ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris
Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,
Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White,
Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own
behalf, and on behalf of the ERMINESKIN BAND OF INDIANS and
ERMINESKIN CREE NATION
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the
ATTORNEY GENERAL OF CANADA
Respondents / Cross-Appellants
(Defendants)
and
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members
of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139,
in the Province of Alberta
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo,
Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback,
Larron Northwest, Nancy Yellowbird, Barb Louis,
Keith Johnson, Rose Saddleback and Jim Omeasoo,
Councillors of the Samson Band, sued on their own behalf
and on behalf of the members of the Samson Band of Indians
Respondents
(Third Parties)
REASONS FOR ORDER BY: RICHARD C.J.
Docket: A-60-06
Citation: 2006 FCA 423
Present: RICHARD C.J.
BETWEEN:
ERMINESKIN BAND, Chief Gerald Robert Ermineskin, Arthur Morris
Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,
Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White,
Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own
behalf, and on behalf of the ERMINESKIN BAND OF INDIANS and
ERMINESKIN CREE NATION
Appellants
(Plaintiffs)
and
HER MAJESTY THE QUEEN and the
ATTORNEY GENERAL OF CANADA
Respondents / Cross-Appellants
(Defendants)
and
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members
of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139,
in the Province of Alberta
and
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo,
Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback,
Larron Northwest, Nancy Yellowbird, Barb Louis,
Keith Johnson, Rose Saddleback and Jim Omeasoo,
Councillors of the Samson Band, sued on their own behalf
and on behalf of the members of the Samson Band of Indians
Respondents
(Third Parties)
REASONS FOR ORDER
[1] Her Majesty the Queen in right of Canada (Canada), by motion in writing, seeks to strike portions of the memorandum of fact and law filed by the Ermineskin Cree Nation (Ermineskin) in an appeal to this Court from a judgment of the Federal Court dated February 28, 2006.
[2] Canada alleges that, in the course of litigation over an Indian Reserve surveyed and set aside for the Bobtail Band more than one hundred years ago, Ermineskin has repeatedly attempted to rely upon a legal theory they did not plead, the One Group theory. Ermineskin has made unsuccessful attempts before trial and at trial to advance the One Group theory, even though that theory was not disclosed in their pleadings.
[3] The One Group theory is a theory of liability that Ermineskin had rights to the former Bobtail Indian Reserve No. 139 as a result of an original communal interest held by the “Maskwachees” or Bear Hills Cree in the former Bobtail reserve.
[4] Canada further alleges that, in the course of their appeal proceedings, Erminieskin has again attempted to rely upon the One Group theory, even though no appeal based upon that theory is disclosed in their notice of appeal.
[5] Canada also alleges that Ermineskin attempted to amend their notice of appeal to strengthen their attempts to introduce the One Group theory into the appeal proceedings. However, they were denied leave to amend their notice of appeal.
[6] Canada submits that all of the portions of the Ermineskin memorandum that make reference to or rely upon the One Group theory should be struck as well as many references to the evidence in the form of documents or reports.
[7] Canada further submits that appellate Courts must be able to focus on the substantive matters that come before them, free from the distractions posed by issues that are not properly before them and reliance upon information not fully received into evidence.
[8] Ermineskin submits that there is no authority under the Federal Courts Act for a motion to strike a memorandum of fact and law. Ermineskin submits that while the Court has inherent jurisdiction to strike a memorandum, that jurisdiction ought only to be exercised sparingly and in exceptional circumstances. In its view, no such circumstances exist in this case.
[9] Ermineskin proposes that the Court, on the hearing of the appeal, should address the proper scope of the appeal and that this would cause no prejudice to the Crown.
[10] Ermineskin also submits that all of the evidence relied upon by Ermineskin in its memorandum of fact and law, except for a limited amount of evidence, was before the trial Judge.
[11] Having considered the written representations of Canada and Ermineskin, I propose to allow Canada’s motion in part for the following reasons.
[12] The Court of Appeal should not be called upon to intervene at this stage of the proceedings, except to enforce compliance with any applicable statutory or regulatory provisions, the rules of court and any order that may have been made in the proceeding.
[13] Further, any decision made on this motion does not limit the panel hearing the appeal from defining the issues properly before it.
[14] I am not prepared to grant the broad order sought by Canada and in particular to delete references to evidence in the form of documents or reports. These objections can be raised more appropriately before the Court on appeal.
