Federal Court Decisions

Date: 20040930

Docket: T-686-03

Citation: 2004 FC 1342

Ottawa, Ontario, this 30th day of September, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                            ROY LITTLE CHIEF

                                                                                                                                            Applicant

                                                                         - and -

THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,

HON. ROBERT D. NAULT, PC. MP, AND THE CHIEF AND COUNCIL OF THE

SIKSIKA NATION FROM TIME TO TIME AND CHIEF ADRIAN STIMSON SR., CHIEF OF THE SIKSIKA NATION, AND MORRIS RUNNING RABBIT,

GERALD SITTING EAGLE, RUTH SCALP LOCK, JANICE DOORE,

KENDALL PANTHER BONE, SCOTTY MANY GUNS, LEONARD GOOD EAGLE, JASON DOORE, ELDON WEASEL CHILD, CLIFFORD MANY GUNS,

AND DEBBIE SMITH, COUNCILLORS OF THE SIKSIKA NATION

ON THEIR OWN BEHALF AND AS REPRESENTATIVES

OF THE SIKSIKA NATION COUNCIL

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                On February 4th and 5th, 2003, a referendum of the Siksika Nation was held pursuant to the Indian Referendum Regulations, C.R.C. c. 957, as amended by S.O.R./2000-392, to approve the terms of a proposed land claim settlement, the surrender of that land pursuant to subsection 39(1) of the Indian Act, R.S.C. 1985, c. I-5 and the establishment of a trust for the settlement funds.

[2]                This proceeding is an application, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, for judicial review of the March 31, 2003 decision of the Minister of Indian Affairs and Northern Development that the complaints raised by the applicant were insufficient to call into question the validity of that referendum.

[3]                The applicant requests an order setting aside the Minister's decision and referring the matter back for re-determination in accordance with this Court's directions.

Background

[4]                The applicant, Roy Little Chief (the "applicant") is a member of the Siksika Nation, a band that resides on Siksika Indian Reserve No. 146.

[5]                In the 1960s, the Siksika Nation commenced a claim against the federal Crown alleging, inter alia, that in 1910 approximately 12,522 acres of reserve land were taken from the band contrary to the provisions of Treaty 7, the provisions of the Indian Act then in force, and the Crown's fiduciary duties. This claim, referred to by the parties as the "Acreage Discrepancy Claim", was part of a larger land claim relating to more than 115,000 acres of Siksika reserve land.

[6]                In 1982, the Siksika Nation agreed to present its claims to the Department of Indian Affairs and Northern Development for consideration under the Crown's Specific Claims Policy. In the early 1990s, the Acreage Discrepancy Claim was accepted for negotiation on the basis that the Crown had breached its fiduciary obligation to the Siksika Nation. In 2000, the members of the Siksika Nation ratified a settlement that dealt with the sub-surface mineral portion of its claim.

[7]                In May 2000, the Siksika Nation and the Crown began negotiating the surface portion of the band's claim. An agreement in principle was reached in June 2002. Arrangements were made to conduct a referendum of the Siksika Nation to ratify the agreement.

[8]                In a letter dated January 29, 2003, the applicant wrote to the Department of Indian Affairs and Northern Development, as well as the chief and council of the Siksika Nation, asking that the referendum, scheduled for February 4th and 5th, 2003 be cancelled or deferred because of the following alleged irregularities:

1.          The referendum asked a single question covering two distinct questions, contrary to parliamentary law and principles of clarity;

2.          The Regulations' notice requirements were not met;

3.          Band members were offered money if they showed up and voted, which is a corrupt practice;

4.          Band members were not fully informed about the subject matter of the referendum; and

5.          Band members were threatened, intimidated or unduly influenced by being warned that if they did not approve the agreements this time, it would be ten years before they would be given the chance to negotiate with the Department of Indian Affairs and Northern Development again.

[9]                Pursuant to the provisions of the Indian Referendum Regulations, C.R.C. c. 957 (the "Regulations") a ratification vote of the proposed agreement, entitled the "Acreage Discrepancy (Surface) Claim Settlement Agreement" and accompanying "Siksika Trust Agreement" (together referred to as the "Settlement and Trust Agreements") went ahead on February 4th and 5th, 2003.

[10]            The question on the ballot was:

DO YOU:

Approve and assent to the terms and conditions set out in the Settlement Agreement dated for reference the 10^th day of December 2002, including the absolute and unconditional Surrender of the Claim Lands pursuant to sections 38(1), 39 and 40 of the Indian Act, and authorize the Council and succeeding Councils of the Siksika Nation to sign all documents necessary to give effect to the Settlement Agreement on behalf of the Siksika Nation;

AND

Approve the terms and conditions set out in the Siksika Trust Agreement dated for reference 10^th day of December 2002 and authorize the Council and all succeeding Councils of the Siksika Nation to sign all documents necessary to give effect to the Siksika Trust Agreement on behalf of the Siksika Nation? [emphasis in orginal]

Voters then had the opportunity to vote "yes" or "no" to this paired set of questions. Voting was held on the reserve, as well as off the reserve at a Calgary, Alberta community centre.

