Date: 19980812
Docket: T-2288-87
BETWEEN:
LEROY HILL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGEMENT
WETSTON J.
[1] This is an action for a declaration that the purported surrender of the Six Nations of the Grand River interest in certain land be declared null and void.
[2] In the 1870's certain land in which the Six Nations of the Grand River had an Indian Reserve interest were taken for railway purposes. No instrument of the Crown authorizing the taking had been found by 1985, and there had been no surrender of the land in question until that date.
[3] The Six Nations of the Grand River are a "band of Indians" as that term is defined in the Indian Act , and the Six Nations Grand River Territory was found by the Ontario court of Appeal to be an "Indian Reserve" as that term is defined in the Indian Act .
[4] Representatives of the Six Nations Band Council made a claim against Her Majesty concerning the taking of certain land for railway purposes, and Her Majesty accepted the claim for negotiation pursuant to the "specific claims policy" of the Government of Canada.
[5] Representatives of the Department of Indian Affairs and Northern Development of Canada and the Band Council negotiated a draft settlement of the claim.
[6] The draft settlement agreement included provision for a surrender of the land in question, and accordingly the matter was put to a referendum pursuant to Section 39 of the Indian Act. The question to be voted on was the approval of the draft settlement agreement, including the surrender of the land.
[7] On February 2, 1985, there was an attempt by the Band Council to secure a surrender through a Band General Meeting. No valid surrender resulted from that attempt.
[8] A briefing note to the minister dated February 25, 1985, recommended that a new surrender vote be conducted.
[9] On March 19, 1985, the Minister of Indian Affairs and Northern Development, David Crombie, wrote to Bruce Rawson, the Deputy Minister of Indian Affairs and Northern Development, stating:
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I am in agreement with your recommendation although I have not yet received a request from the Six Nations Council to order a second meeting. |
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I would like officials to be instructed that in the event that at the next First General Meeting, a majority of the electors of the Band do not vote, I will personally make the decision to call another meeting under 39 Sub Section (2). |
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[10] In correspondence to Chief Wellington Staats, dated May 22, 1985, the Minister of Indian Affairs and Northern Development, David Crombie, wrote:
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In view of the numerous difficulties that were encountered on the first vote, and also taking into consideration the fact that the proposed settlement was to correct earlier actions by government, I believe that a new surrender meeting should be called based on surrender documentation that is acceptable to both the band council and my Department. My officials are available to discuss the content of this documentation to ensure its acceptability and compliance with the provisions of the Indian Act. I understand, however, that the Band Council is reluctant to do so. Consequently, it may abandon the claim settlement which it negotiated with the Office of Native Claims. |
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I am sorry that we find ourselves in this unfortunate situation. The settlement is, I believe, very favourable for the Band. Canada, for its part of the settlement, requires a full and satisfactory surrender and release. My objective is to ensure that I fulfil my responsibility to the Band as a whole and that the implementation of the surrender and claim settlement is conducted correctly and that both the band and the Department is assured that this claim is finally settled. |
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[11] On June 10, 1980, John C. Munro, who was at the time the Minister of Indian Affairs and Northern Development, signed a document which stated:
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... I authorise the officers designated hereunder on pages 2 through 15 of this document by the mark X or N, including, in their absence, a person acting in the place of any of the said officers, to perform and exercise any of the powers, duties and functions that may be or are required to be exercised by me or are required to be performed or exercised by me under those sections shown hereunder of the Indian Act and Regulations thereunder or any other Act of the Parliament of Canada relating to Indian Affairs. |
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[12] On a subsequent page of the document, it is indicated that the powers of the Minister pursuant to Sections 39(1)(b)(ii) (to call a special meeting to consider a surrender), and 39(2) (to call a second meeting or referendum to consider a surrender) are delegated, under "Reserves & Trusts", to "Director General" and to "Director, Land". On a further subsequent page, it is indicated that the authority of the Minister pursuant to the Indian Referendum Regulations (except Section 32) is delegated to the Director General, Reserves and Trusts, the Director of Land, Reserves and Trusts, and Director, Membership and Statutory Requirements, Reserves and Trusts. There is no further explanation in the document concerning these titles.
[13] On September 30, 1985, Hubert J. Ryan, the Acting Director of Land in the Department of Indian Affairs, wrote to E.G. Morton, Director of Reserves and Trusts in the Ontario Region of the Department:
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The Minister of Indian Affairs and Northern Development considers it advisable, pursuant to section 3(1) of the Indian Referendum Regulations, to order a referendum to be held on the 2nd day of November 1985 to determine if a majority of the electors of the Six Nations of the Grand River Band of Indians assent to the surrender of those land described in a draft agreement known as the "Six Nations of the Grand River Indian Band Railway Land Claim Settlement Agreement". |
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The said Minister also designated Stephen Bomberry, Acting District Manager, Reserves and Trusts, Brantford District, as the officer of the Department to supervise the referendum for surrender. |
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[14] On October 28, 1985, Murray Inch, the negotiator for the Government of Canada in the railway land claim negotiations, wrote a memorandum which stated:
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I spoke to Six nations revote on November 2. There is no requirement according to Mr. Montour that I be present. He has discussed this with members of Band Council. Everything is set to go. |
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The documentation is also ready for the second vote recognizing that less than 30% of electors come out to vote. The Chief & Council are expected to sign the Agreement immediately following the second vote so the land purchases will close on time. |
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[15] In the referendum vote on November 2, 1985, a total of 278 people voted. 268 voted in favour of the proposed agreement and surrender, and 9 voted against it. There was one spoiled ballot.
