Date: 20070124
Docket: T-1985-05
Citation: 2007 FC 30
BETWEEN:
BAND COUNCIL OF THE ABENAKIS
OF ODANAK,
a federal board, commission or
other tribunal within the meaning of
subsection 2(1) of the Federal Courts
Act, in its capacity as
Council of the band of the Abenakis of
Odanak,
a band within the meaning of the Indian
Act, having its
business office at 102 Sibosis Street, Odanak, Quebec, J0G 1H0,
Applicant
and
THE HONOURABLE ANDY SCOTT, in
his capacity as
Minister of Indian Affairs and Northern
Development Canada,
a federal board, commission or other
tribunal within the meaning of
subsection 2(1) of the Federal Courts
Act, having a business office at
10 Wellington Street, Suite 2100, Gatineau, Quebec, K1A 0H4,
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This
is an application for judicial review of a decision dated October 3, 2005, by
the respondent in his capacity as Minister of Indian Affairs and Northern Development
Canada, under subsection 10(7) of the Indian Act, R.S.C. (1985),
c. I-6 (the Act), by which the respondent refused to give notice to the Abenakis
of Odanak band that it would from now on have control of its own membership
under the Act.
[2]
Section
10 of the Act reads as follows:
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10.
(1) A band may assume control of its own membership
if it establishes membership rules for itself in writing in accordance with
this section and if, after the band has given appropriate notice of its
intention to assume control of its own membership, a majority of the electors
of the band gives its consent to the band’s control of its own membership.
(2)
A band may, pursuant to the consent of a majority of the electors of the
band,
(a)
after it has given appropriate notice of its intention to do so, establish
membership rules for itself; and
(b) provide for a mechanism
for reviewing decisions on membership.
(3) Where the council of a band makes a by-law under
paragraph 81(1)(p.4) bringing this subsection into effect in respect
of the band, the consents required under subsections (1) and (2) shall be
given by a majority of the members of the band who are of the full age of
eighteen years.
(4) Membership rules established by a band under
this section may not deprive any person who had the right to have his name
entered in the Band List for that band, immediately prior to the time the
rules were established, of the right to have his name so entered by reason
only of a situation that existed or an action that was taken before the rules
came into force.
(5) For greater certainty, subsection (4) applies in
respect of a person who was entitled to have his name entered in the Band
List under paragraph 11(1)(c) immediately before the band assumed
control of the Band List if that person does not subsequently cease to be
entitled to have his name entered in the Band List.
(6) Where the conditions set out in subsection (1)
have been met with respect to a band, the council of the band shall forthwith
give notice to the Minister in writing that the band is assuming control of
its own membership and shall provide the Minister with a copy of the
membership rules for the band.
(7)
On receipt of a notice from the council of a band under subsection (6), the
Minister shall, if the conditions set out in subsection (1) have been
complied with, forthwith
(a)
give notice to the band that it has control of its own membership; and
(b) direct the Registrar to
provide the band with a copy of the Band List maintained in the Department.
(8) Where a band assumes control of its membership
under this section, the membership rules established by the band shall have
effect from the day on which notice is given to the Minister under subsection
(6), and any additions to or deletions from the Band List of the band by the
Registrar on or after that day are of no effect unless they are in accordance
with the membership rules established by the band.
(9) A band shall maintain its own Band List from the
date on which a copy of the Band List is received by the band under paragraph
(7)(b), and, subject to section 13.2, the Department shall have no
further responsibility with respect to that Band List from that date.
(10) A band may at any time add to or delete from a
Band List maintained by it the name of any person who, in accordance with the
membership rules of the band, is entitled or not entitled, as the case may
be, to have his name included in that list.
(11)
A Band List maintained by a band shall indicate the date on which each name
was added thereto or deleted therefrom.
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10. (1) La bande peut décider de l’appartenance à ses effectifs si elle en
fixe les règles par écrit conformément au présent article et si, après
qu’elle a donné un avis convenable de son intention de décider de cette
appartenance, elle y est autorisée par la majorité de ses électeurs.
