Pelletier v. Delorme

Pelletier v. Delorme
Court (s) Database
Federal Court Decisions
Date
2019-12-13
Neutral citation
2019 FC 1487
File numbers
T-625-18
Decision Content
Date: 20191213
Docket: T-625-18
Citation: 2019 FC 1487
Ottawa, Ontario, December 13, 2019
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
GARY W. PELLETIER AND
GORDON D. LERAT
Applicants
and
CADMUS DELORME, CURTIS LERAT, CAROL LAVALLEE, BONNIE LAVALLEE, LIONEL SPARVIER, RICHARD AISCAICAN, PATRICIA SPARVIER, MALCOLM DELORME, AND JONATHAN Z. LERAT
Respondents
JUDGMENT AND REASONS
I. Nature of the Matter
[1] This is an application for judicial review under subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act] of two decisions [the Decisions] made by Cowessess First Nation [CFN] represented by the Respondents, the elected band council. First, band council resolution #2017/2018-114, adopted July 13, 2017 [BCR], introduces the use of agricultural permits on CFN reserve lands pursuant to subsection 28(2) of the Indian Act, RSC 1985, c I-5 [Indian Act]. Second, an October 3, 2017 Motion #2017/201/-175 [Motion] establishes a monetary compensation amount—$20 per acre—for people affected by changes to the land management regime.
[2] In their Notice of Application filed on March 29, 2018, the Applicants seek various declarations and orders from this Court. They ask this Court to quash the BCR and the Motion or, alternatively, remit the matter back to CFN’s band council with directions. They also seek costs of the application.
[3] The Respondents take issue with the timeliness of the application. I must address this argument before considering the application on its merits.
[4] For the reasons that follow, the application for judicial review is dismissed.
II. Background
[5] As a preliminary matter, I find that this application is made against CFN as represented by the named members of the band council. I note that the Notice of Application lists the individual band council members as the Respondents and it was issued to both the band council of CFN and the individual band council members. The wording of the Notice of Application and the Applicants’ legal arguments refer to the CFN band council. Therefore, I consider the application to be made against CFN as represented by the named members of the band council.
[6] The responsible federal department administering matters under the Indian Act was formerly the Department of Indian Affairs and Northern Development [Department]. The Department has undergone various name changes over the years; however, I will simply use the term “the Department.”
[7] This matter involves a disagreement as to whether CFN band council has the authority to determine how reserve lands are administered for CFN’s benefit. The Applicants state at paragraph 19 of their Memorandum of Argument:
The Applicants submit that what is at issue in this matter is not whether the Home Reserve Lands of the Cowessess First Nation (CFN) need to be managed, but in how the alleged land management system has been developed and implemented.
[8] In their Notice of Application, the Applicants describe the issue as follows:
The Chief and Council do not have lawful authority to remove traditional land holders from their lands, nor do they have authority to make payments to traditional land holders for their lands, as there is no criteria to do so.
[9] The Respondents state in paragraph 2 of their Memorandum of Argument:
This case concerns land tenure on reserve and the jurisdiction of Chief and Council to administer unallocated reserve lands within the Cowessess First Nation. Clearly, under the provisions of the Indian Act and the cases interpreting the Act, Chief and Council possess that jurisdiction.
[10] This proceeding was case managed in accordance with the Federal Courts Rules, SOR/98-106. On July 13, 2018, Prothonotary Aylen ordered the admission into evidence of the affidavit of Terrance Lavallee. In addition, the parties consented to the admission of the affidavit of William Tanner. Both are summarized in the “Evidence” section of these reasons, below.
[11] CFN and its members are descendants of the original signatories to Treaty 4 in southeastern Saskatchewan. CFN has approximately 4,259 registered band members and approximately 839 residing on the CFN reserve. The CFN reserve land base consists of approximately 98,000 acres of land with approximately 28,000 acres of land being on the original CFN reserve [Original Reserve Lands].
