2015 FC, 2015 FC 1065

Date: 20150910 Docket: T-1035-14 Citation: 2015 FC 1065 Ottawa, Ontario, September 10, 2015 PRESENT: The Honourable Mr. Justice Manson BETWEEN: STERLING CLYDE FOSTER Applicant and ATTORNEY GENERAL OF CANADA AND FEDERATION OF NEWFOUNDLAND INDIANS Respondents JUDGMENT AND REASONS [ 1 ] This is an application for judicial review of the November 6, 2013 decision of the Enrolment Committee established by the Agreement for the Recognition of the Qalipu Mi’kmaq Band [EC Agreement] to deny the Applicant’s application for enrolment for invalidity. I.

Background [ 2 ] In 1949, Newfoundland joined confederation with no provision made in the Terms of Union for the recognition of Aboriginal peoples of the province. [ 3 ] In 1972, the Federation of Newfoundland Indians [FNI] was formed to seek recognition of the Mi’kmaq people in Newfoundland and Labrador. [ 4 ] Following failed negotiations, and an action being filed against the Federal government, further negotiations were conducted for the creation of a band of Mi’kmaq peoples, which led to the signing of the EC Agreement on June 23, 2008. [ 5 ] The EC Agreement established the Enrolment Committee to review and evaluate applications for membership based on the criteria established in

section 4.1.

Enrolment was to proceed in two phases: phase one beginning November 30, 2008, to continue for twelve months and resulting in the first list of Founding Members; phase two was to begin immediately after the first and continue for thirty-six months (until November 30, 2012), and establish a second Founding Members list. [ 6 ] The Qalipu Mi’kmaq First Nation was created by an Order in Council on September 22, 2011. [ 7 ] Pursuant to the EC Agreement, the Founding Members lists were to be forwarded to the Registrar responsible for the Registry under the Indian Act , RSC 1985, c I-5, whereupon the Minister of Indian Affairs and Northern Development was required to recommend an Order in Council to be issued establishing those listed as a body comprising a Band of Indians under the Indian Act , as well as register them as Indians. [ 8 ] Individuals were encouraged to research their ancestry and heritage and apply for Band membership.

Community assistants and enrolment clerks were made available to help some applicants with their applications. Guidelines and checklists were produced for applicants, and hard copies of the applications were made available to help them in the process. [ 9 ] Given the high volume of applications the Enrolment Committee was unable to evaluate them all within the prescribed time periods in the EC Agreement. A supplemental agreement [the Supplemental Agreement] was signed, without consultation of the applicants, by the Federal Government and the FNI, and announced on July 4, 2013.

It made a number of retroactive changes to the EC Agreement. Of particular note is that applicants were no longer able to appeal certain decisions of the Enrolment Committee, and that all applications for membership except those previously rejected would be evaluated under the revised criteria in the Supplemental Agreement. [ 10 ] The Federation of Newfoundland Indians is a not-for-profit corporation that represents affiliated Mi’kmaq bands on the island of Newfoundland. Through membership in those affiliated bands, individuals become FNI members.

There is also a General Membership List that individuals can apply to be placed on (since 2003). [ 11 ] The FNI’s mandate has been to have the Federal Government to recognize the eligibility of the Mi’kmaq on the island of Newfoundland as registrable under the Indian Act . [ 12 ] Over the course of years of negotiation and the commencement and discontinuance of Court action, the EC Agreement was signed, creating a landless band. [ 13 ] The Applicant has always identified as having Mi’kmaq heritage and ancestry.

He asserts that he has “practiced a Mi’kmaq way of life” and identifies as a member of the Mi’kmaq Group of Indians and “maintains a current and substantial connection” to them. [ 14 ] The Applicant submitted his application for membership in the Band as a part of a family Application before the second phase deadline of November 30, 2012. It is signed and dated November 13, 2012.

[15] The Applicant travelled to Grand Falls, Newfoundland in order to get assistance from Nellie Power, who was either hired toassist applicants complete their applications or volunteered to do so, to complete his application. At the time of his trip he had alreadyapplied for his long form birth certificate, a requirement for the application, but had not yet received it. Ms.

Power noted this by hand inhis application on a note stating “Sterling applied for long form birth certificate three weeks ago hasn’t received it yet”. [16] The Applicant’s long form birth certificate was issued on November 30, 2012, and he believes he received it in early Decemberof 2012. Upon receiving it, he brought it to his brother who faxed it to Ms. Power. No confirmation page of the fax was printed and no onecontacted Ms.

