Orr v. Alook, 2013 ABQB 86

Court of Queen's Bench of Alberta Citation: Orr v. Alook, 2013 ABQB 86 Date: 20130205 Docket: 1103 20205 Registry: Edmonton Between: Andrew Orr and Fifth Meridian Enterprises Ltd. Respondents (Plaintiffs) - and - James Alook, Sharon Laboucan, Emil Houle, William Houle, Garry Noskiye and Peerless Trout First Nation Applicants (Defendants) _______________________________________________________ Reasons for Decision of W.S. Schlosser, Master in Chambers _______________________________________________________ I. Introduction [ 1 ] This is a Defendant's application for

summary dismissal in three parts. The third

part is the most interesting.

Part 1 Defamation

[ 2 ] Paragraphs 14-17(

a) of the Amended Statement of Claim are as follows: 14. Since the mid-nineteen nineties, James Alook and Andrew Orr have been rivals for leadership at Peerless Lake and in Orr v. Alook, 2000, ABQB 477, it is evident that James Alook used many improper tactics to take leadership from Andrew Orr. Page: 2 15. Prior to the election of Chief and Council on or about June 30, 2010, James Alook posted a "draft" statement of claim on the band office at Peerless Lake which appeared to show that Andrew Orr was being sued by Kodiak Energy Inc. and Cougar Energy Inc.

James Alook brought this "draft" statement of claim to the attention of members of Peerless Trout First Nation. This "draft" claim was not filed however, the members of Peerless Trout First Nation generally do not understand the technical requirements for a claim to actually be validly filed. It is clear that the posting of this document resulted in voters turning away from Andrew Orr. 16. This "draft" statement of claim alleged that Andrew Orr was involved in improperly taking money from Kodiak Energy Inc. and Cougar Oil and Gas Canada Inc. 17.

James Alook, used this "draft" statement of claim to defame Andrew Orr and to influence voters and to win the election for Chief in the June 30, 2010 election. 17(

a) Subsequently, on or about October 6, 2011, Chief James Alook, Sharon Laboucan. Emil Houle, William Houle and Garry Noskive or any one or more of them posted on the Trout Lake Band Office, a copy of a letter between Counsel regarding a solicitor client privileged settlement proposal. The posting of this "without prejudice" settlement proposal has and continues to cause damage to Andrew Orr. [ 3 ] The Defendants argue that there is no merit to this part of the claim. [ 4 ] Defamation is a tort that requires detailed pleadings (Rule 13.7(f); Civil Procedure Handbook, page 13-22 at c). In this case the allegations lack sufficient particularity of the

elements of the tort; including the words alleged to be defamatory. In some circumstances, pleadings may refer to another document and summarize the effect of it. This was specifically addressed by old Rule 106. However, this will not suffice in this context. Defamation is something that is required to be pleaded with great particularity. As it stands, the Amended Statement of Claim flirts with being significantly deficient under Rule 3.68(2)(b). [ 5 ] However, this is not the thrust of the Defendants' application. All of the Defendants have filed Affidavits.

The Defendant, James Alook, was cross-examined on his Affidavit. The others were not. Mr. Alook's Affidavit evidence was not displaced on cross examination. Neither of the Plaintiffs have filed Affidavits in response. [ 6 ] The uncontroverted evidence is the Defendants did not post or publish the draft Statement of Claim or the letter referred to in the pleadings. Page: 3 [ 7 ] The Plaintiffs say that the only way that the without prejudice letter could have been posted was with the permission of the Defendants and that it must have been improperly disclosed (in breach of confidence).

However the Plaintiffs surmise does not accord with the evidence. [ 8 ] On the evidence before me, it is plain and obvious that this aspect of the claim has no merit and cannot succeed.

Part II `Misuse of Corporation' and Refusal to Hand over Records [ 9 ] This portion of the claim is somewhat more difficult to characterize. It is alleged in the Amended Statement of Claim that: 18. When James Alook became Chief of Peerless Trout First Nation, the directors of Fifth Meridian Enterprises Ltd. including Andrew Orr, permitted James Alook to operate the non-profit corporation on the basis that this would benefit Peerless Trout First Nation.

