Johnston v. Okanagan First Nation

Johnston v. Okanagan First Nation
Court (s) Database
Federal Court Decisions
Date
2022-08-29
Neutral citation
2022 FC 1237
File numbers
T-951-21
Decision Content
Date: 20220829
Docket: T-951-21
Citation: 2022 FC 1237
Ottawa, Ontario, August 29, 2022
PRESENT: The Honourable Madam Justice Strickland
Docket: T-951-21
BETWEEN:
MARILYN JOHNSTON
Applicant
and
THE OKANAGAN INDIAN BAND
Respondent
JUDGMENT AND REASONS
[1] This is the judicial review of a decision dated May 10, 2021 [2021 Reconsideration Decision], by the Okanagan Indian Band [OKIB] Chief and Council [collectively, Council], refusing to give consent, pursuant to section 12 of the Indian Act, RSC 1985 c I-5, to the transfer of the band membership of Ms. Marilyn Johnston [Applicant] from another Indian band to the OKIB.
Background
[2] OKIB, the Respondent, is an Indian Band as defined in the Indian Act. Pursuant to section 10(1) of the Indian Act, a band may assume control over its own membership if it establishes membership rules for itself in writing in the manner set out in that section. In that event, the band is required to maintain its own band list (section 10(10)). If a band does not establish its own membership rules, then individuals will be entitled to have their names entered in a band list maintained for the band by the Department of Indigenous Services [Department] if they meet the specified criteria (section 11). OKIB is a section 11 band, it does not have a membership code and its Band list is maintained by the Department. Individuals may only have their names entered in one band list (section 13), however, pursuant to section 12 of the Indian Act they may transfer their membership to another band if the council of the admitting band consents.
[3] The Applicant was registered in the Indian Registry maintained by the Department of Indian and Northern Affairs Canada (now the Department of Indigenous Services), pursuant to section 6(2) of the Indian Act, on November 16, 1987 and, at the same time, was registered as a member of the OKIB, pursuant to section 11(2)(b) of the Indian Act. Her entitlement to registration was based on the fact that her father, Frank Jack, was a member of the OKIB. The supporting documentation for the Applicant’s application for registration in the Indian Registry included a Statutory Declaration completed by Frank Jack on June 12, 1987 confirming the Applicant’s paternity.
[4] The Applicant claims that she was raised by her maternal grandfather and her aunt and uncle, Raymond and Rhoda Simla, on the OKIB reserve lands. In 1976, the Applicant moved to Fort St. James, British Columbia, and began working there providing social services. On January 22, 1988, the Applicant wrote to OKIB and Nak’azdli Whut’en Indian Band seeking a transfer of her band membership to the latter band. She remains a member of the Nak’azdli Whut’en Indian Band.
[5] The Applicant has been attempting to transfer her membership back to OKIB since making her first request to do so by letter to OKIB dated August 19, 2002. Her efforts in that regard will be addressed in detail later in these reasons.
[6] In 2009, the Applicant moved to the farm of her aunt, Rhoda Simla, on the OKIB reserve. She continued her efforts to transfer her band membership back to OKIB. However, her application was not processed.
[7] On October 6, 2010, OKIB adopted the Okanagan Indian Band Membership Transfer Policy [2010 Transfer Policy]. The Applicant’s application to transfer her membership back to OKIB was assessed by an OKIB administrator as having met all of the requirements of the 2010 Transfer Policy and Council was informed of this. However, on February 8, 2012 Council voted to suspend all membership transfer applications “until further clarity is completed on the membership transfer policy”.
[8] On November 13, 2013, Rhoda Simla passed away, naming the Applicant as the sole beneficiary of her estate. Assets of the estate included interests in four lots of land which have been described in the record as follows:
a) Lot 144-1Block4 CLSR80912 (thewholeinterest);
b) Lot9BlockB Fry Sketch 319-36 Parcel 2 No Plan(thewholeinterest);
c) Lot 10 Block4 RemRSBC 551(an undivided½interest); and
d) Lot 10 BlockBFrySketch319-36 No Plan(thewholeinterest).
