Date:
20121212
Docket:
T-654-12
Citation: 2012
FC 1469
Ottawa, Ontario,
December 12, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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BIBIANA NORRIS AND CLINTON NORRIS
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Applicants
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and
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MATSQUI FIRST NATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicants were members of the Matsqui First Nation [Band]. They seek judicial
review of a decision by the Band Membership Committee [Committee] to revoke
their membership as their names had been entered on the Band list [List] in
error. Specifically, the Committee found that the Applicants had reached the
age of 18 when their names were entered on the List under a provision of the Matsqui
Band Membership Code [Code] that applied only to applicants under
the age of 18.
II. Judicial Procedure
[2]
This
is an application under section 18.1 of the Federal Courts Act, RSC
1985, c F-7 for judicial review of the decision of the Band, dated February 28,
2012.
III. Background
[3]
The
Band assumed control of its membership by establishing membership rules under
section 10 of the Indian Act, RSC, 1985, c I-5 [IA].
[4]
The
Affidavit of Cynthia Collins [Collins Affidavit] states that section 10 of the Code
was drafted to ensure that membership transfers from other bands to the Band
[inter-tribal transfers] were not automatic due to the Band’s limited
resources. Section 10, according to the Collins Affidavit, was drafted to
establish procedures requiring individuals seeking inter-tribal transfers to
demonstrate true interest in the Band.
[5]
The
Applicants, Ms. Bibiana Norris and Mr. Clinton Norris, are siblings who were
born in 1957 and 1963, respectively. They were initially members of the Halalt
First Nation [HFN] and grew up on its reserve.
[6]
The
Applicants state that they always felt strongly affiliated with the Band as
their mother, Mrs. Julian, and maternal grandparents were members of the Band.
Under section 14 of the former Indian Act, RSC 1970, c I-6 [former IA],
Mrs. Julian ceased to be a member of the Band and became a member of the HFN since
she married a member of the HFN. Mrs. Julian later rejoined the Band.
[7]
In
October 1994, Ms. Norris applied for membership in the Band and was entered on
the List under section 7 of the Code on October 31, 1994. Mr. Norris applied for membership under section 7 on October 16, 1998 and was entered on the
List shortly after. Both Applicants were over the age of 18 when they were
entered on the List.
[8]
The
Band claims that the Applicants were admitted by an enrolment officer who took
a controversial view of section 7 of the Code. Concerned with the
enrolment officer’s approach, the Committee met on January 24, 1995 to discuss
the application of the inter-tribal transfer rules to direct descendents of
Band members. It concluded that direct descendents residing on other reserves
should not be entitled to membership unless they could demonstrate an intention
to fully participate in the Band.
[9]
As
members of the Band, the Applicants could vote in elections, live on its
reserve, participate in community events and programs, and receive benefits in
the form of distribution royalties from the Department of Aboriginal Affairs
and Northern Development Canada [DAAND] in the amount of $1500 per year. The
Band claims that these distribution royalties came from its own source revenues
and not DAAND.
[10]
Ms. Norris
claims that she was active in the Band, working as a language teacher and
joining its Governing Body. Mr. Norris claims that he was a receptionist,
janitor, and youth outreach worker for the Band, that he was on its Governing
Body, and that he attended its meetings, as well as general and policy
meetings. The Collins Affidavit challenges his claim that he was a receptionist
and youth outreach worker and states that he was an alternate family representative
to the Governing Body and rarely attended meetings.
[11]
Ms. Norris lived on the Band reserve from 1997 to 2008; Mr Norris, from 1994 to 2008. The
Collins Affidavit alleges that Ms. Norris abandoned her rental house on the
Band reserve in 2005, allowing an individual who was not a member of the Band
to live in it. The Collins Affidavit states that this contravened Band policy.
[12]
According
to the Affidavit of Alice McKay [McKay Affidavit], the Committee met in early
2009 to consider the application of the definition of “child” in section 2 to
section 7 of the Code. The Governing Body, at the Committee’s
recommendation, decided to remove from the List individuals who were not
children under section 2 when their names were entered onto the List under section
7.
[13]
On
April 27, 2009, the Committee advised the Applicants that their membership was
revoked as they were not children under the age of 18 at the time they
registered as members of the Band. The Applicants state that they had no prior
notice of any intent to revoke their membership and had no opportunity to
respond.
[14]
The
Applicants sent letters appealing the decision under subsection 15(4) of the Code
to the Membership Clerk on August 21, 2009 and the Governing Body on October
23, 2009 and December 2009. Neither responded.
[15]
Since
the revocation, the Applicants have not been able to live on the Band reserve
and receive royalties from DAAND. The amount of time that the Applicants can
spend with their relatives (and that Ms. Norris can spend with her grandchildren)
has also diminished because the Applicants feel that they are being watched on
the Band reserve. Ms. Norris states that membership in the Band is important to
her because it ties her to her family. Mr. Norris feels similarly and states
that he has also lost his right to live in Mrs. Julian’s house on the reserve,
which became his after she passed away.
[16]
According
to the Collins Affidavit and the McKay Affidavit, however, the Applicants are
eligible to rent homes on the Band reserve, even though they are no longer
members. The McKay Affidavit also states that Mr. Norris was evicted from his
rental home on the Band reserve on January 7, 2009 for failure to pay rent.
[17]
Ms. Norris
has reactivated her HFN membership, a step she considers temporary, to maintain
eligibility for health benefits from DAAND.
