Federal Court of Appeal Decisions

Date: 20010319

Docket: A-23-00

(TRIAL DIVISION DOCKET NO. T-4178-78)

(CONSOLIDATED APPEALS OF A-638-99, A-644-99, A-647-99, A-648-99,

A-657-99, A-658-99, A-659-99, A-668-99, A-678-99, and A-23-00)

                                                                                                          Neutral citation: 2001 FCA 68

CORAM:        RICHARD C.J.

LÉTOURNEAUJ.A.

ROTHSTEIN J.A.

                                                                                                                             Court File A-23-00

BETWEEN

Joyce Pearl Price, Allen George Green, the Estate of Emil Charles Green, Adam Nicholas Carrier (by his guardian ad litem Deanna Audra Carrier), Deanna Audra Carrier, Lindsay MacDonald (by her guardian ad litem Donna Ann MacDonald), Donna Anne MacDonald, Lisa Marie MacTavish (by her guardian ad litem Colleen Maureen MacTavish), Meagan Sarah MacTavish (by her guardian ad litem Colleen Maureen MacTavish), and Colleen Maureen MacTavish

                                                                                                                                    APPELLANTS

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

                                                                                                                                   RESPONDENT

AND

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

AND:

PUBLIC GUARDIAN AND TRUSTEE OF BRITISH COLUMBIA

                                                                                                                                    INTERVENER

HEARD at Vancouver, British Columbia, on Monday and Tuesday January 15 and16, 2001

JUDGMENT delivered at Ottawa, Ontario, on Monday, March 19, 2001

REASONS FOR JUDGMENT BY:                                                                         ROTHSTEIN J.A.

CONCURRED IN BY:                                                                                                RICHARD C.J.

                                                                                                                           LÉTOURNEAU J.A.

Date: 20010319

Docket: A-23-00

(TRIAL DIVISION DOCKET NO. T-4178-78)

(CONSOLIDATED APPEALS OF A-638-99, A-644-99, A-647-99, A-648-99,

A-657-99, A-658-99, A-659-99, A-668-99, A-678-99, and A-23-00)

                                                                                                         Neutral citation: 2001 FCA 68

CORAM:        RICHARD C.J.

LÉTOURNEAU J.A.

ROTHSTEIN J.A.

                                                                                                                             Court File A-23-00

BETWEEN

Joyce Pearl Price, Allen George Green, the Estate of Emil Charles Green, Adam Nicholas Carrier (by his guardian ad litem Deanna Audra Carrier), Deanna Audra Carrier, Lindsay MacDonald (by her guardian ad litem Donna Ann MacDonald), Donna Anne MacDonald, Lisa Marie MacTavish (by her guardian ad litem Colleen Maureen MacTavish), Meagan Sarah MacTavish (by her guardian ad litem Colleen Maureen MacTavish), and Colleen Maureen MacTavish

                                                                                                                                    APPELLANTS

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

                                                                                                                                   RESPONDENT

AND

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

AND:

PUBLIC GUARDIAN AND TRUSTEE

OF BRITISH COLUMBIA

                                                                                                                                    INTERVENER

                                                                                                                           Court File A-638-99

BETWEEN:

BRADLEY WAYNE COURTOREILLE on his own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule A attached hereto

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-644-99

BETWEEN:

BONNIE BELCOURT, on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule A attached hereto

                                                                                                                                            Appellants

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

                                                                                                                                         Respondents

AND:

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                         Respondents

                                                                                                                           Court File A-647-99

BETWEEN:

JEAN MARY PAUL on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-648-99

BETWEEN:

BELLA KUCINSKY on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-657-99

BETWEEN:

VALERIE JENNIFER ASKOTY, APRIL JOAN ASKOTY and KEITH CHIPESIA

                                                                                                                                   APPELLANTS

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

                                                                                                                               RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                                                                           Court File A-658-99

BETWEEN:

CAROL DAWN MONKMAN

                                                                                                                                     APPELLANT

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

                                                                                                                               RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                                                                           Court File A-659-99

BETWEEN:

RITA ROSIE GLOVER on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto

                                                                                                                                   APPELLANTS

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

                                                                                                                               RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                                                                           Court File A-668-99

DORIS RONNENBERG, BRIAN RONNENBERG, JUDITH RONNENBERG, WILLIAM RONNENBERG, SUSAN GRETZ; and By their Next Friend, DORIS RONNENBERG: WILLIAM ERNEST RONNENBERG, CHRISTINA RONNENBERG, BRYAN SPARROW, BRIANNA SPARROW, WILLIAM HOULE, JASLINE HOULE, MICHAEL GRETZ and KEVIN GRETZ

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-678-99

BETWEEN:

CECILE MARTHA LETENDRE on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule A attached hereto

                                                                                                                                   APPELLANTS

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

                                                                                                                               RESPONDENTS

AND

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                    REASONS FOR JUDGMENT

ROTHSTEIN J.A.