(2)
La bande peut, avec l’autorisation de la majorité de ses électeurs :
a) après avoir donné un avis convenable de son
intention de ce faire, fixer les règles d’appartenance à ses effectifs;
b)
prévoir une procédure de révision des décisions portant sur l’appartenance à
ses effectifs.
(3) Lorsque le conseil d’une bande prend, en vertu
de l’alinéa 81(1)p.4), un règlement administratif mettant en vigueur
le présent paragraphe à l’égard de la bande, l’autorisation requise en vertu
des paragraphes (1) et (2) doit être donnée par la majorité des membres de la
bande âgés d’au moins dix-huit ans.
(4) Les règles d’appartenance fixées par une bande
en vertu du présent article ne peuvent priver quiconque avait droit à ce que
son nom soit consigné dans la liste de bande avant leur établissement du
droit à ce que son nom y soit consigné en raison uniquement d’un fait ou
d’une mesure antérieurs à leur prise d’effet.
(5) Il demeure entendu que le paragraphe (4)
s’applique à la personne qui avait droit à ce que son nom soit consigné dans
la liste de bande en vertu de l’alinéa 11(1)c) avant que celle-ci
n’assume la responsabilité de la tenue de sa liste si elle ne cesse pas
ultérieurement d’avoir droit à ce que son nom y soit consigné.
(6) Une fois remplies les conditions du paragraphe
(1), le conseil de la bande, sans délai, avise par écrit le ministre du fait
que celle-ci décide désormais de l’appartenance à ses effectifs et lui
transmet le texte des règles d’appartenance.
(7)
Sur réception de l’avis du conseil de bande prévu au paragraphe (6), le
ministre, sans délai, s’il constate que les conditions prévues au paragraphe
(1) sont remplies :
a) avise la bande qu’elle décide désormais de
l’appartenance à ses effectifs;
b) ordonne au registraire de transmettre à la bande une copie de la
liste de bande tenue au ministère.
(8) Lorsque la bande décide de l’appartenance à ses
effectifs en vertu du présent article, les règles d’appartenance fixées par
celle-ci entrent en vigueur à compter de la date où l’avis au ministre a été
donné en vertu du paragraphe (6); les additions ou retranchements effectués
par le registraire à l’égard de la liste de la bande après cette date ne sont
valides que s’ils sont effectués conformément à ces règles.
(9) À compter de la réception de l’avis prévu à
l’alinéa (7)b), la bande est responsable de la tenue de sa liste. Sous
réserve de l’article 13.2, le ministère, à compter de cette date, est dégagé
de toute responsabilité à l’égard de cette liste.
(10) La bande peut ajouter à la liste de bande tenue
par elle, ou en retrancher, le nom de la personne qui, aux termes des règles
d’appartenance de la bande, a ou n’a pas droit, selon le cas, à l’inclusion
de son nom dans la liste.
(11)
La liste de bande tenue par celle-ci indique la date où chaque nom y a été
ajouté ou en a été retranché.
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[3]
It
was in the year 2001 that the Abenakis of Odanak band council, a “band” within
the meaning of the Act, took steps with the Department of Indian Affairs and
Northern Development Canada (DIAND) to assume control over its own membership
under section 10 of the Act.
[4]
The
consent process required to assume control over its own membership began on May 8, 2003, when voting
documents were mailed to members of the Abenakis of Odanak band. The Abenakis
of Odanak band council (the applicant) ended the consent process on December 4,
2004. On January
12, 2005,
the applicant forwarded its notice to the Minister, pursuant to subsection
10(6) of the Act, to the effect that from now on the Abenakis of Odanak band
council would have control over its own membership.
[5]
On
October 3, 2005, the Minister advised the applicant that the Abenakis of Odanak
band council could not assume control over its own membership because it had
not obtained the consent to do so from a majority of its electors.