[18]
On
December 20, 2011, counsel for the Applicants wrote to the Band demanding an
appeal under the Code. Counsel for the Band responded on January 12,
2012, requesting submissions on the grounds on which the Applicants wished to
appeal the decision. Counsel to the Applicant made submissions on January 20,
2012.
[19]
On
February 28, 2012, counsel to the Committee responded that its interpretation
of the Code was correct and that the appeal provisions in the Code
did not apply.
IV. Decision under Review
[20]
The
Committee found that the Applicants were erroneously accepted as Band members
under section 7 of the Code. Pursuant to subsection 12(2) of the Code,
it directed that their names be removed from the List and that they be
considered never to have been Band members. Since the Applicants’ memberships
were never valid, they could not avail themselves of the Appeal Process.
[21]
The
Committee found that the Applicants were accepted as Band members due to a
misinterpretation of section 7 the Code, which entitles children of at
least one natural parent who was or was entitled to be a Band member to become
members. Under section 2 of the Code, “child” means an individual who
has not reached the age of 18.
[22]
According
to the Committee, the corollary of the definition of child in section 2 is that
applicants must show the following to qualify under section 7: (i) that they
were children at the time they were seeking membership, and (ii) that they have
at least one natural parent that had or was entitled to membership [two-part
test]. Neither of the Applicants qualified since both had already reached the
age of 18 at registration.
[23]
The
Committee justified the two-part test on two grounds. First, the Code
avoids the term “person” in section 7, while similar membership sections of the
IA use the term. Second, section 7 limits membership to children since the
Band is responsible for providing adequate housing to new members with limited
land resources; adult applicants, the Committee reasoned, impact these
resources differently than children.
[24]
The
Committee found that subsection 13(2) of the Code did not assist the
Applicants. Subsection 13(2) makes children, whose parents or guardians have
renounced Band membership, eligible for reinstatement upon reaching the age of
majority. The Committee reasoned that only those who had already been Band
members and were known to the Band at the time they registered fell within
subsection 13(2).
[25]
According
to the Committee, the Applicants were previously members of the HFN and their
applications should have proceeded as inter-tribal transfers under section 10
of the Code, which required them to: (i) renounce membership in the HFN;
(ii) agree to a two-year probationary period during which they must attend Band
meetings, social and cultural events to better learn and understand its way of
life; and, (iii) receive consent of 75% of the eligible electors of the Band at
a referendum.
[26]
The
Committee determined that the fairest remedy would be to re-process the
application as inter-tribal transfers. First, it reasoned that appealing the
decision would be “futile” since section 7 did not apply to the applications
and should not have been considered in processing them. Second, it found that
the section 15 Appeal Process did not apply as the Applicants never held valid
Band memberships. Third, the Committee found that section 7 was intentionally
drafted to exclude adult applicants and that the conditions imposed on them in
inter-tribal transfers addressed the problems that they pose. Fourth, to allow
eligible electors to exercise their jurisdiction under the Code, the
referendum required under section 10 should have taken place. Finally, the
Applicants could restore their HFN membership under section 11 of the IA.
[27]
The
Committee stated that Ms. Norris completed her subsection 10(b) requirements
and that a referendum could be held as soon as possible for her. Mr. Norris, however, still needed to meet subsection 10(b) before a referendum could be
held for him.
V. Issues
[28]
(1)
Was the Committee’s decision unreasonable because it did not comply with
section 10 of the IA?
(2)
Was the Committee’s decision unreasonable because a contextual analysis does
not support the two-part test?
(3)
Was the Committee’s decision unreasonable because the two-part test cannot be
read harmoniously with the scheme of the Code?
(4)
Is the Committee’s decision unreasonable because the two-part test gives rise
to “internal absurdities” in the Code?
VI. Relevant Legislative
Provisions
[29]
The
relevant legislative provisions of the IA are available in Annex “A”.
[30]
The
relevant legislative provisions of the Code are available in Annex “B”.
VII. Position of the Parties
[31]
The
Applicants, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, argue that the standard of reasonableness applies because a constitutional
question, a determination of a true jurisdiction or vires, or a question
of general law that is of central importance to the legal system as a whole and
outside the adjudicator’s specialized area of expertise is not at issue (at
para 58-60).
[32]
According
to the Applicants, the two-part test proposed by the Band is unreasonable as:
(i) it does not comply with section 10 of the IA; (ii) it is
inconsistent with a contextual analysis of the Code; and, (iii) it
creates absurdity.
[33]
First,
the Applicants argue that the two-part test does not comply with subsections
10(4) and (5) of the IA. The effect of subsections 10(4) and (5) is that
the Code must ensure that those who were entitled to have their names
entered on the List before the Code was established remain entitled to
Band membership.
[34]
The
Applicants claim that Bill C-31, An Act to Amend the Indian Act [Bill
C-31] entitled them to have their name entered on the List immediately prior to
the establishment of the Code and that the two-part test deprives them
of that right. The Applicants state that Bill C-31 restored Mrs. Julian’s right to membership in the Band and, by consequence, their own right to
membership. The Applicants cite Scrimbitt v Sakimay Indian Band Council,
[2000] 1 FC 513 (TD), for the proposition that subsection 10(4) protects the
rights of individuals entitled to band membership under Bill C-31.
