Peters v. Peters First Nation

Peters v. Peters First Nation
Court (s) Database
Federal Court Decisions
Date
2023-03-23
Neutral citation
2023 FC 399
File numbers
T-996-21
Decision Content
Date: 20230323
Docket: T-996-21
Citation: 2023 FC 399
Ottawa, Ontario, March 23, 2023
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
GUY PETERS
Applicant
and
PETERS FIRST NATION, PETERS FIRST NATION BAND COUNCIL, NORMA WEBB, IN HER CAPACITY AS CHIEF OF PETERS FIRST NATION, DAVID PETERS, IN HIS CAPACITY AS COUNCILLOR OF PETERS FIRST NATION AND VICTORIA PETERS, IN HER CAPACITY AS COUNCILLOR OF PETERS FIRST NATION
Respondents
JUDGMENT AND REASONS
I. Nature of the Matter
[1] Guy Peters [Applicant] seeks judicial review of the Peters First Nation [PFN] Band Council’s [Band Council] [together, the Respondents] January 21, 2020 decision refusing his application for membership in PFN [2020 Decision]. PFN, as represented by the Band Council, issued the 2020 Decision by way of Band Council Resolution. The 2020 Decision was made in accordance with the Federal Court of Appeal’s decision in Peters First Nation Band Council v Peters, 2019 FCA 197 [Peters FCA], wherein the Court remitted his initial membership application for redetermination.
[2] The application for judicial review is allowed.
II. Background
A. Peters First Nation
[3] PFN is a band within the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act] governed by one Chief and two Councillors. It is a small First Nation with only 65 members, 42 of whom are entitled to vote [Electors]. At the time the Peters Indian Band Membership Code [Membership Code] came into effect, PFN had only 26 Electors.
B. Legal Framework
[4] This application engages two separate but related schemes concerning the granting of membership in PFN: (1) the Membership Code; and (2) the Indian Act, including its predecessor the Indian Act, SC 1951, c 29 [Pre-1985 Indian Act].
(1) The Membership Code
[5] Prior to 1985, The Department of Indian Affairs and Northern Development [DIAND, formerly Indian and Northern Affairs Canada or INAC, now referred to as Indigenous Services Canada or ISC] maintained both the General List of status Indians as well as the Band List of members for each First Nation. After 1985, due to amendments to the Indian Act, Parliament enabled First Nations to adopt their own membership rules on certain conditions. PFN created interim rules in 1985 [Interim Rules] and adopted the Membership Code in 1990. The relevant section of the Membership Code provides:
Part III – Membership Criteria
1. Membership in the Peters Indian Band shall consist of the following persons:
…
E. everyone who is a natural child of a parent whose name is registered on the Band List;
(2) The Pre-1985 Indian Act
[6] The Court in Peters FCA set forth the relevant provisions of the Pre-1985 Indian Act:
[15] The scheme of the Pre-1985 Act contemplated that a person could not be entered on a Band List unless they were also entitled to registration as an Indian (Pre-1985 Act, s. 6). The Department was responsible for maintaining an Indian Register which recorded the names of persons entitled to be registered as an Indian (Pre-1985 Act, s. 5).
[16] The Indian Register under this legislative scheme also included the Band Lists. Persons who were entitled to be registered as Indians were to be recorded by the Registrar on either a Band List, if they were a member of a band, or on a General List, if they were not a member of a band (Pre-1985 Act, s. 6). For this purpose, “member of a band” includes a person “who is entitled to have his name appear on a Band List” (Pre-1985 Act, s. 2(1)).
[17] Section 10 of the Pre-1985 Act is a provision that describes an entitlement to be on a Band List. It reads:
10 Where the name of a male person is included in, omitted from, added to or deleted from a Band List or a General List, the names of his wife and minor children shall also be included, omitted, added or deleted, as the case may be.
10 Lorsque le nom d’une personne du sexe masculine est inclus dans une liste de bande ou une liste générale, ou y est ajouté ou omis, ou en est retranché, les noms de son épouse et de ses enfants mineurs doivent également être inclus, ajoutés, omis ou retranchés, selon le cas.
