Docket: T-401-16
Citation:
2016 FC 1328
Ottawa, Ontario, November 30, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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BRUCE BEATTIE and
JOYCE BEATTIE
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Applicants
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under section 18.1 of the
Federal Courts Act, RSC, 1985, c F-7 for judicial review of a decision
of the Canadian Human Rights Tribunal [CHRT] dated February 24, 2016. The
applicants alleged that the respondent breached section 5 of the Canadian
Human Rights Act, RSC 1985, c H-6 [CHRA] by refusing to register certain
land documents in the Indian Reserve Land Register [IRLR] pursuant to section
21 of the Indian Act, RSC 1985, c I-5 [Indian Act]. The CHRT
dismissed the complaints as it found that they were solely a challenge to or a
collateral attack upon legislation and beyond the jurisdiction of the Tribunal.
II.
BACKGROUND
[2]
The applicant Joyce Beattie, along with Jenelle
Brewer and James Louie, filed three complaints dated March 30, 2012 with the Canadian
Human Rights Commission (the Commission) on April 4, 2012. Ms. Beattie, Ms.
Brewer and Mr. Louie authorized Mr. Bruce Beattie to act as their
representative before the CHRT.
[3]
Mr. Louie, who passed away on March 28, 2015,
was a registered Indian under the Indian Act and a member of the
Okanagan Indian Band. Ms. Brewer is also a registered Indian and a member of
the same band. Ms. Brewer is the administrator and beneficiary of Mr. Louie’s
estate. The validity of the will is being challenged. Ms. Brewer and Mr.
Louie’s estate are not parties to this judicial review.
[4]
Ms. Beattie, who is the spouse of Mr. Beattie,
is a registered Indian under the Indian Act but she is not a member of
the Okanagan Indian Band. Notably, Mr. Beattie is not of Aboriginal descent. Mr.
Beattie and Ms. Beattie represented themselves on this application.
[5]
The Commission requested the CHRT to institute
an inquiry into the complaints on a consolidated basis on October 1, 2013 under
paragraph 44(3)(a) of the CHRA. On May 8, 2015, the Commission advised the CHRT
and the parties that it would not participate in the matter or appear at the
hearing.
[6]
The lands in question are located within the
Okanagan Indian Reserve near Vernon British Columbia and include two parcels
described as Lot 170-1 and Lot 175, Block 4, Plan 93082 CLSR in Indian Reserve
No. 1.
[7]
In his decision, at paragraph 9, the CHRT Member
stated that the lands were allotted to Mr. Louie by the council of the Okanagan
Indian Reserve. According to the Member, the allotment was approved by the
Minister of Indian Affairs and Northern Development (now known as Indigenous
and Northern Affairs Canada) and Certificates of Possession [CP] were
issued to Mr. Louie under section 20 of the Indian Act. The Beatties say
that (1) there was no allotment by the Band, (2) that possession of the lands
had been in the Louie family for many years, and (3) the CPs were issued only
after Mr. Louie had resurveyed the properties and applied to have them
registered in his name on the Indian Lands Registry.
[8]
In June 2007, Mr. Louie and Ms. Beattie applied
for a ministerial lease under subsection 58(3) of the Indian Act with
respect to Lot 170-1. In January 2008, they applied for a ministerial lease
under subsection 58(3) for Lot 175. These applications were refused by the
respondent and resulted in several complaints under the CHRA in 2008 and 2010. The
complaints were substantiated on their merits.
[9]
In 2011, Mr. Beattie submitted two applications
for registration, dated July 25, 2011, to the Indian Lands Registry under
section 21 of the Indian Act. Each application attached a lease. The
first lease, pertaining to Lot 170-1, named Mr. Louie as lessor and Ms. Beattie
as lessee. The second lease, pertaining to Lot 175, named Mr. Louie as lessor
and Ms. Brewer as lessee. A document titled “Assignment
of Lease”, signed March 1, 2012, was also submitted by Mr. Beattie for
registration. The assignment of lease purports to assign the lease between Mr.
