Jimmie v. Council of the Squiala First Nation

Jimmie v. Council of the Squiala First Nation
Court (s) Database
Federal Court Decisions
Date
2018-02-19
Neutral citation
2018 FC 190
File numbers
T-1275-17
Decision Content
Date: 20180219
Docket: T-1275-17
Citation: 2018 FC 190
Ottawa, Ontario, February 19, 2018
PRESENT: THE CHIEF JUSTICE
BETWEEN:
WENDY JIMMIE, IN HER INDIVIDUAL CAPACITY AS A MEMBER OF THE SQUIALA FIRST NATION
Applicant
and
THE COUNCIL OF THE SQUIALA FIRST NATION
Respondent
ORDER AND REASONS
I. Introduction
[1] This application for judicial review concerns a decision of the Council of the Squiala First Nation [the SFN] to evict Ms. Wendy Jimmie from a house in which she claims she or her children have lived for approximately 18 years. Ms. Jimmie maintains that she has a substantial equity interest in the home as a result of having made payments against a construction loan that was advanced to her by the SFN and a third party, for many years. The home is located on a “reserve” that has been set aside for the use and benefit of SFN.
[2] There is a related dispute between the parties as to whether Ms. Jimmie’s father has a valid Certificate of Possession [CoP] with respect to the land upon which the home sits.
[3] Ms. Jimmie seeks to have the eviction decision [the Decision] set aside on the grounds that it was unreasonable, procedurally unfair and made without jurisdiction.
[4] In response, the Council of the SFN [the Council] has raised a preliminary issue regarding this Court’s jurisdiction to grant the relief sought by Ms. Jimmie. In brief, the Council asserts that the Decision was taken pursuant to SFN’s private law rights as a property owner and landlord, rather than pursuant to any federal statute or subordinate legislation. As such, it maintains that the Decision is not amenable to judicial review in this Court.
[5] For the reasons set forth in Part V below, I disagree. In my view, this Court has jurisdiction to deal with this dispute.
[6] However, rather than proceeding to deal with the merits of this application, I have decided that the particular facts of this case are such that it would be in the interests of justice to convert this application into an action, pursuant to subsection 18.4(2) of the Federal Courts Act, RSC, 1985, c F-7 [the Federal Courts Act]. Among other things, this will facilitate access to justice by providing Ms. Jimmie with the discovery tools that she appears to require to permit this Court to adjudicate the unique and exceptional substance of her dispute with the Council (Sivak v. Canada (Citizenship and Immigration), 2011 FC 402, at paras 29-32; Assoc. des crabiers acadiens inc v Canada (Attorney General), 2009 FCA 357, at para 39).
[7] In the meantime, an Order will be issued pursuant to Rule 384 of the Federal Courts Rules, SOR/98-106, to continue this matter as a specially managed proceeding. The Case Management Judge’s mandate will include attempting to mediate this matter.
II. Background
[8] Ms. Jimmie is a Registered Indian and member of the SFN.
[9] The Council is a band council pursuant to the Indian Act, RSC, 1985, c I-5 [the Indian Act].
[10] The house from which Ms. Jimmie was ordered evicted [the House] is a detached home that SFN claims to own and to have built, in part with funds it borrowed from the Canada Mortgage and Housing Corporation [CMHC]. However, Ms. Jimmie asserts that she or members of her immediate family have been paying off a “mortgage” on the home that was advanced to her by the SFN and CMHC in the late 1990s, and that they have less than two years left to pay off that debt. One of the documents that she has submitted in this proceeding suggests that the loan in question may have taken the form of a “rent to purchase” arrangement with the Council.
[11] Ms. Jimmie further asserts that her father, Samuel Jimmie, has a CoP in respect of the lot upon which the House was built. However, the Council states that the CoP was transferred to the SFN in approximately June 1986. Ms. Jimmie maintains that the CoP was not transferred to SFN at that or any other time. Unfortunately, her father has dementia and may not be able to assist the parties to shed further light on this issue.
[12] The address of the lot in question is 44117 Chilliwack Mountain Road.