[18] Subsection 11(1) of the Pre-1985 Act prescribed persons who were entitled to be registered. Paragraph 11(1)(c) is relevant in this appeal. It is reproduced below, along with the other provisions referred to in paragraph 11(1)(c):
(3) The Indian Act
[7] The Indian Act was the subject of significant amendments by Bill C-31, An Act to Amend the Indian Act, 1st Sess, 33rd Parl, 1985 [Bill C-31]. The Bill C-31 amendments came into effect on April 17, 1985.
[8] The Court in Peters FCA set out the relevant statutory scheme for the Indian Act:
[6] The Department of Indian Affairs and Northern Development (Department) is required to maintain an Indian Register, which records the names of persons who are entitled to be registered as an Indian under the Act (Act, s. 5(1)). The Indian Register is maintained by the Registrar who is an official of the Department.
[7] One category of persons generally entitled under the Act to be registered are persons who are “registered or entitled to be registered immediately before April 17, 1985” (Act, s. 6(1)(a)).
[8] In addition, a Band List is to be maintained in accordance with the Act for each band, which is to include the names of every member of the band (Act, s. 8). A “member of a band” is defined in subsection 2(1) of the Act to mean “a person whose name appears on a Band List or who is entitled to have his name appear on a Band List.”
[9] Band Lists may either be maintained by the Department (Act, s. 9) or by the band (Act, s. 10).
[10] “Until such time as a band assumes control of its Band List, the Band List of that band shall be maintained in the Department by the Registrar” (Act, s. 9(1)).
[11] While the Band List is maintained by the Department, section 11 of the Act describes persons who are entitled to have their names entered on the list. This category includes a person described in paragraph 11(1)(a) of the Act, which provides:
11 (1) Commencing on April 17, 1985, a person is entitled to have his name entered in a Band List maintained in the Department for a band if
11 (1) À compter du 17 avril 1985, une personne a droit à ce que son nom soit consigné dans une liste de bande tenue pour cette dernière au ministère si elle remplit une des conditions suivantes :
(a) the name of that person was entered in the Band List for that band, or that person was entitled to have it entered in the Band List for that band, immediately prior to April 17, 1985;
a) son nom a été consigné dans cette liste, ou elle avait droit à ce qu’il le soit le 16 avril 1985;
…
[…]
[12] A band may assume control of its membership by satisfying certain conditions and giving notice to the Minister of Indian Affairs and Northern Development. After this time, any additions or deletions to the Band List by the Registrar are of no effect unless they are in accordance with the membership rules established by the band (Act, s. 10(8)). Once the Registrar provides the Band List to the band, the Registrar has no further responsibility for the list (Act, s. 10(9)).
[13] A band that assumes control of its membership may establish its own membership rules (Act, s. 10(2)). However, by virtue of subsections 10(4) and 10(5), if someone had already acquired the right to membership in the band prior to the time that the band established membership rules, the rules established by the band may not deprive that person of their acquired right “by reason only of a situation that existed or an action that was taken before the rules came into force.”
[14] Subsections 10(4) and 10(5) of the Act were considered by this Court in Sawridge Band v. Canada, 2004 FCA 16, [2004] 3 F.C. 274 at paras. 26-30. The Crown had applied to the Federal Court for an injunction to require Sawridge Band to include several individuals on their Band List on the basis that they had acquired the right to be members before Sawridge Band took control of its Band List on July 8, 1985. In the appeal of the Federal Court’s decision granting the injunction, this Court adopted the Federal Court’s interpretation of subsections 10(4) and 10(5) as follows: “… the band is obliged to enter the names of all entitled persons on the list which it maintains. …When seen in this light, it becomes clear that the limitation on a band’s powers contained in subsections 10(4) and 10(5) is simply a prohibition against legislating retrospectively: a band may not create barriers to membership for those persons who are by law already deemed to be members” (Sawridge Band at para. 26).
C. History of the Matter
(1) Events Leading to the First Judicial Review
[9] In Peters v Peters First Nation Band, 2018 FC 544 [Peters FC], this Court addressed the first denial of the Applicant’s membership application in PFN. The Band Council appealed, resulting in Peters FCA. The Federal Court of Appeal’s overview is useful to reproduce, as it reflects the facts before the Court in this application:
[20] Mr. Peters was born on October 24, 1965, and from the age of 19 attempted several times to become a member of PFN. As some of his applications are relevant to this appeal, the application history is outlined below.