[Simla Estate Lands]
[9] Although the Applicant was the sole beneficiary of the estate, because she was not a member of OKIB, she was not eligible to receive any possessory or occupational interest in the Simla Estate Lands on the OKIB reserve. In that circumstance, section 50 of the Indian Act permits the Superintendent of Indian Affairs to offer the interest in the land for sale to band members, sell it to the highest bidder and then pay the proceeds to the non-band heir or beneficiary. If there are no bidders then the interest in the land would be returned to the band without payment of any compensation to the non-member heir or beneficiary for the value of the land.
[10] While the Applicant’s application for transfer of her membership back to OKIB was still awaiting determination, the Executive Director of OKIB wrote to AANDC (now Indigenous Services Canada [ISC]) requesting that the Simla Estate Lands be sold and that anyone improperly living on the lands be removed. Lot 145 Block 4 and Lot 144-1 were subsequently sold by AANDC [Sold Simla Estate Lands].
[11] The Applicant resides on Lots 9 and 10 Block Fry Sketch with her daughter and grandson [Remaining Simla Estate Lands].
[12] On September 27, 2016, a member of the OKIB Council, Lyle Brewer, and Randy Marchand an OKIB staff member, attended at the Remaining Simla Estate Lands along with members of Russell Shortt Surveying, including Ray Marchand, who had been engaged by Council to survey the boundaries of those lands. The Applicant refused to allow them access. According to Councillor Brewer, she ordered everyone off the property, demanded to see papers authorizing them to attend on the land and stated that she was the owner of the property. The Applicant also removed the surveyor’s tripod to the shoulder of the road. Councillor Brewer reports that the Applicant then got back in her car and said something like “Do you want me to go back to my house and get my gun?”. There is no evidence that this incident was raised by Council with the Applicant at that time.
[13] In February 2017, the Applicant wrote to AANDC asking that they intervene with her OKIB membership transfer application, which remained unresolved. By letter dated September 14, 2017 AANDC acknowledged a letter from her dated of May 18, 2017 advising that her 2009-2010 band membership transfer application had not been accepted or rejected. AANDA (now Indigenous and Northern Affairs Canada [INAC]) advised that it could not assist the Applicant as it had no authority to intervene in OKIB’s process.
[14] On September 27, 2017, OKIB Council adopted the Section 12 Membership Transfer Policy [2017 Transfer Policy].
[15] On March 6, 2018, OKIB advised the Applicant of this development. On April 16, 2018, OKIB wrote to the Applicant advising her of the new policy and that, before her application for transfer of membership could move forward, the listed document and/or updated information was required. However, the increased application fee and new application form were waived in her case. She was advised that if the required documents were not provided by June 20, 2018 her application would be considered inactive and would not be processed until the documents were received. The letter also addresses the submission of optional documentation pertaining to OKIB or Sylix ancestry. Also on April 16, 2018, the Department of Justice, Aboriginal Law section, wrote to the Applicant advising that OKIB Council had asked ISC to proceed with the sale of the Remaining Simla Estate Lands and that ISC would do so if the Applicant did not provide ISC with satisfactory evidence, by September 30, 2018, that she is an OKIB member.
[16] On May 7, 2018, OKIB advised the Applicant that three documents were still outstanding (signed letters from the Nal’azdli Whu’en band confirming that she did not hold a Certificate of Possession of that band’s lands and owed no debt to that band and, a photocopy of her current Certificate of Indian Status (status card) as the one she had submitted had expired) and that if these were not received by June 20, 2018 her application would be rejected as incomplete and Council would not consent to her transfer to OKIB.
[17] On May 28, 2018, the Applicant attended the OKIB Band Office to have her status card renewed as part of her transfer membership application (it appears from an email from Veronica Wilson that the Applicant had originally attended and applied to renew her status card on May, 17, 2018, without incident). An OKIB Employee Incident Report Form submitted by Veronica Wilson, an Indian Registry Administrator, dated May 29, 2018 [Wilson Incident Report Form] states that Ms. Wilson told the Applicant that she needed the long-form birth certificate, not the version that she had with her. Ms. Wilson claims that during this interaction the Applicant “got loud” and demanded that Ms. Wilson photocopy the birth certificate and renew her status card. Ms. Wilson reported that she “felt threatened by her aggressive and rude behaviour”. There is no evidence that this incident was raised with the Applicant by OKIB at that time.