Power to confirm its receipt. [17] The Applicant did not receive any communication from the Federal Government, the FNI, the Qalipu Mi’kmaq Chief andCouncil, or the Enrolment Committee until November 6, 2013, when he received the Committee’s letter rejecting his application. [18] Upon receiving the decision the Applicant called the 1-800 number on the letter to enquire about his options but was informedthat he could not appeal the decision, could not submit any additional documentation or information, and that his application would not beconsidered further. [19] There was a public service notice published on Canada’s web-site and Qalipu Mi’kmaq First Nation’s web-site, as well as innewspapers distributed in Newfoundland providing applicants until September 3, 2013 to submit their long-form birth certificates if theyhad been ordered from the Government of Newfoundland and Labrador before November 30, 2012.

The Applicant and his brother couldnot recall if they had seen the notice in its various forms. [20] The Enrolment Committee determined that the Applicant’s application was invalid because of his failure to produce a longform birth certificate, evidencing its request prior to November 30, 2012, by September 3, 2013. II. Issues [21] The issues are: A. Does the Federal Court have jurisdiction to review the impugned decision?B. Was the Applicant provided adequate procedural fairness?C. Were there obligations owed to the Applicant arising from fiduciary duty or the honour of the Crown?D.

Was the Enrolment Committee’s decision unreasonable? III. Standard of Review [22] The appropriate standard of review for determining jurisdiction and procedural fairness is correctness (Dunsmuir v NewBrunswick, 2008 SCC 9 at para 79). In determining the level of procedural fairness to be given to the Applicant, the Court will considerthe factors set out in Baker v Canada (Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 23-27; as set outbelow in the analysis. [23] Answers to the questions of mixed fact and law made by the EC should be reviewed on the standard of reasonableness. IV. Analysis A.

Is the Enrolment Committee’s decision subject to judicial review by theFederal Court? [24] The Applicant and Respondent Attorney General do not challenge the jurisdiction of the Federal Court in this matter, albeit fordifferent reasons.

The FIN does challenge this Court’s jurisdiction, on the basis that the Enrolment Committee’s power stems from the ECAgreement and “not pursuant to federal legislation or from an order made pursuant to a prerogative power of the Crown”, thus rendering it“not a federal board, commission or tribunal”. [25] While the Enrolment Committee is an independent body created by the EC Agreement, contextually the EnrolmentCommittee’s power is derived from the process that leads to recognition of individual members of the Qalipu Mi’kmaq First Nation bythe Governor-in-Council [GIC], under the Indian Act and Qalipu Mi’kmaq First Nation Act – clearly Acts of Parliament. [26] Moreover, in making the Qalipu Mi’kmaq First Nation Band Order and its Schedule, which identifies individuals whocomprise First Nations’ membership, the GIC has purported to act “pursuant to paragraph (

c) of the definition of “band” in subsection 2(1)of the Indian Act and subsection 73(3) of that Act” (Qalipu Mi’Kmaq First Nation Band Order, SOR/2011-180). [27] Therefore, in purposefully considering the contextual scheme of the formation of the Enrolment Committee, to recognizemembers of the Qalipu Mi’kmaq First Nation under both the Indian Act and Qalipu Mi’kmaq First Nation Act, I find that this Court hasjurisdiction to consider this judicial review. B.

Was the Applicant provided adequate procedural fairness? [28] The Enrolment Committee is a public authority exercising an administrative decision having a significant impact on the rights,privileges and interests of individuals seeking to be recognized as members of the Qalipu Mi’kmaq First Nation – procedural fairness is

required, given: i. The decision is a final decision;ii. The decision involves a public law actor, andiii. The decision affects an individual’s rights. Knight v Indian Head School Division No 19 (1990), (SCC), 1 SCR 653 at para 28. [29] The Enrolment Committee’s decision is final, as it denied the Applicant’s membership, providing no opportunity to submitadditional information or a right of appeal. The decision is also of a public nature, as the Committee derives its power from theAgreement, which is between the Federal Government and the FNI.

The Enrolment Committee’s power was delegated to it pursuant to theCrown’s prerogative power to constitute new Bands and decide on Band membership and Indian status. [30] While the quantum of procedural fairness varies with the circumstances, in considering the relevant factors as outlined inBaker, above, the decision falls towards the higher end of the spectrum of procedural fairness: one must consider: a. the nature of the decision being made and the process followed in making it;b. the nature of the statutory scheme and terms of the statute under which the body operates;c. the importance of the decision to the individual;d. the legitimate expectation of the person; ande. the choices made by the agency itself.

Baker v Canada (Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 23-27; Canadian Pacific Railway Cov Vancouver (City), 2006 SCC 5. [31] The Respondents argue that the Enrolment Committee was performing a non-adjudicative administrative function whenreviewing applications to determine qualification as a member of the Qalipu Mi’kmaq First Nation, and as such the Applicant is owed lessprocedural protection.

