Date:
20080206
Docket: A-414-06
Citation: 2008 FCA 46
CORAM: DÉCARY J.A.
SHARLOW J.A.
TRUDEL J.A.
BETWEEN:
CHIEF ROBERT SAM, COUNCILLOR NICK ALBANY,
COUNCILLOR NORMAN GEORGE,
COUNCILLOR FRANK E. GEORGE,
COUNCILLOR
JOHN R. RICE on their own behalf as
COUNCIL
OF THE SONGHEES INDIAN BAND and
on
behalf of the SONGHEES INDIAN BAND
Appellants
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT,
THE SUPERINTENDENT FOR THE SONGHEES
INDIAN BAND,
SYLVIA ANN JOSEPH, ALICE LARGE
and
ESTATE OF IRENE COOPER by her
Administrators HARVEY GEORGE,
CHARLOTTE THOMPSON AND WILLIAM GOSSE and
HARVEY GEORGE, CHARLOTTE
THOMPSON AND WILLIAM GOSSE
Respondents
Heard at Vancouver,
British Columbia, on February 6, 2008.
Judgment delivered from the Bench at Vancouver, British Columbia, on February 6, 2008.
REASONS FOR JUDGMENT OF THE COURT BY:
TRUDEL J.A.
Date:
20080206
Docket: A-414-06
Citation:
2008 FCA 46
CORAM: DÉCARY
J.A.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
CHIEF
ROBERT SAM, COUNCILLOR NICK ALBANY,
COUNCILLOR NORMAN GEORGE,
COUNCILLOR FRANK E. GEORGE,
COUNCILLOR
JOHN R. RICE on their own behalf as
COUNCIL
OF THE SONGHEES INDIAN BAND and
on
behalf of the SONGHEES INDIAN BAND
Appellants
and
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT,
THE SUPERINTENDENT FOR THE SONGHEES
INDIAN BAND,
SYLVIA ANN JOSEPH, ALICE LARGE
and
ESTATE OF IRENE COOPER by her
Administrators HARVEY GEORGE,
CHARLOTTE THOMPSON AND WILLIAM GOSSE and
HARVEY GEORGE, CHARLOTTE
THOMPSON AND WILLIAM GOSSE
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on February
6, 2008)
TRUDEL J.A.
[1]
This
is an appeal from a decision of Justice Tremblay-Lamer (cited as 2006 FC 1009),
who dismissed the appellants’ application for judicial review of a decision of
the Minister of Indian Affairs and Northern Development (the Minister) allowing
the sale of nine lots located on the Songhees Indian Reserve.
[2]
The
factual bases of the Minister’s decision may be summarized as follows:
- Certificates of
Possession (CP) for those reserve lots were held by Irene Cooper until her
death. In her will, she devised the CP lots to individuals who are not
members of the Songhees Indian Band (the Band) and who, as a consequence,
cannot reside on the Reserve.
- As a result,
pursuant to section 50(2) of the Indian Act, R.S.C. 1985, c. 1-5
(the Act), the Superintendent for the Band planned a sale of the CP lots,
the proceeds of which would go to the devisees. Once completed, the sale
would require the Minister’s approval.
- Between the sale
and the ministerial approval, letters were exchanged between the Minister
and the Band. The Band expressed its concerns over the alienation of land
to individuals, and suggested “that the Minister authorise the use of the
lands for general economic development of the [Band]” (AB, Vol. 2, Chief
Robert Sam’s affidavit, at paragraph 7).
- On June 15, 2004,
the Minister approved the transfer of rights to possession of reserve land
to the highest bidders.
[3]
Hence,
the application for judicial review and the decision under appeal.
[4]
The
application Judge dealt with four issues which raised questions about:
(a)
the
Minister’s duty to verify the validity of Ms. Cooper’s CPs;
(b)
the
Minister’s duty to obtain a Band Council allotment prior to his approval of the
transfer;
(c)
the
Minister’s fiduciary duty to the Band;
(d)
the
Minister’s duty of procedural fairness toward the Appellants.
[5]
These
issues are now in front of this Court with two additional ones brought forward
by the appellants who argue, firstly, that the application Judge
“misapprehended one of the essential arguments – that there was no evidence of
(a) an allotment; (b) possession; or (c) a certificate of possession
(appellants’ memorandum, at paragraph 54); and secondly that the Minister was
in breach of his duty of ordinary diligence. We will not address the latter,
since it was not before the Judge and it was not raised in the Memorandum of
Fact and Law.
[6]
The
former issue presumes that the Minister had a duty to verify the validity of
Ms. Cooper’s CPs. The appellants strongly disagree with the Judge who found
that “at the end of the day, what the Minister had before him were CPs. What he
did not have before him were any allegations that the CPs were invalid”. They
argue that this statement amounts to reverting the onus to prove or disprove
the validity of the CPs on the Band.
[7]
We
disagree. The Judge correctly stated that in view of the “flaws” in the
registration system, safeguard lay in “giving interested parties the
opportunity to make submissions in addition to checking the last entry in the
Register” (at paragraph 43 of the Reasons for Judgment).
[8]
The
Judge had some evidence that the land transaction staff had made a prior
examination (AB, Vol. 2, p. 476, cross-examination of S. Evans), and that the
Minister had not, in a timely fashion, received submissions or evidence from
the Band regarding the validity of the CPs or even raising minimal doubt about
it.
[9]
The
Judge correctly concluded that “there was not a scintilla of evidence before
the Minister which would have given him reason to look beyond the CPs or which
gave rise to a duty to do so (at paragraph 40 of the Reasons for Judgment).
[10]
We
are of the opinion that this appeal cannot succeed.
[11]
We
see no error in the Judge’s standard of review analysis. Applying the pragmatic
and functional approach, she concluded that the proper standard of review for
the legal questions raised in the application was correctness: a common ground
between the parties.
[12]
As
for the procedural fairness issue, she applied the teachings of Baker v. Canada (Minister of
Citizenship and Immigration) [1999] 25. C.R. 817, and further concluded
that “only minimal procedural protections were required” (at paragraph 74 of
the Reasons for Judgment).
[13]
Applying
those principles, the Judge then meticulously marshalled the evidence and the
parties’ submissions.
[14]
Having
considered the arguments of counsel for the appellants, we have not been
persuaded that the judgment of Justice Tremblay-Lamer was based upon any error
of law or any error in the application of the relevant legal principles.
[15]
We
agree with her judgment substantially for the reasons she gave. Accordingly,
the appeal will be dismissed with costs in favour of both respondents.
"Johanne
Trudel"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-414-06
STYLE OF CAUSE: Chief Robert Sam et al. v.
The Minister of IAND et al.
PLACE OF
HEARING: Vancouver, British
Columbia
DATE OF
HEARING: February
6, 2008
REASONS FOR
JUDGMENT BY: DÉCARY J.A.
SHARLOW
J.A.
TRUDEL
J.A.
DELIVERED
FROM THE BENCH BY: TRUDEL J.A.
DATED: February 6, 2008
APPEARANCES:
Mr. B. Rory B.
Morahan FOR THE
APPELLANTS
Mr. Joseph
Sebestyen FOR THE
RESPONDENT
Ms. Isabel Jackson (The
Minister of IAND)
Mr. Michael J.
Lomax FOR THE
RESPONDENT (Estate
of Irene Cooper)
SOLICITORS
OF RECORD:
|
Morahan and Company
Victoria, B.C.
|
FOR THE
APPELLANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
(The Minister
of IAND)
|
|
Milton, Johnson
Barristers and Solicitors
Victoria, B.C.
|
FOR THE
RESPONDENT
(Estate of
Irene Cooper)
|
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