[11]            The results of the referendum showed that a large majority of the band supported ratification of the Settlement and Trust Agreements. According to electoral officer Lisa Balsillie, 85.5% of voters supported the ratification, while 12.6% opposed. Voter turnout was 83% of those eligible to cast a ballot.

[12]            On February 11, 2003, the applicant wrote to the Minister of Indian Affairs and Northern Development seeking to have the referendum reviewed and declared invalid pursuant to sections 22 and 23 of the Regulations due to alleged irregularities and corrupt practices in the referendum process. The applicant expressed the same areas of concern set out in his letter of January 29, 2003.

[13]            On March 7, 2003, the applicant sent the Minister a letter alleging as a further irregularity in the referendum process, that ballots had been counted between the first and second day of voting. In the applicant's view, counting ballots before the conclusion of voting was a breach of well-known voting protocols that voided the results of the vote.

[14]            In a letter dated March 31, 2003, the Minister refused the applicant's request for a review of the referendum. The letter stated as follows:

I wish to inform you that I have considered your request for a review of the Referendum held for the Siksika Acreage Discrepancy (Surface) Claim Settlement Agreement and Trust Agreement Vote, held on February 5, 2003, in accordance with Section 22 of the Indian Referendum Regulations (the "Regulations"). Upon review of your letter dated February 11, 2003 and the accompanying Statutory Declaration of Roy Little Chief, dated February 11, 2003, I have concluded that your request does not establish:

(a) that there was a contravention of the Regulations that may affect the results of the referendum; or

(b) that there was corrupt practice in connection with the referendum.

As a result, I have concluded in accordance with Section 23 of the Indian Referendum Regulations that there is not sufficient information to call into question the validity of the above noted referendum.

[15]            On April 30, 2003 the applicant filed this application for judicial review, asking that the Minister's decision be set aside. He named as respondents to this proceeding the Minister whose decision is being challenged, as well as the Chief and Council of the Siksika Nation. Chief Adrian Stimson Sr. and each Councillor of the Siksika Nation were also named personally as respondents.

[16]            At the hearing of this matter, two sets of respondents appeared before me to counter the applicant's position. First, the Minister of Indian Affairs and Northern Development was represented by the Department of Justice. Secondly, the Chief and Council of the Siksika Nation, as well as each individually named councillor were collectively represented by private counsel. In these reasons, I shall refer to the respondent Minister of Indian Affairs and Northern Development as "the Minister" and the remaining respondents as "the Siksika Nation".

[17]            This proceeding is the judicial review of the Minister's March 31, 2003 decision that there was insufficient information to call into question the validity of the Settlement and Trust Agreements referendum.

Applicant's Submissions

[18]            The applicant submits that his letter dated February 11, 2003, which described five areas of concern regarding the referendum, provided more than enough information to meet the statutory standard of being "sufficient" to call into question the validity of the referendum and therefore the Minister was obliged to report to the Governor in Council. The applicant characterizes the standard of proof set out in section 23 of the Regulations as relatively low, therefore it is submitted that the Minister was incorrect to refuse to find that the validity of the referendum was called into question.

[19]            The applicant states that the following allegations were before the Minister regarding improprieties in the referendum:

1.          The Referendum Question: The referendum question was improper because it linked two questions. Voters either had to accept both the Settlement Agreement and the Trust Agreement, or reject both. The applicant states that asking a double question is contrary to Robert's Rules of Order and parliamentary law. In his submission, it was reasonable to have a separate vote on the two agreements, since some band members may be satisfied with one but not the other.

2.          The Referendum Notice: The applicant alleged that the notice requirements found in subsection 4.2(1) of the Regulations were not complied with. Only one notice was posted before the relevant deadline and it did not meet the requirements of the Regulations.

3.          Payment for Voting: The applicant states that it was a corrupt practice for voters to be told they would receive $100 per person on voting day and $1,500 in May 2003 if the Settlement and Trust Agreements were ratified. The applicant alleges this arrangement was an attempt to influence the vote, and therefore voids the results.

4.          Band Members Not Fully Informed: For a valid surrender of reserve land, the voters must be fully informed. The applicant submits that copies of the appraisal documents relating to the Settlement Agreement and Trust Agreements were not available for viewing at the Siksika Nation's administration offices, were later made available but not satisfactorily, and band members were only provided with a misleading, simplistic handout regarding the agreements.

5.          Warning was a Corrupt Practice: The applicant states that band members being told that if they did not ratify the Settlement and Trust Agreements now, negotiations could not begin again for ten years constitutes a "threat, intimidation or undue influence" which constitutes a corrupt practice.

[20]            The applicant submits that a low level of deference should be afforded to the Minister's decision, since it was not a quasi-judicial decision and was not made in a manner that allowed the applicant to know the case he was required to meet.