[12] CFN was able to expand its reserve land base beyond the Original Reserve Lands as a result of settling an outstanding legal obligation related to its Treaty Land Entitlement [TLE] claim with the Governments of Canada and Saskatchewan. As a result of the TLE settlement, most, if not all, of the lands purchased by CFN have been converted to reserve land status in accordance with the Indian Act [TLE Reserve Lands].
[13] Legal title to CFN reserve lands, including the Original Reserve Lands and the TLE Reserve Lands, is held by Her Majesty the Queen in Right of Canada [Canada] in trust for the CFN membership. These reserve lands are subject to the Indian Act’s land management regime. A large majority of the Original Reserve Lands and the TLE Reserve Lands consist of agricultural lands.
[14] Over the years, CFN’s administration of the Original Reserve Lands varied in formality. Certain land decisions were made in accordance with the Indian Act land management regime, while certain other land decisions were undertaken in accordance with what can best be described as informal practice that fell outside of the Indian Act land management regime.
[15] On the Original Reserve Lands, there are currently approximately 27 CFN members who claim what is described as a customary or traditional interest over certain lands. The parties differ on the appropriate terminology to be ascribed to these 27 CFN members. There are references to the terms “buckshee’ers” and “traditional landholders”. I will use the neutral term “land occupants” for convenience. The interests dealt with in this proceeding involve only the Original Reserve Lands. This proceeding does not involve the Applicants’ homes or residences.
[16] These interests were purportedly created in a number of ways – some of them through recognition by the CFN band council or the Department; some of them by way of band council resolutions; some of them through Department-approved wills, which are discussed below. For the band council resolutions, their terms are long expired. For the wills, it is the descendants who now claim that the interest is continued.
[17] The validity and the extent of the interests held by the land occupants have been the source of some conflict within CFN over the years. There have been attempts to reform the land tenure system but they have not been successful. For a recent example, CFN is an adherent to the Framework Agreement on First Nations Land Management, which has been formalized under the First Nations Land Management Act S.C. 1999, c.24 [FNLMA]; however, CFN has been unable to adopt a land code under this new regime. Accordingly, the Indian Act continues to apply.
[18] Land occupants who do not directly farm these reserve lands allow non-CFN members to farm them. The land occupants receive the fees or rents for the use of the lands directly from the non-CFN members. CFN receives no fees from these arrangements. There is no written agreement by which either CFN or the Department are named as parties. These are referred to in the evidence and in the record as “buckshee” arrangements. These arrangements have gone on for several decades.
[19] The CFN band council decided to utilize the Indian Act land management regime over the Original Reserve Lands by becoming involved in the Reserve Land Environmental Management Program [RLEMP], which is administered by the Department. RLEMP provides funding to First Nations to develop the capacity to manage and exercise increased responsibility over reserve lands pursuant to the Indian Act. For CFN, this required establishing a system of permitting reserve land in accordance with subsection 28(2) of the Indian Act and considering the issue of compensation for land occupants affected by this new land management regime. The band council did so by passing the BCR and then by passing the Motion. This inevitably involved addressing the long-standing and long unresolved issue of land tenure on CFN. The Applicants objected to this action and initiated these proceedings.
III. Evidence
[20] The following paragraphs summarize the parties’ evidence.
A. The Applicants
(1) Gary Pelletier
[21] Gary Pelletier [Mr. Pelletier], one of the Applicants, lays claim to four quarters of Original Reserve Lands that were initially “leased” by his father pursuant to a band council resolution in 1975. That band council resolution set out a 15-year term within nominal payments (which does not clarify to whom the payments are to be made). Mr. Pelletier describes the pattern of allocating reserve lands on CFN over the years. He states that his father farmed the land until 1985 after which the lands were put to grass for haying. He states that in 1992 he took over his father’s hay production. He also states that his father verbally bequeathed the lands to him prior to his death.
[22] Mr. Pelletier attached a November 18, 1992 letter from former Chief Terrance Lavallee (who also swore an affidavit in support of the Applicants) that purports to communicate a band council motion to the effect that:
all land [BCRs], whether they are expired or not, will retain their interests in the land noted on Individual BCRs, until such time as a Land Use Policy is in place…
7 in Favor, 1 Opposed, 3 Abstain, 1 Absent
[23] Mr. Pelletier provides another letter dated June 9, 1998, addressed to his father that provides: “Moved by Chester Agecoutay that Chief and Council agree to continue with the same practice and recognize the interests behind the letter from the Chief dated November 18, 1992”. The letter is from William Tanner, Chair of the Lands Committee (who provided an affidavit in support of the Applicants) and it is copied to the Chief and Council, the Lands Committee and Gordon D. Lerat (the other Applicant). Chester Agecoutay also provided an affidavit in support of the Applicants.
[24] Mr. Pelletier provides an October 2012 form letter from the former Chief Grady Lerat (who provided an affidavit in support of the Applicants) which states, in part:
Please accept this letter as confirmation that the Traditional Landholders on Cowessess First Nation have ability to engage in contracts to use the land for farming purposes. A precedence on land tenure has been set decades ago to enable the Traditional Landholders to use the land as a means of revenue for their benefit. Our First Nation is in the process of engaging the Traditional Landholders and until we come to an agreement on the land tenure for Cowessess First Nation, all agreements with outside agencies will be in full force and effect.
[25] Mr. Pelletier states that the January 20, 2017 letter from Chief Delorme, which contained an invitation to discuss the land issues on February 16, 2017, was sent to all land occupants. Though he did not attend the February 16, 2017 meeting, Mr. Pelletier was informed of the discussion by another CFN member. Mr. Pelletier did attend the March, 2017 meeting where the land issue was again discussed. Mr. Pelletier states that he heard nothing more until an October 10, 2017 letter from Chief Delorme was posted on a Facebook page. This letter gave notice of the BCR and the Motion and that the new land management regime would start January 1, 2018. Counsel’s submissions state that this letter did not state “anything specific about the surrender of traditionally held land holdings to the Band”. Mr. Pelletier also refers to the November 2017 meeting notice, which was posted on the same Facebook page as the previous notice. Again, this letter made reference to the BCR and the Motion. Mr. Pelletier was at the November 27, 2017 meeting and states that the Chief had difficulty getting through the meeting due to opposition from the floor. Mr. Pelletier also refers to a lands forum meeting notice posted in February 2018 relating to a meeting to be held on February 26, 2018 to review a land use plan and a zoning bylaw.
(2) Gordon D. Lerat
[26] The second Applicant, Gordon D. Lerat [Mr. Lerat], shares a similar story. Mr. Lerat states that he and his five siblings lay claim to approximately four quarters of the Original Reserve Lands. These same lands were previously assigned to his father by a 1973 band council resolution for a term expiring December 31, 1983 with a nominal rent provision. He states that his father started preparing the land for farming in 1959. Mr. Lerat provided a last will and testament of his father, approved by the Department, which provides, among other things, “To grant leases and surrenders of leases on Cowessess Indian Reserve lands which I possess with the rent to form part of the rest and residue of my estate and be dealt with accordingly. The terms of such leases are to be as my Trustee may see fit”. There is a handwritten codicil that provides “Land on Reserve to be shared equally by my children”.
[27] Mr. Lerat also provides records where his father “bought land and improvements” from other CFN members including a certificate of possession. He goes on to describe his own farming practice over the years that also resulted in Mr. Lerat obtaining certificates related to the agriculture industry. Prior to his father’s death in 2001, the lands were leased to non-CFN members. He indicates that he had a plan to farm in the future but then decided to pursue a trucking career in 2013.
[28] Mr. Lerat also sets out the same timeline of events as referenced by Mr. Pelletier. He also provided a supplementary affidavit to describe his application for a permit from CFN.
(3) Terrance Lavallee
[29] Terrence W. Lavallee [Mr. Lavallee] is not an Applicant but his affidavit was admitted by Prothonotary Aylen, as referenced above. Mr. Lavallee lays claim to sixteen quarters of Original Reserve Lands. Mr. Lavallee describes that his great-grandfather originally held the lands and that it is his understanding that his great-grandfather received a Ticket of Occupancy. These same lands were passed down through the generations all the way to Mr. Lavallee.
