Hyperlawhypertext legal database Cardinal et al. v. The Queen [1982] 1 SCR 508

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Cardinal et al. v. The Queen

[1982] 1 SCR 508 Court SCC Decision date 1982-04-05 Docket 16020 English

PartiesRaymond Cardinal, Chief, and Edward Morin, Charles Cowan, Romeo Morin, Alex Peacock and Alphonse Thomas, Counsellors of the Enoch Band of the Stony Plain Indians, for themselves and on behalf of the Indians of the Enoch Band of the Stony Plain Indian Reserve No. 135; and The Enoch Band of the Stony Plain Indians Reserve No. 135 Appellants·Her Majesty The Queen Respondent

Counsel (4)
B.G. Nemetz, for the appellants.
L.P. Chambers, Q.C., and Duff Friesen, for the respondent.
Solicitors for the appellants: Jones, Black & Company, Calgary.
Solicitor for the respondent: R. Tassé, Ottawa.

Judges Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio

Delivered by Judgment of the Court

On appeal from Federal Court of Appeal

Subjects Aboriginal law Statutes

Contents

Judgment of the Court

The judgment of the Court was delivered by

whether the surrender of the 13th of May 1908 by the Enoch Band was invalid on the ground, whilst those persons who in the record of poll are listed as being in favour of the surrender, constituted a majority of those persons who are known to have voted, nevertheless they did not constitute a majority of the male members of the Enoch Band of the full age of twenty-one years according to subsection 1 of section 49 of the Indian Act, R.S.C. 1906, c. 81.

[Page 511]

Prior to the trial of this issue the parties filed an agreed statement of fact, the essential part of which is as follows:

3. For the purpose of such trial the parties agree on the following facts:
(a) As of May 8, 1908, there were between 30 and 33 male members of the Enoch band of Indians of the full age of 21 years and who were entitled to vote on the surrender of lands forming part of their reserve, within the meaning of section 49(1) of the Indian Act, R.S.C. 1906, c. 81.
(b) The number of male members of the Enoch band of Indians of the full age of 21 years who either assented to the surrender of the subject lands or who were recorded as being in opposition thereto was 26.
(c) The number of male members of the Enoch band of Indians of the full age of 21 years who assented to the said surrender on May 13, 1908 and who were so entitled to vote pursuant to section 49(1) of the Indian Act, R.S.C. 1906, c. 81, were 14 in number.
(d) There was executed subsequent to such vote an affidavit by one principal man of the Enoch band of Indians attesting to the surrender, pursuant to section 49(1) of the Indian Act, R.S.C. 1906, c. 81…
4. The parties are not in agreement that there was in fact a meeting of the male members of the Enoch band of Indians of the full age of 21 years on May 13, 1908, summoned for the purpose of voting on the said surrender, and that such vote was taken thereat, within the meaning of section 49(1) of the Indian Act, R.S.C. 1906, c. 81.
5. However, the parties seek the Court’s determination of the said questions on the assumption that there was such a meeting and that such a vote was taken thereat.

Section 49(1) may be capable of at least five interpretations (assuming always a validly called meeting regularly held).

1. A majority of all eligible voters in the band must attend a meeting and that same absolute majority must assent to the surrender.

[Page 512]

A majority of all eligible voters in the band must attend a meeting and a majority of those present must assent to the surrender.
A majority of all eligible voters in the band must attend a meeting and a majority of those present and voting must assent to the surrender.
A simple majority of eligible voters who attend the meeting assent to the surrender.
A simple majority of all eligible voters who attend and vote must vote in favour of the surrender.

Statutes and regulations cited