[2002] 3 F.C. 292
T-141-99
2001 FCT 1418
The Registrar of the Indian Register, Indian and Northern Affairs Canada, and The Attorney General of Canada (Applicants)
v.
John Jeremiah Sinclair (Respondent)
Indexed as: Canada (Registrar, Indian Register) v. Sinclair (T.D.)
Trial Division, Lemieux J.—Ottawa, July 5 and December 20, 2001.
Native Peoples — Registration — Respondent Métis, descendant of residents in area covered by Treaty No. 8 — Name added to Indian Register in 1990 under Indian Act, s. 6(1)(f) — Registrar of Indian Register seeking to delete respondent’s name from Register — Referred two questions to Court — First question, whether Registrar would err in deciding respondent not entitled to be registered under Act, previously answered negatively — Second question whether, if answer to first question in negative, Registrar would err in deleting respondent’s name before protest, appeals under Act, ss. 14.2, 14.3 exhausted — Case law on deletion process reviewed — Registrar’s decision to add, delete name under Act, s. 5(3) not binding, of no legal effect — Person entitled to be registered as Indian during protest process stage conducted by Registrar — Registrar’s practice of advising governmental authorities person affected no longer Indian when deletion made, thereby precipitating termination of benefits, error of law — Entitlement to Indian status not decided under s. 5(3), only after protest stage.
The respondent, Sam Sinclair, is a Métis and a descendant of residents in the geographical area now covered by Treaty No. 8. His name was added to the Indian Register in October 1990 under paragraph 6(1)(f) of the Indian Act. However, following an investigation, the Registrar of the Indian Register advised the respondent, on June 1, 1998, of her intention to delete his name from the Register on the ground that his maternal grandmother was no longer deemed to be entitled to registration. In support of his application for an interlocutory injunction prohibiting the Registrar from deleting his name from the Indian Register, the respondent filed an affidavit stating that, if the Registrar was permitted to do so, he would lose the benefits to which he is entitled as a registered Indian and consequently, he would suffer immediate and irreparable harm. On February 4, 1999, an interlocutory injunction was issued by the Associate Chief Justice preventing the deletion of the respondent’s name pending the outcome of the proceedings. The Registrar referred two questions to the Court. The first question, whether she would err in law in deciding that the respondent was not entitled to be registered under the Indian Act, was answered in the negative. The second question was whether, if the answer to the first question was in the negative, the Registrar would err in law in deleting the respondent’s name before the latter had exhausted his protest and appeals under sections 14.2 and 14.3 of the Act. In answering question 2, the issue was whether deletion of the respondent’s name from the Indian Register under subsection 5(3) of the Act prior to his having exhausted the right to protest under section 14.2 and any appeal therefrom under subsection 14.3(1) would violate the law and infringe respondent’s rights under section 7 of the Canadian Charter of Rights and Freedoms.
Held, the second question should be answered in the affirmative.
In Bay v. The Queen, a case involving the refusal of the Registrar to add a person’s name to a Band list, the Federal Court of Appeal dealt with section 7 of the Indian Act (now section 5) which empowers the Registrar to add or delete names. Thurlow J.A. ruled that the Registrar is not required to conduct an inquiry or to afford anyone a hearing on the question of a person’s addition or deletion from the Register because the Registrar’s view of the person’s entitlement to be registered binds no one at this stage of the process. The Court of Appeal also pointed out that, after a protest was made, the Registrar was obliged to investigate and had the power to render a decision concerning such protest which is final and conclusive. It concluded that subsection 7(1) (now section 5) of the Act gave no express authority to decide who is or who is not entitled to be registered. This case was applied by the Federal Court, Trial Division in Landry v. Canada (Indian and Northern Affairs), which ruled that the Registrar’s decision to add or delete a name is not binding on anyone and is of no legal effect. The Court concluded that the applicants’ right to be recorded in the Register will not be affected in any way by the deletion of their names.
Question two can be answered by applying the principles underlying the cases of Bay and Landry without recourse to the Charter or the common law principles of natural justice or fairness. However, the answer to that question must take into account the practice of the Registrar, not sanctioned under the Indian Act, of immediately notifying, upon deletion, the federal and provincial authorities of this fact which leads to the immediate cutting off of benefits normally conferred upon persons of Indian status. A decision as to whether a person is entitled to be registered as an Indian must be made during the protest process stage conducted by the Registrar who, then, must do an investigation, receive and weigh evidence and render a decision which is final and conclusive subject only to appeal to the provincial superior courts. Deletion or addition of a person’s name is a condition precedent to that person making a protest. The Registrar’s practice of advising governmental authorities that the person affected is no longer an Indian when deletion is made constitutes an error of law because an action by the Registrar under subsection 5(3) does not decide whether that person is entitled to be registered as an Indian; such decision is made only after investigation, the taking of evidence and the making of a final and conclusive decision which has legal effect under section 14 of the Indian Act. The applicants were skipping or downplaying an important and required stage in the process, namely, the protest process. A person whose name has been deleted has, under the current legislation, three years to protest. Question two must be answered in the affirmative; however the deletion of a name cannot lead to an immediate denial of benefits through the practice followed by the Registrar in advising governmental authorities of this fact. Entitlement to Indian status is not decided under subsection 5(3) of the Act but after the protest stage.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.3 (as enacted idem, s. 5), 57 (as am. idem, s. 19).