On February 14, 2010, the Councillors of Peerless Trout First Nation, demanded an audit of Fifth Meridain Enterprises Ltd. however James Alook has prevented this from happening and has refused to disclose any records for Fifth Meridian Enterprises Ltd. 19. James Alook utilized Fifth Meridian Enterprises Ltd. for his own personal

benefit, rather than the benefit of Peerless Trout First Nation, including taking funds from Fifth Meridian Enterprises Ltd., utilizing Fifth Meridian Enterprises Ltd. for matters outside the scope of its powers, and as well having funds from Fifth Meridian Enterprises Ltd. be paid to Amber Oilfield Contracting Ltd., a corporation wholly owned by James Alook, and Fifth Meridian Enterprises has suffered damages and continues to suffer damages from these actions. 20.

James Alook was removed as Vice-President and shareholder of Fifth Meridian Enterprises Ltd. in August, 2011 and at that time, all records, bank accounts, cheques, and other documents of Fifth Meridian Enterprises Ltd. were demanded from James Alook. 21.

James Alook, other than providing some cheques which were stale-dated or almost stale-dated, and a key containing, or presumed to contain, computer data which was passworded and unable to be opened, has refused or neglected to provide any of the records of Fifth Meridian Enterprises Ltd. [ 10 ] The Alook Affidavit comprehensively rebuts any allegations relating to keeping corporate documents. Even if they exist (a fire may have destroyed many of them), they are not in Mr. Alook's possession, nor are they within his power or control. Page: 4 [ 11 ] There is no basis for the conflict allegations. Mr.

Alook, when he was Chief, was suspended for a period of thirty days and his conduct was investigated by the accounting firm NMP LLP, as an independent investigator, to determine whether Mr. Alook had acted in contravention of the conflict of interest guidelines for Chief in council, which formed part of the Customary Election Regulations of Peerless Trout First Nation. The investigation found only a technical failure to disclose a potential conflict of interest in one instance. There were no consequences that flowed from this. The investigation disclosed no evidence of a conflict of interest. [ 12 ] In a

summary dismissal application, the Applicant bears the legal burden throughout. Once the Applicant has discharged its evidentuary burden of, in this case, showing that there is no merit to a portion of the claim, the evidentuary burden then falls to the Respondent to show that there is at least an arguable case. The law in this area is well settled. In this case, the

Respondent tendered no evidence. There is nothing to displace the Applicant's position that the conflict allegations and the claims in paras. 18-21 are without merit. Accordingly, this portion of the claim is dismissed.

Part III "Beach of Contract" (

a) Underlying Facts [ 13 ] In October, 1991 two "Memoranda of Agreement" documents were signed by some of the parties involved in the present action. The October 1, 1991 Memorandum of Agreement (the `Negotiation Agreement') is between the unincorporated hamlet of Peerless Lake, Alberta, the Peerless Lake Band, and five persons: (David Starr, John Cardinal, Louis Cardinal, Andrew Orr, and James Alook), who, collectively, are identified as the "Land Claim Committee". Neither a Federally recognized Peerless Lake Band, nor a formal organization of that name existed at that point.

The Negotiation Agreement states that the members of the Land Claim Committee were elected and had the right to represent and negotiate with the Federal government land and other claims on behalf of the "... majority of the residents of Peerless Lake (the hamlet) and the future members of the Band ..." (emphasis added).

The Land Claim Committee members agreed to use their best efforts to represent "... the residents of Peerless Lake and the future members of the Band ..." (emphasis added) in negotiations, assisted by professional consultants, and for that they would receive compensation at a rate of $35.00 per hour, plus expenses. [ 14 ] The mechanism for payment is described in clause three: Each member of the Land Claim Committee shall be reimbursed for and Peerless Lake and the Band shall be responsible for all out of pocket expenses and disbursements and all expenses incurred in performing services in connection with the formation of the Band and negotiation and continued administration of matters related to the Peerless Lake Specific Claim.