[21]            Applying the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, as quoted by Muldoon J. in Grand Rapids First Nation v. Nasikapow (2000), 197 F.T.R. 184 (T.D.) at paragraph 37, the applicant argues that the Minister owed him a high degree of procedural fairness, which was breached in the circumstances of this case. The applicant points to the following factors which militate in favour of requiring a high level of procedural safeguards: the decision in question is of great personal importance to the applicant, he had a legitimate expectation that some sort of hearing or rebuttal would be provided for before the Minister made his decision, and no particular procedure has been chosen by the Minister for dealing with objections made under section 22 of the Regulations. Consequently, the applicant argues that the Minister's decision should be set aside because it was made in breach of the rules of procedural fairness and natural justice.

[22]            Relying on Lavallee v. Louison, [1999] F.C.J. No. 1350 (T.D.)(QL) and Preston Sound v. Swan River Nation (2003), 237 F.T.R. 74, 2003 FC 850, the applicant submits that he should have been provided with any evidence of the electoral officer, or any other party who provided information to the Minister, which contradicted his allegations and he should have been given an opportunity to respond.

[23]            The applicant further submits that the Minister failed to give reasons for his decision, which constitutes a breach of the duty of fairness owed to him in the circumstances. The applicant submits that the decision letter of March 31, 2003 refers only to his materials, which prima facie was sufficient to call into question the validity of the referendum. For the Minister to have decided otherwise, in the applicant's view, establishes that the decision must have been made without regard to the available evidence. Alternatively, if other sources were consulted, the applicant relies on his arguments regarding the duty of fairness since no contradictory information was provided to him.

Minister's Submissions

[24]            The Minister relies on the statutory declaration and affidavit of Lisa Balsillie, an employee of Indian Affairs and Northern Development Canada who was the electoral officer responsible for the Siksika referendum.

[25]            The Minister states that in accordance with subsection 22(3) the Regulations, the applicant's request for a review of the referendum was sent to Ms. Balsillie. In accordance with subsection 22(4) of the Regulations, Ms. Balsillie forwarded on February 21, 2003 a statutory declaration responding to the grounds raised by the applicant. The Minister also states that in reaching his decision, documents protected by solicitor-client privilege and/or cabinet confidence were consulted.

[26]            The Minister submits that all procedural requirements were met in this case and a reasonable decision was made, therefore this application for judicial review should be dismissed.

[27]            On the issue of procedural fairness, the Minister states that the content of the duty of fairness varies from case to case and depends on the legislative scheme in question. Applying the Baker, supra, factors, the Minister points out that its decision was far from judicial, and the simple two-step procedure set out in the legislation was followed on the facts of this case. The Minister denies that an oral hearing was required or is even anticipated by the legislation.

[28]            Relying on the factors set out in Cochrane v. Canada (Minister of Indian Affairs and Northern Development) (1988), 93 N.R. 35 (F.C.A.), the Minister submits it met the duty of fairness owed to the applicant in this case. Nothing in the legislation suggests a hearing is required, the nature of the decision does not significantly impact the applicant, and requesting a review is not adversarial in nature. Given these factors, the Minister submits that as a low level of procedural fairness was required in the circumstances, no breach of fairness occurred.

[29]            In the Minister's view, no opportunity for reply or a hearing was required. Its only duty was to allow the applicant to make initial written submissions requesting the review, which was done.

[30]            The Minister disputes that its decision should be set aside for failure to give reasons. Citing Mensinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.D.), the Minister submits that there is no universal requirement for decision-makers to give reasons and such a requirement would not be appropriate in this case, given the expedient administrative model under the Regulations.

[31]            The Minister submits that its substantive decision that there was insufficient evidence to call into question the validity of the referendum should be reviewed on a standard of reasonableness or patent unreasonableness, given the four balancing factors set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19. Although the Regulations contain no privative clause protecting the Minister's decision, it is submitted that the broad policy goals of the Indian Act, supra, and the Regulations suggest a less searching standard of review. The issue was a factually-based polycentric one without a legal component and the Minister has greater expertise in such matters than the Court.

[32]            The Minister states that the applicant's allegations of irregularities surrounding the referendum were speculative at best. It is submitted that the Minister properly considered the evidence of the applicant, and the responding information from the electoral officer responsible for the referendum and reasonably reached the conclusion that there was insufficient evidence to call into question the validity of the vote. With respect to each area of the applicant's allegations, the Minister submits the following:

1.          The Referendum Question: It was proper to ask for acceptance or rejection of both the Settlement Agreement and Trust Agreement because the two were inextricably linked. The latter could only exist with the former, and to separate the questions could create two incomplete questions for the referendum.

2.          The Referendum Notice: The Minister relies on the affidavit of electoral officer Ms. Balsillie, which sets out the manner in which the notice requirements of Regulation 4.2 were met, including the notice of the vote being posted on December 20, 2002 at various locations both on and off reserve. The only information to the contrary was the applicant's unsubstantiated statement that to the best of his knowledge, the notice requirements were not met. The Minister therefore determined that there was insufficient information to conclude that the Regulations had been breached.

