Date: 20101202
Docket: T-1861-09
Citation: 2010
FC 1218
Ottawa, Ontario, December 2, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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WALLACE PARKER
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Applicant
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and
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OKANAGAN INDIAN BAND COUNCIL
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision made by the Respondent (the “Band
Council”), wherein it refused to issue survey instructions for and/or to
approve a survey of an allotment of land originally granted to the Applicant
(“Mr. Parker”) in 1966. The decision was made at a Band Council meeting on
October 6, 2009.
[2]
Mr. Parker
would like this Court to set aside the decision and remit it back to the Band
Council for redetermination, with instructions to issue survey instructions and
to approve an
[3]
allotment
so that he can perfect his interest in the land and obtain lawful possession of
reserve land under the Indian Act, R.S.C. 1985, c. I-5.
I. Facts
[4]
The Applicant, Mr.
Parker, is a member of the Okanagan Indian Band. The Respondent is the Okanagan
Indian Band Council.
[5]
On
March 11, 1966, Mr. Parker was allotted some rights in a parcel of land on the
Okanagan Indian Band reserve. The Applicant contends that this was a full “allotment
of reserve land” that he apparently understood as a permanent granting of the
land. In contrast, the Respondent holds that Mr. Parker was allotted the land
on a merely temporary “two-year improvement basis.” The minutes from the 1966
meeting confirm that the land was in fact originally applied for on this
“two-year improvement basis,” but do not explain what was meant by that phrase.
This leaves uncertainty as to whether Mr. Parker’s interest in the allotment
was meant to continue after the two years, provided that it was improved, or
whether it was intended to expire in 1968.
[6]
With
respect to the 1966 allotment, both parties agree that conditions of
non-interference with a certain road and ditch were attached to the allotment.
The Band Council believes that there were also logging and fencing conditions
and according to an affidavit filed by the Band Council, there was some
question as to whether these improvements were carried out. Mr. Parker alleges
that no such logging and fencing conditions existed, but argues that if they
did exist, he has fulfilled them.
[7]
The
Band Council maintains that “the two-year term of the improvement allocation on
conditions expired on March 11, 1968.” In contrast, Mr. Parker appears to believe that
his interest in the 1966 Allotment continued on after 1968.
[8]
In
1976 the Band Council invited Mr. Parker and everyone else who had been issued
an allotment to re-apply, apparently because of a transfer of land application
files from an Indian Agent office in Vernon to the Band offices. Mr. Parker re-applied for
the allotment, but the Band Council did nothing with his application.
[9]
Without a
survey of the allotment approved by the Band council, no Certificate of
Possession could be obtained, so the allotment would remain an unperfected
interest. Therefore, on February 19, 1984, Mr. Parker wrote to the Council
asking for permission to survey the 1966 allotment.
[10]
On June
11, 1984, the Band Council authorized Mr. Parker to obtain a survey of the
land, but imposed new restrictions on the 1966 allotment, reducing its size and
excluding certain lands. Mr. Parker did not agree with the 1984 restrictions
and communicated his disagreement to the Council, but no resolution was reached
on this issue.
[11]
On April
29, 1986, the Band Council adopted a new Allotment Policy (the Okanagan Indian
Band Land Allotment Policy). The stated objectives of the Allotment Policy
reflected a desire for consistency, fairness, and the protection of the Band’s
lands and natural resources.
[12]
In 2007,
the Band Council began the process of developing a framework plan to resolve
land issues on the Reserve, which would take into account factors such as past
and current policies, resources, land values, planning for future generations,
consistency, fairness, traditional Sylix laws, balancing the competing
priorities of conservation and development, etc.
[13]
On
June 9, 2008, a Band Council meeting was held to consider unperfected land
allotments and applications. The Council addressed various land requests,
including Mr. Parker’s. The Council discussed past and present land policies
and determined that a decision needed to be made as to whether the allotment
would be surveyed according to the 1966 or the 1984 boundaries. The issue was
tabled until the next “Lands” meeting.