[35]
The
Applicants contend that the two-part test is inconsistent with the IA’s
prohibition on depriving them of their right to have their names on the List
immediately prior to the establishment of the Code. They observe that
the Code was established on June 25, 1987, when Ms. Norris and Mr. Norris were 30 and 24 years old. The two-part test would deprive them of their right to be
members on the very day the Code was established.
[36]
Second,
the Applicants argue that a contextual analysis of the Code does not
support the two-part test. Structurally, the Code distinguishes
individuals who have a right to Band membership from individuals who are
permitted to apply for membership. The former is governed by the first
section of the Code (“Membership Criteria”, subsections 3 to 7 of the Code);
the latter, by the second section (“Application for Membership”, subsections 8
to 10 of the Code). The Applicants argue that they belong in the former
group due to Mrs. Julian’s membership in the Band.
[37]
The
Applicants assert that individuals governed by the first section are not
required to apply for membership since (i) the first section does not entail a
requirement to apply, and (ii) such individuals have an inherent right to
membership due to their lineage. Since the first section does not require
application, section 7 could not have required them to apply for membership
before they reached the age of 18.
[38]
According
to the Applicants, the two-part test cannot be read harmoniously with the
scheme of the Code. They observe that the preamble lists the protection
of cultural integrity and social harmony as one of the Code’s
objectives. This objective is not furthered by depriving membership to
individuals who have an ancestral and cultural connection to the Band simply
because they did not apply for membership before they reached the age of 18.
The age-based two-part test, the Applicants argue, serves to “divide and
fracture cultural integrity” and makes an arbitrary distinction between
individuals under the age of 18 and those over that age who, nonetheless, have
the same ancestral and cultural connection to the Band (Application Record [AR]
at p 86).
[39]
Finally,
the Applicants argue that the two-part test, if applied, would give rise to
“internal absurdities” in the Code (AR at p 86). In particular, the
age-based two-part test assumes that an individual who has not yet reached the
age of 18 is sufficiently mature to understand the significance of their right
to be a member of the Band and to decide whether or not to apply to become a
member.
[40]
In
support, the Applicants argue that subsections 12(5) and 13(1) and (2) of the Code
lead to the inference that decisions about Band membership can only be made by
individuals who have reached the age of majority. Subsection 12(5) provides
that children adopted by non-members shall be removed from the List but are
eligible for reinstatement on reaching the age of majority. Subsection 13(1)
provides that members may renounce membership upon reaching the age of majority
while subsection 13(2) provides that only parents or guardians may renounce a
minor’s membership who remains eligible for reinstatement on reaching the age
of majority.
[41]
The
Applicants argue the two-part test frustrates subsection 13(2). This is because,
while subsection 13(2) makes individuals eligible for reinstatement on reaching
the age of majority, section 7 simultaneously makes them ineligible for
membership as they are no longer children under section 2 of the Code.
[42]
The
Band agrees with the Applicants that the appropriate standard of review is that
of reasonableness.
[43]
The
Band submits that Bill C-31 did not restore Mrs. Julian’s membership in the
Band. Bill C-31 repealed section 14 of the former IA, which provided
that women of one band who married members of another band would cease to be a
member of the former band and become a member of the latter band. When Mrs. Julian married the Applicants’ father, she ceased to be a Band member and became a member
of HFN.
[44]
The
Band submits that Bill C-31 did not automatically restore membership in one
band to women who became members of another band under section 14 of the former
IA for two reasons: (i) the current IA does not entitle
individuals to have their names entered at the same time on more than one band
list; and, (ii) a band would still have to consent to restoring membership. The
Band submits that repealing section 14 does not lead to the inference that Mrs. Julian’s membership was restored. It adds that Bill C-31 introduced section 13 of the
current IA, which states that no person is entitled to have his name entered at
the same time on more than one band list.
[45]
The
Band argues that subsections 10(4) and (5) of the IA do not apply to the
Applicants because Mrs. Julian was not entitled to be registered under
paragraph 6(1)(c) of the IA. Under subsection 10(5), subsection
10(4) applies to a person who was entitled to have his name entered on the List
under paragraph 11(1)(c) of the IA immediately before the Band
assumed control of the List. Paragraph 11(1)(c) refers to persons
entitled to be registered under paragraph 6(1)(c) but who ceased to be
members of a band by reason of the circumstances set out in the latter
provision. These circumstances refer to persons deleted from the Indian
Register, or a band list prior to September 24, 1951, under the former IA
who:
a. lost
their status due to the “double mother rule”, which provided that the sons of
women who obtained Indian status by marriage could not pass their status to
their children if they married a non-Indian;
b. were
women who married non-Indians;
c. were
illegitimate children who lost their status due to a protest regarding their
paternity;
d. were
children of women who married non-Indians;
e. applied
to be enfranchised;
f. were
families of Indian men who were enfranchised;
g. lost
their status because of the foreign residence clause; and,
h. were
enfranchised as a result of practicing certain professions or obtaining
university degrees.
[46]
According
to the Band, the two-part test could not have deprived the Applicants of a
subsection 10(4) right because the Applicants had no such right immediately
prior to the establishment of the Code. Bill C-31 did not give Mrs.
Julian a right to have her name entered on the List immediately before the Code
was established because she did not fall within the circumstances described in
paragraph 6(1)(c).
[47]
The
Band also submits that the Applicants’ argument that there is no obligation to
apply for membership under section 7 is immaterial since section 7 did not
apply to the Applicants. The two-part test excluded the Applicants from the
ambit of section 7 as they had reached the age of 18 when they sought Band
membership. The Band submits that the Committee intentionally drafted section 7
to include the word “child” due to the limited land resources available to the
Band and that adults impact this resource differently than children.
[48]
The
Band disputes the Applicants’ argument that the two-part test lacks harmony
with the overall objectives of the Code. The Band notes that the
preamble also lists “maintaining and enhancing economic stability” and
“ensur[ing] continued peace and good order among the membership of the first
nation” as objectives. The Band submits that it would not be in the best
interests of its members to allow members of other bands to become members of
the Band, especially in light of its limited land resources. The conditions on
inter-tribal transfers also promote the objectives of the Code by
requiring a probationary period in which an applicant integrates himself or
herself into the Band and the consent of eligible electors.
[49]
The
Band submits that the two-part test does not create any absurdity since the
Band must protect existing members and need not give a remedy to an individual
whose parent or guardian did not provide him or her with Band membership. The
Band distinguishes the circumstances of persons falling under subsections 12(5)
and 13(2) of the Code from those of the Applicants, who were members of
HFN until they were 37 and 35. Individuals under subsections 12(5) and 13(2)
are a population known to the Band, which it factors into its decision-making
on maintaining and enhancing economic stability. These individuals, moreover,
have had direct exposure to the Band’s culture and have been part of it during
some portion of their lives.
VIII. Analysis
Standard of
Review
[50]
The
Applicants and the Band agree that the appropriate standard of review is that
of reasonableness. Under this standard, courts may only intervene if a decision
is not justified, transparent or intelligible. To be reasonable, a decision
must also be in the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at
para 47).
(1) Was the
Committee’s decision unreasonable because it did not comply with section 10 of
the IA?
[51]
The
Committee’s decision was not unreasonable for failing to comply with section 10
of the IA. The application of the two-part test to the Applicants; that
is, to persons who did not have a pre-existing, automatic entitlement to Band
membership under Bill C-31, falls within the range of possible, acceptable
outcomes.
[52]
The
success of the Applicants' argument that the two-part test is inconsistent with
subsections 10(4) and (5) of the IA depends upon whether they can
establish that they had a pre-existing, automatic entitlement to membership in
the Band before the Code was established. To have such an entitlement,
the Applicants must fall within the class of persons entitled to Band
membership under section 11 of the IA, in particular, paragraph 11(1)(c).
In short, they must demonstrate that Bill C-31 automatically entitled Mrs. Julian, and consequently themselves, to membership in the Band.
[53]
Assessing
this argument is a problem of statutory interpretation. In interpreting the
relevant sections of the IA, this Court follows Rizzo & Rizzo
Shoes Ltd. (Re), [1998] 1 S.C.R. 27. Accordingly, the words of the IA
must be read in their “‘entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament’” (at para 21, citing Elmer Driedger, Construction of
Statutes, 2d ed (Toronto: Butterworths, 1983) at 87).
[54]
Subsection
10(4) of the IA prohibits the membership rules of a band from depriving
a person of the right to have his or her name entered on its band list by
reason only of a situation that existed or an action that was taken before the
rules came into force if that person had the right to have his or her name
entered in the band’s list, immediately before the rules were established.
Subsection 10(5) of the IA states that, for greater certainty, this
prohibition applies in respect of a person who was entitled to have his or her
name entered on the band's list under paragraph 11(1)(c) of the IA
immediately before the band assumed control of the list if that person does not
subsequently cease to be entitled to have his or her name entered on the list.
[55]
Section
11 of the IA identifies who, commencing April 17, 1985, is entitled to
have their name entered on a band’s list. The sub-provision that is relevant to
the Applicants is paragraph 11(1)(c) of the IA, which entitles a
person to have their name entered on the List if they are entitled to be
registered under paragraph 6(1)(c) and ceased to be a member of the Band
by reason of the circumstances set out in paragraph 6(1)(c).
[56]
In
Sawbridge Band v Canada, 2004 FCA 16, [2004] 3 FCR 274, Justice Marshall Rothstein described the interaction of subsections 10(4) and (5) and
paragraph 11(1)(c) of the IA. He held that paragraph 11(1)(c)
provides for an “automatic entitlement” to membership in a band as of the date
that Bill C-31 came into force. This is an entitlement that, under subsections
10(4) and (5), a band's membership rules “cannot operate to deny” (at para 26
and 29).
[57]
To
establish that paragraph 11(1)(c) of the IA automatically
entitles them to membership, the Applicants must belong to one of the
categories of persons enumerated in paragraph 6(1)(c) of the IA.
Paragraph 6(1)(c) has two functions. Its primary function is to
enumerate the categories of persons entitled to be registered under the IA
whose name were omitted or deleted from the Indian Register (or from a band
list prior to September 4, 1951) under the former IA. Its secondary
function is, by the operation of paragraph 11(1)(c), to automatically
entitle these persons to membership in a band.
[58]
The
categories of person outlined in paragraph 6(1)(c) are persons who were
not entitled to be registered under the former IA because:
a. they
were subject to the double mother rule;
b. they
were women who married a person who is not an Indian;
c. they
were illegitimate children of Indian women and there was a protest respecting
their paternity; and,
d. they
became enfranchised.
[59]
By
operation of subsection 11(3.1) and paragraph 6(1)(c.1) of the IA,
the children of women who were not entitled to be registered under the former IA,
because they married a person who is not an Indian or became enfranchised, are
also automatically entitled to band membership.
