Hill v. Oneida Nation of the Thames Band Council

Hill v. Oneida Nation of the Thames Band Council
Court (s) Database
Federal Court Decisions
Date
2014-08-12
Neutral citation
2014 FC 796
File numbers
T-376-12
Decision Content
Date: 20140812
Docket: T-376-12
Citation: 2014 FC 796
Ottawa, Ontario, August 12, 2014
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
KEVIN HILL
Applicant
and
ONEIDA NATION OF THE THAMES BAND COUNCIL AND CLINTON WAYNE HILL
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision of the Oneida Nation of the Thames Band Council (Band Council). The decision rendered a quit claim deed in favour of the Respondent, Clinton Wayne Hill, dated October 17, 1975 valid and nullified a subsequent land transfer agreement in favour of his brother, Kevin Hill, dated August 17, 2004. Both documents concern the same property located within the Oneida Indian Band Reserve No. 41. The application is brought pursuant to section 18.1 of the Federal Courts Act, RSC, c F-7 (FCA).
Factual Background [2] The background facts concerning this application for judicial review are, for the most part, not in dispute. The following summary is based on the evidence and submissions filed by the parties.
[3] This matter is, in essence, an unfortunate family dispute between two brothers concerning land that was in the possession of their mother. The status of the property in dispute was ultimately determined by the elected Band Council of the Oneida Nation of the Thames. Although Clinton Wayne Hill (Wayne Hill) was named as a Respondent in the application for judicial review, he did not file a Notice of Appearance or any submissions and did not attend at the hearing of this matter. Accordingly, all references to the Respondent in this decision refer to Band Council.
[4] The Applicant, Kevin Hill, and Wayne Hill are brothers and members of the Oneida Indian Band Reserve No. 41, also referred to as the Oneida Nation of the Thames (Oneida).
[5] The Oneida obtained reserve status on June 22, 1976 by Order-in-Council pursuant to the Indian Act, RSC 1985, c I-5 (Indian Act). Governance of the administration of possession of land by individuals within the Oneida community is performed by an elected Chief and Band Council.
[6] The dispute in this application concerns property located within the reserve described as Lot 24, Concession C of the Oneida Settlement, Township of Delaware, County of Middlesex, Province of Ontario, sometimes also described as 1286 Towline Road, Southwold, Ontario (property).
[7] On or about November 8, 1972, William George granted the property, comprised of six and one half acres, to his daughter, Marena Hill (Marena), by way of a quit claim deed. Marena was the mother of Wayne Hill, Cheryl Pearl Hill, Clifford James Hill and the Applicant, Kevin Hill.
[8] In October 1975, Marena wanted to apply for a $500 grant from the Canada Mortgage Housing Corporation (CMHC grant) to complete renovations to the house she was building on the property. She was ineligible for the CHMC grant because it was available only to first time home buyers of legal age and she had previously owned properties. At this time, her eldest child, Wayne Hill, was eighteen years old. Marena prepared a quit claim deed dated October 17, 1975 which granted the property to Wayne Hill. She signed the quit claim deed in the presence of the then acting Chief, Harry Doxtator. It was not signed by Wayne Hill nor was it approved by Band Council (1975 Quit Claim). The CMHC grant application was dated October 29, 1975 and was signed by Wayne Hill.
[9] Marena continued to live in the home and on June 15, 1976 she and Wayne Hill entered into a housing loan agreement with the Oneida Band in the amount of $12,500. On April 22, 1980, a housing loan and purchase agreement was entered into by only Marena and Band Council which superseded all prior loan agreements. By letter dated January 6, 1982, Chief Doxtator, on behalf of Band Council, wrote to Marena indicating that she had paid the housing loan in full and that Band Council had no further lien on her property.
[10] On April 27, 1989, Marena executed a quit claim deed granting Wayne Hill one acre of the property and a right of way, which deed was approved by Band Council.
[11] On or about February 11, 1994, Marena spoke with Betty Green, who was a member of the Lands and Estates Administration (LEA) office (LEA Office) of the Oneida Band, and informed her that the 1975 Quit Claim was only written for the purpose of obtaining the CMHC grant. It was not valid and had never been submitted to Band Council for approval.
