for the elected council to seek the consent of the band to do so [at page 172]:
I do not accept the contention that the right to bring an action should be regarded as a "power", to be sought in the statute and closely limited. The matter seems to me not to be one of power, in that sense, so much as a matter of status, to be inferred from the nature of the council's functions.
This band council is elected by its members to exercise statutory and other rights and duties, including the allocation of permits for the occupation of reserve land. To say that it has the power to allocate reserve land but no status to recover possession when rights it has granted have expired would, it seems to me, be to deny the council the ability effectively to carry out this important function. Council cannot exercise the legal authority vested in it if it has not the status in law to bring such an action as this against those who overhold. [Emphasis added.]
Because the capacity of a band (band council) to sue or be sued arises by implication from and is tied to the statutory powers and obligations conferred on it, the extent of its capacity to sue or be sued has uncertain boundaries. That is, the band or band council has not been given corporate status commensurate with the powers of a natural person. Uncertainties as to the extent of the capacity of a band to sue and be sued have been avoided, however, by framing claims as class actions.14
Analysis of the Motion
Interestingly, counsel for the defendant agrees that bands can sue and be sued in their own name. He argues that the extent to which such is effective depends upon the nature of the particular case. This accords with the jurisprudence. He argues that in this case he will be seeking a remedy against the trust funds of the band and a tracing remedy to follow monies into the hands of individual band members. He characterizes the interest each individual member has in the band trust account as comparable to the interest a beneficiary has in an unadministered estate. Counsel for the third parties, on the other hand characterize the band trust fund as a collective right"the interest of each band member being comparable to the rights each has in reserve lands. Thus any remedy that might be given, in their view, can only exist against the band.
Counsel for the Samson Band invites me to decide whether the remedy the defendant seeks can properly be sought from individual band members or is only exigible (if at all) against the band as a collectivity. It is not appropriate to decide this kind of issue, on an interlocutory motion. It is not appropriate to decide whether the nature of the funds held in trust is for a band or for its members, and whether there is any practical, meaningful difference between characterizing the individual band member's interest as comparable to that of a beneficiary's interest in an unadministered estate or as an interest comparable to that held by the collectivity in reserve lands. Nor is it appropriate to decide whether or not the remedy the defendant seeks to pursue is viable. There are certainly difficulties with it. Regardless of the answers to these questions, I am not persuaded that the representative orders sought by the defendant are necessary.
The plaintiffs when they commenced this action did so under the following style of cause:
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta,
When the defendant issued third party notices, the parties were described as follows:
SAMSON BAND, Chief Victor Buffalo, and Larron Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightning, Stan Crane, Lawrence Saddleback, Todd (Chester) Buffalo, Arnup Louis, Lester B. Nepoose, Jim Omeasoo, and Robert Swampy, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians,
and
ERMINESKIN BAND, Chief Eddie Littlechild, and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Gordon Lee, Arthur Littlechild, Richard Littlechild, Emile Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the members of the Ermineskin Bank of Indians,
One of the third parties, the Samson Band et al., as has been noted, commenced an action (T-782-97), against the defendant which is now consolidated with the present action. When doing so, the style of cause that was adopted to describe the plaintiffs was:
CHIEF FLORENCE BUFFALO acting on her own behalf and on behalf of all of the other members of the SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
Plaintiffs
The manner in which the parties have been named, that is naming the band first and then stating that certain band members (usually the elected councillors) are acting on their own behalf as well as on behalf of all other members of the band covers any uncertainties about legal status that might exist. As I have noted, this is a normal way of proceeding. I have been referred to no case in which it has been thought necessary to name a guardian ad litem for those members of the band who are under a legal disability. Also, if one characterizes the style of cause as describing a representative or class action, again, I have been referred to no jurisprudence that requires a separate representation as a guardian ad litem, for members of the class who are under a legal disability.
Federal Court Rule 1711 provides for proceeding by way of class action. All that is required, in the first instance, is to frame the cause of action in a representative fashion or to name the defendants as a class represented by one or more individuals. Unless an objection is subsequently made, there is no need for a further order of the Court to allow the claim to proceed in a representative fashion as a class action. An individual that falls within the class may apply to the Court, not to be included in the represented class but to have independent status, as a plaintiff, or defendant, as the case may be. In this case counsel for the third parties have accepted and continue to accept service of the various procedural documents on behalf of their clients. In such circumstances, notice of the proceedings and their nature will be made known to the class members.