3.          Payment for Voting: The Minister states that the payment of money to band members was not done with the intention of corrupting the vote, but was permitted by the Indian Act, supra, as a legal and valid practice under section 64 as a per capita distribution. The $100 per capita distribution was given to all Siksika band members regardless of how they voted, or whether they voted at all. The payment, therefore, cannot be characterized as an inducement. The Minister states that it is common for bands to make per capita distributions, which have not amounted to a corrupt practice in the past.

4.          Band Members not Fully Informed: Relying on the affidavit and statutory declaration of Lisa Balsillie, the Minister states that the requirement of Regulation 4.3 to hold at least one information meeting was met.

5.          Warning was a Corrupt Practice: Relying on the affidavit of Joe Weasel Child, land claims manager for the Siksika Nation, the Minister states that the statements regarding further delays in the event of a "no" vote on the referendum were made in order to fully inform band members of the options and risks associated with each possible outcome of the vote. The Minister denies that any threats, intimidation or undue influence was exerted at the information meetings and that the statements relied upon by the applicant are taken out of context. The Minister further states that outlining the consequences of a "no" vote was necessary to fully inform band members, and does not constitute a corrupt practice that could call into question the validity of the referendum.

[33]            Based on these arguments, the Minister argues that the applicant has not established any breach of procedural fairness, nor has he established grounds upon which its decision could be set aside, given the highly deferential stance this Court should take to the decision being challenged in this proceeding.

[34]            The Minister requests that this application be dismissed with costs.

Siksika Nation's Submissions

[35]            The Siksika Nation submits that when the Indian Act, supra, and the Regulations are read together, it is clear that Parliament intended to grant the Minister complete discretion to decide, based on the materials submitted by a complainant, such as the applicant, and the electoral officer, whether the validity of a referendum was called into question. If so, the Minister is obliged to report to the Governor in Council, who has the discretion to withhold its consent to the proposed surrender of land.

[36]            In the Siksika Nation's submission, it is significant that the Regulations do not establish an independent administrative tribunal to deal with alleged irregularities in referenda. Instead, the review process contemplated by the Regulations is a very simple one, that does not anticipate a hearing or reply submissions. The Siksika Nation submits, therefore, that the applicant's arguments regarding a breach of procedural fairness are without merit.

[37]            Comparing sections 22 and 23 of the Regulations with a similar review process in Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, the Siksika Nation argues that this Court's power to review the Minister's decision should be confined to a "basic jurisdictional supervisory role", to simply determine whether the function delegated by the legislation was performed. Providing that the matter is within the jurisdiction of the Minister, the Siksika Nation argues that the resulting decision should be insulated from judicial review.

[38]            The Siksika Nation submits that the referendum review process triggered by the applicant is only one part of the checks and balances at work in the land claim settlement process. The will of the band members should not be overturned in the absence of cogent and compelling evidence of corrupt practices in the referendum. Since the applicant has not questioned the jurisdiction of the Minister to make his decision, the Siksika Nation states that the decision is therefore not reviewable.

[39]            Alternatively, the Siksika Nation submits that the standard of review to be applied in this case, taking into account the pragmatic and functional approach set out in Baker, supra, and the practical consequences of overturning the decision, should be patent unreasonableness.

[40]            Furthermore, the Siksika Nation states that this case does not disclose sufficient grounds for this Court to grant the extraordinary prerogative remedies sought by the applicant.

[41]            The Siksika Nation submits that the legal test for calling into question the validity of the referendum should be that a "preponderance of evidence submitted by the party challenging the referendum should be sufficient to show that there were sufficient irregularities that are likely to materially affect the result of the referendum". It is further argued that the onus of proving the irregularities should lie with the applicant, who should also bear the onus of proving any such irregularities materially affected the vote.

[42]            The Siksika Nation submits that even if all of the irregularities alleged by the applicant took place, it has not been established that they materially affected the referendum results.

[43]            The Siksika Nation cautions this Court against too readily applying legal principles from election cases to the facts at bar, a referendum case, because the standards are necessarily different. The Siksika Nation submits that in the case of a land surrender, the true test is whether the object of the Indian Act, supra, has been met, even if technically speaking, the statutory requirements were not met. In this case, it is submitted that the object of the Indian Act, supra, has been met and the Siksika Nation's overwhelming support for ratification of the Settlement and Trust Agreements should be respected.

[44]            With respect to each area of the applicant's allegations, the Siksika Nation submits the following:

1.          The Referendum Question: It was proper to ask for acceptance or rejection of both the Settlement Agreement and Trust Agreement because the two were a package. Article 9.1 of the Settlement Agreement clearly states that a Trust Agreement was necessary. It was in the best interests of band members to also ratify the Trust Agreement, which provides for the investment and disbursement of funds for the benefit of all band members. Even if improper, there is no basis for setting aside a referendum for asking a double question. The case law cited by the applicant is distinguishable and no evidence was tendered that any voter found the question confusing.

2.          The Referendum Notice: The Siksika Nation states that the affidavit of Lisa Balsillie gives full answer to the applicant's allegations regarding insufficiency of notice. It is submitted that an adverse inference should be drawn from the applicant's failure to cross-examine Ms. Balsillie or to offer rebuttal evidence.