[14]
According
to Mr. Parker, the June 9, 2008 meeting dealt with only two other applications
that were similar to his, from a Mr. Robert Louis and a Mr. William Marchand.
Band Council motions were passed allowing these men to proceed with the surveys
of their respective allotments, and within the next year the resulting surveys
were each approved by a Band Council Resolution.
[15]
The
Band Council maintains that three other land applications were also not granted
at the June 9, 2008 meeting. The meetings minutes confirm that individuals
named Francis Oppenheimer, Eva Lawrence and Angeline Jones made applications
that were not granted, but it is not clear from the minutes whether their
applications were analogous to Mr. Parker’s, as Mr. Louis’s and Mr. Marchand’s
ostensibly were, or whether they were rejected because they were made on behalf
of deceased members, as contended by Mr. Parker.
[16]
On
November 5, 2008, the Band Council held another meeting to address Mr. Parker’s
application for a survey. The Band Council reviewed the history of the
allotment and decided to do a site visit, which took place on November 6, 2008.
[17]
On
February 24, 2009, Mr. Randy Marchand, Band Land Supervisor, informed Mr.
Parker by letter directing him to proceed with a survey of the land, subject to
the 1984 Restrictions. Mr. Parker was instructed to have the survey completed
and approved by the Chief and Council within six months. The letter stipulated
that if he failed to meet the deadline of August 24, 2009, the Council would
deny his application and the property would remain Band land. The letter
offered the names of several potential surveyors, including Russell Shortt.
The letter also stated that the surveyor chosen would request a Band Council
Resolution allowing him to obtain survey instructions from Natural Resources
Canada in Edmonton.
[18]
On
April 2, 2009, Council elections took place and there was significant turnover
on the Council.
[19]
On
June 23, 2009, Mr. Parker, through counsel, requested a three-month extension
of the six month period he had been given to complete the survey. Counsel’s
letter to the Band Council explained that before proceeding with the survey,
Mr. Parker wanted some time to resolve the concerns he had with the Band
Council’s directions for the survey.
[20]
On
July 20, 2009, by letter to Mr. Parker, the Band Council refused to grant the
extension request and confirmed that the deadline for the survey remained
August 24, 2009. Mr. Parker was reminded that in order to have the Band land
surveyed, a Band Council Resolution was required for the surveyor to request
survey instructions from Natural Resources Canada.
[21]
On
August 20, 2009, the surveyor Mr. Shortt submitted an initial survey to Mr.
Randy Marchand, the Band Council Land Supervisor, via email and asked if Mr.
Marchand had any questions.
[22]
On
August 21, 2009, Mr. Parker, through counsel, sent a letter to the Band Council
in which he stated that he would proceed with the survey according to the Band
Council’s instructions. However, he also stated that his decision to do so was
not to be taken as an acceptance by him of the Band’s directions, with which he
disagreed.
[23]
On
August 24, 2009, the day of the deadline to have the survey completed, Mr.
Marchand responded to Mr. Shortt by email, indicating that amendments needed to
be made to the survey’s boundaries.
[24]
The
same day, Mr. Shortt responded, saying that he would submit the amended survey
“today or tomorrow” and also asked to speak to Mr. Marchand because he needed a
question answered regarding some abandoned ditches in order to complete the
survey.
[25]
From
August 24 to September 8, 2009, Chief and Council were out of the office for
the regular holiday period.
[26]
On
September 11, 2009, Mr. Shortt sent Mr. Marchand an email to two men named Mr.
Reynolds Bonneau and Mr. Jimmy Bonneau attaching two survey options, asking
them to advise Mr. Marchand as to which survey plan option they preferred so
Mr. Marchand could present this information to Council. Apparently the Messrs.
Bonneau did not provide this information.
[27]
On
September 15,
a Band
Council meeting was held during which Mr. Parker’s request for a survey of his
allotment was discussed; it was stated that no action was required.