[6]
It
is important to reproduce the following excerpt from the letter dated October 3, 2005, to the
Chief of the Abenakis of Odanak band council by the Minister of Indian Affairs
and Northern Development Canada, as this extract contains the essential
elements of the decision in question:
[translation]
This is in
answer to your correspondence dated January 12 and April 7, 2005, to the effect
that the Odanak band will assume control over its membership from now on,
pursuant to section 10 of the Indian Act.
You have
advised me that, given that 85 per cent of your electors live off reserve and are
dispersed across Canada and the United States, and since the Department of
Indian Affairs and Northern Development Canada does not maintain a list of
addresses of band electors, it was impossible for you to contact more than 330
of the 1,555 band electors. In spite of these difficulties, you confirmed that
you had consulted with a majority of more than 59 per cent of electors for whom
either the band or the Department had an address.
As you
know, under subsection 10(1) of the Act, the Minister must be certain that a
majority of the First Nation electors have authorized the rules of membership
determined by the First Nation before it can be given a notice advising it that
it may assume control of its own membership. The Act is very clear as to the consent
which the majority of electors must give as a condition precedent to the
transfer of membership. If, as you have suggested, your electoral base should
be artificially reduced by striking out the names of electors whose addresses
are not available, your First Nation and the Department might face legal
liability for having reduced the electoral base. Application of the Odanak band
membership rules could be considered null and void if legal proceedings were
undertaken. Such a situation would mean that any person who became a band
member under these rules could lose his or her membership. Furthermore, any
person refused membership could probably claim the loss of future benefits. Considering
this serious risk, I am unable to accept your suggestion to reduce your
electoral base, and unfortunately I must advise you that I cannot give you a
notice to the effect that the Odanak band may assume control of its membership.
[7]
Section
8 of the Act states that there shall be maintained in accordance with this Act
for each band a band list in which shall be entered the name of every person
who is a member of that band. Section 9 of the Act provides that band lists are
maintained by default by the DIAND, more specifically, by its Registrar, who
applies the provisions of section 11 of the Act to update the list (sections 8,
9 and 11 of the Act are reproduced in an annex to these reasons). Section 10 of
the Act, reproduced above, provides that an Indian band which meets its conditions
may maintain its own band list.
[8]
The
word “elector”, to which section 10 refers, is defined as follows in subsection
2(1) of the Act:
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“elector”
means a person who
(a)
is registered on a Band List,
(b)
is of the full age of eighteen years, and
(c)
is not disqualified from voting at band elections;
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« électeur »
Personne qui remplit les conditions suivantes :
a) être inscrit sur une liste
de bande;
b) avoir dix-huit ans;
c) ne pas avoir perdu son
droit de vote aux élections de la bande.
|
[9]
For
the purposes of applying section 10, the band must first establish its rules of
membership in writing and then obtain the consent of a majority of its electors
through a vote—this vote being held in accordance with procedures set by the
band itself, as such procedures are not specifically provided for under the Act—before
finally sending the Minister notice of its intention to assume control of its
own membership.
[10]
In
this case, it appears from the decision in question that the rules for
membership in the Abenakis of Odanak band are in compliance with subsection
10(1) of the Act. However, the Minister noted in this same decision that the consent
process conducted by the band did not meet the condition under the same subsection
10(1) to the effect that a band must obtain the consent of a majority of its
electors.
[11]
In
practice, the electoral base of an Indian band which holds its elections in accordance
with the Act, as the band did in this case, consists of persons at least 18
years of age whose names are on the band list maintained by the Registrar or
the band, as the case may be (section 4 of the Indian Band Election
Regulations, C.R.C., c. 952—this section is reproduced in the annex to these
reasons). Since the decision of the Supreme Court of Canada in Corbiere v.
Canada (Minister of Indian Affairs and Northern Development Canada), [1999]
2 S.C.R. 203, band members who are not ordinarily resident on the reserve retain
the right to vote and may be band “electors” if they meet the other required conditions.
Thus, the number of eligible electors for a given vote or election, that is,
the electoral base, is a precise and determinate number based on the relevant
band list.
