T-5229-80
Raymond-Viateur Beauvais (Plaintiff)
v.
The Queen and le conseil de la bande indienne
Mohawk de Kanawake (The Mohawk Council of
Kanawake) (Defendants)
Trial Division, Walsh J.—Montreal, February 11;
Vancouver, February 26, 1981.
Jurisdiction — Motion by plaintiff to add as defendant
Minister of Indian Affairs and Northern Development —
Motion by defendant to strike plaintiff's declaration on the
ground that this Court lacks jurisdiction ratione personae and
ratione materiae — Plaintiff authorized by Mohawk Council
of Kanawake to operate quarry on reserve — Plaintiff ordered
by newly-elected Band Council to cease operations — Interim
injunction sought by plaintiff in Superior Court of Quebec
denied — Plaintiff seeking in its declaration an injunction
against defendants and damages resulting from a loss of profit
— Whether this Court has jurisdiction over the injunctive
relief and the damages claim — Whether Mohawk Council of
Kanawake can be sued — Indian Act, R.S.C. 1970, c. I-6, ss.
2(1), 58(4)(b) — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 18.
Plaintiff seeks an order to add as a defendant the Minister of
Indian Affairs and Northern Development so that the injunc
tion sought by plaintiff be granted. Defendant, the Mohawk
Council of Kanawake, seeks an order to strike plaintiffs decla
ration on the ground that this Court lacks jurisdiction ratione
materiae and ratione personae. In 1975, the defendant, the
Mohawk Council of Kanawake, adopted a resolution whereby it
authorized plaintiff to operate a quarry on the reserve. The
Department of Indian Affairs and Northern Development
subsequently issued a permit. A newly-elected Band Council
ordered the plaintiff, in 1980, to cease all quarry operations
pending the granting, by it, of a permit to plaintiff. Plaintiff
thereupon filed before the Superior Court of Quebec a motion
for interlocutory injunction which was denied. Plaintiff now
seeks, in his declaration, damages resulting from a loss of profit
and an injunction against defendants, alleging a threat by the
Minister to revoke his permit if injunctive relief was sought.
The issues are whether this Court has jurisdiction with respect
to the injunctive relief and the damages claim and whether the
Mohawk Council of Kanawake can be sued.
Held, the plaintiffs motion is granted and the defendant's
(Mohawk Council of Kanawake) motion is dismissed. While no
claim for damages would lie against the Minister of Indian
Affairs and Northern Development personally if he committed
any actionable tort in the performance of his duties, an injunc
tion might conceivably lie against him if he cancelled, as
threatened, plaintiff's permit to operate the quarry. The refusal
by the Superior Court of Quebec to grant an interlocutory
injunction would not prevent this Court from granting one if
this Court has jurisdiction over the proceedings. It would be
contrary to natural justice to conclude that no court has
jurisdiction to grant an injunction, if on the facts such an
injunction is justified and necessary. However, there is no
applicable federal law to justify the institution of a claim in
damages in this Court against the Mohawk Council of Kana-
wake so that such a claim would have to be processed in the
Superior Court. Neither can the fact that this Court has
jurisdiction over a damages claim against the Queen give it
jurisdiction over the co-defendant. The question of the capacity
of defendant, the Mohawk Council of Kanawake, to be sued in
this Court appears to be in some doubt although the better
opinion now appears to be that it can with respect to section 18
remedies. The Band Council can be presumed to govern the
conduct of Band members and if it should be found that they
are acting illegally in interrupting the quarrying operations, it
is at least arguable that it can properly be enjoined to oblige
them to desist, without naming or serving individual members
of the Band. With respect to the damages claim, however, no
judgment for damages could be rendered against it any more
than a judgment against a city council rather than against the
city, or the board of directors of a company rather than against
the company itself would be effective.
Canatonquin v. Gabriel [1980] 2 F.C. 792, referred to.
McNamara Construction (Western) Ltd. v. The Queen
[1977] 2 S.C.R. 654, referred to. Quebec North Shore
Paper Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R. 1054,
referred to. R. v. Thomas Fuller Construction Co. (1958)
Ltd. [1980] 1 S.C.R. 695, referred to. Union Oil Co. of
Canada Ltd. v. The Queen [1974] 2 F.C. 452, referred to.
Beauvais v. Delisle [1977] 1 F.C. 622, referred to. Attor
ney General of Canada v. Lavell [1974] S.C.R. 1349,
referred to. Gabriel v. Canatonquin [1978] 1 F.C. 124,
referred to. The "Sparrows Point" v. Greater Vancouver
Water District [1951] S.C.R. 396, distinguished. Francis
v. Canada Labour Relations Board [1981] 1 F.C. 225,
considered.
MOTIONS.
COUNSEL:
P. Le Page for plaintiff.
Herbert C. Salmon for defendant Mohawk
Council of Kanawake.
J. C. Ruelland, Q.C. for defendant the Queen.
SOLICITORS:
Viau, Bédanger & Associés, Montreal, for
plaintiff.
Cerini, Salmon, Watson, Souaid & Harris,
Montreal, for defendant Mohawk Council of
Kanawake.
Deputy Attorney General of Canada for
defendant the Queen.
The following are the reasons for order ren
dered in English by
WALSH J.: Two motions came on for hearing in
Montreal:
(1) Plaintiff's application to amend the title of
cause by adding the Honourable Minister of
Indian Affairs and Northern Development in his
quality as a defendant in order that the permanent
injunction sought by plaintiff in his declaration
can be granted, and that permission be given to
produce an amended declaration to give effect to
this.
(2) Defendant the Mohawk Council of Kana-
wake's application to strike plaintiff's declaration
on the grounds that
(a) This Court lacks jurisdiction ratione mate-
riae and ratione personae;
(b) Plaintiff prior to the institution of the
present action acquiesced to the jurisdiction of the
Superior Court of the Province of Quebec to try
the issues raised in its declaration;
(c) Res judicata applies against plaintiff with
respect to his claim for injunctive relief;
(d) Said co-defendant does not have the juridi
cal personality, status or capacity to sue or be
sued;
(e) Plaintiff's declaration when read together
with the Exhibits mentioned therein does not indi
cate any right of action against said co-defendant.
The first motion should be granted. It is
common ground that no injunction can be issued
against Her Majesty the Queen as defendant but
that this Court has jurisdiction over any claim for
damages which might be against her by virtue of
the Crown Liability Act (R.S.C. 1970, c. C-38) if
any such damages can be proved. Conversely,
while no claim for damages would lie against the
Minister of Indian Affairs and Northern Develop
ment personally if he committed any actionable
tort in the performance of his duties, an injunction
might conceivably lie against him if he cancelled,
as was threatened, plaintiff's permit to operate the
quarry.
It is proper, therefore, to add the Minister as a
co-defendant and counsel for the Crown did not
seriously dispute this, although it will be argued on
the merits that there is a distinction between the
granting of a permit which is an administrative act
and the cancelling of it, if the Minister were to do
this, because of acquired rights.
The second motion raises a number of difficult
questions. It is trite law to state that on a motion
to strike, the Court must merely reach a conclu
sion as to whether, assuming all the facts alleged
in the statement of claim are true, a cause of
action would lie, and if there is any doubt about
this or evidence is necessary to reach such a con
clusion, then the motion should be dismissed leav
ing the matter for decision by the Trial Judge.
This is not to say, however, that if it is concluded
that this Court does not have jurisdiction, if res
judicata applies, or if there is lack of capacity on
the part of one of the parties, the motion to strike
should not be granted.
Defendant, the Mohawk Council of Kanawake's
counsel insists that it must not be confused with
the "band" which is defined in section 2(1) of the
Indian Act (R.S.C. 1970, c. I-6) as follows:
2. (1) In this Act
"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 the 4th day of September 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;
In the case of Canatonquin v. Gabriel [1980] 2
F.C. 792, the Court of Appeal held [at page 793]:
We are all of the view that the judgment below [[1978] 1
F.C. 124] correctly held that the council of an Indian band is a
"federal board" within the meaning of section 2 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, and that, as a
consequence, section 18 of that Act gave to the Trial Division
jurisdiction in the matter.
That decision does not mean that this Court has
jurisdiction to deal with the injunction sought
against the said defendant, however, nor to deal
with the claim for damages against it unless the
Band Council can be sued as a person.
