Date: 19990114
Docket: T-4178-78
BETWEEN:
JOSEPH APSASSIN, Chief of the Blueberry River Indian Band,
and JERRY ATTACHIE, Chief of the Doig River Indian Band,
on behalf of themselves and all other members of the
Doig River Indian Band, the Blueberry Indian Band
and all present descendants of the Beaver Band of Indians,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the Department of Indian Affairs and
Northern Development and the Director of the Veterans Land Act,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiffs in this action were awarded $147,000,000 on 2 March 1998. Of that sum $12,000,000 has been set aside for persons who were members of or who are descendants of members of the Beaver Band, subsequently called the Fort St. John Band and the St. John Beaver Band.
[2] By the terms of the 2 March 1998 Order, claims and affidavits of claims were to be filed by 15 June 1998, with the admonition that a failure to file, in a timely manner, might constitute a bar. However, the Court has, since 15 June 1998, both allowed and denied a number of late claims.
[3] Here the late claimants are two children, Lindsay Ann MacDonald, nearly five and half years of age and Adam Nicholas Carrier, who is a little shy of two and a half years of age. Their mothers, as guardians, claim for them.
[4] Now these two claims did not come out of the blue, but have a history of confusion. The children's mothers, ignoring the well known admonition of James James Morrison Morrison Weatherby George Dupree,1 that mothers ought to pay attention to their children, did not think to include Lindsay MacDonald and Adam Carrier when they made their own claims on the very last day of the time allowed. Subsequently, the children's grandmother, Mrs. Pearl Price, realized there had been an oversight and applied, by motion of 26 August 1998, on behalf of the children, for an extension of time within which to file claims. By a short endorsement on an Order of 28 October 1998, denying the motion, I pointed out that Mrs. Price had produced no evidence to show that she was authorized to claim on behalf of the children and that it was, in the present instance, for the parents both to claim on behalf of the children and to explain why the claims were not made in a timely manner.
[5] The mothers of Lindsay MacDonald and Adam Carrier both say that they did not appreciate that their children might make claims against the fund, that as soon as the children's grandmother, Mrs. Price, realized the omission, she made a claim. There was then delay in awaiting the outcome of Mrs. Price's application. Still further delay ensued "... not due to any lack of attention or disinterest on my part as I relied upon my Counsel to prepare this application." (paragraphs 17 of the affidavits of the mothers of Lindsay MacDonald and Adam Carrier).
[6] Now all of this is a little thin, especially in the light of the time that has gone past since 15 June 1998. However, the material, sparse as it is, does touch on the basic concepts needed for an extension of time. It indicates that the children have a case for their claims that has a reasonable chance of success. There is some excuse for the delay. There has been a continuing intent to claim from the time the oversight was recognized. There is certainly no real prejudice. But on the material alone and given the substantial delay, I might be tempted to deny time extensions. However, ought I to deny the children their birthright on the basis of a oversight by parents. As adults we take on the responsibility of protecting our rights and can choose whom we wish to represent us. As children Lindsay MacDonald and Adam Carrier cannot make that choice: they have their parents, for better or worse. In this instance the parents have been somewhat lax. Yet I must do justice between the parties and balance all of the factors of concern in the circumstances, including the nature of the interest at stake, Grewal v. MCI (1985), 63 N.R. 106 at 110 (Thurlow, C.J.) and at 116 (Marceau, J.A.).
[7] I am not about to deprive Lindsay MacDonald and Adam Carrier of their birthright by reason of a lax approach by their families in making claims, on behalf of Lindsay MacDonald and Adam Carrier, for a share of the proceeds arising from mineral rights in Indian Reserve No. 172, which were conveyed away by the Crown.
[8] Lindsay MacDonald and Adam Carrier may, through their mothers, have until 15 February 1999, within which to file notices of claim and affidavits in support.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
January 14, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-4178-78
| STYLE OF CAUSE: JOSEPH APSASSIN, Chief of the Blueberry River Indian Band, and others |
v.
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Department of Indian Affairs and Northern Development and the Director of the Veterans Land Act |
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated January 14, 1999
WRITTEN SUBMISSIONS BY:
Mr. Robert MacLeod for Donna MacDonald and Deanna Carrier
Mr. Thomas Berger for the Blueberry River and Doig River Indian Bands
Mr. Mitchell Taylor
Ms. Victoria Cox for Defendant
SOLICITORS OF RECORD:
Dick Byl Law Corporation
Vancouver, BC for Donna MacDonald and Deanna Carrier
Berger & Nelson
| Vancouver, BC for the Blueberry River and Doig River Indian Bands |
Morris Rosenberg
Deputy Attorney General
of Canada for Defendant
__________________
1 See "Disobedience" from "When We Were Very Young" A.A. Milne