[18] On June 15, 2018, surveyor Jason Shortt attempted to access the Remaining Simla Estate Lands for the purposes of a survey at the request of Council. On October 25, 2018, he wrote a letter to Council stating that the Applicant had refused to allow the surveyors to proceed without a court order [Shortt Letter]. The record contains no evidence indicating why this letter was submitted four months after the surveyor’s attendance.
[19] A decision on the Applicant’s request to transfer her band membership was made on July 30, 2018 by way of a Band Council Resolution [2019 Decision]. Council declined to consent to have the Applicant’s name entered in the OKIB Band List, under section 12 of the Indian Act and OKIB’s 2017 Transfer Policy, on the basis that the Applicant had failed to provide signed letters from the Nak’azdli Whut’en Indian Band stating that she does not hold a Certificate of Possession on any of that band’s land and that she does not have any outstanding debts, which documents were required by sections 6.1(b)(ii) and 6.1(b)(iii) of the 2017 Transfer Policy. However, that another application would be considered sooner than 5 years from the date of the decision if she provided the missing information.
[20] By September 18, 2018, the Applicant had provided the two outstanding letters. She claims that she had advised OKIB that they had been delayed due to forest fires in the area of the Nak’azdli Whut’en reserve lands which had forced evacuations.
[21] On October 29, 2018 and November 27, 2018, Victor Rumbolt, then Executive Director of OKIB, wrote to the Applicant advising that the outstanding letters had been received and that her application to transfer her membership to OKIB was now being considered by Council. However, that Council’s initial review had raised two issues. The Applicant was invited to make further submissions on those issues before Council made a final decision.
[22] The first issue was her OKIB ancestry. The letter states that the Applicant’s mother was not an OKIB member and her father was not listed on her birth certificate. OKIB’s membership files indicated that when the Applicant first sought to join OKIB in the 1980’s she provided one or more statutory declarations to the Indian Registry to establish that her father was an OKIB band member. However, OKIB did not have copies. The letter requested that she provide copies, and any other information or documentation she might like Council to consider regarding her ancestry, by November 13, 2018.
[23] The second issue was described as threatening behaviour to OKIB staff and guests. Copies of the Brewer and Marchand Emails (with names deleted), the Wilson Incident Report Form (name deleted) and the Shortt Letter were attached. The Applicant was advised that if she would like to respond to those statements with her own perspective on these incidents and how Council should take them into account when determining her membership application, she should do so by letter by November 13, 2018. The Applicant responded by letter dated December 3, 2018.
[24] By Band Council Resolution dated January 7, 2019 Council declined to consent to the Applicant’s name being added to the OKIB band list [2019 Decision]. The stated reason for this was that:
OKIB has received multiple reports of aggressive and threatening behaviour by Ms. Johnston toward OKIB staff and guests, including verbal threats to use a firearm against an OKIB member, and she has not provided sufficient excuse or explanation for this behaviour. She has not taken responsibility for this behaviour and has denied it. As a result, we do not believe she would make a positive contribution to the OKIB community.
[25] On September 17, 2019, OKIB filed a Notice of Civil Claim in the Supreme Court of British Columbia [SCBC] seeking, among other things, a declaration that OKIB, as the beneficial owner of the Remaining Simla Estate Lands, was entitled to all of the rents, actual and potential, in respect to those lands since the death of Rhoda Simla; damages arising from trespass and conversion; and an order enjoining the Applicant from entering the OKIB reserve and the subject lands.
[26] On January 17, 2020, pursuant to section 4.10 of the version of the 2017 Transfer Policy then in effect (adopted September 25, 2017 and amended November 14, 2017), the Applicant launched a protest against the 2019 Decision [Protest]. Section 4.10 provided that any applicant wishing to appeal a decision of Chief and Council under the transfer policy could submit a protest to the Indian Registrar under section 14.2 of the Indian Act.