3.          Payment for Voting: The Siksika Nation submits that a referendum is more akin to a commercial transaction than an election, and giving valuable consideration is entirely appropriate in this case. Furthermore, paragraph 64(1)(a) of the Indian Act, supra, expressly authorizes per capita distributions to band members in the case of the sale of surrendered land and has been customarily done in the context of land claim settlement. Even if the payment was prima facie improper, the Siksika Nation argues that the applicant should bear a higher onus of proof to prove that the payments were a corrupt practice, given that the allegation can be equated to alleging fraud or bribery. Especially since the applicant has named the band chief and councillors in their personal capacity, it is submitted that the applicant should be required to provide proof beyond a reasonable doubt or at least strict proof in support of the allegations of corrupt practices. In the Siksika Nation's view, the applicant's argument leads to the absurd result that every band member would be guilty of a corrupt practice, since recipients of a payment are also guilty of the corrupt practice. Given the high standard of proof that the applicant was required to meet, it is submitted that in the case at bar, the Minister did not err in finding that there was insufficient evidence of any corrupt practice.

4.          Band Members not Fully Informed: Relying on the affidavit and statutory declaration of Lisa Balsillie, the Siksika Nation states that far more than the requirements of the Regulations was done to inform band members about the referendum issues. Legal counsel for the Siksika Nation offered to meet privately with anyone who wished to review aspects of the agreements, or to see the appraisal documents, and a number of information meetings were held to present information and answer any questions raised by band members.

5.          Warning was a Corrupt Practice: It is not denied that the statements alleged by the applicant were made. The Siksika Nation submits that explaining to band members that a "no" vote could set back the negotiation process by ten years was necessary in order to ensure that voters were fully informed of the risks of not accepting the settlement. The Siksika Nation denies that such statements constitute a threat, intimidation or undue influence. Neither the applicant, nor any other voter, has stated that they were intimidated or that the outcome of the referendum was materially affected.

[45]            The Siksika Nation also denies that the Minister's decision was made in breach of the duty of fairness owed to the applicant. The Baker, supra, factors suggest only minimal procedural protections were required by the duty of fairness, so it was not a breach of natural justice for the decision to be made without a hearing or a chance of reply. Furthermore, the Siksika Nation argues that there is no common-law duty to provide reasons for decision. Since the Regulations do not require the Minister to provide even written notice of his decision, let alone reasons for it, the Siksika Nation argues that the applicant's arguments regarding failure to provide reasons vitiating the decision are without foundation.

[46]            Finally, the Siksika Nation denies that the Minister's decision was based on erroneous findings of fact made in a perverse or capricious manner.

[47]            The Siksika Nation requests that this application for judicial review be dismissed.

Issues

[48]            1.         Did the Minister breach the duty of fairness owed to the applicant in the

circumstances?

2.          Has the applicant established any other basis for setting aside the Minister's decision under section 23 of the Indian Referendum Regulations, supra?

Relevant Legislative Provisions

[49]            The relevant sections of the Indian Act, supra, state:

[50]            The relevant sections of the Indian Referendum Regulations, supra, state:

Analysis and Decision

[51]            Issue 1

Did the Minister breach the duty of fairness owed to the applicant in the

circumstances?

The applicant bases much of his argument on an alleged breach of the duty of fairness. It was procedurally unfair, in his view, that the Minister did not hold a hearing into the matter or provide him with at least a summary of the electoral officer's response to his request for a review and allow reply submissions. The applicant also alleges that the decision should be set aside because the decision letter did not contain any reasons for the decision.

[52]            All of the parties seem to agree that the duty of fairness applies to the Minister's decision. Where they part ways is in stating how extensive that duty is. Therefore, the first issue in deciding whether the Minister breached the duty of fairness owed to the applicant is determining the extent of that duty in this case. Only then can it be determined whether the Minister granted the applicant insufficient participatory rights (hold a hearing, disclose contradictory evidence and give the applicant the opportunity to reply), and whether a duty to give reasons existed.

[53]            I am guided by the words of L'Heureux-Dubé J. in Baker, supra, at paragraphs 21 through 28 regarding the factors to be considered in determining the content of the duty of procedural fairness in a given case:

The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J.

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that "the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making". The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J.

A second factor is the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates": Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67.

A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its [page839] impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113:

A high standard of justice is required when the right to continue in one's profession or employment is at stake ... . A disciplinary suspension can have grave and permanent consequences upon a professional career.

As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667:

In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people's lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it "judicial" in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.

The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.

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 [page840] of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, "Legitimate Expectation and its Application to Canadian Immigration Law" (1992), 8 J.L. & Social Pol'y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J.

