Date: 20121211
Docket: T-568-12
Citation:
2012 FC 1464
Ottawa, Ontario, December 11, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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BLAKE, KATHERINE
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Applicant
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and
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FIRST MINISTER, NUNATSIAVUT GOVERNMENT
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Katherine Blake seeks to set aside the decision
of the Inuit Membership Appeal Board [the Appeal Board] dated February 12,
2012, that determined that she was not eligible to be enrolled as a Beneficiary
of the Labrador Inuit Land Claims Agreement [the Agreement].
[2]
The Agreement defines a Beneficiary as “an individual enrolled on the
Register.” The Criteria that makes one eligible to be enrolled on the Register
are set out in Part 3.3 of the Agreement which is reproduced and attached as
Annex A. Relevant to this judgment is that one route to eligibility is
demonstrating that one “has at least one-quarter Inuit ancestry […]
[and] is a Canadian citizen or a permanent resident of Canada under federal Legislation [emphasis added]:” see section 3.3.3.
[3]
Ms. Blake, having reached the age of majority,
re-applied to be enrolled as a Beneficiary on May 26, 2011, pursuant to section
3.11.4 of the Agreement. By her calculations, as reflected in her application
for membership, Ms. Blake reasoned she had 27.337% “Inuit ancestry.”
[4]
By letter dated June 21, 2011, the Rigolet and
Upper Lake Melville Membership Committee [the Rigolet Committee] notified Ms.
Blake that it had made a preliminary decision that she did not meet the Criteria
for enrolment as a Beneficiary because she has less than the one-quarter Inuit
ancestry required by section 3.3.3. In particular, the Rigolet Committee’s
preliminary conclusion was that Ms. Blake had 16.40% Inuit ancestry. The
Rigolet Committee invited Ms. Blake to make representations or to request a
hearing in person.
[5]
Ms. Blake asked the Rigolet Committee to convoke
an oral hearing, which it did on October 29, 2011. Ms. Blake was at university
at that time, so her father, Henry Blake, attended the hearing on her behalf,
as did her grandfather, Edward Blake, and her aunt, Patsy Murphy.
[6]
On November 7, 2011, on the basis of her written
application and the oral representations at the hearing, the Rigolet Committee
decided that Ms. Blake did not have one quarter Inuit ancestry. Ms. Blake
appealed that decision to the Appeal Board.
[7]
On February 8, 2012, the Appeal Board convened
to hear Ms. Blake’s submissions. Ms. Blake did not appear in person, but the
Board heard representations from Henry Blake, Patsy Murphy, and Judy Blake.
[8]
The Appeal Board concluded that Ms. Blake did
not meet the membership criteria of the Agreement. It conducted an analysis of
Ms. Blake’s “Inuit ancestral blood quantum” and determined that Ms. Blake had
only 10.93% Inuit ancestry, which was short of the 25% minimum required by
section 3.3.3 of the Agreement. The Appeal Board also considered a second
possible route to membership under section 3.3.4; however, the Board concluded
that Ms. Blake was not Inuk as required by paragraph 3.3.4(b), or, in any
event, was not “connected” to the Labrador Inuit Settlement Area as required by
subparagraph 3.3.4(c)(ii).
[9]
Although Ms. Blake raises three issues with the
decision, there is truly only one issue that the Court must examine: Is the
Appeal Board’s decision reasonable? The parties agree, as does the Court, that
the standard of review is reasonableness: Mugford v Nunatsiavut Government,
2011 FC 1197 [Mugford]. “Reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process … [and] it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law:” Dunsmuir v New Brunswick, 2008 SCC 9, at
para 47.
[10]
I find that the decision under review lacks intelligibility for the
following reasons and it must be set aside.
[11]
It is not disputed that Ms. Blake has Inuit ancestry
only on her father’s side. Her relevant ancestors as disclosed in the Appeal
Board’s decision and her application for membership are the following:
Sidney Blake (paternal great grandfather) - and - Alfreda Davis
(paternal great grandmother)
Edward Blake (grandfather) - and - Kathleen Chaulk (grandmother)
Henry Blake (father).
[12]
The Appeal Board determined that the Agreement’s
reference to an applicant’s “Inuit ancestry” means that person’s Inuit
ancestral blood quantum, which is determined by adding the percentages of the
Inuit ancestral blood quantum of each parent of the applicant and dividing the
sum by two, and so on up the family tree. There is nothing unreasonable in
that manner of proceeding and the Appeal Board is entitled to deference in its
view of the meaning of “Inuit ancestry” and the manner of determining it.
[13]
The submission made by Ms. Blake in her
membership application as to her Inuit ancestral blood quantum is set out in
schematic form in Annex B. It shows that she has 27.337% Inuit ancestry, more
than enough to be registered as a Beneficiary.
[14]
The Appeal Board accepted the Inuit ancestral
blood quantum of Sidney Blake and Kathleen Chaulk as stated by Ms. Blake.
However, it disputed her submissions on the Inuit ancestral blood quantum of
Alfreda Davis, Edward Blake, and Henry Blake. Its finding is set out in
schematic form in Annex C and shows that Ms. Blake has 10.93% Inuit ancestry,
which is not enough to be registered as a Beneficiary.
[15]
The only reason provided by the Appeal Board for
assigning Alfreda Davis, Ms. Blake’s paternal great-grandmother, with 0% Inuit
ancestral blood quantum is that:
Alfreda Davis was
from Goose Cove, Labrador, a place near Cartwright, Labrador that is outside
the Labrador Inuit Settlement Area. Her blood quantum does not meet the
criteria contained on page 30 of the Labrador Inuit Claims Agreement.
[16]
The reference to the “criteria contained on page
30” of the Agreement, appears to be a reference to the definition of “Inuit”
which is found on that page and which reads as follows:
"Inuit" means all those
members of the aboriginal people of Labrador, sometimes known as Eskimos, that
has traditionally used and occupied and currently uses and occupies the lands,
waters and sea ice of the Labrador Inuit Land Claims Area, or any Region.
“Inuit” does not include beneficiaries of:
(a)
the “James Bay
and Northern Québec Agreement”;
(b)
the “Inuvialuit
Final Agreement”; or
(c) the “Agreement between the Inuit of
the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada”;
[17]
The Appeal Board does not explain how it is that
it finds that Alfreda Davis fails to meet the definition of “Inuit.” The
submission made by Ms. Blake in her membership application was that Alfreda
Davis was born in Goose Cove in 1906 and was the child of Charles Davis (whose
Inuit ancestral blood quantum was 75%) and Mary Ann Perry (whose Inuit
ancestral blood quantum was 100%). If true, then Alfreda Davis’ Inuit
ancestral blood quantum would appear to be 87.50%, as Ms. Blake claimed.
[18]
The Court assumes (something that would not be
done if the decision was intelligible) that the Appeal Board found that Alfreda
Davis had 0% Inuit ancestral blood quantum because, and only because,
she was born outside the Labrador Inuit Settlement Area as defined by the
Agreement. This assumption is based in large part on the manner in which the
Appeal Board treated the Inuit ancestral blood quantum of her son, Edward
Blake. The Appeal Board states:
This [ie Sidney Blake
having 43.75% and Alfreda Davis having 0%] means your grandfather Edward Blake
has 21.87% and he was born in Grand Lake, Labrador, an area outside the
Labrador Inuit Settlement Area, therefore his blood quantum does not count
for purpose of this agreement. [emphasis added]
[19]
On the basis of the above, and most particularly
the statements concerning Edward Blake, it appears that the Appeal Board
has interpreted the Agreement such that an applicant only inherits the Inuit
blood of an ancestor who was born in the Labrador Settlement Area, even if the
parents of that ancestor were 100% Inuit. I say that this “appears” to be the
case, because the Appeal Board’s treatment of such ancestors is not consistent,
and this lack of consistency is part of the reason its decision is
unintelligible.
[20]
This lack of consistency is evident in the
treatment of Henry Blake. The Appeal Board states that Ms. Blakes’ father,
Henry Blake, has Inuit ancestral blood quantum of 21.87% (based on his mother’s
43.75% and his father Edward’s 0%) and then attributes Ms. Blake with one-half
of his Inuit ancestral blood quantum. However, like his grandmother Alfreda
Davis, Henry Blake was not born in the Labrador Settlement Area, and therefore
his Inuit ancestral blood quantum for the purposes of calculating that of Ms.
Blakes’ ought to have been 0% if the Appeal Board was consistent.
[21]
Accordingly, if the Appeal Board determined that
an ancestor’s blood quantum only counted towards an applicant’s Inuit ancestral
blood quantum if that ancestor was born in the Labrador Settlement Area, then
it failed to apply that interpretation consistently and its decision is
therefore unreasonable.
[22]
In any event, if it was determined that an
ancestor’s blood quantum only counted towards an applicant’s Inuit ancestral
blood quantum if that ancestor was born in the Labrador Settlement Area, that
too is unreasonable. Absent clear and unambiguous language to the contrary,
one does not loose one’s ancestry simply because of where one is born. The
ancestry of a child born of a French father and a Belgium mother is half-French
and half-Belgium, regardless of where in the world the child is born. Where
one is born impacts one’s citizenship, not one’s ancestry.