[27] On August 4, 2020, OKIB filed an application for summary trial in the SCBC seeking remedies that included a declaration that OKIB, as the beneficial owner of the Remaining Simla Estate Lands, was entitled to all the rents, both actual and potential, in respect of the land since the death of Rhoda Simla, damages arising from trespass and conversion and, an order enjoining Ms. Johnston, the defendant in that action, from entering the Reserve and the Remaining Simla Estate Lands [Trespass Claim].
[28] On August 17, 2020, the Applicant brought a cross application seeking a stay of the SCBC Trespass Claim until her Protest could be heard.
[29] The SCBC issued its decision with respect to the summary trial application and the stay application on October 14, 2020 (Okanagan Indian Band v Johnston, 2020 BCSC 1749) [Trespass Decision]. It adjourned OKIB’s summary trial application with respect to the Trespass Claim and stayed the proceedings for a period of one year.
[30] In December 2020, the 2017 Transfer Policy was amended by Council to remove the right to protest to the Indian Registrar.
[31] By letter dated January 11, 2021, OKIB Chief Byron Louis wrote to the Applicant and offered to reconsider the 2019 Decision. The letter refers to her Protest to the Indian Registrar in which counsel for the Applicant stated that the Applicant did not have an adequate opportunity to respond to the statements from OKIB representatives and guests regarding the Applicant’s behaviour prior to Council making its decision to deny her application. Chief Louis stated that Council wished to give the Applicant another opportunity to respond and present her views to Council. The previously provided documents (the Brewer and Marchand Emails, Wilson Incident Report and the Shortt Letter) were again attached. Chief Louis advised that Council would consider any further information or documentation if received by February 10, 2021 and also invited the Applicant to attend a Council meeting (via Zoom) on March 1 or March 8, 2021 to make verbal submissions to Council, should she wish to do so. She could also bring a lawyer to the Council meeting if she wished. Chief Louis also noted that the 2017 Transfer Policy had been amended in December 2020 to remove the right to protest to the Indian Registrar.
[32] The Applicant initially declined the invitation to make submissions to Council (by letter dated January 21, 2021). However, by letter to Council dated February 10, 2021, her counsel advised that the Applicant was agreeable to attend a Council meeting on March 8, 2021, via Zoom, and requested that her legal counsel also be in attendance. By the same letter, counsel for the Applicant provided written submissions to Council [February Submissions]. Ultimately, however, counsel for the Applicant advised by letter of April 13, 2021 that the Applicant did not wish to attend the Council meeting in person and requested that the reconsideration of her membership transfer application be made based on the February Submissions. Counsel indicated that should Council have any questions or concerns the Applicant and her counsel would be happy to answer them in writing.
[33] By Band Council Resolution dated May 10, 2021, Council again refused to consent to the Applicant’s transfer of her membership to OKIB. That decision is the subject of this judicial review.
Relevant Legislation
Indian Act, RSC 1985 c I-5
12 Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.1, any person who
(a) is entitled to be registered under section 6, but is not entitled to have his name entered in the Band List maintained in the Department under section 11, or
(b) is a member of another band,
is entitled to have his name entered in the Band List maintained in the Department for a band if the council of the admitting band consents.
Section 12 Membership Transfer Policy (as approved on September 25, 2017 and amended on November 14, 2017 and December 21, 2020)
1 PURPOSE
1.1. The purpose of this Policy is to establish procedures for obtaining the consent of Chief and Council pursuant to section 12 of the Indian Act for the admission to membership in the Okanagan Indian Band of any person who:
(a) is entitled to be registered under section 6 of the Indian Act, but not entitled to have his or her name entered in the OKIB Membership List, or
(b) is a member of another band.
1.2. This Policy establishes the circumstances in which:
(a) Chief and Council may consent to the admission of a person to the OKIB Membership List under section 12 of the Indian Act without a Community Vote; and
(b) Chief and Council will refer an application for admission to the electors of OKIB for a Community Vote prior to consenting to the admission of a person to the OKIB Membership List under Section 12 of the Indian Act.
2 SCOPE
2.1. This Policy applies to registered status Indians under section 6 of the Indian Act who wish to transfer to the OKIB Membership List in accordance with section 12 of the Indian Act.
3 DEFINITIONS
…
3.2. Applicant means a person seeking Chief and Council’s consent under this policy to become a Band Member, pursuant to section 12 of the Indian Act.
3.3. Band Member means a person on the OKIB Membership List.
3.4. Chief and Council means the elected Chief and Council of OKIB.
3.5. Community Vote means the non-binding vote by eligible OKIB electors in person, at a vote called by Chief and Council, on whether or not an Applicant should be added to the OKIB Membership List.
3.6 Filing Fee means a one-time, non-refundable processing fee of $250.00 dollars to be paid before OKIB processes and application under this Policy
3.7. INAC means the Ministry of Indigenous and Northern Affairs Canada and any successor ministry or department.
3.8. Indian Registry Administrator means the OKIB staff person responsible for maintaining a list of Band Members for the Indian Registrar and registering status Indians on behalf of INAC.
....
3.10. OKIB Ancestry means a connection by line of descent to a current or former Band Member.
3.11. OKIB Membership List means the Band List of the Okanagan Indian Band maintained under section 8 of the Indian Act.
3.12. OKIB means the Okanagan Indian Band.
…
3.14. Statutory Declaration means a solemn declaration that meets the requirements of section 41 of the Canada Evidence Act.
3.15. Supporting Documents means all documents submitted by the Applicant and the documents listed in section 7 of this policy.
…
3.16 Well-Established Community Residence means a person has been living on one of the OKIB reserves for at least five consecutive years.
4 POLICY
Applicants with OKIB or Syilx Ancestry
4.1. The Chief and Council may, by band council resolution, consent to the admission of an Applicant to the Membership List without a Community Vote where the Applicant is registered under section 6 of the Indian Act and:
(a) was formerly registered as a Band Member and was involuntarily transferred to the membership of another band, including transfer as a child;
(b) was formerly registered as a Band Member and voluntarily transferred to the membership of another band;
(c) is of OKIB ancestry and has provided evidence satisfactory to the Chief and Council of OKIB Ancestry; or
(d) is of Sylix Ancestry and has provided evidence satisfactory to the Chief and Council of Sylix Ancestry, Well-Established Community Residence and current familial and community ties to the OKIB.
Other Applicants
4.2 Chief and Council may, by band council resolution, refer an applicant to a Community Vote where an Applicant:
(a) does not meet the criteria in section 4.1 of this Policy;
(b) is a registered Indian under section 6 of the Indian Act;
(c) has provided some evidence of Well-Established Community Residence; and
(d) has provided some evidence of current familial and community ties to OKIB;
4.3 Subject to section 4.4, Chief and Council may, by band resolution, consent to the admission of an Applicant to the Membership List where the Applicant:
(a) does not meet the criteria in section 4.1 of this Policy;
(b) is a registered Indian under section 6 of the Indian Act;
(c) has provided evidence satisfactory to the Chief and Council of Well-Established Community Residence; and
(d) has provided evidence satisfactory to the Chief and Council of current familial and community ties to OKIB.
4.4 Chief and Council will consider the results of a Community Vote under section 4.2 in deciding whether to grant consent under section 4.3.
…..
Denial of Admission to Band Membership
4.6. Chief and Council will, by band council resolution, deny the admission of Applicants to the OKIB Membership List who do not meet the criteria in at least one of sections 4.1 and 4.3.
4.7 OKIB understands and complies with its obligations not to discriminate on the basis of criminal convictions for which a pardon has been granted or in respect of which a suspension of records has been ordered. However, to the extent it is permitted by the Canadian Human Rights Act, Chief and Council may deny admission of an Applicant to the OKIB Membership List who has been deemed by Chief and Council to pose a risk to the safety and social well-being of OKIB Band Members because of criminal activity.
4.8 Chief and Council may deny the admission of an Applicant to the OKIB Membership List who holds a Certificate of Possession for lands on the reserve of another band or who owes outstanding debts to another band.
4.9 An Applicant who applies to the OKIB Membership List and is denied may not re-apply to the OKIB for at least five years following the Applicant’s last application, except if the Applicant is able to provide new evidence of OKIB Ancestry of Sylix Ancestry.
….
5 RESPONSIBILITY
5.1. The Indian Registry Administrator is responsible for providing recommendations to Chief and Council with complete applications and all Supporting Documents.
5.2. Each Applicant is responsible for providing the Indian Registry Administrator with the documents required by this policy. Incomplete applications will not be processed.
6 PROCEDURE
Applicants with OKIB or Syilx Ancestry – Application Requirements
6.1. Where an Applicant applies under section 4.1:
(a) The Applicant must submit a signed, dated Membership Transfer Application and Filing Fee to the Indian Registry Administrator accompanied by the following documents:
(i) A photocopy of the Applicant’s current Indian registration card;
(ii) The Applicant’s original long form birth certificate; and
(iii) If the Applicant is a member of a band governed by section 10 of the Indian Act, a signed letter or band council resolution from the originating band confirming the Applicant is a member.
(b) Applicants eighteen years of age or older must provide the following additional information:
(i) Criminal Record Check;
(ii) Signed letter from the originating band stating the Applicant does not hold a Certificate of Possession on any of the band’s lands; and
(iii) Signed letter from the originating band stating the Applicant does not have any outstanding debts to that band.
(c) The Applicant may submit evidence of OKIB Ancestry, if applicable, including any one or more of the following:
(i) Full form birth certificate;
(ii) Full form baptismal certificate;
(iii) A Statutory Declaration of one or more parents or grandparents of OKIB Ancestry declaring that person’s knowledge or belief as to the OKIB Ancestry of the Applicant;
(iv) Statutory Declarations of three other persons of OKIB Ancestry declaring their knowledge or belief as to the OKIB Ancestry of the Applicant; or
(v) Any other evidence satisfactory to the Chief and Council of an Applicant’s OKIB Ancestry.
(d) The Applicant may submit evidence of Syilx Ancestry, if applicable, including any one or more of the following:
(i) Full form birth certificate;
(ii) Full form baptismal certificate;
(iii) A Statutory Declaration of one or more parents or grandparents of Syilx Ancestry declaring that person’s knowledge or belief as to the Syilx Ancestry of the Applicant;
(iv) Statutory Declarations of three other persons of Syilx Ancestry declaring their knowledge or belief as to the Syilx Ancestry of the Applicant; or
(v) Any other evidence satisfactory to the Chief and Council of an Applicant’s Syilx Ancestry.
(e) The Applicant may submit evidence of Well-Established Community Residence, if applicable, Including any one or more of the following:
……
(f) The Applicant may submit evidence of current familial and community ties to OKIB, if applicable, including any one or more of the following:
……
(g) The Indian Registry Administrator will review the complete applications and submit a recommendation including all Supporting Documents to Chief and Council.
(h) Upon receipt of the Indian Registry Administrator’s recommendations at a duly convened Council meeting, Chief and Council will, by band council resolution, give or deny their consent to the Applicant becoming a Band Member.
…..
Other Applicants – Application Requirements
6.2 Where an Applicant applies under section 4.3:
……
NOTICE OF DECISIONS ON BAND MEMBERSHIP
6.9. After a final decision on an application has been made by Chief and Council, the Indian Registry Administrator will send a formal letter to each individual Applicant stating:
(a) whether the Applicant’s application was approved or denied;
(b) Chief and Council’s reasons for approving or denying the application; and
(c) the effective date of the approval or denial.
……
Decision under Review
[34] The Band Council Resolution which comprises the 2021 Reconsideration Decision begins with a series of recitals by Council. These include the statement that the Applicant’s request for membership was governed by subsection 12(b) of the Indian Act and by the 2017 Transfer Policy. Further, that subsection 12(b) gives band councils broad discretion to grant or deny consent to transfer to their band from another band. And, that the 2017 Transfer Policy establishes the procedures for seeking the consent of the OKIB pursuant to section 12 of the Indian Act admission to membership in the OKIB, including for former band members and people with OKIB ancestry. However, that the 2017 Transfer Policy does not limit Council’s discretion to grant or deny consent to transfer membership of OKIB where the procedures are followed, or the basis on which it may grant or deny consent, except that it may not consent where the criteria in one of sections 4.1 and 4.3 are not met. Further, that the consent of Council is not automatic once an applicant has provided the documentation listed in the 2017 Transfer Policy. Council states that the fulfilment of these requirements only means that the application is ready to be considered by Council (or put to the Community in circumstances where a vote is required), and that Council retains the discretion to grant or deny consent to transfer.