Indian Act, R.S.C. 1970, c. I-6, s. 7.
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) “Indian”, 5 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4), 6 (as am. idem; (4th Supp.), c. 43, s. 1), 7 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4), 14 (as am. idem), 14.1 (as enacted idem), 14.2 (as enacted idem), 14.3 (as enacted idem; (2nd Supp.), c. 27, s. 10; S.C. 1990, c. 17, s. 25; 1992, c. 51, s. 54; 1998, c. 30, s. 14; 1999, c. 3, s. 69).
CASES JUDICIALLY CONSIDERED
APPLIED:
Bay v. The Queen, [1974] 1 F.C. 523 (1974), 8 C.N.L.C. 1; 2 N.R. 513 (C.A.); Landry v. Canada (Indian and Northern Affairs) (1996), 118 F.T.R. 184 (F.C.T.D.).
CONSIDERED:
Canada (Registrar, Indian Register) v. Sinclair (2001), 200 D.L.R. (4th) 347; [2001] 4 C.N.L.R. 11 (F.C.T.D.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
REFERRED TO:
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; (1999), 216 N.B.R. (2d) 25; 177 D.L.R. (4th) 124; 26 C.R. (5th) 203; 244 N.R. 276; 50 R.F.L. (4th) 63; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 260 N.R. 1; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519; (2000), 191 D.L.R. (4th) 1; 150 Man. R. (2d) 161; [2001] 1 W.W.R. 1; 260 N.R. 203; 10 R.F.L. (5th) 122; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.
QUESTION referred to the court as to whether the Registrar of the Indian Register would err in law in deleting the respondent’s name before the latter had exhausted his right to protest and to appeal under sections 14.2 and 14.3 of the Indian Act. Question answered in the affirmative.
APPEARANCES:
John B. Edmond and Patricia A. Johnston for applicants.
Marc LeClair for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for applicants.
Marc LeClair, Ottawa, for respondent.
The following are the reasons for order rendered in English by
Lemieux J.:
A. INTRODUCTION
[1] These reasons answer the second of two questions referred to the Court under section18.3 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1900, c. 8, s. 5)] (the Act) by the Registrar of the Indian Register (the Registrar) and the Attorney General for Canada.
[2] On April 11, 2001 [Canada (Registrar, Indian Register) v. Sinclair (2001), 200 D.L.R. (4th) 347 (F.C.T.D.), at paragraph 2], I answered “no” to the first question stated by the Registrar which reads:
[traduction]
Would I err in law in deciding that, under the provisions of the Indian Act, the Respondent is not entitled to have his name entered on the Indian Register and assigned an Indian Registry number under the said Act? [Emphasis mine.]
[3] The hearing on the second question had been deferred because the respondent was challenging certain procedural provisions of the Indian Act [R.S.C., 1985, c. I-5] on grounds related to the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) and no notice of constitutional question had been given as required by section 57 [as am. by S.C. 1990, c. 8, s. 19] of the Act.
[4] Notice of constitutional question was properly given and I heard submissions on question 2 which reads [at paragraph 3]:
[traduction]
In the event the first question is answered in the negative, would I err in law in deleting the Respondent’s name and Indian registry number from the Indian Register pursuant to section 5(3) of the Indian Act, prior to the Respondent exhausting his protest and appeals against my decision under sections 14.2 and 14.3 of the Indian Act, on the basis that the deletion of his name and registry number would, (but for the existence of an interlocutory injunction issued on the 16th of February, 1999 by the Associate Chief Justice of the Federal Court of Canada restraining me from deleting the Respondent’s name pending the final disposition of the within proceeding in the Trial Division), cause the Respondent to lose access to the benefits available to him as a Registered Indian residing in the Province of Alberta, pending the determination of his appeals. [Emphasis mine.]
B. BACKGROUND
[5] The respondent Sam Sinclair is a Métis and a descendant of residents in the geographical area now covered by Treaty No. 8 signed on June 21, 1899. He was born at Slave Lake, Alberta, on November 22, 1926, the son of Alfred Sinclair and Agathe Courtoreille. He resides in Edmonton, Alberta and is married to Edna Mary Pierce, a Cree who is a member of the Driftpile Reserve.
[6] Sam Sinclair had his name added to the Indian Register on October 12, 1990, after being advised by the Registrar he was entitled to be registered pursuant to paragraph 6(1)(f) [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4] of the 1985 Indian Act since both of his parents were, at the time of their death, entitled to be registered pursuant to subsection 6(1) of that Act. The Indian Act was substantially modified in 1985, particularly in its entitlement to registration provisions, in order to comply with the provisions of section 15 of the Charter.
[7] The Registrar, after Mr. Sinclair’s registration, had occasion to review his file after persons, who may have been related to him, applied to be added to the Indian Register. As a result of the Registrar’s investigation, on June 1, 1998, she advised him he could no longer be considered by her to be entitled to be registered as an Indian and it was her intention to delete his name from the Indian Register, subject to his supplying additional proof of entitlement. The reason given by the Registrar relates to his maternal grandmother, Isabelle Courtoreille who was now no longer thought to be deemed to be entitled to registration.