[13] Ms. Jimmie adduced a copy of a Squiala First Nation Rental Agreement for a single family dwelling on that lot, dated February 16, 1999. The term of that agreement [the 1999 Rental Agreement] is stated to be two years. The words “Rent to Purchase” are written at the top of that agreement. Ms. Jimmie asserts that those words were written by the band’s Administrator at the time the agreement, which is between Ms. Jimmie (as the “Tenant”) and SFN (as the “Landlord”), was entered into. The occupants of the premises were identified to be Ms. Jimmie’s children and someone named “Danny.” Among other things, the terms of the lease provided: “Except for casual guest [sic], no other person shall occupy the premises without written consent of the Landlord.”
[14] The Council adduced a second, one-year, rental agreement pertaining to 44117 Chilliwack Mountain Road, dated April 1, 2013, between it and Ms. Jimmie’s son, Norman Gabriel [the 2013 Rental Agreement]. The Council also adduced several annual lease extensions to that agreement. The last of those annual extensions was made on April 1, 2017, and expires on March 31, 2018. The tenants identified in the main agreement and in the extensions thereto do not include Ms. Jimmie. However, unlike the 1999 Rental Agreement, there is no prohibition on other persons occupying the premises without the written consent of the Landlord.
[15] According to an affidavit sworn by Ms. Tammy Bartz, the Administrator of the SFN, Mr. Gabriel has been in default of his obligations under the 2013 Rental Agreement since December 2016. He was notified of this fact in May 2017. The following month, Ms. Bartz learned that he had vacated the House sometime in April of that year, and that Ms. Jimmie had moved back into the premises, together with certain other members of her immediate family.
[16] Shortly afterwards, in a letter dated June 13, 2017, Ms. Bartz advised Ms. Jimmie that she has no right to occupy the House and must vacate it by June 30, 2017. Among other things, that letter stated the following: “We have already spoken with your father, who owns the land, and he has approved the new tenants” (emphasis added).
[17] A second letter, dated July 20, 2017, was then sent to Ms. Jimmie advising that she was in trespass and was required to vacate the House within 14 days. Among other things, that letter stated that Ms. Jimmie’s father “once had a [CoP] over the land but he transferred that [CoP] to the [SFN] on June 23, 1986” (emphasis added).
[18] On August 31, 2017, Ms. Bartz caused a Notice of Default to be posted on the door of the House. Ms. Bartz states that, to the best of her knowledge, SFN has received no response to that notice.
[19] None of the documentation described above provided Ms. Jimmie with any opportunity to make oral or written representations in connection with the eviction from the House.
[20] In support of her claim that she has a significant equity interest in the House, Ms. Jimmie adduced a copy of an e-mail exchange between her and Ms. Bartz, dated December 3, 2012 [the December 2012 e-mail]. Among other things, that message stated that there was a balance of $307.15 owing on the loan that was advanced by SFN to finance the renovation of an unidentified house. In her affidavit, Ms. Bartz states that she believes that the December 2012 e-mail appears to relate to a different residence located on SFN’s reserve.
[21] At the oral hearing of this application, Ms. Jimmie, who is not represented by counsel, was accompanied by her daughter, Melissa Gabriel. Among other things, Ms. Gabriel noted that she has been a member of the SFN’s Lands Committee for many years and is named in the eviction letter dated July 20, 2017. She also explained that Ms. Jimmie’s father gave Ms. Jimmie permission to build a house on the land in question in 1997, and that Ms. Jimmie’s father continues to have a CoP in respect of the land in question. According to her, the band has the relevant documentation in its possession, but has refused to share any of it with her mother. She added that her mother has been attempting to resolve this dispute under the “traditional” process set forth in the Squiala First Nation Land Code (10 July 2013) [the Land Code], but has received no response from the Council. She therefore maintains that the Council’s Decision was not in compliance with the Land Code, which she helped to develop. In addition, she noted that the SFN’s “policy” for dealing with arrears in payments by its band members is to deduct such arrears from annual distributions that are made to those persons. In this regard, arrears have been deducted from Norman Gabriel’s distributions for many years.
[22] After Ms. Gabriel made the foregoing observations, Ms. Jimmie stated that this dispute arose after she informed the band’s Administrator that she had “reclaimed” the House and wished to have an update regarding the remaining amount of the outstanding mortgage.