[35] Council next set out the background facts to the reconsideration. This includes that the Applicant had first been registered for Indian status and membership in OKIB on November 16, 1987, but that she had requested a transfer to the Nak’azdli Whut’en band on January 22, 1988 and, on August 19, 2002, she wrote to OKIB to request a transfer back to OKIB from Nak’azdli Whut’en band. Council states that between 2002 and 2018 the Applicant had provided documents and written submissions on her application to transfer and that during this period she had also written to Council several times to request that her application be processed. There had also been correspondence from OKIB to the Applicant requesting missing information and inviting her to submit information regarding her ancestry. Council states that in making its decision it considered all correspondence between OKIB and the Applicant regarding her application and all of the documents she provided. Council notes that the Applicant relocated to OKIB’s reserve lands in 2009 to live with OKIB member Rhoda Simla who had bequeathed the Simla Lands to the Applicant. However, that the Applicant was not able to inherit those as she was not a member of OKIB and her membership application was still outstanding. The Applicant continued to live on the Simla Estate Lands. Council also states that it was aware of reports by a Councillor, staff and visitor regarding “threatening, aggressive or obstructive behaviour” by the Applicant, “including” the three incidents then listed – these were the events described in the Brewer and Marchand Emails, the Wilson Incident Report Form and the Shortt Letter. Council then summarizes the procedural steps that led to the reconsideration.
[36] Council next summarizes the Applicant’s submissions. This included that she spent her weekends and holidays as a child with her aunt and uncle, Rhoda and Raymond Simla, and other OKIB members on the OKIB reserve; she viewed her aunt as a mother; and, has a close connection to the community and has family members living and buried on the reserve. The Applicant had submitted that she transferred to the Nak’azdi Whut’en band for purposes of her work in a specialized victim service program in that community, she always planned to return to OKIC and, at the time she transferred her membership out, she was advised by OKIB employees that she could transfer her membership back. The Applicant relocated to the lands of her aunt and uncle in 2009, where she resides with her youngest daughter and grandson. As to the alleged incidents of threatening behaviour, the applicant had submitted that:
- With respect to the alleged Brewer/Marchand incident, she was frustrated and concerned that OKIB’s delay in processing her membership transfer application might lead to the sale of the Remaining Simla Estate Lands. She requested the surveyor to leave and demanded OKIB get a court order if they wanted to conduct a survey. She denied that she threatened Councillor Brewer at all or with a gun. She does not own a firearm;
- With respect to the alleged incident with Veronica Wilson, she recalled interacting with Ms. Wilson, was frustrated by the delay in considering her membership transfer application but did not threaten Ms. Wilson. The Applicant is an elder and was 70 years old at the time;
- With respect to the alleged incident with Jaron Shortt, she requested the surveyor to leave the lands. She recalled an RCMP officer was present and was sympathetic to her situation. She requested OKIB get a court order to proceed with the survey.
[37] Council also noted that in her Protest, which the Applicant referred to in her written submission, she alleged bias on the part of Council members because they wish to acquire the Simla Estate Lands. One of her letters to Council also appeared to allege bias because one of the Councillor’s relatives, Cecil Louis, purchased some of the land that had previously been sold.
[38] Council then set out its findings. Council states that it considered the available evidence on OKIB ancestry and accepted that there is evidence of the Applicant’s OKIB ancestry by way of the statutory declaration of Frank Jack. However, that ancestry was just one factor that may be considered in the exercise of its discretion when considering a request to transfer membership. Further, that ancestry or former band membership does not obligate Council to consent to transfer of membership. Council states that “in all of the circumstances”, ancestry on its own was an insufficient basis to justify granting consent to the Applicant to transfer her membership.
[39] Council states it considered the Applicant’s evidence of connection to the OKIB community and acknowledges that she says that she spent time with her aunt and uncle on OKIB as a child, and had a close bond with Ms. Simla. Council states that it had no reason to doubt this.
