Tag Archives: Indian status

Iskatewizaagegan No 39 Independent First Nation v Winnipeg (City), 2021 ONSC 1209

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Ontario’s motion is dismissed. Ontario moved for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim claiming that it is plain and obvious that Iskatewizaagegan pleading disclosed no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. The Court finds that it is not plain and obvious that Iskatewizaagegan does not have a tenable cause of action based on a sui generis fiduciary duty or an ad hoc fiduciary duty.

Indigenous Law Centre CaseWatch Blog

The City of Winnipeg, Manitoba [“Winnipeg”] extracts its drinking water from Shoal Lake, which is located predominantly in Ontario, but also Manitoba. Shoal Lake has been extracted for this purpose for over 100 years but has not paid anything to the Plaintiff, the Iskatewizaagegan No. 39 Independent First Nation [“Iskatewizaagegan”]. Winnipeg is being sued by Iskatewizaagegan for compensation for injurious affection, with damages claimed at $500 million. Iskatewizaagegan also sues the Province of Ontario, for breach of fiduciary duty.

Iskatewizaagegan pleads two distinct theories of Crown liability for breach of fiduciary duty: 1) a sui generis fiduciary duty based on the relationship between Aboriginal peoples and the Crown; and 2) an ad hoc fiduciary duty. It relies on a 1913 Order in Council along with antecedent Royal Proclamations and Treaties and sequent legislation enacted by Ontario.

In this matter, Ontario moves for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim without leave to amend and to dismiss the action for failing to disclose a reasonable cause of action. Ontario states that it is plain and obvious that Iskatewizaagegan pleading discloses no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. Ontario’s action is dismissed.

The people of Iskatewizaagegan are Anishinaabe. They are a distinct Aboriginal society, a recognized Band under the Indian Act, and an Aboriginal people within the meaning of s 35 of the Constitution Act, 1982. Shoal Lake is a part of the cultural identity of Iskatewizaagegan and its people. Since time immemorial, the Anishinaabe have used the waters of Shoal Lake and the surrounding land for survival. Iskatewizaagegan’s culture is coextensive with Shoal Lake and the surrounding land. The transmission of Anishinaabe teachings, traditions, and values to future generations takes place and continues to take place at Shoal Lake.

Common law real property concepts do not apply to Aboriginal lands or to reserves. Aboriginal title and interest in reserves are communal sui generis interests in land that are rights of use and occupation that are distinct from common law proprietary interests. An Aboriginal interest in land will generally have an important cultural component that reflects the relationship between an Aboriginal community and the land. The Aboriginal interest in land is a sui generis independent beneficial legal ownership interest that burdens the Crown’s underlying title, which is not a beneficial ownership interest and which may rather give rise to a fiduciary duty on the part of the Crown.

Iskatewizaagegan is a beneficiary of the Royal Proclamation of 1763, and was ratified by assembled Indigenous Nations by the Treaty of Niagara 1764. In the summer of 1764, representatives of the Crown and approximately 24 First Nations, met at Niagara. The lengthy discussions lead to the Treaty of Niagara 1764, which was recorded in wampum. The Crown does not recognize the Treaty of Niagara 1764 as substantively altering the legal effects of the Royal Proclamation of 1763. In contrast, First Nations assert that the Royal Proclamation of 1763 must be understood together with the Treaty of Niagara 1764 and so understood the Royal Proclamation of 1763 constitutes a recognition of Indigenous sovereignty.

In 1873, Iskatewizaagegan entered into Treaty No 3 with the Crown. The reserve of Iskatewizaagegan No. 39 adjacent to Shoal Lake was established pursuant to Treaty No 3. Treaty No 3 is a pre-confederation treaty on behalf of the Dominion of Canada and Chiefs of the Ojibway. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were taken up for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. Although Treaty No 3 was negotiated with the Crown in right of Canada, the promises made in Treaty No 3 are promises of the Crown. The federal Government and Ontario are responsible for fulfilling the promises of Treaty No 3 when acting within the division of powers under the Constitution Act, 1867.

In exercising its jurisdiction over Treaty No 3 lands, Ontario is bound by the duties attendant on the Crown and it must exercise its powers in conformity with the honour of the Crown and the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. The honour of the Crown has been a principle animating Crown conduct since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Aboriginal peoples. The categorical fiduciary duty owed by the Crown in the Aboriginal context is sui generis. From the honour of the Crown and the Federal Government’s exclusive jurisdiction in respect of Indians under s 91(24) of the Constitution Act, 1867, the Crown has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples.

