Date:
20130515
Docket: T-923-12
Docket: T-922-12
Citation: 2013
FC 509
Ottawa, Ontario,
May 15, 2013
PRESENT: The
Honourable Mr. Justice Barnes
Docket:
T-923-12
BETWEEN:
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MAURICE FELIX STONEY
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Applicant
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and
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SAWRIDGE FIRST NATION
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Respondent
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Docket:
T-922-12
BETWEEN:
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ALINE ELIZABETH (MCGILLIVRAY)
HUZAR AND JUNE MARTHA (MCGILLIVRAY) KOLOSKY
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Applicants
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and
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SAWRIDGE FIRST NATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, RSC, 1985, c F-7. The Applicants are all descendants of
individuals who were at one time members of the Sawridge First Nation, but who,
either voluntarily or by operation of the law at the time, lost their band
memberships. As a result the Applicants were excluded from membership in the
Sawridge First Nation. They now ask this Court to review the Sawridge First
Nation Appeal Committee’s decision to uphold the Sawridge Chief and Council’s
decision which denied their applications for membership.
[2]
The
father of the Applicant Maurice Stoney was William J. Stoney. William Stoney
was a member of the Sawridge First Nation but in April 1944 he applied to the
Superintendent General of Indian Affairs to be enfranchised under section 114
of the Indian Act, c 98, RSC 1927. In consideration of payments
totalling $871.35, William Stoney surrendered his Indian status and his
membership in the Sawridge First Nation. By operation of the legislation,
William Stoney’s wife, Margaret Stoney, and their two children, Alvin Stoney
and Maurice Stoney, were similarly enfranchised thereby losing their Indian
status and their membership in the Sawridge First Nation.
[3]
The
Applicants Aline Huzar and June Kolosky are sisters and, like Mr. Stoney, they
are the grandchildren of Johnny Stoney. The mother of Ms. Huzar and Ms.
Kolosky was Johnny Stoney’s daughter, Mary Stoney. Mary Stoney married Simon
McGillivray in 1921. Because of her marriage Mary Stoney lost both her Indian
status and her membership in Sawridge by operation of law. When Ms. Huzar and
Ms. Kolosky were born in 1941 and 1937 respectively Mary Stoney was not a
member of the Sawridge Band First Nation and she did not reacquire membership
before her death in 1979.
[4]
In
1985, with the passing of Bill C-31, An Act to amend the Indian Act, 33
– 34 Eliz II c 27, and pursuant to section 10 of the Indian Act, the
Sawridge First Nation delivered its membership rules, supporting documentation
and bylaws to the Deputy Minister of Indian and Northern Affairs, who accepted
them on behalf of the Minister. The Minister subsequently informed Sawridge
that notice would be given pursuant to subsection 10(7) of the Indian Act
that the Sawridge First Nation had control of its membership. From that point
on, membership in the Sawridge First Nation was determined based on the
Sawridge Membership Rules.
[5]
Ms.
Kolosky submitted her application for membership with the Sawridge First Nation
on February 26, 2010. Ms. Huzar submitted her application on June 21, 2010.
Mr. Stoney submitted his application on August 30, 2011. In letters dated
December 7, 2011, the Applicants were informed that their membership
applications had been reviewed by the First Nation Council, and it had been
determined that they did not have any specific “right” to have their names
entered in the Sawridge Membership List. The Council further stated that it
was not compelled to exercise its discretion to add the Applicants’ names to
the Membership list, as it did not feel that their admission would be in the
best interests and welfare of Sawridge.
[6]
After
this determination, “Membership Processing Forms” were prepared that set out a
“Summary of First Nation Councils Judgement”. These forms were provided to the
Applicants and outlined their connection and commitment to Sawridge, their
knowledge of the First Nation, their character and lifestyle, and other
considerations. In particular, the forms noted that the Applicants had not had
any family in the Sawridge First Nation for generations and did not have any
current relationship with the Band. Reference was also made to their
involvement in a legal action commenced against the Sawridge First Nation in
1995 in which they sought damages for lost benefits, economic losses, and the
“arrogant and high-handed manner in which Walter Patrick Twinn and the Sawridge
Band of Indians has deliberately, and without cause, denied the Plaintiffs
reinstatement as Band Members…”. The 1995 action was ultimately unsuccessful.
Although the Applicants were ordered to pay costs to the First Nation, those
costs remained unpaid.
[7]
In
accordance with section 12 of the Sawridge Membership Rules, the Applicants
appealed the Council’s decision arguing that they had an automatic right to membership
as a result of the enactment of Bill C-31. On April 21, 2012 their appeals
were heard before 21 Electors of the Sawridge First Nation, who made up the
Appeal Committee. Following written and oral submissions by the Applicants and
questions and comments from members of the Appeal Committee, it was unanimously
decided that there were no grounds to set aside the decision of the Chief and
Council. It is from the Appeal Committee’s decision that this application for
judicial review stems.
[8]
The
Applicants maintain that they each have an automatic right of membership in the
Sawridge
First Nation.