Any out of pocket expenses and disbursements expended by each member of the Land Claims Committee shall be repaid to them out of funds received from the Government of Canada or Page: 5 other funds recovered on behalf of the Band and the residents of Peerless Lake and shall not be taken into account in calculating any per hour payments referred to in paragraph 2 hereof. Any portion of the total amount recovered which represents out of pocket expenses and disbursements already paid or to be paid shall be repaid prior to calculating any per hour stipends whatsoever. (Emphasis

added.) [ 15 ] The second relevant Memorandum of Agreement (the "Service Agreement") is dated October 15, 1991, and has as its parties the unincorporated hamlet of Peerless Lake, the Land Claim Committee, Robert Brown, Bear-Spike Holdings Ltd., and a law firm. The last three of the parties (the "Consultants") are professionals who provided expert and legal support to the Land Claims Committee during its negotiations with the Federal government.

The Service Agreement sets service rates for Brown, Bear-Spike Holdings Ltd., and the firm. [ 16 ] The Service Agreement's language in many places parallels that of the Negotiation Agreement. The Land Claims Committee was to represent and the consultants were to work for: "... the residents of Peerless Lake and the future members of the Peerless Lake Band ..." (emphasis added).

Clause three again indicated that payment for these services would be from funds received from the Federal government: Brown, Bear-Spike and Hirsche and [the firm] shall be reimbursed for and Peerless Lake and the Peerless Lake Band shall be responsible for all out of pocket expenses and disbursements and all expenses incurred in performing services in connection with the formation of the Band and negotiation and continued administration of matters related to the Peerless Lake Specific Claim.

Any out of pocket expenses and disbursements expended by Brown, Bear-Spike and Hirsche shall be repaid to them out of funds received from the Government of Canada or other funds recovered on behalf of the Peerless Lake Band and the residents of Peerless Lake and shall not be taken into account in calculating any fees whether by way of payment on an hourly rate basis referred to in paragraph 2 hereof or on a percentage basis as referred to in paragraph 4 hereof.

Any portion of the total amount recovered which represents out of pocket expenses and disbursements already paid or to be paid shall be repaid prior to calculating any fees whatsoever. In addition to the foregoing Hirsche shall be paid, as part of his compensation, any taxable costs that may be recovered by way of settlement or taxation in the event that legal proceedings are necessary. The taxable costs are not to be included for the purposes of calculating total amount recovered under paragraph 2 or paragraph 4 of this Agreement.

Hirsche is authorized to deduct from the proceeds of any settlement or any advances from the Government of Canada and to pay to appropriate claimants all out of pocket expenses and disbursements and against invoice all claims made by Brown, Bear-Spike, Hirsche and members of the Land Claim Committee. (Emphasis added.)

[ 17 ] Clause four of the Service Agreement sets a second mechanism for payment of the Consultants in which the Consultants would receive a percentage of the total value of any Page: 6 settlement (with some exclusions), with that percentage to be negotiated at a future point.

This second payment is agreed to by "... the Land Claims Committee on behalf of the future members of the Peerless Lake Band ..." (emphasis added), and the negotiation will occur "... (when Peerless Lake achieves formal status as a Band under the Indian Act Canada) ..." (emphasis in original). [ 18 ] In this instance the aboriginal residents of Peerless Lake grouped themselves as an association, first named the `Neeyanan Community Association', and then the `Peerless Lake Community Association', incorporated under the Societies Act, R.S.A. 1980, c. S-18 .

That Association then authorized the Land Claims Committee to negotiate on its behalf. The Land Claims Committee hired the Consultants, who then engaged in a nearly two-decade long process that ultimately led to the Peerless Trout First Nation receiving Indian Act Band status. That Band now disclaims any obligation flowing from its precursors. (

b) The Applicants'(Defendants) position: [ 19 ] This part of the application raises one of those intriguing issues that seems not to have been fully dealt with by the common law. The Plaintiff sues the Defendants for compensation earned before the Peerless Trout First Nation was created by Ministerial Order under the Indian Act, RSC 1985 c. I-5 . The Defendants argue that the law of pre-incorporation contracts should apply to excuse the Band from payment. They say that Peerless Trout First Nation cannot be sued for any agreements made prior to the Ministerial Order because they do not bind the subsequent entity.

