Date: 20011031
Docket: T-1028-00
Neutral Citation: 2001 FCT 1184
Toronto, Ontario, Wednesday, the 31st day of October, 2001
PRESENT: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
ROGER SARK, REGINALD BERNARD, SHEILA BERNARD,
JAMES SARK, JR., MARY CATHERINE SARK,
KELLY BERNARD, BRIAN FRANCIS, CAROLYN SARK,
GEORGINA FRANCIS, BENNY SARK, DANNY SARK,
JENENE SARK, KATERI FRANCIS, JIM SARK
Applicants
- and -
ABEGWEIT BAND COUNCIL AS REPRESENTED BY
CHIEF FRANCIS JADIS, COUNCILLOR JOSEPH JADIS and
COUNCILLOR DANNY LEVI and
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and
ATTORNEY GENERAL OF CANADA
Respondents
[1] This is an application for judicial review brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. The applicants seek judicial review of a decision of William Montour, Regional Director General and delegate of the Minister of Indian and Northern Affairs Canada (the "Minister's Delegate"), dated May 16, 2000. In his decision, the Minister's Delegate denied the applicants' petition for separation from the Abegweit Band.
Order Sought
[2] The applicants' seek an order setting aside the above decision and referring the matter back to the Minister of Indian and Northern Affairs for a determination in accordance with the law and with such directions as this Court deems appropriate.
Background Facts
[3] The Abegweit First Nation Band (the "Abegweit Band"), which came into existence by Ministerial Order of April 6, 1972, has three reserves in Central Prince Edward Island. These three reserves are the Morell Reserve, the Scotchfort Reserve and the Rocky Point Reserve. The Rocky Point Reserve is some 54 kilometres from the Scotchfort Reserve. There are approximately 158 band members living on the three reserves. Thirty-nine of these band members reside on the Rocky Point Reserve with almost all of the remaining band members residing on the Scotchfort Reserve. The small number of remaining band members reside on the Morell Reserve.
[4] The Abegweit Band Council is comprised of a Chief and two Councillors. Prior to the Abegweit Band elections of May 25, 1999, James Sark, who resides on the Rocky Point Reserve, had been re-elected Chief for successive terms totalling about 22 years. Francis Jadis and his brother Joseph Jadis, both residents of the Scotchfort Reserve, were members of the Band Council before the May election.
[5] In the election of May 1999, Francis Jadis was elected as the new Chief of the Abegweit Band. He assumed office in August of 1999. The Band Council is now composed of Chief Jadis, Joseph Jadis and Danny Levi who all reside on the Scotchfort Reserve.
[6] Between the May election and the day Chief Jadis assumed power in August, 1999, James Sark indicated to him that he intended to ask the Minister to create a new band by separating the Rocky Point Reserve from the Abegweit Band (the "Separation Proposal").
Time Line of Events Following the Election
[7] This time line was created through a perusal of the Minister's Record (found at tab 5 of the applicant's record) and affidavits.
1. June 14, 1999: A petition signed by 13 residents of the Rocky Point Reserve is sent by James Sark to Mr. Montour requesting that the Minister of Indian and Northern Affairs constitute a new band for the Rocky Point Reserve. The letter states "Our reasons for such are several and legitimate, which we would be willing to discuss with you, if required, at your convenience."
2. July 13, 1999: Chief-elect Jadis writes James Sark in relation to a proposed band council resolution concerning the separation of the Rocky Point Reserve. The letter reads:
I am afraid I am unable to comply with your request at this time. The Band legal counsel had already advised me that these types of BCRs signed outside of a duly convened meeting, are not valid. Band Councillors had already requested you to call a Band Council meeting, which you failed to call. There is no alternative to signing a request to separate the community of Rocky Point from the Abegweit Band.
My mandate does not include making decisions outside of a Band Council meeting, regardless of you insisting that the transition will be a rough one. You are the only person who is able to rectify this situation by calling a meeting, duly convened. Whatever hardships you propose, I cannot subject my self to jeopardize the interests of the band membership by signing a BCR outside of a duly convened meeting.
3. July 15, 1999: A letter is sent from Roger Sark to Chief-elect Jadis in relation to "Change in Commercial Fishery". The letter also addresses a proposed Band Council Resolution to separate the Rocky Point Reserve:
As I am writing this letter I just heard that you, Francis, and your brother, Joseph Jadis, as Band Councillors refused to sign a Band Council Resolution in support of a large majority of voting members from Rocky Point Reserve, including myself, to separate from the Abegweit Band and form our own Band to be known as the Rocky Point Band. I also understand that the reason you and your brother Joseph would not sign this because [sic] there was no duly called Council Meeting.
I, for one, and probably many others cannot find words to use to indicate the absurdity of your reasoning, as there was never in all the years, I, and many others, [sic] remember of a duly called Band Council Meeting held to sign a Band Council Resolution. I can recall on plenty of occasions that I went to see you and your brother Joseph for your signature for same [sic].
. . .
We will continue to strive to establish a Band for Rocky Point regardless of how long it may take, as our vision for the social, economic and educational aspects of our community and children is so very much varied than yours, and you know quite well that a great number of examples can be given, including family values . . .
A copy of this letter was also sent to the Minister Jane Stewart of Indian and Northern Affairs.