[8] After having been granted several extensions of time to provide any additional information, Sam Sinclair decided to file a statement of claim in this Court seeking a declaration that subsection 5(3) [as am. idem], section 6 [as am. idem]; (4th Supp.), c. 43, s. 1], subsections 14.2(1) [as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 4], (5) [as enacted idem] and (7) [as enacted idem] of the Indian Act were unconstitutional on various Charter grounds.
[9] On February 4, 1999, with the consent of the applicants, an interlocutory injunction was issued by the Associate Chief Justice preventing the deletion of his name pending the outcome of these proceedings. His action was subsequently converted into an application for a reference pursuant to section 18.3 of the Act.
C. THE ISSUE
[10] There is but one issue to be decided in answering question 2 which is whether the deletion of his name from the Indian Register under subsection 5(3) of the Indian Act prior to his exhausting his right to protest under section 14.2 and any appeal therefrom under subsection 14.3(1) [as enacted idem] would violate the law, including an infringement of his rights under section 7 of the Canadian Charter of Rights and Freedoms (the Charter) which provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived therefrom except in accordance with the principles of fundamental justice.
[11] As will be discussed, the answer to that question must take into account the reasons why I answered “no” to the first question and in particular the impact of the Federal Court of Appeal’s decision in the Bay case, infra.
D. THE FACTUAL FOUNDATION
[12] Sam Sinclair had filed an affidavit in support of his application for an interlocutory injunction prohibiting the Registrar from deleting his name from the Indian Register until the protest process had been completed.
[13] In that affidavit, which he was not cross-examined on, he stated that, if the Registrar was permitted to delete his name from the Register, he would immediately lose the benefits to which he is entitled as a registered Indian and consequently he would suffer immediate and irreparable harm.
[14] He has health problems which require him to take significant amounts of medication. As a registered Indian, all of his prescription medicines are paid for by Health Canada Medical Services Branch. If he is forced to pay for this medication out of his limited resources, he will suffer dire economic hardship. It is the loss of this medical benefit which will likely have the gravest physical effect on him as soon as the deletion takes place.
[15] In addition to a modest pension, his earnings are supplemented by employment income earned on the reserve. The loss of his status would very likely result in his inability to earn any further income on reserve, thereby further compounding his financial problems.
[16] His status grants him hunting rights. He is still an active hunter. If he downs a moose, the food is shared amongst at least six other families as well as many friends in need. If his status is forfeited, he will be forced to obtain a hunting permit and would be restricted to hunt at designated times.
[17] At paragraph 16 of his affidavit, he identifies one of the greatest benefits afforded his status is the opportunity for the education his family enjoys. He has two daughters who have completed post-secondary degrees and two grandchildren who are currently pursuing theirs. He has many other grandchildren who hope to follow suit. He believes education is the only way native people can thrive in future generations both within their communities and as part of the greater Canada. Without his Indian status, the educational benefit will unlikely persist, he claims.
[18] To his affidavit, he appends letters from his children. For example, Lorraine Sinclair writes her current employment income is below the poverty line and the benefits of treaty status have been the key in her effort to survive. Certain tax exemptions help as well as meat from hunting lower her grocery costs. She requires medication at significant cost as her son is diagnosed with acute myolgenous leukemia requiring extensive drug therapy to battle the disease.
[19] How he and others will be affected by the immediate cut-off of benefits is identified by the Department of Indian and Northern Affairs (DIAN) to the Minister in a briefing note to answer a question during Question Period in the House of Commons as follows:
The affected individuals will lose access to benefits normally available to registered Indians, such as hunting and fishing rights, non-insured health benefits, post-secondary education funding and tobacco, fuel and income tax exemptions. Depending on the number of Individuals losing entitlement and the size of the Band, the Registrar’s decision may result in a decrease in Band Funding.
[20] The impact of the deletion decision he says is compounded by the length of time involved in exercising rights of appeal under the Indian Act. His son’s name, Gordon Sinclair, was deleted by the Registrar in August of 1997 and she only rendered a decision upholding her original ruling in March 1999 after Gordon Sinclair had exercised his right of protest provided for in the Indian Act. He does not know the length of time his son will have to wait for his appeal from the Registrar’s decision to be heard and a decision rendered by the Court of Queen’s Bench in Alberta.
E. RELEVANT LEGISLATIVE PROVISIONS OF THE INDIAN ACT
(a) The Indian Act
[21] Section 5 continues the Register, deems the names in the Register immediately prior to April 17, 1985, to constitute the Indian Register and empowers the Registrar to delete or add names to the Register. Section 5 of the Indian Act reads:
5. (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.
(2) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985.
(3) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register.
(4) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom.
(5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar. [Emphasis mine.]
[22] Sections 6 and 7 [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4] deal with persons who are entitled or not entitled to be registered.