[1]                This is an appeal from a September 23, 1999 order of Hugessen J. dismissing the claims of persons who filed Notices of Claim in accordance with his order of March 2, 1998, other than those who filed claims and are presently members of the Doig River Indian Band or the Blueberry River Indian Band. Its disposition is entirely dependent on the disposition of the appeal in Court Files A-229-99, A-230-99, A-231-99, A-232-99, A-239-99, A-240-99, A-241-99, A-254-99, A-285-99, A-286-99, A-287-99 from his April 7, 1999 order. Those appeals have been dismissed. It follows that these appeals must also be dismissed.

[2]                The entitlement to the judgment of $147 million arising from the breach of the Crown's fiduciary duty in respect of Indian Reserve 172 belongs to the two collectivities that are successors to the Beaver Band, the Blueberry and Doig Bands. The present descendants who are not members of either Band have no right to share in the proceeds of judgment.

[3]                The present descendants and Public Trustee submitted that, should the appeal be dismissed, payment out of the $12 million Trust Fund and all that portion of the balance of the $135 million remaining undistributed should be stayed pending appeal to the Supreme Court of Canada. Hugessen J. had stayed payment out of the $12 million Trust Fund pending appeal to this Court.

[4]                I would continue the stay in respect of the $12 million Trust Fund until the present descendants' application for leave to appeal to the Supreme Court is dismissed or if the application is granted, until disposition of the appeal by the Supreme Court, or unless and until this order is superceded by any order of the Supreme Court in respect of the $12 million Trust Fund. The stay should be granted on the condition that the present descendants' application for leave to appeal be filed in the Supreme Court forthwith and that the Supreme Court be advised of the stay.

[5]                With respect to the balance of the Fund of $135 million remaining undistributed, Hugessen J. made no stay order. The application here was made only at the end of oral argument on these appeals. This Court is not in possession of sufficient information to make a reasoned decision on this aspect of the present descendants' stay application and accordingly, makes no determination of this matter.

[6]                I would dismiss this appeal with costs. I would make no award of costs for or against Her Majesty the Queen in Right of Canada or the Public Guardian and Trustee of British Columbia.

                                                                                                                             "Marshall Rothstein"                          

                                                                                                                                                       J.A

"I agree

J. Richard C.J."

"I agree

Gilles Létourneau J.A."

Date: 20010319

Docket: A-23-00

(TRIAL DIVISION DOCKET NO. T-4178-78)

(CONSOLIDATED APPEALS OF A-638-99, A-644-99, A-647-99, A-648-99,

A-657-99, A-658-99, A-659-99, A-668-99, A-678-99, and A-23-00)

OTTAWA, ONTARIO, THIS 19^TH DAY OF MARCH, 2001

                                                                                                                                                           

CORAM:        RICHARD C.J.

LÉTOURNEAU J.A.

ROTHSTEIN J.A.

                                                                                                                             Court File A-23-00

BETWEEN

Joyce Pearl Price, Allen George Green, the Estate of Emil Charles Green, Adam Nicholas Carrier (by his guardian ad litem Deanna Audra Carrier), Deanna Audra Carrier, Lindsay MacDonald (by her guardian ad litem Donna Ann MacDonald), Donna Anne MacDonald, Lisa Marie MacTavish (by her guardian ad litem Colleen Maureen MacTavish), Meagan Sarah MacTavish (by her guardian ad litem Colleen Maureen MacTavish), and Colleen Maureen MacTavish

                                                                                                                                    APPELLANTS

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

                                                                                                                                   RESPONDENT

AND

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

AND:

PUBLIC GUARDIAN AND TRUSTEE OF BRITISH COLUMBIA

                                                                                                                                    INTERVENER

                                                                                                                           Court File A-638-99

BETWEEN:

BRADLEY WAYNE COURTOREILLE on his own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule A attached hereto

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-644-99

BETWEEN:

BONNIE BELCOURT, on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule A attached hereto

                                                                                                                                            Appellants

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

                                                                                                                                         Respondents

AND:

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                         Respondents