Mr. Stoney states at para 8 of his affidavit of May 22, 2012 that this
right arises from the provisions of Bill C-31. Ms. Huzar and Ms. Kolosky also
argue that they “were persons with the right to have their names entered in the
[Sawridge] Band List” by virtue of section 6 of the Indian Act.
[9]
I
accept that, if the Applicants had such an acquired right of membership by
virtue of their ancestry, Sawridge had no right to refuse their membership
applications: see Sawridge v Canada, 2004 FCA 16 at para 26, [2004] FCJ
no 77.
[10]
Ms. Huzar
and Ms. Kolosky rely on the decisions in Sawridge v Canada, 2003
FCT 347, [2003] 4 FC 748, and Sawridge v Canada, 2004 FCA 16, [2004] FCJ
no 77 in support of their claims to automatic Sawridge membership. Those
decisions, however, apply to women who had lost their Indian status and their
band membership by virtue of marriages to non-Indian men and whose rights to
reinstatement were clearly expressed in the amendments to the Indian Act,
including Bill C-31. The question that remains is whether the descendants of
Indian women who were also deprived of their right to band membership because
of the inter-marriage of their mothers were intended to be protected by those
same legislative amendments.
[11]
A
plain reading of sections 6 and 7 of Bill C-31 indicates that Parliament
intended only that persons who had their Indian status and band memberships
directly removed by operation of law ought to have those memberships unconditionally
restored. The only means by which the descendants of such persons could gain
band membership (as distinct from regaining their Indian status) was to apply
for it in accordance with a First Nation’s approved membership rules. This
distinction was, in fact, recognized by Justice James Hugessen in Sawridge v
Canada, 2003 FCT 347 at paras 27 to 30, 4 FC 748, [2003] 4 FC 748:
27 Although it deals specifically with Band
Lists maintained in the Department, section 11 clearly distinguishes between
automatic, or unconditional, entitlement to membership and conditional
entitlement to membership. Subsection 11(1) provides for automatic
entitlement to certain individuals as of the date the amendments came into
force. Subsection 11(2), on the other hand, potentially leaves to the band's
discretion the admission of the descendants of women who "married
out."
28 The debate in the House of Commons, prior to
the enactment of the amendments, reveals Parliament's intention to create an
automatic entitlement to women who had lost their status because they married
non-Indian men. Minister Crombie stated as follows (House of Commons Debates,
Vol. II, March 1, 1985, page 2644):
... today, I am asking Hon. Members to consider legislation
which will eliminate two historic wrongs in Canada's legislation regarding
Indian people. These wrongs are discriminatory treatment based on sex and the
control by Government of membership in Indian communities.
29 A little further, he spoke about the careful
balancing between these rights in the Act. In this section, Minister Crombie
referred to the difference between status and membership. He stated that,
while those persons who lost their status and membership should have both
restored, the descendants of those persons are only automatically entitled to
status (House of Commons Debates, idem, at page 2645):
This legislation achieves balance and rests
comfortably and fairly on the principle that those persons who lost status and
membership should have their status and membership restored. [page766] While
there are some who would draw the line there, in my view fairness also demands
that the first generation descendants of those who were wronged by
discriminatory legislation should have status under the Indian Act so that they
will be eligible for individual benefits provided by the federal Government.
However, their relationship with respect to membership and residency should be
determined by the relationship with the Indian communities to which they
belong.
30 Still further on, the Minister stated the
fundamental purposes of amendments, and explained that, while those purposes
may conflict, the fairest balance had been achieved (House of Commons
Debates, idem, at page 2646):
... I have to reassert what is unshakeable for this
Government with respect to the Bill. First, it must include removal of
discriminatory provisions in the Indian Act; second, it must include the
restoration of status and membership to those who lost status and membership as
a result of those discriminatory provisions; and third, it must ensure that the
Indian First Nations who wish to do so can control their own membership. Those
are the three principles which allow us to find balance and fairness and to
proceed confidently in the face of any disappointment which may be expressed by
persons or groups who were not able to accomplish 100 per cent of their own
particular goals…
[Emphasis added]
This decision was upheld on appeal
in Sawridge v Canada, 2004 FCA 16, [2004] FCJ no 77.
[12]
The
legislative balance referred to by Justice Hugessen is also reflected in the
2010 Legislative Summary of Bill C-3 titled the Gender Equity in Indian
Registration Act, SC 2010, c 18. There the intent of Bill C-31 is
described as follows:
Bill C-31 severed status and band membership for the
first time and authorized bands to control their own membership and enact their
own membership codes (section 10). For those not exercising that option, the
Department of Indian Affairs would maintain “Band Lists” (section 11). Under
the legislation’s complex scheme some registrants were granted automatic band
membership, while others obtained only conditional membership. The former group
included women who had lost status by marrying out and were reinstated under
paragraph 6(1)(c). The latter group included their children, who acquired
status under subsection 6(2).