Bangloy v Canada (AG), 2021 FC 60

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Reply

Application dismissed. An Indigenous family alleged that their education benefits were denied as retaliation for previous complaints the family had lodged against Indigenous and Northern Affairs Canada, and for discrimination based on race, or national or ethnic origin.

Indigenous Law Centre CaseWatch Blog

Thirty years ago, Ms. Bangloy’s mother requested from Indigenous and Northern Affairs Canada’s [“INAC”] predecessor, Indian Affairs and Northern Development [“IAND”],  reimbursements of Ms. Bangloy’s tuition fees at a private school in British Columbia. The family argued that the costs were reimbursable under the terms of Treaty 11. IAND’s position was that education expenses could be claimed under the Indian Act, but only for children living on reserve, which Ms. Bangloy was not. The Court sided with IAND, finding that Treaty 11’s terms were confined to the geographical area of the treaty (Beattie v Canada (Minister of Indian Affairs and Northern Development), [1998] 1 FC 104, [“Beattie”]).

This matter deals with the decisions arising from a human rights complaint initiated by Ms. Bangloy and her family. The family launched the complaint after alleging discrimination on the basis of race or national or ethnic origin by INAC for their failure to provide Ms. Bangloy and her children with information regarding education benefits. They also maintained that INAC denied them these education benefits in question as retaliation for previous complaints of discrimination the family had lodged against INAC in Beattie.

The Tribunal found that there was no connection between INAC’s alleged failure to provide Ms. Bangloy with information about obtaining educational benefits and her race or ethnic or national origin. Therefore, she had not made out a claim of discrimination. With regard to the education funding issue in general, the Tribunal found that the same family was raising the same issue that had already been decided by the Federal Court in Beattie. In respect of the complaints of retaliation, the Tribunal found that the existence of a previous complaint was not a factor that influenced INAC’s alleged failure to provide education benefits. Therefore, there was no retaliation involved.

Ms. Bangloy’s application for judicial review required the Court to consider the Tribunal’s conclusions and whether or not they were reasonable. The Court found that the Tribunal’s conclusions that Ms. Bangloy had not made out a claim of discrimination in respect of annuity payments or information about educational benefits was reasonable given the absence of evidence of a connection between INAC’s position and Ms. Bangloy’s race, or national or ethnic origin. The Court concluded that the Tribunal reasonably found that the issue of entitlement to education benefits had already been decided by the Federal Court in Beattie. The Tribunal reasonably concluded that INAC’s conduct was not retaliatory. The Court dismissed this application for judicial review.

Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

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Reply

Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

Indigenous Law Centre – CaseWatch Blog

The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

Okanagan Indian Band v Johnston, 2020 BCSC 1749

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The Court granted a one-year stay against the Band’s application for summary trial against a former member in relation to an interest in reserve land her late aunt bequeathed to her. The stay will give the defendant time to appeal the rejection of her membership application in another proceeding, although she will have other hurdles to surmount beyond membership before she can obtain a legal interest in the lot.

Indigenous Law Centre – CaseWatch Blog

The defendant, Marilyn Johnston, was a former member of the plaintiff, Okanagan Indian Band [“OKIB”] but is not a present member. Currently, she is a registered Indian of the Nak’azdli Whut’en Indian Band in Fort St. James, B.C. Ms. Johnston was bequeathed property on the reserve from her aunt who died in 2013. The plaintiff, the OKIB, is a band within the meaning of the Indian Act, and is the beneficiary of six reserves set aside for its use and benefit by the federal Crown pursuant to s 18 of the Indian Act. Okanagan Reserve No. 1 is one of the reserves set aside for the OKIB. Section 50 of the Indian Act prevents Ms. Johnston from inheriting her aunt’s property. The OKIB says that she must therefore vacate the property and Okanagan Reserve No. 1 [“Reserve”].

Ms. Johnston applied to transfer her membership back to the OKIB, and has been taking steps since then to reinstate her membership in the OKIB. She originally transferred her band membership from the OKIB in 1988 to enhance her credibility and trust with the community members she worked with in the victim services program. She had moved to that area in approximately 1976 and worked there in the social service sector. It was always the defendant’s intention to return from the Nak’azdli Whut’en Indian Band to the OKIB, as she has extensive ties to the Reserve.