[23] Ms. Jimmie also provided a reasonable explanation for why she was not able to gather the evidence that she and her daughter maintain supports their version of the facts, before the hearing of this application on October 4, 2017. In brief, she stated that the hearing had been scheduled on an urgent basis, at the request of the Respondent, during a brief case management teleconference that was presided over by Justice Strickland on September 14, 2017. During that teleconference, the parties agreed to proceed directly to a hearing on the application, to avoid having to deal with the motion for an injunction that Ms. Jimmie had requested. However, Ms. Jimmie then had to attend to previously scheduled travel commitments related to her work for approximately two weeks.
[24] At the end of the oral hearing, and having regard to all of the foregoing, I identified what I considered to be the “next steps” in this proceeding. I stated that I would first make a determination with respect to the jurisdiction of this Court to deal with the issues that have been raised by Ms. Jimmie. I noted that if I made an affirmative determination on that issue, I would place this matter into case management. I added that one of the objectives of the case management process would be to attempt to mediate the dispute between the parties.
III. The Decision
[25] The Decision that is the subject of this application is Council’s resolution dated July 20, 2017. That document was attached to the above-mentioned letter of the same date. Among other things, the resolution stated that Ms. Jimmie was in trespass and authorized SFN Chief David Jimmie, who I understand is Ms. Jimmie’s cousin, to take certain actions. Those actions included executing and delivering an order that Ms. Jimmie vacate the House within 14 days, for and on behalf of the Council.
IV. Relevant Legislation
[26] Pursuant to subsection 18(1) of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine any application or other proceeding for relief sought against any “federal board, commission or other tribunal” (Air Canada v Toronto Port Authority Et Al, 2011 FCA 347 [Port Authority]).
[27] It is common ground between the parties that the Council is a “federal board, commission or other tribunal” within the meaning of subsection 18(1).
[28] Pursuant to subsection 2(1) of the Indian Act, an Indian “band” is defined as follows:
Definitions
2 (1) In this Act,
Définitions
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
band means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act; (bande)
bande Groupe d’Indiens, selon le cas :
a) à l’usage et au profit communs desquels des terres appartenant à Sa Majesté ont été mises de côté avant ou après le 4 septembre 1951;
b) à l’usage et au profit communs desquels, Sa Majesté détient des sommes d’argent;
c) que le gouverneur en conseil a déclaré être une bande pour l’application de la présente loi. (band)
[29] Once again, it is common ground between the parties that the SFN is such a “band.”
[30] With respect to the land on “reserves,” the most relevant provisions of the Indian Act for the present purposes are the following:
Reserves
Reserves to be held for use and benefit of Indians
18 (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.
[…]
Réserves
Les réserves sont détenues à l’usage et au profit des Indiens
18 (1) Sous réserve des autres dispositions de la présente loi, Sa Majesté détient des réserves à l’usage et au profit des bandes respectives pour lesquelles elles furent mises de côté; sous réserve des autres dispositions de la présente loi et des stipulations de tout traité ou cession, le gouverneur en conseil peut décider si tout objet, pour lequel des terres dans une réserve sont ou doivent être utilisées, se trouve à l’usage et au profit de la bande.
[…]
Possession of Lands in Reserves
Possession of lands in a reserve
20 (1) 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.
Possession de terres dans des réserves
Possession de terres dans une réserve
20 (1) Un Indien n’est légalement en possession d’une terre dans une réserve que si, avec l’approbation du ministre, possession de la terre lui a été accordée par le conseil de la bande.
Certificate of Possession
(2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.
[…]
Certificat de possession
(2) Le ministre peut délivrer à un Indien légalement en possession d’une terre dans une réserve un certificat, appelé certificat de possession, attestant son droit de posséder la terre y décrite.
[…]
Control over lands
60 (1) The Governor in Council may at the request of a band grant to the band the right to exercise such control and management over lands in the reserve occupied by that band as the Governor in Council considers desirable.