4. July 19, 1999: James Sark sends a letter to Chief-elect Jadis indicating that the decision to convene a Band Council meeting is acceptable. A request to hold such a meeting is made.
5. July 19, 1999: Chief-elect Jadis sends a fax to Roger Sark in response to his letter of July 15, 1999. In relation to the Separation Proposal, the letter reads:
IT IS WITH GREAT REGRET TO HEAR BAND MEMBERS PURSUING THE BREAK UP OF OUR BAND. MY DUTY TO THE ELECTORSIS [SIC] IS TO KEEP THE BAND UNITED. I DID NOT SIGN THE BCR SEPARATING ROCKY POINT FORM THE BAND (OUTSIDE OF A BAND COUNCIL MEETING). ALSO, I WAS NOT AWARE THAT THE ROLE OF THE FISHERIES COORDINATOR WAS TO OBTAIN SIGNATURES FOR BCRS, WHICH YOU CLAIM TO HAVE DONE ON PLENTY OF OCCASIONS.
6. July 19, 1999: Chief-elect Jadis sends an "open letter" to all band members concerning misinformation of the proposed BCR, and Council's reluctance to sign outside a Band Council Meeting. The letter reads in part:
THIS BCR RESTRICTS VOTING ONLY TO THE ON-RESERVE RESIDENTS OF ROCKY POINT, AND DOES NOT ALLOW SCOTCHFORT AND MORELL TO VOICE THEIR OPINIONS IN THE BREAKING UP OF THEIR BAND. WE THE UNDERSIGNED, COUNCIL ELECT, DO NOT SUPPORT BREAKING UP THE BAND IN THIS PROPOSED FASHION. WE HAD MEET WITH INDIAN AFFAIRS, LANDS AND TRUSTS SERVICES, ON TWO DIFFERENT OCCASIONS AND RAISED THIS SPECIFIC ISSUE. THE LTS DEPARTMENT TOLD US THAT THE DEPARTMENT OF INDIAN AFFAIRS WOULD NOT ENTERTAIN THIS SEPARATION, AND THAT IT WAS A MISTAKE TO SEPARATE ABEGWEIT FROM LENNOX ISLAND IN THE PAST.
7. July 20, 1999: Roger Sark acknowledges Chief-elect Jadis' fax dated July 19, 1999. In relation to the Separation Proposal, he writes:
. . . I do not understand your apprehension on seeing the people of Rocky Point having their own band. It is, us, the people of Rocky Point who want our own band and we will remain determined to accomplish our quest, one way or another. We sincerely believe that this is the best way that we can fully utilize our abilities to advance the total well-being of our community in all areas, such as, social, economic, educational and spiritual aspects.
8. August 4, 1999: Roger Sark sends a letter addressing various issues, including the Separation Proposal, to Chief-elect Jadis. On the issue of separating to form a new band, Roger Sark writes that although he has not been mandated to seek separation by the Band Council, he has been mandated by a "strong majority of Rocky Point resident voting members". The letter states this is not a situation of "sour grapes" in relation to the outcome of the May election, but one where serious development to improve social, economic and other needs can only occur through each community.
9. August 8, 1999: Chief-elect Jadis assumes office.
10. August 9, 1999: The Band Council passes a Band Council Resolution to move the Band Office and its administration of programs to Scotchfort Reserve. The move includes all financial and management information as well as band assets.
11. August 18, 1999: Wendy Petrus, Band Governance and Estates Officer, Atlantic Region, Indian and Northern Affairs Canada sends a policy named "New Bands/Band Amalgamations", dated November 1991, to the Council of the Abegweit Band.
12. September 16, 1999: James Sark writes a letter to Mr. Montour enclosing a draft Framework Agreement that "sets out an agenda and process for guide to self-government negotiations between the members of Rocky Point and Indian & Northern Affairs." He requests a meeting with government officials to conclude the Framework Agreement. The letter reads, in part, as follows:
. . . We require no one's permission to assert and exercise this right. We are fully aware that our request represents a policy issue for your officials. However, with respect, we do not regard this as an internal federal issue which does not and cannot negate our right to self-determination.
13. October 8, 1999: Jane Stewart's predecessor at Indian and Northern Affairs, then Minister Robert Nault, responds to Roger Sark's letter of July 15, 1999. A New Bands/Bands Amalgamations Policy was enclosed. The letter reads on this point as follows:
Under the policy, your new group essentially must reach an agreement with an existing First Nation on the sharing of assets and liabilities. Usually, discussions surrounding such an agreement are held with the group's current First Nation.
14. October 26, 1999: Mr. Montour replies to James Sark's letter of September 16, 1999, advising him that the Atlantic Regional Office of the Department of Indian Affairs and Northern Development is not in a position to recommend that the Government of Canada enter into self-government negotiations with his community. The letter indicates that the government believes it impractical to negotiate Aboriginal self-government on a community basis, and would prefer to negotiate on a Nation basis.
15. December 15, 1999: Counsel representing those seeking band separation writes Mr. Brian Dorey, Land and Trust Services, Department of Indian Affairs and Northern Development. Part of the letter reads as follows:
Representatives of the Rocky Point Reserve have made direct attempts to negotiate a separation of the Band - without success. Legal counsel for the representatives of the Rocky Point Reserve has communicated with legal counsel for the Band Council and requested equitable treatment for the Rocky Point Reserve or in the alternative, consent for a Band division. Notwithstanding several contacts with the Band's legal counsel, no response has been received.
