Pittman v. Ashcroft First Nation

Pittman v. Ashcroft First Nation
Court (s) Database
Federal Court Decisions
Date
2022-10-05
Neutral citation
2022 FC 1380
File numbers
T-1061-21, T-926-21
Decision Content
Date: 20221005
Dockets: T-926-21
T-1061-21
Citation: 2022 FC 1380
Ottawa, Ontario, October 5, 2022
PRESENT: Mr. Justice Sébastien Grammond
Docket: T-926-21
BETWEEN:
ANNETTE PITTMAN, RAYMOND DICK,
SERAPHINE BOOMER AND DAYTON DICK
Applicants
and
ASHCROFT INDIAN BAND, GREG BLAIN, EARL BLAIN,
DENNIS PITTMAN AND BLAIR MACKENZIE
IN HIS CAPACITY AS ELECTORAL OFFICER
Respondents
Docket: T-1061-21
BETWEEN:
ANNETTE PITTMAN, RAYMOND DICK,
SERAPHINE BOOMER AND DAYTON DICK
Applicants
and
ASHCROFT INDIAN BAND COUNCIL, GREG BLAIN
IN HIS PERSONAL CAPACITY AND IN HIS CAPACITY
AS CHIEF OF THE ASHCROFT INDIAN BAND,
EARL BLAIN IN HIS CAPACITY AS COUNCILLOR OF THE
ASHCROFT INDIAN BAND, DENNIS PITTMAN IN HIS CAPACITY
AS COUNCILLOR OF ASHCROFT INDIAN BAND, AND ARNOLD BLAIN,
DALLAS BLAIN, JASON BLAIN, KYLE BLAIN, LESLIE BLAIN JR.,
LOGAN BLAIN, MELISSA BLAIN, ROMAN BLAIN, TRISTA BLAIN,
ZACHARY BLAIN, CLINTON BLANKINSHIP, SHAWN BLANKINSHIP,
LAVONNE COMIN, MATTHEW COMIN, ARLENE DIXON,
BRENDAN DIXON, NOLAN DIXON, RACHEL DIXON, ALFRED GARDNER,
DAWN GARDNER, KENNETH PETER GARDNER, KENNETH RYLEY GARDNER, FLECIA GORDON, MARCIE GORDON, ADAM GURNEY,
DENISE GURNEY, LESLEY HEIDEL, DEBRA KILBACK (VAN NOSTRAND),
JACQUELINE KOUPRIE, BETTY LOWRY, JAMES MARTIN,
KENNETH MARTIN, ADRIAN PELLETIER, ALEXANDER PELLETIER,
BLAISE PELLETIER, CECILA PELLETIER, ELLEN PELLETIER (LAMBERT),
ERIN PELLETIER, KATHERINE PELLETIER, MICHAEL PELLETIER,
REGINA PELLETIER, ROLAND PELLETIER, VINCENT PELLETIER,
SHARON SCHAMEHORN, TERESA VANDELL, MICHAEL VAN NOSTRAND
AND DELORESS WARNEBOLDT
Respondents
JUDGMENT AND REASONS
[1] Membership in the Ashcroft Indian Band has given rise to recurring controversies. The applicants, three of whom were unsuccessful candidates in the last election, assert that two groups of persons who voted in the election are not entitled to membership. They seek declarations that these persons are not entitled to vote and that the election and a referendum held at the same time were invalid and other orders.
[2] The resolution of this matter involves two aspects of the rule of law principle: one cannot allege a breach of the law unless one has evidence of the breach; and the law cannot be changed without following the established procedure. Here, the relevant law is the Membership Rules enacted in 1987 by the Band. The applicants’ basic submission is that two groups of persons have been added to the Band’s membership list without following the procedure set forth by the 1987 Rules.
[3] According to the applicants, the first group of disputed members consists of persons who, given their age and the fact that they have only one parent who is a Band member, could only become members by a vote of all the Band members. There is no written record of such a vote with respect to these persons. The applicants infer that these persons never became members. I disagree. All available evidence suggests that these persons were duly admitted into the Band in the late 1980s or early 1990s. The loss or destruction of the minutes of the relevant meetings does not disentitle these persons from membership. The controversy regarding these persons’ entitlement for membership has been going on for many years, yet no evidence was ever found that their names were not regularly added to the Band list.