[16] The voter"s list used for the purpose of the vote was a list of the members of the Six Nations of the Grand River who were over eighteen years of age. According to the statutory declaration by Stephen Bomberry, there were 4,742 eligible voters with respect to the November 2, 1985 referendum.
[17] On November 1, 1985, the Band Council passed a Resolution which stated:
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Further to the Referendum for Surrender held on the 2nd day of November 1985, we hereby request the minister of Indian Affairs and Northern Development to order a Second Referendum in accordance with Section 39(2) of the Indian Act, R.S.C. 1970, Chapter I-6 and the Indian Referendum Regulations made thereunder to determine if the majority of the electors of the Six Nations of the Grand River Indian Band Railway land claim Settlement Agreement, and further, assent to a surrender of certain land to Her Majesty the Queen in right of Canada, which is necessary to satisfy in part, the terms and conditions of the said agreement. |
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... The Second Referendum is to take place between 9:00 o"clock in the forenoon and 6:00 o"clock in the afternoon on the 7th day of December, 1985. |
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[18] On November 5, 1985, a communication was sent by Hubert J. Ryan to Edward G. Morton. It stated:
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The Minister of Indian Affairs and Northern Development considers it advisable, pursuant to Section 3(1) of the Indian referendum Regulations, and Section 39(2) of the Indian Act, to order a second referendum to be held on the 7th day of December 1985 to determine of a majority of the electors of the Six Nations of the Grand River Band of Indians assent to the surrender of those land described in a draft agreement known as the "Six Nations of the Grand River Indian Band Railway Land Claim Settlement Agreement". |
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The said Minister is also pleased hereby: |
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a) to designate Stephen Bomberry, Acting District Manager, Reserves and Trusts, Brantford District, as the officer in whose presence the surrender is to be held; and |
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b) to designate the said Stephen Bomberry, as the electoral officer acting under the direction of the said Minister for the purpose of the said surrender. |
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[19] In the second vote, held on December 7, 1985, a total of 297 people voted. 280 voted in favour of the agreement and the surrender. 14 voted against the agreement and surrender, and three ballots were rejected. The same voters" list was used for the second referendum as had been used for the first referendum. The recorded number of electors was 4,852.
[20] The Minister did not call the two referenda. The referenda were called by Hubert Ryan, the Acting Director of Land.
[21] The Chief of the Band Council, Wellington Staats, and Stephen Bomberry, the officer appointed on November 5, 1985, swore affidavits concerning the two votes. The affidavits were dated December 7, 1985. In each affidavit the deponent stated that he was "present when a majority of the electors of the Six Nations of the Grand River Band of Indians assented to the surrender" at the second referendum. An appendix to the affidavits, signed by both men, gave the number of people who had voted, the number who had voted in favour, and the number who had voted against the question to be voted on. In their affidavits, the two men also swore that "the taking of the said vote was called by the Minister of Indian Affairs and Northern Development by a notice given at least thirty days before the taking of the said vote".
[22] In their affidavits, Wellington Staats and Stephen Bomberry swore that "the terms of the said surrender were interpreted to the said electors by an interpreter qualified to interpret from the English language to the language of the said Indians".
[23] The Land Claim Settlement Agreement was signed by the Band Council on December 7, 1985.
[24] On December 12, 1985, Edward G. Morton, The Director, Reserves and Trusts, of the Ontario Region of the Department of Indian Affairs and Northern Development, wrote to Frederick J. Singleton, the Director of the Land Directorate of the Department of Indian Affairs and Northern Development in Ottawa, enclosing the referendum materials and stating "as the enclosures appear to be in order, it is recommended that the surrender be processed further with the view of receiving acceptance of same by the Governor-in-Council".
[25] On December 10, 1985, Donald G. Goodwin, the Assistant Deputy Minister of Indian Affairs, wrote to the Deputy Minister of Indian Affairs and Northern Development, attaching copies of the land Claim Settlement Agreement for the signature of the minister. His memorandum stated:
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Attached are two copies of the Settlement Agreement to be forwarded to the Minister for signature. The Agreement was signed by the Band Council on December 7, 1985, following the Band"s vote ratifying the Settlement. Treasury Board approved the funds on November 28, 1985. |
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It is critical that the Agreement be signed by the Minister as soon as possible, for the Settlement is conditional upon the purchase of certain land which must be completed by December 30, 1985. |
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[26] On December 12, 1985, on behalf of the traditional Council of Chiefs of the Iroquois Confederacy, Paul Williams, their legal counsel, wrote to the Minister of Indian Affairs and Northern Development, objecting to the surrender on the grounds that only a minority of the electors had voted.