[28]
On
October 6, 2009 Band Council held a meeting, at which it declined to pass a
resolution to grant survey instructions in relation to Mr. Parker’s
application. This is the impugned decision. They also passed a motion to
schedule a Special Lands Meeting regarding land allocation issues and to
prepare a map of those lands held by the Band.
[29]
On
October 26, 2009, the Council claims that it “strengthened its policies and
plans for land use issues” and prepared a map of lands held by the Band.
Council maintains that this meeting was part of their strategic long-term land
use planning policy which aims to ensure fairness, community input, and
strategic long-term planning. No minutes of this meeting appear to have been
submitted, but it appears that no further decisions have been made with respect
to Mr. Parker’s application.
II. The impugned decision
[30]
According
to the minutes of the Band Council meeting on October 6, 2009, the councillors
discussed the facts relating to Mr. Parker’s application. They stated that Mr.
Parker required a Band Council Resolution to complete the survey of the Band
land for allotment to him, and that at his request the surveyor Mr. Shortt had
requested a Band Council Resolution to obtain survey instructions for the
project. They stated that on February 19, 2009 the Applicant had been notified
that he had six months to complete the survey and have Council approve it.
They stated that before the surveyor could complete the project, a Band Council
Resolution requesting the survey would be required.
[31]
The
Councillors discussed the difficulties with being unaware of which areas
remained in the Band lands and the need for a fair system. They said that it
was a burden on the Council to make allotment decisions in a piecemeal fashion
one at a time. They spoke of the need to get directions from the membership on
how to resolve unperfected land allotments.
[32]
The
Council then voted on a motion to grant permission for a survey to be
undertaken for the purpose of identifying and legally describing Mr. Parker’s
allotted lands. The motion was defeated on a vote.
[33]
One
councillor advised that there is a backlog of unperfected land allotments and
that the numerous applications could take up the remaining band lands. He
spoke of the need for proper planning and mapping to better understand what
lands remain and the access available to homes and land. The Council carried a
motion to hold a Special Lands Meeting; it stated that a comprehensive policy
was to be developed instead of the current process of making individual
decisions by motions, which would better suit the interests of the whole Band.
III. Issues
[34]
This
application for judicial review raises the following six issues:
A. What is the applicable
standard of review?
B. Did the Band Council have the
discretion to deny Mr. Parker the lands allotted to him by failing to issue the
survey instructions required to perfect his interest?
C. If the Band Council had the
discretion, did it act properly?
D. Was there a breach of
procedural fairness, generally speaking or in regard to legitimate
expectations?
E. Is the Band Council estopped
from failing to issue survey instructions?
F. Are there alternative reasons
for denying the survey that should be considered by the Court?
IV. Analysis
A. The
Statutory Regime
[35]
Pursuant
to Section 20(1) of the Indian Act (R.S., 1985, c. I-5), lawful
possession of reserve land by an Indian requires both an allotment of land by a
valid resolution of the Band Council and the approval of the Minister of Indian
Affairs and Northern Development (the “Minister”). According to the Land
Allotment Policy of the Okanagan Band, the individual must first obtain a
survey defining the borders of the parcel of land that corresponds to the
allotment before the land can be allotted to him by the Council of the Band. It
is this survey, which must be approved by a Band Council Resolution, that the
Applicant is trying to obtain. He needs this survey so that he can continue
with the rest of the process to obtain lawful possession.
[36]
Under
s. 20(2) of the Indian Act, once the Band Council has allotted the land
and the Minister has given approval pursuant to s.20(1), the Minister may issue
a Certificate of Possession to the Indian, which will serve as evidence of his
right to possession of the land described therein. Under s. 21, the Certificate
of Possession is registered with the Department of Indian Affairs and Northern
Development. Such a certificate entitles the bearer to significant rights in
the land.
[37]
For ease
of reference, sections 20 and 21 of the Indian Act are reproduced in the
Annex to these reasons.
(1) What is the Applicable
Standard of Review?