[23] Section 14.1 provides for inquiries relating to the Indian Register or Band Lists. Section 14.2 authorizes protests and spells out some procedures related to inclusions or additions or omissions or deletions to the Indian Register and section 14.3 allows appeals to the provincial superior courts from the Registrar’s decision dealing with a protest. These provisions read:
14.1 The Registrar shall, on inquiry from any person who believes that he or any person he represents is entitled to have his name included in the Indian Register or a Band List maintained in the Department, indicate to the person making the inquiry whether or not that name is included therein.
Protests
14.2 (1) A protest may be made in respect of the inclusion or addition of the name of a person in, or the omission or deletion of the name of a person from, the Indian Register, or a Band List maintained in the Department, within three years after the inclusion or addition, or omission or deletion, as the case may be, by notice in writing to the Registrar, containing a brief statement of the grounds therefor.
(2) A protest may be made under this section in respect of the Band List of a band by the council of the band, any member of the band or the person in respect of whose name the protest is made or that person’s representative.
(3) A protest may be made under this section in respect of the Indian Register by the person in respect of whose name the protest is made or that person’s representative.
(4) The onus of establishing the grounds of a protest under this section lies on the person making the protest.
(5) Where a protest is made to the Registrar under this section, the Registrar shall cause an investigation to be made into the matter and render a decision.
(6) For the purposes of this section, the Registrar may receive such evidence on oath, on affidavit or in any other manner, whether or not admissible in a court of law, as the Registrar, in his discretion, sees fit or deems just.
(7) Subject to section 14.3, the decision of the Registrar under subsection (5) is final and conclusive.
14.3 (1) Within six months after the Registrar renders a decision on a protest under section 14.2,
(a) in the case of a protest in respect of the Band List of a band, the council of the band, the person by whom the protest was made, or the person in respect of whose name the protest was made or that person’s representative, or
(b) in the case of a protest in respect of the Indian Register, the person in respect of whose name the protest was made or that person’s representative,
may, by notice in writing, appeal the decision to a court referred to in subsection (5).
(3) On receipt of a copy of a notice of appeal under subsection (2), the Registrar shall forthwith file with the court a copy of the decision being appealed together with all documentary evidence considered in arriving at that decision and any recording or transcript of any oral proceedings related thereto that were held before the Registrar.
(4) The court may, after hearing an appeal under this section,
(a) affirm, vary or reverse the decision of the Registrar; or
(b) refer the subject-matter of the appeal back to the Registrar for reconsideration or further investigation.
(5) An appeal may be heard under this section
(a) in the Province of Quebec, before the Superior Court for the district in which the band is situated or in which the person who made the protest resides, or for such other district as the Minister may designate;
(a.1) in the Province of Ontario, before the Superior Court of Justice;
(b) in the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, before the Court of Queen’s Bench;
(c) in the Province of Prince Edward Island or Newfoundland, before the Trial Division of the Supreme Court;
(c.1) [Repealed, S.C. 1992, c. 51, s. 54]
(d) in the Provinces of Nova Scotia and British Columbia, the Yukon Territory or the Northwest Territories, before the Supreme Court; or
(e) in Nunavut, before the Nunavut Court of Justice. [Emphasis mine.]
(b) The Federal Court Act
[24] Section 18.3 of the Federal Court Act dealing with references reads:
18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Trial Division for hearing and determination.
(2) The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations thereunder, to the Trial Division for hearing and determination.
E. THE CASE FOR MR. SINCLAIR
[25] Counsel for Mr. Sinclair premises his argument on the fact the Registrar, but for the injunction in this case, would have deleted his name from the Register prior to his protest under section 14.2 having been launched and decided and a possible appeal to the provincial superior courts under section 14.3 decided and ruled upon. Mr. Sinclair would immediately lose his benefits upon such deletion as it is the Registrar’s practice to advise competent authorities of the deletion from the Register. Counsel for the applicants agrees with this factual assumption of deletion prior to protest and consequent loss of benefits.
[26] Counsel for Mr. Sinclair argues this process leading up to deletion before protest violates Mr. Sinclair’s rights under section 7 of the Charter: his liberty and security interests are engaged and the manner of his deprivation is not in accordance with the common law requirements of fairness.
[27] He relies principally upon the following recent decisions of the Supreme Court of Canada on section 7 of the Charter: (1) New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46; (2) Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; and (3) Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519.
[28] He argues the rights of liberty and security of the person protect the rights, benefits and interests that accrue to him as a registered Indian, and these include access to his entitlement to benefits, programs and services.
[29] Relying on Blencoe, supra, his counsel argues his liberty rights are deprived by the decision to delete and its consequences; the decision affects fundamental and important life choices, his personal autonomy to live his own life and his dignity.
[30] Counsel points to his right to hunt, fish and trap which is an Aboriginal right constitutionally protected. Also, he can no longer apply for post-secondary educational programs either for himself or for his family. His right to go down to his corner pharmacy and obtain prescription drugs free of charge which he needs for his heart will lapse. So will his benefits relating to certain types of taxation and his right to earn income working on a reserve. The greatest impact of the deletion decision is on his children and grandchildren.
[31] As for his security, again relying on Blencoe, supra, his counsel argues security of the person encompasses both physical and psychological integrity. The deletion decision affects his ability to provide the necessaries of life and the health benefits he receives.