[12] Sometime in 2004, Marena decided to transfer the property to the Applicant. She met with Al Day, the LEA Administrator at the time, and on his advice prepared a Statement to Dissolve the Quit Claim Deed of 1975 (Dissolution of 1975 Quit Claim) and a Land Transfer Agreement (2004 LTA), by which she transferred the 5.5 acres of the remaining property to the Applicant, both dated August 17, 2004. The 2004 LTA was signed by Marena and the Applicant and was witnessed by Al Day. Marena also filed a letter dated September 14, 2004 with the LEA Office confirming that the 1975 Quit Claim had only been prepared to facilitate the obtaining of the CMHC grant, that it was never the intention that Wayne Hill would take ownership of the property and her home, and, that the property should be transferred to the Applicant. She confirmed that she had paid off the loan, maintained and insured the home for nearly 30 years and that Wayne Hill had never taken ownership. Further, that she had transferred one acre of the property to him.
[13] On August 30, 2004, Wayne Hill wrote to the LEA Office claiming that he had been the owner of the property since 1975 and suggesting that Marena was not mentally competent to conduct transactions and that she was in the process of being medically assessed.
[14] On February 15, 2005, Al Day prepared a briefing memo for Band Council concerning Marena and the property transactions. Amongst other things, this outlined the background facts, Oneida customary law concerning quit claims and LTA’s, the issues and considerations arising, and, a past precedent for voiding a quit claim. On February 22, 2005, Band Council met and discussed Marena’s circumstances and the property transactions. They agreed that under Oneida customary practice, a quit claim and land transfer agreement becomes legal when Band Council approves the documents at a council meeting. On March 8, 2005, Band Council held a meeting at which it approved and accepted the Statement to Dissolve Quit Claim Deed of 1975 and approved the 2004 LTA. A similar briefing note was prepared by Al Day on March 21, 2005 and a second meeting was held on March 22, 2005 at which time it was decided that all decisions would be put on hold until two powers of attorney signed by Marena and the competency assessment were considered.
[15] On April 12, 2005 Band Council met to discuss the powers of attorney and Marena’s competency. She had come to Council in March 2005, subsequent to her assessment. Band Council concluded that at the time she made the 2004 LTA she understood her actions. It recommended that the 2004 LTA be acknowledged and that it would stand. The 2004 LTA was stamped approved by Band Council on March 8, 2005 and again on April 12, 2005 and the Statement to Dissolve Quit Claim Deed of 1975 was stamped approved on March 8, 2005 (collectively, the 2005 decisions). On April 28, 2005, Al Day, as the LEA Administrator, wrote to Marena advising that both documents had been approved by Band Council on March 8, 2005 and confirming that the Applicant was the recognized owner of 5.5 acres of the property including the house. A similar letter was sent to the Applicant on the same date which also noted the previous grant of one acre to Wayne Hill and the right of way.
[16] On August 31, 2005, Wayne Hill wrote to Band Council stating that the CHMC grant was provided under false pretences and that if the matter went to court it could be embarrassing for the Oneida and would affect Band Council’s credibility. Further, that he had made improvements to the property, would suffer a loss of rental income and was seeking $500,000 in compensation. On September 15, 2005 Jeff Ross, Director of Operations for Band Council, responded by letter stating that Band Council would research and review the situation.
[17] Wayne Hill continued to object to the transfer alleging improprieties in the way the transfer was made and that his mother was not of sound mind at the time. He met on several occasions with the Chief and members of Band Council to make these complaints. On April 16, 2011 he put his complaints in a letter to Band Council stating that it had informed him that a final decision concerning the property would be made on that day. In that letter, he made allegations of fraud, duress and undue influence by the Applicant, specifically that he had compelled their mother to transfer the land to him, and that the LEA administration was complicit.
[18] On March 22, 2011, Chris George, a former lands and estates portfolio officer, wrote to Band Council taking the position that due diligence had not been undertaken, the 1975 Quit Claim should not have been dissolved, the property should be returned to Wayne Hill, and, those involved be sanctioned.
[19] In early April 2011, Martin Powless, who was now the LEA Administrator, met separately with both the Applicant and Wayne Hill to discuss the property.