[38]
Following
the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, deference
usually applies where the question is one of fact, discretion or policy. This
is precisely the case here. The decision about whether to grant an allotment
involves a considerable appreciation of the circumstances by the Band Council,
which must balance the interests of individuals against the interests of the
entire community. As the British Columbia Supreme Court said in Lower Nicola Band v. Trans-Canada Displays Ltd.,
2000 BCSC 1209, [2000] B.C.J. No. 1672 [Nicola Band], at para. 155:
…before making an allotment under s.
20(1), a council has a duty to consider the rights of other Band members. That
duty would require a balancing of individual’s request for the allotment,
including the purpose for which the allotment would be used, with the best use
the land could be put to for the Band community. In view of its fiduciary
obligation to all of its Band members, this Band Council would have to
carefully consider a request for an allotment of the 80 acres to an individual
if the use for which the land was being sought was other than for residential
or agricultural uses.
[39]
The
Okanagan Indian Band has developed its own land management regime for
developing reserve land, which serves as a basis for making decisions regarding
allotments of reserve lands to individual band members. Before a survey of the
allotment can be submitted to the Department of Indian and Northern Affairs for
the purpose of perfecting the allotment and obtaining a Certificate of
possession, a Band Council Resolution must be passed to approve the survey. In
deciding whether to approve the survey, the Okanagan Indian Band must consider
the application in light of the factors set out in its policy. The Band
Council clearly has a broad and specialized expertise in weighing these
factors, and is obviously in a better position than this Court in determining
whether to grant an allotment should be granted or not.
[40]
In light
of the above, I am of the view that reasonableness is the proper standard on
which to review the Band Council’s decision. Accordingly, the decision must be
upheld if it falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[41]
The fourth
issue, however, raises a question of procedural fairness. It is trite law that
such issues attract a standard of correctness, since they are always reviewed
as questions of law. As Justice Linden wrote in Sketchley v. Canada (Attorney General), 2005 FCA 404, at para. 53, “[t]he
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty”.
(2) Did the Band Council
have the Discretion to Deny Mr. Parker the Lands Allotted to him by Failing to
Issue the Survey Instructions Required to Perfect his Interest?
[42]
The Applicant argues that the Band Council,
while having discretion to allot land, had already exercised that discretion
prior to the decision of October 6th, 2009. He believes that the
Council had previously exercised its discretion in affirming the allotment in
1966 and in 1984; by directing Mr. Parker to proceed with the survey on
February 24, 2009; by setting out the parameters of the survey; and by using
their Land Supervisor to direct the survey. Afterwards, it no longer had
discretion to deny the allotment by failing to approve a survey. In the
Applicant’s view, the decision before the Council on October 6, 2009 was not
whether land should be allotted to Mr. Parker, but rather whether the land
surveyed accurately described the land that had been allotted.
[43]
I am unable to agree with this argument, as it
is not consistent with the legislative framework put in place by the Indian
Act. Section 20 of that Indian Act grants the Band Council
discretion to approve allotments. Nevertheless, it does not specify any
particular process for Band Councils to use in granting or denying allotments.
Rather, the legislation grants them discretion to do so as they see fit.
[44]
This is precisely what the Okanagan Band
Council has done in adopting its 1986 Land Allotment Policy. This Policy sets
out an elaborate process to be followed for all land applications. Upon
receiving a letter of application with a rough description of the parcel of
land applied for and a description of proposed land use, the band manager
prepares a brief report to assist the Council to decide whether or not to
proceed further with the application. If the Council considers the application
worthy of consideration, it is then referred to the Surveys Committee. The
applicant will then be instructed by the band manager to mark the parcel of
land on a preliminary basis, following which the surveys committee will make a
field trip to view it. After the field trip, the Surveys Committee may either
make a recommendation to reject the application or, if the land applied for is
suitable for its intended use, or negotiate an agreement with the applicant on
the size of the parcel and any conditions of the allotment. Once an agreement
has been reached, the applicant will then make a formal application to Council
accompanied with the recommendation from the surveys committee. A field trip
will then be made by the whole Council; the Policy states clearly that “no
commitment to the applicant would be made at that stage”. Once a field trip
has been made by Council, the formal application and the committee’s
recommendation will be considered by the Council and a decision will be made.