[60]
For
the purposes of automatic entitlement to membership in a band, the IA
distinguishes between (i) women who (pursuant to section 14 of the former IA)
became members of another band because they married an Indian from that band,
and (ii) those whose registration itself was (pursuant to paragraph
12(1)(b)) of the former IA) cancelled because they married a
person who was not an Indian and whose membership in their band was (also
pursuant to section 14) consequently cancelled. A member of the latter group is
automatically entitled to membership in a band but a member of the former is
not. Although the IA repealed section 14, it did not automatically
entitle all women who previously lost their band membership due to that
provision; only those whose registration itself was also cancelled are so
entitled.
[61]
Mrs. Julian
belonged to the former group because she married a member of the HFN. Since Mrs. Julian never ceased to be registered under the former IA, neither she nor her
children (the Applicants) were automatically entitled to membership in the Band
under paragraph 11(1)(c) and subsections 10(4) and (5) do not prohibit
the Band from applying the two-part test to them.
[62]
The
Applicants are correct that subsection 10(4), according to Scrimbitt,
above, “protects the rights of those entitled to Band membership pursuant to
Bill C-31” (at para 31). The Applicants, however, did not have a right to
membership in the Band pursuant to Bill C-31. Their situation is thus
distinguishable from that of the applicant in Scrimbitt who had become
disentitled to registration under the former IA (at para 7).
[63]
The
two-part test for section 7 of the Code does not deny these particular
Applicants of any right to have their names entered on the List. Insofar as it
applies to the Applicants, the two-part test is not inconsistent with
subsections 10(4) and (5) of the IA. Applying the two-part test to the
children of women whose membership was transferred to another band under
section 14 of the former IA is not inconsistent with the IA and
falls within the range of possible, acceptable outcomes.
(2) Was the
Committee’s decision unreasonable because a contextual analysis does not
support the two-part test?
[64]
The
Applicants argue that the Committee’s decision is also unreasonable because it
obliges them to apply for membership in the Band. This argument rests on two
critical assumptions. First, that there is a structural distinction in the Code
between persons who have a right to be members and those who may apply; under
this distinction, the former need not apply to be members of the Band. The
second assumption is that the Applicants were not obliged to apply because they
fell within the scope of section 7 of the Code.
[65]
It
is sufficient to deal with this question by addressing the second assumption.
Section 7 of the Code requires that, to be entitled to Band membership,
children must have at least one natural parent that had or was entitled to have
Band membership. The word “children” in section 7 must be read harmoniously
with section 2 of the Code, which defines child to mean “any individual
who has not reached the age of 18”. In interpreting the meaning of “children”
in section 7, it was reasonable for the Committee to rely on the definition of
“child” in section 2.
[66]
By
the time the Code was ratified, on June 25, 1987, the Applicants were
not within the scope of section 7 of the Code as they had already
reached the age of 18. Since they did not fall within the ambit of section 7
when the Code was established (nor when they requested to become members
of the Band in 1994 and 1998), they were not relieved of the obligation to
apply for membership in the Band.
[67]
This
approach is also reasonable in light of section 13 of the IA, which
provides that no person is entitled to have his name entered at the same time
on more than one band list. Ms. Norris was a member of HFN until 1994 and Mr. Norris, a member of HFN until 1997. It is difficult to understand how the Applicants could
be automatically entitled to be entered on the List without application if (i)
they were already members of HFN, and (ii) the IA prevented them from
being members of more than one band.
[68]
The
Committee’s decision is not unreasonable; in that, it required the Applicants
to apply for membership. The question of whether persons falling within section
7 of the Code are exempt from the obligation to apply for Band
membership is immaterial in relation to the Applicants, who were never within
the scope of that provision.
(3) Was the
Committee’s decision unreasonable because the two-part test cannot be read
harmoniously with the scheme of the Code?
[69]
The
preamble to the Code identifies three inter-linked objectives for the
Band’s membership rules: (i) to protect cultural integrity and social harmony;
(ii) to maintain and enhance economic stability; and, (iii) to ensure continued
peace and good order among the members of the Band. It is telling that the
Applicants, in arguing that the two-part test fractures the Band’s cultural
integrity by arbitrarily distinguishing between individuals over and under the
age of 18, only cite the first objective.
[70]
The
objective of preserving cultural integrity and social harmony should be read in
light of the objective to maintain and enhance economic stability. Indeed, the
language of the Code combines these into a single objective, suggesting
that they illuminate one another: “[T]he objective of the [Code] is to
protect the cultural integrity and social harmony along with maintaining
and enhancing economic stability ...” [Emphasis added]. By contrast, the third
objective is expressed separately.
[71]
The
first and second objectives suggest that the age component of the two-part test
is reasonable, especially if one considers section 10 of Code. The
Collins Affidavit stresses that intertribal transfers by adults who already had
a home and life on the reserve of another band exert undue pressure on the
Band’s resources and that section 10 requires these individuals to undergo “a
process to prove that they were truly interested being part of the Matsqui
community” (at para 3). When it is read in conjunction with the provision for
intertribal transfers in section 10 of the Code, the two-part test is
consequently consistent with the objective of maintaining economic stability
while preserving cultural integrity and social harmony.
[72]
The
interaction of sections 7 and 10 demonstrates how the Band has elected to
balance its objective to protect cultural integrity and social harmony and its
objective to maintain economic stability. Economic stability is maintained by
ensuring that only those adult applicants who can demonstrate a true interest
in joining the Band by meeting the requirements under section 10 are entered on
the List. Cultural integrity and social harmony, on the other hand, is
protected by ensuring that persons who are members of another band who feel
some affiliation with the Band may be entered on its List under the intertribal
transfer provisions. In light of the Band’s limited resources, this balance
falls within the range of possible, acceptable outcomes.