It was the individual Plaintiffs `pre-incorporation' efforts that caused Peerless Trout to become recognized under the Indian Act . [ 20 ] In Salomon v.

Salomon & Co. [1897] A.C. 22 at 51(HL) , Lord Macnaghten said: The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. [ 21 ] With very few exceptions, only parties to a contract are subject to that contract:

Greenwood Shopping Plaza Ltd. v. Beattie, (SCC), [1980] 2 S.C.R. 228, 111 D.L.R. (3d) 257. The common law has historically held that a corporation cannot be saddled with any obligations arising prior to its existence (Kelner v. Baxter (1866), L.R. 2 C.P. 174). Any exception to that rule must flow from legislation, such as is provided by Business Corporations Act, R.S.A. 2000, c. B-9, s. 15. A pre-incorporation contract cannot bind the artificial person that comes into being on incorporation. On this basis the Applicants say that the Plaintiffs' claim for "pre incorporation work' has no merit against the now federally recognized Band. Page: 7 (

c) The Respondents' (Plaintiffs) position: [22] The Plaintiffs argue that a First Nation is a free-standing legal entity, with or without Federal government recognition, and is a government that pre-dates Canada. This is reflected by the language in

section 35 of the Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter"). [23] They argue that any change in the name of a First Nation is irrelevant, provided it continues as a distinct entity: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344, 130 D.L.R. (4th) 193. Here, the persons who are now recognized as members of the Peerless Trout First Nation were always a separate community of aboriginal persons, and it was that distinct group of persons who authorized the Land Claims Committee to advance a claim for Band status under the Indian Act.

This initiative ultimately led to the Peerless Trout First Nation that amalgamates the Peerless Lake Band and the Trout Lake Band. The Peerless Trout First Nation is a continuation of the Peerless Lake Band. [24] The Plaintiffs argue that aboriginal property is held in a unique manner, as communal property by a group of persons who share communal rights: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), 2001 FCA 67 at paras. 15- 27, [2001] 4 F.C. 455; Montana Band v. Canada, (FC), [1998] 2 F.C. 3 at 5-7, 140 F.T.R. 30; Ross River Dena Council v.

Canada (Attorney General), 2009 YKSC 38 at paras. 10-11, 14-22, 2009 YKSC 38 , [2009] 3 C.N.L.R. 348; Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2012 BCCA 193 at paras. 72-79, 319 B.C.A.C. 273, leave refused [2012] S.C.C.A. No. 336. Here, the same community who delegated authority to the Land Claims Committee now make up the Peerless Trout First Nation. The communal rights of those persons continue, and so should their obligations. (

d) The Issue

[25] We can begin by stating the obvious: Peerless Trout First Nation is not incorporated under the Alberta Business Corporation Act, RSA 2000, c. B-9 or its federal counterpart, so the corporate entity doctrine stated by Lord Macnaghten in Salomon v. Solomon & Co. has no direct application to these facts.

However, to put it plainly, the central issue is whether a federally recognized First Nation is so like a business corporation that contracts made prior to federal acknowledgment do not bind it. [26] The Defendants' argument may not be intuitively appealing but whether the corporate analogy is an apt one is not just a polemic. The authorities are mixed and the law is very much undecided. [27] I confess it is tempting to look at the thickness of the Briefs and authorities (five volumes) and infer that the issue is too complex both legally and factually for

summary Page: 8 disposition on the record presently before the Court (Gayton v. Lacasse, 2010 ABCA 123, Tottrup v. Clearwater (Municipal District No. 99) 2006 ABCA 380). However, it would do a disservice to the litigants and this very nice issue simply to avoid it. (

e) Analysis [28] Bands are now accepted as having the authority to represent their collective membership, see for example: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2012 BCCA 193 at paras. 75-76, 319 B.C.A.C. 273, leave denied [2012] S.C.C.A. No. 336 ("Kwicksutaineuk") and Papaschase Indian Band No. 136 v. Canada (Attorney General); Lameman v. Canada (Attorney General), 2004 ABQB 655 at para. 166, 2004 ABQB 655 , 365 A.R. 1, varied 2006 ABCA 392, 66 Alta. L.R. (4th) 243, affirmed 2008 SCC 14, [2008] 1 S.C.R. 372.