Counsel for the defendant is concerned that after trial of the action, and if he obtains the tracing remedy he seeks, that one or more of the members of the class will apply under subsection 1711(5) of the Rules for exemption from execution because they were not properly represented, being under a legal disability, or perhaps because the nature of the remedy he seeks somehow makes it necessary for them to have been named as individual defendants. I have been referred to no jurisprudence that gives a foundation to these concerns.
In addition, counsel for the Ermineskin Band notes that an order under Rule 1700, to appoint a guardian ad litem, is not appropriate because the action in question is not a proceeding against infants or mentally incompetent persons. She also notes that requiring one person, the Chief of the Ermineskin Band, to act as guardian ad litem for the over 1,000 infant members of the Band would be totally impractical"it would be a procedural nightmare.
Given the way these actions and the third party claims have been framed, I have not been persuaded that it is necessary to include additional representation orders in the directions.
For the reasons given, an order as to third party directions in the usual form will issue, without the additional provisions respecting representation that counsel for the defendant seeks.
1 [1991] 2 F.C. 273 (T.D.)
2 Royal Proclamation, 1763 (The), R.S.C., 1985, Appendix II, No. 1; Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [(as am. by Canada Act 1982, c. 11 (U.K.) Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] (formerly British North America Act, 1867), ss. 132 and 91(24); Rupert's Land and North-Western Territory Order, R.S.C., 1985, Appendix II, No. 9, s. 14; Constitution Act, 1930, 20 & 21 Geo. v, c. 26 (U.K.) [(as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 16) [R.S.C., 1985, Appendix II, No. 26]], s. 1; Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] Part VII; Treaty No. 6 (1867).
3 L. Gilbert, Entitlement to Indian Status and Membership Codes in Canada (Scarborough, Ont.: Carswell, 1996), at p. 14.
4 Id., at p. 14.
5 R.S.C., 1985, c. I-5.
6 S. Imai, et al. Aboriginal Law Handbook (Scarborough, Ont.: Carswell, 1993), at pp. 113-114.
7 Canadian Pacific Ltd. v. Matsqui Indian Band, [1997] 2 C.N.L.R. 16 (F.C.T.D.), at p. 45, the analogy to municipalities, on the basis of the authorities cited to the Court in that case, was rejected.
8 I. Rogers, The Law of Canadian Municipal Corporations, 2d ed. (Agincourt, Ont.: Carswell, 1997), at pp. 1-2:
"A municipal corporation, in its strict and proper sense, is the body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purposes of local government thereof or more freely it can be defined as the "body corporate constituted by the incorporation of the inhabitants residing within a defined area upon which the legislature has, either directly or indirectly through some intermediate agency conferred corporate status, rights and liabilities, including the right to administer through the agency of an elected council or other governing body, such matters of local concern as are expressly specified, or as are necessarily implied from the nature and extent of the authority conferred".
See also pages 10, 1313-1314.
9 R. Reiter, An Examination of the Evolving Concept of Band Councils, their Authorities and Responsibilities, and their Statutory Instruments of Power (Edmonton: First Nations Resource Council, 1990), at p. 1.10 referring to Afton Band of Indians. v. A.G.N.S. (1978), 85 D.L.R. (3d) 454 (N.S.S.C.); see. p. 1.18 of the text.
10 J. Woodward, Native Law (Toronto: Carswell, 1990), at p. 14.
11 Id., at pp. 397-398.
12 See, for example, S. Imai, The 1997 Annotated Indian Act (Scarborough, Ont.: Carswell, 1997), at p. 6. See also J. Woodward, supra, at pp. 395-396:
Most modern cases make it clear that a band can sue and be sued. A band is a legal entity with rights and obligations under the law. The band must be empowered to sue to enforce those rights, and should be sueable [sic] on those obligations. Any other conclusion would render the rights and obligation meaningless.
See also note 9, supra, Reiter, at p. 2.11.
13 In King v. Gull Bay Indian Band (1983), 38 C.P.C. 1 (Ont. Dist. Ct.), it was held that Indian bands, being the creations of federal statute and having the same status in every province, are suable entities.
In Bannon v. Pervais (1989), 68 O.R. (2d) 276 (Dist. Ct.), this Court also found that Indian bands are legal entities and therefore capable of being sued eo nomine.
In Kucey v. Peter Ballantyne Band Council, [1987] 3 W.W.R. 438 (Sask. C.A.), it was held that the band council may sue or be sued in its own name, and that it has an existence in law which goes beyond that of its individual members (meaning individual members).
Similarly, in Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al., Re (1982), 135 D.L.R. (3d) 128 (Sask. C.A.), it was held that Indian band councils that are given statutory rights to incur legal obligations may sue or be sued in their own name.
14 See W. Henderson, "Litigating Native Claims" (1985), 19 Gazette 174.