Federal Court Decisions

     T-1254-92

BETWEEN:

CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CURTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation

     Plaintiffs

     - and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE

     Defendants

     REASONS FOR ORDER

MacKAY J.:

     In the course of a pretrial conference counsel for the plaintiffs moved that issues raised by their statement of claim be severed from, and not be litigated with, other issues in the course of trial, currently scheduled to commence in August, 1997, at the same time and in conjunction with trial of the issues in Chief Victor Buffalo et al. v. Her Majesty the Queen et al., Court file T-2022-89, (herein referred to as the "Samson action").

     This action ("the Ermineskin action") and the Samson action involve a host of issues concerning three general matters: claims relating to oil and gas production from reserve lands, claims relating to management of moneys derived from revenues for oil and gas production from reserve lands of the plaintiff bands, and claims relating to programs and services provided for the two plaintiff bands on and in respect of their respective reserve lands. It is in relation to the last general matter, issues concerning programs and services, and issues concerning the home reserve, that is, the reserve where the Band is resident, that the Ermineskin plaintiffs now move to have severed from the trial of their action.

     For the Ermineskin plaintiffs counsel asks to sever, and not to proceed at trial with home reserve issues, which appears throughout the pleadings, and the programs and services issues which are set out in paragraphs 41, 42 and 43 of the Ermineskin Amended Statement of Claim, filed September 30, 1994. Those paragraphs are as follows:

41.          In addition, at all relevant times, the Defendants have illegally, improperly and inequitably withheld from the Plaintiffs funding for programs and services to which the Plaintiffs were and are entitled including, inter alia, programs and services relating to housing, reserve infrastructure, education, health, roads, economic and social development, capital facilities, band administration and operation and maintenance.

42.          The Plaintiffs, in order to meet their needs and the needs of their community, have had to expend their own funds for the purposes mentioned in paragraph 41, which amount they are entitled to recover from the Defendant Her Majesty the Queen in Right of Canada.

43.          The Defendants have also breached their fiduciary, trust treaty, common law, constitutional and statutory obligations to the Plaintiffs in respect to the lack of provision of services and programs for the Plaintiffs and in respect to the monies which the Plaintiffs have had to expend in respect to such programs and services.

In addition, relating to those paragraphs of the pleadings, the Ermineskin plaintiffs have responded to defendants' demand for particulars, at paragraph 6, page 24 of the response, filed October 25, 1994, as follows:

6.          IN RESPONSE TO PARAGRAPH 6 OF THE DEMAND

The Plaintiffs say that sufficient particulars of the services which were illegally, improperly or inequitably withheld from the Plaintiffs are provided in paragraph 41 of the Statement of Claim, inter alia. The Plaintiffs were and are entitled to such services by virtue of:

1.          their treaty rights under Treaty No. 6, including their rights to schools, medical and health care, public works and buildings, economic and developmental assistance;

2.          the fiduciary duty owed to them by the Crown, including duties of even-handedness arising from the fiduciary relationship;

3.          the constitutional recognition of such fiduciary duties in the Royal Proclamation, 1763, the Constitution Act, 1867 and the Constitution Act, 1982;

4.      the provisions of the Indian Act and Regulations, including:

(a)      those provisions relating to the provision of services by the Crown; and

(b)      those provisions giving rise to, or affirming, the fiduciary owed by the Crown to the Plaintiffs; and

5.      the course of conduct of the Crown since Confederation.

     Trial of the issues raised in those paragraphs would not proceed if severed. Yet the plaintiffs propose that the pleadings not be further amended at this time, rather the severed issues would remain for possible resolution at some time following trial. Not knowing how similar issues raised in the Samson action may be determined, or the grounds for their determination as a result of trial, the Ermineskin plaintiffs would not undertake to be bound by the Court's determination of generally similar issues raised in the Samson action. Severance from trial of these issues would not give rise to an estoppel against Ermineskin plaintiffs when determinations are made in the Samson action, and Ermineskin plaintiffs would be free to raise the severed issues following the trial now scheduled. Nevertheless, it is acknowledged that resolution of similar issues in the Samson action would have important implications for any subsequent resolution of severed issues in this action by Ermineskin plaintiffs.