In Kwicksutaineuk, (at para. 75) Madam Justice Garsen, writing for the majority, cites Wilson v. British Columbia (AG), 2007 BCSC 1324, 78 BCLR (4th) 84 at paras. 44-57 with approval. The Wilson case noted (at para. 50) that a Band has been held to be legally capable as: · an employer for the purposes of the Canada Labour Code, · a juridical person for the purpose of suing to determine the validity of surrender of reserve lands,

· capable of contracting, and suing and being sued in contract, · capable of executing a contract of guarantee, · competent to sue and defend actions between Indian Bands, to determine which of two Bands is entitled to possession and enjoyment of a reserve, · competent to sue for a declaration that certain amendments to the Indian Act, R.S.C. 1985, c.

I-5, were unconstitutional, and · the proper parties to an action commenced by a corporation formed by 7 First Nations to claim aboriginal fishing rights, in place of the corporation, so that the First Nations were substituted for their corporate vehicle. (Citations omitted) [29] Madam Justice Garsen concludes at para. 76: [76] I agree with Johnson J., [in Wilson] and for the reasons he gives, in concluding that an Indian Act Band is a juridical person. An Indian Act Band is a unique entity. It is an enduring, self-governed entity that has distinct rights and obligations: Montana Band v.

Canada, (FC), [1997] A.C.F. no. 1486, 140 F.T.R. 30.... Page: 9 [30] Rothstein J.A. for the Federal Court of Appeal in Blueberry, (2001, at paras. 15 et seq) however, concludes that the definition of "Band" in the Indian Act does not constitute a Band or its members as a legal entity. It is a creature of statute comprising a distinct population of collective or communal (as opposed to private or individual) interests. [31] A survey of Woodward's Native Law, Carswell, vol. 1, C. 1, G-3, at pp.1-21-25, tells us that it is easier to say what a Band is not in legal terms than to say what it is.

Woodward notes that a Band has the legal status to sue and be sued and that it may be a `municipality' for the purposes of the Income Tax Act, but not for all purposes. The decided cases seem to suggest that a Band is not a `person' for the purpose of custody, nor an `individual' for the purpose of the Charter. It does not have corporate status under the various companies Acts but it is not an unincorporated association. Woodward also notes that a Band is not a group of tenants in

common. [ 32 ] Nevertheless, four conclusions can be drawn from the decided cases: 1. Aboriginal Rights are recognized rather than created by the Common Law [ 33 ] Aboriginal rights do not flow only from a treaty, but instead reflect the special rights that accrue from pre-contact occupation of Canada. Recently, in William v. British Columbia (AG), 2012 BCCA 285 at para. 167 , 324 B.C.A.C. 214 , leave to appeal sought September 24, 2012, [2012] S.C.C.A.

No. 399, Justice Groberman, writing for the majority, succinctly restated this key principle: The assertion of Crown sovereignty did not, as a matter of common law, serve to extinguish the pre-existing traditional rights of First Nations, and those rights survived. Aboriginal rights, then, are recognized rather than created by the common law. (Emphasis added.) In this sense, Canadian law acknowledges that pre-contact aboriginal groups were themselves distinct political, culture, and sovereign entities.

That history and its legal effect extends the unique rights of aboriginal communities into the present. [ 34 ] The aboriginal rights of the Peerless Trout First Nation did not come into existence with the formal recognition of the Band by the Federal Government on May 19, 2010 or on the date of the settlement agreement, December 18, 2009. Nor did those rights result only from Treaty 8. These rights stretch back to before Confederation and first contact with European people.