[…]
Contrôle sur des terres
60 (1) À la demande d’une bande, le gouverneur en conseil peut lui accorder le droit d’exercer, sur des terres situées dans une réserve qu’elle occupe, le contrôle et l’administration qu’il estime désirables.
[…]
Legal Rights
General provincial laws applicable to Indians
88 Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.
[…]
Droits légaux
Lois provinciales d’ordre général applicables aux Indiens
88 Sous réserve des dispositions de quelque traité et de quelque autre loi fédérale, toutes les lois d’application générale et en vigueur dans une province sont applicables aux Indiens qui s’y trouvent et à leur égard, sauf dans la mesure où ces lois sont incompatibles avec la présente loi ou la Loi sur la gestion financière des premières nations ou quelque arrêté, ordonnance, règle, règlement ou texte législatif d’une bande pris sous leur régime, et sauf dans la mesure où ces lois provinciales contiennent des dispositions sur toute question prévue par la présente loi ou la Loi sur la gestion financière des premières nations ou sous leur régime.
[…]
Restriction on mortgage, seizure, etc., of property on reserve
89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.
Inaliénabilité des biens situés sur une réserve
89 (1) Sous réserve des autres dispositions de la présente loi, les biens d’un Indien ou d’une bande situés sur une réserve ne peuvent pas faire l’objet d’un privilège, d’un nantissement, d’une hypothèque, d’une opposition, d’une réquisition, d’une saisie ou d’une exécution en faveur ou à la demande d’une personne autre qu’un Indien ou une bande.
Exception
(1.1) Notwithstanding subsection (1), a leasehold interest in designated lands is subject to charge, pledge, mortgage, attachment, levy, seizure, distress and execution.
Dérogation
(1.1) Par dérogation au paragraphe (1), les droits découlant d’un bail sur une terre désignée peuvent faire l’objet d’un privilège, d’un nantissement, d’une hypothèque, d’une opposition, d’une réquisition, d’une saisie ou d’une exécution.
[31] In addition to the foregoing, the following provisions from the First Nations Land Management Act, SC 1999, c24 [FNLMA] are also relevant to my consideration of the jurisdiction issue that has been raised by the Respondent:
Definitions
2 (1) The definitions in this subsection apply in this Act.
Définitions
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
Framework Agreement means the Framework Agreement on First Nation Land Management concluded between Her Majesty in right of Canada and the First Nations on February 12, 1996, and includes any amendments to the Agreement made pursuant to its provisions. (accord-cadre)
accord-cadre L’Accord-cadre relatif à la gestion des terres des premières nations signé le 12 février 1996 par les premières nations et Sa Majesté du chef du Canada, ainsi que les modifications qui peuvent lui être apportées conformément à ses dispositions. (Framework Agreement)
Land Code and Individual Agreement
Adoption of land code
6 (1) A First Nation that wishes to establish a land management regime in accordance with the Framework Agreement and this Act shall adopt a land code applicable to all land in a reserve of the First Nation, which land code must include the following matters:
Code foncier et accord spécifique
Adoption du code foncier
6 (1) La mise en place d’un régime de gestion des terres, par la première nation, en conformité avec l’accord-cadre et la présente loi est subordonnée à l’adoption d’un code foncier applicable à l’ensemble des terres comprises dans sa réserve et dans lequel figurent les éléments suivants :
(a) a description of the land that is to be subject to the land code that the Surveyor General may prepare or cause to be prepared or any other description that is, in the Surveyor General’s opinion, sufficient to identify those lands;
a) la description des terres visées que l’arpenteur général prépare ou fait préparer éventuellement ou toute autre description qui, à son avis, est adéquate pour préciser les terres visées;
(b) the general rules and procedures applicable to the use and occupancy of First Nation land, including use and occupancy under
(i) licences and leases, and
(ii) interests or rights in First Nation land held pursuant to allotments under subsection 20(1) of the Indian Act or pursuant to the custom of the First Nation;
b) les règles générales — de procédure et autres — applicables en matière d’utilisation et d’occupation de ces terres, notamment en vertu d’un permis ou d’un bail ou en vertu d’un droit ou intérêt découlant soit de la possession accordée en conformité avec le paragraphe 20(1) de la Loi sur les Indiens, soit de la coutume de la première nation;