Louie and Ms. Brewer regarding Lot 175.
[10]
On September 30, 2013, the applications for
registration were rejected by the Registrar of the Indian Reserve Land Register,
Mr. Daryl Hargitt, for two reasons: (1) the leases did not indicate the Crown
as a party and (2) no Ministerial approval had been provided. As the lease
between Mr. Louie and Ms. Beattie was not acceptable for registration, the
subsequent assignment of lease could also not be registered. As a result of
this decision, the three complaints indicated above were filed with the
Commission.
[11]
The complaints alleged that by refusing to
register the private leases and assignment of lease, the respondent
discriminated against Mr. Louie, Ms. Brewer and Ms. Beattie on the grounds of
their race, national or ethnic origin (as registered Indians), by denying a
service, customarily available to the public, contrary to section 5 of the CHRA.
[12]
At the hearing before the CHRT, a preliminary
issue was raised by the respondent regarding whether the complaints were solely
a challenge to or a collateral attack upon legislation, and therefore, beyond
the jurisdiction of the CHRT. The CHRT accepted that argument and dismissed
the complaints. The question of whether Mr. Beattie had any standing as a
complainant was also raised by the respondent but not resolved. He had been a
complainant in the 2008 and 2010 proceedings and had acted as agent for the other
complainants. He was the designated representative of Ms. Beattie, Ms. Brewer
and Mr. Louie for the 2012 complaints. There was no evidence that he was
authorized to represent Mr. Louie’s estate at the hearing.
III.
DECISION UNDER REVIEW
[13]
The
decision was rendered by Member Edward P.
Lustig. Member Lustig held that the underlying complaints fell beyond the jurisdiction of
the CHRT because they were solely a challenge to or a collateral attack upon
legislation (i.e. the Indian Act) and nothing else.
[14]
In
reaching this conclusion, the Member considered the uncontradicted oral
evidence of Ms. Sheila Craig, the Manager of Lands Modernization in the
respondent’s Lands and Economic Development British Columbia Regional Office. The
Member found her evidence to be “highly credible”. Ms. Craig
explained how the land management system works under the Indian Act and
the various rules that underpin it. Based on that evidence, the Member found
that while the process of reviewing and eventually registering valid documents
or not registering invalid documents may be a “service”
under section 5 of the CHRA, the legislative criteria provided by the Indian
Act for doing so is not. Therefore, the Member found that it is the law
which denies access to the benefit, not the government agency.
[15]
The
CHRT accepted the respondent’s argument that section 21 of the Indian Act is
part of a broader statutory scheme that cannot be read alone without engaging
other sections of that Act. The Member held that for registration to be
completed under section 21, the Crown, as owner/landlord, must be a party to
leases of the subject lands. In deciding that section 21 does not stand in
isolation, the CHRT relied on the statutory principles discussed by Ruth
Sullivan in Sullivan on the Construction of Statutes (Markham, Ont:
LexisNexis Canada, 2014).
[16]
Member
Lustig closely reviewed the Land Management System under the Indian Act, the
2006 as well as the 2013 Indian Land Registration Manual [Manual], and
relevant Federal Court and Federal Court of Appeal jurisprudence. Finally, the
Member considered and interpreted section 5 of the CHRA, and sections
2(1)(a), 18(1), 20(1), 24, 28(1), 58(3), and 21 of the Indian Act. A copy of the relevant statutory provisions
of both pieces of legislation is attached as an appendix to these reasons.
[17]
Member
Lustig began his analysis by setting out three CHRT decisions which he
considered to be relevant to the complaints before him: Murphy v Canada
Revenue Agency, 2010 CHRT 9; Matson et al v Indian and Northern Affairs
Canada, 2013 CHRT 13; Andrews et al v Indian and Northern Affairs
Canada, 2013 CHRT 21. Murphy had been judicially reviewed by this
Court in Public Service Alliance of Canada v
Canada (Revenue Agency), 2011 FC 207, [2011] FCJ No
254 at para 33; aff’d 2012 FCA 7 [Murphy]. Matson and Andrews were
reviewed together in Canada (Canadian Human
Rights Commission) v Canada (Indian and Northern Affairs), 2015 FC 398, [2015] FCJ No 400; aff’d 2016 FCA 200 [Matson and Andrews].
[18]
In
all three cases, it was held that the complaints filed were directed against
the legislation rather than “discriminatory practices”. The Member found these three
cases to be directly applicable to the case at bar since the underlying
complaints were challenging the mandatory legislative scheme for being
discriminatory.
[19]
Citing
subsections 2(1) and 18(1) of the Indian Act, the Member stated that the
legislative scheme vests the subject lands and the title thereto in the Crown
for the use and benefit of the Indian band for which it has been set aside –
the Okanagan Indian Band in this case. Moreover, the Member held that a CP does
not confer ownership as it is not an instrument of conveyance: Tyendinaga
Mohawk Council v Brant, 2014 ONCA 565, [2014] OJ No 3605 at paras 80-84 [Tyendinaga].
The Member noted that the statutory requirement is reflected in section 10.1.12
of the 2013 Manual, which expressly provides that the possessor of the
interest, i.e. the “lessor”, must be the Crown in right of
Canada.
[20]
The
Member found that Mr. Beattie’s evidence and argument was not legally supported
and was largely based on his own personal views. The Member summarized Mr.
Beattie’s submissions as follows: (1) the Indian Act itself is currently
anachronistic, paternalistic and discriminatory towards Indians; (2) the Crown
is not really the owner of the subject lands but that Mr. Louie, and now his
estate, is the owner; (3) under section 21, the Registrar is mandated to
register all leases, including private leases; and (4) in refusing to register
the private leases between the registered Indians without the Crown’s
participation, the respondent contravened section 5 of the CHRA.
[21]
The Member ultimately decided that the refusal
to register the proposed private leases and assignment of lease did not violate
section 5 of the CHRA because the refusal was in accordance with the
requirements provided by the Indian Act.
IV.
ISSUES
[22]
As a preliminary question, I considered whether
Mr. Beattie had any standing as a party to seek judicial review of the CHRT
decision. As indicated above, he had been a complainant in the 2008 and 2010
CHRT proceedings. When the three 2012 complaints were filed, he was authorized
by the complainants to act as their designated representative, which is permissible
under the CHRT Rules.
[23]
Counsel for the respondent advised that the
question of Mr. Beattie’s standing was raised at the CHRT hearing but not
resolved. In his reasons the Member noted that Mr. Beattie considered himself a
complainant and he was listed as such in the style of cause.
[24]
In my view, it is doubtful that Mr. Beattie can
be properly described as a person “directly affected by
the matter in respect of which relief is sought” within the meaning of
those words in subsection 18.1 (1) of the Federal Courts Act. Mr.
Beattie’s interest, if any, in the lands in question is wholly derived from that
of his spouse, Ms. Beattie.
[25]
In the circumstances, I decided to proceed with
the hearing and to allow Mr. Beattie to make oral representations. In light of
the conclusion I have reached on the merits of the application, it is not
necessary to decide whether Mr. Beattie is or is not properly before the Court
as a party.
[26]
The issues argued on this application can be
framed as follows:
1. What is the applicable standard of review?
2. Did the CHRT err in finding
that the complaints were solely a challenge to or a collateral attack upon
legislation and nothing else and therefore beyond its jurisdiction?
3.
Were
aboriginal rights at issue before the CHRT?
[27]
As I consider that the second issue is
dispositive, I do not intend to address the third issue other than to observe
that no evidence was led to establish an aboriginal right in accordance with the
test set out by the Supreme Court in R v Van der Peet, [1996] 2 S.C.R. 507
at para 46. Mr. Beattie’s argument in this regard was not legally supported and
consisted of reading excerpts of section 35 of the Constitution Act, 1982 to
the Court and expressing his personal opinion as to their meaning.
V.