[32] The second branch of section 7 of the Charter is satisfied because the duty of fairness has been breached in several ways in the procedure followed by the Registrar in this case, one which leads to the forfeiture of his benefits: (1) no oral hearing was held which is critical because of the importance of oral tradition in Aboriginal cases; (2) no right to present evidence was granted including those of family members; (3) Mr. Sinclair had no ability to know the case against him because of the Registrar’s reliance, on grounds of solicitor-client privilege, on a legal opinion from Justice Canada; and (4) there was a lack of an unbiased tribunal because of the Registrar’s stated intention on June 1, 1998, to delete his name.
[33] He spent a considerable amount of time examining in reality how long it took the Registrar to decide Mr. Sinclair’s son’s protest three years after it was made; his appeal still has not been decided in the Supreme Court of Alberta. Yet, his benefits have immediately been denied.
[34] In closing, Mr. LeClair said he was looking for an answer of “yes” to the second question and he also added a request that I direct an oral hearing, that Mr. Sinclair be furnished with all of the documentation so he can know the case he has to meet and a declaration that the Registrar should not delete Mr. Sinclair’s name until he has exhausted his appeals and his protest.
F. THE CASE FOR THE REGISTRAR AND THE ATTORNEY GENERAL
[35] As noted, counsel for the applicants agrees with counsel for the respondent, the Registrar can and does delete prior to protest with consequent revocation of benefits. He says section 5 of the Indian Act authorizes the Registrar to so delete; a person is deleted pursuant to section 5 and not by a subsequent action of the Registrar as the result of a protest.
[36] In his view, under section 14.2, the Registrar decides whether the protest is well founded. He points to the wording of subsection 14.2(1) as to the purpose or nature of a protest. He says a protest may be made “in respect of the deletion of the name of a person from the Indian Register”, and there is a three-year time limit for the person affected to file a protest. He says, based on this wording, unless there had been a deletion, there would be no basis for a protest; deletion is a condition precedent to a protest.
[37] Counsel for the applicants recognized, albeit not flowing from the Indian Act, the Registrar, as a matter of practice upon deletion of a name from the Register, advises various federal authorities of this fact which then results in benefits being immediately cut off. He adds, however, a person’s Indian status card, which permits him/her access to medical benefits, is not retrieved as it will expire but concedes receiving such benefits after deletion would be illegal.
[38] The approach taken by counsel for the applicants was to concentrate on the procedural component of the second branch of section 7 of the Charter. He appreciated the Supreme Court of Canada had considerably refined the first branch in recent cases and did not press much against counsel for Mr. Sinclair’s analysis of those recent decisions although he did characterize the rights advanced by Mr. Sinclair as being clearly economic ones, not encompassed within section 7.
[39] He points to Justice Thurlow’s reasons in Bay v. The Queen, [1974] 1 F.C. 523 (C.A.), a case involving the refusal of the Registrar to add a person’s name to a Band List. Speaking to section 7 of the Indian Act [R.S.C. 1970, c. I-6] (now section 5) which empowers the Registrar to add or delete names, Justice Thurlow ruled the Registrar is not required to conduct an inquiry or to afford any one a hearing on the question of a person’s addition or deletion from the Register because the Registrar’s view of the person’s entitlement to be registered binds no one at this stage of the process.
[40] In any event, he argued, the facts of this case, in terms of procedural fairness, puts it well beyond the low threshold established by Justice Thurlow in Bay, supra, recognizing the Registrar had to be fair in the circumstances and had treated Mr. Sinclair fairly on the evidence before me.
[41] He pointed to the affidavit of Donna Mclaren listing the opportunities accorded to Mr. Sinclair to provide additional information or new evidence to refute the findings of the Registrar in her June 1, 1998 letter in which she indicated an intention to delete.
[42] With the extensions, and before the Charter challenge was launched by way of action in this Court, the Registrar had provided Mr. Sinclair eight months to come up with new information or new evidence and, in that time, he had provided none. In his submission, what the Registrar did was fair in the circumstances for the purposes of the initial stage of the process.
[43] He rebuts counsel for Mr. Sinclair’s argument on the necessity of an oral hearing by referring to subsection 14.2(6) of the Indian Act which, on a protest, does not require the Registrar to hold a hearing but provided a discretion to the Registrar to receive evidence in a flexible manner, suggesting the Court should be reluctant to impose a different standard than the one contemplated by Parliament, even more so at the initial stage as contrasted to the protest stage.
[44] He distinguishes the Supreme Court of Canada’s decision in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, on the basis the need for an oral hearing identified there was because of the need for credibility findings in refugee claims which he suggests would not arise in Indian Act registration cases and, in any event, there was no evidence Mr. Sinclair asked the Registrar for an oral hearing.
[45] Examining Justice Pratte’s reasons for decision in Bay, supra, followed by Justice Nadon in Landry v. Canada (Indian and Northern Affairs) (1996), 118 F.T.R. 184 (F.C.T.D.) which he said is on all fours with the case before me, he argues there is no breach of fundamental justice under section 7 of the Charter because the Registrar does not decide when deleting or adding a name whether that person is entitled to be registered, which can only be decided at the protest stage. All the Registrar does, at the initial stage, is determine as a simple fact whether the person’s name should be on the Register. If he/she is deleted, clearly he or she is not on the Register; the Government does not consider him/her an Indian and consequently that person is not entitled to government benefits.