[40] Council states that there was no evidence of involvement with or participation in the community in her adult life prior to her receiving OKIB membership in 1987, which she gave up only two months later, in January 1988. Her January 1988 request to transfer membership notes that she had been living in Fort St. James for 11 years, and that she did not feel she could do justice by the OKIB living so far away. Council states that other than her transfer request in 2002 and residing on the reserve lands since 2009, Council was not aware of any participation by the Applicant in the community before or after relocating to the OKIB reserve, nor was there any evidence of this before Council. Council considered that the Applicant’s submissions on her connection to the community must be balanced against her brief time as an OKIB member, her willingness to give up that membership for other opportunities, and the absence of evidence of contribution to or participation in the community as an adult.
[41] Council also states that the Applicant’s potential contribution as an OKIB member must be considered in light of the reports of threatening or aggressive behaviour towards OKIB councillors and staff. Council states that it considered the Applicant’s submissions regarding these alleged incidents of threatening behaviour, but that she had not provided any accounts from others regarding the alleged incidents. Council states that it accepted and preferred the account of Councillor Lyle Brewer, which was confirmed by Randy Marchand, and of Ms. Wilson whom Council states had no personal interest in the matter and gave written reports shortly after the alleged incidents. Council found that the Applicant had demonstrated threatening and aggressive behaviour as described by Councillor Brewer and Ms. Wilson. Council accepted that no threats were uttered in the Shortt incident, but found that the Applicant prevented the surveyors from completing their survey. Council states that it took notice of the fact that the RCMP were contacted by Randy Marchand on September 27, 2017 and attended with the surveyors on June 15, 2018 at the request of OKIB. Further, that Councillor Brewer had noted in his account that OKIB officials and the surveyors left after the Applicant’s threat, out of concern that the altercation might turn physical and found that this suggested the threatening behaviour was taken seriously and there were concerns about safety.
[42] Council notes that the Applicant had not provided any statements from others to speak to her character. Council found that the Applicant had demonstrated some connection to the community, but in light of all of the circumstances, including incidents of threatening and aggressive behaviour, it was not convinced that she had positively contributed to or participated in the community, or would do so in the future. Council states that it remained concerned about the threatening and aggressive behaviour involving Councillor Brewer and Ms. Wilson and did not believe that the Applicant would make a positive contribution to the community. In these circumstances, her ancestry and connections to the OKIB community were not sufficient to justify consenting to her OKIB membership.
[43] Council went on to address allegations of bias in her Protest and in a letter to Council dated May 18, 2017, although they had not been addressed in her most recent submissions to Council, and dismissed that concern.
[44] Council resolved that the Applicant’s request for Council’s consent to transfer her membership to the OKIB was denied.
Issues and Standard of Review
Preliminary Issue
[45] OKIB has filed a motion to strike the Applicant’s affidavit affirmed on October 15, 2021 [Johnston Affidavit] and filed in support of her application for judicial review of the 2021 Reconsideration Decision. That motion will be dealt with as a preliminary issue in these reasons.
Issues
[46] The issues raised by the Applicant in this matter can be appropriately reframed as follows:
Was the 2021 Reconsideration Decision reasonable?
Was there a breach of the duty of procedural fairness?
If the Applicant is successful on issue 1 or 2, what remedy should issue?
[47] With respect to the first issue, the parties submit and I agree that the reasonableness standard of review applies.
[48] This is because when a court reviews the merits of an administrative decision there is a presumption that the reasonableness standard of review will apply for all aspects of that decision, including the administrative decision-maker’s interpretation of its enabling statute (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 23 and 25; see also Peters First Nation v Engstrom, 2021 FCA 243 at para 14).
[49] On judicial review, the Court “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99).
[50] As to the second issue, issues of procedural fairness are to be reviewed on a correctness standard (see: Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). That said, in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] the Federal Court of Appeal held that although the required reviewing exercise may be best – albeit imperfectly – reflected in the correctness standard, issues of procedural fairness do not necessarily lend themselves to a standard of review analysis. Rather, the Court is to determine whether the proceedings were fair in all of the circumstances. That is, “the ultimate question remains whether the