[12]
On
the one hand, the applicant interprets the words “a majority of the electors of
the band gives its consent” in subsection 10(1) of the Act as meaning that if
there are 1,000 electors on the band list, at least 501 of them must vote, and
more than 50 per cent of them must be in favour. Therefore, according to the
applicant, the [translation] “majority
of the majority” must be considered.
[13]
On
the other hand, the respondent submits that to have control over its membership
under subsection 10(1) of the Act, a band must obtain a favourable or
affirmative vote of 50 per cent of all band electors plus one,
in other words, an absolute majority.
[14]
In
fact, it is not contested that on the date of the beginning of the consent
process undertaken by the Abenakis of Odanak band council, that is to say, May 8, 2003, 1,555
persons of at least 18 years of age were registered on the relevant band list
maintained by the Registrar. As at the date of the election in question, that
is, October 3, 2005, the number of electors registered on this list had been
reduced to 1,545, since the Registrar had struck out the names of seven persons
who were deceased as of May 8, 2003, according
to statutory declarations submitted by the Odanak local administrator of the
Indian Register, and of three additional persons presumed to be dead because they
would have been over 115 years of age on May 8, 2003.
[15]
Therefore,
it appears from the evidence that the electoral base of the Abenakis of Odanak
band for the purposes of the consent vote it undertook under section 10 of the
Act included 1,555 electors. This electoral base was then reduced to 1,545
electors because before the date of the decision in question, 10 files were
struck out from the Indian Register and therefore from the band list used to
establish the voters list of the Abenakis of Odanak band. Accordingly, to
obtain the required consent of a majority of band electors under subsection
10(1) of the Act, the Abenakis of Odanak band had to either (a) obtain
affirmative votes from 773 electors, if the absolute majority concept advanced
by the respondent applies, or (b) have at least 773 electors participate in the
vote, with at least 387 of these participants voting in favour, in accordance
with the majority-of-the-majority argument submitted by the applicant.
[16]
The
results of the vote organized by the Abenakis of Odanak band were sent to the
Minister after the band had chosen to end the consent process pursuant to
subsection 10(6) of the Act. These results showed that no more than 770 (figure
submitted by the applicant) and no less than 769 (figure submitted by the
respondent) electors had participated in the consent process, of which no more
than 731 (figure submitted by the applicant) and no less than 728 (figure
submitted by the respondent) had voted in favour of the band’s assuming control
of its membership.
[17]
Therefore,
even if we accept the figures of 770 participating electors and 731 electors in
favour, as submitted by the applicant, the evidence shows that the majority
required under the Act, be it an absolute majority or the majority of the
majority, was not obtained. We are at least 42 affirmative votes short of the
absolute majority advocated by the respondent, and to obtain the majority of
the majority favoured by the applicant, there had to be at least three more participating
electors.
[18]
The
balance of evidence from the affidavit of Janice McMichael and from the cross-examinations
of Gilles O’Bomsawin and Daniel G. Nolett leads to the conclusion that the
applicant was well aware of the criteria for consent and the electoral base
required when it decided to end the consent process on December 4, 2004, and freely
gave its notice to the Minister under subsection 10(6) of the Act on
January 12, 2005.
[19]
Moreover,
the applicant tried to have the electoral base of the Abenakis of Odanak band
reduced by requesting that the Registrar strike out the records of 33 persons [translation] “presumed deceased” and asking
the Minister to not take into consideration the persons whose addresses were unknown
to the Abenakis of Odanak band council.
[20]
With
regard to the request to strike out the names of 33 persons presumed to be deceased,
the applicant did not succeed in striking out all these records before the consent
process was ended and notice was given to the Minister under subsection 10(6)
of the Act. On this point, given that the applicant did not satisfy me that the
Minister, his officials or the Registrar had arbitrarily refused to strike out
these records, intervention by this Court is not warranted. In addition,
nothing in the evidence shows that the provisions of section 11 of the Act
concerning the updating of the band list were not respected.
