T-796-77
Louis Gabriel, Crawford Gabriel, Norman Simon,
Richard Gabriel, Lawrence Jacobs, Mavis
Etienne, Ronald Bonspille, all duly registered as
the owners of "Kanesatakeronon Indian League
for Democracy" (Plaintiffs)
v.
Peter Canatonquin, Hugh Nicholas, Peter
Etienne, Kenneth Simon, John Montour, Wesley
Nicholas, Edward Simon, Joe Nelson, Haslem
Nelson, carrying on illegally under the name "Six
Nations Iroquois Confederacy" (Six Nations Tra
ditional Hereditary Chiefs) (Defendants)
and
The Queen (Mis -en-cause)
Trial Division, Thurlow A.C.J.—Montreal, May
4; Ottawa, May 12, 1977.
Jurisdiction — Application for leave to file conditional
appearance objecting to jurisdiction of the Court — Dispute re
legality of Indian band council — Traditional chiefs or elected
council — Whether council of Indian band a `federal board,
commission or other tribunal" — Federal Court Act; R.S.C.
1970 (2nd Supp.), c. 10, s. 18.
In an application for declaratory relief and injunction
brought under section 18 of the Federal Court Act, the defend
ants brought an application for leave to file a conditional
appearance for the purpose of objecting to the jurisdiction of
the Court. At the hearing of the latter application and at the
adjourned hearing, it was indicated by counsel for the plaintiffs
as well as the defendants that the matter should be dealt with
on the merits of the objections. The defendants' objection to the
Court's jurisdiction questions whether the council of an Indian
band is a "federal board, commission or other tribunal" as
defined in section 2(1) of the Federal Court Act.
Held, the application for leave to file a conditional appear
ance is dismissed, time to file statement of defence is extended
and paragraphs 13 and 14 and paragraphs (iii) and (iv) of the
prayer for relief of the amended statement of claim are struck
out. Until the point has been resolved at a higher level the
proper course is to adopt the view that exclusive jurisdiction in
a case 'such as this resides in this Court and rule that the
council of a band is a "federal board, commission or other
tribunal" within the meaning of the definition.
The Attorney General of Canada v. Lavell [1974] S.C.R.
1349; Rice v. Council of the Band of Iroquois of Caugh-
nawaga, February 13, 1975, unreported, Superior Court of
Quebec, No. 500 05-015 993-742 and Diabo v. Mohawk
Council of Kanawake, October 3, 1975, unreported, Supe
rior Court of Quebec, No. 05-013331-754, discussed.
APPLICATION.
COUNSEL:
Cyril E. Schwisberg, Q.C., for plaintiffs.
James A. O'Reilly for defendants.
SOLICITORS:
Schwisberg, Golt, Benson & Mackay, Mont-
real, for plaintiffs.
O'Reilly, Hutchins & Caron, Montreal, for
defendants.
The following are the reasons for order ren
dered in English by
THURLOW A.C.J.: This is an application for:
... an order granting leave to Defendants, Peter Canatonquin,
Hugh Nicholas, Peter Etienne, Kenneth Simon, John Montour,
Wesley Nicholas, Edward Simon, Joe Nelson and Haslem
Nelson, to file a conditional appearance for the purpose of
objecting to the jurisdiction of the Court in respect of the
proceedings as set out in the Declaration dated the 25th day of
February, 1977, and Filed the 25th day of February, 1977, in
the Registry of the Federal Court of Canada, and for the
purpose of objecting to irregularities in the commencement of
the proceedings and if leave be granted for an Order striking
out the Declaration and dismissing the proceedings on the basis
that there is no jurisdiction in the Court to entertain the said
Declaration or, alternatively, that no reasonable cause of action
exists or in the alternative for an Order extending the time
within which Defendants must file an appearance and a defence
to the said Declaration or for such further and other order as
may be just.
On the hearing of the application following dis
cussion of the need for a conditional appearance,
the merits of the defendants' objections to the
jurisdiction and to the statement of claim were
argued and, at the adjourned hearing, it was
indicated by counsel for the plaintiffs as well as for
the defendants that the matter should be dealt
with on the merits of the objections raised and on
the basis of the amended statement of claim filed
in the interval during which the application stood
adjourned.
The plaintiffs allege that they are members of a
band of Indians residing on a reserve at Oka. In
summary, they assert that the system of electing
the council of the band was illegally changed in or
about the year 1969 and that the defendants have
been illegally elected as hereditary chiefs and are
illegally acting as the council of the band. The
relief sought includes a declaration that the elec
tion of the band council and of its members a.
hereditary chiefs with lifelong tenure on the coun
cil is illegal, null, and void. The plaintiffs alsc
claim an injunction enjoining the defendants from
calling themselves "hereditary chiefs" or acting aE.
such and from using the name of the Six Nation
of the Iroquois Confederacy and an order that a
new election take place within six months.
Under section 18 of the Federal Court Act':
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
The expression "federal board, commission or
other tribunal" is defined in section 2 as meaning
2....
... any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by or
under an Act of the Parliament of Canada, other than any such
body constituted or established by or under a law of a province
or any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867.
The substantial question that arises as to the
jurisdiction of the Court is whether the council of
an Indian band is a "federal board, commission or
other tribunal" within the meaning of that expres
sion as so defined. If so, it appears to me that the
proceeding is one for relief of a kind referred to in
section 18; being a proceeding for declaratory
relief- with respect to the validity of the constitu
tion of the council within the meaning of para
graph 18(a) and also as being a proceeding for
relief in the nature of relief of the kind obtainable
' R.S.C. 1970 (2nd Supp.), c. 10.
by writ of quo warranto within the meaning of
paragraph 18(b).
Subsection 2(1) of the Indian Act 2 contains a
definition of the expression "council of the band"
and throughout the Act there are provisions which
refer to the council and confer on it rights and
powers. These include section 9, which gives the
council certain rights to object to entries on the
band register, section 13, which makes admissions
to the band subject to the consent of the council,
and sections 18, 20, 58, 59 and 64, which confer
rights in connection with the use and allotment of
land in the reserve and with respect to other
property of the band. In addition, section 81 pro
vides that:
81. The council of a band may make by-laws not inconsist
ent with this Act or with any regulation made by the Governor
in Council or the Minister, for any or all of the following
purposes, namely:
(a) to provide for the health of residents on the reserve and
to prevent the spreading of contagious and infectious
diseases;
(b) the regulation of traffic;
(c) the observance of law and order;
(d) the prevention of disorderly conduct and nuisances;
(e) the protection against and prevention of trespass by
cattle and other domestic animals, the establishment of
pounds, the appointment of pound-keepers, the regulation of
their duties and the provision for fees and charges for their
services;
(j) the construction and maintenance of water courses,
roads, bridges, ditches, fences and other local works;
(g) the dividing of the reserve or a portion thereof into zones
and the prohibition of the construction or maintenance of any
class of buildings or the carrying on of any class of business,
trade or calling in any such zone;
(h) the regulation of the construction, repair and use of
buildings, whether owned by the band or by individual
members of the band;
(i) the survey and allotment of reserve lands among the
members of the band and the establishment of a register of
Certificates of Possession and Certificates of Occupation
relating to allotments and the setting apart of reserve lands
for common use, if authority therefor has been granted under
section 60;
(j) the destruction and control of noxious weeds;
(k) the regulation of bee-keeping and poultry raising;
(1) the construction and regulation of the use of public wells,
cisterns, reservoirs and other water supplies;
(m) the control and prohibition of public games, sports,
races, athletic contests and other amusements;
2 R.S.C. 1970, c. I-6.
(n) the regulation of the conduct and activities of hawkers,
peddlers or others who enter the reserve to buy, sell or
otherwise deal in wares or merchandise;
(o) the preservation, protection and management of fur-
bearing animals, fish and other game on the reserve;
(p) the removal and punishment of persons trespassing upon
the reserve or frequenting the reserve for prescribed
purposes;
(q) with respect to any matter arising out of or ancillary to
the exercise of powers under this section; and
(r) the imposition on summary conviction of a fine not
exceeding one hundred dollars or imprisonment for a term
not exceeding thirty days, or both, for violation of a by-law
made under this section.
Further powers including a power to raise
money by taxation are also provided for in section
83 but these are applicable only when the Gover
nor in Council declares that the band has reached
an advanced stage of development.
There are also provisions in sections 78 and 79
for the disqualification and removal from office of
a chief or councillor on certain defined grounds.
The scheme thus disclosed by the statute, as it
seems to me, resembles that of a somewhat
restricted form of municipal government by the
council of and on the reserve and, were there no
expressions of judicial opinion on the point in
question, I would conclude that such a council was
a "federal board, commission or other tribunal"
within the meaning of the Federal Court Act.
However, in The Attorney General of Canada v.
Lave11 3 , Laskin J. (as he then was), with whom
three other judges of the Court concurred,
expressed doubt that a band council fell within the
definition. He said at page 1379:
I share the doubt of Osier J. whether a Band Council, even
an elected one under s. 74 of the Indian Act (the Act also
envisages that a Band Council may exist by custom of the
Band), is the type of tribunal contemplated by the definition in
s. 2(g) of the Federal Court Act which embraces "any body or
any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act of
the Parliament of Canada". A Band Council has some resem
blance to the board of directors of a corporation, and if the
words of s. 2(g) are taken literally, they are broad enough to
3 [1974l S.C.R. 1349.
embrace boards of directors in respect of powers given to them
under such federal statutes as the Bank Act, R.S.C. 1970, c.
