C-31 class action lawsuit modified by judge

Page 2

Connie Perron's $400-million claim against the federal government for rights lost as a result of Bill C-31 was restructured by an Ontario court judge.

The details of Ontario Court Justice Colin Campbell's decision were released May 9.

Perron and her lawyer, Mary Ebert, were seeking to have the case certified as a class action, so that all people who allege their Aboriginal and human rights were violated by the Department of Indian Affairs' membership regulations could seek compensation. Primarily affected are First Nation women and their children.

Perron is from the Tyendinaga First Nation near Belleville. Eberts, a Toronto-based lawyer, informed Birchbark that Campbell has ruled that the case is not yet ready for certification as a class action. It will proceed as a "representative action." That means that any decision in the case will be seen by the court as a precedent for "all other persons in the same situation, so that the basic points will not have to be re-litigated again and again by countless families and individuals," Eberts said.

The judge struck out the claim that the Crown had committed a breach of its fiduciary duty and postponed to a later stage of the trial the question of claiming damages for breach of Charter rights.

The case will now focus on three main areas: 1) Does Section 6 of the Indian Act, which was enacted by Bill C-31, violate the freedom of association and equality provisions of the Charter of Rights and Freedoms? 2) Does Section 6 violate the guarantees of Aboriginal rights in Section 35 of the Constitution Act? 3) Does Section 6 violate sections of the Canadian Bill of Rights that deal with equality before the law?

Eberts said the ruling means the "second generation cut-off" created by Section 6-2 of the Indian Act can still be challenged. First Nation leaders say the second-generation cut-off is a device used by governments to reduce the number of people who are recognized as status Indians.

"We had mixed success," Eberts said of the ruling. "Although the judge did not allow the case to proceed as a class action at this time, he stated that the Perrons could return to court at a later stage and request permission for class action status. If the court ultimately finds that the Indian Act does violate the Charter of Rights, a class action may be necessary and appropriate to deal with the issue of what damages might be owing for the Charter breach."

The parties in the case will now move on to the production and discovery stage. Both sides must disclose documentation they feel is relevant to the case to the other side. Eberts expects the Crown will produce hundreds or even thousands of documents. No date has been set for the resumption of court hearings.