1970s Diesel Oil Spill Still Being Litigated By Mathias Colomb Cree Nation

The Mathias Colomb Cree Nation (MCCN) is one step closer to settling a tort claim (against Canada and Manitoba Hydro) following diesel spillage on its reserve from1976-1985 . A $17 million settlement was negotiated and ratified but was most recently being contested by three MCCN members:  Leah Ballantyne, Randy Bear and Darryl John Sinclair.

Here’s the federal court decision,  Ballantyne v. Mathias Colomb Cree Nation.

 76          In the end, the Applicants have failed to show anything wrong with the Settlement Agreement or the ratification process. They have failed to show that MCCN did not secure a favorable resolution to its claim against Canada. They have also failed to show any substantial reason why the Settlement Agreement should not be implemented to the common good of MCCN and its members.

Conclusions

77          My conclusions are that Canada owed no fiduciary duty to the MCCN members in this case. However, even if such a duty was owed, it was discharged through the negotiation and ratification process that, in the full context of the litigation and the knowledge available to the MCCN community allowed an informed and procedurally fair vote to take place. The same process also discharged the fiduciary duty owed to MCCN members by Chief Dumas and the MCCN Council. Reading through the evidence, I think that Chief Dumas discharged his duties in a thorough, open, and professional manner. He and his Council should be commended for their work.

78          I am also of the view that, even if the Court had the jurisdiction to review the Settlement Agreement and the Ratification Protocol, what occurred in this case was entirely fair and reasonable.

Exercise of Discretion

79          The relief requested by the Applicants would have the effect of further delaying Canada’s payment of the settlement funds under the Settlement Agreement, and would put the total implementation of the Settlement Agreement in jeopardy, in the sense that ratification is a condition precedent to the Settlement Agreement. It is a well-recognized principle that this Court may decline to exercise its jurisdiction where the harm to many by quashing a decision outweighs the need to denounce relatively minor or technical defects in decision-making.

80          The Applicants have not made a credible case against the worth of the Settlement Agreement itself, or Canada’s decision to enter it. The Applicants have made out no case that MCCN members were not properly advised, or that the Settlement Agreement, in its proper context of historical remediation undertaken, is in the least improvident. If the Applicants real complaint is that the Settlement Agreement is improvident, then their remedy would be more appropriately sought in the Manitoba Court of Queens Bench where the substantive litigation originates, and where they should have to make their case against the Settlement Agreement.

81          If the Applicants’ complaint is not really about an improvident agreement, but is more or less confined to complaints about the community information process and legitimate ratification, then it is difficult to see on what grounds the Court could or should grant the relief requested and potentially frustrate the implementation of the Settlement Agreement, given that the Court is satisfied that the informed collective will of the MCCN community has been clearly ascertained and implemented.

Costs

82          The Crown says in its written submissions that a substantial award of costs is warranted in this case. The other Respondents request costs on a solicitor and client basis.

83          I can see why the Respondents are very annoyed by this litigation. It has delayed and jeopardized settlement funding that MCCN badly needs and has presented little in the way of justification for doing so. Ms. Ballantyne, who appears to be the principal Applicant, also appears to be acting in isolation. I say this because the evidence for procedural unfairness or breach of any duty owed to MCCN is non-existent. The application is little more than a series of vague accusations that are unsupported by evidence and which bear little relation to the facts and the law. Also, as the dispute has evolved and cross-examinations have occurred, it has been revealed that the Applicants have made little effort to acquaint themselves with the facts of the ratification process that was followed or to be forthright about what they knew had taken place. This application has placed much-needed funding in jeopardy with very little by way of justification. Some of the Applicants may have acted out of inexperience, but Ms. Ballantyne is a qualified and practicing lawyer who knows full-well that litigation should not be undertaken lightly and without a solid evidentiary basis.

84          In reviewing the record in an attempt to understand what may have motivated the application, however, I think I have to take into account that the Second Ratification Vote conducted on March 14, 2011 resulted in 472 votes being cast of which 354 votes were in favour of accepting the Settlement Agreement and 98 were against.

85          Bearing in mind that my conclusions are that the Chief and Council did a good job in educating the members of MCCN on the merits and significance of the Settlement Agreement, this means that a quarter of the informed votes cast were against acceptance. This leads me to conclude that a not insubstantial portion of the community was against acceptance for one reason or another. It seems to me that Ms. Ballantyne, and perhaps the other Applicants, have been attempting to articulate in legal terms what they believe that opposition vote represents. I cannot say they have been successful in this regard because there is no evidence before me that speaks to why 98 members voted against the Settlement Agreement, or whether they continue to be dissatisfied with the eventual result. While understanding the frustration and anger of the Respondents, I think that enhanced costs would be an overreaction in this case.