MAURICE FELIX STONEY Applicant v. SAWRIDGE FIRST NATION, 2013 FC 509

Date: 20130515 Docket: T-923-12 Docket: T-922-12 Citation: 2013 FC 509 Ottawa , Ontario , May 15, 2013 PRESENT: The Honourable Mr. Justice Barnes Docket: T-923-12 BETWEEN: MAURICE FELIX STONEY Applicant and SAWRIDGE FIRST NATION Respondent Docket: T-922-12 BETWEEN: ALINE ELIZABETH (MCGILLIVRAY) HUZAR AND JUNE MARTHA (MCGILLIVRAY) KOLOSKY Applicants and SAWRIDGE FIRST NATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review pursuant to

section 18.1 of the Federal Courts Act , RSC, 1985, c F-7. The Applicants are all descendants of individuals who were at one time members of the Sawridge First Nation, but who, either voluntarily or by operation of the law at the time, lost their band memberships. As a result the Applicants were excluded from membership in the Sawridge First Nation. They now ask this Court to review the Sawridge First Nation Appeal Committee’s decision to uphold the

Sawridge Chief and Council’s decision which denied their applications for membership. [ 2 ] The father of the Applicant Maurice Stoney was William J. Stoney. William Stoney was a member of the Sawridge First Nation but in April 1944 he applied to the Superintendent General of Indian Affairs to be enfranchised under

section 114 of the Indian Act , c 98, RSC 1927. In consideration of payments totalling $871.35, William Stoney surrendered his Indian status and his membership in the Sawridge First Nation. By operation of the legislation, William Stoney’s wife, Margaret Stoney, and their two children, Alvin Stoney and Maurice Stoney, were similarly enfranchised thereby losing their Indian status and their membership in the Sawridge First Nation. [ 3 ] The Applicants Aline Huzar and June Kolosky are sisters and, like Mr. Stoney, they are the grandchildren of Johnny Stoney. The mother of Ms. Huzar and Ms.

Kolosky was Johnny Stoney’s daughter, Mary Stoney. Mary Stoney married Simon McGillivray in 1921. Because of her marriage Mary Stoney lost both her Indian status and her membership in Sawridge by operation of law. When Ms. Huzar and Ms. Kolosky were born in 1941 and 1937 respectively Mary Stoney was not a member of the Sawridge Band First Nation and she did not reacquire membership before her death in 1979. [ 4 ] In 1985, with the passing of Bill C-31,

An Act to amend the Indian Act , 33 – 34 Eliz II c 27, and pursuant to

section 10 of the Indian Act , the Sawridge First Nation delivered its membership rules, supporting documentation and bylaws to the Deputy Minister of Indian and Northern Affairs, who accepted them on behalf of the Minister. The Minister subsequently informed Sawridge that notice would be given pursuant to subsection 10(7) of the Indian Act that the Sawridge First Nation had control of its membership. From that point on, membership in the Sawridge First Nation was determined based on the Sawridge Membership Rules. [ 5 ] Ms.

Kolosky submitted her application for membership with the Sawridge First Nation on February 26, 2010. Ms. Huzar submitted her application on June 21, 2010. Mr. Stoney submitted his application on August 30, 2011. In letters dated December 7, 2011, the Applicants were informed that their membership applications had been reviewed by the First Nation Council, and it had been determined that they did not have any specific “right” to have their names entered in the Sawridge Membership List.

The Council further stated that it was not compelled to exercise its discretion to add the Applicants’ names to the Membership list, as it did not feel that their admission would be in the best interests and welfare of Sawridge. [ 6 ] After this determination, “Membership Processing Forms” were prepared that set out a “Summary of First Nation Councils Judgement”. These forms were provided to the Applicants and outlined their connection and commitment to Sawridge, their knowledge of the First Nation, their character and lifestyle, and other considerations.

In particular, the forms noted that the Applicants had not had any family in the Sawridge First Nation for generations and did not have any current relationship with the Band. Reference was also made to their involvement in a legal action commenced against the Sawridge First Nation in 1995 in which they sought damages for lost benefits, economic losses, and the “arrogant and high-handed manner in which Walter Patrick Twinn and the Sawridge Band of Indians has deliberately, and without cause, denied the Plaintiffs reinstatement as Band Members…”. The 1995 action was ultimately unsuccessful.

Although the Applicants were ordered to pay costs to the First Nation, those costs remained unpaid. [ 7 ] In accordance with

section 12 of the Sawridge Membership Rules, the Applicants appealed the Council’s decision arguing that they had an automatic right to membership as a result of the enactment of Bill C-31. On April 21, 2012 their appeals were heard before 21 Electors of the Sawridge First Nation, who made up the Appeal Committee. Following written and oral submissions by the Applicants and questions and comments from members of the Appeal Committee, it was unanimously decided that there were no grounds to set aside the decision of the Chief and Council.

It is from the Appeal Committee’s decision that this application for judicial review stems. [ 8 ] The Applicants maintain that they each have an automatic right of membership in the Sawridge First Nation . Mr. Stoney states at para 8 of his affidavit of May 22, 2012 that this right arises from the provisions of Bill C-31. Ms. Huzar and Ms. Kolosky also argue that they “were persons with the right to have their names entered in the [Sawridge] Band List” by virtue of

section 6 of the Indian Act . [ 9 ] I accept that, if the Applicants had such an acquired right of membership by virtue of their ancestry, Sawridge had no right to refuse their membership applications: see Sawridge v Canada , 2004 FCA 16 at para 26 , [2004] FCJ no 77 . [ 10 ] Ms. Huzar and Ms. Kolosky rely on the decisions in Sawridge v Canada , 2003 FCT 347 , [2003] 4 FC 748 , and Sawridge v Canada , 2004 FCA 16 , [2004] FCJ no 77 in support of their claims to automatic Sawridge membership.

Those decisions, however, apply to women who had lost their Indian status and their band membership by virtue of marriages to non-Indian men and whose rights to reinstatement were clearly expressed in the amendments to the Indian Act , including Bill C-31. The question that remains is whether the

descendants of Indian women who were also deprived of their right to band membership because of the inter-marriage of their mothers were intended to be protected by those same legislative amendments. [ 11 ] A plain reading of sections 6 and 7 of Bill C-31 indicates that Parliament intended only that persons who had their Indian status and band memberships directly removed by operation of law ought to have those memberships unconditionally restored.

The only means by which the descendants of such persons could gain band membership (as distinct from regaining their Indian status) was to apply for it in accordance with a First Nation’s approved membership rules. This distinction was, in fact, recognized by Justice James Hugessen in Sawridge v Canada , 2003 FCT 347 at paras 27 to 30 , 4 FC 748 , [2003] 4 FC 748 : 27 Although it deals specifically with Band Lists maintained in the Department,

section 11 clearly distinguishes between automatic, or unconditional, entitlement to membership and conditional entitlement to membership. Subsection 11(1) provides for automatic entitlement to certain individuals as of the date the amendments came into force.

Subsection 11(2), on the other hand, potentially leaves to the band's discretion the admission of the descendants of women who "married out." 28 The debate in the House of Commons, prior to the enactment of the amendments, reveals Parliament's intention to create an automatic entitlement to women who had lost their status because they married non-Indian men. Minister Crombie stated as follows ( House of Commons Debates , Vol. II, March 1, 1985, page 2644): ... today, I am asking Hon. Members to consider legislation which will eliminate two historic wrongs in Canada's legislation regarding Indian people.

These wrongs are discriminatory treatment based on sex and the control by Government of membership in Indian communities. 29 A little further, he spoke about the careful balancing between these rights in the Act. In this section, Minister Crombie referred to the difference between status and membership.