(4) Is the
Committee’s decision unreasonable because the two-part test gives rise to
“internal absurdities” in the Code?
[73]
The
Committee’s application of the two-part test to the Applicants does not give
rise to any internal absurdities in the Code that would render the
decision unreasonable. This Court has found that it is not unreasonable to
apply the two-part test to adults applying for an inter-tribal transfer if
those adults do not have an automatic entitlement to Band membership under
section 11 of the IA.
[74]
It
is true that persons under the age of 18 belonging to one band may not always
have sufficient maturity to understand the significance of membership in
another band and to decide whether or not to become a member of that band. The
Band, however, should not be expected to accommodate members of another band
who decided to join the Band at a later stage in their lives.
[75]
In
Grismer v Squamish Indian Band, 2006 FC 1088, 299 FTR 268, Justice Luc
Martineau’s discussion of an age limit imposed on the membership of adopted
children in another band’s membership rules helps to uncover some of the
rationale for the age limit in section 7 of the Code: “The Squamish
Nation decided that only children under the age of eighteen were to be eligible
to apply for membership. The Membership Committee was of the view that in order
to have a sufficient cultural tie to the Squamish to overcome the lack of a
bloodline connection, the child should not only have to be adopted by two
Squamish members but should also be raised in the Squamish community” (at para
81).
[76]
Although
these Applicants do have an obvious bloodline connection, they were raised in
the HFN community, which, according to the Collins Affidavit, has some
differences (particularly, linguistic differences) from the Band. It is not
unreasonable for the Band to take the view that a person seeking membership
under section 7 of the Code should have a sufficient cultural tie to the
Band. It is within the range of possible and acceptable outcomes for the Band
to require that such persons join the Band while they are still young enough to
be raised in order to strengthen these cultural ties.
[77]
This
Court agrees with Justice Martineau in Grismer, above, that, in the
absence of a legal prohibition, this Court should not “second guess” the
decision of a Committee whose membership rules were “duly adopted after being
discussed and agreed upon by the members” of a band (at para 82).
[78]
The
provisions of the Code cited by the Applicants in support of this
argument (subsections 12(5), 13(1), and (2)) do not assist the Applicants.
These provisions address the circumstances of individuals who were already
members of the Band but were removed from its List. The Applicants, by
contrast, were never Band members before they applied to join the Band in 1994
and 1998. The Band alleges that persons falling within the scope of subsections
12(5), 13(1), and (2) remain part of its decision-making process and that they
usually have had direct exposure to its culture and have been part of it during
some portion of their lives. It is not unreasonable to adopt specific
membership reinstatement rules that would apply to this group.
IX. Conclusion
[79]
For
all of the above reasons, the Applicants’ application for judicial review is
dismissed. Due to the nature of the issues, therein, no costs are awarded.
JUDGMENT
THIS
COURT ORDERS that the Applicants’ application for
judicial review be dismissed. No costs be awarded.
“Michel M.J. Shore”
ANNEX “A”
Indian
Act, RSC, 1985
|
6. (1) Subject to section 7,
a person is entitled to be registered if
...
(c)
the name of that person was omitted or deleted from the Indian Register, or
from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv),
paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii)
pursuant to an order made under subsection 109(2), as each provision read
immediately prior to April 17, 1985, or under any former provision of this
Act relating to the same subject-matter as any of those provisions;
(c.1)
that person
(i)
is a person whose mother’s name was, as a result of the mother’s marriage,
omitted or deleted from the Indian Register, or from a band list prior to
September 4, 1951, under paragraph 12(1)(b) or under subparagraph
12(1)(a)(iii) pursuant to an order made under subsection 109(2), as
each provision read immediately prior to April 17, 1985, or under any former
provision of this Act relating to the same subject-matter as any of those
provisions,
(ii)
is a person whose other parent is not entitled to be registered or, if no
longer living, was not at the time of death entitled to be registered or was
not an Indian at that time if the death occurred prior to September 4, 1951,
(iii)
was born on or after the day on which the marriage referred to in
subparagraph (i) occurred and, unless the person’s parents married each other
prior to April 17, 1985, was born prior to that date, and
(iv)
had or adopted a child, on or after September 4, 1951, with a person who was
not entitled to be registered on the day on which the child was born or
adopted ...
…
10. (1) A band may assume
control of its own membership if it establishes membership rules for itself
in writing in accordance with this section and if, after the band has given
appropriate notice of its intention to assume control of its own membership,
a majority of the electors of the band gives its consent to the band’s
control of its own membership.
(2)
A band may, pursuant to the consent of a majority of the electors of the
band,
(a)
after it has given appropriate notice of its intention to do so, establish
membership rules for itself; and
(b)
provide for a mechanism for reviewing decisions on membership.
(3)
Where the council of a band makes a by-law under paragraph 81(1)(p.4)
bringing this subsection into effect in respect of the band, the consents
required under subsections (1) and (2) shall be given by a majority of the
members of the band who are of the full age of eighteen years.
(4)
Membership rules established by a band under this section may not deprive any
person who had the right to have his name entered in the Band List for that
band, immediately prior to the time the rules were established, of the right
to have his name so entered by reason only of a situation that existed or an
action that was taken before the rules came into force.