If the Council decides to allot the parcel of land on a conditional basis,
notice of the Council’s intent to make the allotment will be posted for a
period of 30 days and distributed to each band member household. If no protest
is made or if the Council decides that a protest made is not legitimate and
dismisses that protest, the Council will authorize the preparation of a legal
survey of the land at the Band’s expense. Once the legal survey plan has been
completed, accepted, and registered, then conditional allotment of the land
will be made by Council and the issuing of a certificate of occupation pursuant
to s. 20 of the Indian Act will be requested. It is only if the
conditions of the allotment have been met, after a period of two years from the
date of the conditional allotment, that the Council will request that a
certificate of possession be issued pursuant to section 20 of the Indian Act
and that the application process will have been completed.
[45]
I cannot agree with the Applicant that the
approval of a survey mandated by Band Council should have been perfunctory. At
all times during the process of issuing the allotment and approving the survey,
the Band Council has complete discretion. The request that the band member
have a survey conducted, and the cooperation by the Lands Supervisory in
completing the survey does not mean that the Band Council has waived its right
to refuse to issue survey instructions, or to refuse to approve the survey.
This is still part of the application process, and the Band discretion must
extend to every step of that process.
[46]
Indeed, for the grant of power presented by the
Indian Act to be meaningful, the Band Council must retain discretion
over the whole approval process, including survey authorization. This is
especially true given that the pre-survey stage of the approval process can
apparently take decades. In light of the sensitive issues surrounding
aboriginal land use today, it is only logical that the Indian Act’s
grant of discretion extends to allowing Band Councils to make final
determinations on whether land will be granted today. This is especially true
in situations, such as the case at bar, where there may be gaps of 40 years
between the original allotment and the survey approval.
[47]
Furthermore, finding in favour of the Applicant
on this point could set a dangerous precedent, because it would leave us
without a clear benchmark of Band approval of allotment. Section 20 of the Indian
Act requires that an applicant seek Ministerial approval if “possession of
the land has been allotted to him by the council of the band”. Although the
Applicant claims that the land was already allotted to him, he does appear to
recognize and accept that he cannot proceed to the stage of ministerial
approval until a survey is authorized. If Courts were to find that the
requirement of s. 20 is met at some point in the process before the survey is
authorized, what point would that be? In the example of Mr. Parker, would we
consider the land allotted in 1966? In 1984? On February 24, 2009? What would
be the final criterion for Band approval if not a survey authorization by the
Council? The Okanagan Indian Band has a number of other outstanding allotment
applications that have presumably also received non-final versions of approval
in the past from formal Band Councils. Without the survey authorization as a
benchmark of Band approval, how would these claims be determined? Furthermore,
the reason for requiring a survey authorization is to make sure that the land
allotted is specified and agreed upon by the Council and the applicant; without
an approved survey, there can be no assurance that such agreement has been
reached.
[48]
I am therefore of the view that the Band Council
had the discretion to decline to issue survey instructions.
(3) If the Band Council had the
Discretion, did it Act Properly?
[49]
The Applicant submits that even if the Band
Council did have discretion to reverse its decision to allot him the lands, it
did not engage in a bona fide consideration of public policy issues and
therefore could not validly reverse its prior exercise of discretion. He bases
this position on the decision of the Supreme Court of Canada in Mount Sinai
Hospital Center v. Québec (Minister of Health and Social Services),
2001 SCC 41 [Mount Sinai], where the majority found that the Minister
was required to act in accordance with his prior exercise of discretion and
could not reverse his decision but that if, in the alternative, he did have a
general discretionary power to reverse himself, he could only do so where the
public policy concerns were legitimate and corresponded to the reality of the
situation. In the eyes of the Applicant, neither of the two reasons given by
the Respondent for declining to grant the survey instructions was legitimate or
corresponded to the reality of the situation.