[27] On December 17, 1985, Paulette Francoeur, the Head of the Correspondence Unit of the Office of the Minister of Indian Affairs and Northern Development, wrote to Paul Williams, confirming receipt of the December 12, 1985, letter and stating that the correspondence "will be brought to the Minister"s personal attention, and you will be receiving a reply shortly".
[28] On December 24, 1985, David Crombie, the Minister of Indian Affairs and Northern Development signed the Land Claim Settlement Agreement. Paulette Francoeur was the witness to the signature of David Crombie.
[29] On January 8, 1986, a delegation from the traditional Council of Chiefs of the Iroquois Confederacy attended at Government House in Ottawa and presented to the staff of the Governor General documents signed by more than 300 people. The documents stated that these people had the right to vote in the referenda, and had not voted, and that they objected to the surrender of the land.
[30] On March 7, 1986, Hubert J. Ryan wrote to Edward G. Morton, enclosing a "briefing note which addresses the concerns that were raised by Paul Williams". Ryan"s letter stated:
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You will recall that the settlement agreement provides, inter alia, that the recent surrender cannot be processed for submission to Governor General until the Lock, Papple and C.N.R. properties have been acquired and set aside as reserve. I think that it is imperative that we move as quickly as possible to finalize the acquisition of the C.N.R. property (the Lock and Papple properties having already been acquired), especially in view of the concerns that have been raised by Mr. Williams. I therefore look forward to receiving some indication from you as to when we may expect the C.N.R. property acquisition to be completed. |
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[31] The "briefing note" dated February 25, 1986 and bearing the stamp of the Director of Land, Frederick Singleton, provided the background facts concerning the surrender votes, and stated:
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The traditional Chiefs do not agree that the Indian Act, including the surrender provisions, should apply to their land, believing instead that they have a right to autonomous local government. Notwithstanding the wide popular Band member support for the traditional Chiefs, Canada has, historically, consistently maintained that the Indian Act applies without exception to the Grand River Iroquois. |
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A preliminary review of the new surrender documentation has not revealed the existence of any irregularities which may invalidate the surrender. The fact that some 300 Band members signed affidavits attesting to the fact that deponents did not vote at either of the last two surrender meetings, and further stating that they were not in favour of the surrender would, at first glance, appear to be a compelling argument against acceptance of the surrender. It should be recognized, however, that ample opportunity was provided for dissenters to register their disapproval. The fact that they did not dissent in the accepted legally appropriate manner should not now be a legitimate reason for disallowing the surrender. |
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The traditional Chiefs have not petitioned Her Excellency the Governor General in Council not to accept the surrender. The appropriate submission to the Governor in Council will, subject to the approval of the Minister, be made within the next three to four weeks. |
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The Minister should recommend acceptance of the surrender by the Governor General in Council notwithstanding the representations of the traditional Chiefs. |
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[32] On March 14, 1986, the Minister responded to the letter of Paul Williams dated December 12, 1985, stating that since the Confederacy Chiefs had made their representations to the Governor General, there was now no obstacle to him making the appropriate recommendations to the Governor General in Council.
[33] The surrender was accepted by the Governor General in Council on April 2, 1987 by Order in Council No. PC 1987-687.
[34] The settlement agreement was implemented and part of the cash compensation provided for in the agreement was used by buy land to be added to the Six Nations Reserve.
[35] The cash compensation provided for in the settlement agreement in respect of the land taken was $610,000, of which $28,600 was in repayment of a loan taken out by the Band Council to cover the costs of negotiation of the claim. The land taken was 80.616 acres.
ISSUES
[36] There are two issues in this action:
| 1. whether, by operation of subsection 39(3) of the Indian Act, R.S.C. 1985, c. I-6, a majority of the electors of the Band assented to the purposed land surrender; and |
| 2. if the Acting Director of Land and Trusts, Mr. H. Ryan, validly called the referenda pursuant to a standing delegation of authority conferred by the Minister pursuant to subsection 3(2) of the Indian Act. |
SUBSECTION 39(3)
[37] The Defendant argues that it has already been determined that a surrender of Six Nations land may be made through the deemed assent of a majority of the Band"s electors, pursuant to the predecessor provision of s. 39(3): Logan v. Styres (1959), 20 D.L.R. (2d) 416 (Ont. H.J.C.).
[38] The Defendant further submits that the court's decision in Logan, supra, is in complete accordance with the approach to land surrender under the Indian Act recently considered by the Supreme Court of Canada in: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344.
[39] It is submitted that the Band members knew that a land settlement had been negotiated and that a surrender of land was being contemplated; that the details and the consequences of the surrender had been fully explained to Band members; and that Band members knew what they were getting in exchange for the surrender. The Defendant also submits that the terms of the surrender instrument are evidence that the Band intended to surrender the land in question. As regards the low turn-out for both referenda, the Defendant submits that, even if s. 39(3) did not operate to deem a result, there is insufficient evidence upon which to determine what the intentions of the majority of electors actually were with regard to the surrender.
[40] The Defendant submits that the Supreme Court's decision in: Blueberry River, supra, stands for the proposition that, unless some statutory bar exists, the understanding and intention of Band members should be given legal effect in consideration of a particular land surrender proposal. Further, it is acknowledged that, in determining the legal effects of dealings between the aboriginal people and the Crown with respect to reserve land, the Supreme Court has indicated that substantial compliance with the technical surrender requirements of the Indian Act is sufficient in order to honour, respect and give effect to a Band's intention to surrender its rights in land.
[41] Accordingly, it is argued that any minor breaches of the Act which may have occurred in this case are not sufficient to affect the validity of the deemed assent of the majority of the electors of the Band.
[42] The plaintiff argues that for a number of reasons, I should find that there was in fact no deemed assent of a majority of the Band's electors. They advance the following grounds:
(a) The actual intention of a majority of electors of the Band was in fact not to assent to the proposed surrender;
(b) There are drafting flaws amounting to an ambiguity in subsection 39(3) of the Act;
(c) There were technical flaws in the holding of the referenda. The plaintiff relies on BlueBerry River, supra, to support his argument that the true intention of the Band was to not surrender the land.
[43] The Plaintiffs argue that the interpretation of treaties and statutes dealing with aboriginal land must support the integrity of the Crown. That is, no appearance of sharp dealing should be sanctioned through the interpretation adopted; ambiguities should be resolved in favour of aboriginals; and any restrictions on the rights of aboriginals should be narrowly construed: R. v. Badger, [1996] 1 S.C.R. 771 at 794; R. v. Taylor and Williams. [1981] 34 O.R. (2d) 360. Further, it is argued that statutes relating to aboriginals should be liberally construed, and uncertainties resolved in favour of the aboriginals: Badger, supra at 793-794; R. v. Sioui, [1990] 1 S.C.R. 1025 at 1035.
[44] Moreover, it is submitted that, in dealing with any surrender of Indian reserve land, the Crown has a general fiduciary obligation, and that in satisfying this obligation, the Crown must take care to impair the rights of an affected band as little as possible: [1984] 2 S.C.R. 335">Guerrin v. The Queen, [1984] 2 S.C.R. 335; R. v. Sparrow, [1990] 1 S.C.R. 1075; Semiahmoo Indian Band v. Canada, [1998] 1 C.N.L.R. 250 (F.C.A.). It is further argued that the Crown must respect the wishes of the Band in giving effect to any surrender of Indian reserve land: Blueberry River, supra, at p. 31.
[45] Accordingly, the plaintiffs argue that, because there is insufficient evidence that the Band intended to surrender the land in question, and the Crown is under a fiduciary obligation to respect the Band's wishes, an ambiguity in the wording of s. 39(3), or any technical errors in application of s. 39(3) (or the Indian Referenda Regulations), should be construed in favour of the Band.
[46] Moreover, the Plaintiffs submit that, as s. 39(3) contains an apparent drafting error (i.e. the first line does not contain the words "or referendum"), it should be construed as failing to deem a result in cases where referenda, rather than meetings, are held to gain the assent of the majority of the electors of the Band for the proposed surrender. Similarly, the Plaintiffs argue that the minor procedural errors which occurred in the holding of the referenda in this case (e.g. failure to have an interpreter present, or failure to provide sufficient notice for the calling of the second referendum) may be found, in light of the majority of the Band's true intention not to surrender the land and the Crown's fiduciary obligation to uphold the Band's true intention, as invalidating the deemed surrender: Blueberry River , supra.
[47] The Plaintiffs have also argued that the Minister and his officials acted with great haste to facilitate the process leading towards the deeming of the assent of the majority of the electors of the Band. In doing so, it is submitted that the Crown had no intention of ascertaining the actual intent of the Band members, preferring instead to rush the referenda process through, knowing that for reasons of culture and tradition, the vast majority of the Band would not vote. It is submitted that this conduct tainted the surrender process, and did not honour the Crown's obligation to ensure that the true intention of the Band towards the surrender was respected: Blueberry River, supra.
[48] In my opinion there is insufficient evidence upon which to conclude that the Minister or his officials acted in such a manner as to taint the surrender process. While it might have been beneficial for the Minister to have attempted to gain the Band's assent through a series of meetings designed to achieve consensus, rather than through referenda, there is no evidence that the Minister or his officials acted with improper motives, and thereby tainted the process through which the surrender process was undertaken. Rather, it appears that the Minister and his officials were responding with haste as a result of the agenda put in place by the Band Council for the purchase of the new land since the Band Council was concerned that it might lose the options on the new Reserve land.
[49] Section 39 provides, in part:
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39. (1) An absolute surrender or a designation is void unless |
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(a) it is made to Her Majesty; |
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(b) it is assented to by a majority of the electors of the band |
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(i) at a general meeting of the band called by the council of the band, |
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(ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender or designation, or |
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(iii) by a referendum as provided in the regulations; and |
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(c) it is accepted by the Governor in Council. |
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(2) Where a majority of the electors of a band did not vote at a meeting or referendum called pursuant to subsection (1), the Minister may, if the proposed absolute surrender or designation was assented to by a majority of the electors who did vote, call another meeting by giving thirty days notice thereof or another referendum as provided in the regulations. |
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(3) Where a meeting is called pursuant to subsection (2) and the proposed absolute surrender or designation is assented to at the meeting or referendum by a majority of the electors voting, the surrender or designation shall be deemed, for the purposes of this section, to have been assented to by a majority of the electors of the band. |
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[50] The plaintiff submits that the deemed majority clause only applies to meetings and does not apply to a referendum. It is submitted that there is an ambiguity in s. 39(3) of the Act and, therefore, the Minister could not have been in a position to make a recommendation to Cabinet. It is argued that there are no regulations governing meetings and that s. 39 does not require that there be a vote at a meeting. While there are the Indian Referendum Regulations, C.R.C. 1978, ch. 957, the second vote took place at a referendum and not a meeting and, accordingly, there could not have been a deemed majority.
[51] The defendant submits that there are five subsections to s. 3 and that while the particular subsection on general meetings does not say anything about a vote, all of the other subsections do. Moreover, it is argued that the proposed absolute surrender or designation that is assented to by the Band in accordance with s. 39 does not say anything about a vote. It only describes an assent but throughout s. 39, it presumes a vote throughout the section in order to effect a valid surrender.
[52] While Mr. Williams makes an interesting argument, I am not satisfied that s. 39(3) should be construed in the manner proposed by him. While it would have been preferable to have included the word "referendum" in 39(3), I do not agree that its absence creates an ambiguity as argued by the plaintiff. Section 39(3) must be interpreted within the immediate context of the words "in the legislation" as comprised of the provision in which the words appear and any adjacent and closely related provisions; Dreidger on the Construction of Statutes , 3rd ed., p. 194. While the proper interpretative approach to be taken to the legislation is to firstly consider what Parliament actually said, it is also necessary to consider the words used by Parliament in their clear and grammatical meaning insofar as those words allow that to be done towards the achievement of the intention and purposes of the legislation itself. I find no inconsistency between the words used and the purported purpose of the legislation when s. 39(3) is considered in the context of s. 39 in its entirety. In Dreidger, supra, at 131, it is stated that:
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An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is its compliance with the legislative text; (b) its efficacy, that is its promotion of the legislative purpose; and (c) its acceptability, that is the outcome is reasonable and just. |
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[53] In my opinion, the interpretation advanced by the plaintiff is neither plausible, efficacious or acceptable as described in the above quotation from Dreidger, supra.
[54] Further, I find that the cases cited in support of the Plaintiffs" approach to the interpretation of s. 39(3), i.e. that the integrity of the Crown must be maintained, that ambiguities will be resolved in favour of aboriginals, and that restrictions on aboriginal rights will be narrowly construed, while important principles, are not of assistance in this case. Unlike the case at bar, Badger , supra, and Taylor and Williams, supra, concern the interpretation of statutory provisions in relation to treaty provisions concerning aboriginal land.
[55] Accordingly, with respect to issue No. 1, I see no reason that would make it inappropriate to give effect to the Band's intention. Parliament has legislated the manner in which the intention of the Band is to be determined. There is no constitutional challenge herein. I find no facts or statutory flaws that would result in my declaring the surrender null and void.
Delegation
[56] The Plaintiffs also argue that the deemed surrender is invalid because the person who actually called the referenda, Mr. H. Ryan, Acting Director of Land, did not have authority under the Indian Act to do so. In other words, could the discretion granted to the Minister under s. 39 be delegated to and exercised by the Director or Acting Director of Lands? The Plaintiffs say that s. 3(2) of the Indian Act only permits the Minister to delegate any authority provided to him under the Act, unless otherwise specified, to the Deputy Minister or in this case to an Assistant Deputy Minister. Therefore, it is argued that the Minister's purported delegation of the authority to call a referendum to the Director of Land, by memorandum dated 10 June 1980, is ultra vires his authority to delegate under s. 3(2) of the Indian Act and s. 39 of the Act.
[57] Alternatively, the Plaintiffs argue that the Minister's letter of 19 March 1985 constitutes an explicit revocation of the Minister's delegation of the authority to call a referendum. In his letter, the Minister wrote:
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However, I would like officials to be instructed that in the event at the next First General Meeting, a majority of electors of the Band do not vote, I will personally make the decision to call another meeting under 39 Sub section (2). |
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[58] The Plaintiffs argue that the clear intent of this letter was to ensure that a second vote would be called only by the Minister himself. In my opinion, however, this letter does not clearly indicate that the Minister intended to revoke his delegation of powers. Rather, it indicates his intention to call a second meeting himself. Obviously, in delegating the general authority to call a meeting or referendum, the Minister did not lose the power to exercise the authority himself. The fact that the Minister did not do this personally does not mean that the authority had been revoked in the manner submitted by the plaintiff.