(5)
For greater certainty, subsection (4) applies in respect of a person who was
entitled to have his name entered in the Band List under paragraph 11(1)(c)
immediately before the band assumed control of the Band List if that person
does not subsequently cease to be entitled to have his name entered in the Band
List.
(6)
Where the conditions set out in subsection (1) have been met with respect to
a band, the council of the band shall forthwith give notice to the Minister
in writing that the band is assuming control of its own membership and shall
provide the Minister with a copy of the membership rules for the band.
(7)
On receipt of a notice from the council of a band under subsection (6), the
Minister shall, if the conditions set out in subsection (1) have been
complied with, forthwith
(a)
give notice to the band that it has control of its own membership; and
(b)
direct the Registrar to provide the band with a copy of the Band List
maintained in the Department.
(8)
Where a band assumes control of its membership under this section, the
membership rules established by the band shall have effect from the day on
which notice is given to the Minister under subsection (6), and any additions
to or deletions from the Band List of the band by the Registrar on or after
that day are of no effect unless they are in accordance with the membership
rules established by the band.
(9)
A band shall maintain its own Band List from the date on which a copy of the
Band List is received by the band under paragraph (7)(b), and, subject to
section 13.2, the Department shall have no further responsibility with
respect to that Band List from that date.
(10)
A band may at any time add to or delete from a Band List maintained by it the
name of any person who, in accordance with the membership rules of the band,
is entitled or not entitled, as the case may be, to have his name included in
that list.
(11)
A Band List maintained by a band shall indicate the date on which each name
was added thereto or deleted therefrom.
11.
(1) Commencing
on April 17, 1985, a person is entitled to have his name entered in a Band
List maintained in the Department for a band if
(a)
the name of that person was entered in the Band List for that band, or that
person was entitled to have it entered in the Band List for that band,
immediately prior to April 17, 1985;
(b)
that person is entitled to be registered under paragraph 6(1)(b) as a member
of that band;
(c)
that person is entitled to be registered under paragraph 6(1)(c) and
ceased to be a member of that band by reason of the circumstances set out in
that paragraph; or
(d)
that person was born on or after April 17, 1985 and is entitled to be
registered under paragraph 6(1)(f) and both parents of that person are
entitled to have their names entered in the Band List or, if no longer
living, were at the time of death entitled to have their names entered in the
Band List.
…
(3.1)
A person is entitled to have the person’s name entered in a Band List
maintained in the Department for a band if the person is entitled to be
registered under paragraph 6(1)(c.1) and the person’s mother ceased to be a
member of that band by reason of the circumstances set out in subparagraph
6(1)(c.1)(i).
13. Notwithstanding sections 11
and 12, no person is entitled to have his name entered at the same time in
more than one Band List maintained in the Department.
|
6. (1) Sous réserve
de l’article 7, toute personne a le droit d’être inscrite dans les cas
suivants :
[...]
(c) son nom a été omis ou retranché du
registre des Indiens ou, avant le 4 septembre 1951, d’une liste de bande, en
vertu du sous-alinéa 12(1)a)(iv), de l’alinéa 12(1)b) ou du
paragraphe 12(2) ou en vertu du sous-alinéa 12(1)a)(iii) conformément
à une ordonnance prise en vertu du paragraphe 109(2), dans leur version
antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de
la présente loi portant sur le même sujet que celui d’une de ces
dispositions;
(c.1) elle remplit les
conditions suivantes :
(i) le nom de sa mère a été, en
raison du mariage de celle-ci, omis ou retranché du registre des Indiens ou,
avant le 4 septembre 1951, d’une liste de bande, en vertu de l’alinéa 12(1)b)
ou en vertu du sous-alinéa 12(1)a)(iii) conformément à une ordonnance
prise en vertu du paragraphe 109(2), dans leur version antérieure au 17 avril
1985, ou en vertu de toute disposition antérieure de la présente loi portant
sur le même sujet que celui d’une de ces dispositions,
(ii) son autre parent n’a pas
le droit d’être inscrit ou, s’il est décédé, soit n’avait pas ce droit à la
date de son décès, soit n’était pas un Indien à cette date dans le cas d’un
décès survenu avant le 4 septembre 1951,
(iii) elle est née à la date du
mariage visé au sous-alinéa (i) ou après cette date et, à moins que ses
parents se soient mariés avant le 17 avril 1985, est née avant cette dernière
date,
(iv) elle a eu ou a adopté, le
4 septembre 1951 ou après cette date, un enfant avec une personne qui, lors
de la naissance ou de l’adoption, n’avait pas le droit d’être inscrite; [...]
[...]
10. (1) La bande peut
décider de l’appartenance à ses effectifs si elle en fixe les règles par
écrit conformément au présent article et si, après qu’elle a donné un avis
convenable de son intention de décider de cette appartenance, elle y est
autorisée par la majorité de ses électeurs.
(2) La bande peut, avec
l’autorisation de la majorité de ses électeurs :
a) après avoir donné un avis
convenable de son intention de ce faire, fixer les règles d’appartenance à
ses effectifs;
b) prévoir une procédure de
révision des décisions portant sur l’appartenance à ses effectifs.
(3) Lorsque le conseil d’une
bande prend, en vertu de l’alinéa 81(1)p.4), un règlement administratif
mettant en vigueur le présent paragraphe à l’égard de la bande,
l’autorisation requise en vertu des paragraphes (1) et (2) doit être donnée
par la majorité des membres de la bande âgés d’au moins dix-huit ans.