[4] The applicants challenge the entitlement to membership of a second group of persons. In 2012, the Council of the Band adopted a resolution (or “BCR”) to admit children who have only one parent who is a Band member, without the need for a vote of all Band members in each case. In 2021, a referendum was held to enact a membership code that would replace the 1987 Rules and set forth rules similar to those found in the 2012 BCR. The applicants argue that the 2012 BCR and 2021 referendum are invalid. As the persons in this second group derive their entitlement to membership solely from the 2012 BCR and 2021 referendum, their names would not have been lawfully added to the Band list.
[5] I agree with the applicants. The Council did not have the power to amend the 1987 Rules by way of resolution. Membership rules can only be amended by a vote of the majority of the electors of the Band. The 2021 referendum was also invalid, because the votes of the second disputed group were critical in securing a majority in favour of the new code. However, these persons were not members yet and were therefore not entitled to vote. As a result, the persons in the second disputed group never became members of the Band.
[6] Therefore, I will declare that the 1987 Rules remain in force, quash the 2012 BCR and the 2021 referendum and declare that the persons in the second disputed group are not members of the Band. I will suspend the latter declaration for 18 months to allow the parties to reach a mutually acceptable solution.
[7] The results of the 2021 election, in contrast, are not affected by this issue. While the second disputed group illegally voted, the margin of victory was greater than the number of persons in that group.
I. Background
A. Ashcroft Indian Band
[8] Ashcroft Indian Band is a First Nation governed by the Indian Act, RSC 1985, c I-5 [the Act]. It is a component of the Nlaka’pamux nation. Both parties informed me that it was appropriate to refer to it as the “Band,” and I will do so throughout these reasons. The Band is located in south central British Columbia. Prior to the events described below, it had approximately 100 members, of whom about 40 resided on the Band’s reserves.
B. The 1987 Membership Rules
[9] In 1985, the Act was amended to put an end to more than a century of discrimination against women in the transmission of Indian status. These amendments are commonly known as Bill C-31. Categories of persons who had lost Indian status pursuant to the former version of the Act, most importantly Indian women who had married non-Indian men, regained Indian status.
[10] Bill C-31, however, separated the concept of Indian status from that of membership in a First Nation. Section 10 of the new Act empowered First Nations to enact their own membership codes. In exercising this power, however, First Nations had to recognize the acquired rights of reinstated persons. In other words, persons who regained Indian status through Bill C-31 had an automatic right to become members of their former First Nations. A different rule was applied to the children of reinstated persons. These children obtained Indian status pursuant to section 6(2) of the Act. However, Bill C-31 imposed a two-year moratorium on their automatic entitlement to First Nation membership. This was intended to give First Nations time to develop alternative provisions regarding the admission of children of reinstated persons.
[11] The Band availed itself of this opportunity and enacted its Membership Rules [the Rules] on June 28, 1987. The Minister of Indian Affairs confirmed the validity of the Rules in September 1987. For this reason, I must treat the Rules as enacted in conformity with the requirements of section 10 of the Act, even though little evidence subsists regarding the process leading to their enactment.
[12] Section 1 of the Rules states that their purpose is to “protect the cultural and social identity of the Band” and “to maintain and strengthen the existing sense of community.” Part II of the Rules is entitled “Original Membership” and, in reality, describes categories of persons who are automatically entitled to membership. These categories include persons who were band members when the Rules came into force, persons whose both parents are members of the band and persons who regained Indian status pursuant to Bill C-31. With respect to children of reinstated persons, section 4 of the Rules affords automatic membership on certain conditions:
All minor children born of natural parents, at least one of whom is a resident restored member, are deemed to be original members.
[13] This provision does not apply to persons who were already adults in 1987, nor to the children of reinstated persons who resided off-reserve.
[14] Part III of the Rules is entitled “Discretionary Membership.” It provides persons who are not entitled to automatic membership pursuant to Part II the opportunity to apply for admission in the Band. This applies, in particular, to “all children of restored members eighteen years or older on the day these Rules come into force.” According to section 8, applicants must prove they hold Indian status and are lineal descendants from a “Band member with Indian blood.” Part VI sets out the “Application Procedure.” A membership clerk must first ensure that the application is accompanied by proper documentation. The application is then reviewed by a membership committee composed of representatives of the “four major families” of the Band and one non-member. The membership committee may recommend acceptance or rejection of an application. The application must then be submitted to a referendum of Band members.
