CHIEF MARTIN OWENS Appellant v. NELSON KEEPER, and HER MAJESTY, 2012 FCA 90

Federal Court of Appeal Cour d'appel fédérale Date: 20120315 Dockets: A-146-11 A-165-11 Citation: 2012 FCA 90 CORAM: PELLETIER J.A. DAWSON J.A. STRATAS J.A.

A-146-11 BETWEEN: CHIEF MARTIN OWENS Appellant and NELSON KEEPER, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA , as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Respondent s and A-165-11 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA , as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Appellant and NELSON KEEPER, CHIEF MARTIN OWENS, COUNCILLOR DEON LAM and DEPUTY ELECTORAL OFFICER IAN KEEPER Respondents Heard at Winnipeg, Manitoba , on March 15, 2012. Judgment delivered from the Bench at Winnipeg, Manitoba , on March 15, 2012.

Federal Court of Appeal Cour d'appel fédérale REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. Date: 20120315 Dockets: A-146-11 A-165-11 Citation: 2012 FCA 90 CORAM: PELLETIER J.A. DAWSON J.A. STRATAS J.A.

A-146-11 BETWEEN: CHIEF MARTIN OWENS Appellant and NELSON KEEPER, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA , as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Respondents and A-165-11 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA , as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Appellant and NELSON KEEPER, CHIEF MARTIN OWENS, COUNCILLOR DEON LAM and DEPUTY ELECTORAL OFFICER IAN KEEPER Respondents REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Winnipeg, Manitoba, on March 15, 2012) PELLETIER J.A. [1] In the circumstances of these cases, we have decided not to exercise our discretion to hear these appeals relating to theconduct of Indian Band elections, notwithstanding their mootness. [2] The Crown asks this Court to hear these matters on the basis that, given the 2 year term of office, the questions are elusive ofreview. We cannot agree.

Where the parties pursue their remedies diligently, and where the Court’s assistance is requested in expeditingapplications and appeals, there is no reason why these matters cannot be heard in a timely fashion. [3] As the factors identified in Borowski v. Canada (SCC), [1989] 1 S.C.R. 342, we are not satisfied thathearing these appeals is an appropriate use of judicial resources. In particular, we are of the view that failure of the parties to address therole of

section 78 of the Indian Act in the

interpretation of the regulations in issue in this appeal would impede our ability to reach aconclusion with confidence. [4] In the result, we will dismiss these appeals with each party to bear its own costs. In doing so, we do not wish to be taken tobe expressing an opinion as to the soundness of the decision under appeal, cited at 2011 FC 307. "J.D. Denis Pelletier" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-146-11 APPEAL FROM THE ORDER OF THE FEDERAL COURT DATED MARCH 14, 2011, DOCKET NO. T-1252-10 STYLE OF CAUSE: A-146-11 CHIEF MARTIN OWENS v. NELSON KEEPER ET AL. PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: March 15, 2012

REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. DELIVERED FROM THE BENCH BY: PELLETIER, J.A. APPEARANCES : Martin U. Kramer FOR THE APPELLANT CHIEF MARTIN OWENS Martin S. Minuk and Melissa N. Burkett Yvette Creft and Lisa Cholosky FOR THE RESPONDENT NELSON KEEPER FOR THE RESPONDENT HER MAJESTY THE QUEEN IN RIGHT OF CANADA ET AL. SOLICITORS OF RECORD : Olschewski Feuer Davie Barristers & Solicitors Winnipeg, Manitoba FOR THE APPELLANT CHIEF MARTIN OWENS Aikins, MacAulay & Thorvaldson LLP Barristers & Solicitors Winnipeg, Manitoba Myles J.

Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT NELSON KEEPER FOR THE RESPONDENT HER MAJESTY THE QUEEN IN RIGHT OF CANADA ET AL. FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-165-11 APPEAL FROM THE ORDER OF THE FEDERAL COURT DATED MARCH 14, 2011, DOCKET NO. T-1252-10 STYLE OF CAUSE: A-165-11 HER MAJESTY THE QUEEN IN RIGHT OF CANADA ET AL. v. NELSON KEEPER ET AL. PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: March 15, 2012 REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. DELIVERED FROM THE BENCH BY: PELLETIER, J.A. APPEARANCES :

Yvette Creft and Lisa Cholosky Martin S. Minuk and Melissa N. Burkett Martin U. Kramer FOR THE APPELLANT HER MAJESTY THE QUEEN IN RIGHT OF CANADA ET AL. FOR THE RESPONDENT NELSON KEEPER FOR THE RESPONDENT CHIEF MARTIN OWENS SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada Aikins, MacAulay & Thorvaldson LLP Barristers & Solicitors Winnipeg, Manitoba Olschewski Feuer Davie Barristers & Solicitors Winnipeg, Manitoba FOR THE APPELLANT HER MAJESTY THE QUEEN IN RIGHT OF CANADA ET AL. FOR THE RESPONDENT NELSON KEEPER FOR THE RESPONDENT CHIEF MARTIN OWENS