It is the position of the Rocky Point Reserve that the Present Band Council is in breach of its moral and fiduciary duties to the Band members in the Rocky Point Reserve . . . see no alternative but to request a Band separation...
The policy on band divisions (Chapter 11 - New Band/Band Amalgamations) provides for band council resolutions indicating agreement to the creation of a new band. Clearly, no such Band resolution or agreement can be obtained in the circumstances. Indeed, there is a total lack of any communications or co-operation between the new Band Council and the Rock [sic] Point Reserve.
In our opinion the Minister has the discretion to constitute the new band, notwithstanding the absence of agreement from the existing Band, especially where the situation requires the exercise of that discretion. We submit that the predicament now facing the Rocky Point Reserve requires that exercise of the Ministerial discretion mandated by s. 17 of the Indian Act.
16. February 18, 2000: Mr. Brendon Drake, "A/Director, Lands and Trust Services, Atlantic Region", responds to the letter of December 15, 1999. He reiterates the position expressed in previous correspondence with James Sark and others who have requested separation. He writes in part as follows:
This department does not support this request and will not recommend to the Minister that this separation should occur. The Government of Canada is committed to building strong First Nations communities. The division of a band is by definition a weakening of the community fabric and would only occur after consultations with all members of the Abegweit Band.
17. March 31, 2000: The members of the Rocky Point Reserve seeking separation write to Mr. Drake. The letter addresses their many concerns such as the lack of band program administrators or employees in Rocky Point, child care, and political representation. The letter also states that Chief Jadis is forcing Rocky Point residents out of work. The letter reiterates the community's previous position on separation, and states at page 4 that:
. . . it does not take a "Rocket Scientist" to realize that the Abegweit Band Council or members residing in Scotchfort and Morell have no real interest in our separating and forming our own band, other than to hold our community hostage and to victimize us through a policy written by the Department of Indian Affairs, which is not even legislation.
18. March 31, 2000: Three representatives of the Department of Indian and Norther Affairs meet with residents of the Rocky Point Reserve.
19. April 6, 2000: A fax is sent to Mr. Montour from counsel representing those seeking to separate commenting upon the March 31, 2000 meeting. The fax expresses anger and dismay over two articles in the local media quoting Mr. Bill Nye to the effect that the department's position has not changed. The letter reiterates that the Abegweit Band Council refuses to communicate with Rocky Point.
20. April 18, 2000: Mr. Montour replies to the April 6, 2000 fax, writing that he spoke to Mr. Drake and that the department's position remains unchanged. Mr. Montour further states that Mr. Nye's statements to the media were accurate. Mr. Montour further comments as follows:
Your clients have identified a number of issues which they feel can only be solved by separating and forming a new band. It is my understanding that Mr. Nye offered to facilitate a meeting between your clients and the Council of the Abegweit Band to discuss these issues. This offer was rejected by the residents of Rocky Point.
Once again, this office is offering to arrange a meeting between the Abegweit Band Council and your clients.
21. April 28, 2000: counsel for those seeking separation respond to Mr. Montour's letter, addressing various issues. On the point of a facilitated meeting with the Abegweit Band, counsel writes:
At the March 31, 2000 meeting, the Rocky Point Reserve residents made it clear why Mr. Nye's offer to facilitate a meeting with the Band Council would serve no purpose. There had been numerous efforts, directly through legal counsel, to open communications with the Band Council, but to no avail . . .
. . . it is difficult to see how a meeting between the two groups would result in any change in the Band Council's intractable position and deliberate policy of exclusion. Again, it is not as if the Band Council (or indeed the Department) are unaware of the lack of services, employment, and so on - yet these problems continue and the consequences become more significant.
22. May 16, 2000: Mr. Montour writes in response to the April 28, 2000 letter and reiterates that the separation of the Rocky Point Reserve is not supported. He further writes:
This office is committed to the building of strong First Nation communities. I therefore reaffirm our offer to facilitate discussions between the residents of the Rocky Point and the Band Council.
[8] Issues
1. Was the May 16, 2000 letter from Mr. Montour not a "decision or
order of a federal board, commission or tribunal" and thus, not subject to judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7?
2. Have the applicants complied with Rule 81 of the Federal Court Rules, 1998, SOR/98-106 respecting affidavit evidence in support of applications?
3. Have the applicants sought judicial review of a decision that is made pursuant to section 17 of the Indian Act R.S.C. 1985, c. I-5?
4. Is the matter justicable?
5. Did the Minister or his delegate prejudge the petition for band division?
6. Did the Minister or his delegate fetter their discretion by strict application of the Department's policy for constituting new bands and without proper consideration of all of the evidence presented to support the petition?
7. Did the Minister or his delegate err in law by failing to provide any or any adequate reasons for denying the petition?
Applicable Law and Policy - New Bands/Band Amalgamation
[9] Section 17 of the Indian Act, supra states:
| 17. (1) The Minister may, whenever he considers it desirable, (a) amalgamate bands that, by a vote of a majority of their electors, request to be amalgamated; and (b) constitute new bands and establish Band Lists with respect thereto from existing Band Lists, or from the Indian Register, if requested to do so by persons proposing to form the new bands. (2) Where pursuant to subsection (1) a new band has been established from an existing band or any part thereof, such portion of the reserve lands and funds of the existing band as the Minister determines shall be held for the use and benefit of the new band. (3) No protest may be made under section 14.2 in respect of the deletion from or the addition to a Band List consequent on the exercise by the Minister of any of the Minister's powers under subsection (1). |
17. (1) Le ministre peut, lorsqu'il l'estime à propos_: a) fusionner les bandes qui, par un vote majoritaire de leurs électeurs, demandent la fusion; b) constituer de nouvelles bandes et établir à leur égard des listes de bande à partir des listes de bande existantes, ou du registre des Indiens, s'il lui en est fait la demande par des personnes proposant la constitution de nouvelles bandes. (2) Si, conformément au paragraphe (1), une nouvelle bande a été constituée à même une bande existante ou une partie de cette dernière, la fraction des terres de réserve et des fonds de la bande existante que le ministre détermine est détenue à l'usage et au profit de la nouvelle bande. (3) Aucune protestation ne peut être formulée en vertu de l'article 14.2 à l'égard d'un retranchement d'une liste de bande ou d'une addition à celle-ci qui découle de l'exercice par le ministre de l'un de ses pouvoirs prévus au paragraphe (1). |
|
[10] "Band" as defined in the Indian Act:
| "band" means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act; |
« bande » Groupe d'Indiens, selon le cas_: a) à l'usage et au profit communs desquels des terres appartenant à Sa Majesté ont été mises de côté avant ou après le 4 septembre 1951; b) à l'usage et au profit communs desquels, Sa Majesté détient des sommes d'argent; c) que le gouverneur en conseil a déclaré être une bande pour l'application de la présente loi. |
|
[11] Subsection 18.1(2) of the Federal Court Act states:
| (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. |
|
[12] "Federal board, commission or other tribunal" as defined in section 2:
| "federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; |
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867. |
|
[13] Rule 81 of the Federal Court Rules, 1998 states:
| 81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included. (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts. |
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui. (2) Lorsqu'un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables. |
|
Selected Parts of New Bands/Band Amalgamations Policy
(dated November 1991)
11.1.2 Definitions
New Band: A group of Indians which has been granted band status by the Minister pursuant to section 17 of the Act (applies to band divisions and newly constituted bands).
Band Division: A proposal by a group of band members who wish to separate from their parent band(s) with the intention of forming a new band.
Newly A proposal by a group of Indians who are not currently
Constituted members of an existing band and who wish to form a
Band: new band.
Band The merger of two or more bands to form a single band
Amalgamation: pursuant to section 17 of the Act.
11.1.3 DM APPROVAL IN PRINCIPLE
Departmental officials must not take any action which could reasonably be perceived as committing the department to a new band or band amalgamation proposal without the written concurrence of the Deputy Minister (DM Approval in Principle).
11.2 POLICY JUSTIFICATIONS
DM Approval in Principle for a proposal may be sought where one or more of the following justifications can be established.
11.2.1 New Bands
11.2.1.1 Band Division - Request by Band Members
The department may recommend for ministerial approval a request for new band status from band members who are seeking a division from an existing band and who wish to form their own band where the following criteria can be satisfied:
i) Alternate methods of resolving the outstanding issue(s) which precipitated the request for the band division must have been explored by the band(s), members of the proposed new band and departmental officials before a proposal can proceed.
ii) The department requires a land base for the new band and an agreement which divides the existing bands' resource base (assets and funding) in a manner which will permit all bands (existing and proposed) to provide standard programs and services to their memberships. Accordingly, a proposed new band intending to establish itself south of the 60th parallel should negotiate a release of reserve land at no cost to the department as part of the agreement with the existing band(s). Similarly, where a proposed new band intends to establish itself in the Yukon or Northwest Territories, it should seek agreement from the existing band(s) to release either reserve land or land reserved by notation under the Territorial Lands Act, as the case may be, at no cost to the department. Both the existing and proposed land bases must have a sufficiently high standard of services and infrastructure to preclude extraordinary departmental expenditures over the following five to ten year period.
Where, however, a release of land from the existing band(s) cannot be obtained, the proposed new band must submit as part of its proposal a request to acquire reserve land or land reserved by notation, as the case may be, in accordance with section 9.2.2 (provincial land offerings) or section 9.2.9.1 (provision of land for landless bands), Chapter 9 of this Manual. Where land is being acquired by notation, section 9.2.2 is inapplicable as it deals with provincial land, while section 9.2.9.1 should be read with appropriate modifications.
11.3 PROCEDURES
11.3.1 Generally
The following procedures apply equally to new bands and band amalgamations, with only a slight procedural variation under Step 1 to distinguish the two types of proposals.
As noted previously in section 11.1.3, regions must not take any action which would indicate departmental concurrence in a proposal without prior Approval in Principle from the Deputy Minister.
11.3.2 Step l: Formal Request
11.3.2.1 New Bands - Community Request/BCR's
The region must receive a formal written request from representatives of the groups seeking to form the new band. In the case of a band division, the request should indicate the reasons for the band division and the alternatives considered. Additionally, where both the resources involved and the number of band members proposing to separate from their parent band(s) are significant, parent band(s) are required to submit band council resolutions (BCR's) which clearly indicate that their band council(s) agree(s) to the creation of the new band and to any proposed transfer of assets.