C. Implementation of the Rules 1987–2004
[15] In the years following the coming into force of the Rules, a significant number of reinstated persons obtained automatic membership. Moreover, many of their children applied for discretionary admission. The evidence shows that these applications were decided at Band meetings, which all members of the Band could attend, instead of referendums. Moreover, there is scant evidence of the existence of a membership committee distinct from the Band meetings. While the minutes of some of these Band meetings have survived, it is common ground that many records of that era are now missing. Thus, written evidence of the admission process is not always available. From the records that are available, it appears that all applications were accepted, although a few applications for transfer from another First Nation were refused.
[16] The practice of holding membership votes at Band meetings appears to have ceased around 1996. The respondents suggest that the Band then adopted a practice of automatically admitting all children who have at least one parent who is a member of the Band, instead of requiring them to apply for discretionary admission in accordance with the 1987 Rules. They called this practice the “every child policy.” There is, however, little evidence of anyone being admitted into the Band during the period 1996–2012. In all likelihood, the members of the second disputed group were admitted into the Band after 2012 (see Jodene Blain’s affidavit dated August 16, 2021). Thus, I cannot reach any conclusion as to the practice prior to 2012.
[17] Moreover, concerns began to be raised regarding discriminatory aspects of certain provisions of the Rules, in particular the fact that minor children of reinstated persons were automatically admitted, whereas adult children were not, and the fact that automatic admission was granted only to children of members who resided on the reserve. The discriminatory aspect of the latter rule became more apparent after the decision of the Supreme Court of Canada in Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [Corbiere].
D. Controversies Regarding Membership 2004–2012
[18] The Corbiere decision had another effect on the governance of the Band: it granted off-reserve members the right to vote in Council elections, which were then held pursuant to the Act.
[19] Mr. Greg Blain, one of the respondents in these proceedings, was elected chief in 2004 and has held this position ever since. Chief Blain’s father was a reinstated person who became a member of the Band when the Rules came into force in 1987. Chief Blain obtained Indian status in 1988. As he was already an adult, he could not avail himself of the automatic membership provisions of the 1987 Rules. Although this is contested, Chief Blain states that he applied for membership in 1988 and was admitted shortly thereafter. There is no surviving written record of his application nor minutes of the meeting at which he was admitted. I will return to this issue later in these reasons.
[20] In 2006, Ms. Annette Pittman, one of the applicants, ran for chief against Mr. Blain and lost. During the election campaign, she began asserting that the membership list and, by extension, the voters’ list contained the names of persons who were never properly admitted in the Band by a vote of the membership, including that of Chief Blain. She drew up her own membership list, which excluded a number of persons whom she believed had not been properly admitted into the Band. She challenged the results of the election, but the Minister dismissed her appeal.
[21] In 2009, as doubts continued to be expressed regarding the entitlement to membership of many persons whose names were on the Band list, the Council agreed to commission a membership review. It retained the services of Ms. Vina Starr, a lawyer who had participated in the drafting of the 1987 Rules. She was to be assisted by Ms. Charlene Pittman, the Band’s membership clerk. Those seeking a membership review eventually persuaded the Council to include Ms. Mae Kirkpatrick, a former chief of the Band and Ms. Annette Pittman’s aunt, in the process. Ms. Starr, Ms. Kirkpatrick and Ms. Charlene Pittman spent a number of days reviewing membership files. However, they never produced a report as a committee, because the Council decided to terminate Ms. Starr’s mandate. Ms. Starr wrote a report describing the process she followed, but she did not opine on anyone’s membership. Ms. Kirkpatrick wrote her own report, reaching the conclusion that many persons whose names appeared on the membership list had to apply for membership but never did. I will return to the methodology used to produce Ms. Kirkpatrick’s list later in these reasons.
[22] The Council did not take any measures following what I will call the “Starr review.” In the 2010 election, Mr. Raymond Cameron, who is Ms. Kirkpatrick’s son, ran for chief against Mr. Blain and lost. Mr. Cameron appealed the result to the Minister, but his appeal was dismissed.