These rights are a continuous expression and recognition of the special culture, history and way of life that present Peerless Trout First Nation members share with their ancestors. 2. Many aboriginal rights are held in a "collective" or `communal' manner. Page: 10 [ 35 ] Private law rights tend to vest in individuals. Some aboriginal rights are private but those rights tend to be derivative of membership or status. In the main, aboriginal rights are collective rather than individual; including the interest in Reserve land. [ 36 ] In Papaschase Indian Band No. 136 v. Canada (Attorney General); Lameman v.

Canada (Attorney General), 2004 ABQB 655 at paras. 173 -175 , 365 A.R. 1 , 43 Alta. L.R. (4th) 41, varied 2006 ABCA 392 , 66 Alta. L.R. (4th) 243 , affirmed 2008 SCC 14 , [2008] 1 S.C.R. 372. Mr. Justice Slatter (as he then was) observed: Collective and Individual Rights [173] The aboriginal communities and their collective rights did not fit neatly into the Anglo-Canadian law that was introduced into the West. ... the collective rights shared by the aboriginal communities did not fit neatly into the categories of private law rights that the law was used to dealing with. ...

"Aboriginal rights" are not the same kind of rights as private law rights. Private law rights, such as the right to property, or the right to a chose in action, including a cause of action, vest in individuals. When those individuals die, the private law rights devolve to their personal representatives, and they are then distributed under the deceased's will or on intestacy. The persons who receive these private law rights from the estate are thereafter the "owners" of the rights. [174] Aboriginal law rights are different in some important respects.

First of all, many Aboriginal rights are not owned by individuals at all, but are collectively owned by the community as a whole. Since they do not vest in any particular individual, they cannot be sold or transferred, and they do not devolve on descendants under wills or by intestacy. They are owned by and enjoyed by the community as it exists from time to time. Entitlement to collective rights that are given by statute (i.e. those that relate to "Bands" or "Reserves") accrue to those who are current members of the Band, and not simply to those who are descendants or heirs of previous members.

If members leave the community, they do not take these rights with them, and if non-members join the community, they are entitled to enjoy those rights in common with the other members of the community. [175] There are personal or private rights of an aboriginal nature. For example, the right to be a member of a particular First Nation is such a personal right, and it could be enforced by an individual claiming membership. This type of Aboriginal right would pass by ancestry, in the sense that if a person gained or lost Band membership, that would have an effect on the membership status of his or her descendants.

This type of right could not be transferred or sold, and it could not be distributed in a will. A second type of personal aboriginal right is exemplified by the right to receive annual payments under a Treaty. If this sum

was not paid, the individual Band member could sue for it, and the right to collect it would pass to his or her heirs. Other personal aboriginal rights, such as the right Page: 11 to occupy a particular part of a Reserve, could be left by will, subject to some statutory restrictions: Indian Act, ss. 59-60. A third type of personal right is the right to hunt, which is collectively held, but which could be raised as a defence by an individual charged with illegal hunting. [37] Collective ownership extends to an aboriginal community that is recognized as a Band under the Indian Act.

Again, "[i]t is well established that individual Band members hold that interest "in association with, but not independent of, the interest of other members" ...": Montana Band v. Canada, 2006 FC 261 at para. 495, 287 F.T.R. 159, affirmed 2007 FCA 218, 370 N.R. 237. When a Band member leaves that Band, the former member now has no rights to the property of that Band, including its reserve: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), 2001 FCA 67 at paras. 16-18, [2001] 4 F.C. 455.

The idea of continuing collective rights is the opposite of what the corporate entity doctrine entails. [38] In a sense, Band status endues the collective with the means of expressing collective rights. In some ways a Band is the anthesis of an artificial person with separate existence, distinct from its members. 3.

Conventional common law principles such as those used to describe business associations or yacht clubs1 are sometimes poorly suited to describe aboriginal rights and obligations [39] Commonwealth legal authorities have long observed that what might be called `conventional' common law principles are sometimes poorly suited to describe the unique (sui generis) aspects of aboriginal rights and title. This is an underlying theme of nearly every case that addresses aboriginal issues. [40] The Supreme Court of Canada stressed, in Blueberry River Indian Band v.