Where a band division is involved, it is recommended that the groups form a joint committee to facilitate negotiation of resources and assets with the existing bands.
11.3.2.2 Band Amalgamations - BCR's
The region must receive BCR's from all bands requesting the band amalgamation. The BCR's should indicate the reasons for the request, the alternatives considered and that the band councils have developed a plan for asset administration following amalgamation. Where necessary, the BCR's should also state that the bands will adopt a common membership regime prior to Ministerial Order under section 17 of the Act.
It is recommended that the bands form a joint committee to facilitate negotiation of the terms of the proposed amalgamation.
11.3.3 Step 2: Regional Analysis and Recommendation
District and/or regional officials, including members of the Regional Additions Committee (comprising representatives from Lands, Revenues and Trusts (LRT), Indian Services, Finance and other programs as required), must thoroughly analyze the proposal in light of the policy justifications and criteria outlined above. For purposes of such analysis and for briefing the Deputy Minister, the Committee shall utilize the New Band/Band Amalgamation Checklist (attached as Appendix A to this chapter). All program representatives on the Committee will provide input to the Checklist on the implications of the proposal for their respective programs. A report containing the recommendation of the Regional Director General (RDG) on the proposal must be prepared by the RDG for the Associate Deputy Minister (ADM) of LRT.
11.3.4 Step 3: HQ Review
The region's report, along with the completed New Band/Band Amalgamation Checklist, will be forwarded to the Headquarters Additions Committee, which will review it in light of the policy justifications and criteria outlined above. The Committee will then prepare a recommendation from the ADM's of LRT and Indian Services to the Deputy Minister for Approval in Principle.
11.3.5 Step 4: DM Approval in Principle
At this stage, the proposal will be either rejected or approved in principle by the Deputy Minister. Where an approval is subject to conditions, these conditions must be met before the department will finalize the creation of the new band or the band amalgamation.
Note: DM Approval in Principle does not constitute a binding commitment to approve the proposal. It is only a Ministerial Order under section 17 of the Act which can effect a new band or a band amalgamation.
11.3.6 Step 5: Consultation with Electorates
Once DM Approval in Principle has been obtained, the relevant electorates must confirm agreement with the terms of the proposal. Accordingly, where a new band is proposed, the community which will comprise the new band must be consulted. Furthermore, where relatively large numbers of members are separating from the existing band or significant resources are being transferred to the new band, the portion of the electorate remaining with the existing band must also approve the terms of separation. Similarly, where a band amalgamation is proposed, the majority of each band's electorate must approve the terms of amalgamation.
There are no specific requirements under the Act for consultation with the affected electorates. However, consultation may be accomplished by way of plebiscite, to be conducted by the region in accordance with procedures similar to those outlined in the Indian Referendum Regulations. Where a new band proposal is involved (as opposed to a band amalgamation) statements of intention must be executed indicating the intention of band members to transfer membership to the new band. These statements will provide the basis for a membership list of the new band. A list of electors indicating those members who are eligible to vote in accordance with the rules established for the vote should be developed based on the membership list (see sample "Statement of Intention" and "Membership List For New Bands", attached as Appendices B and C to this chapter, respectively).
With respect to proposals for both new band and band amalgamation proposals, a vote will then be conducted. It is recommended that the requirements of the Indian Referendum Regulations, e.g., pertaining to adequate notice, etc., be followed insofar as they are relevant. Additionally, polling stations must be established in each community which is impacted by the new band or band amalgamation (see sample "Notice of Plebiscite" and "Ballot," attached as Appendices D and E to this chapter, respectively).
Once a plebiscite has been held, a record of the voting procedures and results for each community consulted, together with the region's report and the membership list of the proposed new band, must be forwarded to Headquarters (see sample "Record of Voting Results", attached as Appendix F to this chapter).
As an alternative to a plebiscite, consultation with the relevant electorates may be achieved in accordance with the customs of the relevant band memberships. Where consultation has taken place in accordance with band custom, the region must indicate the results in its report to Headquarters.
11.3.7 Step 6: Ministerial Order
Once the approval of the affected electorates has been obtained, a land base (where required by this policy) has been secured and any conditions attached to DM Approval in Principle have been fulfilled, Headquarters will prepare a Ministerial Order under section 17 of the Act creating the new band or amalgamating the bands, as the case may be, for the Minister's signature.
Where applicable, the Ministerial Order may also set aside existing reserve land for the use and benefit of a proposed new or amalgamated band (a confirming Order in Council is not required to transfer the land in such cases). Where, however, a land base for a proposed new band is being acquired in accordance with section 9.2.2 (provincial land offerings) or section 9.2.9.1 (provision of land for landless bands) of Chapter 9, sections 9.4.2 - 9.4.9 of Chapter 9 must also be followed.
Analysis and Decision
[14] Issue 1
Was the May 16, 2000 letter from Mr. Montour not a "decision or order of a federal board, commission or tribunal" and thus, not subject to judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7?