(c) the procedures that apply to the transfer, by testamentary disposition or succession, of any interest or right in First Nation land;
[…]
c) les règles de procédure applicables en matière de transfert, par dévolution successorale, de droits ou intérêts sur ces terres;
[…]
(f) a community consultation process for the development of general rules and procedures respecting, in cases of breakdown of marriage, the use, occupation and possession of First Nation land and the division of interests or rights in First Nation land;
[…]
f) une disposition relative au processus de consultation populaire visant l’établissement de règles applicables, en cas d’échec du mariage, en matière soit d’utilisation, d’occupation ou de possession des terres de la première nation, soit de partage des droits ou intérêts sur celles-ci;
[…]
(i) the establishment or identification of a forum for the resolution of disputes in relation to interests or rights in First Nation land;
(i) une disposition prévoyant soit la constitution d’un organe chargé de régler les différends concernant les droits ou intérêts sur les terres de la première nation, soit l’attribution de cette fonction à un organe donné;
(j) the general rules and procedures that apply in respect of the granting or expropriation by the First Nation of interests or rights in First Nation land;
[…]
j) les règles générales — de procédure et autres — applicables en matière d’attribution ou d’expropriation, par la première nation, de droits ou intérêts sur ses terres;
[…]
[32] Finally, for the present purposes, the most relevant provisions of the Land Code* are as follows:
Definitions
2.1 In this Land Code:
“Band Land” means Squiala First Nation Land in which all Members have a common interest and which is not subject to any individual interest;
“Certificate of Possession” means documentary evidence of a Member’s interest in Squiala First Nation Land granted to a Member under section 28.4 of this Land code or if granted prior to this Land Code coming into force, granted pursuant to s. 20(2) of the Indian Act, which entitles the Member holding the Certificate to the Rights set out in section 28.2;
“Framework Agreement” means the Framework Agreement on First Nations Land Management entered into between the Government of Canada and fourteen First Nations on February 12, 1996, as amended;
“Interest” means an interest in Squiala First Nation Land and includes a Residential Allocation, Certificate of Possession, Leasehold, Easement, Right-of-Way, Permit, Licence, Natural Resource Licence, charge and Mortgage;
“Residential Allocation” means a parcel of Band Land allocated to a Member under section 29.1;
[…]
Paramountcy
[…]
2.4 If there is an inconsistency or conflict between this Land Code and the Framework Agreement, the Framework Agreement will prevail to the extent of the inconsistency or conflict.
[…]
Source of Authority
3.1 The Authority of Squiala First Nation to govern its lands and resources flows from:
a) the Creator to the people of Squiala First Nation;
b) from the people of Squiala First Nation to the Council according to the culture, traditions, customs and Land Code Laws of Squiala First Nation;
c) from Squiala First Nation’s inherent right of self-government and its other aboriginal rights, including aboriginal title.
Purpose
4.1 The purpose of this Land Code is to implement the Framework Agreement and without limiting the generality of the foregoing, to set out the principles, procedures and administrative structures that apply to Squiala First Nation and by which Squiala First Nation will exercise authority over those lands in accordance with the Framework Agreement.
[…]
Council May Make Land Code Laws
6.1 Council may, in accordance with this Land Code, make Land Code Laws in respect of:
(a) development, conservation, protection, management, use and possession of Squiala First Nation Land;
(b) Interests and Licences in relation to Squiala First Nation Land; …
[…]
Interests that May Be Expropriated
15.1 An Interest in Squiala First Nation Land or in any building or other structure on Squiala First Nation may be expropriated by Squiala First Nation in accordance with the Framework Agreement and a Land Code Law enacted in accordance with section 15.3 of this Land Code.
[…]
Composition
21.1 The Land Committee will be comprised of at least five members appointed by Council in accordance with this Section.
[…]
All Dispositions in Writing
25.1 An Interest in Squiala First Nation Land may only be created, granted, disposed of, assigned or transferred by an Instrument issued in accordance with this Land Code.
Standards
25.2 Council may, after full and fair consideration of any recommendations made by the Lands Committee, establish mandatory standards, criteria and forms for Interests in Squiala First Nation Land.