I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed [page841] respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[54]            Applying these factors to the case at bar, I am of the view that only minimal procedural protections were required for the Minister's decision to be made fairly. Under the first Baker, supra, factor, the decision being made did not resemble the judicial process. Sections 22 and 23 of the Regulations provide an extraordinary route for those who object to a referendum to petition the Minister that the results are invalid either because of a breach of the Regulations or due to a corrupt practice. The Minister's role is to inform the Governor in Council if there is sufficient evidence that the referendum results are invalid, so that the Governor in Council may then exercise its discretion to withhold consent to the land surrender at issue. None of this procedure resembles either judicial decision making or the adversarial court process, suggesting that a lower level of procedural safeguards are warranted.

[55]            Under the second Baker, supra, factor, the nature of the statutory scheme suggests that the Minister is not obliged to afford high level participatory rights or other procedural safeguards. The provisions of the Regulations anticipate that the applicant may submit a declaration, that the electoral officer involved replies to the issues raised and the Minister then makes a decision. Not only do the Regulations not provide for hearings, disclosure of submissions or reasons, they expressly anticipate that the Minister will make his decision based on evidence other than what the complaining party and electoral officer put before him, without any requirement to disclose it to obtain responses from the complainant or the electoral officer involved. Section 23 states that:

[w]here the material referred to in section 22 or any other information in the possession of the Minister is sufficient to call into question the validity of the referendum, the Minister shall advise the Governor in Council accordingly.

[56]            It is clear, therefore, that the legislative scheme assigns a discretionary screening role to the Minister, which Parliament did not intend to be restricted by specific requirements of procedural fairness.

[57]            The third Baker, supra, factor also suggests a more relaxed duty of fairness. The applicant is not losing his livelihood or being professionally disciplined. Instead, the referendum was aimed at the communal aboriginal interest in land, not an individual legal right of the applicant. This factor suggests less rather than more extensive procedural protections.

[58]            The fourth factor from Baker, supra, also does not assist the applicant. There is no evidence before this Court that the Minister or his department ever represented to the applicant that greater procedural protections would be afforded, or that the referendum vote would be set aside. The applicant's arguments on this point may state that he had "expectations" that there would be a hearing or greater disclosure, but do not establish any "legitimate" basis for those hopes.

[59]            The fifth factor examines the Minister's choice of procedure. It appears that the Minister has not established an extensive procedure, even to the point of not providing reasons for his decision. The Regulations are silent as to what procedures are to be followed, beyond minimal requirements regarding time lines and that certain items must be in writing. Although this factor is not determinative, in this case it suggests more relaxed procedural requirements.

[60]            Taken together, it is my view that the analytical framework set out in Baker, supra, leads to the conclusion that the duty of fairness required that only minimal procedural safeguards be provided to the applicant in this case. The Regulations obliged the Minister to seek a response from the electoral officer within a certain time frame and for the Minister to decide whether the evidence was sufficient to call into question the validity of the referendum, but not to order a hearing or provide cross-disclosure of materials.

[61]            It is also my view that the Minister was not under a duty to provide the applicant with reasons for its decision. While I acknowledge that the common law has evolved to the point where decision makers in some circumstances may be required to provide written reasons even where not obliged by statute (see Baker, supra, at paragraph 43), this is not one of those circumstances. The factors already discussed indicate that a low level of procedural safeguards are required to be provided by the Minister. The decision being made is not one that strongly impacts the individual, core interests of the applicant. Rather, the Regulations provide a last opportunity for issues of concern regarding a referendum to be raised with the Minister, who is obliged to consider the matter and advise the Governor in Council if the concerns are warranted. While the applicant certainly has an interest in ensuring the validity of the referendum, the broader purpose is to protect the referendum itself as a valid expression of the voters' will. The focus of this scheme is distinguishable from that in cases cited by the applicant where reasons and more extensive procedural safeguards were required.

[62]            It is my view, therefore, that the Minister met the applicable duty of fairness.

[63]            Issue 2

Has the applicant established any other basis for setting aside the Minister's decision under section 23 of the Indian Referendum Regulations, supra?

The applicant has also raised other arguments as to why the Minister's decision should be set aside. The decision of the Minister was a highly discretionary decision. The first determination that must be made is what standard of review is to be applied when reviewing the remaining points raised by the applicant. In Baker, supra, L'Heureux-Dubé J. at pages 57 to 61 outlined the factors to be considered when applying the pragmatic and functional approaches to determine the appropriate standard of review. The factors are: 1) the presence or absence of a privative clause; 2) the expertise of the decision-maker; 3) the purpose of the provision in particular; and 4) the nature of the problem in question, especially whether it relates to the determination of law or facts. I will now apply each of these factors to this case.

[64]            The Presence or Absence of a Privative Clause

No privative clause is present in the case at bar. The absence of a privative clause does not imply a high standard of scrutiny if the other factors point to a low standard. This legislation is silent on the question of review. Silence is neutral (see Dr. Q., supra).

[65]            The Expertise of the Decision-Maker

The decision-maker here is the Minister of Indian Affairs and Northern Development. It is to be presumed that as the Minister responsible for the application of the legislation in question, the Minister would have expertise in the application of the legislation with respect to referenda. This factor favours greater deference.