B-1, as amended, the Canada Corporations Act, R.S.C. 1970,
c. C-32, as amended, and the Canadian and British Insurance
Companies Act, R.S.C. 1970, c. I-15, as amended. It is to me
an open question whether private authorities (if I may so
categorize boards of directors of banks and other companies)
are contemplated by the Federal Court Act under s. 18 thereof.
However, I do not find it necessary to come to a definite
conclusion here on whether jurisdiction should have been ceded
to the Federal Court to entertain the declaratory action
brought by Mrs. Bédard against the members of the Band
Council. There is another ground upon which, in this case, I
would not interfere with the exercise of jurisdiction by Osler J.
On the other hand in Rice v. Council of the
Band of Iroquois of Caughnawaga 4 , the Superior
Court of Quebec declined jurisdiction to issue an
injunction against the council of a band on the
ground that the council was a "federal board,
commission or other tribunal" within the meaning
of the Federal Court Act. Bisaillon J., after refer
ring to sections 18 and 2 of the Federal Court Act,
said at page 3 of his reasons:
[TRANSLATION] It is therefore necessary to determine
whether the "Band Council of the Caughnawaga Iroquois"
constitutes such an organization, subject to the right of review
of the Federal Court.
The Indian Act, R.S., c. 149, in sections 2, 13, 20, 28, 39, 58,
59, 64, 66, 73, 81 and 83 inter alia, defines band council and
lists its powers.
A reading of these sections leaves no doubt that the band
council is a group of people exercising administrative powers
which are conferred on it by the Indian Act, and constitutes an
organization over which this Court has no jurisdiction to issue
an injunction and for which the Federal Court is henceforth the
sole tribunal with jurisdiction to hear appeals for review, among
them the issuance of an injunction.
In Diabo v. Mohawk Council of Kanawake 5 ,
Aronovitch J. of the same Court expressed a simi
lar view when he said at page 4:
It does not seem to be a point of contestation between the
parties that the Defendant is a "federal board commission or
other tribunal" within the meaning of this Section. In any
event, the definitions in Section 2 of the Act make it clear that
Defendant is such a body.
4 February 13, 1975, unreported, Superior Court of Quebec
No. 500 05-015 993-742.
5 October 3, 1975, unreported, Superior Court of Quebec No.
05-013331-754.
It does not appear from the reasons in either of
these cases that the doubt expressed in the Lave11
case was brought to the attention of the Court.
With due respect for the doubt expressed and
the reason given therefor, but bearing in mind that
the point was left open and that the Superior
Court of Quebec has declined jurisdiction because
of its view that exclusive jurisdiction in a case such
as this resides in this Court, I think that until the
point has been resolved at a higher level the proper
course is to adopt that view and rule that the
council of a band is a "federal board, commission
or other tribunal" within the meaning of the defi
nition. It follows that this Court has jurisdiction to
entertain the proceeding in so far as it is brought
for a declaration that the defendants have been
illegally elected and are illegally acting as the
council of the band.
I shall not set out in detail the several allega
tions of the amended statement of claim but, while
some of them are of dubious relevance and others
are not models of pleading, I am not satisfied that
the amended statement of claim does not disclose a
reasonable cause of action against the named
defendants for such a declaration.
On the other hand, I know of no basis on which
it can properly be held that the Court has jurisdic
tion to entertain the claim against the defendants
for an injunction to restrain them from calling
themselves "hereditary chiefs" or from using the
name of the Six Nations of the Iroquois Confeder
acy or to order a new election. In short, it appears
to me that the jurisdiction of the Court in the
matter is simply to determine the right of the
defendants to exercise the statutory functions of
the band council and, if the plaintiffs should suc
ceed, to declare that the defendants are not the
chief and councillors of the band, thus rendering
the offices vacant and leaving it to the appropriate
authority to arrange for a legally selected council.
In my opinion, therefore, paragraphs 13 and 14 of
the amended statement of claim and paragraphs
(iii) and (iv) of the prayer for relief should be
struck out.
In the circumstances, no costs of the application
will be awarded against any party.
ORDER
Paragraphs 13 and 14 and paragraphs (iii) and
(iv) of the prayer for relief of the amended state
ment of claim are struck out.
The time for filing a defence is extended thirty
days from the date of this order.
In other respects the defendants' application is
dismissed.
No costs of the application are payable by any
party to any other party.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.