When the defendant first contacted the OKIB in 2002 to transfer her membership, she was advised that the OKIB was in the process of adopting a new band membership transfer policy. OKIB said that it would process her application and she would be registered as a member. An internal band memo in 2012 stated that the defendant “has fulfilled all the requirements to apply for transfer to” the OKIB. It resolved that the defendant “has been accepted into the membership” of the OKIB, however, the transfer was not processed.

There is an issue between the parties as to whether the membership requirement in s 50 should be interpreted as being a member of the band at the date of the testator’s death, or whether it is retrospective and can be cured by membership granted after the date of death of the testator. The usual process under s 50(2) of the Indian Act where a beneficiary is unable to inherit the lands is for the lands to be sold to a band member and the proceeds of the sale provided to the beneficiary. Should the lands not sell, the lands would revert to the OKIB pursuant to s 50(3).

In 2019, the OKIB reconsidered the defendant’s application, but denied the defendant’s application for membership on the basis that she displayed aggressive and threatening behaviour to the OKIB staff and guests and that she would not make a positive contribution to the community. The defendant says she did not commit the behaviour or acts alleged and that there is no reasonable basis to deny her membership. The defendant appealed the OKIB Band Council decision to deny her membership with a formal application to the Protest Unit of ISC pursuant to the OKIB’s Band Membership Transfer Policy and s 14.2(1) of the Indian Act [“Protest”].

The Protest was sent by registered mail and accepted. The defendant has not yet received a reply. The basis for the Protest is that the decision to deny the transfer of membership to the OKIB was made without proper consultation and was significantly delayed. Subsequently, the plaintiff filed this Notice of Application. The defendant filed her application seeking a stay of proceedings to permit the membership process to complete, by way of appeal if necessary.

The Court has inherent jurisdiction to grant a temporary stay in a proceeding before it (Law and Equity Act, s 8(2); RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. There is a serious question to be determined (RJR-MacDonald). In the Court’s view, there is an intrinsic link between the membership application issue and the plaintiff’s claims against the defendant. In the event that she becomes a member, there will likely be the two hurdles identified by the plaintiff, the retrospectivity of the operation of s 50, and the permission of the Minister pursuant to s 49. Irreparable harm would be occasioned to Ms. Johnston if the stay was refused. The second branch of the test is met by the defendant (Dixon v Morgan, 2020 BCCA 200).

In considering the balance of convenience, it is important to note that the defendant first applied to OKIB for a transfer back of her membership in 2002. The decision denying the application was made in 2019. In the intervening time, Ms. Johnston returned to live with her aunt in 2009, and her aunt died in 2013. Internal band documents indicate that in 2012 there was no impediment to approving the membership application. There were many attempts made by Ms. Johnston to communicate with OKIB and further her application throughout the years from 2002 to 2019. The lack of certainty of the future of the Lots lies at the feet of OKIB as a result of their delays. The prejudice to the defendant is far greater than that to the OKIB (RJR-MacDonald). The stay is granted with the length of one year.

Bruno v Samson Cree Nation, 2020 ABQB 504

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The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

Indigenous Law Centre – CaseWatch Blog

For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

Hele c Canada (AG), 2020 QCCS 2406

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This is a significant new case on how to approach the provisions for Indian status under s 6 of the Indian Act. Among other things, the Court clarifies how the honour of the Crown applies to the interpretation of the Indian Act to disfavour the legality of enfranchisement. This decision may have significant implications for how applications for Indian status are processed.

Indigenous Law Centre – CaseWatch Blog

The present statutory appeal is from a final decision of the Indian Registrar of Aboriginal Affairs and Northern Development Canada. That decision refused to recognize a 9 year old child, Annora Daphne Hele as an Indian.

The discriminatory policy known as “enfranchisement”, involved the renouncement personally and on behalf of descendants, living and future, of recognition as an “Indian” including its certain rights and benefits. In return, one gained full Canadian citizenship and the right to hold land in fee simple. The policy used to be the cornerstone of the Canadian federal government’s assimilation blueprint relating to Aboriginal peoples. Enfranchisement was not a policy desired by Indians and was ultimately abolished in 1985. Parliament has since enacted remedial provisions to address some of the consequences of that oppressive process but certain descendants of enfranchised Indians continue to suffer its aftereffects.