[66]            The Purpose of the Provision in Particular and of the Act as a Whole

The Indian Referendum Regulations, supra, as a whole, define in detail the requirements for a valid referendum. Regulation 23 allows the Minister to base his decision on the material referred to in section 22 of the Regulations or any other material in the possession of the Minister. This broad discretion given to the Minister suggests that greater deference should be afforded to his decision.

[67]            The Nature of the Problem in Question, Especially Whether it Relates to the Determination of Law or Facts

The improprieties raised by the applicant, with respect to the referendum, are either questions of fact or questions of mixed law and fact. This would tend to favour greater deference.

[68]            After a balancing of all of these factors, I am of the opinion that the appropriate standard of review is that of reasonableness simpliciter.

[69]            The Referendum Question

The applicant argued that the referendum question was improper because it linked two questions. The voters had to accept the Settlement Agreement and the Trust Agreement or reject both. The applicant submitted that there should have been a separate vote on the two agreements. I have reviewed the question on the ballot and even if it is a double question, there is nothing in the Indian Act, supra, or the Regulations prohibiting a double question. Further, the Trust Agreement is tied to the Settlement Agreement. Article 9.1 of the Settlement Agreement states that a condition precedent to Canada executing the agreement was that the Siksika must draft a trust agreement that is satisfactory to Canada. The Trust Agreement should be approved by the band members. It is also significant to note that the applicant did not suggest prior to the vote that the question was confusing (affidavit of Joe Weasel Child at paragraph 15). In my view, the referendum question was not improper.

[70]            The Referendum Notice

The applicant submitted that only one notice was posted before the relevant deadline and thus, the requirements of the Regulations were not met. I have reviewed the statutory declaration of Roy Little Chief and in particular, paragraph 7 in which he declares in part that "To the best of my knowledge the only notice that was posted prior to December 24, 2002 was the one attached hereto and marked Exhibit "A" to this Statutory Declaration." However, a review of the statutory declaration of Lisa Balsillie would appear to provide a complete answer to this objection. It should be noted that Roy Little Chief's statement was "to the best of my knowledge". There was no such condition contained in the statements of Lisa Balsillie on this issue.

[71]            Payment for Voting

The applicant stated at paragraphs 24 to 26 of his memorandum of fact and law:

Band members were told that they would receive $100 per person on voting day and $1,500 in May from another fund (not from the Settlement) if the Settlement and Trust are ratified (the "Payment").

Mr. Little Chief deposes at paragraph 9 of his Statutory Declaration:

"I attended the first meeting on January 9, 2003 at the Coast Plaza Hotel in Calgary. At that meeting, Eldon Weasel Child, who is a member of the Siksika Nation Council and also a member of the Acreage Discrepancy Claim Negotiating Team, said during the meeting to the Band members present that each Band member would receive $100.00 on voting day and $1,500.00 in May from another fund, not from the settlement, if the settlement and trust were ratified. I interpreted this as an obvious attempt by Eldon Weasel Child to influence the referendum vote."

It is a well-known principal of law that giving electors money or other consideration to induce them to vote a particular way or to reward them for having done so is a "corrupt practice" and may lead to the election (or vote on a question) being voided (Campbell v. Grieve (1892), 20 S.C.R. 331 (S.C.C.); Gallery v. Darlington (1906), 37 S.C.R. 563 (S.C.C.); Sideleau v. Davidson, [1942] 3 D.L.R. 609 (S.C.C.); Canada Elections Act; Alberta Elections Act; Alberta Local Authorities Act).

[72]            I have reviewed the facts surrounding the payments and I am not persuaded that either payment was an attempt to influence the vote or a corrupt practice. The Band members were told that if they voted to ratify the Settlement Agreement and Trust Agreement, each Band member would receive the payments. There was no requirement for a Band member to vote in order to receive the payments. If the Settlement Agreement and Trust Agreement were ratified every Band member regardless of whether they voted or not, received the payments. I would note that the payments were a disposition of the funds which belonged to all of the Band members. In election "corrupt practices" cases the situation is different as a candidate is providing funds not belonging to the voter, to the voter, to entice the voter either to vote or to vote a certain way.

[73]            Band Members not Fully Informed

With respect to this allegation, paragraph 15 of Joe Weasel Child's affidavit states:

In paragraph 13 of Mr. Little Chief's Statutory Declaration, he states that he attempted to view copies of the Appraisal and Loss Use Studies at the Siksika Tribal Administration Office but was unable to as they were not available and he therefore had to rely on a "simplistic handout". The following facts demonstrate that his assertion is simply not true:

(a)            As stated in the letter of Chief Stimson, the studies were available at the Siksika Land

Claims Office after January 17, 2003 but neither myself nor any of my staff were ever contacted by Mr. Little Chief to review the studies;

(b)           Mr. Ron Maurice, legal counsel for Siksika stated at several community information

meetings that the studies were available for review in his offices in Calgary, and that he would meet with any member that wished to review the studies. To this end and at the request of certain members following the first information meetings on January 9, 2003, I made arrangements for a special meeting for members to meet with Mr. Maurice at his offices on January 17, 2003 to review relevant documents and studies and to discuss questions relating to the proposed settlement and trust agreements but not a single member showed up for the meeting;