[21] On September 17, 1985, Mr. Peters applied to be registered under the Act. He received a letter from the Acting Registrar, dated August 21, 1987, confirming that he had been registered in the Indian Register in accordance with paragraph 6(1)(a) of the Act and as a member of PFN in accordance with paragraph 11(1)(a) [my emphasis]. These provisions generally qualify persons for registration or membership if they were so entitled immediately prior to April 17, 1985.
[22] In an internal communication within the Department, also dated August 21, 1987, the Registrar expanded on the reason for the decision:
Guy Peters is a male person who is a direct descendant in the male line of Robert Wilmer Peters No. 23 Peters Band. He is therefore entitled to be registered as an Indian and a member of the Peters Band under the provisions of Section 6(1)(a) and 11(1)(a) of the Indian Act as amended on June 28, 1985, on the basis of his entitlement to registration under Section 11(1)(c) of the Indian Act as it read prior to April 17, 1985.
[23] Effective June 25, 1987, the PFN assumed control over its membership.
[24] On October 15, 1987, the Registrar provided the PFN with a copy of the Band List that had been maintained by the Department as it is required to do under the Act (Act, s. 10(7)). The Band List was comprised of three parts: (1) a computer listing, which was a copy of the Band List as entered and maintained in the computer records of the Registrar; (2) a manually maintained list, which was a list of persons whose entitlement to membership had recently been confirmed but whose name did not appear in the computer records; and (3) a list of persons who had recently been added to the band list pursuant to subsection 11(2) of the Act. Mr. Peters’ name appeared on the manually maintained list.
[25] On November 12, 1987, Chief Frank Peters wrote to the Registrar asking to have Mr. Peters’ name removed from the manually maintained list. Chief Frank Peters asserted that the PFN had authority to delete names from the Band List, including the removal of people who had a parent who was a member of another Band. In his affidavit, Mr. Peters stated that “[he] found out [he] had been taken off the Band List in December 1987”. Mr. Peters did not seek judicial review of the decision of Chief Frank Peters to remove him from the Band List.
[26] Mr. Peters subsequently applied for membership in the PFN in October 1996 and again in October 2012. The Band Council did not render decisions with respect to either of these applications.
[27] On March 11, 2016, Mr. Peters submitted another application for membership in the PFN. The Band Council rejected this application on July 25, 2016.
[28] On August 17, 2016, Mr. Peters appealed the Band Council’s decision of July 25, 2016. According to Part V of the PFN Membership Code, “[w]ithin 60 days after receipt of a notice of appeal a general meeting of the Band Electors shall be convened to review the Band Council’s (Membership Committee’s) decision at which the general meeting renders a final decision”. A general meeting of the Band Electors was never convened to review the Band Council’s decision of July 25, 2016.
[Citations omitted.]
[10] More will be said of former Chief Peters’ request to have the Applicant’s name removed from the “manually maintained” list [Band List] in 1987. Briefly, the Respondents submit that the Applicant should have challenged this decision and, as a result, the Applicant is precluded from seeking judicial review now.
(2) The First Judicial Review
[11] Peters FC involved the Applicant’s first membership application as well as the membership applications of his niece and nephew, Amber Rachel Ragan and Brandon Lee Engstrom. This Court determined that the Band Council’s July 25, 2016 decision refusing their membership applications [2016 Decision] was unreasonable and that the Band Council could not deprive the Applicant of membership, as the Applicant had acquired his right to membership before the Membership Code came into effect (at paras 2, 43). The Court relied on an August 21, 1987 letter from the Acting Registrar of INAC [Registrar] to the Applicant [Registrar’s Letter] confirming that the Applicant was registered as a member pursuant to paragraph 11(1)(a) of the Indian Act, and an October 15, 1987 letter from the Registrar to former Chief Peters confirming that the Applicant’s name appeared on the PFN Band List. By virtue of subsection 10(4) of the Indian Act, the Band Council had no power to deprive the Applicant of his acquired right to membership (at para 43). The Court concluded that the Band Council’s failure to recognize that the Applicant was statutorily entitled to membership in PFN through the operation of Bill C-31 rendered the 2016 Decision unreasonable (at para 44).
