Date: 20021017
Docket: T-685-02
Neutral citation: 2002 FCT 1088
BETWEEN:
YVELAINE MARIE MOSES
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
HARGRAVE P.
[1] These reasons deal with a partially successful motion to strike out the Notice of Application. I have required the parties to take further steps, with a view to the Applicant filing an amended notice of application. I will first turn to some relevant background.
BACKGROUND
[2] By this proceeding Ms Moses, and I expect supporters of Indian women in general, set out to test specific provisions of the 1970 Indian Act, which, depending upon sex, set a different test and outcome for who may and may not be registered as an Indian, the effect of which is continued under the present legislation. Notwithstanding the current Indian Act, R.S.C. 1985, c. I-5 and section 6(2) of that Act, which allows a person with one registered or registerable parent to be registered as an Indian, the 1970 Indian Act is still, by reason of section 6(1) of 1985 Indian Act, very much with us.
[3] By way of explanation, section 12 of the 1970 Indian Act provided, among other things which needed to be remedied, that:
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12. (1) The following persons are not entitled to be registered, namely,
...
(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of person described in section 11.
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12. (1) Les personnes suivantes n'not pas le droit d'être inscrites, savoir:
...
b) une femme qui a épousé un non-Indien, sauf si cette femme devient subséquemment l'épouse ou la veuve d'une personne décrite à l'article 11.
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The reference to section 11 deals with non-Indian women who married Indian men and thus became entitled to registration. This notorious provision, section 12(b) of the 1970 Indian Act, brought about the loss, to Indian women, of their registration should they marry a non-Indian. However, an Indian man, marrying a non-Indian, did not lose his Indian registration and indeed his wife gained that status.
[4] The 1985 Indian Act sought to rectify the unequal effect of the 1970 Indian Act test for registration, through the introduction of a second class of people entitled to be registered as Indians, section 6(2) now providing that if one parent be entitled to registration as an Indian, pursuant to section 6(1) of the 1985 Indian Act, a child is entitled to be registered as an Indian.
[5] Ms Moses is currently and indeed newly registered as a section 6(2) Indian. The result of registration as an Indian, pursuant to section 6(2) of the 1985 Indian Act, is that should Ms Moses, who finds herself registered as a section 6(2) Indian, because she was born before 1985, married a non-Indian, her children would not enjoy her Indian status. On the other hand the children of her brother, a person similarly born before 1985 and registered as an Indian under section 6(1) of the 1985 Indian Act, would enjoy Indian status. Thus, as I have said, the apparent heavy hand of the 1970 Indian Act is still very much with us. It is this perceived discrimination that Ms Moses wishes to challenge.
ANALYSIS
[6] The Crown seeks to strike out this judicial review proceeding. I accept that while judicial review proceedings ought not generally to be struck out and here I would refer to David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, the Court of Appeal there left it open to strike out an originating notice of motion and by extension, an application such as at present, in very exceptional circumstances: by way of example, see Garcia v. Canada (Minister of Justice) (1997), 129 F.T.R. 174, Bouchard v. Canada (Minister of National Defence) (1998), 158 F.T.R. 232 and Wheaton v. Canada Post Corp. (2000), 186 F.T.R. 108. A complete lack of jurisdiction is included as an exceptional case in which a proceeding can and ought to be struck out, in order to avoid wasting everyone's time, including time preparing for and hearing the judicial review proceeding itself.
[7] In the present instance, the want of jurisdiction pointed to by the Crown, in seeking to have this judicial review proceeding struck out, is the lack of a decision which the Court may review under section 18.1 of the Federal Court Act. Indeed, in the context in which the Applicant seeks relief, the review of a determination which the Registrar of the Department of Indian Affairs made in finding that the Applicant was entitled to registration as an Indian under section 6(2) of the Indian Act of 1985, there must first be a decision to review. The requirement that there must be a decision, while not always an absolute, and here I have in mind cases such as Alberta Wilderness Association v. Canada (1997), 146 F.T.R. 19 (F.C.T.D.), a decision of Mr Justice Hugessen, is basic in this present instance. Applicable in the present instance is Bouchard v. Canada (supra) in which Associate Chief Justice Richard, as he was then, pointed out that the jurisdiction of the Federal Court, in matters of judicial review, was in consequence of or derived from the nature of the subject matter:
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[29] The jurisdiction of the Court ratione materiae depends on whether there is a "decision" within the meaning of section 18.1 of the Federal Court Act.