[20] On April 19, 2011, Band Council held a meeting to consider the claims to the property. It decided to reverse its 2005 decisions and to recognize the 1975 Quit Claim. It informed the Applicant of this meeting by letter dated April 22, 2011 and stated that Band Council made a motion that the 1975 Quit Claim would be approved and that all subsequent quit claims or land transfer agreements pertaining to the property were thereby null and void.
[21] Attached to the letter were minutes of the meeting containing the names of the councillors present and recording that six of them were in favour of the motion and that there were three abstentions. The motion was carried.
[22] The Applicant met with Band Council on June 7, 2011 to discuss the April 19, 2011 letter. At that time, he made representations regarding his rights to the property and was accompanied by his wife and daughter.
[23] The Applicant received an email from Chief Abram on January 18, 2012 stating that on December 15, 2011 Band Council had decided by consensus to reaffirm the most recent decision in favour of Wayne Hill, and that this would be the final decision.
[24] On January 23, 2012, Chris George wrote to the Band Council withdrawing his letter of March 22, 2012 stating that he had not been informed of all of the facts when he had written it.
Decision Under Review [25] The Notice of Application states that the decision under review is the January 18, 2012 decision. In his memorandum of fact and law, the Applicant does not identify the decision under review, but states that he brings “this application for judicial review of the decision (the “Decision”) of the Respondent, Oneida Nation of The Thames Band Council (“Band Council”) rendering valid a quitclaim deed dated October 17, 1975, and nullifying all subsequent deeds and agreements concerning the real property…”. The memorandum also submits, based on Chief Abram’s evidence given when cross-examined on his affidavit, that the actual decision under review was made by Band Council on April 19, 2011 and communicated to the Applicant on January 18, 2012.
[26] In my view, the evidence in this matter supports a finding that the April 19, 2011 and December 15, 2011 decisions, and the April 22, 2011 and January 18, 2012 notifications of those decisions, can be considered to be a continuous course of conduct or so closely linked that they must be properly considered together (Shotclose v Stoney First Nation, 2011 FC 750 at paras 63-64 [Shotclose]). They will be collectively referred to as the 2011 decision.
[27] The April 22, 2011 letter states the following:
This is to inform you of a Council Motion made on April 19, 2011, that the October 17, 1975, Quit Claim from Marena Hill to Clinton Wayne Hill for the house and approximately 6.5 acres +/- in Lot 24, Concession C, be approved and that all subsequent Quit Claims and/or Land Transfer Agreements pertaining to this particular parcel or land are hereby null and void.
Please direct any questions and concerns to Harry Doxtator, Lands & Estates Portfolio at 519-652-3244.
[28] The January 18, 2012 email from Chief Joel Abram states:
Shekoli Kevin,
Please accept my apologies for the delay in informing you of council’s decision regarding the property dispute between yourself and your brother Clinton Wayne Hill. On December 15, 2011 Council came to the following decision.
“Council Consensus to reaffirm the decision regarding Wayne Hill and Kevil Hill with the most recent decision in favor for Wayne Hill, and this will be the final decision.”
The above decision was reached by consensus.
I will write you a formal letter this week reaffirming the above.
Chief Joel Abram
Issues [29] The parties in their submissions have identified issues based on their respective views. I would reframe these as follows:
1. Is Band Council’s decision subject to judicial review by this Court?
2. What is the standard of review?
3. What is the content of procedural fairness owed to the Applicant and did Band Council breach the duty of fairness?
4. Did Band Council exceed its jurisdiction by changing its decision?
5. Was there a reasonable apprehension of bias when Band Council made the decision?
6. Is the decision reasonable?
ISSUE 1: Is the Band Council’s decision subject to judicial review by this Court? Applicant’s Submissions [30] The Applicant submits that Band Council resolutions are decisions of a federal board, commission or other tribunal and are subject to judicial review pursuant to sections 18 and 18.1 of the FCA. This is the case both when a band council exercises powers explicitly granted to it by federal statute and when the contested decision is based on customary law (FCA, ss. 18, 18.1; Shotclose, above, at para 47; Vollant v Sioui, 2006 FC 487 at para 25 [Vollant]; Frank v Bottle, [1994] 2 CNLR 45 (FC)(TD) at 8 [Frank]; Twigg v Blood Band of Indians, [1988] AJ No 1104 (QB Ct)).