[30] Mr. Lavallee provides an identical letter referred to in Mr. Pelletier’s affidavit from then-Chief Grady Lerat. He states that he and his father farmed the land together, amassed farm equipment, and became the biggest farmers in the region. When his father died in 1986, he passed the land to his wife, Mr. Lavallee’s mother, and she in turn bequeathed the land to Mr. Lavallee and his three siblings.
[31] Mr. Lavallee also describes events in May 2018 where he discovered a non-CFN member seeding about 600 acres of his land without him being informed. He then describes a meeting that followed this discovery where Loretta Delorme, Christopher Lerat, two band council members, and another unidentified individual came to talk to him at his residence. He describes being intimidated by this encounter until his son arrived and joined it. He states that Ms. Delorme invited him to the band office to talk and he accepted the invitation. He states that Ms. Delorme told him about the permitting of lands to non-CFN farmers and he states that he never received any notice about what was going on.
[32] Mr. Lavallee states that Ms. Delorme provided him with papers including an application to lease, an October 10, 2017 letter from Chief Delorme, a report of a meeting and the plan developed by Chief Delorme and the band council. He states that all of his land has been leased out by CFN, which has resulted in him being deprived of a significant portion of his livelihood. He states he never received any notice that he was being removed from his land or that his land was going to be leased out.
(4) Grady Lerat
[33] Grady Lerat [Mr. G. Lerat], who is not an Applicant, lays claim to two quarters of the Original Reserve Lands. One quarter was assigned to his father by a band council resolution in 1946 as a returning war veteran. He does not possess any documents for the other quarter. Respecting the lands for his father’s military service, Mr. G. Lerat provides a 1969 letter from the Department which states, in part:
In spite of the fact that no title has been issued for the quarter section which you have farmed, you are considered to be in lawful occupation of the land. You may not be dispossessed from this land by the Band Council without compensation for the permanent improvements which have been made.
[34] Mr. G. Lerat also provides a last will and testament for his father, also approved by the Department, which states, in part:
TO GIVE, deliver and transfer to my son, GRADY LERAT, for his own use and benefit absolutely; subject to any approvals as may be required from the Council of the Cowessess First Nation, my homestead lands […] and veteran land entitlement land located adjacent to my homestead lands which I have occupied on the Cowessess Indian Reserve comprising the sum of 340 acres.
[35] Mr. G. Lerat began “leasing” the lands to a non-CFN member in 1997 for approximately $8000 per year for a 5-year term. He now has “leased” the lands by a verbal agreement since 2002 and continues to do so. Mr. G. Lerat was chief in 2012 when he issued the letter described by Mr. Pelletier.
[36] Mr. G. Lerat also sets out a timeline of events similar to the one described by the Applicants.
(5) Hugh Lerat
[37] Hugh Lerat [Mr. H. Lerat], who is not an applicant, lays claim to five quarters of Original Reserve Lands. These lands were originally allocated to his father in 1938 by way of a “location ticket”. Mr. H. Lerat did not have a copy of this location ticket. He provided a copy of a 1969 band council resolution granting the lands to his father for a 10-year term with no reference to any lease payments. He also provided a certificate of right of use and occupation for loan purposes which indicated that his father:
[…] has the right of use and occupation of the following land for a period of at least 11 years from the 1 day of January 1969 namely […] per BCR dated January 1969 and according to Lease dated June 16, 1969 as registered in the Indian Land Registry Cowessess Indian Reserve No.73
[38] Mr. H. Lerat claims that he possesses permits for the sale of grain from the land created by his father, as well as payments he made to the Department in 1997 for improvements to his deceased brother’s lands. These records were not included in his affidavit.
[39] Mr. H. Lerat also describes the permit application process.
