Date: 20020913
Court File No.: T-1183-02
Neutral Citation: 2002 FCT 977
Ottawa, Ontario, this 13th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
CELESTE STRIKES WITH A GUN
Applicant
- and -
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT, PEIGAN INDIAN BAND COUNCIL,
and ALLAN PARD
Respondents
REASONS FOR ORDER AND ORDER
i. The applicant is a member of the Peigan First Nation. She seeks an interlocutory injunction to suspend the conduct of a ratification vote by members of the Peigan Indian band. The subject of the vote is a proposed settlement agreement (Agreement) struck among the Peigan Band, the Government of Canada, and the Province of Alberta.
ii. This motion is brought pursuant to an underlying application for judicial review of the decision by the Peigan Band Council to submit the agreement to a vote by band members.
iii. ISSUES
(1) Whether the applicant has met the test for an order of an interlocutory injunction;
(2) Whether an injunction is precluded by reason of Federal Crown immunity;
(3) Whether the requirement that the applicant shall undertake to abide by any order concerning damages [as required by Federal Court Rule 373(2)] be waived;
iv. In order to succeed on her motion, the applicant must establish that she raises a serious issue, that irreparable harm would result if the ratification vote proceeded as scheduled, and that the balance of convenience operates in her favour. [Re Attorney General of Manitoba and Metropolitan Stores (MTS) Ltd., (1987) 38 D.L.R. (4th) 331].
v. An applicant for an interlocutory injunction must demonstrate that there is a serious question to be tried. The applicant argues that the negotiation and information processes by which the ratification vote was set up were flawed, and that the ratification guidelines were not effected in accordance with law. She argues that a negotiation process should be conducted with reasonableness, justice, and informed decision making, and that these elements were not present with respect to the Agreement. The applicant alleges that the Band Council Members who lobbied in favour of the Agreement were biased.
vi. The applicant failed to identify any specific deficiency in either the negotiation process or the information process. Her general allegations of bias, misrepresentation and her statement as to the complex nature of the Agreement, without further particulars, are simply insufficient to establish a serious issue. The onus is on the applicant to adduce the evidentiary basis to support her claim of a serious issue to be decided in the underlying application. Her attack on the information process is essentially based on speculation and opinion. Deficiencies in the negotiation process were not addressed in the evidence. On the evidence before me, I find there to be no basis to establish a serious issue.
vii. I am therefore of the view that the applicant has failed to establish a serious issue to be tried in the underlying application.
viii. Even if I had found there to be a serious issue, I am not satisfied that the applicant would suffer irreparable harm should the injunction not be granted. In order to succeed, an applicant has the burden of establishing on clear evidence that he or she will suffer irreparable harm. The evidence cannot be speculative.
ix. Although the applicant has stated that she will suffer irreparable harm if the vote goes ahead, she has not specified what that harm is, nor has she established that any such harm will occur.
x. I am also satisfied that, had the applicant met the two first branches of the Metropolitan Stores, supra, test, the application would still fail. I am satisfied that the respondents, and the public interests they represent, will suffer irreparable harm should the injunction be granted. Given my finding that the applicant has failed to satisfy me of any harm she may suffer, I conclude that, on the basis of the balance of convenience test, the injunction should be denied.
xi. Since the application was unsuccessful on its merits, it will not be necessary for me to consider the issue of Crown immunity.
xii. Since the injunction sought will not issue, it is not necessary to address the applicant's request for a waiver of an undertaking respecting damages pursuant to Rule 373(2) of the Federal Court Rules, 1998, SOR/98-106, as amended. Notwithstanding this determination, I was not persuaded that such a waiver should be granted in any event.
xiii. The respondent, the Minister of Indian Affairs and Northern Development, shall have his costs, as requested.
xiv. For the above reasons, the motion will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion is dismissed.
2. The respondent, the Minister of Indian Affairs and Northern Development, shall have his costs.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1183-02
STYLE OF CAUSE: Celeste Strikes with a Gun v. Minister of Indian Affairs and Northern Development, etc.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 13, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 13, 2002
APPEARANCES:
Celeste Strikes with a Gun FOR APPLICANT
Jolaine Antonio FOR RESPONDENT MINISTER
Kenneth R. McLeod FOR RESPONDENT PEIGAN and Allan Pard
Everett Bunnell/Aldo Argento FOR INTERVENER ALBERTA
SOLICITORS OF RECORD:
Celeste Strikes with a Gun FOR APPLICANT
Brocket, Alberta
Morris Rosenberg FOR RESPONDENT MINISTER
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario, K1A 0H8
Walsh Wilkins Creighton
Calgary, Alberta FOR PEIGAN AND PARD
Hon. FOR INTERVENER ALBERTA
Deputy Attorney General of Alberta
Calgary, Alberta