He stated that, while those persons who lost their status and membership should have both restored, the descendants of those persons are only automatically entitled to status ( House of Commons Debates , idem, at page 2645): This legislation achieves balance and rests comfortably and fairly on the principle that those persons who lost status and membership should have their status and membership restored. [page766] While there are some who would draw the line there, in my view fairness also demands that the first generation descendants of those who were wronged by discriminatory legislation should have status under the Indian Act so that they will be eligible for individual benefits provided by the federal Government.

However, their relationship with respect to membership and residency should be determined by the relationship with the Indian communities to which they belong. 30 Still further on, the Minister stated the fundamental purposes of amendments, and explained that, while those purposes may conflict, the fairest balance had been achieved ( House of Commons Debates , idem, at page 2646): ... I have to reassert what is unshakeable for this Government with respect to the Bill.

First, it must include removal of discriminatory provisions in the Indian Act; second, it must include the restoration of status and membership to those who lost status and membership as a result of those discriminatory provisions; and third, it must ensure that the Indian First Nations who wish to do so can control their own membership.

Those are the three principles which allow us to find balance and fairness and to proceed confidently in the face of any disappointment which may be expressed by persons or groups who were not able to accomplish 100 per cent of their own particular goals… [Emphasis added] This decision was upheld on appeal in Sawridge v Canada , 2004 FCA 16 , [2004] FCJ no 77 . [ 12 ] The legislative balance referred to by Justice Hugessen is also reflected in the 2010 Legislative

Summary of Bill C-3 titled the Gender Equity in Indian Registration Act , SC 2010, c 18. There the intent of Bill C-31 is described as follows: Bill C-31 severed status and band membership for the first time and authorized bands to control their own membership and enact their own membership codes (section 10). For those not exercising that option, the Department of Indian Affairs would maintain “Band Lists” (section 11). Under the legislation’s complex scheme some registrants were granted automatic band membership, while others obtained

only conditional membership. The former group included women who had lost status by marrying out and were reinstated under paragraph 6(1)(c). The latter group included their children, who acquired status under subsection 6(2). [Emphasis added] [ 13 ] While Mary Stoney would have an acquired right to Sawridge membership had she been alive when Bill C-31 was enacted, the same right did not accrue to her children. Simply put neither Ms. Huzar or Ms. Kolosky qualified under

section 11 of Bill C-31 for automatic band membership. Their only option was to apply for membership in accordance with the membership rules promulgated by Sawridge. [ 14 ] This second generation cut-off rule has continued to attract criticism as is reflected in the Legislative

Summary at p 13, para 34: 34. The divisiveness has been exacerbated by the Act’s provisions related to band membership, under which not all new or reinstated registrants have been entitled to automatic membership. As previously mentioned, under provisions in Bill C-31, women who had “married out” and were reinstated did automatically become band members, but their children registered under subsection 6(2) have been eligible for conditional membership only.

In light of the high volume of new or returning “Bill C-31 Indians” and the scarcity of reserve land, automatic membership did not necessarily translate into a right to reside on-reserve, creating another source of internal conflict. Notwithstanding the above-noted criticism, the legislation is clear in its intent and does not support a claim by Ms. Huzar and Ms. Kolosky to automatic band membership. [ 15 ] I also cannot identify anything in Bill C-31 that would extend an automatic right of membership in the Sawridge First Nation to William Stoney.

He lost his right to membership when his father sought and obtained enfranchisement for the family. The legislative amendments in Bill C-31 do not apply to that situation. [ 16 ] Even if I am wrong in my

interpretation of these legislative provisions, this application cannot be sustained at least in terms of the Applicants’ claims to automatic band membership. All of the Applicants in this proceeding, among others, were named as Plaintiffs in an action filed in this Court on May 6, 1998 seeking mandatory relief requiring that their names be added to the Sawridge membership list.