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Bouchard was affirmed on appeal, on different grounds, (1999), 187 D.L.R. (4th ) 314.
[8] The Respondent builds upon the essential of the existence of a decision by referring to Bay v Canada, [1974] 1 F.C. 523, in which the Federal Court of Appeal dealt with the refusal by the Registrar to add Mr Bay's name to a Band List. Mr Bay brought judicial review proceedings under what was then section 28 of the Federal Court Act. Under section 28, as with the present section 18.1 of the Federal Court Act, basic to the Federal Court's judicial review jurisdiction was the existence of a decision or an order that could be reviewed.
[9] In Bay each of the three Appellate Judges delivered reasons, but all three determined that there was no decision subject to review. In Bay the Court pointed out that there was a distinction between the Registrar's preliminary determination to add or delete a name from the Indian Register, pursuant to what was then section 7 of the Indian Act and the Registrar's power to subsequently make a final decision in the event of a protest by the person affected and an investigation under section 9 of the 1970 Indian Act. Sections 7 and 9 of the 1970 Indian Act, relevant at the time of the Bay decision, find an equivalent in the present sections 5(3) and 14.2 of the Indian Act of 1985. That the Registrar makes no decision when merely adding or deleting a name to the Register and that there is a decision once there has been a protest, an investigation and a further determination, is clear from the reasons of Chief Justice Jackett at pages 524 and 525:
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When the Registrar is asked to exercise the section 7 power to add or delete a name, he must, of course, take a position as to whether the person in question is or is not entitled to have his name on the list so as to give rise to the duty to add or delete. There is, however, a clear difference between a position so taken by the Registrar on the occasion of a request to exercise the section 7 power and a decision rendered by the Registrar in the exercise of his section 9 decision-making power. Once the Registrar has exercised his section 9 decision-making power, his decision has legal effect and his power with regard thereto is spent. When, however, the Registrar takes a position as to whether he has a section 7 duty to add or delete a name, that "decision" has no legal effect. In such a case, as a matter of law, nothing has been decided. The Registrar himself, or his successor, in the very case in which such position was taken, can take a different position at any time and, having taken such a different position, can exercise his section 7 power to add or delete in accordance therewith.
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That Bay involved jurisdiction under section 28 of the Federal Court Act, as opposed to jurisdiction being under section 18.1 of the Federal Court Act in the present instance, has no bearing. Mr Justice of Appeal Pratte had of a similar view to that of the Chief Justice:
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It has been made clear by previous judgments of this Court that many expressions of opinion which, in common parlance, are referred to as "decisions", do not constitute decisions within the meaning of section 28(1). In my view, the refusal of the Registrar to accede to Mr. Bay's request is not a decision that this Court has jurisdiction to set aside under section 28(1) of the Federal Court Act.
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In the present case, the so-called decision of the Registrar has been made under section 7 of the Indian Act. This section does not empower the Registrar to decide whether a person is entitled to be registered as an Indian; it merely imposes on the Registrar the duty to add to or delete from the Register "the name of any person who ... is entitled or not entitled, as the case may be," to be registered. If the Registrar wrongly refuses to record in the Register the name of a person who is entitled to be registered, he
fails in his duty. However, in such a case, the person who is entitled to be registered does not, by virtue of such a refusal, lose his right to be registered. The refusal of the Registrar to register a person who is entitled to be registered does not have any legal effect, whatever the importance of its practical effect; such a refusal does not settle or purport
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to settle in any way the question of the entitlement to the registration; it is not binding on
anyone. It is not a decision within the meaning of section 28(1).
(Pages 529 and 530)
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Mr Justice Thurlow was equally adamant that the Registrar's view, as to entitlement to registration, could not be treated as a decision leading to judicial review, for the determination of the Registrar bound no one and indeed left the Registrar free to change the finding. Indeed, at pages 527 and 528 he pointed out that section 7 (the equivalent of section 5(3) of the present Indian Act) gave the Registrar no express authority to decide entitlement, but merely authorizes the adding or deletion of a name:
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Similarly it does not appear to me that a refusal to register a person on the ground that in the Registrar's view the person is not entitled to registration can be treated as a decision within the meaning of section 28 of the Federal Court Act simply because it was necessary for the Registrar to adopt a view on the question of the person s entitlement in order to carry out his function under section 7. As I see it, the Registrar when dealing with a matter under section 7 is not required to conduct an inquiry or to afford any one a hearing on the question of a person's entitlement to registration and his view of the person's entitlement when reached binds no one for he is free to change that view at any time and thereupon to act accordingly.