A brief review of the facts is necessary in order
to understand the issue. On September 15, 1975
the Caughnawaga * Band Council authorized
plaintiff, himself an Indian, to operate a quarry on
his land on the reserve for a period of "at least
fifteen years". He was to pay a royalty per ton to
be established "by means of negotiations between
the said Raymond-Viateur Beauvais and the
Council of Caughnawaga Band of Indians".
On October 3, 1975 in a letter to Mr. Beauvais
written by G. A. Poupore, Director, Lands and
Membership Branch, Department of Indian
Affairs and Northern Development, reference was
made to the resolution and pursuant to section
58(4)(b) of the Indian Act authority was given to
operate a quarry for 15 years from the date of the
letter on payment of a royalty "at a rate per ton to
be negotiated on each anniversary date of this
authority between yourself and the Department of
Indian Affairs and Northern Development in con
sultation with the Council of the -Caughnawaga
Band of Indians." Provision was made for payment
of the royalties annually and a statutory statement
as to the quantity of stone quarried each year. This
was accepted by Mr. Beauvais on October 7. Sec-
* This designation seems to be used interchangeably with the
designation Mohawk Council of Kanawake.
tion 58(4)(b) of the Indian Act to which reference
is made reads as follows:
58....
(4) Notwithstanding anything in this Act, the Minister may,
without a surrender
(b) with the consent of the council of the band, dispose of
sand, gravel, clay and other non-metallic substances upon or
under lands in a reserve, or, where such consent cannot be
obtained without undue difficulty or delay, may issue tempo
rary permits for the taking of sand, gravel, clay and other
non-metallic substances upon or under lands in a reserve,
renewable only with the consent of the council of the band,
and the proceeds of such transactions shall be credited to band
funds or shall be divided between the band and the individual
Indians in lawful possession of the lands in such shares as the
Minister may determine.
On January 9, 1976, Chief Ronald Kirby on
behalf of the Mohawk Council of Kanawake,
issued a statement stating that Mr. Beauvais has
been authorized by the Caughnawaga Band Coun
cil to operate the quarry on paying 6 cents per ton
for the first 3 years and 10 cents a ton for the
remaining 12-year term of the lease.
On June 7, 1979, a new Band Council having
been elected, it adopted the following resolution:
Therefore, it is hereby ordered by the Mohawk Council of
Kanawake that the quarrying operations shall cease until such
time as the operation is transferred to the Mohawks of
Kanawake.
That the Certificate of possession is revoked and the lands are
placed back into the possession of the Mohawks of Kanawake
as administered by the Mohawk Council of Kanawake.
That the Mohawks of Kanawake have the use of the said lands
and stone extracted.
That the Kanawake Mohawk Police close the said quarry
immediately, June 7th, 1979.
On June 11 and 12 access to the quarry was
blocked by the Indian Band.
Plaintiff instituted proceedings for injunction
and damages against the Band Council and its
members as individuals in the Superior Court for
the District of Montreal and obtained an interim
injunction valid for 10 days on June 14, 1979. This
was renewed from time to time for 10-day periods
until February 4, 1980 when the Court refused to
renew it again, in view of the numerous renewals.
In the interval the Minister, with the consent of
the Band Council and plaintiff, appointed Fred
Kelly as a Royal Commissioner to make his
recommendations. His report, dated December 14,
1979, concluded that there was some doubt as to
the validity of the permit because the process set
out is in some conflict with the Council resolution
which had provided that royalties were to be estab
lished between Beauvais and the Band Council
while the permit of October 3, 1975 had provided
that they were to be established by negotiations
between Beauvais and the Department in consulta
tion with the Band Council. He commented that it
is arguable that the permit is not valid until royal
ties are established by negotiation.
With respect to Chief Kirby's letter of January
9, 1976 addressed "To Whom it May Concern"
(supra) the report points out that the Band Coun
cil resolution of September 15, 1975 did not dele
gate authority to Chief Kirby to negotiate royal
ties, so that it is without effect and does not bind
the Band Council.
Nonetheless it is stated in paragraph 21 of the
statement of claim that the report also said:
It is recommended that R.V. Beauvais be permitted to continue
his operations.
Despite this, on March 24, 1980 the Band
Council sent the following order to Mr. Beauvais:
The Mohawk Council of Kanawake orders that you cease
operations effective 7 a.m., March 25, 1980, until such time as
a legitimate acceptable permit has been granted to you by the
Mohawk Council.