(c)            I have been informed by Mr. Maurice and do verily believe that he spoke directly with

Mr. Little Chief after the January 21, 2003 information meeting in Calgary and Mr. Maurice suggested that Mr. Little Chief could attend at Mr. Maurice's office at any time to review and inspect the various compensation studies. I am also informed by Mr. Maurice and do believe that he spoke with Mr. Little Chief's wife, Mrs. Linda Little Chief, by telephone on January 14, 2003 and offered to make the studies available to her for review at his offices by appointment at any time and that Mr. Maurice left a message to the same effect on Mrs. Little Chief's telephone during the morning of January 21, 2003. Mr. Maurice informs me and I believe that Mr. and Mrs. Little Chief did not avail themselves of these offers and declined the opportunity to review the studies and fully inform themselves with respect to the surrender and terms of the proposed agreements.

[74]            The evidence shows that information meetings were held on the Siksika Reserve on two occasions and in Calgary on two occasions in the month preceding the referendum. This evidence does not indicate to me that the Band members were not fully informed.

[75]            Warning was a Corrupt Practice

The applicant stated in paragraph 38 of his memorandum of law:

At Paragraph 14 of his Statutory Declaration Mr. Little Chief deposes that Band members were threatened that if they did not ratify this agreement they would not get another chance for 10 more years (the "Warning") as follows:

At the information meeting on January 9, 2003 at the Coast Plaza Hotel in Calgary, to the best of my recollection, Chief Adrian Stimson Sr. Also said that if the agreements were not ratified, there were over 640 other First Nations land claims to be settled across Canada and that, if we didn't settle in accordance with the agreements, our claim would not be negotiated any further by the Federal Government, that we would have to start at the beginning again and this would put us back at least ten years in the negotiation process. I interpreted this as a threat, to settle or else. At the meeting a similar statement was made by Troy Chalifoux, Manager and Senior Negotiator, Claims, Indian and Northern Affairs Canada, Alberta Region.

[76]            I have reviewed these allegations and I am of the view that these statements are not corrupt practices. I take the statements to be an attempt to fully inform the Band members of the realities of what would happen if the Settlement Agreement and Trust Agreement were not ratified. Paragraph 6(h) of the affidavit of Joe Weasel Child confirms my view and it states:

Chief Stimson admitted that in response to questions at the community meetings about what would happen should the settlement and trust be rejected, members were advised that the Siksika Nation would either have to re-initiate negotiations with Canada or resort to litigation. Besides expressing the concern that there is no guarantee Canada would be willing to re-open negotiations, the Siksika Nation's staff and lawyers pointed out certain risks if the claim were rejected, including the possibility that "there may be no financial, economic or social benefits ... for 10 to 15 years, if at all". Chief Stimson noted that its lawyers advised that if Siksika rejected this agreement it is unlikely that Canada would seek a new negotiation mandate and if Siksika were to go to court to try to get a better deal, there are significant risks associated with litigation, not the least of which are limitation periods. Chief Stimson stated that he did not view such statements as threats or warnings, but rather as information regarding alternative courses of action and the consequences of choosing those alternatives which was necessary to assist members to make an informed decision on whether to approve the settlement and trust agreement. Further, it was made clear to members at the community meetings that the decision rests in their hands, and that no one is telling them how to vote.

[77]            In conclusion, I am of the opinion that the applicant has not established any other basis for setting aside the Minister's decision under section 23 of the Indian Referendum Regulations, supra. The application for judicial review is therefore dismissed, with costs to the respondents.

                                               ORDER

[78]            IT IS ORDERED that the application for judicial review is dismissed, with costs to the respondents.

                                                                               "John A. O'Keefe"              

                                                                                                   J.F.C.                     

Ottawa, Ontario

September 30, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-686-03

STYLE OF CAUSE:                                       ROY LITTLE CHIEF

                         v.

THE MINISTER OF INDIAN AFFAIRS AND

NORTHERN DEVELOPMENT et al

PLACE OF HEARING:                                             Calgary, Alberta

DATE OF HEARING:                                               May 18, 2004

REASONS FOR ORDER AND ORDER OF:         O'KEEFE J.

DATED:                                                          September 30, 2004

APPEARANCES:

Mr. Peter Lawless                                             FOR APPLICANT

Mr. Glen D. Jermyn                                           FOR RESPONDENT

MINISTER

Mr. Ron S. Maurice                                          FOR ALL OTHER RESPONDENTS

SOLICITORS OF RECORD:

Johns, Southward, Glazier, Walton & Margetts FOR APPLICANT

Victoria, British Columbia

The Deputy Attorney General for Canada          FOR RESPONDENT

Edmonton, Alberta                                           MINISTER

MacPherson Leslie & Tyerman LLP                  FOR ALL OTHER

Siksika, Alberta                                                 RESPONDENTS