ANALYSIS
A.
Standard of review
[28]
The applicants made no submissions on the
standard of review. From Mr. Beattie’s oral argument, I would infer that he
considers that it should be correctness. He repeatedly urged the Court to find
that the CHRT erred in its interpretation and application of the law.
[29]
I agree with the respondent that deference will usually result where a tribunal is interpreting
its own statute or statutes closely connected to its function, with which it
will have a particular familiarity: Tervita Corp v Canada (Commissioner of
Competition), 2013 FCA 28, [2014] 2 FCR 352 at para 54; Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 54; Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61,
[2011] 3 S.C.R. 654 at para 30.
[30]
The presumption of
deference has been reinforced by the recent decision of the Supreme Court of
Canada in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd,
2016 SCC 47 at para 22. The root of the presumption
lies in the expertise of the decision maker. In this instance, the CHRT has
particular expertise in interpreting the words “services”,
in section 5, and “discriminatory practices”, in
subsection 40(1), of its home statute.
[31]
The Federal Court and the Federal Court of
Appeal have consistently applied a reasonableness standard in cases where the
CHRT dismissed complaints on the basis that they constituted a challenge to
legislation, namely, section 6 of the Indian Act. In Canadian Human
Rights Commission v Canada (Attorney General) 2016 FCA 200, [2016] FCJ No
818, on appeal from the Federal Court’s decision in Matson and Andrews,
the Federal Court of Appeal upheld its conclusions in Murphy, regarding
the appropriate standard of review in following an extensive review of the
principles and authorities. The Commission is seeking leave to appeal that
decision to the Supreme Court of Canada but it remains binding on this Court.
[32]
The Federal Court of Appeal reached a similar
decision in First Nations Child and Family Caring Society v Canada (Attorney
General), 2013 FCA 75, [2013] FCJ No 249 which also dealt with the
interpretation of section 5 of the CHRA. The Court noted that the range of
reasonableness may be very narrow as it is constrained by the text, context and
purpose of the statute. Nonetheless, the Court found that the Tribunal is
entitled to deference.
[33]
I am satisfied that the appropriate standard of
review in this instance is reasonableness. As such, the Court’s intervention
will not be warranted unless the decision does not fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law: Dunsmuir, above, at para 47.
B.
Did the CHRT err in finding that the complaints
were solely a challenge to or a collateral attack upon legislation and nothing
else and therefore beyond its jurisdiction?
[34]
The applicants submit that the respondent raised
this argument before the CHRT as a preliminary defence to challenge existing
aboriginal rights, the Tribunal’s jurisdiction, the wording of section 21 and
the purpose of the Reserve Land Registry. The applicants frame the respondent’s
position on this issue as an “intent or motive defense”.
They argue that the respondent improperly relies on this defence to contend
that the alleged discriminatory practice should be construed as enforcement of
a requirement of the legislative scheme.
[35]
The applicants argue that the respondent
registered an entirely private, i.e. without the involvement of the Crown,
aboriginal transaction involving the same reserve lands under section 21. This
was done under the 2006 version of the Manual. They claim that the CPs issued
at that time evidenced what were in fact private lands held under aboriginal
customary law. As such, in arriving at its conclusion, the applicants say that
the CHRT ignored the facts and traditional aboriginal knowledge of the
complainants with respect to the intergenerational transfer of his grandfather’s
lands to Mr. Louie.
[36]
The applicants assert that the respondent made
changes to the Manual in July 2013 with the specific intention of excluding
private aboriginal transactions from registration. This resulted in
discrimination against them and, therefore, the applicants argue, it is the
CHRT’s obligation to impose a remedy to cure the alleged discriminatory
practice.
[37]
The applicants further argue that the CHRT
failed to comply with the purpose set out in section 2 of the CHRA and
thereby invalidated the inquiry process set out under the CHRA.
[38]
Finally, the applicants submit that their
effort to rely on section 21 is not a challenge to any law, and thus, the
Federal Court and Federal Court of Appeal decisions referenced above, have no application to
this case.