[23]
As discussed, it appears that the Appeal Board
discounted the blood quantum of most ancestors based its interpretation that
birth in the Labrador Settlement Area was a requirement of being “Inuit” as
defined by the Agreement. However, as was noted by Justice Kelen at para 29 of
Mugford, the definition of “Inuit” in the Agreement makes no reference
to having been born in the Labrador Settlement Area:
“Inuit” is defined as
those aboriginal people having “traditionally used and occupied” the Labrador
Inuit Land Claims Area. It is not necessary to establish that her ancestors
were born in that area, or died there -- only that they “traditionally used
and occupied” the area. If this criterion is met, the applicant does not need
to show that her ancestors were “connected” to the Labrador Inuit Settlement
Area, as defined in section 3.1.2. [emphasis added].
[24]
There is another aspect of the Appeal Board’s
decision that may render its conclusion unreasonable. According to the
decision, the applicant’s father, Henry Blake has 21.87% Inuit ancestry;
however, the record indicates that both Henry and his siblings are
Beneficiaries under the Agreement. Because on the face of the record Henry
does not appear to qualify under any other category of membership, this
strongly suggests that he was previously determined to have at least 25% Inuit
ancestry. If so, then the Appeal Board’s analysis is unreasonable as it is
contrary to, or at least does not address that evidence.
[25]
At the hearing, the parties advised the Court
that neither was seeking its costs and therefore none will be awarded.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is allowed, the decision of the Inuit Membership Appeal Board dated
February 12, 2012, that determined that Katherine Blake was not eligible to be
enrolled as a Beneficiary of the Labrador Inuit Land Claims Agreement is set
aside, her appeal of the decision of the Rigolet and Upper Lake Melville
Membership Committee dated November 7, 2011, is remitted back to the Inuit
Membership Appeal Board for decision in accordance with these reasons, and no
costs are awarded,
"Russel W. Zinn"
ANNEX
A
Labrador Inuit Land Claims Agreement
Part 3.3 Eligibility Criteria
3.3.1 An individual is eligible to be enrolled on the Register if that
individual meets the Criteria.
3.3.2 An individual shall be enrolled on the Register if, on the
Effective Date, that individual is alive and is:
(a) a Canadian citizen or a permanent resident of Canada under federal Legislation;
(b) an Inuk pursuant to Inuit customs and traditions and is of
Inuit ancestry, or is a Kablunângajuk; and
(c) either:
(i) a Permanent Resident of the Labrador Inuit Settlement Area;
or
(ii) a Permanent Resident of a place outside the Labrador Inuit
Settlement Area but is connected to the Labrador
Inuit Settlement Area.
3.3.3 An individual
who has at least one-quarter Inuit ancestry is eligible to be enrolled on the
Register if that individual is a Canadian citizen or a permanent resident of Canada under federal Legislation despite anything in section 3.3.2 or 3.3.4 to the
contrary.
3.3.4 Anyone who is
born after the Effective Date who is a lineal descendant of someone who was enrolled
or eligible to be enrolled on the Register under section 3.3.2 or 3.3.3 shall
be enrolled on the Register if that individual is:
(a) a Canadian
citizen or a permanent resident of Canada under federal Legislation;
(b) an Inuk
pursuant to Inuit customs and traditions and is of Inuit ancestry or is a
Kablunângajuk under clause (a) of the definition of “Kablunângajuk”; and
(c) either:
(i) a Permanent
Resident of the Labrador Inuit Settlement Area; or
(ii) a Permanent
Resident of a place outside the Labrador Inuit Settlement Area but is connected
to the Labrador Inuit Settlement Area.
3.3.5 Anyone who is
not an Inuk or Kablunângajuk and who:
(a) was adopted
as a minor prior to the Effective Date by an individual who is eligible to be
enrolled on the Register under section 3.3.2 or 3.3.3, or who would have been
eligible to be enrolled under one of those sections if that individual had been
alive on the Effective Date; or
(b) is adopted
as a minor by a Beneficiary after the Effective Date, is absolutely deemed to
be a lineal descendant of his or her adoptive parents and to have the same
ancestry that he or she would have had if he or she were a natural child of the
adoptive parents.
3.3.6 No individual
can be enrolled as a Beneficiary under the Agreement while that individual is
enrolled under another Canadian aboriginal land claims agreement.
3.3.7 Anyone who is
eligible to be enrolled under both the Agreement and another Canadian
aboriginal land claims agreement may choose to be enrolled under the Agreement
if that individual gives up his or her rights, benefits or privileges under the
other agreement while enrolled under this Agreement.
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