2022 FC, 2022 FC 1237

Date: 20220829 Docket: T-951-21 Citation: 2022 FC 1237 Ottawa, Ontario, August 29, 2022 PRESENT: The Honourable Madam Justice Strickland Docket: T-951-21 BETWEEN: MARILYN JOHNSTON Applicant and THE OKANAGAN INDIAN BAND Respondent JUDGMENT AND REASONS [ 1 ] This is the judicial review of a decision dated May 10, 2021 [2021 Reconsideration Decision], by the Okanagan Indian Band [OKIB] Chief and Council [collectively, Council], refusing to give consent, pursuant to

section 12 of the Indian Act , RSC 1985 c I-5 , to the transfer of the band membership of Ms. Marilyn Johnston [Applicant] from another Indian band to the OKIB. Background [ 2 ] OKIB, the Respondent, is an Indian Band as defined in the Indian Act . Pursuant to section 10(1) of the Indian Act , a band may assume control over its own membership if it establishes membership rules for itself in writing in the manner set out in that section. In that event, the band is required to maintain its own band list (section 10(10)).

If a band does not establish its own membership rules, then individuals will be entitled to have their names entered in a band list maintained for the band by the Department of Indigenous Services [Department] if they meet the specified criteria (section 11). OKIB is a

section 11 band, it does not have a membership code and its Band list is maintained by the Department. Individuals may only have their names entered in one band list (section 13), however, pursuant to

section 12 of the Indian Act they may transfer their membership to another band if the council of the admitting band consents. [ 3 ] The Applicant was registered in the Indian Registry maintained by the Department of Indian and Northern Affairs Canada (now the Department of Indigenous Services), pursuant to section 6(2) of the Indian Act , on November 16, 1987 and, at the same time, was registered as a member of the OKIB, pursuant to section 11(2) (

b) of the Indian Act . Her entitlement to registration was based on the fact that her father, Frank Jack, was a member of the OKIB. The supporting documentation for the Applicant’s application for registration in the Indian Registry included a Statutory Declaration completed by Frank Jack on June 12, 1987 confirming the Applicant’s paternity. [ 4 ] The Applicant claims that she was raised by her maternal grandfather and her aunt and uncle, Raymond and Rhoda Simla, on the OKIB reserve lands. In 1976, the Applicant moved to Fort St. James, British Columbia, and began working there providing social services.

On January 22, 1988, the Applicant wrote to OKIB and Nak’azdli Whut’en Indian Band seeking a transfer of her band membership to the latter band. She remains a member of the Nak’azdli Whut’en Indian Band. [ 5 ] The Applicant has been attempting to transfer her membership back to OKIB since making her first request to do so by letter to OKIB dated August 19, 2002. Her efforts in that regard will be addressed in detail later in these reasons. [ 6 ] In 2009, the Applicant moved to the farm of her aunt, Rhoda Simla, on the OKIB reserve. She continued her efforts to transfer her band membership back to OKIB.

However, her application was not processed. [ 7 ] On October 6, 2010, OKIB adopted the Okanagan Indian Band Membership Transfer Policy [2010 Transfer Policy]. The Applicant’s application to transfer her membership back to OKIB was assessed by an OKIB administrator as having met all of the requirements of the 2010 Transfer Policy and Council was informed of this.

However, on February 8, 2012 Council voted to suspend all membership transfer applications " “until further clarity is completed on the membership transfer policy” " . [ 8 ] On November 13, 2013, Rhoda Simla passed away, naming the Applicant as the sole beneficiary of her estate. Assets of the estate included interests in four lots of land which have been described in the record as follows:

a) Lot 144-1 Block4 CLSR80912 (thewholeinterest);

b) Lot9BlockB Fry Sketch 319-36 Parcel 2 No Plan(thewholeinterest);

c) Lot 10 Block4 RemRSBC 551 (an undivided½interest); and

d) Lot 10 BlockBFrySketch319-36 No Plan(thewholeinterest). [Simla Estate Lands] [ 9 ] Although the Applicant was the sole beneficiary of the estate, because she was not a member of OKIB, she was not eligible to receive any possessory or occupational interest in the Simla Estate Lands on the OKIB reserve. In that circumstance,

section 50 of the Indian Act

permits the Superintendent of Indian Affairs to offer the interest in the land for sale to band members, sell it to the highest bidder and then pay the proceeds to the non-band heir or beneficiary.