[50]
I believe the Applicant’s case is
distinguishable from Mount Sinai. For the reasons already stated in the previous section,
I do not think it can be said the Band Council has engaged in a reversal of its
discretionary decision. The process for issuing the allotment of land must be
considered as a whole, and the authorization to conduct the survey is only one
step in that process. While it is true that Mr. Parker had been granted a
conditional allocation of land in the past and had been directed to proceed
with a survey on February 24, 2009, it cannot be said that the Band Council had
previously authorized the survey. Therefore, there has been no reversal of a
prior exercise of a discretionary power.
[51]
I also note that Mr. Parker was given a six
month deadline to complete the survey of the land in question and to have this
survey approved by Council. If this deadline was not met, it was made clear
that Council would deny and revoke his application and that the property would
remain Band land. He was reminded of that time limit when his request for an
extension was denied. Yet, it was only three days before the six month
deadline that his counsel announced that he would complete the survey in
accordance with the directions set out in the February 24, 2009 letter
directing him to proceed to a survey. Moreover, it was on the final day of the
six month deadline that the surveyor retained by Mr. Parker requested a Band
Council Resolution to obtain survey instructions. The least that can be said
is that Mr. Parker was not diligent in complying with the request to perfect
his application. This delay, in and of itself, would have been sufficient for the
Band Council to reject his application.
[52]
Furthermore, even if the Council’s behaviour
was to be considered as a reversal of the previous exercise of its discretion,
I believe that it did so in accordance with the conditions set out by the
Supreme Court in Mount Sinai because legitimate public policy goals
appear to be the motivating factor behind the Council’s denial of his
application. The allotment of lands is an important public policy issue for
any Band, and it is not sound to argue that any single allotment will have no
public policy ramifications. It is clear that the individual allotment
decisions, taken together, have significant public policy consequences. At some
point, if the Band is truly going to reform its allotment policy, it must start
doing so at the level of the individual decisions. It is legitimate of the
Band to want to carefully consider the policy ramifications before proceeding
with a land allotment process that was begun 40 years ago when the
geo-political situation of reserve lands was dramatically different.
[53]
As already mentioned, the Band Council
developed a framework plan to resolve land issues on the Reserve in 2007. The
purpose of developing and implementing such a plan, with the input of Band
membership, was to serve the interests of all Band members by ensuring that
Council’s decisions regarding Band Reserve lands are fair, consistent,
carefully balance competing interests and reflect the full spectrum of
community concerns. Council’s action was also consistent with the land use
planning priorities that Council had apparently recognized in the preceding
months. There is no evidence before the Court to suggest that Council’s
October 2009 decision to coordinate the Special Lands Meeting and to prepare a map
did not reflect a desire by Council to ensure fairness, community input, and
systemic long-term planning in all decisions related to Band lands.
[54]
Counsel for the Applicant relied on the fact
that the Band Council recently granted legal survey request and approvals (once
in late 2008 and once in early 2009) for similar or larger allotments, as proof
that it did not engage in a bona fide consideration of public policy
issues in the case of Mr. Parker. But there is nothing in the record to
support the argument that these allotments were as complex as that of Mr.
Parker. I also note that these surveys were executed within or
very close to the six-month timeline set out by the Band Council. As for the
three applications that were rejected at the June 9, 2008 Band Council meeting,
there is no explanation in the minutes of the meeting why they were not
granted. However, even if they were rejected because they were made on behalf
of deceased band members, as contended by Mr. Parker, it would still be
consistent with the view that the Band Council retains discretion to further
its policy objectives up to the last step of the allotment process.