The Applicant submits the nature of the decision was judicial, given that he was required to file an application andprovide evidence, including sworn affidavit evidence, in support of his application, and the decision was final, affecting his substantiverights. [32] In my view, the situation is not one of adjudication of rights in an adversarial context. However, it is also not a highlydiscretionary or policy-based decision, which generally affords less procedural fairness. [33] The nature of the statutory scheme provides insight into the level of procedural fairness to be afforded to the Applicant.

Whilethe decision is more regulatory and administrative than it is adjudicative, given the Applicant’s substantive aboriginal rights at stake anddetermination of his status as a member of the Qalipu Mi’kmaq Band (factors (

a) and (

c) of the Baker decision above), and the fact thatthe decision is final, with no right of appeal (factor (

b) of Baker), the duty of fairness weighs in favour of higher procedural protection. [34] Moreover, as stated in Baker, at para 28: The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have theopportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair,impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. [35] The EC Agreement provided that the Enrolment Committee was allowed to request information if an application were deficient(section 4.2.9).

This contemplates that a certain level of fairness is to be afforded to administratively deficient applications by providingsome form of notice and opportunity to be heard before a final determination is made. On the other hand, it was a discretionary and not amandatory provision.

It is important that the agreement be interpreted in light of building relationships for the future as much as it issettling longstanding grievances – it is not to be treated as a commercial contract (Little Salmon/Carmacks First Nation v Yukon (Director,Agriculture Branch, Department of Energy, Mines & Resources), 2010 SCC 53 at para 10). [36] The Supplemental Agreement mandated that deficient applications would be found invalid and removed any right of appeal.However, a determination of an invalid application was “without prejudice to the ability to submit a new application form properlycompleted and signed” (section 8.3).

Thus, applicants were given the opportunity to submit a new application if there had been previouserrors. [37] The Attorney General rightly points out that the Enrolment Committee had no discretion to consider applications failing tomeet the minimum requirements, nor were they given discretion to extend the time in which to submit an application. They were,however, given the discretion to notify applicants whose applications were incomplete, under

section 4.2.9. [38] The inclusion of these avenues for recourse in the EC Agreement and in the Supplemental Agreement, to correct administrativeerrors, supports the Applicant’s position that the EC Agreement was intended to be fair and guard against a situation such as the presentone, where an individual, who may meet all the requisite criteria for obtaining Indian status and membership in the band, is precludedfrom doing so due to a technical or administrative error. [39] The Enrolment Committee’s procedure was defined by the terms of the EC Agreement.

As above noted, the EC Agreementgave the Enrolment Committee discretion to request additional evidence to complete an assessment of the criteria in

section 4.1. The ECAgreement did not require the Enrolment Committee to notify applicants of deficiencies. [40] The more discretion provided to the Enrolment Committee to determine their rules of procedure, the less procedural fairnessafforded. In the present situation, the Enrolment Committee was not given full reign to determine their procedure; in fact, they wereprovided with very little discretion, other than to notify applicants of deficiencies. This tends to weigh in favour of higher proceduralprotection.

[ 41 ] The fact that community assistants and enrolment clerks were hired by the Enrolment Committee to assist applicants demonstrates that parties to the EC Agreement contemplated the possibility of technical or administrative errors or omissions, that such a situation warranted providing assistance, and to prevent an irregularity in the application process from necessarily resulting in a loss of band membership.

That the Applicant did not actually seek assistance is not determinative; the fact that assistants were provided demonstrates that the Enrolment Committee recognized the importance of the interests at stake. [ 42 ] In Baker , above, at para 22 , Madam Justice L’Heureux-Dube highlighted the central purpose of participatory rights: I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context , with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker [ Emphasis added ]. [ 43 ] As the Applicant points out, the list of Baker factors is not exhaustive (para 28).

Although I do not find that the Applicant was owed a fiduciary duty or that the honour of the Crown is engaged in these circumstances (for the reasons provided below), the fact that the Agreement stems from the GIC’s prerogative power to create new bands under the Indian Act – a higher level of procedural fairness is warranted. At a very minimum, this requires notice. [ 44 ] Applicants for membership in the Qalipu Mi’kmaq First Nation were made aware of the case to meet; through the EC Agreement, FNI’s Guidelines and the application form.

However, the Applicant was provided no notice of the deficiency in his application and was provided no opportunity to respond and correct it. A reasonable person, apprised of these facts, would view the decision as unfair. [ 45 ] Had Mr. Foster been notified in advance of the deadline for submitting long-form birth certificates that his had not been received (as he thought), and that therefore his application was incomplete, he would have had an opportunity to send his birth certificate directly to the Enrolment Committee. Consequently, he would have met the requirements of

section 4.1 – which will have enduring and significant substantive consequences to his status as a band member. [ 46 ] The lack of notice and thus any form of recourse for an applicant who has made an honest error in their application, is not fair.