E. This Court’s 2012 Decision
[23] In 2011, Mr. Cameron brought two applications to this Court. The first application was for judicial review of the Minister’s decision to dismiss the election appeal. In the second application, Mr. Cameron sought a writ of mandamus requiring the Band to apply the Rules and to undertake a membership review process.
[24] My colleague Justice Richard Mosley allowed both applications: Cameron v Canada (Indian Affairs and Northern Development), 2012 FC 579. The basic reason for his decision was his finding that the Band had failed in its duty to apply the Rules. He noted that there were “reasonable grounds to question the validity of the membership list” (paragraph 57) and that no membership meetings had been called after 2005 (paragraph 58). Apparently, the Band had not filed any evidence opposing the application. Justice Mosley also rejected the Band’s submission that the proper procedure would be to seek judicial review of each decision to put a person’s name on the membership list without following the Rules (paragraphs 53–54). Beyond the impracticality of proceeding in this fashion, he noted that Mr. Cameron did not challenge anyone’s membership but simply wanted the Band to comply with its own law.
[25] In his formal judgment, Justice Mosley declared that the Council had breached its duty to administer the band list in compliance with the 1987 Rules. He ordered the Council to convene a membership committee and to submit to it with the name of every person who needed to apply for membership. The impending election was deferred to allow for the completion of this process.
F. Aftermath of This Court’s Decision
[26] The Band set up a process to respond to Justice Mosley’s judgment. What we know about this process is found in an affidavit sworn in 2012 by Darcy Robinson, who then was the membership clerk and band administrator. Mr. Robinson states that he compiled all available information regarding membership issues, including the Band’s records, which were incomplete, the Starr and Kirkpatrick reports of 2009, and information obtained from Mr. Cameron. In addition, the Band wrote to affected members to have their views on the matter. The individual answers are not in the record, but Mr. Robinson states that “many responses expressed frustration that their membership was being challenged, and asserted that they were and had long been on the Band list and treated as members.”
[27] Mr. Robinson then sought a legal opinion regarding the compatibility of the 1987 Rules with the Canadian Charter of Rights and Freedoms [the Charter]. This opinion was provided to the Council at a meeting held on August 13, 2012. At that meeting, a majority of the Council adopted a resolution (identified as BCR no 2) setting out how the 1987 Rules should be interpreted to avoid discrimination. This resolution’s preamble is in reality a judgment about the constitutional validity of section 4 of the 1987 Rules. It concludes that “the discriminatory provisions of the code, including section 4 of the code, are, in accordance with section 52 of the Constitution Act, 1982, are [sic] of no force and effect.” The operative part of the resolution contains the following provision:
Section 4 of the Code shall be read and applied so as to extend the benefits set out therein to all persons equally. The qualifications under section 4 of the membership code are as follows:
All persons, possessing some Indian blood, and born of natural parents, at least one of which is, was, or is entitled to be a member of the Ashcroft Band, are deemed to be original members.
[…]
[28] The Council then studied the case of each individual whose membership had been challenged by Mr. Cameron or in the Starr review, in what is known as BCR no 4. In each case, the Council reached the conclusion that the person was already a member and did not need to apply for discretionary membership, either because the person had previously applied and was voted in, or because they were entitled to automatic membership pursuant to the Council’s interpretation of the 1987 Rules, as set forth in the resolution adopted earlier the same day.
[29] The Council also adopted a further resolution (BCR no 6) granting membership to a number of persons. In his affidavit, Mr. Robinson states that the aim of this resolution was to clear a backlog of applications for membership that had not been processed because of the ongoing controversies surrounding membership. The list appended to the resolution shows that some of these persons were admitted on the basis that their two parents are members of the Band (a category of automatic admission pursuant to the 1987 Rules), while others are admitted on the basis of the Council’s interpretation of section 4.
[30] The Council also appointed a membership committee pursuant to the Rules. However, as it had found that no one needed to apply for membership, the Council did not forward the names of any such persons to the membership committee.