                                                                                                                           Court File A-647-99

BETWEEN:

JEAN MARY PAUL on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-648-99

BETWEEN:

BELLA KUCINSKY on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 River Indian Band and all present descendants of the Beaver Band of Indians

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-657-99

BETWEEN:

VALERIE JENNIFER ASKOTY, APRIL JOAN ASKOTY and KEITH CHIPESIA

                                                                                                                                   APPELLANTS

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

                                                                                                                               RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                                                                           Court File A-658-99

BETWEEN:

CAROL DAWN MONKMAN

                                                                                                                                     APPELLANT

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

                                                                                                                               RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                                                                           Court File A-659-99

BETWEEN:

RITA ROSIE GLOVER on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule "A" attached hereto

                                                                                                                                   APPELLANTS

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

                                                                                                                               RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                                                                           Court File A-668-99

DORIS RONNENBERG, BRIAN RONNENBERG, JUDITH RONNENBERG, WILLIAM RONNENBERG, SUSAN GRETZ; and By their Next Friend, DORIS RONNENBERG: WILLIAM ERNEST RONNENBERG, CHRISTINA RONNENBERG, BRYAN SPARROW, BRIANNA SPARROW, WILLIAM HOULE, JASLINE HOULE, MICHAEL GRETZ and KEVIN GRETZ

                                                                                                                                    APPELLANTS

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

                                                                                                                                RESPONDENTS

AND:

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 and the Blueberry River Indian Band

                                                                                                                                RESPONDENTS

                                                                                                                           Court File A-678-99

BETWEEN:

CECILE MARTHA LETENDRE on her own behalf and on behalf of those present descendants of the Beaver Band of Indians listed on Schedule A attached hereto

                                                                                                                                   APPELLANTS

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

                                                                                                                               RESPONDENTS

AND

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 and the Blueberry River Indian Band

                                                                                                                               RESPONDENTS

                                                                   JUDGMENT

The appeals in Court Files A-638-99, A-644-99, A-647-99, A-648-99,

A-657-99, A-658-99, A-659-99, A-668-99, A-678-99, and A-23-00 are dismissed with costs. There is no award of costs for or against Her Majesty the Queen in Right of Canada or the Public Guardian and Trustee of British Columbia..

Payment out of the $12 million Trust Fund is stayed pending appeal to the Supreme Court of Canada and shall remain in effect until the present descendants' application for leave to appeal is dismissed or if the application is granted, until disposition of the appeal by the Supreme Court, or unless and until this order is superceded by any order of the Supreme Court in respect of the $12 million Trust Fund. The stay is granted on the condition that the present descendants' application for leave to appeal be filed in the Supreme Court forthwith and that the Supreme Court be advised of the stay.

                                                                                                                                          "J. Richard"                                         

                                                                                                                                         Chief Justice            

FEDERALCOURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                         A-638-99, A-644-99, A-647-99, A-648-99, A-657-99. A-658-99, A-659-99, A-668-99, A-678-99, and A-23-00

STYLE OF CAUSE:

BRADLEY WAYNE COURTOREILLE ET AL. and HER MAJESTY THE QUEEN ET AL.

PLACE OF HEARING:                      VANCOUVER, BRITISH COLUMBIA

DATE OF HEARING:                        JANUARY 15, 2001

REASONS FOR JUDGMENT BY                                          ROTHSTEIN J.A.

CONCURRED IN BY:                                                            -- RICHARD C.J. LÉTOURNEAU J.A.

DATED:                                              MARCH 19, 2001

APPEARANCES:

Mr. Robert A. Easton                         FOR THE APPELLANTS

Mr. Mitchell Taylor                              FOR THE RESPONDENTS,

HER MAJESTY THE QUEEN ET AL.

Mr. Thomas R. Berger Mr. Gary A. Nelson

Ms. Margaret D. VanderkruykFOR THE RESPONDENTS, JOSEPH APSASSIN ET AL.

Ms. Faith E. Hayman                         FOR THE INTERVENOR

SOLICITORS OF RECORD: Miller Thomson LLP Vancouver, British Columbia

Mr. Morris Rosenberg

Deputy Attorney General of Canada Ottawa, Ontario

Nelson Vanderkruyk Vancouver, British Columbia

Murphy, Battista

Vancouver, British Columbia

FOR THE APPELLANTS

FOR THE RESPONDENTS,

HER MAJESTY THE QUEEN ET AL.

FOR THE RESPONDENTS, JOSEPH APSASSIN ET AL.

FOR THE INTERVENOR