Section 18.1 of the Federal Court Act, supra reads as follows:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. (3) On an application for judicial review, the Trial Division may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. (3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_: a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral. |
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The respondent urges on the Court that the May 16, 2000 letter is not a "decision or order of a federal board, commission or tribunal". It would appear from the decision of Evans J. (as he then was) in Markevich v. Canada (T.D.) [1999] 3 F.C. 28 (F.C.T.D.) that the letter need not be "a decision or order" in order to be subject to judicial review. Evans J. (as he then was) stated in paragraphs 9 through 14:
The respondent made a preliminary objection to the Court's jurisdiction to entertain this proceeding. The argument was that only a "decision or order" may be the subject of an application for judicial review under section 18.1 of the Federal Court Act. The letter written on behalf of the Minister, which is identified in the applicant's originating notice of motion is the subject of the application for judicial review, was simply informative in nature and did not purport to determine or otherwise affect any legal rights or duties of the applicant. It was not a "decision or order", and was therefore unreviewable by this Court. Indeed, on very similar facts to those at bar, this was the conclusion reached by Teitelbaum J. in Fuchs v. R., [1997] 2 C.T.C. 246 (F.C.T.D.).
With all respect, I do not share this rather limited view of the scope of the subject-matter of this Court's judicial review jurisdiction. The words "decision or order" are found in subsection 18.1(2) of the Federal Court Act, which provides that an application for judicial review of a "decision or order" must be made within 30 days after the time that the decision or order was first communicated by the decision maker. In my opinion, this subsection simply provides a limitation period within which an application for judicial review of a decision or order must normally be made. It does not say that only decisions or orders may be the subject of an application for judicial review, nor does it say that administrative action other than decisions or orders are subject to the 30-days limitation period: Krause v. Canada, [1999] 2 F.C. 476 (C.A.).
It seems to me that the permitted subject-matter of an application for judicial review is contained in subsection 18.1(3), which provides that on an application for judicial review the Trial Division may order [page 37] a federal agency to do any act or thing that it has unlawfully failed or refused to do, or declare invalid or set aside and refer back, prohibit or restrain "a decision, order, act or proceeding of a federal board, commission or other tribunal" [emphasis added]. The words "act or proceeding" are clearly broad in scope and may include a diverse range of administrative action that does not amount to a "decision or order", such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public program: see Krause v. Canada, supra.
However, in order to qualify as an "act or proceeding" that is subject to judicial review, the administrative action impugned must be an "act or proceeding" of a "federal board, commission or other tribunal", that is a body or person "having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament" (subsection 2(1) [as am. by S.C. 1990, c. 8, s.1] of the Federal Court Act). While the letter written on the Minister's behalf to the applicant that is the subject-matter of this application for judicial review was not an act or proceeding by a federal body in the exercise of any statutory power, the Minister, of course, is a person having statutory powers under the Income Tax Act.
Even though not taken in the exercise of a statutory power, administrative action by a person having statutory powers may be reviewable as an "act or proceeding" under paragraph 18.1(3)(b) if it affects the rights or interests of individuals. The letter in question here contained no decision made pursuant to a statutory power, nor did it explicitly purport adversely to affect any right or interest of the applicant. However, it is a reasonable inference from both the letter, and the applicant's communications with Ms. Kara, the writer of the letter, that it signified that Revenue Canada had made a decision to try to collect the unpaid tax and intended to take measures to attempt to recover the previously "written off" tax debt. And, as is apparent from the requirements to pay [page 38] that were subsequently issued, this was indeed the case.
There is no doubt that it is potentially very damaging to a taxpayer's business or professional reputation for Revenue Canada to issue requirements to pay that disclose that a taxpayer is in default on a large unpaid tax debt and require the debtor to pay to Revenue Canada whatever the debtor owes to the taxpayer. The Income Tax Act provides no remedy by which a taxpayer can challenge the validity of the issuance of a requirement to pay. In my opinion, it would be a serious gap in the Court's supervisory jurisdiction if it could not entertain a challenge to the issuance of a requirement to pay where, as here, the ground of the challenge could not have been raised by the taxpayer on receipt of the notice of assessment.
[15] The record contains a portion of the policy established presumably by the Minister and his department outlines in some details the procedure to be followed when dealing with an application for the establishment of new bands. Summarized, the process is as follows:
Step 1 The proposed new band group must submit a written request to the region at this stage, if the resources and the number of members proposing to separate from the parent band is significant, the parent band is required to submit band council resolutions which indicate their agreement to the creation of the new band and to any proposed transfer of assets.
Step 2 Regional Analysis and Recommendation
At this stage, district and regional officials (including members of the Regional Additions Committee, representatives from Lands Revenues and Trusts (L.R.T.), Indian Services and other programs as required) must thoroughly analyse the proposal in light of certain policy justifications and criteria outlined in the policy. For the purpose of this analysis and for briefing the Deputy Minister, the Committee shall utilize the new band/band amalgamation checklist which was to be attached to the chapter containing the policy re: new bands. All program participants are to provide input to the checklist re: the proposal and the implications on programs. The Regional Director General must prepare a report, containing his recommendation on the proposal for the Associate Deputy Minister of L.R.T.
Step 3 H.Q. Review
The Region's report with the completed new band/band amalgamation checklist is forwarded to the Headquarters Addition Committee to be reviewed in light of the above mentioned policy justifications and criteria. The Committee prepares a recommendation from the Associate Deputy Minister (ADM) of L.R.T. and Indian Services to the Deputy Minister for approval in principle.
