Cameron v. Canada (Indian Affairs and Northern Development)

Cameron v. Canada (Indian Affairs and Northern Development)
Court (s) Database
Federal Court Decisions
Date
2012-05-16
Neutral citation
2012 FC 579
File numbers
T-435-11
Decision Content
Federal Court
Cour fédérale
Date: 20120516
Citation: 2012 FC 579
Ottawa, Ontario, May 16, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
Docket: T-435-11
RAYMOND CAMERON
Applicant
and
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, GREG BLAIN, EARL BLAIN, AND ANGELINE THORNE
Respondents
AND BETWEEN:
Docket: T-1401-11
RAYMOND CAMERON
Applicant
and
Ashcroft Indian Band Council,
Greg Blain in his capacity as Chief of Ashcroft Indian Band, Earl Blain in his capacity as COUNCILLOR of Ashcroft Indian Band, and
Angeline Thorne in her capacity
as COUNCILLOR of Ashcroft Indian Band
Respondents
REASONS FOR JUDGMENT
INTRODUCTION:
[1] These Reasons for Judgment address two applications for judicial review that were joined and heard together at Vancouver on January 24, 2012. While the parties are not identical, the facts, pleadings and submissions are intertwined. Accordingly, the two applications are dealt with in these reasons. Both are brought under s.18.1 of the Federal Courts Act, RSC, 1985, c F-7.
[2] The application in Court docket T- 435-11 concerns a decision of the Minister of Indian Affairs and Northern Development (hereafter the Minister) to dismiss an appeal under s.12 of the Indian Band Election Regulations, CRC, c 952 (hereafter “the Regulations”) regarding the election of the Ashcroft Band council in June 2010.
[3] In May, 2011, the Government of Canada adopted what is described as a new “applied title” for the name of the respondent Minister’s position: “Minister of Aboriginal Affairs and Northern Development Canada”. However, the name of the Department and Minister remains unchanged in the statutes and that version will be used in these reasons.
[4] The second application, in Court docket T-1401-11, concerns the failure of the Ashcroft Band Council to apply the Ashcroft Band Membership Rules (hereafter “the Membership Rules”) to the Ashcroft Band’s membership list contrary to s.10 of the Indian Act, RSC, 1985, c I-5 and to the Membership Rules.
BACKGROUND:
[5] The Ashcroft First Nation occupies lands in the interior of British Columbia near the villages of Ashcroft and Cache Creek.
[6] In 1987, the First Nation assumed control of its membership under s.10(1) of the Indian Act by establishing written rules.
[7] Under the Band’s Membership Rules, certain individuals are entitled to “automatic” membership based on prescribed criteria (Part II of the Membership Rules) related to parentage. The applicant Raymond Cameron falls within that category. Others who may be entitled to membership need to apply and be accepted by a majority of the Band electors during a membership meeting (Parts III and IV of the Membership Rules). The respondent Greg Blain is within the second group.
[8] In accordance with the Membership Rules, membership meetings were held regularly for some years. In 2005, the Band Council stopped holding the meetings. It appears from the evidence that Mr. Greg Blain was never formally recognized as a member by a membership meeting under the Membership Rules, despite his family ties to Band members. Nonetheless, his name was added to the membership list and to the list of those eligible to vote and stand for election. Greg Blain now holds the position of Chief. He was elected to that office in 2004 and has been subsequently reelected every two years.
[9] In 2009, some members of the Band, including the applicant, Mr. Cameron, raised concerns with Indian Affairs and Northern Development Canada (hereafter “INAC”) that the Band’s membership did not accord with the Membership Rules.
[10] In 2009, INAC and the Band Council set up a committee to review the membership of the Band. The committee was comprised of Ms. Starr, an Aboriginal lawyer and elder from Kitimat, British Columbia, Ms. Kirkpatrick a historian and elder of the Band, and the membership clerk of the time. The contract of Ms. Starr was terminated by the Band Council in September 2009 before she could present her findings to the Band. She and Ms. Kirkpatrick nevertheless produced reports.
