Docket: T-1717-15
Citation:
2016 FC 672
Ottawa, Ontario, June 16, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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PETER MALCOLM,
JIMMI GRANT and ED TATUM
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Applicants
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and
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FORT McMURRAY
FIRST NATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review pursuant
to section 18.1 of the Federal Courts Act, RSC 1985, c F-7. The Applicants
are seeking an order declaring that the Membership Clerk of Fort McMurray First
Nation’s [FMFN 468] identical decision on each of the Applicants’ membership
application is contrary to the Membership Code of the FMFN 468 and to compel
the Membership Clerk to make a decision pursuant to the Membership Code.
[2]
For the reasons that follow, the application is
dismissed.
II.
Background
[3]
On June 1, 2015, Peter Malcolm completed an application
for membership in FMFN 468 on the basis that his grandmother, Caroline
Thompson, was given scrip in 1899 as a member of the Cree-Chipewyan Band until
it was cancelled in 1901.
[4]
On June 17, 2015, Jimmie Grant completed an application
for membership in FMFN 468 on the same basis and ancestor as Mr. Malcolm.
[5]
On August 27, 2015, Edgar Kenneth Tatum
completed an application for membership in FMFN 468.
[6]
On September 17 and 18, 2015, the Membership
Clerk advised Mr. Malcolm and Mr. Grant that in the absence of confirmation of
their registration under the Indian Act, RCS 1985 c I-5, she was
unable to take any further action regarding their application for membership in
FMFN 468.
[7]
On September 21, 2015, the Membership Clerk
advised Mr. Tatum that in the absence of confirmation of his registration under
the Indian Act, she was unable to take any further action regarding his
application for membership in FMFN 468.
III.
Impugned Decision
[8]
On September 17, 18 and 21, 2015, the Membership
Clerk advised the Applicants that their membership applications would not be
processed as the Applicants had not established that they are “Indians” for the
purpose of the Membership Code, which requires a written confirmation of Indian
status by the Registrar of Indians on registration under the Indian Act.
IV.
Issue
[9]
This application raises the issue of whether the
Applicants are entitled to have their membership applications processed without
first being registered under the Indian Act.
V.
Standard of Review
[10]
In a case involving the interpretation of a
Band’s own Membership Code and an issue of mixed fact and law, the deferential
standard of review is that of reasonableness: Dunsmuir v New Brunswick,
2008 SCC 9.
VI.
Analysis
[11]
The Applicants submit that each Applicant is an
Indian pursuant to the Membership Code as their ancestor was recognized as
Indian and on the FMFN 468 membership list. The Applicants maintain that their
ancestors were removed from the FMFN 468 membership list because of provisions
of the Indian Act that permitted the removal of status from women. These
provisions have been corrected by Bill C-31 and Bill C-3 entitling recognition
under the Indian Act and thus entitling the Applicants to membership in
FMFN 468 without registering under the Indian Act.
[12]
The Membership Code defines “Indian” in Section
1.1(j) as “a person registered or entitled to be
registered as an Indian pursuant to the Indian Act [emphasis added].”
The Applicants rely on the “entitled to be registered” words in order to argue
that registration under the Indian Act is not required and they are
entitled to status based on their ancestral lineage.
[13]
Principles of statutory interpretation require
that the ordinary meaning of words be taken into account in the context in which
they are used and the purpose of the document in which they are found. Accordingly,
the definition of “Indian” found in Section 1.1(j) of the Membership Code must
not be read in isolation but as part of a longer definition that “Indian” means
a person registered or entitled to be registered as an Indian pursuant to
the Indian Act [emphasis added].
[14]
Furthermore, the necessity for confirmation of
registration pursuant to the Indian Act is mandated in section 3.3 of
the Membership Code, which provides that all applicants for membership in FMFN
468, other than those whose names were included in the Indian Registry on
December 1, 2013, the day after the approval of the Membership Code by FMFN
468, will only become members of FMFN 468 “upon the
date that the Nation receives confirmation that such Person has been registered
as an Indian under the Indian Act.” Section 3.3 of the Membership
Code illustrates FMFN 468’s reliance on the written confirmation of status by
the Registrar of Indians on registration under the Indian Act.
[15]
The Membership Clerk thus did not err in not taking
any further action in processing the Applicants’ membership applications in the
absence of proof of Indian status registration under the Indian Act. The
Membership Clerk justly indicated that the Applicants’ membership applications
would continue once the necessary confirmation was received.
VII.
Conclusion
[16]
This application is dismissed and the Respondent
is entitled to costs which I fix at $750 all-in.
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