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[10] Bay was applied, in the context of the 1985 Indian Act, by Mr Justice Nadon, as he then was, in Landry v. Canada (Indian and Northern Affairs) (1996), 118 F.T.R. 184, Mr Justice Nadon finding the decision in Bay, dealing with section 7(1) of the 1970 Indian Act, "fully relevant to the construction of s. 5(3) of the current Act" (page 210). Relying upon Bay and applying it in the context of the 1985 Indian Act, Mr Justice Nadon said:
| In my opinion, given the reasons rendered by the three members of the Court of Appeal in Bay, it is clear that the addition or deletion of someone's name to or from the Register is not a decision that is reviewable by this Court under s. 18 of the Federal Court Act.
(Page 215)
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[11] Mr Justice Nadon went on to note that the Trial Division could rule upon the substantive issue of whether Mr Bay was entitled to be registered on the Band List and indeed that had later occurred in Mr Bay's case, but that the determination that Mr Bay's name should or should not be added to the Register was of no legal effect and, as the Court of Appeal pointed out in Bay, not binding on anyone (page 218 of Landry).
[12] Finally, in a direct line from Bay and from Landry is Mr Justice Lemieux's decision in Canada v. Sinclair, [2002] 3 F.C. 292. In Sinclair both Bay and Landry were considered at length and applied, Mr Justice Lemieux stating:
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[65] Both Bay and Landry and a consideration of the legislative scheme leads one to the inevitable conclusion the place Parliament wanted a decision to be made about whether a person is entitled to be registered as an Indian is during the protest process stage conducted by the Registrar who, at this stage, must do an investigation, receive and weigh evidence and render a decision which is final and conclusive subject only to appeal to the provincial superior courts. Moreover, subsection 14.2(6) of the Act authorizes the Registrar to receive evidence on oath or on affidavit in Parliament's contemplation that, in some cases, an oral hearing may be required.
[66] It is this legislative scheme and its focus on the protest provisions which led the judges to conclude in Bay and Landry, supra, the addition or deletion of a person's name from the Register has no legal effect and nothing has been decided since the question of entitlement to registration is decided at the protest stage. ...
(Page 315)
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In Sinclair the Crown was chastised for advising governmental authorities of the deletion of a name from the Indian Act by reason of section 5(3): that should not have occurred until there had been a protest and a final decision under section 14 of the Indian Act.
[13] From Bay, Landry and Sinclair one learns that the Federal Court will not review the act of the Registrar unless it is a decision having some legal effect or is finally determinative of a substantive right: none of this is the case in a determination under section 5(3) that a name be added or deleted from the Register.
[14] The Federal Court having no jurisdiction it is appropriate that the determination of the Registrar not be reviewed at this point, but rather await a protest from the Applicant, Ms Moses, and a final and reviewable decision of the Registrar under section 14 of the Indian Act.
[15] This case raises an important point and indeed is looked upon by Ms Moses and those who support her a test case. Unfortunately, it is premature. Counsel for the Applicant submits that a protest will result in no new decision and that Ms Moses cannot possibly, with no additional evidence coming from her and notwithstanding whatever investigation the Registrar might make, expect in any different decision. This is speculation for various reasons, including that the Registrar has a large database which, on research, may contain additional relevant material.
[16] The Registrar has offered to expedite the processing of any protest by Ms Moses. The processing of such a protest and a decision under section 14 of the Indian Act, resulting in a final decision, would put this test case on a proper footing.
[17] The Order which I have made strikes out all of the pleadings of the application, leaving the Applicant with the ability, once she has a final decision in the coming months, to amend the application to refer to that final decision. The additional portions of the Respondent's motion, to convert the application into an action, or to extend times for the various steps in the judicial review, by reasons of the scope and size of the proceeding, are adjourned. Costs of this motion to the Respondent, in any event, following the conclusion of the Moses proceeding.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
17 October 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-685-02
STYLE OF CAUSE: Yvelaine Marie Moses v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING:15 October 2002
REASONS FOR ORDER: Hargrave P.
DATED: 17 October 2002
APPEARANCES:
Teressa Nahanee FOR APPLICANT
Craig Cameron FOR RESPONDENT
SOLICITORS OF RECORD:
McIvor Nahanee Law Corporation FOR APPLICANT
Merritt, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, British Columbia
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