     The plaintiffs urge that the programs and services issues in this case, though similar to issues raised in the Samson action, require establishment of their own factual basis which is different from that in the Samson action. No discovery related to programs and services, or home reserve, issues raised by the Ermineskin pleadings has yet been conducted.

     The motion, if allowed, would mean that trial preparation on the severed issues and trial of those issues would be reduced for the Ermineskin plaintiffs, for the defendants, for the Samson plaintiffs, and for the Court.

     I note that the primary reason for the motion now advanced by Ermineskin plaintiffs is limited ability to fund expenses associated with trial in this substantial case, particularly in light of other needs to be met from Band resources.

     For Samson plaintiffs, understanding of the position of Ermineskin plaintiffs was forthcoming and their motion was supported as reasonable. Counsel for Samson plaintiffs requested, since trial of the two actions is to proceed at one time, with both actions heard at the same time, that any order allowing Ermineskin plaintiffs' motions should expressly note that it is without adverse effect or prejudice to the claims of the Samson Band and trial of those issues. The Samson plaintiffs are determined to proceed to trial of all issues, including those concerning the home reserve, and programs and services.

     For the defendants, counsel, speaking without instructions at that time, indicated preference for resolving similar issues in the one trial, but he acknowledged that if the issues are resolved in relation to claims of one of the Bands that resolution would, as a matter of general policy, be applicable in the resolution of similar claims. It would not be the Crown's policy to treat the plaintiff Bands differently in regard to basically similar issues. It would not be appropriate for issues once settled to be litigated again simply because different plaintiffs advance similar claims. It is important to the Crown that the issues raised be resolved once, to achieve final resolution on those issues.

     When the motion was heard decision was reserved to permit counsel for the defendants to seek instructions and, having done so, to raise further argument if that seemed appropriate, by March 31, 1997. No further submissions were received by the Court and counsel for the defendants confirmed, in the course of a later conference by telephone, that further submissions would not be made. In the course of that later conference, on April 9, 1997, the Court raised with counsel for Ermineskin whether it was anticipated that an order allowing the application should include direction that the Ermineskin plaintiffs further amend their Amended Statement of Claim. Subsequently, counsel for Ermineskin plaintiffs confirmed in writing that it was not proposed to amend the statement of claim if the motion were to be allowed.

     An order will issue, after opportunity for comment by counsel, which order will allow the motion and will direct severance of the issues of programs and services as described in paragraphs 41, 42 and 43 of the Ermineskin plaintiffs' Amended Statement of Claim and in paragraph 6 of their response to the defendants' demand for particulars, and also the issues relating to the home reserve except those issues, if any, relating to oil and gas production from the reserve or to the moneys derived from that production.

     Severance in this context means that those issues will not be tried with trial of the oil and gas, and money management, issues raised in this action. Pre-trial preparations shall not provide for evidence, by document production or discovery, in relation to issues now severed from trial. Severance of the issues in this case shall be without prejudice to the trial of similar issues raised by pleadings in the Samson action and shall be without any prejudice to the Samson plaintiffs or their interests in that action.

     For clear understanding between the parties on the identification of any issues concerning the home reserve, in addition to programs and services issues raised by paragraphs 41, 42, 43 of the Amended Statement of Claim and paragraph 6 of the response to demand for particulars, counsel for the Ermineskin plaintiffs is directed to provide to counsel for defendants, and to the Court, a written list of any issues raised by the Amended Statement of Claim that will not be dealt with at trial, indicating the paragraphs in the pleadings and particulars in which those issues are raised. That list should be provided by May 31, 1997 or such later date as counsel concerned may agree.

     The order is made in recognition of the reality of costs involved in trial of these issues, the impact of those costs upon Ermineskin plaintiffs, and the time that can reasonably be expected to be saved in the trial process. While it may appear unusual to sever issues from trial, while leaving the claims outstanding, and at the same time in an interrelated trial, issues similar to those now severed will be dealt with and resolved. Any resolution in the other trial would not be binding in regard to similar issues here severed from trial. Nevertheless, resolution of issues raised in regard to programs and services in the Samson action will inevitably be persuasive for the parties in any subsequent resolution of the issues left outstanding in the Ermineskin action.

     _________________________________

     JUDGE

OTTAWA, Ontario

April 25, 1997.