Date: 20030414
Docket: T-2087-01
Neutral citation: 2003 FCT 431
CALGARY, Alberta, Monday, the 14th day of April, 2003.
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
CELESTE STRIKES WITH A GUN
Applicant
and
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR ORDER AND ORDER
[1] Celeste Strikes With A Gun (the Applicant), a member of the Peigan Indian Band, (the Band), challenges, by this judicial review application filed on November 23, 2001, the decision of the Minister of Indian and Northern Affairs (the Minister) to enter into a Settlement Agreement (the Agreement) dated 26th of October, 2001 negotiated between the Minister, the Chief in Council of the Band and the Government of Alberta.
[2] The Applicant, who is a self-represented litigant, seeks the following remedies from the Court:
(a) a declaration that the Minister acted illegally when he entered the agreement;
(b) a declaration that Ratification Voting Guidelines (the Guidelines) which are Schedule B to the agreement are ultra vires and constitute undue influence;
(c) a declaration the Minister is unable "to rely upon any kind of affirmative outcome to the ratification process established by the Guidelines to authorize his decision to sign the Settlement Agreement".
[3] Counsel for the Minister opposes this judicial review application on the grounds of mootness. She says the Applicant's judicial review is moot because the agreement went to a ratification vote by the members of the Peigan First Nation on November 28 and 29, 2001 (one week after the Applicant's judicial review application was filed in this Court). The agreement was not ratified by the First Nation.
[4] The hearing of this judicial review application brought a surprise. I was informed that a second ratification vote was held on September 16, 17 and 18, 2002 for the Piikani Settlement Agreement, the Band having changed its name from Peigan First Nation to Piikani First Nation. The Piikani Settlement Agreement was ratified.
[5] I was also informed that on July 29, 2002, the Applicant filed a judicial review application in this Court (Court file T-1183-02) naming the Minister, the Peigan Band Council and Allan Pard (the Respondents). In that judicial review application, relating to the Piikani Settlement Agreement, the Applicant seeks:
1. An Order "prohibiting the Respondents from using "Piikani" in an attempt to establish the legal validity of the Ratification Voting Guidelines;
2. An Order quashing "the decisions of the Respondents who signed the "Piikani Settlement Agreement".
[6] I was also informed during the hearing the Applicant sought to enjoin the Respondents from holding the ratification vote but that motion was denied by Justice Blanchard on September 13, 2002.
[7] For completeness I should also mention of being told during the hearing, the Applicant has another judicial review application (Court file T-2086-01) relating to the first Settlement Agreement, this time naming the Peigan Band Council and its individual members as Respondents.
[8] The legal principles governing the issue of mootness were established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 which mandates a two part analysis.
[9] The first part of the required analysis is to determine whether the dispute between the parties has disappeared, that has become moot. The second part of the analysis is whether the Court should exercise its discretion and decide a moot issue.
(a) Is this judicial review application moot?
[10] A case is moot, if subsequent to its initiation, events have occurred which affect the relationship of the parties in the words of Justice Sopinka "so that no present live controversy exists which affects the rights of the parties".
[11] Put in other ways a case is moot, if the case has become academic, if the decision will have no practical effect or if the substratum to the litigation has disappeared.
[12] In my opinion there can be little doubt the substratum of the Applicant's judicial review has disappeared. The failed ratification vote means the Settlement Agreement did not come into effect insofar as its substantive terms are concerned.
[13] Moreover, the relief sought in the judicial review application is no longer relevant because the Settlement Agreement does not exist nor do the Guidelines as Schedule B to the Settlement Agreement.
(b) Should the Court hear the Matter?
[14] As noted, the Court has a discretion to hear a moot case but that discretion must be exercised taking into account relevant criteria assessed against the general policy or practice that a Court may decline to decide a case which raises merely a hypothetical or abstract question.
[15] In Borowski, supra, Justice Sopinka outlined some of the factors which might persuade a Court to hear a moot issue. He identified the following:
1. Will the decision have a collateral consequence - serve some useful purpose in determining rights in another context.
2. Does the case exhibit special circumstances that make it worthwhile to apply scarce judicial resources to resolve it; for example, a case of a recurring nature but of short duration such as a walkout or an injunction prohibiting a strike or where important legal questions may never be decided if mootness could not be overcome.
3. Does the matter raise an issue of public importance of which the resolution is in the public interest.
[16] I view the thrust of the Applicant's arguments before me as an attempt to persuade me to exercise my discretion to hear this judicial review application. She told me there would be a benefit in dealing with the issue of the Guidelines which during the second ratification vote were separated from the Settlement Agreement; that a live issue existed as to who was responsible for the costs of the failed First Settlement Agreement. She also maintained the usefulness of her declaration that the Minister acted unlawfully in signing the First Settlement Agreement.
[17] I am not inclined to exercise my discretion to hear this moot judicial review application particularly in the light of the Applicant's second judicial review application attacking the Piikani Settlement Agreement which is the one that really matters, is in effect and can be said to determine the rights of the members of this First Nation, including the Applicant.
[18] There is a second and very important reason for not exercising my discretion. My decision could have a collateral impact on the second judicial review application when I know nothing about the facts underlying the content of the second Settlement Agreement and the circumstances surrounding its ratification. A decision rendered in these circumstances would likely have detrimental effects than good collateral ones.
[19] I am convinced the Applicant will be able to raise in her application in Court file
T-1183-02 the same substantive arguments as in this moot judicial review but in a factual context which is appropriate and not fictitious.
ORDER
[20] This judicial review application is dismissed for mootness. No costs are awarded.
"Francois Lemieux"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2087-01
STYLE OF CAUSE: Celeste Strikes With A Gun v. Minister
of Indian Affairs and Northern Development
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 11, 2003
REASONS FOR ORDER AND ORDER OF LEMIEUX, J.
DATED: April 14, 2003
APPEARANCES:
Ms. Celeste Strikes With A Gun FOR APPLCANT
Ms. Jolaine Antonio FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Celeste Strikes With A Gun
Brocket, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT