Martel v. Samson Band of Indians
T-2391-88
Jerome A.C.J.
3/12/92
10 pp.
Application for declaration applicants members of Samson Band of Indians and entitled to share in distribution of Band revenue monies, for mandamus requiring respondents to pay to them such share for period since responsibility for per capita distributions assumed by Band, and for mandatory injunction requiring respondents to continue payment of monthly per capita distributions until further order -- Plaintiffs' names deleted from Samson Band List through operation of Indian Act prior to April 17, 1985 -- 1985 amendment entitling applicants to be registered as Indians -- Department of Indian Affairs and Northern Development registering applicants as members of Samson Band based on 1985 amendment -- Upon registration each applicant receiving monthly per capita distribution (pcd) payments, administered by Department from Band's capital moneys, until April 1988 -- In May 1988 Band's operating budget transferred from capital account to revenue account -- Band having control over revenue account -- Pcd payments then within Band's control -- Distribution of payments to other Band members continued without interruption, but payment to applicants ceased -- Applicants as plaintiffs commencing action alleging Band indebted to them in amount of unpaid pcd -- Band arguing applicants not members because Band not consenting to reinstatement -- Disputing constitutionality of Indian Act authorizing Minister to determine Band's membership on ground inherent right of Band itself -- Applications dismissed -- Determination of application governed by well-established principles of interlocutory relief -- Application of principles in Turbo Resources Ltd. v. Petro Canada Inc., [1988] 3 F.C. 235 (C.A.) -- Mandamus even more exceptional than interlocutory injunction -- Requirement mandamus must be based upon public duty clearly and unequivocally expressed in provisions of governing statute not met -- Challenged legislation must be complied with until courts or legislatures say otherwise -- While statute provides criteria for registration as Indians, not imposing duty on Samson Band to make per capita revenue account distributions applicants seek -- Declarations sought and orders for payment of pcd would decide issues of Samson Band membership and constitutional validity of impugned provisions, issues to be resolved at trial -- Indian Act, R.S.C., 1985, c. I-5, ss. 6 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4), 8 (as am. idem), 9 (as am. idem), 10 (as am. idem), 12 (as am. idem), 62, 63, 69 -- Indian Bands Revenue Moneys Regulations, C.R.C., c. 953, ss. 2, 3, 4 -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4) -- Federal Court Rules, C.R.C., c. 663, RR. 319 (as am. by SOR/88-221, s. 4), 320 (as am. idem, s. 5), 321 (as am. idem, s. 6), 321.1 (as enacted idem, s. 7; SOR/92-43, s. 4).