Step 4 Deputy Minister Approval in Principle
"At this stage, the proposal will be either rejected or approved in principle by the Deputy Minister". Conditions can be attached to an approval.
Step 5 Consultation with Electorate
This step deals with consultation after Deputy Minister approval in principle has been given.
Step 6 Ministerial Order
This is the order which will create the new band.
[16] When Mr. Montour's letter is analysed, it is clear that the Atlantic Region does not support the formation of the new band. A review of the record indicates to me that the proposal did not make it through Step 2 of the procedure recommended in the policy established by the Minister, as the record does not disclose the existence of the new band/band amalgamation checklist nor the report containing the recommendation of the Regional Director General to the Assistant Deputy Minister of L.R.T. I am satisfied that Mr. Montour's letter has the effect of ending the establishment of the proposed new band unless the offer to facilitate discussions between the residents of Rocky Point and the band council could bring a solution to the proposal. It is not reasonable to believe that it would, as the record shows, that attempts were made to discuss the proposal but to no avail. For the above reasons, I am of the opinion that the May 16, 2000 letter is reviewable pursuant to section 18.1 of the Federal Court Act, supra and in particular, pursuant to subsection 18.1(3).
[17] Issue 2
Have the applicants complied with Rule 81 of the Federal Court Rules, 1998 respecting affidavit evidence in support of applications?
Rule 81 of the Federal Court Rules, 1998, supra states:
| 81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included. (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts. |
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui. (2) Lorsqu'un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables. |
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The respondent has submitted that the affidavit of Brian Francis contains interpretations of law (paragraphs 28 - 33), personal opinions (paragraphs 7, 9, 12 - 14, 17 - 19, 20 - 22, 26, 30 - 34) and second hand information (paragraphs 9, 13, 20, 21, 34). I am prepared to strike the first sentence of paragraph 28, paragraphs 7, 9, 12, 13, 14, 17, 19, 32, 33, 34 and the last sentence of paragraphs 21 and 22. I am, however, not prepared to draw any adverse inference from the failure to call other witnesses. From a perusal of the record, including the memorandum of the respondent, I am satisfied that the material facts necessary to decide this application are before the Court.
[18] Issue 3
Have the applicants sought judicial review of a decision that is made pursuant to section 17 of the Indian Act?
The respondent submits that the Minister has not yet made a decision and therefore the applicants have initiated these proceedings prematurely. In The Queen v. Harrison [1977] 1 S.C.R. 238 Dickson J. (as he then was) stated at page 244:
. . . The Appellate Division of the Supreme Court of Alberta reached a different, and, I believe, preferable conclusion on identical facts in R. v. Wiens. The notice of appeal had been authorized, it appeared, by Mr. J.M. Bentley of the Department of Justice. The Court referred to what had been said by Jenkins J. and by Denning L.J. (As he then was) in Metropolitan Borough and Town Clerk of Lewisham v. Roberts. Lord Denning said, p. 621:
. . . Now I take it to be quite plain that when a minister is entrusted with administrative, as distinct from legislative, functions he is entitled to act by any authorized official of his department. The minister is not bound to give his mind to the matter personally. This is implicit in the modern machinery of government . . .
And at pages 245 to 246:
. . . Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to delegate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in "Delegatus Non Potest Delegare", (1943), 21 Can. Bar Rev. 257 at p. 264:
. . . in their application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word "personally" and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words "or any person authorized by it".
See also S. A. DeSmith, Judicial Review of Administrative Action, 3d ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. It is true that in the present case there is no evidence that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or verdicts of acquittal of trial courts but it is reasonable to assume the "Director, Criminal Law" of the Province would have that authority to instruct.
My reading of Evan's J. (as he then was) decision in Markevich, supra has led me to the conclusion that the May 16, 2000 letter of Mr. Montour can be reviewed by way of judicial review. As a consequence, it is not necessary to determine whether or not a decision was made pursuant to section 17 of the Indian Act, supra by following the reasoning in The Queen v. Harrison, supra. Based on my conclusion, the proceedings have not been initiated prematurely.
[19] Issue 4
1.Is the matter justicable?
I am of the opinion that the matter is justicable. The respondents have argued that the decision of the Minister is a discretionary decision and the Court has no right to substitute its decision for that of the Minister. I am in agreement with that general statement but the Court is not substituting its opinion for that of the Minister, which decision may well be made on the basis of policy reasons. In this case, it is the decision not to follow the procedure outlined by the policy in dealing with the new band application that is in issue. The decision reached, as a result of the application of the policy, is one for the Minister to make, as long as it is made following legal principles applicable to such decisions. It is not this Court's intent to dictate a decision to the Minister.
[20] Issue 5
Did the Minister or his delegate prejudge the petition for band division?
Issue 6
Did the Minister or his delegate fetter their discretion by strict application of the Department's policy for constituting new bands and without proper consideration of all of the evidence presented to support the petition?