[55]
Accordingly, I come to the conclusion that the
Band Council exercised its discretion properly when it failed to issue survey
instructions to perfect Mr. Parker’s allotment, pursuant to its revised land
management system. Mr. Parker’s allotment was not “reversed”; instead, the
Band Council refused his survey request. A high level of deference must be
given to Band Council’s decision, given its overall objective to balance public
policy issues. There is not a shred of evidence that the Band Council acted
with malice or bad faith in denying Mr. Parker’s request for a survey.
(4) Was there a Breach of
Procedural Fairness, Generally Speaking or in Regard to Legitimate Expectations?
[56]
The
Applicant relies on the doctrine of legitimate expectations to argue that the
Band Council led him to legitimately expect that the regular process for
perfecting allotments would be continued to completion such that his interest
would be perfected. He felt that the letter instructing him to do the survey
implied that the survey would automatically be approved if it accurately
reflected the land allotted. In addition, the fact that the other two
applicants in his position received survey authorization led him to
legitimately expect that his application would also be approved.
[57]
It is not
entirely clear yet whether the doctrine of legitimate expectations can give
rise to substantive rights in Canada. In Reference Re Canada
Assistance Plan (B.C.), [1991] 2 S.C.R. 525, Sopinka J. regarded the
doctrine of legitimate expectations as “an extension of the rules of natural
justice and procedural fairness” which may afford “a party affected by the
decision of a public official an opportunity to make representations in
circumstances in which there otherwise would be no such opportunity” (p. 557).
The Court went on to say that purely ministerial decisions based on broad
grounds of public policy do not typically afford procedural protection to the
individuals affected: see also Mount Sinai,
above, at paras. 22-38.
[58]
Be that as
it may, I agree with the Respondent that Mr. Parker should not have expected
that his survey would be authorized simply because the allotment approval process
had begun. The February 24, 2009 letter made it clear that “…in order for you
to be allotted the property a survey of the land is required to be completed
and the plan approved by Council”. Moreover, as already indicated, the letter
also stated that “[t]his survey must be completed and approved by Chief and
Council within six (6) months or the Council will deny and revoke your
application and the property will remain Band land”. I fail to see how this
can be interpreted as an undertaking that the survey would necessarily be
approved if it was executed and reflected the land allotted. The Band Council
has a continuing discretion to perfect or to not perfect an allotment up until
the moment it adopts a final resolution granting possession of that land, which
is then forwarded to the Minister, who issues a Certificate of Possession under
s. 20(1) of the Indian Act.
[59]
In any
event, Mr. Parker did not even fulfill the requirements set out in the February
24, 2009 letter. It was only three days before the six month deadline to have
the survey completed and approved that counsel for Mr. Parker announced that
Mr. Parker would complete the survey in accordance with the directions set out
in that letter. Moreover, it was only on the final day of the six month deadline
that the surveyor hired by Mr. Parker requested the Band Council Resolution to
obtain survey instructions. The boundaries identified by the surveyor in his
preliminary survey did not conform to the area for allotment specified in the
February 24, 2009 letter. As a result, the survey was evidently not completed
within the timeline stipulated in that same letter. In those circumstances, it
is hard to understand how Mr. Parker can now complain that his legitimate
expectations have not been met, considering that he has not complied with the
requirements giving rise to his expectations.
[60]
The
Applicant also argued that his rights to procedural fairness were breached
because he was given no notice that the Band Council was about to reverse its
decision, no reasons for that reversal, and no opportunity to make
representations protesting the reversal. This argument, of course, is premised
on the notion that the Band Council did reverse its decision. I have already
dealt with this argument: the Band Council did not reverse its decision, as no
decision is made until the survey is approved and the allotment is perfected by
a Certificate of Possession.
[61]
I would
also add that the concept of procedural fairness is variable in its content and
that its requirements will vary according to the specific context of each
case. In the present case, a number of factors militate in favour of a relatively
low level of procedural fairness. First of all, the nature of decision made by
the Band Council has nothing to do with the judicial process and is more akin
to a policy decision. Second, the Indian Act does not prescribe any
particular procedure and leaves it to the Band Council to decide how the
decision to allot a piece of land will be made. Third, there is no evidence
that a particular procedure has been followed in the past beyond what is
prescribed in the Land Allotment Policy, and in particular that applicants are
generally invited to make representations to the Band Council.