[39]
The respondent submits that the evidence and
arguments before the CHRT were not directed at the conduct of ministerial officials,
the exercise of discretion, or at the implementation of departmental policies
and practices. Therefore, the complaints fell outside the scope of the CHRA.
The respondent further submits that the CHRT properly decided that although the
process of reviewing and registering documents may be a service, the
legislative criteria for doing so is not.
[40]
The respondent contends that section 21 of the Indian
Act is part of a broader legislative scheme that forms a system for land
management under the Indian Act. That system requires the Crown to be a
party to leases of the lands at issue for the Registrar to be able to register
the leases under section 21 where the Band Council has not assumed
responsibility for managing the lands. Further, the respondent submits, in
carrying out this function, the Registrar is acting pursuant to statutory
responsibilities and authority rather than exercising discretion. As a result, the
respondent contends, the CHRT reasonably concluded that the Registrar could not
register leases under section 21 that did not comply with the legislative
requirements set out, in part, by subsections 28(1) and 58(3) of the Indian
Act. Registering leases that do not comply with the legislative
requirements of section 21 would, the respondent submits, be contrary to the
public interest that underpins the scheme.
[41]
In response to the Court’s questions at the
hearing, the applicants acknowledged that their position is essentially that
the Registrar was required to register the submitted lease documents without
regard to any requirements imposed by the Minister or other provisions of the Indian
Act. In effect, under this conception of its purpose, the Registry serves
merely as a repository for any documentation regarding private possessory
interests in land, regardless of its validity under the Indian Act. This
is what Parliament intended by enacting section 21, the applicants argue, and only
Parliament could change it.
[42]
I am satisfied that the applicants’ position is
without merit and that the decision of the CHRT was reasonable. The CHRT was
entitled to rely on the Federal Court of Appeal’s decision in Murphy, as
well as this Court’s decision in Matson and Andrews, in its
analysis of whether the underlying complaints were
solely a challenge to or a collateral attack upon legislation and nothing else.
In doing so, the CHRT did not disregard the evidence or make an erroneous
finding of fact. The respondent presented uncontradicted evidence at the
hearing that the purpose of the statutory land management scheme is to improve
the economic situation of First Nations by, among other things, having a
credible registry system to assist in encouraging on-reserve development. It
was open to the CHRT to accept and rely on that evidence in preference to the private
ownership concept advanced by the applicants.
[43]
In Matson and Andrews, the
Commission argued that the eligibility provisions of
the Indian Act are discriminatory. However, applying those provisions is
an act of enforcing the law even though the statute provides a benefit. Justice
McVeigh concluded, at paragraph 59, that it was the law which denied access to
the benefit, not the government agency which administered the provisions. On
appeal, the Federal Court of Appeal agreed, at paragraph 97, that the CHRT had
reasonably concluded that the binding precedent in Murphy supported that
result. The appellants could not challenge the application of the legislation under
section 5 of the CHRA because the adoption of legislation is not a
service customarily available to the public.
[44]
In this application for judicial review, the
applicants are arguing that enforcement of the eligibility provisions for land
registration under section 21 of the Indian Act is discriminatory. In
reaching a conclusion on the preliminary objection raised by the respondent, the
CHRT was deciding an issue analogous to what was at issue in Murphy, as
well as in Matson and Andrews. I find the CHRT’s reliance on
those authorities to be reasonable.
[45]
The CHRT properly concluded that section 21 of
the Indian Act does constitute a “service”
under section 5 of the CHRA. However, it also properly found that
section 21 is part of a mandatory statutory scheme or formula which a
government organization applies without discretion. The Registrar could not,
therefore, register documents under section 21 that are rendered invalid by
other sections of the Indian Act, such as subsections 58(3) and 28(1).
If the Registrar did register invalid documents, he or she would be acting in
violation of the mandatory requirements of the legislation.