[31] Mr. Cameron was not satisfied with the Council’s response to Justice Mosley’s judgment. He brought a motion asking Justice Mosley to issue further directions and an application for judicial review of the resolutions adopted at the August 13, 2012 Council meeting. However, Mr. Cameron discontinued these proceedings. I have little information as to why he did so. He has since passed away. There is no suggestion that he reached any kind of agreement with the Council.
[32] Elections were held in late 2012 and in 2016. (Beginning in 2016, the Band has conducted its elections pursuant to the First Nations Elections Act, SC 2014, c 5 [the FNEA].) The membership issue was not raised on these occasions. A further election was called for May 6, 2021. Raymond Dick, Seraphine Boomer and Dayton Dick, who are applicants in the present proceeding, were candidates in that election. On that occasion, the Council also called a referendum to submit a new membership code to the members of the Band membership. This membership code purports to regularize the membership of anyone whose name appears on the existing membership list. It also entitles to membership any person who is a status Indian and who has at least one parent who is a Band member and a status Indian.
[33] Prior to the election, one of the applicants, Ms. Pittman, raised the issue of membership with the Band administrator and the electoral officer. Her concerns were dismissed and the election and referendum took place with a voters’ list that included several persons whose eligibility she disputes. Chief Blain was re-elected, by a margin of 42 votes. Messrs. Earl Blain and Dennis Pittman were elected councillors, by a margin of 34 votes. The membership code was adopted by a margin of 14 votes.
[34] The applicants then brought two applications for judicial review. The first one, the “Band list application,” challenges the Council’s failure to comply with Justice Mosley’s judgment and the entitlement of two groups of persons to membership in the Band. This first application also challenges the validity of the 2012 BCRs and the 2021 referendum. The second application, which I will call the “FNEA application,” is brought under section 31 of the FNEA and challenges the results of the 2021 election.
II. Analysis
[35] Although the applicants brought two separate applications and seek a broad array of remedies, two basic issues emerge: the entitlement to membership of the first group of disputed members and the entitlement of the second group. These reasons are therefore organized as follows. I first address the standard of review. I then turn to the entitlement of the first and second disputed groups. I discuss the validity of the 2012 BCRs and the 2021 referendum as part of my reasons regarding the second group’s entitlement. Once both groups’ entitlement is determined, I draw the consequences with respect to the validity of the 2021 election. Lastly, I explain which remedies are warranted.
[36] At the outset, I emphasize that this judgment is not about the relative merits of the 1987 Rules and the 2021 membership code. It is for the Band’s membership, not for the Court, to decide which categories of persons should become members of the Band and according to which procedure. Neither does this judgment rule on the constitutional validity of the 1987 Rules. For reasons explained later, this issue was not properly brought before the Court.
A. Standard of Review
[37] The selection of a standard of review is a challenging exercise in this case.
[38] Several aspects of the applications for judicial review call for this Court to act as the original decision-maker. In the FNEA application, the Court decides the validity of the election without showing deference to anyone: McCallum v Canoe Lake Cree First Nation, 2022 FC 969 at paragraph 68 [McCallum]. The Band list application seeks several declarations, that is, statements of the legal situation of the parties.
[39] Yet other aspects of the applications involve an explicit or implicit challenge to a specific decision. Most conspicuously, the applicants are asking me to quash the 2012 BCRs and to invalidate the 2021 referendum. These decisions would normally be reviewed on a reasonableness standard: see, for example, McCallum, at paragraph 26. Even where a declaration is sought, the relevant legal situation may include a decision to grant membership to someone. Extending reasonableness review to such decisions raises practical difficulties, as we have no evidence of these decisions and, at least in the case of the second disputed group, it is unclear who would have made them. This makes it only more difficult to separate the issues on which the Court is the original decision-maker and those on which it is reviewing someone else’s decision.
[40] The parties have not provided meaningful submissions regarding the standard of review. They have largely argued the case as if I were the original decision-maker. They have not argued that the matters at hand should have been decided by a decision-maker established by the Band. At the end of their submissions, the respondents stated that they abandoned any “technical defences” and wished the Court to provide a comprehensive solution on the merits.