(4) Les règles d’appartenance
fixées par une bande en vertu du présent article ne peuvent priver quiconque
avait droit à ce que son nom soit consigné dans la liste de bande avant leur
établissement du droit à ce que son nom y soit consigné en raison uniquement
d’un fait ou d’une mesure antérieurs à leur prise d’effet.
(5) Il demeure entendu que le
paragraphe (4) s’applique à la personne qui avait droit à ce que son nom soit
consigné dans la liste de bande en vertu de l’alinéa 11(1)c) avant que
celle-ci n’assume la responsabilité de la tenue de sa liste si elle ne cesse
pas ultérieurement d’avoir droit à ce que son nom y soit consigné.
(6) Une fois remplies les conditions
du paragraphe (1), le conseil de la bande, sans délai, avise par écrit le
ministre du fait que celle-ci décide désormais de l’appartenance à ses
effectifs et lui transmet le texte des règles d’appartenance.
(7) Sur réception de l’avis du
conseil de bande prévu au paragraphe (6), le ministre, sans délai, s’il
constate que les conditions prévues au paragraphe (1) sont remplies :
a) avise la bande qu’elle décide
désormais de l’appartenance à ses effectifs;
b) ordonne au registraire de
transmettre à la bande une copie de la liste de bande tenue au ministère.
(8) Lorsque la bande décide de
l’appartenance à ses effectifs en vertu du présent article, les règles
d’appartenance fixées par celle-ci entrent en vigueur à compter de la date où
l’avis au ministre a été donné en vertu du paragraphe (6); les additions ou
retranchements effectués par le registraire à l’égard de la liste de la bande
après cette date ne sont valides que s’ils sont effectués conformément à ces
règles.
(9) À compter de la réception
de l’avis prévu à l’alinéa (7)b), la bande est responsable de la tenue de sa
liste. Sous réserve de l’article 13.2, le ministère, à compter de cette date,
est dégagé de toute responsabilité à l’égard de cette liste.
(10) La bande peut ajouter à la
liste de bande tenue par elle, ou en retrancher, le nom de la personne qui,
aux termes des règles d’appartenance de la bande, a ou n’a pas droit, selon
le cas, à l’inclusion de son nom dans la liste.
(11) La liste de bande tenue
par celle-ci indique la date où chaque nom y a été ajouté ou en a été
retranché.
11.
(1) À
compter du 17 avril 1985, une personne a droit à ce que son nom soit consigné
dans une liste de bande tenue pour cette dernière au ministère si elle
remplit une des conditions suivantes :
(a) son nom a été consigné dans cette
liste, ou elle avait droit à ce qu’il le soit le 16 avril 1985;
(b) elle a le droit d’être inscrite en
vertu de l’alinéa 6(1)b) comme membre de cette bande;
(c) elle a le droit d’être inscrite en
vertu de l’alinéa 6(1)c) et a cessé d’être un membre de cette bande en
raison des circonstances prévues à cet alinéa;
(d) elle est née après le 16 avril 1985 et
a le droit d’être inscrite en vertu de l’alinéa 6(1)f) et ses parents
ont tous deux droit à ce que leur nom soit consigné dans la liste de bande
ou, s’ils sont décédés, avaient ce droit à la date de leur décès.
[...]
(3.1) Toute personne a droit à
ce que son nom soit consigné dans une liste de bande tenue pour celle-ci au
ministère si elle a le droit d’être inscrite en vertu de l’alinéa 6(1)c.1) et
si sa mère a cessé d’être un membre de la bande en raison des circonstances
prévues au sous-alinéa 6(1)c.1)(i).
13. Par dérogation aux
articles 11 et 12, nul n’a droit à ce que son nom soit consigné en même temps
dans plus d’une liste de bande tenue au ministère.
|
ANNEX
“B”
Matsqui
Band Membership Code
SHORT
TILE …
2. For
the purpose of this code:
DEFINITIONS
...
CHILD means
any individual who has not reached the age of 18
…
MEMBERSHIP
CRITERIA
…
All other Children 7. Subject
to sections 4, 6(a)(b), 8, 9(2) and 9(3) of this code, children must have at
least one natural parent that had or was entitled to have Matsqui Band
membership, whether living or deceased, to be entitled to Matsqui membership.
…
APPLICATION
FOR MEMBERSHIP
…
Intertibal 10. Membership
may be granted to a member of another Indian
Transfers Band,
providing the applicant:
(a) renounces his
membership in his former Band, and;
(b) agrees to a
probationary period of two years prior to enrollment during which time the
applicant must attend Matsqui Band meetings, social and cultural events to
better learn and understand the Matsqui way of life, and;
(c) receives consent of
75% of the eligible electors of the Band at a referendum held for that purpose.
…
LOSS
OF MEMBERSHIP
Transfers 12. …
Erroneous (2) Any
person whose name was wrongfully entered on
Membership the
Matsqui Band list through error, omission, oversight, or any other reason shall
be removed from that list and shall be considered never to have been a Matsqui
Band member.
…
RENOUNCEMENT
OF MEMBERSHIP
Voluntary 13. (1)
A Matsqui member may renounce his membership upon reaching the age of
majority.
Children (2)
A Matsqui member who has not reached the age of majority may have their
membership renounced by his or her parents or guardians, however, the child is
eligible for reinstatement upon reaching the age of majority.
…
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