T-1217-86
Ermineskin Band Council (Applicant)
v.
L. G. Smith, Registrar, Indian and Northern
Affairs Canada, Raymond John Quinn, Laura
Rowan Quinn, Nadine Rae Quinn, Raymond
Quinn, Virgel Shawn Quinn and Bonita Cheryl
Quinn (Respondents)
INDEXED AS: ERMINESKIN BAND COUNCIL V. CANADA (REG-
ISTRAR, INDIAN AND NORTHERN AFFAIRS)
Trial Division, Strayer J.—Vancouver, June 2 and
5, 1986.
Judicial review — Prerogative writs — Mandamus —
Application for mandamus requiring Registrar to render deci
sion upon two protests by Band Council against additions to
Band List — Registrar not rendering decision re: first protest,
made September 21, 1984, as of opinion amendments to Indian
Act precluding success of protest and suggesting Band Council
use new protest provisions — Second protest within new s. 14.2
made January 21, 1986 — No decision yet rendered —
Evidence disclosing clear demand made for exercise of non-
discretionary power — Delay in making decision tantamount
to refusal to decide — Duty on Registrar to render decision
under s. 14.2(5) — Registrar's decision subject to appeal to
court — Failure to render decision preventing appeal to court
of his interpretation of law — Right of appeal not disappear
ing because no possibility of success — Registrar ordered to
render decision forthwith as to second protest — Indian Act,
R.S.C. 1970, c. I-6, ss. 9(2) (as am. by S.C. 1985, c. 27, s. 4),
11(1)(a) (as am. idem), (c), 14.2 (as enacted idem), 14.3 (as am.
idem).
Native Peoples — Registration — Registrar deciding
respondents entitled to registration as members of Ermineskin
Band — Band Council adopting resolution protesting decision
— Protest sent to Registrar — No decision rendered —
Registrar advising no remedy due to Indian Act amendments
— Suggesting Band Council use new s. 14.2 protest provisions
— New protest made — Registrar still not making decision —
Delay equivalent to refusal to decide — Registrar's decision
appealable to court — By not deciding, Registrar preventing
judicial ruling on his interpretation of law — Registrar under
duty to decide re second protest — Ordered to render decision
forthwith — Indian Act, R.S.C. 1970, c. I-6, ss. 9(2) (as am.
by S.C. 1985, c. 27, s. 4), 11(1)(a) (as am. idem), (c), 14.2 (as
enacted idem), 14.3 (as am. idem).
COUNSEL:
I. S. Nossal for applicant.
A. D. Louie for respondent L. G. Smith,
Registrar, Indian and Northern Affairs
Canada.
No one appearing for respondents Raymond
John Quinn, Laura Rowan Quinn, Nadine
Rae Quinn, Raymond Quinn, Virgel Shawn
Quinn and Bonita Cheryl Quinn.
SOLICITORS:
Davis & Company, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent L. G. Smith, Registrar, Indian
and Northern Affairs Canada.
Roddick & Peck, Edmonton, for respondents
Raymond John Quinn, Laura Rowan Quinn,
Nadine Rae Quinn, Raymond Quinn, Virgel
Shawn Quinn and Bonita Cheryl Quinn.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application for man-
damus to require the respondent Registrar to
render a decision with respect to two protests by
the applicant Band Council, dated September 21,
1984 and January 21, 1986 objecting to the addi
tion to the Ermineskin Band List of the individual
respondents, members of the Quinn family. The
Quinns did not appear at the hearing of this
application, but counsel for the applicant advised
that their counsel had been served and that he had
indicated that his clients supported this applica
tion.
The facts are not in dispute. The individual
respondents were, by a decision of the Registrar of
July 31, 1984, found to be entitled to be registered
as members of the Ermineskin Band pursuant to
paragraph 11(1)(c) of the Indian Act, R.S.C.
1970, c. I-6. The first protest was adopted by an
Ermineskin Band Council resolution on September
21, 1984 and forwarded to the Registrar. No
decision has ever been rendered by the Registrar
with respect to that protest.
The relevant sections of the Indian Act then
applicable were amended by S.C. 1985, c. 27, s. 4
which was deemed to come into force on April 17,
1985, (apparently to coincide with the coming into
force of section 15 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]). These amendments replaced
sections 5 to 14 of the Indian Act making substan
tial changes with respect to entitlement and proce
dure for registration as Indians and as band
members.
Counsel for the applicant continued to press the
Registrar for a decision with respect to its protest
against the registration of the Quinns as band
members. By letter dated December 20, 1985 the
respondent Registrar advised counsel for the appli
cant that in his view, by virtue of the amendments
to the Indian Act, any person who was on a Band
List prior to April 17, 1985 was entitled to be a
band member and, therefore, with respect to pro
tests entered prior to April 17, 1985 "the remedy
has ceased to exist" because such persons could
not be removed. He stated that even if he upheld
the protest of September 21, 1984 he would have
no power to remove the names of the individual
respondents from the Band List. He made it clear
in his letter that he was not rendering a decision
with respect to the protest that was filed prior to
the coming into force of the amendment. He did,
however, suggest that the Band Council could use
the protest provisions under the new section 14.2
adopted as part of the amendments. With minor
changes, those protest provisions in the section are
basically similar to the previous ones found in
subsection 9(2) of R.S.C. 1970, c. I-6.