[12] As for remedies, the Court found that no useful purpose would be served by remitting the matter to the Band Council for redetermination. Therefore, the Court declared the Applicant to be a member of the PFN (at para 58). As noted above, the Band Council appealed.
[13] In Peters FCA, the Federal Court of Appeal affirmed the unreasonableness of the 2016 Decision. However, the Court took issue with this Court’s remedy and its reasons thereof:
[53] Mr. Peters suggests that it is not necessary to refer the matter back to the Band Council because the Federal Court correctly decided that he is statutorily entitled to membership in PFN by operation of ss. 6(1)(a), 11(1)(a) and 10(4) of the Act. By virtue of these provisions, Mr. Peters submits, he was entitled to membership immediately before April 17, 1985.
[54] The difficulty with this submission is that the Federal Court’s conclusion was made without consideration of the applicable legislative provisions in the Pre-1985 Act. Instead, the Federal Court relied upon the content of the August 21, 1987 letter from the Acting Registrar to the effect that Mr. Peters was a member of the PFN. It was an error for the Court to simply accept the Acting Registrar’s conclusion and declare Mr. Peters to be a member of the PFN without satisfying itself that, at law, Mr. Peters was entitled to membership under the Pre-1985 Act. It was necessary for the Federal Court to undertake a proper analysis of the relevant provisions of the Pre-1985 Act in order to make this determination and declare Mr. Peters to be a member of the PFN.
[Citations omitted.]
[14] The Federal Court of Appeal found that neither the Band Council nor this Court grappled with two central issues: (1) whether the Applicant is statutorily entitled to membership under the Pre-1985 Indian Act; and, if not, (2) whether the Applicant is entitled to membership under the relevant Membership Code. The Court also noted that the Applicant had not raised these issues in his membership application or with the Band Council (Peters FCA at paras 57, 59).
[15] The Federal Court of Appeal found that the Band Council should address these issues, with the assistance of submissions from the Applicant, before the Courts intervene. The Court referred the application back to the Band Council for redetermination (Peters FCA at paras 61-63).
(3) The Decision under Review
[16] The exchange of correspondence described below, while framed as between the Applicant and the Band Council, were between the lawyers representing the parties.
[17] On August 22, 2019, the Applicant asked the Band Council to reconsider his membership application in light of Peters FCA. The Applicant provided detailed submissions addressing the two issues identified by the Federal Court of Appeal.
[18] The Applicant sent correspondence to the Band Council on September 23, 2019, November 22, 2019, and December 23, 2019, demanding compliance with the Federal Court of Appeal’s order.
[19] In its 2020 Decision, the Band Council rejected the Applicant’s membership application for the following reasons:
1. We are of the view that Guy Peters is not statutorily entitled to membership in the Peters First Nation for the following reasons:
(a) Guy Peters was granted registration and therefore Indian status on August 21, 1987 pursuant to paragraph 6(1)(a) of the Indian Act, R.S.C. 1985, c. I-5 (the “Act”) which entitles any person to be registered if “that person was registered or entitled to be registered immediately before April 17, 1985”.
(b) Section 11(1)(a) of the Act states the following with respect to membership:
11(1) Commencing on April 17, 1985, a person is entitled to have his name entered in a Band List maintained in the Department for a band if
(a) the name of that person was entered in the Band List for that band, or that person was entitled to have it entered in the Band List for that band immediately prior to April 17, 1985; (the “Pre-1985 Act”)
(c) The applicable sections of the Pre-1985 Act for determination of membership are as follows:
Band Lists and General Lists
6. The name of every person who is a member of a band and is entitled to be registered shall be entered in the Band List for that band, and the name of every person who is not a member of a band and is entitled to be registered shall be entered in a General List.
Wife and minor children
10. Where the name of a male person is included in, omitted from, added to or deleted from a Band List or a General List, the name of this wife and minor children shall also be included, omitted, added or deleted, as the case may be.
(d) Mr. Peters’ birthdate is October 24, 1965. He sent in his application for registration on September 17, 1985 when he was 19 years old. The Acting Registrar sent a letter dated August 21, 1987 confirming that he had been registered in the Indian Register in accordance with paragraph 6(1)(a) and as a member of Peers [sic] First Nation in accordance with paragraph 11(1)(a).