[41] Fortunately, it is not necessary to reach a definitive conclusion regarding the standard of review, given the manner in which I am deciding the merits. With respect to the first disputed group, the applicants failed to bring any evidence that their inclusion on the Band list results from an incorrect or, a fortiori, an unreasonable decision or application of the law. The entitlement of the second disputed group depends largely on the validity of the 2012 BCRs and the 2021 referendum. I conclude that the Council acted unreasonably in purporting to enact the 2012 BCRs. As to the referendum, the reasoning the respondents put forward to sustain its validity is unreasonable.
B. The First Disputed Group
[42] The first disputed group of members consists of 21 persons whose names appeared on the 2021 voters’ list, who in fact voted in the 2021 election, but who were identified in the 2009 Starr review as not having been duly admitted into the Band pursuant to the 1987 Rules. They are: Arnold Blain, Greg Blain, Leslie Blain Jr., Clinton Blankinship, Shawn Blankinship, Lavonne Comin, Arlene Dixon, Alfred Gardner, Dawn Gardner, Kenneth Peter Gardner, Marcie Gordon, Denise Gurney, Lesley Heidel, Debra Kilback (Van Nostrand), Betty Lowry, James Martin, Kenneth Martin, Erin Pelletier, Sharon Schamehorn, Teresa Vandell and Deloress Warneboldt.
[43] According to the applicants, these persons have in common the fact that they were not members of the Band when the 1987 Rules came into effect, that they were adults at that time (or, in a few cases, non-resident minors), that they have one parent who is a Band member and one who is not and that they obtained Indian status pursuant to section 6(2) of the Indian Act, that is, they are children of a reinstated person.
[44] In substance, the applicants submit that these persons were not entitled to automatic Band membership and could only become Band members if their applications were accepted by a vote of a majority of Band members, pursuant to Parts III and IV of the 1987 Rules. They assert that there is no evidence of any such vote with respect to the 21 persons in the first disputed group.
[45] In his decision, Justice Mosley acknowledged that legitimate concerns had been raised with respect to these (and many other) persons’ entitlement to membership. He did not, however, decide the issue himself. He envisioned a process whereby a neutral body would investigate each individual’s situation and make a decision. As he did not intend to decide the matter himself, I read paragraph 8 of his judgment as a summary of the applicants’ allegations rather than a decision regarding Chief Blain’s membership.
[46] Things did not unfold as Justice Mosley envisioned. As I explained above, the Council took it upon itself to decide that everyone whose membership was disputed was indeed a valid member, leaving no work for the membership committee. It is obvious from Justice Mosley’s order that he intended the bulk of the membership review to be performed by the membership committee, not by the Council itself. He could not have contemplated that the Council would change the membership rules to circumvent his order.
[47] Ten years have passed since Justice Mosley’s decision. If anything, this shows that nothing useful is likely to be accomplished by mandating a further membership review. There is much more evidence before me than what apparently was put before Justice Mosley. In contrast to what was sought before Justice Mosley, the applicants are effectively asking me to rule on the entitlement to membership of specific individuals. The respondents have expressed the hope that my decision would bring a final resolution to the issue. Therefore, I will decide the issue myself instead of mandating a further review.
[48] At the outset, it must be emphasized that the applicants bear the burden of proving that the persons in the first disputed group are not entitled to membership. This is so for two interrelated reasons. First, in an application for judicial review, as in most legal proceedings, applicants bear the burden of establishing their claims, for instance that a decision is unlawful or unreasonable. An applicant cannot initiate a lawsuit, bring no evidence, and simply require that the defendant prove their rights. Second, there is a presumption of regularity of public decisions and registries, often expressed by the Latin maxim, omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium: Sidney N Lederman, Alan W Bryant and Michelle K Fuerst, The Law of Evidence in Canada, 6th ed (Markham: LexisNexis, 2022) at paragraphs 4.57–4.59; Commission des relations de travail du Québec v Canadian Ingersoll-Rand Company Limited, [1968] SCR 695 at 706. Here, a person’s presence on the Band list gives rise to a rebuttable presumption that the person validly acquired membership. In fact, most of the members of the first disputed group have been on the Band membership list since 1996 or 1998.
[49] The applicants’ allegations are based mainly, if not exclusively, on the findings of the 2009 Starr review. At this juncture, it is necessary to provide more details regarding the process and the outcome of this review.