[59] The Defendant submits that the Minister cannot personally exercise every discretionary authority provided to him under the Indian Act. Rather, it should be presumed that such acts will be performed by responsible officials in his or her department: [1977] 1 S.C.R. 238">R. v. Harrison, [1977] 1 S.C.R. 238 at 245; Comeau"s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at 22.
[60] Basically, the defendant relies on Comeau"s Sea Foods Ltd., supra,at page 32 as follows:
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The appellant argued that the Minister under s. 7 had the power either to authorize the issuance of a licence or to actually issue the licence and that if the Minister chose to authorize the issuance of a licence, he retained no continuing role in respect of an authorized licence. I disagree. |
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If Parliament chose to confer on the Minister twofold powers of issuance and authorization to issue, then it must have intended that the two powers be distinct. However, the effect of the distinction is clearer if viewed in an historical perspective. |
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The express delegation or devolution of powers to departmental officials found in s. 7 may appear unnecessary today. Where power is entrusted to a Minister of the Crown, the acts will generally be performed not by the Minister but by delegation to responsible officials in his department: Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.); [1977] 1 S.C.R. 238">R. v. Harrison, [1977] 1 S.C.R. 238, at pp. 245-46. At the time of the initial enactment of s. 7, the prima facie presumption of statutory construction which grew up around the Latin maxim delegatus non potest delegare that "[a] discretion conferred by statute is ... intended to be exercised by the authority on which the statute has conferred it and by no other authority" may have operated more strongly. Express delegation was generally thought necessary. See John Willis, "Delegatus non potest delegare" (1943), 21 Can. Bar Rev. 257, at p. 259 and generally for a review of the earlier authorities. |
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[61] However, it is interesting to note that Justice Major also noted at page 23:
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Clearly, the purpose of s. 7 is the issuance of licences. In my view, nothing more is meant by the express devolution of authority to the Minister"s officials than a method for issuing licences by the Minister through delegates. The section is not directed towards the authorization of licences; that is not the object or the finality of the section. Rather, it is directed to the issuance of licences which, once issued, require special provisions to abrogate them. Whether the Minister decides as an initial step to authorize the issuance of a licence, there is no finality to this authorization for any of the parties concerned until such time as the licence is finally issued. It is in light of the purpose of the section that we must consider whether the Minister could revoke the authorization while it subsisted. |
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[62] Moreover, the Defendant argues that the Minister"s 1980 general delegation of authority has been found by this Court to be valid and explicit, as an exercise of the authority granted to the Minister under s. 3(2): Badger v. Canada, [1990] 1 F.C. 191 at pp. 196-7 (TD):
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The power of the Minister to delegate to the Deputy Minister in subsection 3(2) is unlimited in scope, including any of the "duties, powers and functions" that the Minister may exercise under this Act. A certified copy of the Instrument of Delegation of Authority dated June 10, 1980 and in force at the time of the 1982 Order, issued by the then Minister of Indian Affairs and Northern Development, authorized the Deputy Minister among others: |
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... to perform and exercise any of the powers, duties and functions that may be or are required to be performed or exercised by me under the Indian Act ... |
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It is difficult to imagine a more sweeping authorization to delegate than is found in subsection 3(2) of the Indian Act nor a more sweeping exercise of that authority to delegate than that set out in the Instrument of Delegation. While I accept the argument of counsel for the plaintiff that in certain circumstances a power to delegate is not to be implied, there is no need to imply such power here as it is expressly granted in very broad terms, and has been exercised in equally express and broad terms. In the circumstances it is not necessary to seek a further implied authority such as in paragraph 24(2)(c) of the Interpretation Act and its predecessor as relied on by the defendant. |
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Accordingly, the Defendant argues that the Acting Director of Land possessed the necessary authority to call the referenda, and that the deemed assent to the surrender was therefore valid.
[63] Subsection 3(2) provides:
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The Minister may authorize the Deputy Minister of Indian Affairs and Northern Development or the chief officer in charge of the branch of the Department relating to Indian affairs to perform and exercise any of the duties, powers and functions that may be or are required to be performed or exercised by the Minister under this Act or any other Act of Parliament relating to Indian affairs. |
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[64] Having regard to the plain meaning of s. 3(2), I cannot accept the Defendant"s arguments. Firstly, Mr. Justice Strayer"s decision on the validity of the Minister"s 1980 delegation instrument was made in review of a delegation of authority from the Minister to the Deputy Minister, which is explicitly contemplated under s. 3(2) of the Indian Act . In this case, the purported delegation was made to the Director of Land, a position not explicitly referred to in s. 3(2). While an explicit delegation instrument exists, the 1980 general delegation of authority, s. 3(2) does not contain an explicit authority to delegate to the official who exercised the authority. Therefore, is an implicit power to delegate contemplated?