[46] Another element rebutting the absence of any breach of fundamental justice is the ability of the courts to grant a stay against deletion. Justice Rouleau issued such a stay in the Landry case as did, albeit on consent, the Associate Chief Justice in the case before me.
[47] He emphasizes to answer “yes” to the second question would be to grant Mr. Sinclair an automatic three-year stay because he does not have to file a protest before then. He points to jurisprudence to the effect a stay should only be granted on a case by case basis.
G. ANALYSIS
(1) The impact of the answer to question 1
[48] As noted, on April 11, 2001, I ruled the Registrar, on the considerable evidence which was before her and before the Court on the reference, would not err in law in deciding Mr. Sinclair was not entitled to have his name entered on the Indian Register and assigned a number under the Act.
[49] What led me to the conclusion I reached were a number of factors:
(1) the evidence before the Registrar on which she formed her intention to delete Mr. Sinclair’s name and so advised him on June 1, 1998. Supplementary research was also put in evidence;
(2) the legislative scheme under the Indian Act related to additions and deletions of names to the Indian Register:
(a) the initial stage under subsection 5(3) of adding or deleting a name to the Register;
(b) the Registrar’s decision, after protest, made pursuant to section 14.2;
(c) the appeal stage to a provincial superior court of the Registrar’s decision after protest;
(3) the Federal Court of Appeal’s decision in Bay, supra;
(4) the stage in the proceedings before the Registrar for the purpose of supplying the context to the answers to be given on the questions referred to the Court. Both parties agreed the proceedings before the Registrar were at the subsection 5(3) initial stage of whether Mr. Sinclair should have his name deleted from the Register, that is whether there was sufficient evidence to enable the Registrar to do so.
[50] Taking these factors into account, I concluded the following which led me to answer “no” to question number one:
(1) For the purposes of subsection 5(3) of the Indian Act, in order to support the action to delete, it was inappropriate to apply the balance of probabilities standard of proof test. That standard of proof was more appropriate to the middle stage of the process where the Registrar’s decision was made after protest, investigation, the taking of evidence and the weighing of that evidence.
(2) In this context, in order to support a deletion under subsection 5(3), the evidence before the Registrar need only to be sufficiently strong as to lead the Registrar to reasonably believe Sam Sinclair was not entitled to registration. Based on the evidence before me, I was satisfied there was sufficient evidence before the Registrar permitting her to so reasonably believe.
(3) I did not comment extensively on the evidence because, upon a protest launched by Mr. Sinclair, the Registrar would be required to consider and weigh the evidence in the appeal case and such additional evidence as may be brought forward. I did conclude, however, the way Sam Sinclair and his family now live was an indicia of the way of life of his maternal grandmother. I agreed with counsel for Mr. Sinclair the historical evidence would seem to indicate considerable differences in the way various First Nations and other communities lived in various geographical areas and that the same could be said of the Métis.
(2) The lessons from the Bay case
[51] The Bay case was decided in 1974 at a time the Court was struggling to define the space between then sections 28 and 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] enacted in 1970 focussing on the question whether a “decision” was a judicial, quasi-judicial or administrative one.
[52] Furthermore, that case was decided before the Supreme Court of Canada’s watershed case of Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311 which found administrative decisions attracted a degree of procedural fairness, the contents of which vary depending upon a number of factors which Justice L’Heureux-Dubé drew together in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 23, namely:
(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the decision maker operates. For instance, greater procedural protections will be required when no appeal procedure is provided within the statute;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectation of the person challenging the decision.
(5) important weight must be given to the choice of procedures made by the decision maker itself and its institutional constraints.
[53] It is not my view these post-Bay developments mean it is no longer of any value or is spent. Justice Nadon, in 1996, applied Bay in Landry, supra, a section 18 [as am. by S.C. 1990, c. 8, s. 4] judicial review application where the applicants sought to prohibit the Registrar from deleting their names from the Register.
[54] As I see it, what the Federal Court of Appeal did in Bay and what Justice Nadon did in Landry was to harmonize the legislative scheme now found in sections 5 and 14 [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4] of the Indian Act in order to make all of its provisions mesh together in a workable whole as intended by Parliament.
[55] The judges of the Federal Court of Appeal in Bay (Chief Justice Jackett with Justices Thurlow and Pratte) as was Justice Nadon, in Landry, were acutely aware of the various steps in a deletion process.
[56] Chief Justice Jackett stressed it was after a protest was made the Registrar was obliged to investigate and had the power to render a decision concerning such protest which is final and conclusive. This is what he wrote at page 524:
When the Registrar is asked to exercise the section 7 power [now section 5] to add or delete a name, he must, of course, take a position as to whether the person in question is or is not entitled to have his name on the list so as to give rise to the duty to add or delete. There is, however, a clear difference between a position so taken by the Registrar on the occasion of a request to exercise the section 7 power and a decision rendered by the Registrar in the exercise of his section 9 [now section 14.2] decision-making power. Once the Registrar has exercised his section 9 decision-making power, his decision has legal effect and his power with regard thereto is spent. When, however, the Registrar takes a position as to whether he has a section 7 duty to add or delete a name, that “decision” has no legal effect. In such a case, as a matter of law, nothing has been decided. The Registrar himself, or his successor, in the very case in which such a position was taken, can take a different position at any time and, having taken such a different position, can exercise his section 7 power to add or delete in accordance therewith. [Emphasis mine.]