[50] In August 2009, Ms. Starr, Ms. Kirkpatrick and Ms. Charlene Pittman reviewed the entire membership list. They ascertained the precise provision of the Indian Act and of the Rules under which each individual was entitled to Indian status or membership in the Band. A file was created for each person and a list was created to tabulate all the information.
[51] Where a person acquired Indian status after June 27, 1987, that is, the date when the Rules came into force, and did not benefit from automatic entitlement under section 4 of the Rules, the mention “voted in” was added where a record existed showing that the person was admitted at a specific meeting; otherwise, the mention “must apply” was added. Ms. Kirkpatrick explains the process as follows in her affidavit:
We had a very limited number of membership meeting minutes. Whatever membership minutes the band may have had, [Charlene] had very few in her possession as Membership Clerk. She would always say to us, “I got what I got.” I was able to provide even fewer. We were far from having a comprehensive record. Where we didn’t have a copy of the minutes, [Charlene] or I would say if we had a clear memory of someone being voted in. If one of us had reason for doubt, or otherwise disagreed, we would not record the person as having been voted in. Not surprisingly, and despite the fact that she or I, and sometimes both of us, attended many membership meetings, neither of us had a clear recollection of all the people who had been voted in over the previous decade.
[52] The Starr review never completed its mandate. The Council fired Ms. Starr in September 2009 apparently after learning that the outcome of her review would not align with their wishes, and after Ms. Starr insisted on presenting her preliminary findings to the Band’s membership instead of the Council’s lawyer. Ms. Starr later produced a report, describing the genesis of the Rules, the process followed in August 2009 and the circumstances of her firing in September 2009. There is no indication that she had reached definitive conclusions about anyone’s entitlement to membership. No list is appended to her report. Ms. Kirkpatrick produced her own report independently of Ms. Starr. She appended what she described as the latest iteration of the working list produced by the three women, in which 69 persons have a “must apply” notation beside their names.
[53] Ms. Kirkpatrick states that the list developed by Ms. Starr, herself and Ms. Charlene Pittman was not meant to be final and that Ms. Starr was open to revise it if new information came to light. For her part, Ms. Charlene Pittman insists that the “must apply” notations were provisional and meant only that more information was needed to reach a conclusion. Indeed, the affected persons were never contacted nor were they asked to provide any information in their possession bearing on the matter.
[54] In my view, the applicants cannot discharge their burden of proving that the persons in the first disputed group have never been admitted into the Band by relying on the list appended to Ms. Kirkpatrick’s report. The presumption of validity of the Band list has not been rebutted.
[55] First, as the saying goes, absence of evidence is not evidence of absence. Given the process followed, an indication that a person “must apply” means little beyond the fact that no written evidence was found in the Band’s records. Yet, both parties acknowledge that the Band’s records are woefully incomplete. As the surviving minutes of meetings show that most applications were accepted, the most likely conclusion is that a person described as “must apply” had actually applied and was granted membership, but the records have disappeared.
[56] The fact that Ms. Kirkpatrick and Ms. Charlene Pittman had no recollection, had doubts or disagreed about their memories does not prove that a person was never admitted into the Band. In fact, in her affidavit, Ms. Kirkpatrick does not make that inference, except in the case of Chief Blain. She states: “Let me say here that Greg Blain is the kind of guy who leaves an impression. If he had been voted in and I was there, I would have remembered and if I wasn’t there, others sure would have told me.” Such a hypothetical assertion, however, is wholly insufficient for me to reach the conclusion that Chief Blain was never admitted into the Band.
[57] Moreover, there are reasons to doubt the accuracy of Ms. Kirkpatrick’s memory. She lists at least seven persons as not having applied for membership, even though there are membership meeting minutes showing that they were duly admitted into the Band: Nicole Blain (Pigeon), Norman Blain, Jodene Blain, James Lowry, Ricky Wilson, Larry Wilson and Philip Dobranski. Yet, Dean Lulu and Charles Wray, who are shown as members in good standing on the 2009 list, were admitted on the same day as Nicole, Norman and Jodene Blain, at a meeting presided by Ms. Kirkpatrick. The highly partisan tone of Ms. Kirkpatrick’s 2009 report also casts doubt on the impartiality of the process.