[11] The Starr and the Kirkpatrick reports say that 76 individuals on the membership list were not entitled to Band membership (including the respondents Greg Blain and Earl Blain): 69 individuals did not apply for membership under the Membership Rules and 7 individuals were deceased or had voluntarily enfranchised. The reports also found that some individuals were not included on the list despite their eligibility as members under the Membership Rules, that regular membership meetings were not being held as required by the Membership Rules, and that deceased members were not consistently removed from the list.
[12] In June 2010, Mr. Cameron began an action in the British Columbia Supreme Court (hereafter “the BCSC”) seeking a declaration and order that some members be struck from the Band’s membership list. The action was dismissed on the ground that the Federal Court had exclusive jurisdiction over the matter (see Cameron v Albrich, 2011 BCSC 549).
[13] Mr. Cameron provided evidence to the Band Council and asked that it review the membership list on three occasions: 6 May 2010, 5 August 2011 and 24 August 2011. The respondent Chief and Councillors did not reply to the applicant’s requests.
[14] On 8 June 2010, the Band held an election. The Band appointed an electoral officer with the approval of the Minister. The electoral officer, using the membership list provided by the membership clerk, prepared a voters’ list. Those lists contained the names of individuals that Mr. Cameron alleges are not members of the Band. Mr. Cameron and Mr. Greg Blain, one of the respondents, were both candidates for the position of chief. The vote for chief was a tie and the electoral officer proceeded to a draw to determine the winner. Mr. Greg Blain was declared chief.
[15] Mr. Cameron appealed the election to the Minister. His appeal was based on the fact that the electoral officer allegedly refused to allow examination of the ballots cast during the election and refused examination of the two ballots used for the draw, including the wining ballot; that the electoral officer refused to correct the voters list; that an incorrect voters list was used for the election; that some candidates were not members of the Band; and that some candidates were nominated by individuals who were not members of the Band.
[16] The appeal was considered by a Minister’s Delegate. The Delegate sent the materials submitted to the electoral officer and the other candidates for comments. Mr. Greg Blain was the only party to respond. His response was not disclosed to any other concerned party by the Delegate. The Delegate found the information received to be sufficient. Her decision was communicated to the applicant by letter in February 2011. The letter states that the appeal was dismissed after consideration of the material sent by him and the respondent.
[17] In her letter, the Delegate notes that the Band assumed controlled of its membership pursuant to s.10 of the Indian Act and states that INAC could not, therefore, interfere in the Band’s membership issue. It was noted that the membership issue was, at that time, before the BCSC. INAC thus had no choice, in the Delegate’s view, but to assume that the membership list and the voters list were valid until the Band or a Court changed the lists. The Delegate indicated that the electoral officer was also bound by the membership list and did not have the authority to challenge it. Finally the Delegate concluded that no corrupt practice occurred during the election and that the electoral officer carefully carried out his obligations.
[18] There is no evidence in the record of formal decisions by the Chief and Council not to hold membership meetings or to add persons to the membership list and voters list without conforming to the Membership Rules. The absence of such evidence is not an answer to this application: Okemow-Clark v Lucky Man Cree Nation, 2008 FC 888, upheld by 2010 FCA 48, at para 30. In Okemow-Clark, Justice de Montigny dismissed an argument that the application was premature because there was no evidence of a formal decision to remove the applicants from the Band List. He found that a decision had been made and that the Band Council had acted upon it.
[19] In Cameron v Aldrich, above, Mr. Justice Punnett noted the reasoning in Okemow-Clark and stated the following in relation to the facts in dispute on this application, at paragraph 23:
I find that the fact that the Band Council or Membership Clerk failed to comply with the Membership Rules does not mean there was no decision. The Band delegated certain functions to the Band Council, the Membership Committee and the Membership Clerk. It is their alleged failure to comply with the Membership Rules that is at the root of the dispute. The Band Council decided to place individuals on the Band List without following the Membership Rules. This may be a decision that is subject to judicial review in the appropriate court and between the appropriate parties.
[20] I agree with the findings and reasoning in Okemow-Clark and Cameron v Aldrich. From the evidence, I draw inferences of fact that the Band Council deliberately failed to convene membership meetings and placed individuals on the Band membership list who had not been approved for membership in accordance with the Membership Rules. These decisions and actions are reviewable in this Court on this application.