[46]
In my view, the CHRT did not commit an error by
considering the words of section 21 in the broader context of the land
management scheme provided within the Indian Act. In reaching this
conclusion, the CHRT properly relied on Sullivan on the Construction of
Statutes, above, at paragraph 13.12:
When analyzing the scheme of an Act, the
court tries to discover how the provisions or parts of the Act work together to
give effect to a plausible and coherent plan. It then considers how the provision
to be interpreted can be understood in terms of that plan. The court’s
reasoning is described by Greschuk J in Melnychuk v Heard:
The court must not only consider one
section but all sections of an Act including the relation of one section to the
other sections, the relation of a section to the general object intended to be
secured by the Act, the importance of the section, the whole scope of the Act
and the real intention of the enacting body.
[47]
The reasoning in Melnychuk v Heard (1963),
45 WWR 257 was recently endorsed by this Court in De Silva v Canada
(Citizenship and Immigration), 2014 FC 790, [2014] FCJ No 826 at para 42.
[48]
At the hearing, Sheila Craig’s testimony
provided an explanation for the role played by the Manual in the land
management scheme set out in the Indian Act. Specifically, she testified
that the Manual is a document which describes the procedures for preparing,
submitting and registering documents in the Indian Land Registry System [IRLS].
Notably, the key purposes of the ILRS is to fulfill the statutory requirements
of the Indian Act, safeguard registered interests, and provide timely
and reliable information to clientele. I see no reason to interfere with the
CHRT’s finding that her evidence was credible and uncontradicted.
[49]
As noted above, the applications for
registration with attached leases met all the registration requirements except
for two necessary criteria (i.e. failing to indicate the Crown as a party and
failing to obtain Ministerial approval) as provided by the Indian Act. To
determine whether these two criteria were in fact required under the Indian
Act, the CHRT had to assess section 21 within the broader land management
scheme set out in various provisions including, section 24, and subsections
28(1), 28(2) and 58(3) of the Indian Act.
[50]
Further, to determine whether naming the
Crown as a party was a requirement under the Indian Act, the CHRT
properly considered and interpreted subsections 2(1), 18(1) and 20(1) of that Act.
Those provisions suggest that the lands in the case at bar and the title
thereto are vested in the Crown for the use and benefit of the Okanagan Indian
Band. The applicants’ position that there is no evidence of the title of the
land in issue being vested in the Crown is without merit. The CP issued to Mr.
Louie did not confer ownership of the lands on Mr. Louie, as Mr. Beattie
readily acknowledged at the hearing. The CP is only evidence of the fact that
an Indian band member has been allotted possession of reserve land: Tyendinaga, above, at para 81.
[51]
Tyendinaga
concerned
the transfer of certain CPs against various parcels of land. At paragraph 83 of
that case, the Ontario Court of Appeal held that:
The band member
cannot be allotted title to the land itself because that is always with the
Crown. Thus, unless reserve land is surrendered to the Crown pursuant to the Indian
Act and is no longer reserve land, an Indian or band can only ever retain a
possessory right to use the land for his benefit.
[52]
The applicants’ contention that Mr. Louie (now
his estate), and not the Crown, was the owner of the subject lands through
customary aboriginal tradition is not supported by the legislation or the
jurisprudence.
[53]
The applicants argued that the 2013 changes to
the policy Manual were the sole cause of the Registrar’s refusal to register
their proposed leases under section 21. This argument is also not supported by
the evidence. The CHRT noted that the key grounds to reject an application
(i.e. not meeting the requirements set out in the policy Manual including,
naming the Crown as the lessor, and being provided Ministerial approval) were
present in both the former (2006) and current version of the Manual.
[54]
To conclude, in my view, the CHRT did not err in
determining the scope of its jurisdiction. It was detailed in its analysis and
properly found that the applicants’ complaints were solely a challenge to or a
collateral attack upon a mandatory legislative scheme and nothing else. Its
reasoning was transparent, justified and intelligible and its finding was
within the range of acceptable outcomes defensible on the facts and the law.
[55]
The application for judicial review is therefore
dismissed. As the respondent did not seek costs, none will be ordered.
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