The issue at the heart of this appeal is the interpretation of a subsection of a male-centric Indian Act, 1952 [“1952 Act”]. In debate is the meaning of the words, “an Indian” and “the Indian and his wife and minor unmarried children” found in subsection 108 (1), which cannot be understood without taking into consideration the entire section, the 1952 Act in both English and French, and the history of the Indian Act as a whole. The two versions of the Act are authoritative, the words of both English and French (translated verbatim) must be examined to understand the intention of the legislature.

When a court is called upon to interpret a statute, particularly one relating to the Aboriginal peoples, in addition to adopting a straightforward non-technical liberal purposive approach that resolves doubts or ambiguities in their favour, it should not engage in carrying out its task in a vacuum devoid of all realities before it. In interpreting a historic legislation such as the Indian Act that contains oppressive provisions, such as subsection 108 (1) of the 1952 Act, the court should not engage in merely an academic exercise.

Subsection 108 (1) was resorted to in 1965 to voluntarily enfranchise Annora’s paternal grandmother, Margaret Laura Hele. At the time, Margaret was twenty-five years old, educated, self-sufficient, and not yet married. She spent several years teaching in a number of cities in northern and southern Ontario. After she left the reserve, Margaret’s mother began to receive calls and visits from band councillors demanding to know why Margaret was not filing for enfranchisement. These councillors insisted that Indian women who had either married or who were going to marry a non-Indian in any event could no longer retain the right to be a member of the band. Conceding to the pressure, Margaret voluntarily enfranchised. Four years later, Margaret married a non-Indian Canadian. Despite the applicable legislation, this marriage had no effect on Margaret’s Indian status as she was by then already voluntarily enfranchised. Had Margaret not been enfranchised, she would have lost her Indian status by operation of law on the day of her marriage.

In 1985, due to compelling social and political reasons, section 108 of the 1952 Act was repealed and enfranchisement in Canada was abolished. Margaret filed to be registered as an Indian, and for her children living with her. In 1987, as a result of the amendments to the 1985 Act, their Indian status was restored. Shortly after Annora’s birth, the Appellant, filed an application with the Indian Registrar to register her as an Indian. The Indian Registrar refused to register Annora as an Indian based on the provisions of the 1985 Act. The Appellant then filed a protest of the Indian Registrar’s decision pursuant to section 14.2 of the 1985 Act. The main ground of protest was that in 1965 the Governor in Council had no competence under the 1952 Act to enfranchise Margaret, who was an unmarried Indian women.

The Indian Registrar concluded that since Margaret had been enfranchised voluntarily pursuant to section 108 of the 1952 Act, Annora was not entitled to be registered as an Indian. Had Margaret lost her Indian status four years later as a consequence of her marriage to Laurence, there would be no second generation cut-off under the 1985 Act, and the answer would be different.

The only relevant issue before this Court is the correctness of the Indian Registrar’s decision. The question that requires an answer in this appeal is whether subsection 108 (1) of the 1952 Act permits the voluntary enfranchisement of an unmarried Indian woman? The Court’s answer to the above question is no. Subsection 108 (1) of the 1952 Act did not permit in 1965 the enfranchisement of Margaret who was an unmarried Indian woman. The same conclusion holds today when subsection 108 (1) is examined in light of modern interpretive rules and the current socio-political context. There is no ambiguity in the text or language of subsection 108 (1) as they are not reasonably capable of more than one meaning when considered in their entire context.

Enfranchisement was never a right even though historically it was viewed as a privilege. Enfranchisement, which used to be the cornerstone of the Canadian federal government’s assimilation policies towards Aboriginal peoples, was abolished in 1985. The federal government today would not pass a law that would encourage or allow Margaret to enfranchise herself. It would be mistake in law today to interpret subsection 108 (1) of the 1952 Act as allowing Margaret to enfranchise herself voluntarily in 1965.

Sections 108 and 109 of the 1952 Act, as amended in 1956, are the only statutory provisions that existed and applied to Margaret at the time she was enfranchised in 1965. Neither section permitted in 1965, nor does either section permit today, the voluntarily enfranchisement of Annora’s grandmother, Margaret, as an Indian.

The Indian Registrar decided incorrectly when she concluded “that prior to 1952 the Indian Act was amended to allow men or women over the age of twenty-one to enfranchise.” The Indian Registrar therefore erred in law, when she concluded in 2017 that the Governor in Council had the power to enfranchise unmarried Indian women pursuant to subsection 108 (1) of the 1952 Act, and when she rejected the Appellant’s protest application to register Annora as an Indian on that basis. Annora’s request filed through her father is granted and this matter is returned to the Indian Registrar to modify in the appropriate registry records the notation that Margaret Laura Hele was voluntarily enfranchised by Order in Council.