Respondent’s Submissions [31] The Respondent agrees that band council decisions are reviewable pursuant to the FCA. Vollant, above, held that all band council decisions are subject to review by the Federal Court because the Indian Act recognizes council’s authority, whether by election or custom. Band councils are “federal boards, commissions or other tribunals” (Frank, above).
[32] There are two reasons to justify review of band council decisions under the FCA. First, council finds the authority for its existence in the Indian Act. Second, the subject matter over which authority is exercised is designated or delegated by federal statute. While some band council decisions made pursuant to private law contracts have been found not to be subject to review, decisions about councils’ public approval of private land transactions are reviewable (Cottrell v Chippewas of Rama Mjikening, 2009 FC 261 [Chippewas]).
[33] The Respondent submits that because the courts have decided that decisions such as the one at issue would be subject to review, given Band Council’s derived elected existence from the Indian Act, it is not necessary to determine how Oneida land law is related to federal law.
Analysis [34] The Court may grant relief under subsection 18.1(3) of the FCA if it is satisfied that the subject federal board, commission or other tribunal acted, failed to act, erred or otherwise as set out in subsection 18.1(4)(a) to (f). The term federal board, commission or other tribunal is defined in section 2.
[35] The jurisprudence is clear that decisions of a band council are, for purposes of section 18 of the FCA, “a federal board, commission or other tribunal”. As stated by Justice Mosley in Shotclose, above:
[47] It is settled law that the Federal Court has jurisdiction to review the decisions and actions of the Chief and Council as they constitute a “federal board, commission or other tribunal” within the meaning of s. 2 of the Federal Courts Act. Such decisions are also subject to the jurisdiction of the Court set out in s.18.1 of the Act to hear applications for judicial review of the matter in respect of which relief is sought: Sparvier v. Cowessess Indian Band No. 73, 1993 CanLII 2958 (FC), [1993] 3 F.C. 142 (QL), 13 Admin. L.R. (2d) 266 at para. 13; Angus v. Chipewyan Prairie First Nation Tribal Council, 2008 FC 932 (CanLII), 2008 FC 932, 334 F.T.R. 187 at para. 29; Vollant v. Sioui, 2006 FC 487 (CanLII), 2006 FC 487, 295 F.T.R. 48 at para. 25; Gabriel v. Canatonquin, [1978] 1 F.C. 124 at para. 10; aff’d Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.).
[36] This is the case when a band council exercises the power it was explicitly granted by a federal statute and also when the contested decision is based on a custom. As stated by Justice de Montigny in Vollant, above:
[25] It is now settled law that decisions taken by a band council, when it exercises, or is deemed to exercise, its power to govern the band may be judicially reviewed by the Federal Court. The case law is replete with decisions holding that a band council is, for purposes of section 18 of the Federal Courts Act, “a federal board, commission or other tribunal:” see, inter alia, Rider v. Ear 1979 CanLII 1177 (AB QB), (1979), 103 D.L.R.(3d) 168 (Alta. S.C.); Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.) (QL); Coalition To Save Northern Flood v. Canada reflex, (1995), 102 Man R. (2d) 223 (Man. C.A.). This is true not only when a council exercises the power it was explicitly granted by a federal statute, but also when the contested decision is based on a custom; this is so simply because it is the Indian Act itself, more specifically subsection 2(1) of the Act, that recognizes the legal character of the custom: see Francis v. Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII), [2003] 4 F.C. 1133 (QL), at paragraphs 13-17 (F.C.); Conatonquin v. Gabriel, supra; Frank v. Bottle, [1993] F.C.J. No. 670 (QL); Scrimbitt v. Sakimay Indian Band Council (T.D.), 1999 CanLII 9381 (FC), [2000] 1 F.C. 513. Therefore, resolutions of a band council are considered decisions under the Federal Courts Act and may be subject to judicial review.
[37] Reviewable actions must not only find their source in federal law, but must also be of a public nature. Thus, the circumstances of the case must be considered when determining if a federal board, commission or other tribunal is acting in a manner which brings it within the purview of public law (Hengerer v Blood Indians First Nation, 2014 FC 222 at para 43; Air Canada v Toronto Port Authority, 2011 FCA 347 at para 60).
[38] The decision under review in this matter concerns a transfer of land between family members. However, the decision concerning that transfer was made by a public body (Chippewas, above, at para 81), the Oneida Band Council, which is elected pursuant to the Indian Bands Council Elections Order, SOR/97-138 made under subsection 74(1) of the Indian Act. Band Council administers estate matters and controls land transfers between individuals by requiring its approval of each transaction. Further, in this matter it not only approved transactions concerning the property, but also reconsidered and reversed its own decisions. Accordingly, in my view, Band Council’s actions were of a public nature and it is a “federal board, commission or other tribunal” within the meaning of the FCA and, therefore, the 2011 decision at issue is reviewable by this Court.
ISSUE 2: What is the standard of review? Applicant’s Submissions [39] The Applicant submits that the standard of review of the issue of whether Band Council acted without and/or beyond its jurisdiction, and whether there was a breach of procedural fairness and natural justice is correctness (Prince v Sucker Creek First Nation No 150A, 2008 FC 1268 at paras 21, 23 [Sucker Creek]). The issue of whether the decision was contrary to the Indian Act is also reviewable on a correctness standard, and, whether the decision was contrary to Oneida customary laws is reviewable on either a correctness or reasonableness standard (Sucker Creek, above, at para 22; Shotclose, above, at para 59; Vollant, above, at para 31).
Respondent’s Submissions [40] The Respondent submits that the standard of review of Band Council’s decisions, given the deference owed by the Court if the decision is made in a system in which the Court is not familiar such as Oneida law, is reasonableness (Shotclose, above, at para 59).
Analysis [41] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard (Dunsmuir, above, at para 57; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18).
[42] As Justice Mosley stated in Shotclose, above:
[58] This Court has recognized that the Chief and Council have expertise on matters such as knowledge of the band's customs and factual determinations: Martselos v. Salt River Nation #195, 2008 FCA 221, 411 N.R. 1 at para. 30, citing Vollant, above, at paragraph 31; Giroux v. Salt River First Nation, 2006 FC 285 at paragraph 54, varied on other grounds in 2007 FCA 108. As such, and as noted by Justice William McKeown at paragraph 20 of News v. Wahta Mohawks (2000), 189 F.T.R. 218, 97 A.C.W.S. (3d) 585, “[…] a considerable degree of deference should be shown to a decision of a Band Council”. This is only true, however, provided that the principles of procedural fairness and natural justice have been observed: Ermineskin v. Ermineskin Band Council (1995), 96 F.T.R. 181, 55 A.C.W.S. (3d) 888 at para. 11.
[59] It follows that band council decisions should be upheld unless they are unreasonable. With that said, custom is determined by the band, not by the Chief and Council: Bone v. Sioux Valley Indian Band No. 290 (1996), 107 F.T.R. 133, [1996] 3 C.N.L.R. 54.
[60] Where procedural fairness is in issue, the question is not whether the decisions made by the Chief and Council or the actions taken by them were “correct” but whether the procedure used was fair. See: Ontario (Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141, 2010 NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
[43] Similarly, in Parker v Okanagan Indian Band Council, 2010 FC 1218 at para 41 [Parker], which also involved a land dispute decided by a band council, Justice de Montigny found:
[38] Following the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, deference usually applies where the question is one of fact, discretion or policy. This is precisely the case here. The decision about whether to grant an allotment involves a considerable appreciation of the circumstances by the Band Council, which must balance the interests of individuals against the interests of the entire community. As the British Columbia Supreme Court said in LowerNicola Band v. Trans-Canada Displays Ltd., 2000 BCSC 1209, [2000] B.C.J. No. 1672 [Nicola Band], at para. 155:
…before making an allotment under s. 20(1), a council has a duty to consider the rights of other Band members. That duty would require a balancing of individual’s request for the allotment, including the purpose for which the allotment would be used, with the best use the land could be put to for the Band community. In view of its fiduciary obligation to all of its Band members, this Band Council would have to carefully consider a request for an allotment of the 80 acres to an individual if the use for which the land was being sought was other than for residential or agricultural uses.