(6) Chester Agecoutay
[40] Chester Agecoutay [Mr. Agecoutay] lays claim to one quarter of the Original Reserve Lands. These lands were purchased by his father from another CFN member in the 1950’s for $850. He states that his father indicated his intentions to have the lands stay within the family by bequeathing it to his spouse; but he did not provide a copy of the will. Mr. Agecoutay did however provide a copy of his mother’s will, the relevant portion of which provides:
I GIVE all my interests, right to use and possession to SW 4-19A-5 W2nd on Cowessess Indian Reserve #73 to my sons, CHESTER AGECOUTAY and CURTIS MARK AGECOUTAY, for their own use and benefit absolutely.
[41] Mr. Agecoutay states that his mother had a verbal “lease” agreement with a farmer for $20 per acre. He and his brother honoured the agreement, but they did not renew it in light of the CFN process.
[42] Mr. Agecoutay also describes the permit application process.
(7) Dodie Ferguson
[43] Dodie Ferguson [Ms. Ferguson] is a former member of the CFN lands committee [Lands Committee]. She is not a land occupant. Ms. Ferguson sets out the interactions between the Lands Committee and the CFN band council as well as the same timeline of events as the other affiants. She provided copies of the presentations of the band council and described the correspondence she had with members of the Lands Committee and the band council.
[44] Ms. Ferguson describes a July 2017 Lands Committee meeting where they discussed not being able to move forward with drafting a land transition plan (as they were requested to do by the band council) until their questions concerning the land occupants were answered by the band council. She also refers to the 2012 land designation process, which was not successful, and is of the view that the band council should have followed a similar process for developing the land management regime in 2017.
(8) William Tanner
[45] William Tanner [Mr. Tanner] is a former band councillor who has a certificate of possession on a quarter section of the Original Reserve Lands. He states that the Applicants’ legal counsel informed him in January 2019 that his parcel of land was permitted to a non-CFN member. He states that he was never informed that this parcel was going to be permitted to anyone.
B. The Respondents
(1) Cadmus Delorme
[46] Chief Cadmus Delorme [Chief Delorme] led the communication of the land administration initiative on behalf of the band council. He stated that his father was a land occupant and that the family decided not to claim any interest to their father’s claimed lands. He described the various methods of communicating with the large CFN membership such as by social media and by livestreaming meetings.
[47] Chief Delorme described the method of land management through subsection 28(2) Indian Act permits for TLE Reserve Lands. Chief Delorme also described the “informal” land occupation of Original Reserve Lands by CFN members through band council resolutions and the absence of allotments under s. 20 of the Indian Act. He states that any such previous band council resolutions did not create a right to occupy these lands permanently. He refers to the terms of Treaty 4, which confirmed the collective interest of reserve lands. Chief Delorme states that there are currently two CFN members who possess a certificate of possession and one of them is William Tanner. He confirms that the new land regime will not affect holders of certificates of possession. He also states that only two land occupants are presently farming the Original Reserve Lands but their respective portions of land are relatively small.
[48] Chief Delorme disagrees that any CFN members were bequeathed any lands on the Original Reserve Lands, since no individual can own reserve lands.
[49] He also describes the “leasing” out of Original Reserve Lands by various CFN members over the years once the original assignees of lands ceased farming. He states that CFN has not received rent from these arrangements. He describes that having all lands under a subsection 28(2) permit regime will bring revenue to CFN to assist with programs and services.
[50] Chief Delorme explains that the Applicants and the affiants have all served on the band council and are aware that land tenure has been an issue over the years. He provided excerpts of some minutes of band council and land committee meetings starting in 1992 to show that the lands issue has been outstanding for a long time and to show that the Applicants and the other affiants have been aware of the lands issues while they served as band council members or on the lands committee.
[51] Chief Delorme describes beginning the new land management regime process with discussions with the elders in 2016. He also explained the timeline of events in 2017 as set out by the Applicants. The dates are essentially the same but his version differs from the Applicants in terms of the content and scope of the discussions and he also describes a series of other meetings with the band council. Specifically, he refers to a March 21, 2017 band council meeting where they ultimately decided to postpone the rolling out of the land regime due to the approach of the April 2017 crop insurance deadline. He also explains that, in March 2017, the Lands Department notified the non-CFN members of the plan to implement the new land regime in 2018.