It is not fair considering the statutory, institutional, and especially the social context of the EC Agreement, the Supplementary Agreement, the purpose of the Enrolment Committee, and the fact that the Enrolment Committee’s decision has long-term consequences for the Applicant’s personal identity, inclusion in his community, the entitlement of his descendants, access to certain programs and services and constitutionally protected rights. [ 47 ] As part of the procedural fairness analysis, the Applicant argues that there was a legitimate expectation that procedurally the Applicant would be told if his application was incomplete.

The test, as set out in Agraira v Canada (Public Safety and Emergency Preparedness ), 2013 SCC 36 at paras 94-95 , is that the practice, conduct or promise said to give rise to a legitimate expectation must be clear, unambiguous and unqualified and must not conflict with a statutory duty. That test is not met by the facts of this case – the EC Agreement provided the Enrolment Committee with the discretion of requesting information if an application was deficient, which does not constitute a duty to do so in clear and unambiguous or unqualified terms. C.

Were the objections on the Crown to the Applicant arising from a fiduciary duty or the honour of the Crown? [ 48 ] A fiduciary relationship exists between Aboriginal peoples and the Crown. However, outside the framework of

section 35 of the Constitution Act, 1982 , a fiduciary duty requires the identification of a cognizable Aboriginal interest, and the Crown’s undertaking of discretionary control in relation thereto in a way that invokes responsibility “in the nature of a private law duty” .

Here, where no Aboriginal or treaty right is invoked, a fiduciary duty must be tied to an identified Indian interest, such as reserve lands ( Wewaykum Indian Band v Canada , 2002 SCC 79 at pars 81-85). [ 49 ] As argued by the Respondent Attorney General, the Applicant has not identified any cognizable Aboriginal interest on which he bases his assertion that a fiduciary duty is owed to him.

He provides no evidence regarding the practices, customs and traditions of the specific Aboriginal collective from which the asserted fiduciary duty arises, or indeed the basis on which he can claim status or non-status rights. [ 50 ] I also agree with the Respondent Attorney General that any fiduciary duty, if owed, would be to the Aboriginal collective, i.e. , the Mi’kmaq Group of Indians of Newfoundland, as represented in negotiations by the FNI, or its successor by way of the implementation of the Agreement, the Qalipu Mi’kmaq First Nation.

The honour of the Crown rests with ensuring that the Agreement, as negotiated between the government of Canada and the Aboriginal collective, was implemented as agreed.

In the same vein, the Crown’s duty to deal honourably with the Aboriginal collective requires that the Agreement be interpreted and implemented in light of its purpose and within its social and historical context. [ 51 ] I find that there was no breach of any fiduciary duty, which the Applicant failed to prove was owed to him, or any breach of the honour of the Crown towards the Applicant, given neither was engaged for the Applicant in the circumstances here. D.

Was the EC’s decision unreasonable? [ 52 ] For the same reason that I find that the decision of the Enrolment Committee was procedurally unfair, I also find that it was unreasonable: there was no reasonable notice or even attempt at such notice provided to the Applicant to allow him to correct the deficiency in his application for recognition as a member of the Qalipu Mi’kmaq First Nation.

JUDGMENT THIS COURT’S JUDGMENT is that: 1. The decision of the Enrolment Committee declaring the Applicant’s application for membership to the Qalipu Mi’kmaq Band to be invalid is set aside; 2. The Enrolment Committee shall evaluate the Applicant’s application and eligibility for membership in the Qalipu Mi’kmaq Band in accordance with

section 4.1 of the Agreement; 3. Costs to the Applicant. "Michael D. Manson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1035-13 STYLE OF CAUSE: STERLING CLYDE FOSTER V AGC ET AL PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: SEPTEMBER 1, 2015 JUDGMENT AND REASONS: MANSON J. DATED: sEPTEMBER 10, 2015 APPEARANCES : Ms Jamie Lickers For The Applicant Ms Helene Robertson FOR THE RESPONDENT, ATTORNEY GENERAL OF CANADA Mr Stephen May FOR THE RESPONDENT, FEDERATION OF NEWFOUNDLAND INDIANS SOLICITORS OF RECORD : GOWLING LAFLEUR HENDERSON LLP Hamilton, ON For The Applicant William F.

Pentney Deputy Attorney General of Canada Ottawa, ON FOR THE respondent, ATTORNEY GENERAL OF CANADA COX & PALMER St. John’s, NL FOR THE RESPONDENT, FEDERATION OF NEWFOUNDLAND INDIANS