[65] In [1978] 2 S.C.R. 375">Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375 at 382, an almost identical provision of the Immigration Act, R.S.C. 1970, c. I-2, s. 67, was interpreted to deny the Minister the right to delegate certain powers to persons not mentioned therein. It would appear that if the statute expressly confers certain powers on specified officials, but reserved certain important matters to the Minister or the named officials, the Minister may have no implied power to delegate these powers to subordinates; Blake, S., Administrative Law in Canada, 2nd ed., page 129.
[66] In [1978] 2 S.C.R. 375">Ramawad, supra at pp. 381-2, Pratte J., on behalf of the Supreme Court of Canada, stated as follows:
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In [1977] 1 S.C.R. 238">R. v. Harrison1 my brother Dickson, speaking for the Court said, at p. 245, that "a power to delegate is often implicit in a scheme empowering a Minister to act". Whether such power exists however or, in other words, whether it may be presumed that the act will be performed not by the Minister but by responsible officers in his Department will depend on the intent of Parliament as it may be derived from, amongst other things, the language used in the statute as well as the subject matter of the discretion entrusted to the Minister. |
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In the Immigration Act, Parliament has recognized the existence of different levels of authority, namely, the Governor in Council, the Minister, the Director, the Immigration Officer in charge, the Special Inquiry Officer and the Immigration Officer. The authority granted by Parliament to each of such levels is clearly specified in the Act. In some cases, the Act allows for a sharing of authority as between some of these levels. For instance, under s. 12, a peace officer is obligated to carry out any warrant issued under the Act for the arrest, detention or deportation of any person if "so directed by the Minister, Director, Special Inquiry Officer or an Immigration Officer". Also, s. 36(2) authorizes "the Minister, Director, a Special Inquiry Officer or an Immigration Officer" to give certain instructions with respect to the deportation of a person against whom a deportation order has been made. |
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Similarly, the regulations issued under the Act make a clear distinction between the authority conferred on the Minister on the one hand and on his officials on the other hand. |
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Indeed, in the Act and in the Regulations, the most important functions have been reserved for the Minister"s discretion while authority in other areas have been delegated directly to specified officials. |
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The general framework of the Act and of the Regulations is clear evidence of the intent of Parliament and of the Governor in Council that the discretionary power entrusted to the Minister be exercised by him rather than by his officials acting under the authority of an implied delegation, subject of course to any statutory provision to the contrary. To put it differently, the legislation here in question, because of the way it is framed and also possibly because of its subject matter, makes it impossible to say, as was the situation in [1977] 1 S.C.R. 238">Harrison, that the power of the Minister to delegate is implicit; quite the contrary. |
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I am reinforced in my opinion on this point by s. 67 of the Act which reads as follows: |
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The Minister may authorize the Deputy Minister or the Director to perform and exercise any of the duties, powers and functions that may be or are required to be performed or exercised by the Minister under this Act or the regulations and any such duty, power or function performed or exercised by the Deputy Minister or the Director under the authority of the Minister shall be deemed to have been performed or exercised by the Minister. |
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The effect of this section is, by necessary implication, to deny the Minister the right to delegate powers vested in him to persons not mentioned therein. |
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I therefore come to the conclusion that the discretion entrusted to the Minister under para. 3G(d) of the Regulations must be exercised by him or, if properly authorized to do so under s. 67, by one of the persons therein mentioned which do not include the Special Inquiry Officer who issued the deportation order here in question. |
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It follows that the decision made by the Special Inquiry Officer in this case to the effect that "there are no special circumstances in existence at the present time in order to apply para. 3G(d ) of the Immigration Regulations as requested by counsel" is not and cannot be considered as a decision of the Minister; it is therefore invalid. |
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But is the deportation order vitiated by the invalidity of the decision of the Special Inquiry Officer under para. 3G(d) of the Regulations? I think so. [own emphasis] |
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Under para. 3G(d), the appellant was entitled to have the Minister rule as to the "existence of special circumstances"; this was a substantive right of the appellant which flowed to him directly from the Regulations and which the Special Inquiry Officer had no authority to abrogate whether directly or indirectly. |
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[67] The defendant argues that unlike [1978] 2 S.C.R. 375">Ramawad, supra, there was no explicit delegation of authority, that is the 1980 delegation instrument of the Minister, and therefore the Court had to determine if the delegation of authority was implicit. In this regard, the defendant argues that one must look at the language of the section providing for the delegation as well as the subject matter of the discretion. The defendant contends that the power to call a second vote pursuant to the Indian Referendum Regulations was not a substantive right for two reasons. The first reason is that a valid surrender can be effected without the Minister even calling a meeting, that is by a general meeting called by the Band Council. In this case, this procedure failed. Secondly, it is submitted that the authority of the Minister to call for a second vote is not a substantive right but a procedural requirement that Parliament considered important from the point of view of determining what the intention of the Band was. In other words, substantial compliance was obtained with respect to the technical surrender requirements of the Indian Act; Blueberry River, supra, pp. 362 and 373. In essence, it is contented, therefore, that the delegation was valid and, if not, the surrender should not be defeated for non-mandatory technical reasons.