[…]
Improper Transactions Void
25.5 An Instrument by which Squiala First Nation, a Member or any other person purports to create, dispose of, assign or transfer an Interest in Squiala First Nation Land after the date this Land Code comes into effect is void if it contravenes this Land Code.
[…]
Authority to Make Dispositions
27.1 Subject to this Land Code, Council may grant:
(a) Interests in Band Land including but not limited to Certificates of Possession, Leaseholds, Licenses, Permits, Easements and rights-of-way in relation to Band Land; and
(b) Licences, Natural Resource Licences and Permits in relation to Band Land.
[…]
Nature of Interest
28.2 Subject to this Land Code, a Certificate of Possession in respect of a parcel of Squiala First Nation Land is an Interest that entitles the Member holding the interest to:
a) permanent, exclusive possession of the land;
b) benefit from the resources arising from the land;
c) subject to a land use plan or zoning Land Code Law, grant subsidiary Interests in the land, including licenses, Natural Resource Licenses or Permits;
d) transfer, devise or otherwise dispose of the land to another Member; and
e) any other rights, consistent with this Land Code, that are attached to Certificates of Possession under the Indian Act.
[…]
28.4 Council may allocate a Certificate of Possession to a parcel of Band Land to a Member for residential purposes if:
(a) the subject lands are shown on a land use plan as designated residential;
(b) the subject lands are surveyed; and
(c) the Member provides evidence of being capable of financing and building a residence without financial assistance from Squiala First Nation.
[…]
Allocation of Residential Lots
29.1 Council may, by Lease or other disposition, allocate a parcel of Band Land to a Member or Members for residential purposes.
[…]
Transfer of Certificate of Possession for a Leasehold
31.2 Where, under a written agreement between Squiala First Nation and a Member, a Certificate of Possession is cancelled for the purpose of granting a Member a Leasehold for no more than 99 years to assist the Member to obtain appropriate financing, Council will by Resolution grant a new Certificate of possession of the subject lands when all the terms of the written agreement have been satisfied provided the Member is not in breach of any of the terms of the agreement.
[…]
Protections
32.1 In accordance with the Framework Agreement, sections 29, 87, 89(1) and 89(2) of the Indian Act continue to apply on Squiala First Nation Land.
Mortgage of a Member’s Interest
32.2 Subject to section 32.3, the provisions of section 89(1.1) of the Indian Act apply to leaseholds in Squiala First Nation Land permitted under this Land Code.
[…]
Informal Resolution of Disputes
36.1 Squiala First Nation intends that wherever possible disputes will be resolved through informal discussion by the parties to the dispute and nothing in this part will be construed to limit the ability of the parties to a dispute to settle the dispute without recourse to this Part.
36.2 Squiala First Nation intends that whenever possible, a dispute that is not resolved by informal discussion by the parties to the dispute be resolved through voluntary participation of the parties in a tribal or other alternative dispute resolution forum rather than through the traditional court system.
[…]
Office of Adjudicator Established
[…]
37.3 The Adjudicator will be appointed by Council on an as needed basis as set out in this Part and in any policies Council may establish with respect to such appointment.
[…]
Administrative Decisions
38.2 If a Member or any person with an Interest in Squiala First Nation Land disagrees with an administrative decision made under this Land Code, the person must first attempt to resolve the issue with the decision-maker before requesting a referral of the dispute to the Adjudicator.
38.3 Council must establish policies and procedures for an internal dispute resolution process through which a Member or any person with an Interest in Squiala First Nation Land may attempt to resolve an issue as required by section 38.2.
[…]
Alternate Forums
[…]
42.1 Council may establish a Traditional Advisory Council to:
[…]
(b) at the request of a Member, provide a forum for informal dispute resolution discussions for a Member involved in a dispute with respect to Squiala First Nation Land,
based on the Traditional Advisory Council’s knowledge and experience with traditional Sto:lo and Ts’elxwéyeqw laws, practices, protocols and values.
* Une version française du Land Code n’existe pas.
[33] According to the affidavit evidence provided by Ms. Bartz, the Land Code came into force in accordance with the FNLMA on July 29, 2008.