[21]
As
regards the request to the Minister to not take into consideration the persons
whose addresses were unknown to the band council, the Minister did not have the
necessary discretion to reduce the band list of the Abenakis of Odanak and,
consequently, the electoral base of that band. If he had done so, he would have
arbitrarily deprived some electors of the Abenakis of Odanak band of the right
to vote. Likewise, the Minister did not have the necessary discretion to accept
the results of a vote that did not attain the level of consent required under
subsection 10(1) of the Act.
[22]
In
these circumstances, there is no need to determine which of the two majorities
in this case, either an absolute majority or a majority of the majority, should
have been applied. In either case, it is clear that the majority of electors
required under subsection 10(1) of the Act was not obtained.
[23]
Alternatively,
the applicant submits that there was a lack of procedural fairness resulting
from the premature nature of the Minister’s decision and his failure to fulfill
the legitimate expectations he created.
[24]
First
of all, given the allegedly premature nature of the Minister’s decision, as the
applicant submits, it is important to note that it was the applicant that
initiated the consent process in question in 1986 when it initially contacted
DIAND to try to obtain funding to draft its membership code. After having
completed its draft membership Code in consultation with DIAND officials, the
applicant received confirmation from the officials that, in their opinion, this
draft was in compliance with the requirements of section 10 of the Act, subject
to approval by a majority of the band’s electors, as required under subsection
10 (1) of the Act.
[25]
In
beginning the consent process required to assume control of its membership on May 8, 2003, the
applicant decided to hold a postal vote, assisted by DIAND officials who sent the
appropriate voting documents to 82 electors for whom the applicant had no
address.
[26]
As
has already been mentioned, on November 25, 2004, the applicant decided to end
the voting process, and on January 12,
2005,
it gave notice to the Minister under subsection 10(6) of the Act, which
specifies that “[w]here the conditions set out in subsection (1) have been
met with respect to a band, the council of the band shall forthwith give
notice to the Minister in writing that the band is assuming control of its own
membership and shall provide the Minister with a copy of the membership rules
for the band”.
[27]
On
August 22, 2005, DIAND officials sent the Minister a memorandum containing all
the documents required for a decision under subsection 10(7) of the Act, as
well as their recommendations concerning the notice filed by the applicant
under subsection 10(6) of the Act.
[28]
On
October
3, 2005,
the Minister rendered the decision which is the subject of this application for
judicial review.
[29]
Therefore, these facts show that the Minister’s
decision was not in any way premature, as it was only a follow-up to the notice
given to the Minister by the applicant, which called for a decision concerning
the transfer of the control of band membership. The Minister had to act in accordance
with subsection 10(7) of the Act, which states, “On receipt
of a notice from the council of a band under subsection (6), the Minister
shall, if the conditions set out in subsection (1) have been complied with,
forthwith (a) give notice to the band that it has control of its own
membership; and (b) direct the Registrar to provide the band with a copy
of the Band List maintained in the Department”. Having noted that the
conditions set out in subsection 10(1) were not met, the Minister simply
advised the applicant that the Abenakis of Odanak band could not consequently assume
control over its membership. Nothing in the Act or in the facts adduced obliged
the Minister to delay his decision.
[30]
As
far as the allegation concerning legitimate expectations created by the
Minister during the approval process is concerned, no evidence shows that the
Minister, his officials, or the Registrar told or promised the Abenakis of
Odanak band, or led the band to believe, that the approval level required under
section 10 of the Act would be reduced or adjusted to mitigate the impact of Corbiere,
supra, which holds that all band members, whether residing on or off
reserve, have the right to vote.
[31]
More
specifically, section 9 of the Act provides that the DIAND Registrar shall maintain
the band list until the band assumes responsibility for it. Each band list
includes the names of the band members, and the Registrar “may at any time add
to or delete from a Band List maintained in the Department the name of any
person who, in accordance with this Act, is entitled or not entitled, as the
case may be, to have his name included in that List”. The band list maintained
in the Department “shall indicate the date on which each name was added thereto
or deleted therefrom”. However, nothing requires the Registrar, for the
purposes of registration, to search for the addresses of persons whose names
are on a band list.