Canada (Department of Indian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344 at paras. 6-7, (SCC), 130 D.L.R. (4th) 193, that a `technical' reading of legal principles should be used as a `shield', rather than a `sword', when a court attempts to fulfill the intentions of aboriginal groups. Gonthier J., writing for the majority said:

6 In my view, principles of common law property are not helpful in the context of this case. Since Indian title in reserves is sui generis, it would be most unfortunate if the technical land transfer requirements embodied in the common law were to frustrate the intention of the parties, and in 1 Clarke v. Earl of Dunraven (The "Satanita"), [1897] AC 59 (HL) is one of the leading early cases about the obligations of members of unincorporated associations (in this case a yacht club). Coincidentally, it follows Solomon v. Solomon & Co. in the Law Reports.

Page: 12 particular the Band, in relation to their dealings with I.R. 172. For this reason, the legal character of the 1945 surrender, and its impact on the 1940 surrender, should be determined by reference to the intention of the Band. Unless some statutory bar exists (which, as noted above, is not the case here), then the Band members' intention should be given legal effect. 7 An intention-based approach offers a significant advantage, in my view.

As McLachlin J. observes, the law treats aboriginal peoples as autonomous actors with respect to the acquisition and surrender of their lands, and for this reason, their decisions must be respected and honoured. It is therefore preferable to rely on the understanding and intention of the Band members in 1945, as opposed to concluding that regardless of their intention, good fortune in the guise of technical land transfer rules and procedures rendered the 1945 surrender of mineral rights null and void. In a case such as this one, a more technical approach operates to the benefit of the aboriginal peoples.

However, one can well imagine situations where that same approach would be detrimental, frustrating the well-considered plans of the aboriginals. In my view, when determining the legal effect of dealings between aboriginal peoples and the Crown relating to reserve lands, the sui generis nature of aboriginal title requires courts to go beyond the usual restrictions imposed by the common law, in order to give effect to the true purpose of the dealings. (Emphasis added.) [ 41 ] Chief Justice Lamer, subsequently, in St. Mary's Indian Band v. Cranbrook (City),

(SCC), [1997] S.C.R. 657, at para. 14, 147 D.LR. (4th) 385, stated that this restriction on the application of common law principles exists "... to prevent native intentions from being frustrated by an application of formalistic and arguably alien common law rules." [42] It strikes me that there must be some mechanism by which a community of Aboriginal persons, who collectively seek formal recognition under the Indian Act can bind themselves to pay for services and assistance to seek that status. Based on the foregoing principles of

interpretation, the Court ought to be reluctant to apply a corporate analogy to frustrate that end. 4. `Band' is defined by the Indian Act A "Band", is defined under the Indian Act. It is a creation of legislation: [43] 2.

(1) In this Act, "band" means a body of Indians (

a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, Page: 13 (

b) for whose use and benefit in common, moneys are held by Her Majesty, or (

c) declared by the Governor in Council to be a band for the purposes of this Act; Generally, this definition is not linked to aboriginal rights but instead to specific communal property. The definition of a Band has undergone some development during Canadian history since the Indian Act, 1876. [44] Aboriginal communities may be separate and distinct from Band status. For example, many aboriginal communities, such as the Métis, have never been registered or formally recognized.

As above, however, the current absence of formal recognition does not negate the existence of Métis communities which possess three necessary criteria (self-identification, ancestral connection, and community acceptance) for aboriginal community status: R. v. Powley,

2003 SCC 43 at para. 35, [2003] 2 S.C.R. 207. (And now see Daniels v. Canada, 2013 FC 6 , 2013 F.C. 6). [45] Bands are not the sole potential `repositories' of aboriginal rights.

In Kwicksutaineuk at para. 77, the majority of the British Columbia Court of Appeal concluded, in review of a class action certification, that aboriginal rights may be held collectively and outside a Band context: A review of the reasons for judgment in this case reveals that the chambers judge designated the class members as "Aboriginal collectives" because of his recognition of the fact that Band membership does not necessarily establish the requisite ancestral connection to assert an Aboriginal right. I agree with the chambers judge in this regard.