(e) It is our opinion that the Acting Registrar’s conclusion about entitlement to membership pursuant to the Pre-1985 Act was incorrect due to the fact that Mr. Peters was 19 years of age at the time of his application for registration and 21 years of age at the time he was actually registered. In accordance with section 10 of the Pre-1985 Act, Mr. Peters would have to have been a “minor child” to be entitled to be added to the Band List in accordance with section 10 of the Pre- 1985 Act.
(f) We understand that Bill C-31 was enacted to remedy some of the injustices that had taken place with respect to registration and membership and not to change any person’s rights to registration or membership that they had prior to the enactment of Bill C-31. Mr. Peters was not one of these affected persons that had had rights taken away from him. He continued to have the same rights as he had prior to the enactment of Bill C-31. However, at the time he decided to seek registration, he was no longer a minor child and was not entitled to membership pursuant to section 10 of the Pre-1985 Act.
(g) Section 10 of the Act states:
Acquired rights
(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.
(h) The Peters First Nation enacted its Membership Code on June 25, 1987. “Immediately prior” to June 25, 1987 Mr. Peters was 21 years of age and therefore no longer had the rights of a “minor child” to be added to the membership list of the Peters First Nation.
2. We are also of the view that Guy Peters is not entitled to membership in the Peters First Nation as he was an adult when he applied for membership on March 11, 2016. This is precluded by Part III, 1., E. of the Peters First Nation’s Membership Code. As well, we do not believe that admitting Guy Peters to be a member of the Peters First Nation would “promote harmony and the common good” as he has not been an active member of our community.
6. As a result of the foregoing we do not agree to Guy Peters becoming a member of the Peters First Nation. However, if Guy Peters advises us in writing of his desire that a general meeting of the membership of the [PFN] be held to vote on whether he may become a member of the [PFN] we are prepared to hold that meeting within sixty (60) days of his notification. Mr. Peters and his agent, which may include his legal counsel if he wishes, may make representations on his behalf. Such a vote would be by way of secret ballot amongst those who attend the meeting. No mail or electronic voting will be allowed. The decision of the membership shall be final.
(4) Events Leading to the Second Judicial Review
[20] On February 21, 2020, this Court addressed the Band Council’s redetermination of Mr. Engstrom and Ms. Ragan’s membership application (Engstrom v Peters First Nation Band Council, 2020 FC 286 [Engstrom FC]). The Band Council rejected their applications on redetermination on the basis that they were adults when they applied for membership (at para 3). The Court found that there were no age restrictions in the Membership Code that limited applications in this manner, and that such a limitation would likely be prima facie discriminatory (at paras 10, 14).
[21] The Court described the conduct of the Band Council as unlawful, unfair, and the product of bad faith (at para 17). The Court directed the Band Council to take all the steps necessary to grant full membership to the applicants (at para 18).
[22] In two letters dated March 9, 2020 and March 11, 2020, the Applicant urged the Band Council to reconsider its 2020 Decision in light of Engstrom FC. The Applicant also gave notice of an appeal, requesting that the Band Council convene a general meeting within the 60-day time provided for under the Membership Code [Appeal Vote]. In a letter dated May 5, 2020, the Applicant reiterated his position and proposed a process for the Appeal Vote. Specifically, the Applicant requested that the Band Council adopt a mail-in ballot process to ensure a timely and representative vote in light of COVID-19 restrictions.
[23] In two letters dated March 18, 2020 and May 7, 2020, the Band Council refused to reconsider the 2020 Decision and advised that it was appealing Engstrom FC. However, the Band Council agreed to hold an Appeal Vote. The Band Council declined the Applicant’s mail-in ballot proposal.
[24] On July 30, 2020, the Band Council held an in-person Appeal Vote. Twenty-four (24) Electors attended the meeting, and 23 voted on the question of the Applicant’s membership. Of the 23 votes, 19 voted in favour of admitting the Applicant as a member. On August 14, 2020, the Band Council informed the Applicant that the vote was invalid because the Membership Code required a turnout of 75% of the voting membership (in other words, 33 members). As such, the Band Council would set another date for an Appeal Vote in order to obtain the requisite numbers.