I propose to deal with Issues 5 and 6 together as the applicant basically argued that there was a breach of the duty of procedural fairness by the respondents, due to the manner in which the application was processed. There is no dispute that the respondent department put in place a six step procedure for dealing with applications, in this case, for a new band by way of a band division. It is reasonable to assume that, at the very minimum, all such applications would be dealt with according to the policy set out by the department. The record shows that the current application was not dealt with in this manner. A review of the record leads me to the conclusion that the current application did not proceed further than somewhere in step 2. There was an attempt to negotiate with respect to the establishment of the new band from the existing band but this was unsuccessful as the two sides would not communicate with each other. I have reviewed the record and cannot find that the analysis contemplated by step 2 has been carried out. There is no new band/band amalgamation check list included in the record. There is no report containing the recommendation of the Regional Director General ("RDG") on the proposal which was to be prepared for the Associate Deputy Minister ("ADM") of LRT. All that is before the Court is a letter from the RDG dated May 16, 2000 which states in part, "I must reiterate the position of the Atlantic Region that this action is not supported." It is my conclusion that a decision had been made not to proceed further and complete the necessary steps under the policy. It should be noted that it is only at step 4 of the policy that rejection of the proposal by the Deputy Minister is provided for in the policy. Certainly, the Minister considered that the policy would be followed in dealing with applications for new bands as the then Minister stated in part in a letter to Roger Sark dated October 8, 1999:
The Department of Indian Affairs and Northern Development (DIAND) can consider recognizing a group as a "Band" under the Indian Act only if the group meets the requirements of the New Bands/Band Amalgamations Policy. I am enclosing a copy of the policy for your information.
[21] In Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, Madame Justice L'Heureux-Dubé stated at pages 840 to 844:
Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra. At p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: . . .
In the present case, the applicants could expect that, at the very minimum, the policy respecting new bands would be followed as the former Minister indicated it would be followed.
[22] For the above reasons, I am of the opinion that a breach of the duty of procedural fairness has occurred in that, at the very minimum, the applicants' application has not been dealt with in accordance with the policy which the department has established to deal with applications such as the current application. The applicants, at the very minimum, are entitled to have their application dealt with according to the policy established for that purpose. The actual decision that may result is not my concern in this application. Because of the decision I have reached, it is not necessary to deal with the issue of prejudgment. I might add, however, that remarks such as were made in the present case could create an appearance of prejudgment, especially if the remarks are made without any reference to the processing of the policy through the steps outlined in the policy.
[23] Again, because of my decision that the policy has not been applied as it should have been to this application, it is difficult to determine whether or not the Minister or his delegate fettered their discretion. Certainly, to the extent that the process of the policy was not completed in this case, the Minister or his delegate have fettered their discretion. I make no comment as to whether or not the policy itself fetters the Minister's or his delegate's authority.
[24] Issue 7
Did the Minister or his delegate err in law by failing to provide any or any adequate reasons for denying the petition?
The applicants have argued that it was a breach of the duty of procedural fairness not to give reasons for the decision in this case. The argument was based on the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), supra. I have reviewed that case and I have come to the conclusion that in the present case, if reasons were required, then the reasons for the decision can be gleaned from the correspondence. It is obvious that the respondent did not send the application forward because it simply did not support the establishment of new bands by the division of an existing band.
[25] The application for judicial review is allowed and the application should be determined in accordance with the provisions of the Indian Act, supra and the provisions of any valid policy. The applicants shall have their costs of the application.
ORDER
IT IS ORDERED THAT:
1. The application for judicial review is allowed and the application should be determined in accordance with the provisions of the Indian Act, supra and the provisions of any valid policy. The applicants shall have their costs of the application.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
October 31, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1028-00
STYLE OF CAUSE: ROGER SARK ET AL
- and -
ABEGWEIT BAND COUNCIL ET AL
PLACE OF HEARING: CHARLOTTETOWN, PRINCE EDWARD ISLAND
DATE OF HEARING: FRIDAY, MAY 11, 2001
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, OCTOBER 31, 2001
APPEARANCES:
Mr. Paul D. Michael, Q.C.
Mr. Shawn Kelly
FOR THE APPLICANTS
Mr. Jonathan Tarlton
Ms. Marie Scagliola
FOR THE RESPONDENTS, MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND ATTORNEY GENERAL OF CANADA
Mr. Brian McKenna
FOR THE RESPONDENT, ABEGWEIT BAND COUNCIL
SOLICITORS OF RECORD:
Campbell, Lea, Michael, McConnell & Pigot
15 Queen Street
Charlottetown, P.E.I. C1A 4A2
FOR THE APPLICANTS
Department of Justice - Canada
5251 Duke Street
Halifax, Nova Scotia B3J 1P3
Diamond McKenna
224 Queen Street
Charlottetown, P.E.I. C1A 7K2
FOR THE RESPONDENTS
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011031
Docket: T-1028-00
BETWEEN:
ROGER SARK, REGINALD BERNARD,
SHEILA BERNARD, JAMES SARK, JR.,
MARY CATHERINE SARK, KELLY BERNARD,
BRIAN FRANCIS, CAROLYN SARK,
GEORGINA FRANCIS, BENNY SARK,
DANNY SARK, JENENE SARK,
KATERI FRANCIS, JIM SARK
Applicants
- and -
ABEGWEIT BAND COUNCIL AS REPRESENTED
BY CHIEF FRANCIS JADIS,
COUNCILLOR JOSEPH JADIS and
COUNCILLOR DANNY LEVI and
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER