Gauchier v Cunningham, 2013 ABQB 713

Court of Queen ’ s Bench of Alberta Citation: Gauchier v Cunningham, 2013 ABQB 713 Date: 20131204 Docket: 1103 12719, 1103 15013 Registry: Edmonton Between: Docket: 1103 12719 Joseph Iner Gauchier Applicant - and - John Kenneth Cunningham, also Known As Kenny Cunningham Jr. Respondent And Between: Docket: 1103 15013 Joseph Iner Gauchier Applicant - and - Registrar, Métis Settlements Land Registry, Peavine Métis Settlement, Peavine Métis Settlement Council, Barbara Cunningham, John Kenneth Cunningham, Lawrent Cunningham, Gordon Cunningham Respondents _ ________________________________________ ______________

Memorandum of Decision of the Honourable Mr. Justice M.D.

Gates _________________________________________ ______________ Nature of the Application [ 1 ] The present applications relate to a longstanding dispute regarding the membership of certain individuals in the Peavine Métis Settlement (Peavine). [ 2 ] Joseph Iner Gauchier has filed an application (Action No. 1103 12719) seeking an order declaring that the Respondent John Kenneth Cunningham, aka Kenny Cunningham Jr. (Kenneth Cunningham) is disqualified from serving as a member of the Peavine Council on the basis that he voluntarily registered as an Indian under the Indian Act , RSC 1985, c I-5 after November 1, 1990 (the Council Application). [ 3 ] Mr.

Gauchier has also filed a second application (Action No. 1103 15013) naming the Registrar, Métis Settlements Land Registry (Registrar), Peavine and the Peavine Council as Respondents and asking that this Court grant an order in the nature of mandamus to: Compel the Registrar to: (

a) remove Barbara Cunningham; Lawrent Cunningham, aka Lawrence Cunningham; Gordon Cunningham; Roger Cunningham; Kenneth Cunningham; Ralph Cunningham; Lynn Noskey, aka Lynn Cunningham; and Ray Stuart, aka Ray Stewart (collectively, the Affected Parties) from the Peavine membership list (the List); and (

b) confirm the Indian Act registration status of all members on the List and remove all those persons disqualified from membership on the basis of their Indian Act registration after November 1, 1990. In the alternative, compel the Peavine Council to: (

a) issue notices of termination in regard to the Affected Parties and any others presently recorded on the List the Council or a Councillor has reason to believe voluntarily registered under the Indian Act after November 1, 1990; and (

b) notify the Registrar to remove from the List those persons the Registrar confirms voluntarily registered under the Indian Act after November 1, 1990. (the Mandamus Application) [ 4 ] In case management, I ordered that the Affected Parties be given notice of the applications. I have since learned that Ralph Cunningham died on January 1, 2010. [ 5 ] On February 13, 2013, Kenneth Cunningham, Barbara Cunningham, Lawrent Cunningham, Gordon Cunningham and Roger Cunningham applied in both actions for

summary judgment. They also sought an order extending the time for filing affidavits in response to Mr. Gauchier's applications. In Gauchier v Cunningham , 2013 ABQB 493 [ Gauchier ], I granted them an extension of the time in which to file affidavits and denied them

summary judgment. [ 6 ] In September 2013, Kenneth Cunningham, Barbara Cunningham, Lawrent Cunningham and Gordon Cunningham [the Four Cunninghams] were added to the Mandamus Application as Respondents. Relevant Legislation [ 7 ] The Métis Settlements Act , RSA 2000, c M-14 ( MSA ) came into effect on November 1,

Section 75 of the MSA provides that: 75

(1) An Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement is not eligible to apply for membership or to be recorded as a settlement member unless subsection (2) or (3.1) applies.

(2) An Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement may be approved as a settlement member if (

a) the person was registered as an Indian or an Inuk when less than 18 years old, (

b) the person lived a substantial part of his or her childhood in the settlement area, (

c) one or both parents of the person are, or at their death were, members of the settlement, and

(

d) the person has been approved for membership by a settlement bylaw specifically authorizing the admission of that individual as a member of the settlement.

(3) If a person who is registered as an Indian under the Indian Act (Canada) is able to apply to have his or her name removed from registration, subsection (2) ceases to be available as a way to apply for or to become a settlement member.

(3.1) In addition to the circumstances under subsection (2), an Indian registered under the Indian Ac t (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement may be approved as a settlement member if he or she meets the conditions for membership set out in a General Council Policy. [ 8 ]

Section 90 of the MSA , which has the heading “Automatic termination,” states: 90(1) Unless a General Council Policy provides otherwise, a settlement member terminates membership in a settlement if (

a) the person voluntarily becomes registered as an Indian under the Indian Act (Canada), or (

b) the person becomes registered as an Inuk for the purpose of a land claims agreement.

(2) On receipt from the settlement council of notice of a termination of membership under subsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the person concerned from the Settlement Members List. [Emphasis added.] [ 9 ] Pursuant to s 96(3) of the MSA : “ The Minister must keep the Settlement Members List up to date but may, by agreement with the General Council, delegate the responsibility” (emphasis added).

The Minister has delegated that responsibility to the Registrar. [ 10 ] Section 97(3) of the MSA specifies that: “A name must be removed from the Settlement Members List when a settlement member loses membership in a settlement in accordance with this Act” (emphasis added). [ 11 ] The Transitional Membership Regulation , Alta Reg 337/90, s 2(1) under the MSA contemplated that each settlement council and the Minister would give the Commissioner a list of names of members of each settlement association as at the date the former Act was repealed.

The Commissioner was then to prepare a settlement membership interim report setting out for each settlement the names of confirmed members and those with uncertain status (s 4). The report was to be posted in each settlement office and otherwise publicized. After that, the Commissioner could add to, amend or delete names from the report with the consent of the settlement council or Minister, depending on whose list the name appeared. The Commissioner was directed in s 7 to prepare a final report on or before December 31, 1990 or such later date as was agreed to by the Minister and the General Council.

Pursuant to s 8, a member whose name was shown in the final report as a confirmed settlement member was considered to be a member of the settlement. Those shown as having uncertain status could file a claim of membership with the Appeal Tribunal on or before 90 days after the final report was posted in the General Council office (s 9).

Section 14 of the Regulation indicates that: “ The settlement membership of a person who is a member under

section 8 or 13 of this Regulation may be terminated in accordance with the Act ” (emphasis added). Background [ 12 ] One of the former Registrars of the Métis Settlements Land Registry (MSLR) indicated during cross-examination on an affidavit he filed that it was his understanding that prior to November 1, 1990 there was an information campaign by the government and the Métis settlements to advise individuals who wished to avail themselves of their right to register as Indians to do so prior to the November 1, 1990 deadline.

He did not indicate what, if any, information was provided in terms of the Department of Indian and Northern Development’s (DIAND) registration process and the length of time it might take for registration to be confirmed. [ 13 ] With the exception of Ray Stuart and possibly Barbara Cunningham, the names of the other Affected Parties, including the Four Cunninghams, were on the list provided by Peavine of names of settlement members as at the date the former Act was repealed. As a result, those individuals were settlement members as at that date. Mr.

Stuart does not appear to have applied to become a member until 1995. Evidence was not before me as to when Barbara Cunningham initially became a member of Peavine, although there is evidence she became a member of the Big Prairie Métis Settlement in 1978. [ 14 ] On May 2, 1996, DIAND and the MSLR entered into a memorandum of agreement in which DIAND agreed to provide confirmation to the MSLR of whether specific individuals were listed in the Indian Register and, if they were, of the creation date for that listing, for the purpose of the administration or enforcement of the MSA .

The “creation date” was defined in the agreement as the date an individual became listed in the Indian Register or, if that date was not available in the Register, the creation date meant on or before November 1, 1990. [ 15 ] On June 23rd, 1999, the Peavine Council wrote to the Alberta Associate Minister of Aboriginal Affairs enclosing a list of names and asking her, pursuant to s 96(3) of the MSA , to investigate whether anyone on the list had registered as an Indian under the Indian Act .

Rather than do so, the Associate Minister apparently referred the matter to the Métis Settlements General Council. [ 16 ] On August 2, 1999, the Peavine Council passed a resolution approving the submission to the Registrar of notices of termination in relation to the Affected Parties and a number of other individuals. [ 17 ] On August 16th, 1999, the Peavine Council wrote to the Registrar requesting that, pursuant to s 90(1) of the MSA , he terminate the Peavine memberships of the persons named in the notices of termination of settlement membership enclosed with the letter.

The ground for termination referred to in the notices of termination was that the individuals named had voluntarily becoming registered as Indians under the Indian Act (Canada) after November 1, 1990. [ 18 ] There is no evidence before me as to when the Affected Parties first became aware that the Council had passed the resolution, although they were told by the Registrar about the notices of termination before they were struck from the Settlement List. There is no suggestion that they sought to challenge the Council resolution once they did become aware of it.

There is no evidence that any of the Affected Parties brought an action for abuse of office against Peavine Council for what the Four Cunninghams suggest was its selective targeting of members of the Cunningham family for removal from the List. [ 19 ] The Registrar responded to Council’s August 16, 1999 letter by indicating that DIAND was not prepared to release the information and, therefore, he could not verify the named persons had been registered as Indians. [ 20 ] Peavine then filed an originating notice returnable November 27th, 2000 seeking an order in the nature of mandamus directing the Alberta Minister for International and Intergovernmental Relations to prepare an updated Peavine List.

Peavine, the Minister and the Registrar were the only parties to that proceeding. [ 21 ] On December 29, 2000, the Registrar wrote to the Affected Parties notifying them the Peavine Council had requested that a search be undertaken of the Indian Registry to determine if and when they had become registered as Indians. The Registrar asked for their consent to the search and advised them the MSA provided that registration as an Indian could terminate their membership in Peavine.

In most cases, the letter was sent to the same address as appeared on a subsequent letter from the Registrar to which each of the Affected Parties responded. There is nothing in the evidence to indicate that any of the Affected Parties ever responded to the December 29 th letter from the Registrar.

A copy of the Registrar’s December 29, 2000 letter and other letters from the Registrar referred to below are contained in the Registrar’s files for the Affected Parties. [ 22 ] The result of Peavine’s mandamus application was that on March 2, 2001, Nash J issued her decision in Alberta (Minister of International and Intergovernmental Relations) v Peavine Métis Settlemen t, 2001 ABQB 165 at para 8 ( Peavine #1 ) directing the Registrar to prepare an updated List for Peavine by March 23, 2001. The Minister and Peavine were the only parties to Peavine #1 . No appeal was taken from Nash J's decision.

Nash J found in Peavine #1 that the Registrar had written to the Manager, Indian Registration and Band Lists on December 18, 2000 requesting confirmation the individuals with the submitted names had registered as Indians since November 1, 1990. [ 23 ] On March 6, 2001, the Registrar again wrote to the Affected Parties notifying them that the Peavine Council had asked that a search be undertaken of the Indian Registry with regard to them and asking for their consent to the search.

Counsel for Kenneth Cunningham advised that his client did not receive this letter. [ 24 ] For the stated purpose of verifying whether they had become registered in the Indian Register after November 1, 1990, the Registrar once again asked the Affected Parties by letter dated March 14, 2001 to provide him either with a letter of consent allowing DIAND to release information about their registration or a statutory declaration stating they had or had not terminated their settlement membership by voluntarily registering as Indians and providing the date of registration. [ 25 ] On or about March 26, 2001, Kenneth, Barbara, Gordon and Ralph Cunningham and Ray Stuart were informed by the Registrar that their names had been struck from the Peavine List, effective March 23, 2001.

On May 3, 2001, Lawrent Cunningham was advised his name had been struck from the List, effective that day. On May 10, 2001, Roger Cunningham and Lynn Noskey were advised that their names had been struck from the List effective that date. [ 26 ] The Affected Parties requested access to the records in the Registrar’s possession relating to them and asked that the Registrar notify them as to what information he had relied on in removing them from the List.

It is not clear from the evidence whether those requests were oral or made in writing. [ 27 ] On May 16, 2001, the Registrar wrote to Kenneth Cunningham enclosing the information received from DIAND which indicated he was not registered in the Indian Register. On the same date, he wrote to Lawrent Cunningham enclosing a copy of the Indian Registration Verification from DIAND showing Lawrence Cunningham was not registered as an Indian. The Registrar’s file also contained another copy of the Indian Registry Verification showing Lawrent Cunningham was registered as an Indian on October 5, 1992.

The birth date shown on the verifications for both Lawrent and Lawrence was the same.

Neither Kenneth nor Lawrent deny that they were registered as Indians prior to May 2001. [ 28 ] The information relied on by the Registrar for most of the Affected Parties appears to have been the “registration date” shown on a document provided by DIAND entitled “Métis Settlements Land Registry Indian Registration Verification.” [ 29 ] The table below shows the dates the Four Cunninghams applied for Indian status and the “registration date” apparently relied on by the Registrar for three of them: Name Date on Application “Registration” Date

Kenneth Cunningham November 15, 1989, mailed November 16, 1989. May 31, 1994 DIAND letter indicates “duplicate” application of November 15, 1989 was received November 2, 1993 and confirms Mr. Cunningham is now registered as an Indian. May 16, 2001 letter from Alberta Registrar encloses Indian Registration Verification showing Kenneth Cunningham is NOT registered as an Indian. Barbara Cunningham September 4, 1990 unknown Lawrent Cunningham September 4, 1990, mailed that same date.

The Indian Registration Verification shows that Lawrent Cunningham was registered on Oct. 5, 1992, but Lawrence Cunningham, with the same birth date, was not registered. On August 16, 1999, the Registrar received from the Peavine Council a copy of Mr.

Cunningham’s September 4, 1990 application for Indian status Gordon Cunningham September 4, 1990, mailed within a few days of that unknown [ 30 ] Ronald Raitz, the Registrar in 2007, confirmed during cross-examination on an affidavit he had sworn in the litigation leading to Peavine #2, 3 and 4 , that there was no documentation in the Registrar’s files showing what steps, if any, then Registrar Harold Blyan took in 2001 to verify the accuracy of the information provided by DIAND with respect to the Affected Parties and no documentation showing whether any steps were taken to identify the date of application for registration by the Affected Parties.

Nor was there documentation to indicate what steps, if any, the Registrar took in 2001 to determine what date was being used by DIAND as the registration date; that is, whether it was the date of initial application; the date the application was received by DIAND, the date it was reviewed, the date it was considered complete, the date it was approved, the “creation date,” or some other date. [ 31 ] It is unclear what information the then Registrar had before him when he struck each of the Affected Parties from the List.

At a minimum, it was the Indian Registration Verification with the registration date, although presumably he had other information in terms of Kenneth Cunningham as the Verification showed Kenneth Cunningham was not registered as an Indian even though he was.

Of course, the Registrar also had copies on file of his own correspondence to the Affected Parties as referred to above. [ 32 ] On May 15-16, 2001, the Four Cunninghams each wrote to the Registrar in similar words saying they were “appealing” his decision or asking that his decision be considered “void” until they had an opportunity to be heard by the Registrar and the Minister.

In his letter to the Registrar of May 15, 2001, presumably prepared by someone on his behalf, Ralph Cunningham indicated he did not read or write. [ 33 ] On May 22, 2001, the Registrar wrote to Lawrent Cunningham saying he did not know of any provision in the legislation providing for an appeal of the removal of a name from the List, but advising him that he could bring an application for judicial review of the decision. He recommended that Mr. Cunningham seek legal advice as to whether he might have any recourse in the Court of Queen’s Bench.

The next day, the Registrar sent a similar letter to Kenneth, Barbara and Gordon Cunningham. [ 34 ] While the Four Cunninghams asked the Registrar to consider their removal from the List void until they had an opportunity to meet with him and the Minister, there is no indication that such meetings took place or, if they did, that a political resolution to the matter was achieved. The Registrar advised that they seek legal counsel with respect to having his decision to strike them from the List judicially reviewed. There is no evidence that any of them applied for judicial review of the Registrar’s decision.

Further, there is no indication they made any efforts to have the federal government amend the date of their “registration” on the Indian Registry to accord with their application date. [ 35 ] On November 20, 2001, the Registrar was advised by Peavine that Lawrent Cunningham’s medical coverage from Health Canada was made effective one month after his application for Indian status. The Registrar was asked to take a second look at Mr. Cunningham’s termination as a settlement member. [ 36 ] In 2005, the Affected Parties asked the Registrar to reinstate their names to the List.

By letter dated November 17, 2005, the Registrar indicated he did not have the power to do so. He advised them to re-apply for membership under the Act, although it is not clear that they would have met the criteria for membership. [ 37 ] In 2006, five years after being struck from the membership list, the Affected Parties and Peavine brought a Charter challenge to ss 75 and 90 of the MSA . The Minister and the Registrar were named as respondents in that matter.

Shelley J, in Peavine Métis Settlement v Alberta (Minister of Aboriginal Affairs and Northern Development) , 2007 ABQB 517 , 424 AR 271( Peavine #2 ), noted at

para 47 that the Affected Parties did not dispute they were registered as Indians under the Indian Act after November 1, 1990, although anumber of them had applied before that date. [38] Shelley J identified the issues before her as being whether: the application was an impermissible attempt to appeal the order of Nash J; the individual Applicants had standing to bring the application; the words or effect of ss 75 or 90 of the MSA offended ss 2(d), 7 or 15(1) of the Charter; if either or both of those provisions offended the Charter, the infringement was a reasonable limit prescribed by law as demonstrablyjustified in a free and democratic society under s 1 of the Charter; and the Registrar was entitled or obliged to restore an individual to a settlement's membership list when requested to do so by the settlementcouncil, after the individual was removed from the list following a request made by the former council of the settlement, if that originalrequest was made in bad faith. [39] At para 46, Shelley J held that the constitutional issues raised in the application before her were not before Nash J and,therefore, the application could not be considered an impermissible collateral attack on Nash J’s order, nor an abuse of process. [40] Shelley J determined at para 51 that the Affected Parties had standing to bring the Charter challenge.

However, she found theimpugned sections of the MSA did not infringe ss 2(d), 7 or 15(1) of the Charter. [41] At paras 48 and 207, she held that the Affected Parties were precluded from arguing the original decision to strike them fromthe List was based on a request by the Peavine Council that was made in bad faith as they chose not to challenge that decision. Shedismissed the Charter challenge. [42] On appeal from Shelley J's decision, the Alberta Court of Appeal in Cunningham v.

Alberta (Minister of Aboriginal Affairsand Northern Development, 2009 ABCA 239, 457 AR 297 (Peavine #3) held that ss 75 and 90 of the MSA were unconstitutional.

TheAffected Parties were successful in their request for an order in the nature of mandamus under s 24(1) of the Charter compelling theRegistrar to restore their names to the List retroactive to the date their names were removed from the List. [43] On further appeal, the Supreme Court of Canada in Alberta (Aboriginal Affairs and Northern Development) v.Cunningham, 2011 SCC 37, [2011] 2 SCR 670 (Peavine #4) allowed the appeal, set aside the decision of the Court of Appeal, andaffirmed the decision of Shelley J. [44] Kenneth Cunningham continues to sit as a member of the Peavine Council. [45] Mr.

Gauchier, through his counsel, asked the Peavine Council and the Registrar in 2011 to take action to have the names ofthe Affected Parties struck from the List. They did not do so. The Registrar at that time took the position that as the Supreme Court ofCanada had not issued an order compelling her to remove the names of the Affected Parties from the List, she was governed by s 90 ofthe MSA and could take no steps to do so unless and until she received new notices of termination from the Peavine Council. [46] Another Peavine Council election is set for October 7, 2013, prompting the present applications by Mr.

Gauchier. Arguments of the Parties [47] Mr. Gauchier takes the position this case is about res judicata and the Four Cunninghams are attempting to retry a matterwhich has long since been decided. [48] He says there is no need to submit new notices of termination with respect to the Affected Parties as the ones originally sent tothe Registrar by the Peavine Council in 2001 are valid and sufficient. He points out that the Affected Parties never sought judicialreview of the decision of the Registrar to remove their names from the Peavine List. [49] Mr.

Gauchier submits that the Four Cunninghams appear to be raising the argument they did not voluntarily register asIndians after November 1, 1990 as they applied for Indian status before that date. He contends this argument is legally in error. Mr.Gauchier says the effect of the Transitional Membership Regulation was that each settlement prepared a list of members as at November1, 1990 and the membership of those persons could be terminated in accordance with the Act. He submits their membership could beterminated for voluntary registration as an Indian, no matter the date of their registration.

He maintains that “voluntary,” in the context ofthe Act, means registering as an adult. [50] Mr. Gauchier submits that, in any event, the date of application by the Affected Parties is certainly not new informationwhich came to light only after Peavine #4. [51] He asserts that he has standing to bring the mandamus application and the test as set out in Apotex Inc v Canada (AG), [1994]1 FC 742, (FCA) [Apotex], aff'd, [1994] 3 SCR 1100, (SCC) is met. [52] Peavine and the Peavine Council oppose Mr. Gauchier’s Mandamus Application.

They argue it would not be just andequitable to remove the names of the Affected Parties from the List. In terms of the Apotex test, they suggest there is another adequateremedy available to Mr. Gauchier, being to direct the Registrar to consider “all facts necessary” and to remove the Affected Parties whoare in violation of the MSA.

[53] They say there is an equitable bar to the relief sought by Mr. Gauchier. They assert that Shelley J in Peavine #2 and the Courtof Appeal in Peavine #3 characterized the conduct of the Peavine Council which initially sent the notices of termination as “politicaltargeting,” “seemingly vindictive,” and arbitrary. They suggest Mr. Gauchier, as a member of the Peavine Council at the time, has thissame dirt on his hands and this precludes the granting of mandamus, an equitable remedy.

They submit the Registrar who removed thenames of the Affected Parties from the List had incomplete information and may have erred in removing some or all of them. [54] Peavine and the Peavine Council point out that the proper

interpretation of the effect of the Transitional MembershipRegulation was not before the courts in Peavine #1, 2, 3 or 4 and is not before the Court now. Any comments made in that regard wereobiter. The issue is not res judicata. They argue that it is for the Registrar to determine if the names of the Affected Parties should beremoved from the List. [55] Peavine and the Peavine Council submit that Mr.

Gauchier should have brought a judicial review application in relation to theRegistrar’s 2011 refusal to remove the names of the Affected Parties from the List. [56] They submit the balance of convenience favours allowing the Metis communities the time and space to come to a politicalsolution of this matter and only granting that portion of the relief sought which would direct the Registrar to consider “all factsnecessary” and to remove the Affected Parties who are in violation of the MSA. [57] The Registrar points out that he does not have the ability to further consider an individual’s membership in a settlement if theyhave been struck from the List and emphasizes that at present there is no mechanism for an individual who has Indian status to relinquishthat status. [58] The Registrar takes the position he owes a public duty to settlement councils but not to individual settlement members formembership decisions he makes.

However, he takes no issue with the proposition that the proper

interpretation of the effect of Peavine#4 is of interest to all Peavine members. [59] The Registrar notes that it was only after Peavine #4 that his office received information as to the date certain of the AffectedParties applied for Indian registration.

That information was provided by Lawrent, Kenneth and Roger Cunningham. [60] The Registrar suggests that administrative law principles may indicate he has an implied power to conduct a further review ofthe status of individuals whose names were struck from the List and then put back on the List. [61] The Registrar also seems to suggest that it might be appropriate to relax strict limitation rules to allow the Affected Partiesfurther opportunity to advance their argument before him that they did not voluntarily register as Indians after November 1, 1990, citingSwain Estate v Lake of the Woods District Hospital, 1992 CarswellOnt 465 (CA). [62] In terms of Mr.

Gauchier’s application that the Court compel the Registrar to confirm the Indian Act registration status of allmembers on the Peavine List, the Registrar argues he has no duty to undertake investigations with respect to individuals if a settlementcouncil has not submitted a notice of termination relating to that individual. [63] The Four Cunninghams oppose the Mandamus Application and Kenneth Cunningham opposes the Council Applications onthe basis that they all applied to be registered as Indians under the Indian Act before November 1, 1990, they did not voluntarily registeras Indians after that date, and their membership in Peavine never terminated. [64] They say that the Peavine Council at the time the notices of termination were submitted to the Registrar had no actualknowledge that any of the 23 people named in the notices had actually voluntarily registered as Indians after November 1, 1990.

Theypoint out that Nash J apparently was not advised of this during Peavine #1. They note the Deputy Minister of Aboriginal Affairs in 1999was of the view the Peavine Council’s attempt to remove the Cunninghams from the List was politically motivated. They also emphasizethe Court of Appeal in Peavine #3 concluded the request for removal was the act of a vindictive council. [65] The Four Cunninghams argue that it is a fundamental rule of statutory

interpretation that the legislature should not be taken asintending that new legislation should be applied in circumstances where its application interferes with vested rights.

They argue that avested right should not be defeated simply because the procedural steps necessary to claim the right have not all been taken prior to thelegislative change or because certain formalities are required to be completed after the legislative change, citing Sullivan on the Construction of Statutes, 5th ed (Markham, Ontario: LexisNexis Canada Inc., 2008) at 711-715 and R v Abell (1979) (SK CA), 49 CCC (2d) 193 at paras 9-11. [66] The Four Cunninghams argue the notices of termination submitted to the Registrar in 1999 were not valid as they were passedat a Council meeting of which the Affected Parties were not given notice and at a time when the Council had no actual knowledge ofwhether any of them had voluntarily registered as Indians after November 1, 1990. [67] The Four Cunninghams argue that res judicata and issue estoppel do not apply to the decision of the Registrar to strike theAffected Parties from the List as it was an administrative rather than a judicial decision.

They argue that res judicata is meant to balancethe public interest in the finality of litigation with its interest in ensuring that justice is done in a given situation: Danyluk v AinsworthTechnologies Inc., 2001 SCC 44 at para 33. [68] They argue that their constitutional challenge to ss 75 and 90 of the MSA was a separate and distinct cause of action from thequestion of whether they voluntarily registered to be Indians after November 1, 1990 and, therefore, cause of action estoppel does notapply. [69] The Four Cunninghams argue that even if res judicata might apply, the Court should exercise its discretion not to apply it.They say the Court’s discretion in that regard is broader in relation to a previous decision by an administrative tribunal than it is for aprevious court proceeding.

They contend the objective of res judicata is to promote the orderly administration of justice, but not at thecost of real injustice in the particular case, again citing Danyluk at paras 63 and 67 and Noyes v David Morris Fine Cars Ltd., 2011

ABQB 648 at paras 33-34. [70] The Four Cunninghams acknowledge they should have sought judicial review of the Registrar’s decision in 2001, but they saytheir failure to do so should not be fatal to their position as an injustice will occur if the issue is not adjudicated on its merits as towhether they voluntarily applied to be registered as Indians after November 1, 1999, given they applied for registration prior to that date. [71] The Four Cunninghams take the position that Mr.

Gauchier cannot meet the test for mandamus as the Registrar has no publiclegal duty to remove their names from the Peavine List as he has not received new notices of termination and the previous ones wereinvalid. Further, they argue the Registrar’s authority under s 90(2) of the MSA is a discretionary one.

If the facts demonstrate anindividual did not voluntarily register as an Indian after November 1, 1990, the Registrar has the discretion not to remove them from theList even in the face of a notice of termination from the settlement council. [72] The Four Cunninghams say that equity and the balance of convenience weigh in favour of refusing mandamus. Analysis A. The Council Application [73] Mr.

Gauchier seeks a declaration that Kenneth Cunningham is disqualified from serving as a member of the Peavine Councilon the basis that he voluntarily registered as an Indian under the Indian Act after November 1, 1990. [74] The Respondents question whether he has standing to bring an application for a declaration or mandamus. [75] In Distribution Canada Inc v M.N.R., (FCA), [1993] 2 F.C. 26 (CA), the court noted at para 23 that thenotion of public interest was enlarged in Finlay v Canada (Minister of Finance), (SCC), [1986] 2 SCR 607, due to thecourt’s concern that “it should have discretion to recognize public interest standing to bring an action for a declaration when there was noother reasonable way the matter could be brought to Court.” The court further commented in obiter at para 23 that Thorson v AttorneyGeneral of Canada, (SCC), [1975] 1 SCR 138; Nova Scotia Board of Censors v McNeil, (SCC), [1976]2 SCR 265; Minister of Justice of Canada v Borowski, (SCC), [1981] 2 SCR 575 and Finlay had not clearly excluded“the possibility of extending standing to a proceeding in mandamus where there is a public interest to be expressed and there is no otherreasonable way for it to be brought to court.” [76] In my view, standing can be extended to a third party if they have a genuine interest in the resolution of the issue and there isno other reasonable and effective manner in which the issue may be brought before the court. [77] Mr.

Gauchier asked the Registrar to strike the names of the Affected Parties from the List given the Supreme Court ofCanada’s decision in Peavine #4. The Registrar refused to do so. As a member of Peavine and as a member of the Peavine Council whichinitially sent the notices of termination to the Registrar, Mr. Gauchier has an interest in seeing the List properly maintained, seeing thebenefits of membership go to members of the settlement, and seeing the legal requirements of membership are complied with. AlthoughMr.

Gauchier has no better interest than any other member of Peavine, he stands in a similar position to Mr. Thorson in the Thorsondecision. Mr. Thorson was recognized as having standing to challenge tax legislation because he was a taxpayer and the AttorneyGeneral had refused to act. Mr. Gauchier has standing here because he is a member of Peavine and because the Registrar has refused toact.

Also, this application is the only reasonable and effective way for this matter to come before the court given the Registrar refused toremove the names of the Affected Parties from the List. [78] On May 31, 1994, the DIAND Acting Registrar sent Mr. Cunningham a letter thanking him for his November 15, 1989duplicate application for registration, which he indicated was received on November 2, 1993. He advised that Mr. Cunningham was nowregistered as an Indian. He indicated that if Mr. Cunningham disagreed with the decision, he could submit a protest to the Registrarwithin three years. [79]

Section 14.2(1) of the Indian Act provides that: 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 aperson from, the Indian Register, or a Band List maintained in the Department, within three years after the inclusion or addition, oromission or deletion, as the case may be, by notice in writing to the Registrar, containing a brief statement of the grounds therefor. [80] Before his name was struck from the Peavine List, Mr.

Cunningham was notified by the Registrar that the Peavine Councilhad submitted a notice of termination in relation to him and had asked the Registrar to search the Indian Registry in order to determine ifand when he had obtained Indian status. [81] There is no evidence that Mr.

Cunningham challenged the decision of the Council to issue the notice of termination althoughthe Respondents now claim the notices were invalid. [82] Section 90(2) of the MSA provides that, on receipt from the settlement council of notice of a termination of membership undersubsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the personconcerned from the Settlement Members List. [83] On March 23, 2001, the Registrar struck Mr.

Cunningham’s name from the Peavine List because he “voluntarily registered as[an] Indian under the Indian Act (Canada) after November 1, 1990.” The Registrar advised Mr. Cunningham of this by letter datedMarch 26, 2001. Obviously, Mr. Cunningham received the letter or otherwise learned his name had been struck from the List, as hewrote to the Registrar asking what information the Registrar had relied on in doing so. In May 2001, he notified the Registrar he wasappealing the decision and wanted it to be considered void until he had an opportunity to meet with the Registrar and the Minister.

[84] The Registrar wrote to Mr. Cunningham recommending that he seek legal advice and suggesting he might be able to have thedecision judicially reviewed. [85] There is no evidence from Mr. Cunningham as to what further steps, if any, he took at that time to challenge the Registrar’sdecision.

He did not seek to have it judicially reviewed. [86] Rule 753.11(1) of the Alberta Rules of Court at the time provided that: Where the relief sought is an order to set aside a decision or act, the application for judicial review shall be filed and served within sixmonths after the decision or act to which it relates. [87] In responding to Mr. Gauchier’s application, Kenneth Cunningham now argues the Registrar’s finding was in error as heought to have relied on his application date for Indian status rather than some other date. [88] It was not until a day after the decision in Peavine #4 was issued that Mr.

Cunningham wrote to the Registrar advising her thathe felt an administrative error had been made in terms of the effective date of his Indian status and enclosing a letter from Health Canadaverifying his coverage for non-insured health benefits with First Nations and Inuit Health had been made effective to November 15,1989.

He asked the Registrar to “correct this administrative oversight and record my INAC registrations as per effective date” and askedthat his membership in Peavine “be correctly identified as falling within the transitional membership provision.” [89] There is no indication the Registrar responded to this request or that Mr. Cunningham sought judicial review of whateverdecision might have been made by the Registrar. [90] In essence, it appears that Kenneth Cunningham is now attempting to bring a collateral attack against the Registrar’s 2001decision.

However, he is long out of time to do so. [91] In Canada (Attorney General) v Lameman, 2008 SCC 14, [2008] 1 SCR 372, the Supreme Court of Canada stated at paras13-14: This Court emphasized in Wewaykum Indian Band v. Canada, 2002 SCC 79 , [2002] 4 S.C.R. 245, 2002 S.C.C. 79 that therules on limitation periods apply to Aboriginal claims. The policy behind limitation periods is to strike a balance between protecting thedefendant's entitlement, after a time, to organize his affairs without fearing a suit, and treating the plaintiff fairly with regard to hiscircumstances.

This policy applies as much to Aboriginal claims as to other claims, as stated at para. 121 of Wewaykum: Witnesses are no longer available, historical documents are lost and difficult to contextualize, and expectations of fair practices change.Evolving standards of conduct and new standards of liability eventually make it unfair to judge actions of the past by the standards oftoday. [92] For the same reasons, the limitation for bringing a judicial review application applies, despite the hardship which might resultto Mr. Cunningham (and the other Affected Parties). [93] Mr.

Cunningham’s name was added back onto the List in 2009 as a result of an order in the nature of mandamus issued by theAlberta Court of Appeal in Peavine #3. [94] In Gauchier at para 43, I stated: The Court of Appeal's order compelling the Registrar to restore the names of the Affected Parties to the List was made pursuant to s24(2) of the Charter as a remedy for what the Court of Appeal found was an infringement of the rights of the Affected Parties. As theSupreme Court of Canada found there was no Charter breach, the foundation for reinstatement of the names of the Affected Parties tothe List no longer exists.

In my view, the Supreme Court of Canada's decision in Peavine #4 can only reasonably be interpreted as settingaside the decision of the Court of Appeal in Peavine #3 in its entirety. As such, the effect of the Supreme Court of Canada's decision wasto restore the status quo as it existed immediately following the decision of Shelley J in Peavine #2. This would include the originalnotices of termination relating to the Affected Parties. [95] While Mr. Cunningham’s name is currently on the Peavine List, this does not establish he is a member of Peavine.

His nameis on the List only because of the Court of Appeal’s order that the Registrar add his name to the List. The foundation for that order hasdisappeared. [96] The Registrar in 2001 found that Mr. Cunningham had voluntarily registered as an Indian under the Indian Act afterNovember 1, 1990. As noted above, that decision must stand as it was not challenged within the time provided by the Rules of Court.Nor did Mr.

Cunningham bring a judicial review application in relation to the decision, if any, made by the Registrar in response to hisJuly and August 2011 correspondence essentially asking for reconsideration of the 2001 decision. [97] The Registrar seems to suggest that administrative law principles may allow him to reconsider his decision. While raising thisargument, the Registrar did not elaborate on this point. I do, however, observe that, as noted at paragraphs 88 and 89 herein, that theRegistrar appears to have declined to reconsider the matter when requested to do so by Mr. Cunningham.

I would note that the MSAdoes not appear to give the Registrar the authority alluded to. Also, I note, that in Chandler v Alta. Assoc. of Architects, (SCC), [1989] 2 SCR 848, Sopinka, J. for the majority stated at para 20: I do not understand Martland, J., [in Grillas v Minister of Manpower and Immigration, (SCC), [1972] SCR 577] to go sofar as to hold that functus officio has no application to administrative tribunals.

Apart from the English practice which is based on areluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings beforeadministrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it inaccordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within

jurisdiction , or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp. , supra . [Emphasis added.] [ 98 ] Section 75(1) of the MSA states that an Indian registered under the Indian Act (Canada) is not eligible to apply for membership or to be recorded as a settlement member unless subsection (2) or (3.1) applies.

There is no evidence that either subsection does apply in Kenneth Cunningham’s case, at least at present. [ 99 ] Section 90(1) of the MSA provides that, unless a General Council policy provides otherwise, a settlement member terminates membership in a settlement if the person voluntarily becomes registered as an Indian under the Indian Act (Canada). My understanding is that there is no General Council policy providing otherwise. [ 100 ]

Section 14 of the Act provides that no person is eligible to vote at a general election or by-election unless that person is a settlement member. Under s 15(a), a settlement member is eligible to be nominated as a candidate for councillor if the member is eligible to vote at the election at which he or she is to be a candidate.

Section 17(1)(a)(ix) reads that a settlement member is ineligible to be nominated as a candidate for councillor or to serve as councillor if, on nomination day, or between nomination day and the time that the candidate is declared elected, the settlement member in some other manner is, or becomes ineligible to be, or disqualified from being nominated as a candidate for, or to serve as, a councillor. Further, s 25(1)(

d) provides that a councillor is disqualified from remaining on the settlement council if the councillor ceases to be a settlement member. [ 101 ] The combined effect of the Registrar’s 2001 decision relating to Mr. Cunningham and these provisions of the MSA is that Mr. Cunningham is no longer a member of Peavine and, as such, is precluded from voting or running as a councillor in Peavine’s elections. B. The Mandamus Application Directed at the Registrar 1. Remove the Affected Parties from the List [ 102 ] Mr.

Gauchier seeks an order in the nature of mandamus to compel the Registrar to remove the Affected Parties from the Peavine List. [ 103 ] In Apotex at para 55 , the Supreme Court of Canada set out the principal requirements which must be met before mandamus will issue.

They are that: There must be a public duty to act; The duty must be owed to the applicant; There must be a clear right to the performance of that duty, meaning that: the applicant has satisfied all conditions precedent giving rise to the duty; and there was: a prior demand for performance of the duty; a reasonable time to comply with the demand, unless there was outright refusal; and a subsequent refusal, which could have been either express or implied (e.g. unreasonable delay); Where the duty sought to be enforced is discretionary, the following rules apply: in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith;" mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered;" in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations; mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty; No other adequate remedy is available to the applicant; The order sought must be of some practical value or effect; There is no equitable bar to the relief sought; On a balance of convenience, mandamus should issue. [ 104 ] In terms of the first requirement, my reasoning in Gauchier sufficiently deals with the existence of a public duty to act under step 1 of the test.

I stated at paras 27-31 of Gauchier that:

Section 96(1) of the MSA specifies that the Minister must establish the List by virtue of s 96(3). The Minister must keep the List up to date but may, by agreement with the General Council, delegate that responsibility. Section 97(3) provides that a name must be removed from the List when a settlement member loses membership in a settlement in accordance with the Act (emphasis added). Responsibility to maintain the List has been delegated to the Registrar. In her affidavit, former Registrar Lisa Chartrand acknowledged she had been delegated authority by the Minister under the MSA to maintain the List.

According to his submissions, the current Interim Registrar agrees with that fact. I note that in Alberta (Minister of International and Intergovernmental Relations) v Peavine Métis Settlement , 2001 ABQB 165 at para 17 ( Peavine #1 ), Nash J also concluded that the Minister had delegated to the Registrar responsibility under the MSA to verify registration, receive information and remove names. Pursuant to s 90(1)(

a) of the MSA , unless a General Council Policy provides otherwise, a settlement member terminates membership in a settlement if that person voluntarily becomes registered as an Indian under the Indian Act . Section 90(2) says that on receipt from the settlement council of notice of a termination of membership under subsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the person concerned from the List.

The Registrar, by delegation from the Minister, has a public legal duty to keep the List up to date and to remove from the List the name of anyone whose membership in a settlement has terminated. As Nash J found in Peavine # 1 at para 19, these duties are phrased in mandatory terms. They are not discretionary. .... In the event an administrative official does not comply with a public legal duty, the Court, in its supervisory role, is entitled to require that the official do so (D.P. Jones and A.S. de Villars, Principles of Administrative Law , 3d ed, (Toronto: Carswell, 1999), at pp 569- 572).

That is precisely what Nash J did in Peavine #1 . [ 105 ] Second, the Registrar owes this duty to the settlement. In the present case, it was the Peavine Council which sent the notices of termination to the Registrar. The Registrar undertook the verification of facts considered necessary and removed the names of the Affected Parties from the List. As stated above, the only reason their names now appear on the Peavine List is because the Registrar was ordered by the Court of Appeal to add them.

The decision of the Court of Appeal has been set aside. [ 106 ] In my view, the Registrar’s duty is also to the settlement members. They too have an interest in ensuring that those who have terminated their membership in the settlement are not accessing resources or taking benefits meant for members and are not voting or running in settlement elections. [ 107 ] As I noted above, Mr. Gauchier has standing to seek this application. He is a member of Peavine and was a member of the Peavine Council which initially sent the notices of termination to the Registrar.

He has an interest in seeing the List properly maintained and seeing that benefits of membership go to members. He asked the Registrar to return the List, as it relates to the Affected Parties, to the state it was in prior to the Court of Appeal’s decision in Peavine #3 . The Registrar refused to do so. Peavine Council took no action to have the Registrar strike the names of the Affected Parties from the List. This application is the only reasonable and effective way for this matter to come before the Court.

I note also that there is some urgency in the matter as elections will soon be held at Peavine and my understanding is that Mr. Cunningham is again running for Council. [ 108 ] Third, all conditions precedent to performance of the duty have been satisfied. Mr. Gauchier made a demand for performance and the Registrar expressly refused to comply. [ 109 ] The Four Cunninghams submit the Registrar has not received termination notices in regard to the Affected Parties and, therefore, this precondition has not been met. I disagree with that argument.

True, the Registrar did not receive termination notices in regard to the Affected Parties after the Court of Appeal ordered that their names be added back onto the List in Peavine #3 .

However, the Registrar received notices of termination for the Affected Parties in 1999, conducted the investigations he deemed necessary under the MSA , and removed the Affected Parties from the List. [ 110 ] The Registrar only had authority to place the Affected Parties back on the List because the Court of Appeal in Peavine #3 found that ss 75 and 90 of the MSA violated the Charter and ordered the Registrar to reinstate them to the List. The Supreme Court of Canada in Peavine #4 found no violation of the Charter .

As I stated in Gauchier at para 43 : “...the effect of the Supreme Court of Canada's decision was to restore the status quo as it existed immediately following the decision of Shelley J in Peavine #2 .

This would include the original notices of termination relating to the Affected Parties.” [ 111 ] There is a certain irony in the Four Cunninghams arguing that an order of the Court of Appeal with no legal foundation stands while arguing that there is no legal foundation for the exercise of authority which would return the List as it relates to the Affected Parties to the state it was in prior to Peavine #3 . [ 112 ] I find that the conditions precedent to the performance of the Registrar’s duty have been met.

In fact, the Registrar previously performed that duty based on those conditions precedent. [ 113 ] Fourth, the Registrar’s duty is mandatory, as I explained in Gauchier at paras 27-30 and as Nash, J. explained in Peavine #1 at para 19 . [ 114 ] Fifth, Mr. Gauchier has no other adequate remedy. An order in the form of mandamus requiring the removal of the Affected Parties from the List returns the situation to the status quo in terms of those individuals .

No other order would do so. [ 115 ] The Registrar suggests it would be a more appropriate resolution to this matter to direct him to undertake the factual investigation of the membership status of the seven living Affected Parties.

I note, however, there has been nothing stopping the Registrar from making further inquiries to verify the facts relating to those individuals and no indication the Registrar was of the view he could reconsider the finding made by his office in 2001 that the Affected Parties had registered as Indians after November 1, 1990. [ 116 ] Sixth, the order will be of some practical value or effect. The order will remove the Affected Parties from the List, returning the

situation as it relates to them to what it was before the Court of Appeal’s order in Peavine #3 . [ 117 ] Seventh, there is no equitable bar for relief in this case. [ 118 ] The Four Cunninghams allege that Mr. Gauchier used his position on the Peavine Council from 1999 to 2001 to single out and issue termination notices against the Cunningham family.

Their remedy for this complaint laid in a challenge to the resolution passed by the Council or in an action for abuse of public process against the Peavine Council. [ 119 ] As stated by Shelley, J. in Peavine #2 at paras 48 and 210 : In my view, if the Applicants [the Affected Parties, including the Applicant Cunninghams] took issue with the request made by the Former Peavine Council, which was the foundation for Nash J.'s decision and the Registrar's action in removing the individual Applicants from the Peavine membership list, judicial review of that action should have been sought or an appeal of Nash J.'s decision should have been taken.

The Applicants are now well out of time for doing so and therefore are precluded from arguing that the request of the Former Peavine Council was made in bad faith. . . . ... even if the Applicants could have argued bad faith on the part of the Former Peavine Council, I am not convinced that bad faith would have affected the original decision of the Registrar to strike the individual Applicants from the settlement’s membership list. As determined by Nash J., the Registrar was acting under a mandatory duty at that time, not a discretionary one. The Applicants do not contend that he was acting in bad faith.

While the Former Peavine Council may have selectively targeted the individual Applicants for removal, that does not mean that they should not have been removed from the membership list. [ 120 ] The Supreme Court of Canada in Peavine #4 also recognized (at para 26 ) that: Underlying this litigation is the suggestion that the manner in which the Cunninghams' registration was revoked was procedurally unfair.

The list that the Peavine Council submitted to the Registrar of the Métis Settlements Land Registry for revocation of membership did not include all of the members who had obtained Indian status, but only the members of the Cunningham family. Following related proceedings ( Alberta (Minister of International and Intergovernmental Relations) v. Peavine Métis Settlement , 2001 ABQB 165 , [2001] 3 C.N.L.R. 1), the Registrar removed the claimants from the Peavine membership list on May 10, 2001.

Though bad faith and improper motivations were alleged against the then Council, no judicial review or other action was commenced on that basis. Accordingly, the matter of how the revocation proceeded is not before this Court. [ 121 ] In any event, the Four Cunninghams, in my view, have not clearly established bad faith on the part of Mr. Gauchier. Mr. Gauchier acknowledged he was a member of the Peavine Council in 1999 when it issued the notices of termination in respect of the Affected Parties and others.

Kenneth Cunningham was also, although apparently he was not at the meeting which passed the resolution to submit the notices of termination. During questioning on his affidavit, Mr. Gauchier indicated that the Peavine Council in 1999 wanted to ensure only eligible individuals were on the voters list and running in elections. As a result, it gave its membership list to the Registrar to be checked. However, the Registrar asked the Council to send in notices of termination in blocks. Mr. Gauchier testified he was not the one who compiled the list of 23 names submitted to the Registrar in August, 1999.

He said that he, himself, could be considered a Cunningham. He indicated it was common knowledge or at least a suspicion in Peavine that certain of the people on the list had registered as Indians.

He said that in addition to submitting the notices of termination, the Council also instituted a policy requiring that anyone wanting to receive any of the services offered to members of Peavine execute a release allowing the Council to obtain information from DIAND as to whether and when they had registered as an Indian. [ 122 ] The Four Cunninghams also claim that new information has come to light about the dates on which some of the Affected Parties applied for status under the Indian Act .

A former Registrar deposed that this information came to her attention only after the Supreme Court of Canada’s decision in Peavine #4 . However, it would appear the Registrar’s office was notified on or about November 20, 2001, that Lawrent Cunningham’s medical coverage from Health Canada was made effective one month after his application for Indian status. The Registrar was asked to take a second look at his termination as a settlement member.

This suggests the issue of whether the application date should be the one used as the registration date for purposes of the MSA was before the Registrar some twelve years ago. Even though the Registrar now suggests he may have an implied authority to reconsider his decisions, he did not do so when asked to on behalf of Lawrent Cunningham and later by Kenneth Cunningham. [ 123 ] Also, the Affected Parties knew when or about when they had applied for Indian status.

Even before they were notified that their names had been struck from the List, the Registrar wrote to them on three separate occasions, asking for their permission to search the Indian Registry to determine if they had registered as Indians. They had the opportunity to submit a statutory declaration or other evidence to the Registrar establishing that they had applied for registration as Indians prior to November 1, 1990. They were notified shortly after their names were struck and advised to consult with legal counsel about seeking judicial review of the Registrar’s decision.

There is no indication that they did so. They were told what the information was on which the Registrar relied in making his decision. There is no evidence that they sought to have the Indian Register amended to show their date of registration as being the date of their application. [ 124 ] The Four Cunninghams acknowledge they should have sought judicial review of the Registrar’s decision in 2001.

However, as noted above, they submit their failure to do so should not be fatal to their position as an injustice will occur if the issue is not adjudicated on its merits as to whether they voluntarily applied to be registered as Indians after November 1, 1999. [ 125 ] In my view, their failure to apply for judicial review of the Registrar’s decision precludes them from relying on these arguments to suggest the equities are in their favour. Apparently, it took them almost five years before they sought legal advice about the situation.

They cannot claim injustice when it is due to their inaction that the courts have not adjudicated on the merits of their argument that it is the date of their application which should be considered the date of their registration as Indians for purposes of the MSA . [ 126 ] Eighth, the “balance of convenience” favours granting this application. The Registrar must comply with the legal duties

imposed by the MSA . The Affected Parties will again lose the rights and privileges of settlement membership, but granting mandamus will only return them to the status quo ante . As Nash J stated in Peavine #1 : “[a]ny detriment imposed by this order on the Registrar... is offset by the benefits rightfully obtained by the Peavine Metis Settlement.” [ 127 ] I am cognizant of the fact that some, if not all, of the Affected Parties have lived in Peavine for many, many years. They are not without some recourse.

At present, there is no General Council policy under s 75(3.1) of the MSA approving settlement membership of an Indian registered under the Indian Act after November 1, 1990 but who applied for registration prior to that date.

However, the matter of membership by Indians apparently is under discussion by the General Council and I gather the Alberta and Canadian Ministers have had discussions about possible changes to the legislative framework which would allow affected settlement members to withdraw their Indian registration. [ 128 ] The test for mandamus having been met, I order that the Registrar strike the names of the Affected Parties from the Peavine List. 2. Confirm the Indian Act registration status of all members on the Peavine List [ 129 ] Much of the above analysis applies in terms of Mr.

Gauchier’s application for an order directing the Registrar to confirm the Indian Act registration status of all members on the Peavine List and to remove all those persons disqualified from membership on the basis of their Indian Act registration after November 1, 1990. [ 130 ] Section 96(3) of the MSA states that the Minister (or the Minister’s delegate) must keep a settlement’s membership list up to date.

Also, s 97(3) provides that a name must be removed from the settlement membership list when a settlement member loses membership in a settlement in accordance with the Act. [ 131 ] The duty of the Registrar to keep the List up to date is owed to the settlement and to its members. As I stated above, the members have an interest in ensuring that those who have terminated their membership in the settlement are not accessing resources or taking benefits meant for members and are not voting or running in settlement elections.

While there are privacy considerations which may mean individual members of a settlement are not entitled to information about the status of some other person on the membership list, they are entitled to know whether and how the Registrar is fulfilling his duty. [ 132 ] The Registrar takes the position that he has no duty to undertake investigations with respect to individuals if the Council has not submitted a notice of termination relating to those individuals.

He argues the specific provisions of s 90 override the general language in s 96. [ 133 ] Section 90(2) of the MSA certainly contemplates that a notice of termination from a settlement council is one means by which the Registrar can receive information that an individual may have terminated their membership in a settlement pursuant to s 90(1).

The Registrar is then charged with verifying the facts necessary to confirm the allegation of the settlement council before removing the person’s name from the membership list. [ 134 ] That is not to say that the Registrar has an excuse not to take any action if the information comes to him in some other fashion; for example, by an individual him or herself submitting proof of their Indian status.

Nor does s 90(2) mean the Registrar cannot and should not take proactive steps to otherwise fulfill his duty to keep the membership lists up to date and to remove the names of those whose membership has terminated in accordance with the Act. Given that a settlement council may not be aware that someone has terminated their membership in the settlement by registering as an Indian, the Registrar must determine some additional way(

s) to obtain this information in a timely manner so that the settlement membership list can be kept up to date. That may be by sending requests to DIAND pursuant to the memorandum of agreement or by some other means. [ 135 ] Mr. Gauchier stated during questioning on his affidavit that prior to submitting the 23 notices of termination to the Registrar in 2001, Peavine Council, of which he was a member at the time, asked the Registrar to investigate all of those whose names were then on the Peavine List to determine if and when they had applied for Indian status.

The Registrar insisted that notices of termination be submitted and that they be submitted in batches. This seems to suggest that the Registrar, at least in 2001, was not adverse to verifying the necessary facts about everyone on the List. [ 136 ] It is apparent that the Registrar has been under the impression that his duty is restricted to responding to notices of termination.

This Court has now clarified that he has a broader duty to ensure that a settlement membership list is kept up to date and that the names of those who have lost their membership in accordance with the Act are struck from the list . [ 137 ] There is no evidence that the Registrar will refuse to fulfill his duty, now that it has been clarified. As a result, I am not prepared to grant this aspect of Mr.

Gauchier’s application. [ 138 ] I add that simply because the Affected Parties in this case did not seek judicial review of the Registrar’s decision to strike them from the List does not preclude the Registrar from considering whether other individuals have voluntarily become registered under the Indian Act for purposes of the MSA when they submitted their application to DIAND. C. The Mandamus Application Directed at the Peavine Council [ 139 ] Given I have denied Mr.

Gauchier’s application for an order directing the Registrar to confirm the Indian Act registration status of all members on the Peavine List, I turn to his alternative relief. Mr.

Gauchier asks that I order the Peavine Council to issue notices of termination in regard to anyone presently recorded on the List the Council or a Councillor has reason to believe voluntarily registered under the Indian Act after November 1, 1990. [ 140 ] The first question before me under this alternative request for relief is whether the Peavine Council has a public duty to issue a notice of termination if it discovers or suspects that someone on the List voluntarily became registered as an Indian after November 1,

1990. [ 141 ] Settlement councils have the duty to consider and decide on membership applications ( MSA , ss 74-80). They “may” terminate someone’s membership under s 87(2) of the MSA if a member fails to satisfy certain residency requirements.

However, there is no provision in the MSA which requires that settlement councils submit a notice of termination when they suspect a member has obtained Indian status. [ 142 ] I note that s 89.1(3) of the MSA states: When settlement membership is terminated under this section, the settlement must send a copy of the letter of resignation to the Minister. [ 143 ] In contrast, s 90(2) does not state that settlement councils must issue a notice of termination in regard to a member once it is suspected that member falls under s 90(1). [ 144 ] As such, I conclude that the Council does not have such a duty.

Rather, it has the discretion to decide whether to investigate members or issue notices of termination.

However, Council must not exercise its discretion in bad faith or in an unfair manner and must consider that the settlement and its members have an interest in ensuring that those on the List who have terminated their membership are not accessing resources or taking benefits meant for members and are not voting or running in settlement elections. [ 145 ] Even if Council does have a duty to issue notices of termination with respect to individuals on the List it suspects have voluntarily registered under the Indian Act after November 1, 1990, Mr.

Gauchier has not clearly established that it has refused to do so. [ 146 ] Accordingly, this aspect of Mr. Gauchier’s application also is denied. Conclusion [ 147 ] In the Council Application, I make a declaration that Kenneth Cunningham is no longer a member of Peavine and, as such, he is precluded from voting in Peavine elections and from serving or running for Peavine Council. In the Mandamus Application, I direct the Registrar to remove the names of the Affected Parties from the List. I dismiss Mr.

Gauchier’s application that I direct the Registrar to confirm the Indian Act registration status of all members on the Peavine List. Further, I dismiss his application that I direct the Peavine Council to issue notices of termination with regard to anyone on the List it suspects has voluntarily registered under the Indian Act since November 1, 1990. [ 148 ] If the parties cannot agree on costs, these may be spoken to within one month of this decision. Heard on the 20 th day of September, 2013. Dated at the City of Edmonton, Alberta this 3rd day of December, 2013. M.D. Gates J.C.Q.B.A.

Appearances: Shawn Beaver Beaver Leebody Frank & Associates for the Applicant Sandeep K Dhir Lindsey E. Miller

For Peavine and Peavine Council Robert Normey Alberta Department of Justice For the Registrar Ryan Martin McLennan Ross LLP for Kenneth Cunningham on the Council Application and for the Four Cunninghams on the Mandamus Application