[57] Justice Thurlow concluded subsection 7(1) (now section 5) gave the Registrar no express authority to decide who is or who is not entitled to be registered. He wrote at pages 526-528:
It merely authorizes him to add the name of a person who is entitled or to delete the name of a person who is not entitled and no procedure for determining entitlement or for the exercise of the function is prescribed. If the Registrar adds a name or deletes a name pursuant to section 7, the procedures of subsection 9(1) to which I have referred may be invoked to determine the entitlement….
…
As I see it, the Registrar when dealing with a matter under section 7 [now section 5] is not required to conduct an inquiry or to afford any one a hearing on the question of a person’s entitlement to registration and his view of the person’s entitlement when reached binds no one for he is free to change that view at any time and thereupon act accordingly. [Emphasis mine.]
[58] Justice Pratte was of the view a decision under the then section 28 of the Federal Court Act had to have legal effect of settling the matter after a tribunal had exercised its jurisdiction or powers in a particular case by a decision. He wrote at pages 529-530:
In the present case, the so-called decision of the Registrar has been made under section 7 of the Indian Act. This section does not empower the Registrar to decide whether a person is entitled to be registered as an Indian; it merely imposes on the Registrar the duty to add to or delete from the Register “the name of any person who … is entitled or not entitled, as the case may be,” to be registered. If the Registrar wrongly refuses to record in the Register the name of a person who is entitled to be registered, he fails in his duty. However, in such a case, the person who is entitled to be registered does not, by virtue of such a refusal, lose his right to be registered. The refusal of the Registrar to register a person who is entitled to be registered does not have any legal effect, whatsoever the importance of its practical effect; such a refusal does not settle or purport to settle in any way the question of the entitlement to the registration; it is not binding on anyone. It is not a decision within the meaning of section 28(1). [Emphasis mine.]
[59] It seems to me Justice Nadon in Landry, supra, approached the case before him in the same perspective after stating the applicants’ premise is that the deletion of their names from the Register will deprive them of the rights conferred on them through their registration in the Register in 1990.
[60] He applied Bay, supra, finding “it provides a complete solution to this litigation”. This is what Justice Nadon wrote at paragraph 62 of his reasons:
In my opinion, it is clear from the Court of Appeal decision in Bay that the statements by the three judges make no distinction between the addition or deletion of a name. In any event, such a decision is not one that is binding on anyone. The applicants’ premise, as I indicated earlier, is that if the Registrar deletes their names from the Register, they will lose the rights that were recognized to them when their names were added in 1990. In my opinion, this argument cannot hold in view of the reasons stated by the three judges in the Court of Appeal. I repeat once again, the Registrar’s decision to add or delete a name is not binding on anyone and is of no legal effect. Under the old subsection 7(1) and thus under subsection 5(3) of the Act, the Registrar does not have the power to determine, in the case at bar, whether the applicants are or are not entitled to be recorded in the Register. That power can be exercised by the Registrar only under section 14.2(5) when a protest is filed by the person whose name is deleted under section 5(3). Accordingly, the applicants’ right to be recorded in the Register, as they claim, will not be affected in any way by the deletion of their names. [Emphasis mine.]
[61] Justice Nadon concluded at paragraphs 65 and 66 in the following words:
If the Registrar deletes their names from the Register, the applicants may file a protest under s.14.2 of the Act. The Registrar will then be obliged to hold an investigation and render a decision which, under subs. 14.2(7), will be final and thus have legal effect.
…if the Registrar rejects the applicants’ protest, there is no doubt that their rights will be affected since the Registrar, under section 14.2, has the power to determine whether the applicants are or are not entitled to be recorded in the Register. At this point, however, the applicants’ rights are in no way affected and will not be if the Registrar deletes their names from the Register. [Emphasis mine.]
[62] I am in agreement with Justice Nadon’s analysis and conclusions.
H. CONCLUSIONS
[63] Question number two, in my view, can be answered by applying the principles underlying both Bay, which counsel for the applicants say is binding on me and I agree and Landry, supra, without recourse to the Charter or the common law principles of natural justice or fairness.
[64] However, question number two must be answered taking into account the practice of the Registrar, not sanctioned under the Indian Act, of immediately notifying, upon deletion, the federal, and perhaps the provincial, authorities of this fact which leads to the immediate cutting off of benefits normally conferred upon persons of Indian status.
[65] Both Bay and Landry and a consideration of the legislative scheme leads one to the inevitable conclusion the place Parliament wanted a decision to be made about whether a person is entitled to be registered as an Indian is during the protest process stage conducted by the Registrar who, at this stage, must do an investigation, receive and weigh evidence and render a decision which is final and conclusive subject only to appeal to the provincial superior courts. Moreover, subsection 14.2(6) of the Act authorizes the Registrar to receive evidence on oath or on affidavit in Parliament’s contemplation that, in some cases, an oral hearing may be required.
