Blueberry River Indian Band v. Canada ( Department of Indian Affairs and Northern Development )
T-4178-78
Hugessen J.
7/4/99
12 pp.
Preliminary determination of question of law: whether present descendants of Beaver Band of Indians, who are not members of Doig River Indian Band and Blueberry River Indian Band for time being, entitled individually or as group to be considered members of collectivity which has right to proceeds of judgment-1995 Supreme Court of Canada decision ([1995] 4 S.C.R. 344) (concerning breach of fiduciary duty with respect to mineral rights in Indian reserve 172) allowed plaintiffs' appeal, awarding plaintiffs damages later fixed by F.C.T.D. order at $147,000,000-F.C.T.D. order provided rights of claimants to be determined by procedure laid down in appendix to order providing for publication of notices and filing of claims by persons claiming entitlement to proceeds of judgment-Three issues raised herein: (1) disqualification of presiding judge; (2) res judicata and issue estoppel; (3) entitlement-Question answered in negative-(1) Presiding judge having expressed opinion in order disposing of earlier motion in present case that as yet, no claimant had established any entitlement to any part of proceeds, claimants argued that entitlement had been settled in S.C.C. judgment in their favour and that presiding judge should therefore disqualify himself-Judge's expression of view on matter relevant and necessary to decision of question before Court, as was case, part of judge's duty-By fulfilling that duty judges do no thereby exhibit bias and disqualify themselves from further performance of their functions-(2) Res judicata and issue estoppel raised by claimants in support of affirmative answer to question of law, arguing question has already been settled in their favour by S.C.C.-Judgment declared entitlement by appellants-Whatever proper reach and meaning of S.C.C. judgment, subsequent F.C.T.D. decision in same case ordered question of entitlement of present claimants remain open and to be determined by Court in accordance with procedure laid down in that order-That order not appealed-Order binding on claimants and establishing beyond peradventure that question of entitlement to proceeds had not been settled by S.C.C.-At no point in litigation's progress through courts was question of entitlement of descendants of Beaver Band not members of either of successor bands decided-If order wrong, time for doing anything about it long past-Therefore presiding judge's view on entitlement not wrong, and no reason for disqualification-As to estoppel, no basis to argument representative plaintiffs estopped from now denying that present claimants have any entitlement to proceeds of judgment since they have, by their own actions, named them in style of cause and cannot resile from what they have done-(3) Present claimants have no entitlement whatever to proceeds of judgment-Indian reserve 172 set apart for Beaver Band-Band creature of statute, body of Indians for whom lands have been set aside by Crown and for whose benefit such lands held-Membership not determined by inheritance or descendancy but by law itself-Rights which band has in reserves collective, not individual, rights-Rights of Beaver Band in Indian reserve 172 collective rights enjoyed by members for time being of that band-When Beaver Band ceased to exist, those rights passed to members of two successor bands, Blueberry River and Doig River bands-Since rights collective and not individual, they could neither be exercised by nor transmitted to individuals-Breach of fiduciary duty established herein owed to Beaver Band and right of action resulting therefrom transmitted to successor bands-That right equally collective right which belonged and still belongs collectively and not individually to members for time being of those bands-Membership, not ancestry, determining entitlement to reserve lands and, in consequence, to damages flowing from any breach of fiduciary duty in relation to those lands-Therefore, descendants who are not band members can have no share in proceeds of judgment-No basis to argument claimants entitled to proceeds of judgment as result of rights flowing to them as descendants of signatories of Treaty 8-Membership in first nation, and enjoyment of any Aboriginal and treaty rights which may flow from membership, quite different from membership in band and enjoyment of rights flowing from that status-Provisions of Indian Act dealing with transfers into and out of bands and consequences thereof do nothing to support any claim by persons who are not now members of any particular band to have claim to share in collective rights of that band-Indian Act, R.S.C., 1985, c. I-5.