Date: 19981119
Docket: T-4178-78
BETWEEN:
JOSEPH APSASSIN, Chief of the Blueberry River Indian Band,
and JERRY ATTACHIE, Chief of the Doig River Indian Band,
on behalf of themselves and all other members of the
Doig River Indian Band, the Blueberry Indian Band
and all present descendants of the Beaver Band of Indians
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the Department of Indian Affairs and
Northern Development and the Director of the Veterans Land Act,
Defendant
REASONS FOR ORDER and ORDER
HUGESSEN J.
[1] On March 2, 1998, this Court rendered final judgment on the plaintiffs" claim in this matter. The judgment provided inter alia as follows:
| THIS COURT ORDERS that the Plaintiffs are entitled to recover from the Defendant the sum of one hundred and forty-seven million dollars ($147,000,000), all inclusive of damages, pre-judgment interest and costs in all levels of court (the "Settlement Proceeds"); |
| THIS COURT FURTHER ORDERS that the Defendant will pay the amount of one hundred and forty-seven million dollars ($147,000,000) to the Blueberry River Indian Band and the Doig River Indian Band, jointly, or pursuant to their direction; |
| THIS COURT FURTHER ORDERS that this judgment shall be for all intents and purposes as if judgment awarding the Plaintiffs $147,000,000 had been pronounced after a trial of the action on the merits; |
| THIS COURT FURTHER ORDERS that this judgment and the settlement reached do not create any rights in favour of persons described in the style of cause as "present descendants of the Beaver Band of Indians" or in favour or persons described in paragraph 3 of the Statement of Claim as "all descendants of the Beaver Band of Fort St. John and the St. John Beaver Band, ascertained and unascertained and their legal personal representatives", including any right to claim entitlement to share in the Settlement Proceeds. The question of their entitlement remains to be resolved in accordance with Appendix "A" and upon further order of the Court; |
| THIS COURT FURTHER ORDERS that the claims of the Plaintiffs merge in this judgment and that the Defendant is hereby released with respect to the claims of the Plaintiffs made in this action. |
[2] The judgment went on to provide for the payment into trust by the Blueberry River and Doig River Indian Bands of a part of the settlement proceeds, and appendix A to the judgment provided for notice to be given to the following class of persons:
| All persons, other than members of the Blueberry River and Doig River Indian Bands, who were members or who are descendants of members of an Indian Band once known as the Beaver Band and later known as the Fort St. John Band and the St. John Beaver Band, and who may claim entitlement to share in the settlement proceeds in this action, which action arises out of a breach of fiduciary duty by the Crown in relation to the former Indian Reserve known as Indian Reserve No. 172. |
[3] The notices which were published in a number of newspapers invited persons claiming to be members of the above described class and to have rights in the proceeds of the judgment to file claims. Appendix A also prescribes a procedure and time limits for filing such claims. It concludes with the following words:
| Subject to the determination of the entitlement, if any, of claimants within the class described above who file a Notice of Claim within the time limited, an order of the Court for distribution of the Fund may be made upon the application of any interested party after June 15, 1998. |
[4] A large number of persons (hereinafter referred to collectively as the "claimants") have now claimed to be persons falling within the described class and to be entitled to share in the proceeds of the judgment. There is no doubt that the determination of the factual basis of those claims is likely to be long and arduous.
[5] The plaintiffs now move pursuant to Rule 220 to state the following question of law for determination by the Court:
| Are any persons, i.e., present descendants of the Beaver Band of Indians, who are not members of the Doig River Indian Band and the Blueberry River Indian Band for the time being, entitled individually or as a group to be considered members of the collectivity which has the right to the proceeds of judgment. |
[6] A large number of the claimants represented by a number of different counsel oppose the plaintiffs" motion but I am satisfied that the grounds raised in opposition to the stating of the question are, in fact, without exception, grounds which can and should be urged at the second stage of this procedure that is to say when the Court attempts to give an answer to the question. Since I propose to hear the second stage myself, in accordance with the timetable which I shall set, I think it best to make no further comment on the arguments which have been advanced by claimants and their counsel. It is enough to say that I am satisfied that the question proposed is one of law, that the necessary factual basis for answering it can be found in the materials already of record in this case, and that one possible answer to the question will be dispositive of some or all of the issues on the present stage of this action i.e. the determination of entitlement to the proceeds of judgment. I would add that proceeding in this way may result in substantial savings of time and money for the claimants and for the other parties to the action. The timetable for the filing and service of documents and the hearing of the question is (with one minor exception) as set out in a direction issued by me at a case-management conference held at Vancouver on September 16, 1998.
ORDER
ACCORDINGLY IT IS ORDERED:
| 1. The following question of law shall be determined: |
| Are any persons, i.e., present descendants of the Beaver Band of Indians, who are not members of the Doig River Indian Band and the Blueberry River Indian Band for the time being, entitled individually or as a group to be considered members of the collectivity which has the right to the proceeds of judgment. |
| 2. The question of law shall be determined upon a case which is to be prepared by plaintiffs and which will contain the following documents: |
| 1. Portions of transcripts from the Proceedings at Trial, dated January 12, 1987 and January 15, 1987; |
| 2. Statement of Claim dated September 19, 1978; |
| 1. Further Amended Statement of Claim dated December 17, 1985 and filed June 10,1986; |
| 2. Further Amended Defence dated January 5, 1987; |
| 3. Order of the Honourable Mr. Justice Addy dated January 16, 1987; |
| 4. Further Amended Reply dated February 9, 1993; |
| 5. Judgment of the Honourable Mr. Justice Addy dated November 4, 1987; |
| 6. Judgment, Federal Court of Appeal, February 9, 1993; |
| 7. Judgment, Supreme Court of Canada, December 14, 1995; |
| 8. Revised Formal Judgment, Supreme Court of Canada, May 23, 1996; |
| 9. Judgment, Federal Court of Canada, Trial Division, March 2, 1998. |
| 3. The following timetable shall be observed: |
| a) Case to be filed by 29 December 1998; |
| b) Plaintiffs" Memorandum of Fact and Law to be filed by 18 January 1999; |
| c) Defendant and Claimants" Memoranda of Fact and Law to be filed by 8 February,1999; |
| a) Reply, if any, to be filed by 15 February 1999; |
| a) Hearing date, 3 and 4 March 1999 at Vancouver, British Columbia. |
4. Costs are reserved and may be disposed of in the judgment determining the question.
"James K. Hugessen"
Judge
OTTAWA, ONTARIO, Thursday, November 19, 1998.