That action was struck out by the Federal Court of Appeal in a decision issued on June 13, 2000 for the following reasons: [4] It was conceded by counsel for the respondents that, without the proposed amending paragraphs, the unamended statement of claim discloses no reasonable cause of action in so far as it asserts or assumes that the respondents are entitled to Band membership without the consent of the Band. [5] It is clear that, until the Band’s membership rules are found to be invalid, they govern membership of the Band and that the respondents have, at best, a right to apply to the Band for membership.

Accordingly, the statement of claim against the appellants, Walter Patrick Twinn, as Chief of the Sawridge Indian Band, and the Sawridge Indian Band, will be struck as disclosing no reasonable cause of action. See Huzar v Canada , [2000] FCJ no 873 , 258 NR 246 . [ 17 ] It is not open to a party to relitigate the same issue that was conclusively determined in an earlier proceeding.

The attempt by these Applicants to reargue the question of their automatic right of membership in Sawridge is barred by the principle of issue estoppel: see Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 , [2001] 2 SCR 460 . [ 18 ] The Applicants are, nevertheless, fully entitled to challenge the lawfulness of the appeal decision rejecting their membership applications.

[ 19 ] The Applicants did not challenge the reasonableness of the appeal decision but only the fairness of the process that was followed. Their argument is one of institutional bias and it is set out with considerable brevity at para 35 of the Huzar and Kolosky Memorandum of Fact and Law: 35. It is submitted that the total membership of Sawridge First Nation is small being in the range of 50 members. Only three applicants have been admitted to membership since 1985 and these three are (were) the sisters of deceased Chief, Walter Twinn.

The Appeal Committee consisted of 21 of the members of Sawridge and three of these 21 were the Chief, Roland Twinn and Councillors, Justin Twinn and Winona Twin, who made the original decision appealed from. [ 20 ] In the absence of any other relevant evidence, no inference can be drawn from the limited number of new memberships that have been granted by Sawridge since 1985.

While the apparent involvement of the Chief and two members of the Band Council in the work of the Appeal Committee might give rise to an appearance of bias, there is no evidence in the record that would permit the Court to make a finding one way or the other or to ascertain whether this issue was waived by the Applicants’ failure to raise a concern at the time. [ 21 ] Indeed, it is surprising that this issue was not fully briefed by the Applicants in their affidavits or in their written and oral arguments.

It is of equal concern that no cross-examinations were carried out to provide an evidentiary foundation for this allegation of institutional bias. The issue of institutional bias in the context of small First Nations with numerous family connections is nuanced and the issue cannot be resolved on the record before me: see Sweetgrass First Nation v Favel , 2007 FC 271 at para 19 , [2007] FCJ no 347 , and Lavalee v Louison , [1999] FCJ no 1350 at paras 34-35, 91 ACWS (3d) 337 . [ 22 ] The same concern arises in connection with the allegation of a

section 15 Charter breach. There is nothing in the evidence to support such a finding and it was not advanced in any serious way in the written or oral submissions. The record is completely inadequate to support such a claim to relief. There is also nothing in the record to establish that the Crown was provided with any notice of what constitutes a constitutional challenge to the Indian Act . Accordingly, this claim to relief cannot be sustained. [ 23 ] For the foregoing reasons these applications are dismissed with costs payable to the Respondent.

JUDGMENT THIS COURT’S JUDGMENT is that these applications are dismissed with costs payable to the Respondent. "R.L. Barnes" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-923-12 T-922-12 STYLE OF CAUSE: STONEY v SAWRIDGE FIRST NATION and

HUZAR ET AL v SAWRIDGE FIRST NATION PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: March 5, 2013 REASONS FOR JUDGMENT: BARNES J. DATED: May 15, 2013 APPEARANCES : Priscilla Kennedy FOR THE APPLICANTS Edward H. Molstad FOR THE RESPONDENT SOLICITORS OF RECORD : Davis LLP Edmonton , Alberta FOR THE APPLICANTS Parlee McLaws LLP Edmonton , Alberta FOR THE RESPONDENT