The conditions of the Permit will be based on 10% of gross sales
of (sic) $2,000.00 per week for the first three (3) years with an
increase of $1,000.00 per week for each successive three (3)
year period, plus all conditions relating to environment, opera
tions, employee conditions, payroll, etc.
The Mohawk Peacekeepers have been ordered to enforce this
order.
(This would be completely at variance with the
method of payment at so much a ton set out in
Chief Kirby's letter of January 9, 1976 on the
basis of which royalties had previously been cal
culated and does not appear to have resulted from
any negotiations nor to have been approved by the
Department of Indian Affairs and Northern
Development.)
On March 25, 1980 the Peacekeepers of the
Indian Band stopped the operations of the quarry
on orders of the Band Council.
It is alleged in paragraph 28 in the statement of
claim that the Minister through his officers direct
ed Beauvais to negotiate with the Band Council
and that the quarry remain closed during the
negotiations and that the Deputy Minister, J. D.
Nicholson, advised Beauvais that the Minister
would unilaterally revoke his permit if he attempt
ed to obtain an injunction ordering the reopening
of the quarry. This threat, if it were in fact made,
(and for the purposes of this motion all the allega
tions must be dealt with as if true) would be
entirely unacceptable conduct in supporting one
side of the conflict and setting aside Court
intervention.
No agreement was reached in negotiations
during 1980 and the quarry has remained closed.
Meanwhile a competing quarry on the reservation,
operated by non-Indians, with whom no agreement
as to royalties has been reached, has been permit
ted by the Band Council and the Minister to
continue operating, this discrimination aggravat
ing the damages claimed by plaintiff who has lost
a long term contract which would allegedly have
resulted in $5,700,000 profit. A capital loan by the
National Bank of Canada in the amount of
$1,463,800 and $185,000 owed to it on plaintiff's
line of credit has been called by the Bank, and
plaintiff has $919,540 of accounts payable which
he cannot pay as the result of closure of his quarry.
Total damages claimed are $7,163,800.
On March 6, 1980 plaintiff submitted a motion
for interlocutory injunction to the Superior Court,
which was dismissed, although unfortunately no
reasons are given. The dismissal was without costs,
however, and reserved unto plaintiff his further
rights and recourses. It was argued by defendant
the Mohawk Council of Kanawake that the allega
tions in the application for interlocutory injunction
are nearly identical to those in the statement of
claim herein and that that decision constitutes res
judicata. The action in the Superior Court has not
come to trial on the merits, and the refusal to
grant an interlocutory injunction there, which may
well have resulted from some doubt in that Court
as to its jurisdiction which defendant's counsel
suggests was argued before it, would not prevent
this Court from granting an injunction if this
Court has jurisdiction over the present proceed
ings. Moreover it is inconsistent for defendant's
counsel to argue in proceedings before the Supe
rior Court that it has no jurisdiction to grant an
injunction, and then to renew the same argument
here with respect to the jurisdiction of this Court.
It would be manifestly contrary to natural justice
to conclude that no court has jurisdiction to grant
an injunction against the Band Council, if on the
facts such an injunction is justified and necessary.
A more serious question arises, however, with
respect to the argument that plaintiff in proceed
ing before the Superior Court chose its forum. It
would appear that there is no applicable federal
law to justify the institution of a claim in damages
in this Court against defendant the Mohawk
Council of Kanawake so that such a claim would
have to be processed in the Superior Court (see
McNamara Construction (Western) Limited v.
The Queen [1977] 2 S.C.R. 654 and Quebec
North Shore Paper Company v. Canadian Pacific
Limited [1977] 2 S.C.R. 1054). Neither can the
fact that this Court has jurisdiction over a damage
claim against Her Majesty the Queen give it juris
diction over the co-defendant (see The Queen v.
Thomas Fuller Construction Co. (1958) Limited
[1980] 1 S.C.R. 695). Jurisprudence has changed
substantially since the case of The `Sparrows
Point" v. Greater Vancouver Water District
[1951] S.C.R. 396, dealing with jurisdiction of the
then Exchequer Court over damages caused by a
ship and whether proceedings against a co-defend
ant should have been brought in the British
Columbia courts in which Kellock J. stated at page
404:
On the other hand, all claims arising out of the damage
occasioned by the ship should be disposed of in one action so as
to avoid the scandal of possible different results if more than
one action were tried separately.
The fact that proceedings may have to be
instituted in two Courts arising out of the same
cause of action when, as a result of limitations on
their jurisdiction only some part of the relief may
be obtained in each Court, is no longer a bar to
such unfortunate duplication of proceedings (see
Union Oil Company of Canada Limited v. The
Queen [ 1974] 2 F.C. 452).
A serious difficulty arises, however, as to wheth
er defendant the Mohawk Council of Kanawake
can be sued at all. In the case Francis v. Canada
Labour Relations Board [19811 1 F.C. 225, Chief
Justice Thurlow stated [at page 228]:
In my view the St. Regis Indian Band Council is not a person
within the meaning of section 118(p) [of the Canada Labour
Code]. Neither the council nor the Band itself is a body
corporate. Neither has capacity, apart from the capacity of its
members as individuals, to become or to be an employer of
employees.
Justice Heald states [at page 244]:
Thus it is clear that the Band Council itself is not a person but
is rather a collection of natural persons. I can find nothing in
the context of the Act which is evidence of any intention to
confer upon the Band Council itself the status of a legal person.
In dissent Justice Le Damn stated [at page 248]:
If the Council cannot be treated as the employer on the ground
that it lacks corporate status or explicit authority to make
contracts of employment then the same must be said of the
Band.
and later [at page 248]:
In effect it is not clear who, on strict legal tests, could be
considered to be the employer, having regard to the question of
legal personality and the question of authority to make con
tracts on someone else's behalf. Yet there is clearly a situation
in which persons have the status of employees. In these circum
stances, I think the Board should be held to have jurisdiction to
treat the Band Council as the employer for purposes of the
Code.
In the present case the injunction is sought
against the defendants, their agents, officers, man-
dataries and employees and all other persons
acting under their orders or with their tolerance,
acceptance or consent. It is not necessary to decide
at this stage of proceedings whether an injunction
could be granted on such broad terms against said
defendants. Even admitting that the Band Council
has no corporate personality as such, it is clear
that it adopted the initial resolution granting quar
rying rights to plaintiff, was accepted by him and
by the Minister as the other contracting party,
adopted the resolutions ordering the cessation of
operations and attempting to enforce unilateral
terms of payment, and ordered the Peacekeepers to
terminate plaintiffs operations. In doing so it was
presumably acting on behalf of the Mohawk of
Kanawake Band. Certainly even if the Court had
jurisdiction over the damage claim against it,
which it does not, no judgment for damages could
be rendered against it any more than a judgment
against a city council rather than against the city,
or the board of directors of a company rather than
against the company itself would be effective.
With respect to the injunction conclusions, how
ever, the situation may well be different. The Band
Council can be presumed to govern the conduct of
Band members and if it should be found that they
are acting illegally in interrupting the quarrying
operations, it is at least arguable that it can prop
erly be enjoined to oblige them to desist, without
naming or serving individually all the members of
the Band. A further problem arises in that the
individual members of the Band Council cannot be
sued in this Court (see the decision of Dubé J. in
Beauvais v. Delisle [1977] 1 F.C. 622 in which he
stated [at page 622]:
Applicant has not shown that the Trial Division has jurisdic
tion to issue an injunction against the members of an Indian
band council, as section 18 of the Federal Court Act provides
for this extraordinary remedy to be issued against "any federal
board, commission or other tribunal" and not against
individuals.
While he gave other reasons for dismissing the
injunction sought against members of the Council
personally and as members, this finding is valid.
In the case of Attorney General of Canada v.
Lavell [1974] S.C.R. 1349, Chief Justice Laskin
at page 1379 expressed doubt as to whether a
Band Council is the type of tribunal contemplated
by section 2(g) of the Federal Court Act or wheth
er private authorities are contemplated by section
18, but found it unnecessary to come to a definite
conclusion as to whether jurisdiction should have
been ceded to the Federal Court to entertain a
declaratory action against members of a Band
Council.
In two cases in the Superior Court in Quebec, a
judgment of Justice Bisaillon in Clifford Rice v.
Caughnawaga Iroquois Band, judgment dated
February 13, 1975, S.C.M. 500-05-015993-742
and a judgment of Justice Aronovitch in Diabo v.