[52] A major part of Chief Delorme’s and others’ evidence involves the “Cowessess First Nation Original Land Empowerment and Transition Plan” [Draft Plan] that Chief Delorme prepared and presented to the band council on March 21, 2017. The band council decided not to adopt the Draft Plan. Instead, they passed a motion requiring that CFN’s Lands and Resources Committee [Land Committee] review and revise it within six months. The motion also states that the status quo is to remain in place for that year.
[53] The Draft Plan reads, “Individuals and families seeking to be entrepreneurs with their land base will be empowered to do so and individuals and families not seeking to be entrepreneurs will be provided a transition out”. It notes that, “Today, all land is farmed by non-band members”.
[54] It also says that the five non-member farmers currently farming CFN homeland will be subject to a permit regime. It goes to state that they have agreed to receive a three-year permit under subsection 28(2) of the Indian Act priced at $30/acre. Indeed, on March 1, 2017, Chief Delorme and Lands Department staff held a meeting with the non-CFN members.
[55] The Draft Plan explains that RLEMP, which already governs TLE land, will be applied to all reserve land.
[56] As for CFN’s 27 land occupants, the Draft Plan states that they may choose between four options. They will transition out: (1) with no payment, (2) with one year at $30/acre, (3) with two years at $20/acre, or (4) with three years at $15/acre. It states that, “If no option is chosen, Option Three will be implemented”. There is no indication of a deadline or a procedure for choosing one of these options.
[57] The Draft Plan refers to a Motion that will be presented at a Chief and Council meeting held March 21, 2017. According to the Draft Plan, the motion is said to read as follows:
1. That effective March 21st, 2017, all lands on the Cowessess First Nation which are being utilized for agricultural and ranching purposes will be required to be entered into directly with the First Nation’s lands department utilizing section 28(2) agricultural permits as entered into between Her Majesty the Queen in Right of Canada and the proposed permittee.
2. That the First Nation’s lands department and administration be directed to work with individual band members who have previously engaged in farming operations on the reserve to assist such individuals in developing business plans and opportunities for such individuals to move forward with the obtaining from the First Nation and Canada of their own section 28(2) agricultural permits or other leasing initiatives.
[58] The Draft Plan describes land occupant compensation as follows:
Subject to approval by Canada and the First Nation, arrangements will be made to have a set amount of the proceeds received from the agricultural permits which are paid into the First Nation’s Revenue Trust Account in Ottawa drawn down by the First Nation and directed towards paying the individuals out for any improvements they may have made to the lands which they can establish or, alternatively, establishing for example agricultural programs designed to assist band members in pursuing individual entrepreneurship operations.
[59] The Draft Plan was made public on or around March 21, 2017. It was posted on a bulletin board and on the CFN Facebook page called “Cowessess First Nation #73”. Copies were also produced upon request.
[60] Chief Delorme also states that the Lands Committee was given six months from March 16, 2017 to provide input into a draft plan that he had taken the initiative to develop. In July 2017, the Lands Committee asked for additional time to review it; but at a council meeting on July 13, 2017, the band council declined that request. It was on this date, due to the passage of time, that the band council passed the BCR and the Lands Department was tasked with working with the land occupants to develop agricultural plans if they wanted to start farming or ranching. On October 3, 2017, the band council then passed the Motion approving the payment of the final land improvement fee. On October 11, 2017, the band council notified the land occupiers that the new regime was rolling out in January 2018 and that administration of the lands would fall to the Lands Department though subsection 28(2) permits. A similar letter was also placed on the CFN website, bulletin boards, and a Facebook page.
[61] On November 27, 2017, there was another community meeting where it was again communicated that the new land regime was taking effect in 2018. It was reiterated that anyone wanting to use the Original Reserve Lands for farming purposes had to apply for a permit.