 

Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

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Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

Indigenous Law Centre CaseWatch Blog

Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).

R v Lamb, 2020 NBCA 22

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Leave to appeal granted and appeal allowed. The order of a new trial is set aside and trial judge decision is restored. A non-Indigenous woman that has a band status card does not give her the Aboriginal right to hunt under Section 35 of the Constitution Act.

Indigenous Law Centre – CaseWatch Blog

A non-Indigenous woman registered with an Indian Status membership from her late husband, self-represented and asserted she had a Section 35(2) Aboriginal right of the Constitution Act, 1982 to shoot a moose out of season, as she was using it to feed her family.

The fact she carried a status card and was considered a member of the Burnt Church First Nation community was not in question. The real issue was whether or not that status equated to the woman having the right to hunt moose out of the season, which is a recognized Aboriginal right guaranteed by s 35(2) of the Constitution Act, 1982.

The trial judge took the view, that in a situation such as this, the mere fact that a person holds a band card is insufficient to establish in and of itself their entitlement to constitutionally guaranteed Aboriginal rights. However, the Summary Conviction Appeal Court judge ordered a new trial. This Court determines that appeal was in error and restores the trial judge’s decision. The custodial sentence of seven days in jail and the fine of $2,000 are stayed.

 

 

 

 

 

Dumais et al v Kehewin Band Council et al, 2020 FC 25

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Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

Indigenous Law Centre – CaseWatch Blog

The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

Engstrom and Ragan v Peters First Nation Band Council, 2020 FC 286

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Reply

Application allowed. Peters First Nation Band Council is ordered to take all steps necessary to grant full Band memberships to the Applicants.

Indigenous Law Centre – CaseWatch Blog

The Peters First Nation Band Council [“Council”] rejected the Applicants’ respective applications for band membership. This matter is the second application for judicial review seeking relief in connection with the denial of their memberships.

The first application was granted, but the Court declined to express an opinion about the merits of the Council’s decision in denying membership to the Applicants. However, it was found that the Council had acted unfairly by failing to inform them in advance of the factors that would be taken into account in deciding their applications. There was also concern regarding the Council’s failure to provide substantive reasons for its decision. The matter was accordingly remitted to Council for reconsideration, but once again, the applications were refused.

The Court was not able to ascertain the exact motives of the Council for denying Band memberships to the Applicants. It can assess, however, the Council’s stated reasons for denying those memberships to determine whether those reasons had the mark of rationality, intelligibility and justification. The focus of judicial review is on the reasons provided by the decision-maker in support of its decision. According to the Supreme Court of Canada, reasonableness review “must be on the decision actually made”, not the reasons that could have been made (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [“Vavilov”]). Robust judicial review is about outcomes and a decision-maker’s reasoning process in getting to an outcome. Both must be reasonable in light of the legal and factual constraints that bear on the decision. A primary legal constraint is the governing statutory scheme. It is not open to a decision-maker to disregard the applicable rules. There is no such thing as absolute or untrammelled discretion (Roncarelli v Duplessis, [1959] SCR 121).

A decision-maker may have some room to interpret the rules that apply to a matter before it but that exercise must be consistent with the text, context and purpose of the provision (Vavilov). Where the words employed are precise and unequivocal, their ordinary meaning will usually be determinative. It is not open to the decision-maker to adopt an “inferior” interpretation merely because it is plausibly available and expedient; or to “reverse-engineer” to get to a desired outcome (Vavilov). The express governing rules that apply to the Council’s membership decisions are contained in the Peters Indian Band Membership Code [“Code”]. The Code was adopted by the Band in 1990 and replaced the band membership provisions that had been previously contained in the Indian Act.

In rejecting the applications of the Applicants, it is clear that the Council did not consider itself bound by the membership criteria set out in the Code. It was not open to the Council to make up its own membership rules to supplement the explicit criteria that were adopted in 1990 when the Band took control of its memberships. The Council has acted unlawfully, unfairly and in bad faith in rejecting the membership applications of the Applicants. The Council has repeatedly shown itself to be unfit to decide these matters and there is no reasonable expectation that fairness and reason will prevail if this matter is remitted to the Council again. The Council is directed to take all the steps necessary to grant full Band memberships to the Applicants.