[39] The Okanagan Indian Band has developed its own land management regime for developing reserve land, which serves as a basis for making decisions regarding allotments of reserve lands to individual band members. Before a survey of the allotment can be submitted to the Department of Indian and Northern Affairs for the purpose of perfecting the allotment and obtaining a Certificate of possession, a Band Council Resolution must be passed to approve the survey. In deciding whether to approve the survey, the Okanagan Indian Band must consider the application in light of the factors set out in its policy. The Band Council clearly has a broad and specialized expertise in weighing these factors, and is obviously in a better position than this Court in determining whether to grant an allotment should be granted or not.
[40] In light of the above, I am of the view that reasonableness is the proper standard on which to review the Band Council’s decision. Accordingly, the decision must be upheld if it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[41] The fourth issue, however, raises a question of procedural fairness. It is trite law that such issues attract a standard of correctness, since they are always reviewed as questions of law. As Justice Linden wrote in Sketchley v. Canada (Attorney General), 2005 FCA 404, at para. 53, “[t]he decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty”.
[44] The Court acknowledges the Respondent’s submission that procedural fairness is framed by Oneida law and custom in the present case. However, the jurisprudence has held that the issue of whether a band council breached a duty of procedural fairness is to be reviewed on a correctness standard (Sucker Creek, above, at para 23; Parker, above, at para 41; Tsetta v Band Council of the Yellowknives Dene First Nation, 2014 FC 396 at para 24 [Yellowknives Dene]).
[45] The issue of whether Band Council acted without or beyond its jurisdiction as well as whether it had a reasonable apprehension of bias are reviewed on a correctness standard (Sucker Creek, above, at para 21; Hagos v Canada (Attorney General), 2014 FC 231 at para 18; Deschênes v Canadian Imperial Bank of Commerce, 2011 FCA 216 at para 40).
[46] Regarding the final issue, this Court has recognized that chiefs and band councils have expertise on matters such as band custom and factual determinations and should be shown deference. Thus, band council decisions are to be reviewed on the standard of reasonableness and will be upheld if they fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Shotclose, above, at paras 58-59; Parker, above, at paras 38-40; Dunsmuir, above).
ISSUE 3: What is the content of procedural fairness owed to the Applicant in this case and did Band Council breach the duty of fairness? Applicant’s Submissions [47] The Applicant submits that it is trite law that band councils owe a general duty of fairness to band members when making decisions which impact the members’ rights or interests and that they must follow the principles of natural justice (Campbell v Elliott, [1988] 4 CNLR 45 (FCTD) [Campbell]; Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3 at para 8 [Matsqui]). The principles of natural justice, due process and procedural fairness at a minimum include: adequate notice of the hearing; to know the case made against the member including the allegations raised and the evidence submitted to the band council; a fair opportunity to respond; and, reasons for the decision (Campbell, above, at paras 23, 27; Sucker Creek, above, at paras 39-41).
[48] The Applicant submits that Band Council breached its duty of procedural fairness and natural justice because it failed to:
• provide adequate notice of the April 19, 2011 meeting, including that its purpose was to consider reversing the 2005 decisions;
• advise the Applicant of the case against him, including the allegations of fraud, undue influence and duress;
• provide the Applicant with the documents and evidence being considered by Band Council at the meeting including Wayne Hill’s letters, the briefing memos by Martin Powless, Chris George’s letter of March 22, 2011 and the two legal opinions submitted to Band Council on the issue;
• provide access to the content of Marena’s LEA file which was provided to Wayne Hill in advance of the April 19, 2011 meeting;
• provide reasons for the decision;
• provide the minutes and/or a transcript of the April 19, 2011 meeting; and
• provide him with legal assistance after he was informed of the decision.
