Date: 20000216
Docket: T-1750-99
BETWEEN:
WILLIAM HALL,
Plaintiff,
- and -
THE DAKOTA TIPI INDIAN BAND,
Defendants.
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] The Plaintiff, William Hall, is a member of the Dakota Tipi Indian Band (the Band), who resides off-reserve. According to the Band"s election bylaw, this means that he cannot vote in the Band Council elections. He launched an action seeking a declaration that the bylaw is contrary to s. 15 of the Charter in that it infringes his equality rights and that the enabling sections of the Indian Act are also unconstitutional to the extent that they purport to delegate the power to make constitutionally invalid bylaws. A Notice of Constitutional Question has been circulated as required by s. 57 of the Federal Court Act. None of the provincial attorneys general has seen fit to join the action. Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada ("the Crown") is named as a defendant in the claim. The Crown brings this motion seeking to be removed as a party on the ground that no relief is claimed against it and that it is not a necessary party to the action.
[2] The Crown"s disinclination to defend the Band"s bylaw is no doubt the result of the decision of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs) [1999] 2 S.C.R. 203. In that case, the Supreme Court found that s. 77(1) of the Indian Act R.S.C. 1985 c. I-5 which required band members to be ordinarily resident on the reserve in order to be eligible to vote in band elections, was unconstitutional as it infringed the equality rights of band members who did not reside on the reserve. Given that the same issue in raised in this action in the context of band custom election procedures, the Crown may well feel that the result is predictable and does not engage federal legislation to any greater extent than did Corbiere, turning as it does on the terms of a particular band"s election bylaw.
[3] In any event, the Crown"s motion to be removed from the action is opposed on two grounds. The first is that the Crown should be bound by the result, and the second is that the Crown has a supervisory power over the affairs of Indian Bands and should therefore be subject to any judgment which the Plaintiff may obtain requiring the Band to respect his constitutional rights.
[4] The Crown brings its motion pursuant to Rule 104 (1) of the Federal Court Rules 1998 which provides as follows:
| 104. (1) At any time, the Court may (a) order that a person who is not a proper or necessary party shall cease to be a party; or |
104. (1) La Cour peut, à tout moment, ordonner : a) qu"une personne constituée erronément comme partie ou une partie dont la présence n"est pas nécessaire au règlement des questions en litige soit mise hors de cause; |
[5] The Crown argues that since the Statement of Claim seeks no relief specifically against the Crown, it is not a necessary party. Furthermore, the presence of the Crown is not necessary to ensure compliance with any decision of the Court since the other defendant is the Band which has a duty to comply with the Charter.
[6] The Plaintiff concedes that the Band must comply with the Charter but wishes the Crown to be a party so that it is bound by the judgment of the court to exercise its supervisory powers to see that the Band bylaws comply with any order of the court. The Plaintiff cites the decision of the Supreme Court of Canada in Eldridge v. A.G. B.C. [1997] 3 S.C.R. 624 as authority for the proposition that a government cannot abdicate its obligation to comply with the Charter by delegating the duty to another entity. In the Eldridge case, the issue was the obligation of the B.C. Medical Services Commission which funded hospital services in B.C. to fund sign language interpreters for the deaf in B.C. hospitals. The Supreme Court found that the Commission was the instrument of government policy and was therefore subject to the Charter. In this case, the Band is subject to the Charter in its own right so that the question of delegated authority does not arise as a means of establishing the applicability of the Charter. For the same reason, the supervisory power
of the Crown over Indian Bands is not an issue since the Bands themselves are subject to the Charter as well as to any order of the Court in relation to compliance with the Charter.
[7] On the current state of the pleadings, I would be inclined to grant the relief sought. The Plaintiff suggested in argument that it would seek leave to amend the Statement of Claim to seek relief directly against the Crown. The specific nature of the relief was not discussed though it was said to be in relation to the Crown"s supervisory and fiduciary obligations. In those circumstances, the Court would usually consider adjourning the Crown"s motion to enable the Plaintiff"s motion to be brought so as to dispose of both at once. This would be done so as to reduce the number of proceedings required to get the issues before the Court. In this case, I am not persuaded that an adjournment is indicated for the reason that a simple amendment to the remedies portion of the Statement of Claim would not change the fact that there is a party before the Court from whom the Court could order all that the Plaintiff seeks in his prayer for relief. Adding another defendant will not change the Plaintiff"s range of remedies.
[8] The Plaintiff is free, of course, to bring a motion to amend the pleadings as he and his advisers see fit. But on the current state of the pleadings the Crown is not a necessary party. For that reason there will be an order removing Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada as parties defendant and amending the style of cause accordingly.
| [9] The Crown shall have its costs to be assessed. |
ORDER
For the reasons set out above, it is hereby ordered that:
| 1. Her Majesty the Queen as represented by the Minister of Indian and Northern Affairs and the Attorney General of Canada shall cease to be parties in this action; and |
| 2. The style of cause shall be amended to remove any reference to Her Majesty the Queen as represented by the Minister of Indian and Northern Affairs and the Attorney General of Canada. |
"J.D. Denis Pelletier"
Judge
Winnipeg, Manitoba
February 16, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1750-99
| STYLE OF CAUSE: WILLIAM HALL v. THE DAKOTA TIPI INDIAN BAND |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: February 15, 2000 |
| REASONS FOR ORDER BY: The Honourable Mr. Justice Pelletier |
DATED: February 16, 2000
APPEARANCES
Georgina Garrett for the Plaintiff
Norman Boudreau for the Defendant
Cheryl B. Morrison
Dept. of Justice
301 -310 Broadway for the Defendant
Winnipeg, MB R3C 0S6 Her Majesty the Queen
SOLICITORS OF RECORD
Cherniak Smith
Barristers & Solicitors
Second Floor 100 Osborne St.
Winnipeg MB R3L 1Y5 for the Plaintiff
Booth Dennehy Ernst & Kelsch
Barristers & Solicitors
307 Broadway
Winnipeg, MB R3C 0V5 for the Defendant
Morris Rosenberg
Deputy Attorney General of Canada for the Defendant