[15] Clearly, it is open to Canada to repeat its objections in its memorandum of fact and law. However, I grant leave to Canada to list without comment in an appendix to its memorandum the passages and reference notes to which it takes objection.
[16] In my view, paragraph 189 of the Ermineskin memorandum fails to comply with an order of this Court concerning its grounds of appeal.
[17] In its notice of appeal, Ermineskin raised the following ground:
The learned trial Judge erred in failing to give independent weight to oral history evidence called by the Ermineskin Band which addressed matters directly relevant to the determination of the Three Questions and, moreover, in giving excessive weight to the Indian Act and insufficient weight to oral history, culture and treaty considerations in determining issues relating to the existence of the Bobtail Band and the collective interests of the Maskwachees Cree in I.R. 139.
[18] In a motion brought before this Court, Ermineskin sought to amend its notice of appeal by adding to the above ground the following ground:
Further, and more specifically, the learned trial Judge erred in giving little weight to and/or in ruling inadmissible evidence relating to the identification and interests of the Maskwachees Cree as one group, including their collective land holdings.
[19] By order dated July 7, 2006, Malone J.A. dismissed this motion on the basis that the proposed amendments were overly broad and did not clarify the issues in dispute.
[20] Paragraph 189 of Ermineskin’s memorandum reads as follows:
189. Although the trial judge admitted this latter evidence, on a number of occasions during trial, she restricted Ermineskin’s Elders and expert witnesses from providing additional evidence concerning the relations among the Maskwachees Cree, and the way they viewed themselves as an identifiable group. This proposed evidence would have demonstrated an important part of the identity and makeup of the community of the Bobtail, Ermineskin and Samson Bands. It would have provided context to the Crees’ notions of land rights and the effects of inter-band transfers, and would have been relevant to the successorship issue. Erminiskin submits that the trial judge erred in law in refusing to admit this additional important and relevant evidence.
Expert Report of H. Dempsey, Exhibit 4735, p. 1-5, 16-17, 26-28, 31-32, 38
Surrebutal Report of H. Dempsey, Exhibit 4736, p. 1, 3-4
Expert Report of G. Jones, Exhibit 4749, p. 18, 32, 52, 72
Transcript Vol. 51, February 13, 2003, p. 271.17 – p. 401.10
Transcript Vol. 52, February 18, 2003, p. 701.22 – p. 771.4, p. 841.14
Transcript Vol. 53, February 19, 2003, p. 351.16 - p. 431.9
Transcript Vol. 57, February 25, 2003, p. 901.18 – p. 1001.16
[21] In essence, paragraph 189 repeats the ground of appeal which Ermineskin sought to advance in its motion to amend its notice of appeal which was denied by Mr. Justice Malone. It does not accord with that ruling. As a result, paragraph 189 should be struck from the Ermineskin memorandum.
[22] Accordingly, the appellants’ motion to strike portions of the memorandum of fact and law filed by Ermineskin will be allowed in part only, and paragraph 189 of the Ermineskin memorandum will be struck. The timetable established by order dated June 20, 2006, is confirmed.
[23] The Registry is directed to make the notation that paragraph 189 is struck on all copies of the Ermineskin memorandum in the Court record and to provide a copy of this order and reasons to the other parties in the appeal.
[24] Canada is entitled to the costs of this motion to be assessed in accordance with Tariff B and Column III.
"J. Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-60-06
STYLE OF CAUSE: ERMINESKIN BAND et al. v. HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA and MONTANA BAND et al. and SAMSON BAND et al.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: RICHARD C.J.
WRITTEN REPRESENTATIONS BY:
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Maria Morellato, Joanne Lysyk, Roy Millen and Angela D'Elia
|
FOR THE APPELLANTS
|
|
|
FOR THE RESPONDENTS (HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA) |
SOLICITORS OF RECORD:
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Vancouver, BC
|
FOR THE APPELLANTS (ERMINESKIN BAND et al.)
|
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Deputy Attorney General of Canada Ottawa, ON
|
FOR THE RESPONDENTS (HER MAJESTY THE QUEEN and the ATTORNEY GENERAL OF CANADA) |
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Parlee McLaws LLP Edmonton, AB
|
FOR THE RESPONDENT (SAMSON BAND et al.) |
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Dubuc/Osland Ottawa, ON Miller Thomson LLP Calgary, AB |
FOR THE RESPONDENT (MONTANA BAND et al.) |