V. Assessment
A. Does this Court have the jurisdiction to deal with this dispute?
[34] The Respondent submits that this Court does not have jurisdiction to review the Council’s Decision to evict Ms. Jimmie. While it acknowledges that the Council is a “federal board, commission or other tribunal” within the meaning of s. 18(1) of the Federal Courts Act, it maintains that the Council was not acting as “a federal board, commission or other tribunal” when it made that Decision. Rather, the Council was simply enforcing its private law rights as a property owner and landlord.
[35] I disagree.
[36] In support of its position, the Respondent relies on Devil’s Gap Cottagers (1982) Ltd v Rat Portage Band No 38B (Wauzhushk Onigum Nation), 2008 FC 812 [Devil’s Gap] and Port Authority, above.
[37] Devil’s Gap, above, concerned a decision by the Chief and Council of the Wauzhushk Onigum Nation [the WON] to refuse to extend a lease or to enter into a new lease with the applicant corporation, whose 33 shareholders each owned a cottage located on the WON’s reserve. The applicant maintained that the decision constituted a breach of a pre-existing contractual obligation owed to it to extend the term of the lease to the end of 2020. It appears that the cottagers in question were not members of the WON.
[38] In the course of dismissing the application, Justice Dawson (as she then was) noted that no grant had been made to the WON under s. 60 of the Indian Act to exercise control and management over the WON’s reserve lands. Accordingly, she found that it followed that a decision not to extend the disputed lease did not fall within any aspect of the control or management of reserve lands dealt with by the Indian Act (Devil’s Gap, above, at para 41). In addition, she found that pursuant to Treaty No. 3, the WON retained the inherent right to consent to any lease of reserve lands. In this regard, she underlined, among other things, language in that treaty which ceded the land in question to the WON. Based on these considerations, she concluded that the Chief and council of the WON were not acting as a “federal board, commission or other tribunal” when they refused to consent to an extension of the applicant’s lease (Devil’s Gap, above, at para 45, and 64-66).
[39] In my view, the above considerations upon which Justice Dawson relied in reaching that conclusion can be distinguished from the factual matrix that underlies the dispute in the present proceeding. As will be further discussed below, the SFN has been granted the right to exercise control and management over its reserve lands pursuant to the FNLMA. Pursuant to s. 6 of the FMLMA and the Framework Agreement on First Nation Land Management [the Framework Agreement] concluded on February 12, 1996, between Her Majesty in Right of Canada and various First Nations, including SFN, the SFN then established the Land Code. The foregoing scheme, which is rooted in federal law, provided an important source for the Decision (Anisman v Canada (Border Services Agency), 2010 FCA 52, at paras 29-31) and is very relevant to an assessment of whether the Council was acting as “a federal board, commission or other tribunal” when it made the Decision.
[40] In Port Authority, above, the Federal Court of Appeal explained that not all conduct of “a federal board, commission or other tribunal” is amenable to review under the Federal Courts Act. The determination turns on whether the conduct in question is best characterized as having been public or private in nature (Port Authority, above, at paras 50-55). The Court identified “renting and managing premises,” as well as “hiring support staff,” as examples of acting in private ways (Port Authority, above, at para 52). After observing that it can be “tricky” to ascertain what is a public law power and what is private law power, the Court identified the following eight factors to be considered in making that assessment:
i.The character of the matter for which review is sought;
ii.The nature of the decision-maker and its responsibilities;
iii.The extent to which a decision is founded in and shaped by law as opposed to private discretion;
iv.The body’s relationship to other statutory schemes or other parts of government;
v.The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
vi.The suitability of public law remedies;
vii.The existence of compulsory power; and
viii.An “exceptional” category of cases where the conduct has attained a serious public dimension.
(Port Authority, above, at para 60. Citations omitted.)
[41] I will turn now to an assessment of those factors:
i. The character of the matter for which review is sought
[42] In assessing this issue, a key focus is upon whether the Decision concerned a private, commercial matter, or is of broader import to members of the public. In this regard, I consider the Decision itself to be of considerable assistance.