[66] It is this legislative scheme and its focus on the protest provisions which led the judges to conclude in Bay and Landry, supra, the addition or deletion of a person’s name from the Register has no legal effect and nothing has been decided since the question of entitlement to registration is decided at the protest stage. Because a subsection 5(3) addition or deletion decision does not affect a person’s rights, no procedures have been laid out under subsection 5(3) and, at this initial stage, the Registrar is not required, as a matter of common law fairness, to conduct an inquiry or to afford anyone a hearing on the question of a person’s entitlement to registration simply because rights are not determined then.
[67] I agree with counsel for the applicants deletion or addition of a person’s name is a condition precedent to that person making a protest. A protest, under subsection 14.2(1) is made “in respect of the inclusion or addition of the name of a person in, or the omission or deletion of the name of a person from, the Indian Register… within three years after the inclusion or addition, or omission or deletion, as the case may be”.
[68] This conclusion, in a sense, answers part of question number two — would I err in law in deleting the Respondent’s name … prior to the Respondent exhausting his protest … on the basis that the deletion of his name and registry number would … cause the Respondent to lose access to the benefits available to him as a Registered Indian residing in the Province of Alberta”.
[69] If a deletion is required in order to protest one may ask how it can be said the Registrar would err in law in deleting his name prior to protest.
[70] The real problem with question number two is the second half of it, that is, ”on the basis that the deletion of his name and registry number would … cause the Respondent to lose access to the benefits available to him as a Registered Indian residing in Alberta”.
[71] It is not the Registrar who denies a deleted person his/her benefits as an Indian; it is other federal and perhaps provincial authorities who take this action based on the practice of the Registrar to advise them of the deletion of a person’s name from the Indian Register presumably on the basis, as advanced by counsel for the applicants, such a person is no longer an Indian because of the definition of Indian [in subsection 2(1)] under the Act where ”Indian means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”.
[72] In my view, the Registrar’s practice of so advising governmental authorities the person affected is no longer an Indian when deletion is made constitutes an error of law because an action by the Registrar under subsection 5(3) does not decide whether that person is entitled to be registered as an Indian and therefore it cannot be said this person is not an Indian for the purposes of the Act and benefits such a person would normally receive.
[73] It seems to me the applicants have a misguided approach to the legislative scheme by immediately advising governmental authorities of the deletion of a person’s name which leads, as I understand it, to an automatic cut off of benefits. They are also wrong to concentrate all of their evidentiary efforts at the initial stage of the process; the place for the substantial consideration in an open-minded approach of all of the evidence is after protest. It is this process and the evidence there which a provincial superior court judge reviews on appeal.
[74] By taking the approach of advising governmental authorities that deletion equates to non entitlement to registration as an Indian, the applicants are assuming the person is not entitled to registration. Clearly, based on the jurisprudence reviewed, this decision is not made at the stage of the process when the Registrar acts under subsection 5(3) but only after investigation, the taking of evidence and the making of a final and conclusive decision which has legal effect, all under section 14 of the Indian Act. Put in other words, the applicants are skipping or downplaying an important and required stage in the process, namely, the protest process.
[75] I reach this conclusion recognizing a person whose name has been deleted has, under the current legislation, three years to protest. This was a change made in 1985 when Parliament amended the legislation. Under the previous Indian Act, protests had to be made within three months of deletion.
[76] I was not told why Parliament greatly extended the time to make protests but, when it did so in 1985, it is presumed to have known the state of the law as pronounced in the Federal Court of Appeal in Bay.
[77] The concept of restitution, on the basis a person would have received benefits not entitled to since deletion, was raised where after protest it was found by the Registrar that a person was not entitled to registration. I will not comment on the possibility of seeking restitution in that circumstance as the matter was not argued before me.
[78] I make one final point. The Charter or common law challenge to the procedures followed by the Registrar at the initial stage was premised on a scenario which would see the immediate loss of benefits at that stage—the act of deletion—and not after the protest stage had been exhausted.
[79] That is why, based on this assumption, both counsel argued for and against various participatory procedural rights based on Charter or common law fairness principles.
[80] It is clear from these reasons the focus of participatory process rights at the initial stage is misplaced and, as such, fails to identify the proper stage or place in the process to consider either a breach of the Charter or common law principles of fairness. It is, at this moment, hypothetical and speculative to surmise what kind of procedure the Registrar would follow upon deletion and protest.
[81] My conclusion is that question number two must be answered “yes”. To be clear, the Registrar can, and must, in accordance with the statutory scheme, delete before protest if there is sufficient evidence to do so but such deletion cannot lead to an immediate denial of benefits through the practice followed by the Registrar in advising governmental authorities of this fact. Bay and Landry make it clear entitlement to Indian status is not decided pursuant to subsection 5(3) but rather after the protest stage.
[82] Counsel for Mr. Sinclair asked that, if I answer the second question with a “yes”, I issue certain declarations and a stay. The nature of this reference prevents me from doing anything but answer the questions put. I therefore decline the respondent’s additional requests.
I. DISPOSITION
[83] For all of these reasons, question number two is answered “yes”.