[62]
It is true
that the decision is important to Mr. Parker. But as mentioned in Baker
v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817, at para. 33) an oral hearing is not always necessary to
ensure a fair hearing and consideration of the issues involved. Mr. Parker had
numerous occasions to inform the Band Council about his version of the facts
over the years. The minutes of the November 5, 2008 special Band Council
meeting record that a memo examining Mr. Wallace’s application was prepared and
examined by Council; while Mr. Parker was not in attendance since the meeting
was closed to prevent undue influence from Band members, it is clear that his
views were well-known and considered. I am therefore of the view that there
has been no breach of procedural fairness.
(5) Is the Band Council
Estopped from Failing to Issue Survey Instructions?
[63]
Counsel for the
Applicant relies on the doctrine of public law promissory estoppel to attempt
to prevent the Respondent from denying his application. Relying on the
concurrent opinion of Justice Binnie in Mount Sinai, above, he contends
that he meets all the requirements of that doctrine, that is 1) words or
conduct making a promise or assurance, 2) which is intended to be acted on, 3)
followed by reliance or a representation, and 4) resulting in a change in
position to the party seeking to rely on estoppel.
[64]
There are several
problems with this argument, which is in many respects the same claim as the
legitimate expectations claim in another disguise. First of all, the evidence
does not support a finding that the Band Council ever promised to Mr. Parker
that his survey would be approved and that he would be granted the land he
applied for. Indeed, the facts of this case are quite different than those at
the basis of the Mount Sinai decision, where the Minister had clearly promised
on a number of occasions that he would issue the modified permit sought by the Mount Sinai Hospital Center,
as a result of which the Hospital had agreed to move to Montréal. As already
mentioned, the statute itself is inimical to the notion that the Band Council
could tie its hands by making such a promise until the Certificate of
Possession is actually delivered; the Land Allotment Policy adopted by the Band
is further evidence that the allotment of Band land is a long process which
culminates with the approval of a survey that is consistent with the survey
instructions given by the Band Council.
[65]
Secondly, the
Applicant himself admits that in public law estoppel, special consideration has
to be given to public policy goals. In Mount Sinai, Mr. Justice Binnie
wrote (at para. 47):
Public
law estoppel clearly requires an appreciation of the legislative intent
embodied in the power whose exercise is sought to be estopped. The legislation
is paramount. Circumstances that might otherwise create an estoppel may have
to yield to an overriding public interest expressed in the legislative text.
[66]
Contrary to the
Applicant’s view, the allotment of a land does have considerable public policy
ramifications. The Band Council is entrusted with the systemic long term
responsibility of ensuring that the collective ownership of Band lands is not
jeopardized by the allocation of pieces of land to individual members: see
paragraph 155 of Nicola Band, already cited in these reasons.
[67]
In the end, I believe
the Band Council was properly fulfilling its public law duty in developing a
fair lands management policy for the Band and assessing allotment applications,
including request to issue survey instructions, in accordance with that
policy. There is no evidence of bad faith or bias in the decision of the Band
to decline to pass a resolution granting survey instructions in relation to Mr.
Parker’s land application. Instead, Council passed a motion to coordinate a
Special Lands Meeting regarding land allocation issues and to develop a map of
those lands that continue to be held by the Okanagan Indian Band. The minutes
of the Council meeting reflect a collective desire by Council to ensure
fairness, community input, and the collective long term interests of the Band.
[68]
For all of the
foregoing reasons, this application for judicial review is dismissed, with
costs to the Respondent.
JUDGMENT
THIS COURT’S JUDGMENT IS that this application for
judicial review is dismissed, with costs to the Respondent.
"Yves
de Montigny"
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