Acting on this suggestion, the applicant Band
Council adopted a new resolution on January 21,
1986 protesting against the addition in July, 1984,
of the individual respondents to the Band List. The
Registrar has so far failed to take a decision with
respect to this protest in spite of letters dated
February 7, 1986 and March 18, 1986 from coun
sel for the applicant herein requesting that he do
so.
There are two basic issues which I must deter
mine in deciding whether to grant mandamus:
whether there is a clear duty, not subject to his
discretion, on the Registrar to render a decision on
either or both of these protests; and if so, whether
a clear demand has been made for him to perform
this duty which has been refused. I shall deal with
the second question first.
It appears to me that the correspondence,
namely the letter from the applicant's counsel to
the Registrar of December 20, 1985 does not
disclose a clear demand simply to make a decision
with respect to the first protest. The key sentence
is:
The Band has instructed us that, unless a decision is made no
later than January 10th to delete Mr. Quinn, his wife and
familÿ from the Band List and to reimburse the Band for all
payments made to them out of Band funds, the Band will
commence action to obtain a court order to that effect.
This is not simply a demand to make a decision,
but rather a demand that the Registrar exercise
his powers in a particular way. Not even the
applicant argues that it had a right to demand a
particular decision: it only argues that it has a
right to some decision. Further, this demand
appears to have been withdrawn by a letter from
the Band's lawyer of March 18, 1986 in which he
says that:
Further to our letter of February 7 enclosing a new protest, we
advise that, unless a decision is made by you on that protest no
later than the end of this month, the Band will be compelled to
seek a court order to obtain a decision.
This is a clear and unambiguous demand for the
exercise of a non-discretionary power. While there
has been no express rejection of this demand, more
than enough time has passed for a response and
none has been forthcoming. This is tantamount to
a refusal to decide. I shall therefore deal with this
application for mandamus as being properly in
relation to the second protest adopted on January
21, 1986.
The remaining question, then, is whether a duty
lies on the Registrar to render a decision in rela-
tion to the second protest. I have concluded that it
does. I believe the Registrar has, in the position
which he has asserted to the applicant, confused
two issues: the one, whether he is obliged to decide
the protest; the other, what that decision should
be. His attitude with respect to the first protest,
when he refused by his letter of December 20,
1985 to make a decision on it, appears to be that
no decision was required because the outcome was
inevitable. Under the Act, as amended, it is pro
vided inter alia:
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 his representative.
(5) Where a protest is made to the Registrar under this
section, he shall cause an investigation to be made into the
matter and render a decision.
The protest adopted by the applicant Band Coun
cil on January 21, 1986 comes clearly within this
section. It was adopted by the Band Council, and
relates to a decision taken within three years prior
to that protest, namely on July 31, 1984. Subsec
tion 14.2(5) requires that with respect to such a
protest, the Registrar must render a decision.
Clearly, he may base that decision on findings of
fact or of law or both.
It may be that the amendments adopted in 1985
have unalterably confirmed the entitlement to
membership of anyone listed on a Band List
immediately prior to April 17, 1985 no matter
what the circumstances of his or her inclusion in
the list might have been. I need not, and should
not, attempt to decide that question which is one
for the Registrar to make. That conclusion is
certainly far from obvious from a reading of the
amendments as a whole and it is to be hoped that,
whatever decision the Registrar takes, he will
articulate a rationale. Once he has made a decision
it is subject to appeal to a court pursuant to section
14.3 just as his decisions on such protests were
subject to review (in the nature of an appeal) by a
judge pursuant to section 9 of the Indian Act as it
stood prior to the recent amendments.
By refusing or failing to give a decision on either
of these protests the Registrar is preventing an
appeal to a court of his interpretation of the law. I
am not able to conclude that Parliament intended
such a result. The reasoning of the Registrar
would appear to be that if a protest cannot succeed
as a matter of law, then no decision need be taken
in respect of it. His view that a protest cannot
succeed would appear to turn largely on the provi
sions of subsection 9(2) of the Act, as amended,
which provides as follows:
9....
(2) The names in a Band List of a band immediately prior to
April 17, 1985 shall constitute the Band List of that band on
April 17, 1985.
It is further provided in paragraph 11(1)(a) as
follows:
11. (1) Commencing on April 17, 1985, a person is entitled
to have his name entered in a Band List maintained in the
Department for a band if
(a) the name of that person was entered in the Band List for
that band, or that person was entitled to have his name
entered in the Band List for that band, immediately prior to
April 17, 1985;
But there is nothing here which says that no
protest can be made with respect to the fact of any
person being registered on a Band List prior to
April 17, 1985. Given the general nature of the
right of protest set out in section 14.2 and the
specific duty cast upon the Registrar to decide
such protests, I can see no reason why I should
read into those requirements an exception with
respect to the protests relating to inclusion in a
Band List prior to April 17, 1985. If the respond
ent is correct, such protests are doomed to failure.
But a right of appeal does not disappear just
because it has no possibility for success.
I shall therefore order the Registrar to render a
decision forthwith with respect to the protest
adopted by the applicant in its resolution of Janu-
ary 21, 1986.
ORDER
IT IS HEREBY ORDERED THAT:
(1) The respondent Registrar shall render a
decision with respect to the protest of the applicant
made on January 21, 1986 against the addition to
the Ermineskin Band List of the respondents, Ray-
mond John Quinn, Laura Rowan Quinn, Nadine
Rae Quinn, Raymond Quinn, Virgel Shawn Quinn
and Bonita Cheryl Quinn; and
(2) The applicant is entitled to its costs from the
respondent Registrar. No costs to or from the
other respondents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.