[62] In general, Chief Delorme states that there was community support for the land management transition and that there was no lack of clarity. He also described the permitting process and the interactions with the Lands Committee. In addition, he provided copies of his presentations to the CFN membership. Chief Delorme also confirms that letters and cheques for the final land improvement fee were received by all land occupants in June 2018.
(2) Loretta Delorme
[63] Loretta Delorme [Ms. Delorme] is the lands and resources manager for CFN. She oversees and manages the lands department including the administration of subsection 28(2) permits. She describes that the Applicants and others came into possession of the Original Reserve Lands through various informal means, “none of which conferred any legal interest or ownership rights”. Ms. Delorme states that the original assignees did farm the lands, but, once they retired, their families ceased farming and “leased” out the subject lands to non-CFN members.
[64] Ms. Delorme describes the band council process to address the land tenure issues as well as the permitting process.
[65] Ms. Delorme also responded to Mr. Tanner’s affidavit by providing a supplemental affidavit where she clarified that the information from the Department contained an error. Ms. Delorme contacted the Department officials and they confirmed the error in the land description. The error has since been rectified and Ms. Delorme confirmed that no permits have been issued respecting the lands identified by Mr. Tanner.
(3) Christopher Lerat
[66] Christopher Lerat [Mr. C. Lerat] works with Ms. Delorme in the lands department as a leasing officer. He sets out the permitting process for Mr. Lerat and others. He also addressed the allegations made by Mr. Lavallee. He also describes that the land tenure issue has been challenging, including some overlapping claims of CFN members against one another.
(4) Harold Lerat
[67] Herald Lloyd Lerat [Mr. H.L. Lerat] describes receiving a subsection 28(2) permit which enabled him to farm for the first time. His father was also a land occupant but he was not able to receive the lands to farm. He served on the band council with the Applicants and the other affiants. He states that the land tenure was always an issue when he served on the band council and efforts to do something about it were “tabled” due to the fact that the other members on council, as land occupants, did not wish to change the system.
[68] Mr. H.L. Lerat outlines his attendance at the meetings and states that the band council advised that the buckshee leasing system (the customary landholding system) on the Original Reserve Lands was going to end and that the money was now going to go to CFN. He also states that there was no disagreement that everyone should benefit from the Original Reserve Lands. He also states that it was made clear that CFN members would be charged a lower permit fee to encourage entrepreneurship within the community. At this meeting, the land occupants indicated they wanted to be compensated for any improvements they made to the lands.
(5) Dennis Delorme
[69] Dennis Delorme [Mr. Delorme] is one of the oldest living members of CFN. After living sporadically in CFN in his early years, he moved to CFN on a permanent basis in the early 1980s. Mr. Delorme states that the lands issue has been the subject of debate for many years. He describes that few of the CFN members have claimed exclusive possession over the Original Reserve Lands and have been making money without paying anything to CFN. He states that no occupancy was never meant to be permanent and it did not give anyone rights to ownership. He states that no one can claim ownership to the Original Reserve Lands as they are held in trust by Canada for the benefit of CFN.
[70] Mr. Delorme states that the descendants of the original CFN farmers have not continued farming but have rented the lands out and have kept the fees for themselves. His view is that these fees should be going to the First Nation for programs and services.
[71] Mr. Delorme has served on the band council and he describes that the land occupants were such a problem that it limited where CFN could build homes since the land occupants occupied much of the land. Mr. Delorme confirms that the elders of CFN support addressing the land issue. He states that he and other elders indicated that the buckshee renting arrangements needed to end and that they did not want this land issue to be passed on to the next generation of CFN members. He states that successive band councils kept putting off any work in addressing this land issue because of its difficulty.
C. Overview
[72] The January 20, 2017 and the October 11, 2017 letters are appended to this decision.