ISSUES:
[21] The facts underlining the issues in T-1401-11 (failure to enforce the Membership Rules) are at the basis of the election appeal under review in T-435-11.
[22] The issues in T-1401-11 are:
a. Did the Ashcroft Band Council exceed its jurisdiction by refusing to apply the Membership Rules and review the Band list?
b. Did the Ashcroft Band Council breach procedural fairness in failing to respond to the applicant’s requests for a membership review?
c. Does the applicant have standing to challenge the Band’s failure to act?
d. If the application succeeds, what is the appropriate remedy?
[23] The issues in T-435-11 are:
5. Did the Minister err in interpreting the Indian Act and the Regulations?
6. Was the decision of the Minister reasonable?
7. Did the Minister commit a breach of procedural fairness?
Relevant Legislation:
[24] Sections 2, 8, 10 (1) (8) (9) & (10), 14.2(1) & (2), 77, and 79 of the Indian Act, RSC, 1985, c I-5 read as follow:
2. (1) In this Act,
“Band List” means a list of persons that is maintained under section 8 by a Band or in the Department;
“member of a Band” means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List;
8. There shall be maintained in accordance with this Act for each Band a Band List in which shall be entered the name of every person who is a member of that Band.
10. (1) A Band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the Band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the Band gives its consent to the Band’s control of its own membership.
[…]
(8) Where a Band assumes control of its membership under this section, the membership rules established by the Band shall have effect from the day on which notice is given to the Minister under subsection (6), and any additions to or deletions from the Band List of the Band by the Registrar on or after that day are of no effect unless they are in accordance with the membership rules established by the Band.
(9) A Band shall maintain its own Band List from the date on which a copy of the Band List is received by the Band under paragraph (7)(b), and, subject to section 13.2, the Department shall have no further responsibility with respect to that Band List from that date.
(10) A Band may at any time add to or delete from a Band List maintained by it the name of any person who, in accordance with the membership rules of the Band, is entitled or not entitled, as the case may be, to have his name included in that list.
14.2 (1) A protest may be made in respect of the inclusion or addition of the name of a person in, or the omission or deletion of the name of a person from, the Indian Register, or a Band List maintained in the Department, within three years after the inclusion or addition, or omission or deletion, as the case may be, by notice in writing to the Registrar, containing a brief statement of the grounds therefor.
(2) A protest may be made under this section in respect of the Band List of a Band by the council of the Band, any member of the Band or the person in respect of whose name the protest is made or that person’s representative.
[…]
75. (1) No person other than an elector who resides in an electoral section may be nominated for the office of councillor to represent that section on the council of the Band.
(2) No person may be a candidate for election as chief or councillor of a Band unless his nomination is moved and seconded by persons who are themselves eligible to be nominated.
77. (1) A member of a Band who has attained the age of eighteen years and is ordinarily resident on the reserve is qualified to vote for a person nominated to be chief of the Band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors.
(2) A member of a Band who is of the full age of eighteen years and is ordinarily resident in a section that has been established for voting purposes is qualified to vote for a person nominated to be councillor to represent that section
79. The Governor in Council may set aside the election of a chief or councillor of a Band on the report of the Minister that he is satisfied that
(a) there was corrupt practice in connection with the election;
(b) there was a contravention of this Act that might have affected the result of the election; or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate.
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
« liste de Bande » Liste de personnes tenue en
vertu de l’article 8 par une Bande ou au ministère.
« membre d’une Bande » Personne dont le nom apparaît sur une liste de Bande ou qui a droit à ce que son nom y figure.
8. Est tenue conformément à la présente loi la liste de chaque Bande où est consigné le nom de chaque personne qui en est membre.
10. (1) La Bande peut décider de l’appartenance à ses effectifs si elle en fixe les règles par écrit conformément au présent article et si, après qu’elle a donné un avis convenable de son intention de décider de cette appartenance, elle y est autorisée par la majorité de ses électeurs.
[…]
(8) Lorsque la Bande décide de l’appartenance à ses effectifs en vertu du présent article, les règles d’appartenance fixées par celle-ci entrent en vigueur à compter de la date où l’avis au ministre a été donné en vertu du paragraphe (6); les additions ou retranchements effectués par le registraire à l’égard de la liste de la Bande après cette date ne sont valides que s’ils sont effectués conformément à ces règles.
(9) À compter de la réception de l’avis prévu à l’alinéa (7)b), la Bande est responsable de la tenue de sa liste. Sous réserve de l’article 13.2, le ministère, à compter de cette date, est dégagé de toute responsabilité à l’égard de cette liste.
(10) La Bande peut ajouter à la liste de Bande tenue par elle, ou en retrancher, le nom de la personne qui, aux termes des règles d’appartenance de la Bande, a ou n’a pas droit, selon le cas, à l’inclusion de son nom dans la liste.
14.2 (1) Une protestation peut être formulée, par avis écrit au registraire renfermant un bref exposé des motifs invoqués, contre l’inclusion ou l’addition du nom d’une personne dans le registre des Indiens ou une liste de Bande tenue au ministère ou contre l’omission ou le retranchement de son nom de ce registre ou d’une telle liste dans les trois ans suivant soit l’inclusion ou l’addition, soit l’omission ou le retranchement.
(2) Une protestation peut être formulée en vertu du présent article à l’égard d’une liste de Bande par le conseil de cette Bande, un membre de celle-ci ou la personne dont le nom fait l’objet de la protestation ou son représentant.
[…]
75. (1) Seul un électeur résidant dans une section électorale peut être présenté au poste de conseiller pour représenter cette section au conseil de la Bande.
(2) Nul ne peut être candidat à une élection au poste de chef ou de conseiller d’une Bande, à moins que sa candidature ne soit proposée et appuyée par des personnes habiles elles-mêmes à être présentées.
77. (1) Un membre d’une Bande, qui a au moins dix-huit ans et réside ordinairement sur la réserve, a qualité pour voter en faveur d’une personne présentée comme candidat au poste de chef de la Bande et, lorsque la réserve, aux fins d’élection, ne comprend qu’une section électorale, pour voter en faveur de personnes présentées aux postes de conseillers.
(2) Un membre d’une Bande, qui a dix-huit ans et réside ordinairement dans une section
électorale établie aux fins d’élection, a qualité pour voter en faveur d’une personne présentée au poste de conseiller pour représenter cette section.
79. Le gouverneur en conseil peut rejeter l’élection du chef ou d’un des conseillers d’une
Bande sur le rapport du ministre où ce dernier se dit convaincu, selon le cas :
a) qu’il y a eu des manoeuvres frauduleuses à l’égard de cette élection;
b) qu’il s’est produit une infraction à la présente loi pouvant influer sur le résultat de l’élection;
c) qu’une personne présentée comme candidat à l’élection ne possédait pas les qualités requises.
[25] Sections 2, 4 (1) (a), 7, 9 and 12 to 14 of the Indian Band Election Regulations, CRC, c 952 state:
2. In these Regulations,
“elector”, in respect of an election of the chief or councilors of a Band, means a person who is qualified under section 77 of the Act to vote in that election; (électeur)
“electoral officer” means the superintendent or the person appointed by the council of the Band with the approval of the Minister; (président d’élection)
4. (1) At least 79 days before the day on which an election is to be held
(a) where the Band holding the election has assumed control of its own membership under section 10 of the Act, the Band shall provide the electoral officer with a list of the names of all electors;
9. Where it appears that two or more candidates have an equal number of votes, the electoral officer shall give a casting vote for one or more of such candidates, but the electoral officer shall not otherwise be entitled to vote.
12. (1) Within 45 days after an election, a candidate or elector who believes that
(a) there was corrupt practice in connection with the election,
(b) there was a violation of the Act or these Regulations that might have affected the result of the election, or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate, may lodge an appeal by forwarding by registered mail to the Assistant Deputy Minister particulars thereof duly verified by affidavit.
(2) Where an appeal is lodged under subsection (1), the Assistant Deputy Minister shall forward, by registered mail, a copy of the appeal and all supporting documents to the electoral officer and to each candidate in the electoral section in respect of which the appeal was lodged.
(3) Any candidate may, within 14 days of the receipt of the copy of the appeal, forward to the Assistant Deputy Minister by registered mail a written answer to the particulars set out in the appeal together with any supporting documents relating thereto duly verified by affidavit.
(4) All particulars and documents filed in accordance with the provisions of this section shall constitute and form the record.
13. (1) The Minister may, if the material that has been filed is not adequate for deciding the validity of the election complained of, conduct such further investigation into the matter as he deems necessary, in such manner as he deems expedient.
14. Where it appears that
(a) there was corrupt practice in connection with an election,
(b) there was a violation of the Act or these Regulations that might have affected the result of an election, or
(c) a person nominated to be a candidate in an election was ineligible to be a candidate, the Minister shall report to the Governor in Council accordingly.
2. Dans le présent règlement,
« électeur » S’entend, à l’égard de l’élection du chef ou des conseillers d’une Bande, d’une personne ayant les qualités requises pour voter à cette élection en vertu de l’article 77 de la Loi. (elector)
« président d’élection » signifie le surintendant ou la personne désignée par le conseil de la Bande avec l’assentiment du ministre; (electoral officer)
4. (1) Au moins soixante-dix-neuf jours avant l’élection :
a) lorsque la Bande qui tient l’élection a choisi de décider de l’appartenance à ses effectifs selon l’article 10 de la Loi, la Bande fournit au président d’élection le nom des électeurs;
9. Lorsqu’il arrive que deux candidats ou plus ont obtenu un nombre égal de votes, le président d’élection doit déposer un vote prépondérant en faveur de l’un ou de plusieurs de ces candidats, mais le président d’élection n’a pas
12. (1) Si, dans les quarante-cinq jours suivant une élection, un candidat ou un électeur a des motifs raisonnables de croire :
a) qu’il y a eu manoeuvre corruptrice en rapport avec une élection,
b) qu’il y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte au résultat d’une élection, ou
c) qu’une personne présentée comme candidat à une élection était inéligible, il peut interjeter appel en faisant parvenir au sous-ministre adjoint, par courrier recommandé, les détails de ces motifs au moyen d’un affidavit en bonne et due forme.
(2) Lorsqu’un appel est interjeté au titre du paragraphe (1), le sous-ministre adjoint fait parvenir, par courrier recommandé, une copie du document introductif d’appel et des pièces à l’appui au président d’élection et à chacun des candidats de la section électorale visée par l’appel.
(3) Tout candidat peut, dans un délai de 14 jours après réception de la copie de l’appel, envoyer au sous-ministre adjoint, par courrier recommandé, une réponse par écrit aux détails spécifiés dans l’appel, et toutes les pièces s’y rapportant dûment certifiées sous serment.
(4) Tous les détails et toutes les pièces déposés conformément au présent article constitueront et formeront le dossier.
13. (1) Le Ministre peut, si les faits allégués ne lui paraissent pas suffisants pour décider de la validité de l’élection faisant l’objet de la plainte, conduire une enquête aussi approfondie qu’il le juge nécessaire et de la manière qu’il juge convenable.
14. Lorsqu’il y a lieu de croire
a) qu’il y a eu manoeuvre corruptrice à l’égard d’une élection,
b) qu’il y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte au résultat d’une élection, ou
c) qu’une personne présentée comme candidat à une élection était inadmissible à la candidature, le Ministre doit alors faire rapport au gouverneur en conseil.
[26] Sections 1, 2, 13, 15 to 19, 21, 22, 24, 25, and 31 of the Ashcroft Indian Band Membership Rules (Applicant’s Record, at pp.27 to 39) state:
Part I
1. The Objective of the Ashcroft Indian Band in approving the establishment of these Rules is to protect the cultural and social identity of the Band, to maintain and strengthen the existing sense of community and to ensure continued peace and good order among the members of the Band.
2. In these Rules:
(3) “Band List” means a list of persons that is maintained under section 8 of the Indian Act, 1985, by the Band or the Department of Indian Affairs and Northern Development;
(14) “Membership Clerk” (the “Clerk”) means a person appointed by the Council to perform the duties of registrar of Band Membership;
(15) “Membership Committee” (the “Committee”) means a committee appointed by Council consisting of four (4) Band members, at least 18 years of age, each of whom represents one of the four (4) major families of the Band, plus one impartial non-Band member who enjoys the confidence of the Band;
(16) “Member of the Band” means a person whose name appears on the Band List or is entitled to have his name appear on the Band List;
[Part II deals with original membership, Part III and IV deals with discretionary membership and Part V deals with loss of membership.]
Part VI Application Procedure
13. All applications for Band membership shall be submitted to the Clerk on a form to be prescribed.
15. The Clerk shall assess the validity of the supporting documents for compliance with the eligibility criteria set out in Part IV of these Rules.
16. The Clerk shall forward the application with supporting documents and a brief report on their conformity with the rules to the committee.
17. The Committee shall recommend the acceptance or rejection of any application for Band membership to the Council.
18. The Council shall, upon receipt of the recommendation of the Committee, hold a referendum of Band members called for that purpose.
19. Referendum on Band membership shall be called by Council four (4) times each year in August, November, February and May, unless no application are received during any three (3) months period in any year.
21. Upon a vote in favor of a majority of those electors voting, the applicant shall be admitted as a member of the Band effective on the date of the referendum.
Part VII Appeal Procedure
22. A person whose application is rejected by the members of the Band may, after three months from the date of the rejection, re-apply for Band membership according to Part VI of these Rules.
24. A person may re-apply for membership only one time after being rejected by the Band members and the second referendum on any re-application for membership shall be considered final.
25. No claim shall lie against the Band, the Council, a Band member, nor any of their agents for denial of membership according to these Rules.
[Part VIII deals with the amendment procedure of the Membership Rules and Part IX deals with the coming into force.]
Part X Delegation of Power
31. The Band hereby delegates to the Council the authority to enact regulations to administer theses Rules in a fair, impartial manner without discriminating on the basis of sex, religion, age or family and in accordance with the best interests of the Band.
STANDARD OF REVIEW:
[27] In application T-1401-11, the Court is asked to order the Band Council to review the membership list as the applicant alleges that the Council has overstepped its jurisdiction in failing to apply the Membership Rules. The application for judicial review relates to the inaction or refusal to act of the Council. Therefore, this Court must determine if the Band Council has jurisdiction over the Band’s membership and if the law creates positive obligations upon the Council with regards to membership. These are questions of law and jurisdiction which are normally reviewable upon a standard of correctness: Dunsmuir v New Brunswick, 2008 SCC 9 at para 50.
[28] As indicated by the Court of Appeal in Martselos v Salt River Nation #195, 2008 FCA 221 at paragraph 32: “the main issues require a proper interpretation of the code in order for the Council to act within its jurisdiction. This interpretation must be correct in law and no deference is warranted” (see also Angus v Chipewyan Prairie First Nation Tribal Council, 2008 FC 932 at paras 31 to 33; Felix v Sturgeon Lake First Nation, 2011 FC 1139 at para 22; and Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 53).
[29] Justice Beaudry described the standard in Bacon v Appeal Board of the Betsiamites Band Council, 2009 FC 1060 at paragraph 20:
[20] The Court agrees with the parties on this point. According to paragraphs 59-61 of Dunsmuir, where a decision maker does not have particular expertise in interpreting its enabling legislation or related legislation, the elements of the correctness standard must be applied when an interpretation issue arises. In the instant case, the Appeal Board does not have such particular expertise.
In this case the Band Council, as an elected body, has no particular expertise in interpreting the Indian Act and the Membership Rules. The appropriate standard of review for the T‑1401-11 application is correctness.
[30] With regards to the election appeal, the applicant submits that the standard of review for the issue of the interpretation of the Indian Act and the Regulations is correctness as it is a question of law (Esquega v Canada (Attorney General), 2007 FC 878, reversed on other grounds by 2008 FCA 182, at para 65; Dumais v Fort McMurray No 468 First Nation, 2010 FC 342 at para 4; Martselos v Salt River Nation #195, above, at para 28; and Giroux v Swan River First Nation, 2006 FC 285, varied on other grounds by 2007 FCA 108, at paras 54-55). The applicant argues that the standard determined in Esquega, above, at paragraph 65, for decisions of the Governor in Council in election appeals should be used for decisions of the Minister in election appeals.
[31] The respondent Minister submits that since Dunsmuir, questions of law will not necessarily attract a standard of correctness as the Court owes deference to a tribunal when it interprets “its own statute or statutes closely connected to its function” (Dunsmuir, above, at paras 51 and 54). Furthermore, the respondent Minister notes that the jurisprudence cited by the applicant does not concern decisions of the Minister but decisions of the Governor in Council, decisions of appeal committees and decisions of Band councils.
[32] Dunsmuir sets out a two step test to determine the standard of review: (1) verify if the standard was satisfactorily determined by the previous jurisprudence; and if not (2) proceed to an analysis of the factors making it possible to identify the proper standard. Considering the arguments in the previous paragraphs, I think it is appropriate to complete a standard of review analysis as set out in Dunsmuir, above, at paragraph 64:
[64] The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
See also Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 16.
[33] Firstly, there is no privative clause in the Indian Act or in the Regulations. Secondly, the Minister’s review of election appeals requires consideration of multiple interests and the balancing of costs and benefits between parties. The appeal process, as shown by the evidence and upon reading the Indian Act and the Regulations, is intended to be a time and cost-effective method of resolving disputes and thus should be treated with deference (Dunsmuir, above, at para 69; and Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at para 36). Thirdly, the question at issue is the interpretation of the Indian Act and the Regulations in the context of an election appeal. With regards to questions of law, the Supreme Court has noted the following at paragraph 55 of Dunsmuir:
[…] A question of law that is of “central importance to the legal system . . . and outside the…specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.
[34] In this case, the law, the election provisions of the Indian Act and the Regulations, lies inside the specialized area of expertise of the decision-maker (Esquega, above, at para 62). The question of law is not central to the legal system. Finally, it is fair to assume that the Delegate has expertise in interpreting the electoral laws and in applying them in accordance with INAC policies (see Dunsmuir, above, at paras 54 and 68). All these factors point towards a high degree of deference. I therefore conclude that the appropriate standard of review of the Delegate’s decision is reasonableness.
[35] When courts review a decision on the reasonableness standard they must look at the existence of justification, transparency and intelligibility within the decision-making process and see if the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir, above, at para 47.
[36] These applications also raise questions of procedural fairness. The Court must determine whether, in all of the circumstances of the decision, fairness was accorded the applicant: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Felix v Sturgeon Lake First Nation, above, at para 23; Bacon v Appeal Board of the Betsiamites Band Council, above, at para 21; and Esquega, above, at para 65.
Analysis:
T-1401-11
[37] This application invokes a concept at the very heart of our system of governance: the rule of law. It is well settled that Band councils must also respect this principle: Laboucan v Little Red River Cree Nation No 447, 2010 FC 722 at para 36; and Long Lake Cree Nation v Canada (Minister of Indian and Northern Affairs), [1995] FCJ No 1020 at para 31.
[38] The importance of the rule of law was recently highlighted by Justice Douglas Campbell in Friends of the Canadian Wheat Board v Canada (Attorney General), 2011 FC 1432 at paragraph 3:
[3] A most recent reminder of the rule of law as a fundamental constitutional imperative is expressed by Chief Justice Fraser in Reece v Edmonton (City), 2011 ABCA 238 at paragraphs 159 and 160:
The starting point is this. The greatest achievement through the centuries in the evolution of democratic governance has been constitutionalism and the rule of law. The rule of law is not the rule by laws where citizens are bound to comply with the laws but government is not. Or where one level of government chooses not to enforce laws binding another. Under the rule of law, citizens have the right to come to the courts to enforce the law as against the executive branch. And courts have the right to review actions by the executive branch to determine whether they are in compliance with the law and, where warranted, to declare government action unlawful. This right in the hands of the people is not a threat to democratic governance but its very assertion. Accordingly, the executive branch of government is not its own exclusive arbiter on whether it or its delegatee is acting within the limits of the law. The detrimental consequences of the executive branch of government defining for itself - and by itself - the scope of its lawful power have been revealed, often bloodily, in the tumult of history.
When government does not comply with the law, this is not merely non-compliance with a particular law, it is an affront to the rule of law itself [...].
[Emphasis by Campbell J.]
(See also Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 70-72; and Re Manitoba Language Rights, [1985] 1 SCR 721 at paras 59-60)
[39] While this application concerns a matter arising within the competence of a First Nation operating within the framework of both federal statute law and a membership code adopted by the Band, the principle remains the same.
[40] For the reasons set below, I will allow this application for judicial review.
1. Did the Ashcroft Band Council exceed its jurisdiction by refusing to apply the Membership Rules and review the Band list?
[41] Central to this application is the duty of keeping and administering the membership list; also known as a Band list under the Indian Act. This duty is found is s.8 of the Indian Act. A Band list can be maintained either by INAC (s.9) or by the Band itself (s.10). As noted by Justice Desjardins in Abenakis of Odanak v Canada (Minister of Indian Affairs and Northern Development), 2008 FCA 126 at paragraph 2:
[2] Under the provisions of section 10 of the Act, which was enacted in 1985, a Band which wishes to do so may assume the control of its own membership if it establishes membership rules in writing and if it is authorized to do so "by a majority of its electors". According to the Minister of Indian Affairs and Northern Development, who shepherded the bill to amend the Act through the House of Commons on March 7, 1985, this measure was the beginning of a process for the complete political independence of Indians (House of Commons Debates, March 7, 1985, page 12: 7 see also Sawridge Band v. Canada, [2003] 3 C.N.L.R. 344 (F.C.T.D.), paragraphs 28 to 32).
[42] Section 10 has been described as protecting acquired rights: Abenakis of Odanak v Canada, above, at para 38. It gives Bands the opportunity to take control over their membership, a concept akin to citizenship as it holds obligations and privileges: participating in Band elections, living on reserve, receiving benefits, etc (Sandberg v Norway House Cree Nation Band Council, 2005 FC 656 at para 12). The concept of membership is thus linked with concepts of aboriginal self-governance and democracy.
[43] The Ashcroft Band took this opportunity in 1987 and adopted their Membership Rules pursuant to s.10(1) of the Indian Act. There is some dispute as to whether this was done on notice and with the consent of a majority of the electors of the Band as required by the section but the initiative was accepted by the Minister and acted upon by the Band. The respondent Chief and Council can not now claim that the process of adopting the Membership Rules was not legitimate as INAC ceased to be responsible for the Band’s membership following the 1987 decision and neither the action of the Band at that time nor the Minister’s acceptance of the decision has been challenged.
[44] Subsection 10(9) of the Indian Act creates the obligation for the Band to maintain a Band list and subsection 10(10) gives the Band the power to add or delete names from the list in accordance with the Membership Rules. The maintenance of the membership list in accordance with the Membership Rules is a public law duty: Scrimbitt v Sakimay Indian Band Council, [2000] 1 CNLR 205 at para 37.
[45] As described in the background section above, under the Band’s Membership Rules, certain individuals are entitled to “automatic” membership based on certain criteria (Part II of the Membership Rules) while others who might be entitled to membership need to apply for membership and be accepted by a majority of the Band electors during a membership meeting (Part III and IV of the Membership Rules). Membership meetings must be held 4 times a year unless no applications were made during a period of 3 months.
[46] The Membership Rules include specific provisions on how to amend the rules (ss.26 to 29). The jurisprudence has established that membership rules cannot be modified at will: Angus v Chipewyan Prairie First Nation Tribal Council, above, at para 55. The Band Council is bound by the Membership Rules and it cannot deviate from them: Sandberg v Norway House Cree Nation Band, above, at para 12.
[47] The respondent argues that s.10 creates no positive obligation and no legal duty to act. It relies mainly on the use of the word may in