[Emphasis added]
[13]
While
Mary Stoney would have an acquired right to Sawridge membership had she been
alive when Bill C-31 was enacted, the same right did not accrue to her
children. Simply put neither Ms. Huzar or Ms. Kolosky qualified under section
11 of Bill C-31 for automatic band membership. Their only option was to apply
for membership in accordance with the membership rules promulgated by
Sawridge.
[14]
This
second generation cut-off rule has continued to attract criticism as is
reflected in the Legislative Summary at p 13, para 34:
34. The divisiveness has been exacerbated by
the Act’s provisions related to band membership, under which not all new or
reinstated registrants have been entitled to automatic membership. As
previously mentioned, under provisions in Bill C-31, women who had “married
out” and were reinstated did automatically become band members, but their
children registered under subsection 6(2) have been eligible for conditional
membership only. In light of the high volume of new or returning “Bill C-31
Indians” and the scarcity of reserve land, automatic membership did not
necessarily translate into a right to reside on-reserve, creating another
source of internal conflict.
Notwithstanding the above-noted
criticism, the legislation is clear in its intent and does not support a claim
by Ms. Huzar and Ms. Kolosky to automatic band membership.
[15]
I
also cannot identify anything in Bill C-31 that would extend an automatic right
of membership in the Sawridge First Nation to William Stoney. He lost his right
to membership when his father sought and obtained enfranchisement for the
family. The legislative amendments in Bill C-31 do not apply to that
situation.
[16]
Even
if I am wrong in my interpretation of these legislative provisions, this
application cannot be sustained at least in terms of the Applicants’ claims to
automatic band membership. All of the Applicants in this proceeding, among
others, were named as Plaintiffs in an action filed in this Court on May 6,
1998 seeking mandatory relief requiring that their names be added to the
Sawridge membership list. That action was struck out by the Federal Court of
Appeal in a decision issued on June 13, 2000 for the following reasons:
[4] It was conceded by counsel for the
respondents that, without the proposed amending paragraphs, the unamended
statement of claim discloses no reasonable cause of action in so far as it
asserts or assumes that the respondents are entitled to Band membership without
the consent of the Band.
[5] It is clear that, until the Band’s
membership rules are found to be invalid, they govern membership of the Band
and that the respondents have, at best, a right to apply to the Band for
membership. Accordingly, the statement of claim against the appellants, Walter
Patrick Twinn, as Chief of the Sawridge Indian Band, and the Sawridge Indian
Band, will be struck as disclosing no reasonable cause of action.
See Huzar v Canada, [2000] FCJ no 873, 258 NR 246.
[17]
It
is not open to a party to relitigate the same issue that was conclusively
determined in an earlier proceeding. The attempt by these Applicants to
reargue the question of their automatic right of membership in Sawridge is
barred by the principle of issue estoppel: see Danyluk v Ainsworth
Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.
[18]
The
Applicants are, nevertheless, fully entitled to challenge the lawfulness of the
appeal decision rejecting their membership applications.
[19]
The
Applicants did not challenge the reasonableness of the appeal decision but only
the fairness of the process that was followed. Their argument is one of
institutional bias and it is set out with considerable brevity at para 35 of
the Huzar and Kolosky Memorandum of Fact and Law:
35. It is submitted that the total membership
of Sawridge First Nation is small being in the range of 50 members. Only three
applicants have been admitted to membership since 1985 and these three are (were)
the sisters of deceased Chief, Walter Twinn. The Appeal Committee consisted of
21 of the members of Sawridge and three of these 21 were the Chief, Roland
Twinn and Councillors, Justin Twinn and Winona Twin, who made the original
decision appealed from.
[20]
In
the absence of any other relevant evidence, no inference can be drawn from the
limited number of new memberships that have been granted by Sawridge since
1985. While the apparent involvement of the Chief and two members of the Band
Council in the work of the Appeal Committee might give rise to an appearance of
bias, there is no evidence in the record that would permit the Court to make a
finding one way or the other or to ascertain whether this issue was waived by
the Applicants’ failure to raise a concern at the time.
[21]
Indeed,
it is surprising that this issue was not fully briefed by the Applicants in
their affidavits or in their written and oral arguments. It is of equal
concern that no cross-examinations were carried out to provide an evidentiary
foundation for this allegation of institutional bias. The issue of
institutional bias in the context of small First Nations with numerous family
connections is nuanced and the issue cannot be resolved on the record before
me: see Sweetgrass First Nation v Favel, 2007 FC 271 at para 19, [2007]
FCJ no 347, and Lavalee v Louison, [1999] FCJ no 1350 at paras 34-35, 91
ACWS (3d) 337.
[22]
The
same concern arises in connection with the allegation of a section 15 Charter
breach. There is nothing in the evidence to support such a finding and it was
not advanced in any serious way in the written or oral submissions. The record
is completely inadequate to support such a claim to relief. There is also
nothing in the record to establish that the Crown was provided with any notice
of what constitutes a constitutional challenge to the Indian Act.
Accordingly, this claim to relief cannot be sustained.
[23]
For
the foregoing reasons these applications are dismissed with costs payable to
the Respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that these applications are dismissed with
costs payable to the Respondent.
"R.L.
Barnes"
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