[68] The plaintiff argues that given the framework of the Indian Act, it is apparent that Parliament intended to address the issue of delegation of responsibilities through a series of explicit provisions, including s. 3(2), rather than through the existence of any implicit delegation authority. The language of s. 3(2) is clear with respect to whom the Minister may delegate his statutory responsibilities. The Indian Act also contains numerous other provisions (ss. 7-16, 34, 53, 56, 63, 92) which provide for delegation of specific responsibilities different from the general authorization provided for under s. 3(2), or authorise a different member of the Department to undertake or delegate a particular responsibility.
[69] I am satisfied that the language of s. 3(2) and s. 39 indicates an intention that the Minister or the named officials therein, upon authorization, must act personally when he or she exercises the authority under s. 39(2). This conclusion follows from [1978] 2 S.C.R. 375">Ramawad, supra. The language, object and scope of the administrative scheme cannot, in this case, be considered to displace the general rule of construction of law that a person endowed with a discretionary authority should exercise it personally; [1977] 1 S.C.R. 238">Harrison, supra.
[70] I have considered Comeau's Sea Foods Ltd., supra, which of course is a more recent consideration of the principles of delegation to departmental officials. Comeau's Sea Foods Ltd., supra, did not consider [1978] 2 S.C.R. 375">Ramawad, supra. Given the facts and issues in Comeau's Sea Foods Ltd., supra, I do not believe this case stands for the proposition that all acts of the Minister may, by implication, be delegated to responsible departmental officials.
[71] While I have found that the delegation of authority in this case is invalid, does that necessarily mean that the surrender of the land is void by reason of the invalidity of the delegation of authority to the Acting Director of Land? I do not believe so. In [1978] 2 S.C.R. 375">Ramawad, supra, it was concluded that a substantive right of the appellant which floated to him directly was abrogated. In that case, when the deportation order had been issued, it was no longer possible for the Minister to prevent the applicant from being deported even if he had concluded that, because of the existence of special circumstances, the applicant should have had the benefit of the waiver of a particular paragraph of the Regulations.
[72] In my opinion, this is not the case herein. While the Acting Director of Land called the referendum, there is little doubt on the evidence before me that the Minister, as well as the Deputy Minister, were actively involved throughout this matter. While this is not determinative, it is clear that the Band Council wanted the surrender of the land to take place and was extremely dissatisfied that the Minister did not consider the February 2 meeting to have been valid. Indeed, the Band Council threatened legal action by way of a writ of mandamus to force the Minister to recognize the validity of that meeting. The Band council expressed concern that the deal might slip away if that meeting was not recognized.
[73] The Minister declined to call a second meeting due to the existence of inaccuracies and irregularities in the surrender procedures and documentation that had accompanied the first meeting. Accordingly, the Minister decided that in view of the numerous difficulties that were encountered on the first vote and also taking into consideration the fact that the proposed settlement was to correct earlier actions by the government, he believed that a new surrender meeting should be called based on surrender documentation that was acceptable to both the Band council and the department. Later, the Band and the department agreed on the documentation for a new surrender vote which was held on November 2, 1985 in accordance with the referendum regulations. Indeed, the Band Council on November 1, 1985 passed a resolution requesting the Minister to call a second referendum. As indicated previously, in my opinion there was a successful surrender made in accordance with the law and subject only to acceptance by the Governor in Council.
[74] In Blueberry River, supra at p. 358-9, 360, 362, the Supreme Court of Canada indicated that one should adopt an intention-based approach to the validity of the process for surrender of land under the Indian Act. In that case, it was determined that the sui generis nature of aboriginal title requires courts to go beyond the usual restrictions imposed by common law, or non-compliance with certain requirements in the Indian Act concerning the surrender process, in order to give effect to the true purpose of the dealings.
[75] In conclusion, while the Minister did not call the first or second referendum, given the intention and understanding of the Band, determined in accordance with the law, the calling of the surrender vote was a requirement which, in my opinion, is not fatal. To view this otherwise would not give appropriate consideration to the Blueberry River, supra, decision which clearly indicates that you must look at the understanding and intention of the Band, as determined in accordance with the law, and not the technical requirements of the Indian Act. It is clear that the Minister was involved throughout. Whether the Minister or the Acting Director of Land called the referenda, there is no finality until such time as the surrender is accepted by the Governor in Council. In this case, no substantive right was abrogated as a result of the invalid delegation of authority.
[76] I wish to complement both counsel for the quality of their submissions and their efforts to expedite this trial.
Conclusion
[77] Accordingly, the action shall be dismissed. Costs to the defendant.
"Howard I. Wetston"
Judge
Toronto, Ontario
August 12, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2288-87
| STYLE OF CAUSE: LEROY HILL |
- and -
DATES OF HEARING: JUNE 23 AND 24, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: WEDNESDAY, AUGUST 12, 1998
APPEARANCES:
Mr. Paul Williams
For the Plaintiff
Mr. Gary Penner
For the Defendant
SOLICITORS OF RECORD: Paul Williams
For the Plaintiff
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 19980812
Docket: T-2288-87
Between:
Plaintiff
- and -
Defendant
REASONS FOR JUDGEMENT
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