[49] The only notice of the meeting the Applicant received was when he was contacted by Martin Powless in early April 2011. Mr. Powless did not inform him of the date, time or place of the meeting, that Band Council would be reconsidering the 2005 decisions or provide him with any documents, complaints and allegations made by Wayne Hill. Chief Abram essentially admitted in his cross-examination that the Applicant was not treated fairly by the 2011 decision. The Applicant also submits that that Band Council met with him on June 7, 2011, after the decision was already made, but still did not correct the procedural fairness violations.
[50] The Applicant submits that Band Council also violated the duty of procedural fairness and natural justice when deciding to reaffirm the April 19, 2011 decision at an in-camera meeting held on December 15, 2011 by failing to:
• provide notice to the Applicant of the in-camera meeting or the opportunity to make submissions;
• provide minutes of that meeting; and
• provide reasons for the decision.
[51] The Applicant submits that the 2011 decisions had a significant and lasting impact on his interests as it stripped him of his possessory interest in the 5.5 acres of the property. He had a legitimate expectation that he would be treated fairly and equitably.
Respondent’s Submissions [52] The Respondent submits that the history of the Oneida settlement is significant to this matter as it is unique indigenous land in Canada. By way of an agreement made in 1838, the people represented by certain Oneida chiefs moved to upper Canada and bought land there with their own money. This agreement, confirmed in correspondence and by an 1840 Order in Council, included that the Oneida would continue to manage their own lands and estates matters. They have done so continuously since 1840.
[53] While the Indian Act provides that no Indian is in lawful possession of land in an Indian reserve unless that possession has been allocated to him or her with the approval of the Minister of Indian Affairs, very few certificates of possession have been issued for any land in the Oneida Settlement. Neither Kevin nor Wayne Hill has received the approval of the Minister pursuant to the Indian Act in respect of possession of the property. While Band Council is elected pursuant to the Indian Act and, amongst its other responsibilities, it oversees the administration of land and estates in the Oneida Settlement, it is Oneida land law, and not the Indian Act, which Band Council applied when making its decisions. Whatever possessory rights the Applicant and Wayne Hill have exist as the result of customary Oneida land law. This is unlike other indigenous communities which, if they administer land matters themselves, do so pursuant to a delegation of authority from the Minister of Indian Affairs under sections 53 and 60 of the Indian Act, or having opted into the First Nation Land Management Act, SC 1999, c 24 (FNLMA).
[54] The Respondent submits that the Applicant has raised two main issues. The first is whether Band Council has a legal duty of procedural fairness that is reviewable by this Court. The second is whether by reviewing and reversing its earlier decision, Band Council exceeded its jurisdiction under Oneida or Canadian law.
[55] However, the Court should consider and, if possible, decide the matter on the basis of the procedural fairness issue as this would avoid the second issue which would require the Court to make a decision about the content and nature of Oneida law. The Respondent submits that this Court has no expertise or training in that regard and owes considerable deference and respect to the Oneida government.
[56] The Respondent agrees that Aboriginal governments owe band members a duty of fairness (Sparvier v Cowesses Indian Band No 73, [1994] 1 CNLR 182 [Sparvier]; Campbell, above at para 23). The application of administrative law to aboriginal communities is contextual and each will be affected by the other (Lorne Sossin, Indigenous Self-Government and the Future of Administrative Law, UBC Law Review (2012) Vol 45:2, p 629). The manner in which a legal system fulfills the duty of procedural fairness may vary between people, cultures and laws (Sossin, above, at p 599).
[57] The content of the duty of procedural fairness depends on context, which requires considering relevant factors (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-28 [Baker]; Maloney v Shubenacadie First Nation, 2014 FC 129 at para 44). The Court owes deference to Band Council (Shotclose, above at paras 55-59) and must avoid imposing its own cultural and legal preconceptions (Delgamuukw v British Columbia, [1997] 3 SCR 1010). According to Oneida law and custom, there was no breach of procedural fairness.