[43] Specifically, a recital to the Council’s resolution states that “the Band Council has an obligation to all Squiala Band Members to manage SFN Land and housing needs in a fair manner and in the best interests of the Band, including following housing policy and providing the Residence to a Squiala Band member already on the waiting list.” This consideration was reinforced in the letter, dated July 20, 2017, that was sent to Ms. Jimmie to inform her of the Decision. In particular, the letter drew Ms. Jimmie’s attention to the fact that SFN “has an obligation to all Squiala Band Members to manage our Lands and housing needs on our Land in a fair manner and in the best interests of the Band.”
[44] The statements quoted above reflect that the Decision had an important public character or dimension, namely, Council’s obligation to manage SFN land and housing in the best interests of the band. In light of that obligation, which is also contemplated by subsections 2(1) and 18(1) of the Indian Act, it cannot be said that the Council was acting “no differently” than a party to an agreement entered into in the private sector (Dunsmuir v New Brunswick, 2008 SCC 9, at para 103).
[45] Moreover, in communicating the Decision to Ms. Jimmie, the letter dated July 20, 2017, stated that the House “is located on Band-owned Land and not on land subject to a [CoP]” in favour of Ms. Jimmie’s father. This suggests that the Decision involved a determination that Ms. Jimmie had no interest in the land upon which the House sits. This is an important fact that is contested by Ms. Jimmie, and serves to further distinguish the present circumstances from those faced by a landlord operating in the private sector.
[46] In my view, the foregoing considerations weigh in favour of concluding that the Decision had an important public dimension, namely, the management of SFN land and housing in a fair manner and in the best interests of the Band. In this regard, I will simply add in passing that Ms. Jimmie stated during the oral hearing of this application that this matter is “impacting the entire community.”
ii. The nature of the decision-maker and its responsibilities
[47] This factor contemplates an assessment of whether the decision-maker, in this case the Council, has a public mandate or is charged with public responsibilities. In addition, it requires a consideration of whether the Decision was closely related to those responsibilities.
[48] In contrast to a private sector landlord or property manager, the Council has a strong public mandate and exercises extensive public responsibilities, including in relation to land and housing. Pursuant to the Land Code, Council has the authority to make Land Code Laws in respect of a broad range of matters, including the management, use and possession of SFN land (s. 6.1). It can also expropriate SFN land in accordance with the Framework Agreement and a Land Code Law (s. 15.1). In addition, it appoints the members of the Lands Committee (s. 21.1), and may establish mandatory standards, criteria and forms for establishing interests in SFN lands (s. 25.2). Moreover, it can grant interests in SFN land, including through CoPs, leaseholds, licences, permits, easements and rights-of-way in relation to band land (ss. 27.1, 28.4 and 29.1). It is also responsible for appointing adjudicators to resolve disputes under the Land Code (s. 37.3), and for establishing a Traditional Advisory Council to provide advice and guidance with respect to, among other things, disputes concerning SFN Land (s. 42.1). In addition, it is required to establish policies and procedures for an internal dispute resolution process through which a band member or any person with an interest in SFN land may attempt to resolve an issue under the Land Code (s. 38.3). Significantly, “Band Land” is defined under s. 2.1 to mean SFN “land in which all Members have a common interest and which is not subject to any individual interest” (emphasis added).
[49] As discussed at paragraph 43 above, the Decision was explicitly taken by Council in furtherance of its public mandate to manage the SFN’s lands and the housing needs of the band’s members “in a fair manner and in the best interests of the Band.”
[50] Once again, the foregoing considerations weigh in favour of concluding that the Decision had an important public dimension.
iii. The extent to which the Decision is founded in and shaped by law as opposed to private discretion
[51] If a challenged decision was authorized by or emanated directly from a public source of law, such as statute, regulation or order, a court will be more willing to find that the matter is public (Port Authority, above, at para 60).
[52] The Respondent maintains that its decision to evict Ms. Jimmie simply represented the exercise of Council discretion to enforce its common law right as a landlord to evict her from a residence in which she had no right to reside. The Respondent characterizes the related decision to evict Ms. Jimmie’s son (Norman Gabriel), and the other members of her immediate family, as being rooted in the same exercise of discretion, fo