This is so because in some cases, an Aboriginal collective may self-identify along traditional lines independent of Indian Act designation as a Band. A Band is not necessarily the proper entity to assert an Aboriginal right. Having correctly recognized that it could not be assumed a band was the proper entity to assert Aboriginal rights, the chambers judge erred in then assuming that non-juridical persons, "Aboriginal collectives", could be class members. (Emphasis added.) [46] William v. British Columbia, at paras. 155-156, takes this analysis one step further.

The Court concluded that the introduction of a Band and reserve structure did not affect the pre- existing and ongoing aboriginal rights of that aboriginal community. The British Columbia Court of Appeal made an interesting distinction between two levels of aboriginal community and associated rights. The "Tsilhqot'in Nation" are collection of five Bands that share a common culture and use the territory in question.

The "Xeni Gwet'in" are one of those Bands. [155] In saying this, I do not ignore the fact that the judge also said, in the paragraph immediately following the one I have quoted, that "Band level organization ... is without any meaning in the resolution of Aboriginal title and rights for Tsilhqot'in people". As I read the context of that statement, the judge's point was only that the organization of the Tsilhqot'in into Bands as a result of Page: 14 the reserve allocation process and the Indian Act does not affect the identity of the Nation as the holder of rights.

To the extent that the statement goes further than that, and suggests that Band councils have no role to play in the administration of rights or in discussions with government, it is, in my view, not a correct assessment of the situation.

[156] In the result, I am not persuaded that the judge made any error in finding that the Tsilhqot'in Nation is the proper rights holder.

The Xeni Gwet'in, as modern "caretaker" or custodian of the Tsilhqot'in rights in the Claim Area, has a special role to play in asserting those rights and in engaging with governments in attempts to reconcile them with broader public interests. (Emphasis added) [ 47 ] Thus, while a Band does not `hold' the aboriginal rights of an aboriginal community, it may be the appropriate vehicle for the protection, exploration, and expression of those rights. [ 48 ] In these ways acquisition of Band status is very different from the formation of a corporation. The latter comes into existence without any precursor.

Initially it has no property. The persons with whom it is associated is set at a legal distance, behind the `corporate veil'. That is very different from a new Indian Act Band, which is intimately linked to its members, whom the Band can legally represent. That membership is a pre-existing aboriginal community with rights that flow from the distant past. The Band may have property rights, for example to a reserve, but those usually flow from an agreement, a treaty, that was not made with a Band, but with the people to whom that Band now relates.

This is a `grafting on' process, not the creation of an entity out of nothing. A Band is a special status, defined by legislation, for a pre-existing aboriginal community. 5. Conclusion [ 49 ] The pre-corporation argument raised by the Defendants has at least four strikes against it. Though a Band is a distinct legal entity, it is very different from a corporation. Band members are not like shareholders.

Band status, under the Indian Act , does not `create' that group, but instead provides a state-designed and sanctioned mechanism for the administration of that community, as well as an `interface' for the Crown and others to interact with the community. A Band may have some corporate elements but it lacks the well defined separation of entity and membership. [ 50 ] Given this state of the law, it cannot be said that it is plain and obvious that the corporate analogy argument dooms the Plaintiffs' claim for compensation based on a `pre-incorporation' agreement.

That is not to say that the Plaintiffs have a watertight case. I am only finding that the Defendants' position falls short of what is required for

summary judgment. Given the unique and somewhat undefined state of the law, it would not be impossible even to go so far as to envision a law of obligations within the community that was based on the collective good. But these arguments are all for trial. Page: 15

[ 51 ] I appreciate that triable issues do not admit of degree. However, it might be said that the Contract Claim is a very triable issue and if it is not settled, it will be a very interesting trial. [ 52 ] Accordingly, the application to strike the "breach of contract" part of the claim is dismissed. Since there has been divided success, there will be no disposition concerning costs. Heard on the 4th day of October, 2012. Dated at the City of Edmonton, Alberta this 5th day of February, 2013. W. S. Schlosser M.C.C.Q.B.A. Appearances: Priscilla Kennedy Davis LLP for the Plaintiffs D. Rolf and S. Kligman Parlee McLaws LLP for the Defendants