[73] The evidence in this case indicates that CFN did not have a clearly articulated process for land allotments over the years. The evidence also indicates that the ancestors of the Applicants farmed the lands and had received band council resolutions (that have since expired) or in the odd case, a certificate of possession or a veteran land allotment. The evidence also indicates that the Applicants themselves have not been issued any band council resolutions. The evidence shows that there was no precise characterization of the specific type of interest that these original grantees obtained. The evidence indicates that the ancestors of these grantees have issued letters or band council motions, while they were band council members, which attempted to continue with the informal process that had developed over the years.
[74] What this disagreement boils down to is: whether the ad-hoc, informal process that has developed over the years has created legal rights in favour of the two Applicants; and, if so, whether they prevent the CFN band council from administering the Original Reserve Lands and collecting revenue from the farming occurring on those lands.
IV. Issues
[75] In their memorandum of argument, the Applicants submit that the following questions are at issue:
A. Did the Respondents formally enact a land management system for the Cowessess Home Reserve Lands?
B. Did the Respondents discharge their duty of procedural fairness and fiduciary obligation to the Applicants?
[76] The Respondents submit that the issues should be defined as follows:
Are the Decisions reviewable?
Is the application out of time? If so, should the Court exercise its discretion to extend time for review?
Do the Respondents have jurisdiction to make the Decisions currently under review?
Are the Applicants entitled to raise new arguments that were not before the Respondents at the time the Decisions under review were made?
If so, were the Decisions under review made in a manner consistent with the requirements of procedural fairness?
[77] Based on my review of the submissions and the Notice of Application, I characterize the issues as follows:
A. Is the application time barred?
B. Do the Respondents have jurisdiction to make the Decisions?
C. Were the Applicants’ rights to procedural fairness breached?
D. Were the Decisions Reasonable?
V. Standard of Review
[78] The parties did not make written submissions on this issue. At the hearing, the Applicants submitted that the standard of review for the Decisions of the Chief and Council was reasonableness.
[79] A standard of review analysis does not need to be conducted in every instance (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]). If the standard of review has been settled by previous jurisprudence, the Court may adopt that standard.
[80] Questions of whether a band council has acted without jurisdiction or beyond its jurisdiction or whether the band council had a reasonable apprehension of bias are reviewed on the correctness standard (Hill v Oneida Nation, 2014 FC 796 at para 45 [Hill]; Prince v Sucker Creek First Nation No 150A, 2008 FC 1268 at para 21 [Prince]).
[81] In Hill, at paragraphs 42 and 43, Justice Strickland also reviewed previous cases considering the standard of review of band council decisions and found the following at para 46:
…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 para 58-59; Parker, above at para 38-40; Dunsmuir, above).
[82] I agree. The Decisions will be reviewed on the reasonableness standard.
[83] The exercise of reviewing a decision for procedural fairness issues is best reflected in the correctness standard (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Prince at 23; Parker v Okanagan Indian Band Council, 2010 FC 1218 at para 4 [Parker]). In reviewing on this standard the Court should not ask, “whether the decision was ‘correct’, but rather whether, taking into account the particular context and circumstances at issue, the process followed by the decision-maker was fair and offered to the affected parties a right to be heard and the opportunity to know and respond to the case against them” (Lv v Canada (Citizenship and Immigration), 2018 FC 935 at para 17).
VI. Legislation
[84] The following provisions of the Indian Act are relevant in this proceeding:
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.
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.
23 An Indian who is lawfully removed from lands in a reserve on which he has made permanent improvements may, if the Minister so directs, be paid compensation in respect thereof in an amount to be determined by the Minister, either from the person who goes into possession or from the funds of the band, at the discretion of the Minister.
23 Un Indien qui est légalement retiré de terres situées dans une réserve et sur lesquelles il a fait des améliorations permanentes peut, si le ministre l’ordonne, recevoir à cet égard une indemnité d’un montant que le ministre détermine, soit de la personne qui entre en possession, soit sur les fonds de la bande, à la discrétion du ministre.
28 (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
28 (1) Sous réserve du paragraphe (2), est nul un acte, bail, contrat, instrument, document ou accord de toute nature, écrit ou oral, par lequel une bande ou