CHIEF ALLAN GUSTAFSON, as representative of the Band Council of Whitesand First Nation, v. WHITESAND FIRST NATION, 2011 FCA 96

Federal Court of Appeal Cour d'appel fédérale Date: 20110310 Docket: A-5-10 Citation: 2011 FCA 96 CORAM: BLAIS C.J. SHARLOW J.A. STRATAS J.A. BETWEEN: CHIEF ALLAN GUSTAFSON, as representative of the Band Council of Whitesand First Nation, AND WHITESAND FIRST NATION Appellants and ELTON MITCHELL DIABO AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA , as represented by THE ATTORNEY GENERAL OF CANADA , AND THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA Respondents Heard at Toronto, Ontario , on March 10, 2011. Judgment delivered from the Bench at Toronto, Ontario , on March 10, 2011. REASONS FOR JUDGMENT OF THE COURT BY: STRATAS J.A. Federal Court of Appeal Cour d'appel fédérale

Date: 20110310 Docket: A-5-10 Citation: 2011 FCA 96 CORAM: BLAIS C.J. SHARLOW J.A. STRATAS J.A.

BETWEEN: CHIEF ALLAN GUSTAFSON, as representative of the Band Council of Whitesand First Nation, AND WHITESAND FIRST NATION Appellants and ELTON MITCHELL DIABO AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA , as represented by THE ATTORNEY GENERAL OF CANADA , AND THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto , Ontario, on March 10, 2011) STRATAS J.A. [ 1 ] This is an appeal from the Judgment of Justice Barnes of the Federal Court concerning two applications for judicial review: 2009 FC 1250 . [ 2 ] The Band Council of Whitesand First Nation decided to revoke the membership of Mr.

Diabo in the Whitesand First Nation. Two applications for judicial review then arose: ● The judicial review of Mr. Diabo seeking reinstatement of his membership in the Whitesand First Nation (T-1868-07). The Federal Court judge granted this application for judicial review, set aside the decision of the Band Council and ordered it to reinstate Mr. Diabo​s membership. He found that Mr. Diabo​s membership was taken away under an unfair process. ● The judicial review of the Whitesand First Nation and Chief Gustafson seeking declaratory relief (T-2054-07) .

In this application for judicial review, the Whitesand First Nation and Chief Gustafson sought a declaration that a 1986 Membership Code is valid. They also sought declarations that earlier Band Council resolutions granting Mr. Diabo membership were invalid. The Federal Court judge dismissed this application for judicial review, finding that the record before him was insufficient to determine the matter. [ 3 ] In their notice of appeal in this Court, the appellants, Whitesand First Nation and Chief Gustafson (collectively ​Whitesand​),

placed before us essentially all of the issues that were before the Federal Court. [4] However, that changed. Whitesand advised this Court that they were abandoning all grounds for appeal save one: they askthis Court to declare that the 1986 Membership Code is valid. On this one remaining issue, only Whitesand has made submissions. Mr.Diabo does not challenge the validity of the 1986 Membership Code and the Minister takes no position. [5] In our view, the appeal is moot and we should not exercise our discretion to hear it: Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342. Now that Mr.

Diabo​s membership in the Band is no longer a live issue before us, anypronouncement on the validity of the 1986 Membership Code would be academic. Further, we lack the necessary adversarial context todecide whether the 1986 Membership Code is valid. Only Whitesand is taking a position on that issue and, in substance, Whitesand isasking us to ratify its position.

In exercising his discretion against hearing a moot appeal, Justice Sopinka, writing for the unanimousSupreme Court in Borowski observed (at page 365) that ​the appellant seeks​to turn [the] appeal into a private reference.​ The same is truehere. [6] One day, a new membership controversy in the Band may arise. Should that happen, those whose memberships are revokedor questioned should have their day in court. They should be free to contest Whitesand​s current view of the issue, offering evidence andsubmissions that are not presently before this Court.

They should not find themselves faced with an academic ruling in this case. [7] Therefore, we will dismiss the appeal, without costs. "David Stratas" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-5-10 (APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE BARNES, DATED DECEMBER 7, 2009, INFEDERAL COURT FILE NOS. T-1868-07 AND T-2054-07) STYLE OF CAUSE: CHIEF ALLAN GUSTAFSON, as representative of the Band Council of Whitesand First Nation, ANDWHITESAND FIRST NATION v.

ELTON MITCHELL DIABO AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by THE ATTORNEYGENERAL OF CANADA, AND THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 10, 2011 REASONS FOR JUDGMENT OF THE COURT BY: (BLAIS C.J., SHARLOW & STRATAS JJ.A.)

DELIVERED FROM THE BENCH BY: STRATAS J.A. APPEARANCES : Etienne G.D. Esquega FOR THE APPELLANTS Bradley Smith No Appearance FOR THE RESPONDENT ELTON MITCHELL DIABO FOR THE RESPONDENTS ATTORNEY GENERAL OF CANADA AND THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA SOLICITORS OF RECORD : Erickson & Partners Thunder Bay, ON FOR THE APPELLANTS Weiler, Maloney, Nelson Thunder Bay, ON Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT ELTON MITCHELL DIABO FOR THE RESPONDENTS ATTORNEY GENERAL OF CANADA AND THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA