Date: 20010411
Docket:T-141-99
Neutral Citation: 2001 FCT 319
BETWEEN:
THE REGISTRAR OF THE INDIAN REGISTER,
INDIAN AND NORTHERN AFFAIRS CANADA,
AND THE ATTORNEY GENERAL OF CANADA
Applicants
- and -
JOHN JEREMIAH SINCLAIR
Respondent
A. INTRODUCTION
[1] Pursuant to section 18.3 of the Federal Court Act, the Registrar of the Indian Register (the "Registrar") joined by the Attorney General for Canada, referred two questions to the Court for determination.
[2] The first question stated by the Registrar is:
Would I err in law in deciding that, under the provisions of the Indian Act, the Respondent is not entitled to have his name entered on the Indian Register and assigned an Indian Registry number under the said Act?
[3] The hearing on the second question was adjourned because the respondent had not given notice of a constitutional question pursuant to section 57 of the Federal Court Act. However, the second question has a contextual impact on the first question. It reads:
In the event the first question is answered in the negative, would I err in law in deleting the Respondent's name and Indian registry number from the Indian Register pursuant to section 5(3) of the Indian Act, prior to the Respondent exhausting his protest and appeals against my decision under sections 14.2 and 14.3 of the Indian Act, on the basis that the deletion of his name and registry number would, (but for the existence of an interlocutory injunction issued on the 16th of February, 1999 by the Associate Chief Justice of the Federal Court of Canada restraining me from deleting the Respondent's name pending the final disposition of the within proceeding in the Trial Division), cause the Respondent to lose access to the benefits available to him as a Registered Indian residing in the Province of Alberta, pending the determination of his appeals? [emphasis mine]
B. BACKGROUND
[4] John Jeremiah Sinclair (known and referred to in these reasons as Sam Sinclair) is a Metis and a descendant of residents in the geographical area now covered by Treaty No. 8 signed on June 21, 1899. He was born in Slave Lake, Alberta, on November 22, 1926, the son of Alfred Sinclair and Agathe Courteoreille. He resides in Edmonton, Alberta and is married to Edna Mary Pierce, a Cree who is a member of the Driftpile Reserve and descendant of Treaty No. 8.
[5] Sam Sinclair applied to the Registrar to have his name added to the Indian Registry. The registry and the Office of Registrar were created by the Indian Act of 1951. On October 12, 1990, he was advised by the Registrar he was entitled to be registered pursuant to paragraph 6(1)(f) of the 1985 Indian Act since both of his parents were, at the time of their death, entitled to be registered under subsection 6(1) of that Act.
[6] The Registrar explained his father, Alfred Sinclair, was entitled to registration pursuant to subsection 6(2) of the 1985 Indian Act since Alfred Sinclair's mother, Madeleine Hamelin, (Sam Sinclair's paternal grandmother) had her Indian status restored under the 1985 Indian Act amendment having previously lost it when she married Donald Sinclair (Alfred Sinclair's father), a non-Indian. Madeleine Hamelin is deemed registered under paragraph 6(1)(c) of the Act.
[7] The Registrar explained that Sam Sinclair's mother, Agathe Sinclair (née Courteoreille) was entitled to registration under subsection 6(2) of the 1985 Indian Act through her mother, Isabelle Courteoreille (née Cardinal) because Isabelle Courteoreille's parents (John Cardinal and Cécile Labonne) were Indians who did not take scrip and two of Isabelle's siblings became members of the Sucker Creek Band (previously Kinnosayo's Band).
[8] In these reasons, scrip is mentioned several times. Scrip was the consideration a person of Metis background, i.e. a person of mixed Indian and European ancestry (and I make no distinction whether that ancestry was French or English), received for the extinguishment of a land claim title.
[9] In 1898, the federal government established a Commission to negociate the terms of a treaty with the various Indian bands occupying the Athabasca district. A treaty was entered known as Treaty No. 8.
[10] At the same time, a parallel Scrip Commission was set up to investigate Metis claims and determine their acceptability. Scrip, if applied for, could take the form of a land grant (240 acres) or money ($250).
[11] Until its repeal in the Indian Act amendments in 1985, the Indian Act prohibited from being registered as an Indian, a person and his/her descendants who had received lands or money scrip.
[12] As equally important, Metis individuals or family could also choose not to take scrip but enter (or join) the treaty being negotiated. One of the important issues in this reference is under what circumstances was the scope of this entitlement for a Metis.
[13] The central factual focus of this reference is on Isabelle Courteoreille, née Cardinal. She was born in 1862 and married Michel Courteoreille, a Metis, in 1881 at Lesser Slave Lake. While the exact date of her death has not been determined, it is agreed between the parties she died before June 21, 1899, when Treaty 8 was signed and before scrip applications were considered. It is also agreed she did not take scrip nor did anyone take scrip on her behalf. It is agreed Michel Courteoreille took scrip in July of 1899 for himself and his minor children, including his daughter Agathe, Sam Sinclair's mother.
[14] In his scrip application, Michel Courteoreille described both his parents as Metis and said his status and that of his wife Isabelle was Metis.
[15] It is also a fact Isabelle Cardinal's parents took scrip. John Cardinal's scrip application states his parents were Metis and he received no annuity as an Indian nor participated in any grants to Indians.
[16] John Cardinal and Cécile Labonne had seven children alive when scrip applications were taken in connection with Treaty 8.
[17] Of those seven children, all took scrip except Casimir and Sophie, who became members of the Kinnosayo's Band.
[18] Isabelle Courteoreille's five siblings who took scrip described their parents as Metis and said they received no annuities as Indians nor participated in any grants to Indians.
[19] Sam Sinclair's son, Gordon Sinclair, also applied for registration and in 1990 was successful in having his name added to the Indian Register.
[20] The record indicates other persons who may have been related to the Sinclair family also sought registration and it was the Registrar's investigation into these other applications which led the new Registrar, Terry Harris, to advise Gordon Sinclair (Sam Sinclair's son) he had been erroneously registered in the Indian Register.
[21] Gordon Sinclair retained legal counsel. Legal counsel's correspondence was considered to be a protest; the Registrar investigated and on March 26, 1999, decided Gordon Sinclair's name should be deleted from the registry because, in her view, he was not entitled to registration. Gordon Sinclair then appealed, pursuant to the provisions of the Indian Act, the Registrar's decision to the Alberta Court of Queen's Bench.
[22] On June 1, 1998, Sam Sinclair was informed he was no longer considered by the new Acting Registrar, Miranda McDonald, to be entitled to be registered as an Indian. The Registrar informed Sam Sinclair that unless new information or evidence was produced to refute her findings, she would delete his name from the Indian Registry within ninety (90) days. Sam Sinclair retained legal counsel who corresponded with the Registrar.
[23] Matters were not resolved. Sam Sinclair filed a statement of claim in this Court seeking a declaration sections 5(3), 6 and 14.2(1), (5) and (7) of the Indian Act are unconstitutional on various Charter grounds, (sections 7, 15 and 35).
[24] On February 4, 1999, with the consent of the applicants, an interlocutory injunction was issued by the Associate Chief Justice preventing the deletion of Sam Sinclair's name from the Register pending the outcome of these proceedings. Sam Sinclair's action was then converted into an application for a reference pursuant to section 18.3 of the Federal Court Act and, as noted, two questions were referred to the Court for determination.
C. THE LEGISLATIVE SCHEME
(1) The 1985 Indian Act
[25] The Indian Act underwent major amendments in 1985 with the coming into force of section 15 of the Charter of Rights and Freedoms. In particular, the entitlement sections were reformed; one example is the regaining of Indian status by Indian women who had lost status by marrying non-Indian men. The disentitlement sections, which have no relevance in this reference, were curtailed but not completely eliminated.
[26] For the purposes of this reference, certain definitions are important. The current definition of "Indian" introduced in the 1951 Indian Act, when the registry was created, reads:
"Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.
[27] Section 5 continues the register, deems the names in the register immediately prior to April 17, 1985 to constitute the Indian Register and empowers the Registrar to delete or add names from the register. Section 5 consolidates what was contained in sections 5 through 8 of the Indian Act, Chapter I-6, R.S.C. 1970, incorporating the relevant provisions of the 1951 Indian Act. Section 5 of the 1985 Indian Act, R.S. 1985, c. I-5, as amended, reads as follows:
| 5. (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act. 5(2) Existing Indian Register (2) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985. 5(3) Deletions and additions (3) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register. 5(4) Date of change (4) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom. 5(5) Application for registration (5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar. R.S., 1985, c. I-5, s. 5; R.S., 1985, c. 32 (1st Supp.), s. 4. [emphasis mine] |
5. (1) Est tenu au ministère un registre des Indiens où est consigné le nom de chaque personne ayant le droit d'être inscrite comme Indien en vertu de la présente loi. 5(2) Registre existant (2) Les noms figurant au registre des Indiens le 16 avril 1985 constituent le registre des Indiens au 17 avril 1985. 5(3) Additions et retranchements (3) Le registraire peut ajouter au registre des Indiens, ou en retrancher, le nom de la personne qui, aux termes de la présente loi, a ou n'a pas droit, selon le cas, à l'inclusion de son nom dans ce registre. 5(4) Date du changement (4) Le registre des Indiens indique la date où chaque nom y a été ajouté ou en a été retranché. 5(5) Demande (5) Il n'est pas requis que le nom d'une personne qui a le droit d'être inscrite soit consigné dans le registre des Indiens, à moins qu'une demande à cet effet soit présentée au registraire. L.R. (1985), ch. I-5, art. 5; L.R. (1985), ch. 32 (1er suppl.), art. 4. |
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[28] Sections 6 and 7 deal with persons who are entitled or not entitled to be registered. Those two sections read as follows:
| 6. (1) Subject to section 7, a person is entitled to be registered if (a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; (c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, (i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or (ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or (f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section. 6(2) Idem (2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1). 6(3) Deeming provision (3) For the purposes of paragraph (1)(f) and subsection (2), (a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a); and (b) a person described in paragraph (1)(c), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision. R.S., 1985, c. I-5, s. 6; R.S., 1985, c. 32 (1st Supp.), s. 4, c. 43 (4th Supp.), s. 1. 7. (1) The following persons are not entitled to be registered: (a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or (b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered. 7(2) Exception (2) Paragraph (1)(a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act. 7(3) Idem (3) Paragraph (1)(b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act. [emphasis mine] R.S., 1985, c. I-5, s. 7; R.S., 1985, c. 32 (1st Supp.), s. 4. |
6. (1) Sous réserve de l'article 7, une personne a le droit d'être inscrite si elle remplit une des conditions suivantes_: a) elle était inscrite ou avait le droit de l'être le 16 avril 1985; b) elle est membre d'un groupe de personnes déclaré par le gouverneur en conseil après le 16 avril 1985 être une bande pour l'application de la présente loi; c) son nom a été omis ou retranché du registre des Indiens ou, avant le 4 septembre 1951, d'une liste de bande, en vertu du sous-alinéa 12(1)a)(iv), de l'alinéa 12(1)b) ou du paragraphe 12(2) ou en vertu du sous-alinéa 12(1)a)(iii) conformément à une ordonnance prise en vertu du paragraphe 109(2), dans leur version antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui d'une de ces dispositions; d) son nom a été omis ou retranché du registre des Indiens ou, avant le 4 septembre 1951, d'une liste de bande, en vertu du sous-alinéa 12(1)a)(iii) conformément à une ordonnance prise en vertu du paragraphe 109(1), dans leur version antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui d'une de ces dispositions; e) son nom a été omis ou retranché du registre des Indiens ou, avant le 4 septembre 1951, d'une liste de bande_: (i) soit en vertu de l'article 13, dans sa version antérieure au 4 septembre 1951, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui de cet article, (ii) soit en vertu de l'article 111, dans sa version antérieure au 1er juillet 1920, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui de cet article; f) ses parents ont tous deux le droit d'être inscrits en vertu du présent article ou, s'ils sont décédés, avaient ce droit à la date de leur décès. 6(2) Idem (2) Sous réserve de l'article 7, une personne a le droit d'être inscrite si l'un de ses parents a le droit d'être inscrit en vertu du paragraphe (1) ou, s'il est décédé, avait ce droit à la date de son décès. 6(3) Présomption (3) Pour l'application de l'alinéa (1)f) et du paragraphe (2)_: a) la personne qui est décédée avant le 17 avril 1985 mais qui avait le droit d'être inscrite à la date de son décès est réputée avoir le droit d'être inscrite en vertu de l'alinéa (1)a); b) la personne visée aux alinéas (1)c), d), e) ou f) ou au paragraphe (2) et qui est décédée avant le 17 avril 1985 est réputée avoir le droit d'être inscrite en vertu de ces dispositions. L.R. (1985), ch. I-5, art. 6; L.R. (1985), ch. 32 (1er suppl.), art. 4, ch. 43 (4e suppl.), art. 1. 7(1) Personnes n'ayant pas droit à l'inscription 7. (1) Les personnes suivantes n'ont pas le droit d'être inscrites_: a) celles qui étaient inscrites en vertu de l'alinéa 11(1)f), dans sa version antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui de cet alinéa, et dont le nom a ultérieurement été omis ou retranché du registre des Indiens en vertu de la présente loi; b) celles qui sont les enfants d'une personne qui était inscrite ou avait le droit de l'être en vertu de l'alinéa 11(1)f), dans sa version antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui de cet alinéa, et qui sont également les enfants d'une personne qui n'a pas le droit d'être inscrite. 7(2) Exception (2) L'alinéa (1)a) ne s'applique pas à une personne de sexe féminin qui, avant qu'elle ne soit inscrite en vertu de l'alinéa 11(1)f), avait le droit d'être inscrite en vertu de toute autre disposition de la présente loi. 7(3) Idem (3) L'alinéa (1)b) ne s'applique pas à l'enfant d'une personne de sexe féminin qui, avant qu'elle ne soit inscrite en vertu de l'alinéa 11(1)f), avait le droit d'être inscrite en vertu de toute autre disposition de la présente loi. L.R. (1985), ch. I-5, art. 7; L.R. (1985), ch. 32 (1er suppl.), art. 4. |
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[29] Section 14.1 deals with inquiries relating to the Indian Register or Band Lists. Section 14.2 authorizes protests related to inclusions or additions and omissions or deletions from the Indian Register and section 14.3 provides for appeals to provincial superior courts from the Registrar's decision dealing with a protest. Sections 14.1 to 14.3 read as follows:
| 14.1 The Registrar shall, on inquiry from any person who believes that he or any person he represents is entitled to have his name included in the Indian Register or a Band List maintained in the Department, indicate to the person making the inquiry whether or not that name is included therein. R.S., 1985, c. 32 (1st Supp.), s. 4. Protests 14.2(1) Protests 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. 14.2(2) Protest in respect of Band List (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. 14.2(3) Protest in respect of Indian Register (3) A protest may be made under this section in respect of the Indian Register by the person in respect of whose name the protest is made or that person's representative. 14.2(4) Onus of proof (4) The onus of establishing the grounds of a protest under this section lies on the person making the protest. 14.2(5) Registrar to cause investigation (5) Where a protest is made to the Registrar under this section, the Registrar shall cause an investigation to be made into the matter and render a decision. 14.2(6) Evidence (6) For the purposes of this section, the Registrar may receive such evidence on oath, on affidavit or in any other manner, whether or not admissible in a court of law, as the Registrar, in his discretion, sees fit or deems just. 14.2(7) Decision final (7) Subject to section 14.3, the decision of the Registrar under subsection (5) is final and conclusive. R.S., 1985, c. 32 (1st Supp.), s. 4. 14.3(1) Appeal 14.3 (1) Within six months after the Registrar renders a decision on a protest under section 14.2, (a) in the case of a protest in respect of the Band List of a band, the council of the band, the person by whom the protest was made, or the person in respect of whose name the protest was made or that person's representative, or (b) in the case of a protest in respect of the Indian Register, the person in respect of whose name the protest was made or that person's representative, may, by notice in writing, appeal the decision to a court referred to in subsection (5). 14.3(2) Copy of notice of appeal to the Registrar (2) Where an appeal is taken under this section, the person who takes the appeal shall forthwith provide the Registrar with a copy of the notice of appeal. 14.3(3) Material to be filed with the court by Registrar (3) On receipt of a copy of a notice of appeal under subsection (2), the Registrar shall forthwith file with the court a copy of the decision being appealed together with all documentary evidence considered in arriving at that decision and any recording or transcript of any oral proceedings related thereto that were held before the Registrar. 14.3(4) Decision (4) The court may, after hearing an appeal under this section, (a) affirm, vary or reverse the decision of the Registrar; or (b) refer the subject-matter of the appeal back to the Registrar for reconsideration or further investigation. [emphasis mine] 14.3(5) Court (5) An appeal may be heard under this section (a) in the Province of Quebec, before the Superior Court for the district in which the band is situated or in which the person who made the protest resides, or for such other district as the Minister may designate; (a.1) in the Province of Ontario, before the Superior Court of Justice; (b) in the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, before the Court of Queen's Bench; (c) in the Province of Prince Edward Island or Newfoundland, before the Trial Division of the Supreme Court; (c.1) [Repealed, 1992, c. 51, s. 54] (d) in the Provinces of Nova Scotia and British Columbia, the Yukon Territory or the Northwest Territories, before the Supreme Court; or (e) in Nunavut, before the Nunavut Court of Justice. R.S., 1985, c. 32 (1st Supp.), s. 4, c. 27 (2nd Supp.), s. 10; 1990, c. 16, s. 14, c. 17, s. 25; 1992, c. 51, s. 54; 1998, c. 30, s. 14; 1999, c. 3, s. 69. |
14.1 Le registraire, à la demande de toute personne qui croit qu'elle-même ou que la personne qu'elle représente a droit à l'inclusion de son nom dans le registre des Indiens ou une liste de bande tenue au ministère, indique sans délai à l'auteur de la demande si ce nom y est inclus ou non. L.R. (1985), ch. 32 (1er suppl.), art. 4. Protestations 14.2(1) Protestations 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. 14.2(2) Protestation relative à la liste de bande (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. 14.2(3) Protestation relative au registre des Indiens (3) Une protestation peut être formulée en vertu du présent article à l'égard du registre des Indiens par la personne dont le nom fait l'objet de la protestation ou son représentant. 14.2(4) Charge de la preuve (4) La personne qui formule la protestation prévue au présent article a la charge d'en prouver le bien-fondé. 14.2(5) Le registraire fait tenir une enquête (5) Lorsqu'une protestation lui est adressée en vertu du présent article, le registraire fait tenir une enquête sur la question et rend une décision. 14.2(6) Preuve (6) Pour l'application du présent article, le registraire peut recevoir toute preuve présentée sous serment, par affidavit ou autrement, si celui-ci, à son appréciation, l'estime indiquée ou équitable, que cette preuve soit ou non admissible devant les tribunaux. 14.2(7) Décision finale (7) Sous réserve de l'article 14.3, la décision du registraire visée au paragraphe (5) est définitive et sans appel. L.R. (1985), ch. 32 (1er suppl.), art. 4. 14.3(1) Appel 14.3 (1) Dans les six mois suivant la date de la décision du registraire sur une protestation prévue à l'article 14.2, peuvent, par avis écrit, en interjeter appel devant le tribunal visé au paragraphe (5)_: a) s'il s'agit d'une protestation formulée à l'égard d'une liste de bande, le conseil de la bande, la personne qui a formulé la protestation ou la personne dont le nom fait l'objet de la protestation ou son représentant; b) s'il s'agit d'une protestation formulée à l'égard du registre des Indiens, la personne dont le nom a fait l'objet de la protestation ou son représentant. 14.3(2) Copie de l'avis d'appel au registraire (2) Lorsqu'il est interjeté appel en vertu du présent article, l'appelant transmet sans délai au registraire une copie de l'avis d'appel. 14.3(3) Documents à déposer par le registraire (3) Sur réception de la copie de l'avis d'appel prévu au paragraphe (2), le registraire dépose sans délai au tribunal une copie de la décision en appel, toute la preuve documentaire prise en compte pour la décision, ainsi que l'enregistrement ou la transcription des débats devant le registraire. 14.3(4) Décision (4) Le tribunal peut, à l'issue de l'audition de l'appel prévu au présent article_: a) soit confirmer, modifier ou renverser la décision du registraire; b) soit renvoyer la question en appel au registraire pour réexamen ou nouvelle enquête. 14.3(5) Tribunal (5) L'appel prévu au présent article peut être entendu_: a) dans la province de Québec, par la Cour supérieure du district où la bande est située ou dans lequel réside la personne qui a formulé la protestation, ou de tel autre district désigné par le ministre; a.1) dans la province d'Ontario, par la Cour supérieure de justice; b) dans la province du Nouveau-Brunswick, du Manitoba, de la Saskatchewan ou d'Alberta, par la Cour du Banc de la Reine; c) dans les provinces de l'Île-du-Prince-Édouard et de Terre-Neuve, par la Section de première instance de la Cour suprême; c.1) [Abrogé, 1992, ch. 51, art. 54] d) dans les provinces de la Nouvelle-Écosse et de la Colombie-Britannique, le territoire du Yukon et les Territoires du Nord-Ouest, par la Cour suprême; e) au Nunavut, par la Cour de justice. L.R. (1985), ch. 32 (1er suppl.), art. 4, ch. 27 (2e suppl.), art. 10; 1990, ch. 16, art. 14, ch. 17, art. 25; 1992, ch. 51, art. 54; 1998, ch. 30, art. 14; 1999, ch. 3, art. 69. |
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[30] I touch briefly on sections 8 to 13 of the Act which concern Band Lists. Section 8 provides there shall be maintained in accordance with the Act, for each band, a Band List in which shall be entered the name of every person who is a member of that band with section 9 providing that, until such time as a band assumes control of its Band List, the Band List of that band shall be maintained in the department by the Registrar. The Registrar has the power to delete and add names to a Band List maintained by the department. Under section 11, membership rules are established for Band Lists maintained by the department.
(2) Certain other statutory provisions
[31] In order to appreciate the statutory context and arguments or positions taken by the parties in this reference, mention is made of the following provisions of the Indian Act prior to 1951 as well as connected legislation.
(a) The 1886 Indian Act
[32] In the 1886 Indian Act, R.S. 1866, c. 43, "Indian" was defined to mean:
(h) The expression "Indian" means
First. Any male person of Indian blood reputed to belong to a particular band;
Secondly. Any child of such person;
Thirdly. Any woman who is or was lawfully married to such person;
[33] In that same Act "non-treaty Indian" read:
(i) The expression "non-treaty Indian" means any person of Indian blood who is reputed to belong to an irregular band, or who follows the Indian mode of life, even if such person is only a temporary resident in Canada. [emphasis mine]
[34] Section 13 of that same Act, as amended by Chap. 22, 51 Victoria (assented to the 22nd of May 1888) with a marginal note reading "as to half-breeds in Manitoba and elsewhere" reads:
13. No half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian; and no half-breed head of a family, except the widow of an Indian, or a half-breed who has already been admitted into a treaty, shall, unless under very special circumstances, which shall be determined by the Superintendent General or his agent, be accounted an Indian, or entitled to be admitted into any Indian treaty; and any half-breed who has been admitted into a treaty shall, on obtaining the consent in writing of the Indian Commissioner or in his absence the Associate Indian Commissioner, be allowed to withdraw therefrom on signifying in writing his desire so to do, -- which signification in writing shall be signed by him in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same; and such withdrawal shall include the minor unmarried children of such half-breed. [emphasis mine]
D. THE REGISTRAR'S NOTICE OF INTENTION TO DELETE
(1) The June 1, 1998 notice
[35] On June 1, 1998, the Registrar advised Sam Sinclair he could no longer be considered by her to be entitled to be registered as an Indian and it was her intention to delete his name from the Indian Registry subject to his supplying additional proof of entitlement. The Registrar informed Sam Sinclair she had discovered a problem on his mother's side and, in particular, with his maternal grandmother, Isabelle Courteoreille. She wrote:
At the time you were registered, it was thought that your mother, Agathe Sinclair née Courteoreille could be deemed to be entitled to registration under section 6(2) of the Indian Act through her mother, Isabelle Courteoreille née Cardinal. At that time, it was believed that the parents of Isabelle Courteoreille née Cardinal [John Cardinal and Cécile Labonne] did not take scrip and that Isabelle could be deemed to be entitled to registration because her brother, Casimir Cardinal, became a member of the Sucker Creek Band.
[36] However, the Registrar said she had new information concerning his family background. The Registrar said Sam Sinclair's maternal grandfather, Michel Courteoreille, received scrip and was allotted scrip on behalf of his minor children including his daughter (Sam Sinclair's mother), Agathe, in July 1899 after Treaty 8 was signed. The Registrar said Michel Courteoreille and his parents were not members of or in any way affiliated with any Indian band and as a result he (Michel Courteoreille) was not entitled to registration as an Indian.
[37] The Registrar pointed out that persons who took scrip and their descendants were not entitled to registration as Indians under the provisions of the Indian Act as they read prior to its 1985 amendment. She said the current Indian Act does not make specific provision for the restoration of status to such persons but was of the view "it is possible to consider the registration of persons who took scrip or the registration of the descendants of such persons if it can be established that the applicant is a direct descendant of Indians who did not take scrip". [emphasis mine]
[38] In her notice letter, the Registrar said this was not the case with Sam Sinclair's family on his maternal side. This is what she wrote to Sam Sinclair:
I have now established that Isabelle's parents did receive scrip, and as a result, I cannot deem Isabelle ever to have been entitled to registration as an Indian, even though her brother, Casimir Cardinal,became a member of the Sucker Creek Band (formerly a part of Kinnosayo's Band) and was listed as a member of that band until his death. At the time you were registered, it was assumed that Casimir was a member of the band because his father was a member or would have been entitled to membership in a band, and that Casimir was entitled to Indian status under section 2(h) of the Indian Act of 1886, which defined "Indian" as any male person of Indian blood reputed to belong to a particular band; a child of such a person; and any woman who is or was lawfully married to such a person. However, it has now been established that the parents of Isabelle and Casimir (and Isabelle's husband) all received scrip and all stated on their scrip applications that they never received any annuity as Indians or in any way participated in grants to Indians. They did not indicate that they were ever associated with any Indian band. Consequently, there is no evidence that Isabelle's father was ever associated with a particular Indian band and therefore no indication that Casimir gained entitlement to Indian status or his band membership through his father.
It now appears that Casimir probably became a member of Kinnosayo's Band (and later, the Sucker Creek Band) under an exception to section 13 of the Indian Act of 1886 which stated that"... no half-breed head of a family except the widow of an Indian, or a half-breed who has already been admitted to a treaty, shall, unless under very special circumstances ... be accounted an Indian or entitled to be admitted into any Indian treaty...". There is no indication in our records what the special circumstances may have been in Casimir's case and no evidence whatsoever that the same circumstances might have applied in the case of his sister Isabelle.
Since I have now established that neither of your maternal grandparents are entitled to registration under the Indian Act, your mother, Agathe Sinclair née Courteoreille, is not entitled to registration as an Indian. There is no provision in the Indian Act for the registration of a person one of whose parents is entitled to registration under section 6(2) of the Act and whose other parent is not entitled to registration. As a result, you are not entitled to registration as an Indian in accordance with the provisions of the Indian Act. [emphasis mine]
(2) The Registrar's further explanation
[39] On January 29, 1999, the Registrar wrote to Sam Sinclair's solicitor to clear up "a misunderstanding with respect to the reasons why I have determined that your client's maternal grandmother, Isabelle Courteoreille, cannot be deemed entitled to registration under the provisions of the Indian Act of 1985". The Registrar said there is some suggestion that "my decision is based on the assumption that Isabelle Courteoreille would have taken scrip along with her husband and children had she been alive when Treaty 8 was signed in 1899, and that based on this assumption, I concluded that Isabelle Courteoreille would not be entitled to Indian status. This is not the case."
[40] The Registrar then explained the basis of her June 1, 1998 letter to Mr. Sinclair. She wrote:
... I explained why Isabelle Cardinal [then] was deemed entitled to registration under subsection 6(1) of the Indian Act.... The basis of this decision was the belief that her parents had not applied for nor had been allotted half-breed scrip, hence giving rise to an assumption that they could have entered treaty and been considered members of Kinnosayo's (Sucker Creek) band as was their son, Casimir Cardinal. This assumption provided a basis to assume that any of Casimir's siblings who had not applied for and been allotted half-breed scrip would have met the definition of the term "Indian" as found in subsection 2(h) of the Indian Act [1886] . . ., as long as they had not lost their entitlement to band membership under any other section of the Indian Act (1886). For those that had lost their entitlement, especially through marriage to a non-Indian, their entitlement could be considered under the provisions which restored Indian status to those who lost it under certain specified circumstances contained in the Indian Act (1985). [emphasis mine]
[41] She then recited the fact Isabelle Courteoreille's mother and father applied for and were allotted scrip and a new fact she was identified as a Metis on her husband's scrip application submitted on behalf of he and his minor children.
[42] The Registrar reiterated when it was drawn to her attention that Isabelle's mother and father had applied for and had been allotted Metis scrip, she concluded they could not be considered "Indians" as defined by subsection 2(h) of the Indian Act (1886) as they "were ‘[Metis] heads of a family' and thus prohibited from entering treaty" citing section 13 of the 1886 Indian Act. The Registrar said that "[H]ence there was no longer a basis to conclude that Isabelle's parents could have entered treaty and become members of Kinnosayo's Band or that Isabelle (or her brother Casimir) Cardinal had any entitlement to enter treaty based on the entitlement of their parents to enter treaty".
[43] She explained further "because of the identification of Isabelle Courteoreille as a [Metis], she, as a [Metis] head of a family herself, as was her husband, would not have been eligible to be admitted into any treaty except if there had been any ‘special circumstances' which would bring her into treaty or membership in any Indian band. In my investigation into the matter, I have found no evidence of any such ‘special circumstances'."
[44] The Registrar continued by saying this:
One would have to surmise that her brother, Casimir Cardinal, entered treaty and membership in Kinnosayo's (Sucker Creek) Band under "special circumstances". It is not, however, clear what these circumstances may have been. It is possible that being identified as a member of the band through marriage to a member or as a person living with a group entering treaty constituted a "special circumstance" which would justify Casimir's inclusion in treaty.
[45] As a result, the Registrar concluded:
Based on the above reasons, I have concluded that Isabelle Cardinal (1) had no entitlement to recognition as an Indian under the Indian Act (1886) and so (2) did not lose any such entitlement because she was married to a non-Indian, as provided in section 11 of the Indian Act (1886) as amended by section 1, chapter 29 of the Statutes of Canada 1890. Consequently, Isabelle Cardinal cannot be deemed to be entitled to registration under paragraph 6(1)(c) of the Indian Act (1985) nor can her children, including Agathe Courteoreille, be deemed to be entitled to registration under subsection 6(2) of the Act.
E. ANALYSIS
(1) Preliminary observations
[46] Section 18.3 of the Federal Court Act provides for references to the Federal Court by a federal tribunal (the Registrar) or the Attorney General and reads:
| 18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Trial Division for hearing and determination. (2) The Attorney General of Canada may, at any stage of the proceedings of a federal aboard, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations thereunder, to the Trial Division for hearing and determination. [emphasis mine] |
18.3 (1) Les offices fédéraux peuvent, à tout stade de leurs procédures, renvoyer devant la Section de première instance pour audition et jugement toute question de droit, de compétence ou de pratique et procédure. (2) Le procureur général du Canada peut, à tout stade des procédures d'un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, renvoyer devant la Section de première instance pour audition et jugement, toute question portant sur la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, d'une loi fédérale ou de ses textes d'application. |
|
[47] As I see it, under the 1985 Indian Act (as it was under the 1951 Indian Act), the Registrar:
(a) by subsection 5(3), previously subsection 7(1), has the power to add or delete from the Indian Register the name of any person who, in accordance with the Act, is entitled or not entitled to have his/her name included in the Indian Register;
(b) after a protest is made under subsection 14.2(1), the Registrar, under 14.2(7) "shall cause an investigation to be made into the matter and render a decision" which, subject to section 14.3 is "final and conclusive". (Section 14.3 provides for an appeal of the Registrar's decision made under subsection 14.2(5) to the provincial superior court but not to this Court.)
[48] I asked the parties where in the proceedings the Registrar was, at the time this reference was made (compare, Reference the Public Service Staff Relations Act, [1973] F.C. 604 (F.C.A.).
[49] Counsel for the applicants advised me that the proceeding before the Registrar is for a determination as to whether Sam Sinclair should have his name deleted from the registry pursuant to subsection 5(3) of the Act. Counsel for Mr. Sinclair agreed with this view.
[50] Subsection 5(3) of the 1985 Indian Act is similar to its subsection 7(1) predecessor and section 9 of the former Act is in terms similar to now subsection 14.2(5).
[51] The statutory scheme of the former Act as it stood in the 1970 Revised Statutes was considered by the Federal Court of Appeal in John Bay v. The Queen, [1974] 1 F.C. 523, in a case where the Registrar had refused to add Mr. Bay's name to a Band List and consequently, to the registry, because of the view taken Mr. Bay was not entitled to be registered.
[52] Chief Justice Jackett referred to section 7 (power to add or delete) and section 9, after a protest, (the power to render a decision which is final and binding) in these terms at page 524:
With reference to the Indian Register, the Registrar
(a) under section 7, has a power to add to a Band List or a General List the name of a person who is entitled to have his name included in the list and to delete from such a list the name of any person who is not entitled to have his name included therein, which power becomes a duty to add or delete, as the case may be, when the occasion to exercise it arises, and
(b) under section 9, after causing an investigation to be made into a protest against the addition or deletion of a name in the exercise of the section 7 power, has a power to render a decision concerning such protest, which decision is final and conclusive. [emphasis mine]
[53] He concluded, when the Registrar took the position as to whether he "has a section 7 duty to add or delete a name that ‘decision' has no legal effect". His view is explained at the same page:
When the Registrar is asked to exercise the section 7 power to add or delete a name, he must, of course, take a position as to whether the person in question is or is not entitled to have his name on the list so as to give rise to the duty to add or delete. There is, however, a clear difference between a position so taken by the Registrar on the occasion of a request to exercise the section 7 power and a decision rendered by the Registrar in the exercise of his section 9 decision-making power. Once the Registrar has exercised his section 9 decision-making power, his decision has legal effect and his power with regard thereto is spent. When, however, the Registrar takes a position as to whether he has a section 7 duty to add or delete a name, that "decision" has no legal effect. In such a case, as a matter of law, nothing has been decided. The Registrar himself, or his successor, in the very case in which such position was taken, can take a different position at any time and, having taken such a different position, can exercise his section 7 power to add or delete in accordance therewith. [emphasis mine]
[54] Justices Thurlow and Pratte wrote concurring reasons.
[55] Justice Thurlow, as he then was, observed:
(a) the provisions leading to investigation and entitlement of a person to registration (now section 14.2 of the 1985 Indian Act) did not apply in the situation before him because his name had not been omitted from the Band List and he had not protested;
(b) subsection 7(1), now subsection 5(3), gave the Registrar no authority to decide who is or who is not entitled to be registered; it "merely authorizes him to add the name of a person who is entitled or delete the name of a person who is not entitled". If the Registrar deletes a name pursuant to section 7, Justice Thurlow said the procedures of subsection 9(1) may be invoked to determine the entitlement. He added at page 527-28:
As I see it, the Registrar when dealing with a matter under section 7 is not required to conduct an inquiry or to afford any one a hearing on the question of a person's entitlement to registration and his view of the person's entitlement when reached binds no one for he is free to change that view at any time and thereupon to act accordingly.
It was also argued that the refusal was a decision in a practical sense, but while I am not unsympathetic to the plight of a person whose application for registration has been refused, I do not think that considerations as to the practical effect can serve to confer on the Registrar a power of decision which the plain wording of the statute does not give him.
[56] Both parties to this reference have pinpointed the proceeding before the Registrar if the answer to question 1 is to have practical application. The nature of that proceeding provides the context in which the answer is to be provided. The answer to question 1, as I view it, is to provide the basis upon which the Registrar can then act under subsection 5(3) of the Act: delete or not delete Mr. Sinclair's name from the registry.
[57] If I answer the first question in the affirmative, the Registrar could not delete Mr. Sinclair's name from the registry and that would be the end of the matter.
[58] If, as suggested by the applicants, the answer should be no, the Registrar would delete Mr. Sinclair's name from the registry, which subject to question 2 in this reference, may lead to a protest, an investigation by the Registrar and a decision which may be appealed to the Alberta Court of Queen's Bench, a situation which Sam Sinclair's son has experienced.
[59] I make a further observation. The material for the case to be determined on this reference is comprised of the file of the Registrar from the date of Sam Sinclair's original application for registration until the commencement of his Federal Court proceedings, supplemented by any additional research she conducted. By agreement of the parties, they are to rely, by way of evidence, solely on the materials comprising the case. The Registrar also prepared a supplement to the case which contains materials which then counsel for Sam Sinclair wanted the Court to have. Counsel for the applicants have contested whether I can take this documentation into account.
[60] One such document was the affidavit which Sam Sinclair filed in support of his application for injunction. In that affidavit, he recites:
(a) his native tongue is Cree and that is the language he grew up speaking with his parents and siblings;
(b) he was raised by his parents to believe he was an Indian and "it was the only lifestyle we ever knew";
(c) he joined the Canadian army in 1943 and fought in World War II;
(d) upon his return to Canada, he was actively involved in issues related to Native rights. He is the immediate past President of the Native Veteran's Association of Canada;
(e) as noted, he is married to Edna Pierce, a Cree and a member of the Driftpile Reserve.
(f) he then described the benefits he would lose if removed from the register.
[61] One final preliminary point. Counsel for the applicants said my task and my mandate under the reference was to examine the evidence in the record independently from the way the Registrar may have looked at it and answer the questions based on that evidence and the law. He said the proceeding before me is not judicial review and, in this perspective, the reasons expressed by the Registrar to Mr. Sinclair are not relevant.
[62] Counsel for the Attorney General and the Registrar candidly admitted the Registrar erred in her reasons leading to Sam Sinclair's initial registration but that this had no bearing on the decision I am to make and the fact she may have ignored the evidence did not disentitle me from addressing such evidence.
[63] There was no formal agreement as to the material facts but as I see it, the parties are substantially of the same view on essential facts.
(2) The principles of interpretation in this case
(a) The principles of statutory interpretation
[64] Justice Iacobucci, for the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at p. 41, relied on the following passage in Elmer Driedger's Construction of Statutes, (2nd ed. 1983) for the principle that statutory interpretation cannot be founded on the wording of legislation alone:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[65] Justice Iacobucci continued on the same page:
I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".
Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues.
(b) Interpretation of treaties and statutes relating to Indians
[66] Counsel for Sam Sinclair relied upon Nowegijick v. The Queen, [1983] 1 S.C.R. 29 for the proposition that ambiguous laws are to be interpreted in a manner favourable to Indians, citing Dickson J., as he then was, at page 36:
Indians are citizens and, in affairs of life not governed by treaties or the Indian Act, they are subject to all of the responsibilities including payment of taxes, of other Canadian citizens.
It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. If the statute contains language which can reasonably be construed to confer tax exemption that construction, in my view, is to be favoured over a more technical construction which might be available to deny exemption.
[67] Counsel for the applicants denied any ambiguity existed and countered with Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 for the proposition that this case modifies Nowegijick, supra.
[68] In Mitchell, supra, the issue was whether the term "Her Majesty" in paragraph 90(1)(b) of the Indian Act extended to a provincial Crown. All of the members of the Court held this term was limited to the federal Crown.
[69] Counsel for the applicants relied on this extract from Justice La Forest's reasons in Mitchell, supra, at page 143:
At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote. [emphasis mine]
[70] In my view, Mitchell does not modify Nowegijick. In Mitchell, Justice La Forest specifically stated he did not take issue with the principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of Indians.
[71] What Mitchell, supra, holds is that interpreting statutes dealing with Indians should be tackled differently than treaties where the Crown had a superior bargaining position. Where statutes are involved, the liberal interpretative method, i.e. that of construing in a broad manner provisions aimed at maintaining Indian rights, is to follow a contextual approach seeking to discover what Parliament wanted to accomplish (its object and purpose) taking into account the policies the Act seeks to promote.
F. CONCLUSIONS
(1) Underlying findings
[72] The Registrar and the Attorney General say a finding that Isabelle Courteoreille is entitled to registration must clear two hurdles:
(1) she had to be alive when scrip applications were considered after Treaty 8 was entered into;
(2) there must be evidence, on the balance of probabilities, which demonstrates her having adopted the Indian way of life.
[73] To resolve those two matters I must make the following underlying findings construing the various provisions of the Indian Act related to the powers and duties of the Registrar.
[74] First, as argued by counsel for the applicants, I find sections 6 and 7 of the 1985 Indian Act constitute a complete code defining the circumstances of entitlement to registration. What the Indian Act defines is who is an Indian for its statutory purposes; in this context, how a person feels related culturally or ethnically to Indians is irrelevant.
[75] Second, the combined effect of paragraph 6(1)(f) and subsection 6(2) and the deeming provisions in subsection 6(3), which speak of a person not living prior to April 17, 1985 being deemed to be registered if entitled to be registered at the time of death, requires the Registrar examine relevant matters as if that person was alive when the 1985 Indian Act was in effect and to look at Isabelle Courteoreille's way of life when she died. In other words, the provisions of the 1985 Act are transplanted to that point in time.
[76] Third, I agree with the point made by counsel for the applicants that in the discharge of its duties and functions under the Act, the Registrar does not exercise any discretion in the sense of having been given a choice of options within a statutorily imposed set of boundaries (see, Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 at 852). Rather, the Registrar's principal task is to find the facts, based on the record, relevant to entitlement to registration and then apply those facts to the law. Counsel for the applicants aptly described the Registrar as an historian looking to see if there was evidence of entitlement to registration.
[77] Fourth, the Registrar noted that Sam Sinclair's father, Alfred, was entitled to registration under subsection 6(2) because his mother, Madeleine Hamelin, had her status restored and she was deemed to be entitled to be registered under paragraph 6(1)(c). I initially thought his father's entitlement to registration might guarantee Sam Sinclair's entitlement to registration under subsection 6(2) as a person with one parent (his father or mother) entitled to registration. I agree with the view expressed by counsel for the applicants that to qualify under subsection 6(2), one parent would have to be entitled to registration under subsection (1). Alfred Sinclair's entitlement arose under subsection 6(2). He was not a subsection 6(1) person, a necessary condition for the operation of subsection 6(2).
[78] Fifth, on a matter of procedure, I agree with the submissions of counsel for both parties that Sam Sinclair's ability to protest could only arise after his name had been deleted from the register. Section 14.2 makes this clear by using the words "within three years after the ... deletion as the case may be".
(2) Was Isabelle Cardinal's death prior to June 21, 1899 a bar to entitlement to registration
[79] I was referred to several historical documents touching upon what were the living patterns in the Athabasca region during the period surrounding the establishment of Treaty No. 8 and what were the relationships between the Metis and the Indians there.
(a) Sir Clifford Sifton's memo to Cabinet
[80] Sir Clifford Sifton was Minister of the Interior in Sir Wilfrid Laurier's Cabinet. He was also the Superintendent General of Indian Affairs (section 4, 1886 Indian Act). In June 1898, he sought Cabinet authorization to set up a Commission to negociate the terms of Treaty No. 8. Denis Maddill, in his research paper (the Madill Report) which was relied on by both parties, says this:
In June, 1898, Sifton recommended to cabinet that the commission should be empowered to deal with the Métis as well as the Indians "in the relinquishment of [their] aboriginal title".He revealed also that it was impossible to instruct the commissioners "to draw a hard and fast line" between the Métis and the Indians, as some of them were closely allied in manners and customs to the latter. Hence, considerable latitude would be given to allow Métis who so desired to be treated as Indians and taken into treaty, which "would be more conducive to their own welfare, and more in the public interest... than to give them scrip". [emphasis mine]
[81] This view of the capacity of the Metis to enter Treaty No. 8 was confirmed by Justice W.A. Mcdonald when he headed a 1943 Commission of Inquiry into the delisting of a number of persons from Treaty No. 8 Band Lists. Metis living as Indians, he said, were encouraged to take treaty. He confirmed that a large number of those originally admitted were of mixed blood.
[82] The Madill Report indicates at page 246 of Case Book, Volume 2, in connection with Treaty One, signed in 1871, (related to parts of Manitoba) "Commissioner Simpson found that several Metis resided in Indian communities and consequently decided to offer them the choice of taking treaty or scrip".
[83] Mr. Madill also states on the same page a separate adhesion to Treaty Three was signed by the Metis of Rainy River in 1875.
(b) The report of the Commissioner for Treaty 8 (September 22, 1899
[84] The Commissioners for Treaty No. 8, in reporting to the Minister of the Interior, described the nature of the social organization of Indians and Metis in the Athabasca district. That social organization was much different than what existed in the Prairies. He wrote:
There is no immediate necessity for the general laying out of reserves or the allotting of land. It will be quite time enough to do this as advancing settlement makes necessary the surveying of the land. Indeed, the Indians were generally averse to being placed on reserves.
. . .
The Indians with whom we treated differ in many respects from the Indians of the organized territories.... In the summer they live in tepees, but many of them have log houses in which they live in winter. The Cree language is the chief language of trade.... None of the tribes appear to have any definite organization. They are held together mainly by the language bond.... The tribes have no very distinctive characteristics, and as far as we could learn no traditions of any import.
. . .
It may be pointed out that hunting in the North differs from hunting as it was on the plains in that the Indians hunt in a wooded country and instead of moving in bands go individually or in family groups.
[85] The Madill Report at page 256, Case Book, Volume 2, quotes Treaty Commissioner McKenna's views expressed on April 17, 1899 to Sir Clifford Sifton on setting up reserves in the area of proposed Treaty 8.
... it might be desirable to give the Commissioners a freer hand. We can scarcely rely on the experience of the past in dealing with the Indians now to be treated with. When the Government negotiated for the surrender of the Indian title to the land in the organized territories, it had to deal with Indian nations which had distinct tribal organizations. The communal idea was strong and made necessary the setting apart of reserves for the continuance of the common life until the Indians could be gradually weaned from it.
. . .
From what I have been able to learn of the North country, it would appear that the Indians there act rather as individuals than as a nation, and that any tribal organization which may exist is very slight. They live by hunting and by individual effort, very much as the half-breeds in that country live. They are averse to living on reserves; and as that country is not one that will ever be settled extensively for agricultural purposes it is questionable whether it would be good policy to even suggest grouping them in the future. The reserve idea is inconsistent with the life of a hunter, and is only applicable to an agricultural country. [emphasis mine]
(c) The Macrae Report
[86] J.A. Macrae was an inspector with the Department of Indian Affairs appointed by Sir Clifford Sifton to pay annuity to Indians in the Treaty Eight Area and to obtain adhesions from the Fort St. John and For Resolution Bands. The Madill Report said he was also to report on Metis claims and quoted what he said about the existing policy:
I have been governed in dealing with these claims by a principle which I have understood was laid down in 1899 or before, viz., to allow applicants themselves to decide whether they were entitled as half-breeds to scrip or as Indians to treaty benefits though I have not felt altogether sure of the soundness of the principle. This has been done because it seemed to me that as I was only winding up work commenced and to a great extent completed by others that it was proper to continue the lines which they appeared to have lain down rather than to attempt to institute fresh ones. [emphasis mine]
[87] Madill concluded on the point:
In the final analysis, when Treaty Eight was signed in 1899 and 1900 the federal government took a broad and liberal view regarding the class of persons eligible for treaty. The policy of the Indian Affairs Department at that time was to give treaty rather than scrip to those half-breeds who had adopted the Indian way of life. During the negotiations of Treaties One to Six, some Métis were allowed to join treaty: hence, departmental policy was not altered in permitting the Métis of the Treaty Eight area to do likewise. [emphasis mine]
(d) Neil Reddekopp's view
[88] Neil Reddekopp is Senior Manager, Policy, Indian Land Claims for the Alberta Intergovernmental and Aboriginal Affairs. He was asked by Gordon Sinclair, in the context of his protest, to write to the Registrar on certain practices in connection with Treaty 8. He wrote the following:
In the Treaty 8 area, it was not uncommon for close relatives to reach different conclusions as to whether to enter treaty or apply for scrip, as all adults were given a free and unhindered choice to identify themselves as Indian or Metis. Thus it was not uncommon for one generation to choose scrip while their adult children entered treaty. In addition to Casimir Cardinal, other prominent examples included Joseph Laboucan, who was originally Number 24 of the Whitefish Lake Band (and later the first Chief of the Lubicon Lake Band) and whose parents Peter Laboucan and Caroline Taswaw received scrip. As well, Joseph Bigstone became the first Chief of the Bigstone Band while his mother Catherine Gladu received scrip. Thus, provided an individual had reached adulthood, they are free to enter treaty even if their parents received scrip.
Thus, since Isabelle Cardinal died before she had the opportunity given to all adults to choose between treaty and scrip in 1899, she died prior to having forfeited the right to treaty and therefore died entitled to treaty. As such, the original decision to deem her entitled to registration under s. 6(1)(a) would appear to be the correct one. It should be stressed that in order to reach this conclusion, it is not necessary to conclude that it is likely that Isabelle could have convinced her husband to enter treaty rather than apply fro scrip, or even that she would have tried. It is only necessary to establish that had she been living, she would have had the legal right to enter treaty. There seems to be little doubt that she would have had this right. [emphasis mine]
[89] The rationale put forward by counsel for the applicants in support of their proposition that Isabelle Courteoreille had to be alive at the time scrip applications were being taken is in order to determine her eligibility to become Indian particularly when becoming an Indian necessarily entailed joining a specific band.
[90] I do not accept that Isabelle Cardinal's entitlement to Indian status necessarily turns on her eligibility for band membership and, as a result, her Indian status, if such was the case, disappeared on her death. I prefer the arguments put forward by counsel for Sam Sinclair.
[91] I partly accept, however, the point advanced by counsel for the applicants that the statutory basis for Isabelle Courteoreille's deemed entitlement to registration is anchored to section 13 of the 1886 Indian Act which speaks of very special circumstances determined by the Superintendent General or his agent for a Metis to be "accounted an Indian or entitled to be admitted into any Indian treaty". What I do not accept is that section 13 is the only provision in the 1886 Act which Sam Sinclair can rely on in this reference.
[92] Based on the historical evidence in the record, those very special circumstances have been defined, in my view, through the Government of Canada documents referred to. The question is not whether Isabelle Courteoreille at the time of her death would have elected for treaty rather than scrip but rather whether, at the time of her death, she had adopted the Indian way of life or was living as an Indian.
[93] The historical record cautions against stereotyping the Indian mode of living or "living as an Indian". From the evidence I have seen in the Case Book, the First Nations had varying social organizations and living patterns. Indians living in the Treaty 8 area had a different mode of living than those on the Prairies and so did the Metis, some of whom may have lived in settlements such as Batoche. These differences or convergences are important.
[94] The view the Registrar should look at whether Isabelle Courteoreille was living as an Indian at the time of her death and her death prior to scrip taking as a result of Treaty No. 8 being entered into is not relevant, has several legal and factual basis which were advanced by counsel for Sam Sinclair and which I accept.
[95] First, section 13 of the 1886 Indian Act speaks of two purposes for the application of the very special circumstances determined by the Superintendent General or his agent. The first purpose is to be accounted as an Indian; the second purpose is entitlement to be admitted into treaty. Death is not relevant to either purpose.
[96] Second, as noted, this view accords with the reality of life in the Athabasca region covered by Treaty 8 as seen in the historical documents where it would seem that, depending on individual circumstances, the way of life of a Metis was similar to the way of life of the Indians living in that region who had a less structured social organization different from First Nations or Metis on the Prairies.
[97] Third, as pointed out by counsel for Mr. Sinclair, the Indian Act of 1886 contains a definition of "non-treaty Indian" in terms of a person with Indian blood who is reputed to belong to an irregular band or who follows the Indian mode of life. This supports the proposition taking treaty was not a condition precedent to Indian status as is evident with the recognition of Indian status in British Columbia and in other parts of Canada where no treaties exist.
[98] Fourth, the purpose of the amendments to the 1985 Indian Act was to broaden entitlement and reduce the disentitlements and thus rectify past wrongs and provide more access to federal benefits. The view taken that death does not wipe out a person's way of life for their descendants' registration purposes best accords with the intent of Parliament in this matter.
[99] Counsel for the applicants thought Sam Sinclair's counsel was arguing that, as a category, every Metis living in the Athabasca region was entitled to registration without proof of adoption of the Indian way of life. During argument, Sam Sinclair's counsel, as I understood it, abandoned any such position and recognized section 13 of the 1886 Indian Act had to operate on an individual basis in the context of the governmental policies which had been adopted and are reflected in the governmental reports quoted above.
(3) The evidence Isabelle Courteoreille lived as an Indian
(a) The standard of proof
[100] Both parties submitted that in formulating a view leading to deletion under subsection 5(3) of the 1985 Indian Act the applicable standard of proof is whether, on the balance of probabilities, the evidence in the Case would lead to a "yes" or "no" in this reference. The parties relied upon Wilson v. Canada (Indian Registry, [1999] B.C.J. No. 2510, a decision of Justice Sigurdson of the Supreme Court of British Columbia.
[101] Both parties are correct to say Justice Sigurdson held on an appeal from a Registrar's final decision to delete after protest, when exercising functions under section 14.2 of the Act, the Registrar was to examine the evidence against the civil standard of the balance of probabilities. The problem in this reference is the stage in the proceeding the Registrar is at in her decision-making process. As noted, that stage is the reaching of an opinion whether to delete Sam Sinclair's name under subsection 5(3) of the Act. If his name is deleted, he, subject to question 2 of this reference, can protest and if so, the Registrar must investigate, take evidence and then render a final decision which may be appealed.
[102] In my view, the balance of probabilities standard governing the formulation of an opinion leading to a subsection 5(3) deletion as suggested by both parties is too high. Such conclusion flows inevitably from the Federal Court of Appeal's decision in Bay, supra, and the scheme of the Act.
[103] In my view, in order to support a decision to delete, under subsection 5(3), the evidence before the Registrar, must be sufficiently strong as to lead the Registrar to reasonably believe Sam Sinclair was not entitled to registration. (Compare Re United States of America v. Sheppard, [1997] 2 S.C.R. 1067 andCanada v. Kindler, [1987] 3 F.C. 34.
(b) Onus
[104] In this case, the Registrar has brought this reference and its backdrop is her letter of June 1, 1998, to Sam Sinclair indicating her intention to delete and why. The Registrar came to this view after having investigated the Sinclair family background in the context of an application for registration in circumstances not know by Sam Sinclair.
[105] The Attorney General takes the position the answer here should be "no". In the circumstances, I am of the view the Attorney General has the onus in this reference to show the material in the case is sufficiently strong so as to enable the Registrar to reasonably believe Sam Sinclair is not entitled to registration.
(c) Assessment
[106] In my view, the Attorney General has met the onus on the standard of proof which I have adopted for this reference. Although there was no direct evidence on what way of life Isabelle Courteoreille was living at the time of her death, inferences could reasonably be drawn from the scrip applications of her parents and her spouse and from the additional research that she had not integrated into an Indian community. It is true there was evidence going the other way but with the low evidentiary threshold I am satisfied the evidence permits the Registrar to reasonably believe Sam Sinclair is not entitled to registration.
[107] It would be inappropriate for me to comment extensively on the evidence because the Registrar is, subject to question 2, upon a protest launched by Sam Sinclair, required to consider and weigh evidence in the Case and such additional evidence as may be brought forward.
[108] However, having had the benefit of reviewing the evidence and considering the argument put forward, I make these observations:
(1) I do not agree with counsel for the Attorney General that the way Sam Sinclair and his family now live is not an indicia of the way of life of their maternal grandmother. The current lifestyle of Sam Sinclair and his family is a relevant consideration which the Registrar will be obliged to consider and weigh.
(2) I agree with counsel for Sam Sinclair that the historical evidence would seem to indicate considerable differences in the way various First Nations and other communities lived in various geographical areas and the same can be said of the Metis. The Registrar must remain sensitive to these various shadings since they are the underpinnings to the policy decisions referred to above which, in some circumstances, encouraged Metis to enter treaty. All of these facts must be considered and weighed by the Registrar and assessed for the context of how Isabelle Courteoreille was living when she died.
(3) No inference can be derived from the scrip applications concerning the level of association of scriptakers with Indians. The question was simply not asked. The same can be said about the answer "no" to having not received an annuity as Indians. Treaty 8 had just been negotiated.
G. DISPOSITION
[109] For all of these reasons, I answer "no" to question 1 in this reference.
J U D G E
OTTAWA, ONTARIO
APRIL 11, 2001