[25] From August 2020 to May 2021, the Applicant wrote to the Band Council requesting a subsequent Appeal Vote. On June 17, 2021, as a result of the Band Council’s inaction, the Applicant filed the present application for judicial review.
[26] On July 21, 2021, the Band Council proposed to hold an Appeal Vote on August 21, 2021. On August 10, 2021, the Band Council informed the Applicant that several members were unavailable on the set date. As such, the Appeal Vote was postponed until December 22, 2021, the same day as the election for Chief and Council [Election], to ensure high voter turnout. The Band Council also advised that the Applicant was permitted to vote in the Election, and that if the membership overturned the 2020 Decision, his vote would be counted.
[27] On December 20, 2021, the Federal Court of Appeal affirmed the unreasonableness of the Band Council’s redetermination decision in Engstrom FC (Peters First Nation v Engstrom, 2021 FCA 243 at paras 15-28 [Engstrom FCA]). The Federal Court of Appeal also held that this Court did not err in ordering the Band Council to grant the respondents’ membership (at para 31).
[28] That same day, the Applicant wrote to the Band Council requesting that it confirm that he would be added to the membership list forthwith and that he would be entitled to vote in the Election. The Applicant also sought to confirm that the December 22, 2021 Appeal Vote was no longer required.
[29] The Appeal Vote proceeded on December 22, 2021, along with the Election for Chief and Council. However, the Appeal Vote was cancelled later that day by the Chief and Electoral Officer, alleging a lack of attendance at an information meeting held earlier that day. According to the Band Council, the Membership Code required 75% of the voting membership to attend this information meeting for the Appeal Vote to proceed.
(5) Appeal of Engstrom FCA
[30] As the Respondents have noted, the Court in Engstrom FCA made findings directly on point for the present matter. Specifically, the Membership Code does not provide for age restrictions on the determination of membership in PFN. However, the Band Council filed an application for leave to appeal to the Supreme Court of Canada on February 17, 2021. At the time of the hearing of this application, the Applicant had not yet filed its response to the application for leave. The Respondents assert that the fact that the Supreme Court of Canada has not yet dealt with the appeal rendered this application premature.
[31] On October 20, 2022, the Supreme Court of Canada refused the Band Council’s leave to appeal. Engstrom FCA is binding authority for this Court.
III. Issues
[32] After reviewing the parties written submissions and hearing oral argument, the issues are:
Is the judicial review premature?
Is the application out of time?
Does the 1987 request preclude the Applicant from seeking judicial review?
Was the 2020 Decision reasonable?
Was the 2020 Decision procedurally fair?
Did the Band Council abuse its powers and act in bad faith?
What are the appropriate remedies?
IV. Standard of Review
[33] The Applicant submits that a band council’s interpretation and application of a custom membership code are reviewed on the standard of reasonableness (Norris v Matsqui First Nation, 2012 FC 1469 at para 50). The Applicant further submits that the standard of correctness applies to questions of procedural fairness (Crawler v Wesley First Nation, 2016 FC 385 at para 19).
[34] The Respondents do not make submissions on the standard of review.
[35] Issues #3 and #4 attract a reasonableness standard of review. The presumption of reasonableness applies to an administrative decision-maker’s interpretation of their enabling statute (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 [Vavilov]). In this case, the Band Council interpreted the Membership Code, an Indigenous law of PFN. Deference is owed to Indigenous decision-makers’ understanding of their own Indigenous laws (Pastion v Dene Tha’ First Nation, 2018 FC 648 at paras 21-23).
[36] A reasonableness review requires the Court to examine the Decision for intelligibility, transparency, and justification. In conducting a reasonableness review, the reviewing court must look to both the outcome of the decision and the justification of the result, particularly as they relate to the relevant factual and legal constraints (Vavilov at paras 87, 99). However, a reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision-maker” (Vavilov at para 125, citing Canada (Canadian Human Rights Commission) v Canada (AG), 2018 SCC 31 at para 55). Where the reasons of the decision-maker allow a reviewing Court to understand why the decision was made and determine whether it falls within a range of acceptable outcomes, the decision will be reasonable (Vavilov at paras 85-86).