[32]
The
applicant should know that the Act does not allow the Registrar to delete names
from a band list for reasons other than those set out in section 11. Therefore,
the Registrar cannot delete from a band list, just as the Minister cannot
strike from the electoral base, the names of persons who, for example, have not
been in contact with the band or the Registrar for a certain number of years.
[33]
I
agree with the respondent that the accuracy of the information in the band list
at the Registrar’s office depends to a large extent on the initiative and willingness
of each registered person to advise the Registrar or the Indian Registry
officer of the band of any changes in address or civil status, births and
deaths in his family, and similar information. The Registrar is not required
under the Act to update the addresses of which he is advised from time to time
by band members when, for example, they wish to obtain an Indian card or when
they wish to register themselves or a member of their family in the Indian Registry.
[34]
As
far as deceased persons on the Indian Registry are concerned, the Registrar
strikes out the record when notified of the death of that person or when
evidence of the death of that person is received: for example, a death
certificate issued by a registrar of civil status, a death certificate issued
by a funeral home director, or, in the case of persons from 100 to 114 years of
age, a statutory declaration sent to the Registrar certifying that the affiant
knew the person in question and knows that he or she is dead. Otherwise, the
records of these persons remain active until the Registrar receives evidence of
death or until it is reasonable to believe that such a person has died.
[35]
The
relationship the Registrar has with persons who are registered on the band list
is therefore essentially limited to adding or deleting the names of these
persons in respect of the Indian Registry or band list, and only for those reasons
set out in the Act. This relationship does not include the obligation to
maintain or update addresses on the list.
[36]
The
band list maintained by the Registrar for the Abenakis of Odanak actually did
contain the names of persons for whom the Registrar did not have any known
address and the names of other persons from 100 to 114 years of age for whom no
recognized proof of death had been sent to the Registrar.
[37]
Accordingly,
the applicant knew or should have known that this was the band list of the Abenakis
of Odanak as it was at the beginning of the consent process, and the number of
persons registered on it was the reference number for the purposes of this
process.
[38]
The
respondent did not in any way create a legitimate expectation that he would
help the applicant contact 330 off-reserve electors for whom he did not have
any address. Nothing in the evidence shows that the Minister, DIAND officials, or
the Registrar had stated that the applicant would be given assistance in
tracing the 330 electors.
[39]
Furthermore,
it should be noted that nothing in the Act obliges the Minister, his officials,
or the Registrar to search for the addresses of band members for the purposes
of the consent process under section 10 of the Act.
[40]
The
fact that DIAND officials were accommodating and helped the applicant by
forwarding appropriate voting documents to 82 electors for whom the applicant
did not have the addresses certainly did not create a legitimate expectation
that they would help the applicant contact 330 off-reserve electors or, even
less so, that they would recommend to the Minister that he render a decision
favourable to the applicant in any case.
[41]
Finally, nothing in the evidence shows that the
Minister, DIAND officials, or the Registrar said, promised, or implied to the
applicant that a reference number of electors would be set for the purposes of
the consent process in question. As mentioned above, the evidence shows that
the applicant was well aware of the criteria required for the consent and knew
the electoral base required when the voting ended on December 3, 2004, and when
the notice was sent to the Minister under subsection 10(6) of the Act.
[42]
In these circumstances, the applicant’s arguments
as to the legitimate expectations created by the respondent or his officials must
fail.
[43]
For all these reasons, in spite of the sympathy
one may have for the Abenakis of Odanak band council and the persons who
assisted it during this first attempt, in especially difficult conditions, at
obtaining the right to assume control over its membership, intervention by this
Court is not warranted, and the application for judicial review must be
dismissed. In the circumstances, there will be no order as to costs.
“Yvon
Pinard”
Ottawa,
Ontario
January
24, 2007
Certified
true translation
Michael
Palles
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