[58] Second, there is no positive evidence that anyone was added to the membership list contrary to the Rules during the relevant period. What the evidence reveals is that membership meetings were regularly held in the years after the adoption of the Rules, to process the numerous applications made by persons who had gained Indian status as a result of Bill C-31. The applicants’ theory would assume that unbeknownst to Ms. Kirkpatrick, who was chief during a significant part of that period, someone would have surreptitiously added the names of persons who did not in fact apply to the membership list. This is simply implausible.
[59] Third, some members of the first disputed group gave evidence that they applied for membership in 1987 or shortly thereafter and that they were admitted into the Band. In particular, Earl Blain stated that he applied for the admission of his minor children, Jodene, Nicole and Norman, and he understands that they were voted in at a meeting held in November 1988. He adds that the children of his brother, Les Blain Sr., who are Greg, Les Jr. and Lavonne, were admitted around the same time. Chief Blain states that he and his brother Les Jr. applied for membership in 1988. In early 1990, after they made inquiries, both brothers received a letter from the Band stating that they had been admitted on January 12, 1989. We now know that this date is incorrect, as it is Stanley Blain who was admitted on that date. Nonetheless, this evidence tends to confirm that the members of the first disputed group were admitted into the Band pursuant to a vote.
[60] To summarize, there is not a shred of evidence that the members of the first disputed group were improperly admitted into the Band. There is a presumption that their names were regularly added to the Band list. All available evidence tends to reinforce this presumption instead of rebutting it. Unless we are to conclude that these persons lost their rights when the Band lost its records, we must now accept that they are valid members.
[61] To reach this conclusion, I do not rely on the decision sheets appended to one of the 2012 BCRs, in which the Council purported to find that the members of the first disputed group (and others) were valid members. In most cases, the Council based its decision on its own interpretation of the 1987 Rules, an issue I now turn to. Only three members of the first disputed group were found to have actually applied for membership. The evidence on which the Council based its decisions is not before me. The decisions may simply reflect the fact that the Council did not have more minutes of membership meetings than I now have, and perhaps had even less.
C. The Second Disputed Group
[62] The applicants also challenge the inclusion of a second group of persons on the Band’s membership list. These persons are said to be children of one member of the first disputed group and one person who is not a Band member. Pursuant to the 1987 Rules, they can only be admitted into the Band by a vote of the membership. These persons are: Dallas Blain, Jason Blain, Kyle Blain, Logan Blain, Melissa Blain, Roman Blain, Trista Blain, Zachary Blain, Matthew Comin, Brendan Dixon, Nolan Dixon, Rachel Dixon, Kenneth Ryley Gardner, Flecia Gordon, Adam Gurney, Jacqueline Kouprie, Adrian Pelletier, Alexander Pelletier, Blaise Pelletier, Cecila Pelletier, Ellen Pelletier (Lambert), Katherine Pelletier, Michael Pelletier, Regina Pelletier, Roland Pelletier, Vincent Pelletier and Michael Van Nostrand. They all voted in the 2021 election and referendum.
[63] It is common ground that no membership votes were held after 1996. While it is not entirely clear that the members of the second disputed group were all born after that date, the respondents acknowledge that they never were the subject of a membership vote. It follows that they have not become members of the Band based on the 1987 Rules alone. According to the respondents, there are nevertheless three alternative bases for finding that these persons have become members. First, the respondents assert that the 1987 Rules must be interpreted according to the 2012 BCRs, which would make these persons members, because they have one parent who is a member of the Band. Second, the respondents argue that the 1987 Rules have been repealed and replaced by the new membership code adopted in the 2021 referendum. There is no dispute that the persons in the second disputed group would be entitled to membership if the 2021 code was validly adopted. Third, the respondents say that the practice of automatically admitting children having only one Band member parent has become a custom that displaces the Rules.
[64] I am unable to agree with the respondents. For the following reasons, it was unreasonable for the Council to enact the 2012 BCRs and to consider that the 2021 membership code was validly adopted by referendum. Moreover, the 1987 Rules have not been displaced by a custom. Before explaining why this is so, I must deal with the respondents’ argument that the passage of time forecloses any challenge to the validity of the BCRs or the referendum.
(1) Effect of the Pa