[37] I also agree with the Applicant that the standard of review for Issue #5 is akin to correctness. No deference is owed on issues of procedural fairness (Connolly v Canada (National Revenue), 2019 FCA 161 at para 57). However, “[t]he duty of procedural fairness in administrative law is ‘eminently variable’, inherently flexible and context-specific” (Vavilov at para 77). In the context of Indigenous laws, the content of the duty of fairness must be “tailored to the particular circumstances and context of the [appeal body]. This context can and should include judicial respect for relevant custom” (Bruno v Samson Cree Nation, 2006 FCA 249 at para 20; Labelle v Chiniki First Nation, 2022 FC 456 at paras 91-92).
[38] The remaining issues do not attract a standard of review.
V. Analysis
[39] Subsequent to the hearing of this matter, the Applicant’s counsel informed the Court by letter that the Supreme Court of Canada refused the Band Council’s application for leave in Engstrom FCA. This commenced an exchange in correspondence where the Court was informed of various positions of counsel. Those submissions are not relevant to the determination of this matter. I will address the matters as they were argued before the Court at the hearing.
A. Is the judicial review premature?
[40] The Respondents submit that the Applicant must first exhaust the remedies under the Membership Code before being entitled to the relief sought in this proceeding. They assert that they have held two general meetings and are intending to hold a third as soon as possible, which may render this proceeding moot. This Court should consider judicial economy when determining this issue.
[41] This argument was raised in Peters FCA, where Justice Woods stated:
[36] Part V of the PFN Membership Code contemplates that an applicant can appeal a decision of the Band Council to deny membership. If such an appeal is brought, a general meeting of the Band Electors is to be convened within 60 days and they are to render a final decision.
[37] As a general rule, absent exceptional circumstances, a Court should refuse to hear a judicial review application unless all the administrative appeal processes have been exhausted (Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 at paras. 30-33). In Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 101, this Court held, “[judicial review] is a tool of last resort, available only when a cognizable administrative law claim exists, all other routes of redress now or later are foreclosed, ineffective or inadequate, and the Federal Court has the power to grant the relief sought”.
[38] In Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at paras. 42-45, the majority of the Supreme Court noted that since refusing to hear an application for judicial review on the basis that the parties have not exhausted an alternative remedy is discretionary, before deciding whether to refuse to hear the application for judicial review, the court must consider all the circumstances of the case, including: the convenience of the alternative remedy, the basis of the judicial review application, the nature of the other forum and its remedial capacity, expeditiousness, the relative expertise of the alternative decision-maker, the economical use of judicial resources, and the costs incurred by the parties. The court should identify and balance the relevant factors in the context of each case to determine whether judicial review is appropriate.
[42] As discussed above, the Applicant requested a reconsideration of the 2020 Decision in light of both Engstrom FC and Engstrom FCA. He also gave notice of an appeal pursuant to the Membership Code, but the Appeal Vote ultimately never materialized. Unable to make any progress, the Applicant filed this application.
[43] In asserting that there was a required 75% threshold at the information meeting for the Appeal Vote to proceed, the Band Council relied on the following provisions of the Membership Code:
4. The Band Council shall convene a general meeting of the Band Electors as required with respect to disposing of appeals based on decisions rendered by the Band Council and found un-acceptable by an applicant for residency on the Reserve in accordance with the Peters Indian Band By-Law regarding residence of Band Members and other persons on the Peters Indian Reserve.
5. To ensure that a person's democratic rights are preserved, a duly convened meeting of the electors of the band shall consist of three quarters or more of the qualified voters of the Band.
[Emphasis added.]
[44] On a plain reading, the above threshold clearly relates to an appeal of one’s residency on the reserve, not an Appeal Vote concerning membership. According to Vavilov, a decision-maker may have some room to interpret the rules that apply to a matter before it, but that exercise “must be consistent with the text, context and purpose of the provision” (Vavilov at para 120). The Band Council’s interpretation of the above provisions is inconsistent with the text of the provision.
[45] At the hearing, the Respondents advised that an Appeal Vote was scheduled for October 2022. In Peters FCA, the Court determined that the Applicant has sought membership in PFN since at least September 17, 1985, and that given the length of the dispute between the parties, it would serve the interests of justice for this Court to consider the merits of the application for judicial review (at para 42). What was true three years ago is true today. Accordingly, I do not find the application for judicial review premature.