Mohawk Council of Kanawake, judgment dated
October 3, 1975, S.C.M. 500-05-013331-754, it
was held that the Band came within the definition
of section 2 of the Federal Court Act and that the
Federal Court alone could issue an injunction or
grant declaratory relief pursuant to section 18.
Neither judgment seems to have considered the
Lavell case (supra).
It was in this context and after examining these
three cases that Associate Chief Justice Thurlow
(as he then was) rendered the judgment of the
Court of Appeal in another Canatonquin case,
Gabriel v. Canatonquin [1978] 1 F.C. 124 at page
130, stating in reference to the Lavell judgment:
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 defini
tion. 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.
These decisions, as well as one of Justice Decary
of this Court, refusing to grant a motion seeking
the issue of a writ of prohibition and for declarato-
ry relief to set aside a by-law of the Band Council
by virtue of which Rice had been prosecuted
(judgment dated December 9, 1977, unreported,
Court No. T-4371-77) were considered in detail by
Justice Marc Beauregard in the case of Terrance
Rice v. Mohawk Council of Kanawake, judgment
dated July 14, 1978, S.C.M. 500-36-000411-790,
which concluded that in the criminal appeal before
him he had the jurisdiction to consider and set
aside, as he did, the said by-law as being ultra
vires the powers of the Band Council.
The appeal from this judgment was dismissed by
the Quebec Court of Appeal, judgment dated Sep-
tember 5, 1980, No. 500-10-000303-782. At page
8 of that judgment Justice Mayrand, in comment
ing on the remarks of Chief Justice Laskin in the
Lavell case states:
[TRANSLATION] ... however, with deference to the simple
doubt expressed as to the precise meaning of the words " ...
board ... exercising powers conferred by an Act of the Parlia
ment of Canada" it seems to me sufficiently clear that they
include a public board such as the appellant Indian Band.
He agrees with Associate Chief Justice Thurlow's
conclusion to this effect in the Canatonquin case,
and with the Superior Court judgments in the
Diabo and Clifford Rice cases but concludes that
the fact that this jurisdiction rests with the Federal
Court by virtue of section 18 does not prevent the
invoking of the invalidity of the by-law as a
defence in criminal proceedings.
It is evident that the matters referred to in the
statement of claim herein are extremely complex
including serious issues of fact and of law. The
very existence of the permit to operate the quarry
is in doubt since there is a question as to whether
the consideration to be paid was ever validly estab
lished and an agreement without a fixed or deter
minable consideration is void. On the other hand,
plaintiff operated the quarry for several years on
the basis of this permit and may well have
acquired rights of which he cannot unilaterally be
deprived. It would appear that only part of plain
tiff's claim can be dealt with in this Court, the rest
being within the jurisdiction of the Quebec Supe
rior Court. The question of the capacity of defend
ant the Mohawk Council of Kanawake to be sued
in this Court appears to be in some doubt although
the better opinion now appears to be that it can
with respect to section 18 remedies.
Plaintiff has suffered serious damage as a result
of what well may have been improper acts of the
Band Council and to grant said defendant's motion
to strike might deprive him of any recourse by way
of injunctive or declaratory relief.
Although the motion must therefore be dis
missed the issues raised are serious so no costs will
be allowed to plaintiff. I cannot refrain from
expressing the evident desirability of avoiding fur
ther increase in damages by permitting the quarry
to be reopened for the summer quarrying season of
1981 while awaiting some settlement of the royalty
to be paid, whether by Court judgment, arbitration
or otherwise and that the terms of payment should
not be discriminatory in favour of the competing
quarry being permitted to operate on the
reservation.
In the affidavit supporting the motion it is set
out by Chief Andrew T. Delisle that the defendant
has very limited financial resources. It is apparent
that it is in the interest of the Indian Band that the
operation of the quarry should be permitted to
continue pending determination of the terms of
payment which cannot be determined unilaterally
by either party. On the present motion the Court
can make no such order but it is to be hoped that
common sense and goodwill will prevail so that the
issue of the amount to be paid for the gravel
removed may be settled without further interrup
tion of the quarry's operations.
ORDER
Defendant, the Mohawk Council of Kanawake's
motion to strike plaintiff's declaration is dismissed
without costs.
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.