[58] The Respondent acknowledges that the Applicant was not provided with written notice of the April 19, 2011 Band Council meeting, but states that he was afforded a meeting with Martin Powless in early April 2011 which gave him notice of the intended meeting and the matter to be discussed. He was also given a meeting with the Chief informing him of the decision and the nature of the discussion and a personal meeting with Band Council on June 7, 2011 to discuss the matter. It is not the form of the notice that matters or its timeliness, but its content and the Oneida are more dependent on oral communication rather than written documents. The Applicant was provided with clear and timely oral notice of the meeting and the matters Band Council intended to discuss. The Applicant told Martin Powless that he considered the matter to have been resolved in 2005 and that he was not willing to attend a Band Council meeting about it. Therefore, he cannot rely on this to support a claim that he was denied procedural fairness (Sucker Creek, above at para 46). The Applicant also did not request copies of any documents.
[59] The Respondent submits that before a final decision was made Band Council felt it had heard fully from both brothers.
[60] Further, that the allegations of fraud and undue influence were the reason Band Council decided to review the matter, rather than forming the basis of the decision. Band Council, as a political body, took those allegations seriously in terms of their deleterious effect on the community but did not find them to be supported by facts. Instead, its decision was based on the conflict between the 1975 and 2005 transactions, on the motivations for the 1975 transaction and on the sense that Band Council wanted to be fair but also removed from the family conflict.
[61] Band Council did not provide the Applicant with copies of the letters from Wayne Hill and Chris George alleging fraud, duress and undue influence. The Respondent submits that Band Council was concerned with the allegations, but that its intent appears to have been to inquire into them through staff and by asking questions at Band Council meetings rather than by increasing animosity between the brothers. Chris George’s allegations had been withdrawn by the time of the meeting.
[62] The Respondent states that Martin Powless is a lands administration and a lawyer employed with Band Council. The legal opinions he prepared were subject to solicitor-client privilege and were not provided to either of the brothers. The Applicant was not denied an opportunity to retain and consult counsel. Band Council records minutes for its meetings, but does not provide reasons for its decisions. Further, Chief Abram did not make all the admissions as contended by the Applicant.
[63] The Respondent submits that it is a fundamental principle of Oneida society and law that “we are human, and we will do the best we can”. That is what guided Band Council in its dealings with an uncomfortable conflict involving family members. If there was procedural unfairness, it lies at the mild end of the spectrum.
[64] However, if this Court finds that there was a breach of procedural fairness, it should refer the matter back to Band Council, to be determined by a fair appeal process or to be left unappealed. Such a finding does not require the Court to rule on the lawfulness of the decision, make findings of fact, bias, or about the right to possession of the property, all of which would require it to determine questions of Oneida law.
Analysis [65] In the present case, there does not appear to be a statutory or other framework defining or guiding what procedural protections are to be afforded by Band Council to band members when decisions concerning land transfers are being made.
[66] Subsection 20 (1) of the Indian Act provides that “No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band”. However, Chief Abram’s affidavit states that land matters in the Oneida Settlement are managed by Oneida rather than by the federal government and that very few certificates of possession pursuant to the Indian Act have been issued. No certificates have been issued with respect to the property in dispute. Chief Abram further states that the decision regarding the allocation of land in the present case was made pursuant to Oneida law and custom and not pursuant to the Indian Act. In any event, the Indian Act does not prescribe any particular land allocation procedures.
[67] Pursuant to the FNLMA, a number of first nations groups are provided with the authority to adopt a land code under that legislation to take control of land management. This would include such things as accountability to members of the First Nation for land management, community consultation and resolution of disputes. However, the Oneida Nation is not listed in the schedule to the FNLMA.
[68] Further, neither party has presented a Band Council by-law, if any exists, which might shed light on this issue. Attached as an exhibit to the Applicant’s affidavit is an undated document entitled “Land Transfer Process on Oneida Nation of the Thames”. This sets out the Oneida policy with respect to valid transfers of interests in Oneida lands including proof of valid ownership and Band Council approval requirements. It does not, however, otherwise prescribe procedural protections.
[69] That said, the absence of prescribed procedural fairness requirements does not suggest that such requirements do not exist. Indeed, the jurisprudence has held that is trite law that band councils must act according to the rule of law and that one of the cornerstones of procedural fairness is the right to be heard and to make representations before a decision affecting one’s rights or interests is made (Sucker Creek, above, at para 39; Shotclose, above, at para 97; Minde v Ermineskin Cree Nation, 2006 FC 1311, at paras 44-46; Laboucan v Little Red River Cree Nation #447,