B. Is the application out of time?
[46] Although the Applicant has not requested an extension of time, either formally or informally, I am of the view that the application for judicial review is not out of time and that it is in the interests of justice to hear the matter.
[47] The Respondents submit that the Applicant is 15 months beyond the 30-day time limit set out in section 18.1(2) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act].
[48] In my view, the Respondents’ submissions fly in the face of their prior prematurity argument. The Applicant has attempted exhaust his remedies under the Membership Code through an Appeal Vote. The record shows that these attempts have been thwarted by the Band Council. The Respondents cannot have it both ways.
[49] The 30-day limit for commencing judicial review applications exists in the public interest. As the Federal Court of Appeal has explained, “[i]t brings finality to administrative decisions so as to ensure their effective implementation without delay and to provide security to those who comply with the decision or who enforce compliance with it” (Canada v Berhad, 2005 FCA 267 at para 60).
[50] Subsection 18.1(2) of the Federal Courts Act provides this Court with a discretionary power to extend the 30-day time limitation. Various factors are relevant in an application to extend time. One such factor requires that an applicant demonstrate a continuing intention to pursue legal remedies in regard to the decision being challenged (Crowchild v Tsuu T’ina Nation, 2017 FC 861 at para 19). However, these factors are not rules that fetter the Court’s discretion, and it is open to a motion judge to determine which factors are to be taken into account based on the facts of a particular case (Jakutavicius v Canada (AG), 2004 FCA 289 at paras 15-17). Ultimately, the overriding consideration is that the interests of justice be served (Thompson v Canada (AG), 2018 FCA 212 at paras 6, 9).
[51] In the present case, the Applicant took all of the necessary steps under the Membership Code to initiate the administrative appeal process in due time. The record shows that the 15 month time period referenced by the Respondents is not a result of the Applicant’s conduct. Rather, the Applicant was very active in pursuing the Appeal Vote. Moreover, by letter dated May 10, 2021, the Applicant informed the Band Council that if an Appeal Vote was not scheduled by the end of May, he would file a court application for the immediate registration of his membership. The Applicant then filed his application for judicial review on June 17, 2021.
[52] The Applicant should not be penalized for attempting to exhaust his remedies in accordance with the Membership Code before filing his application for judicial review. In fact, the constant postponement of the Appeal Vote has already prejudiced the Applicant. If the vote had been held within the 60-day time period required by the Membership Code, the Applicant could have initiated an application for judicial review before this Court as early as June 2020. The Applicant lost a full year in seeking relief before this Court due to the Band Council’s actions.
C. Does the 1987 request preclude the Applicant from seeking judicial review?
(1) Applicant’s Position
[53] Despite his absolute right to membership, former Chief Peters wrote to Registrar asking that the Applicant be removed from the Band List (Peters FC at para 14). There is no record of a response from the Registrar. Accordingly, these events have no legal effect on the Applicant’s entitlement to membership.
[54] Further, subsection 10(8) of the Indian Act provides that bands who assume control over its membership may only modify the Band List in accordance with the membership rules established by the band. Neither the protest provisions under the Indian Act nor the Membership Code were followed in seeking to remove the Applicant from the Band List.
[55] Given the Band Council’s persistent refusal to recognize the Applicant as a member, the Applicant was forced to formally request membership on the basis of his acquired rights. However, neither former Chief Peters nor the subsequent Band Councils had the authority to unilaterally remove him from Band List. If the Band Council wanted to challenge the decision of the Registrar to add him to the Band List, it ought to have complied with the protest provisions under the Indian Act.
(2) Respondents’ Position
[56] PFN had control of its membership as of June 25, 1987. The Applicant did not become a status Indian until August 21, 1987, at which time he was 21 years old. Therefore, prior to that time, he could not be affiliated with any First Nation by INAC, much less be included on any First Nation’s membership list.
[57] Those on the PFN membership list as of June 25, 1987 automatically became members of PFN and subject to the Membership Code. The Applicant was not one of those individuals. The Registrar placed the Applicant on the Band List some ti