If there are no bidders then the interest in the land would be returned to the band without payment of any compensation to the non-member heir or beneficiary for the value of the land. [ 10 ] While the Applicant’s application for transfer of her membership back to OKIB was still awaiting determination, the Executive Director of OKIB wrote to AANDC (now Indigenous Services Canada [ISC]) requesting that the Simla Estate Lands be sold and that anyone improperly living on the lands be removed.

Lot 145 Block 4 and Lot 144-1 were subsequently sold by AANDC [Sold Simla Estate Lands]. [ 11 ] The Applicant resides on Lots 9 and 10 Block Fry Sketch with her daughter and grandson [Remaining Simla Estate Lands]. [ 12 ] On September 27, 2016, a member of the OKIB Council, Lyle Brewer, and Randy Marchand an OKIB staff member, attended at the Remaining Simla Estate Lands along with members of Russell Shortt Surveying, including Ray Marchand, who had been engaged by Council to survey the boundaries of those lands. The Applicant refused to allow them access.

According to Councillor Brewer, she ordered everyone off the property, demanded to see papers authorizing them to attend on the land and stated that she was the owner of the property. The Applicant also removed the surveyor’s tripod to the shoulder of the road. Councillor Brewer reports that the Applicant then got back in her car and said something like " “Do you want me to go back to my house and get my gun?” " .

There is no evidence that this incident was raised by Council with the Applicant at that time. [ 13 ] In February 2017, the Applicant wrote to AANDC asking that they intervene with her OKIB membership transfer application, which remained unresolved. By letter dated September 14, 2017 AANDC acknowledged a letter from her dated of May 18, 2017 advising that her 2009-2010 band membership transfer application had not been accepted or rejected.

AANDA (now Indigenous and Northern Affairs Canada [INAC]) advised that it could not assist the Applicant as it had no authority to intervene in OKIB’s process. [ 14 ] On September 27, 2017, OKIB Council adopted the

Section 12 Membership Transfer Policy [2017 Transfer Policy]. [ 15 ] On March 6, 2018, OKIB advised the Applicant of this development. On April 16, 2018, OKIB wrote to the Applicant advising her of the new policy and that, before her application for transfer of membership could move forward, the listed document and/or updated information was required. However, the increased application fee and new application form were waived in her case.

She was advised that if the required documents were not provided by June 20, 2018 her application would be considered inactive and would not be processed until the documents were received. The letter also addresses the submission of optional documentation pertaining to OKIB or Sylix ancestry.

Also on April 16, 2018, the Department of Justice, Aboriginal Law section, wrote to the Applicant advising that OKIB Council had asked ISC to proceed with the sale of the Remaining Simla Estate Lands and that ISC would do so if the Applicant did not provide ISC with satisfactory evidence, by September 30, 2018, that she is an OKIB member. [ 16 ] On May 7, 2018, OKIB advised the Applicant that three documents were still outstanding (signed letters from the Nal’azdli Whu’en band confirming that she did not hold a Certificate of Possession of that band’s lands and owed no debt to that band and, a photocopy of her current Certificate of Indian Status (status card) as the one she had submitted had expired) and that if these were not received by June 20, 2018 her application would be rejected as incomplete and Council would not consent to her transfer to OKIB. [ 17 ] On May 28, 2018, the Applicant attended the OKIB Band Office to have her status card renewed as part of her transfer membership application (it appears from an email from Veronica Wilson that the Applicant had originally attended and applied to renew her status card on May, 17, 2018, without incident).

An OKIB Employee Incident Report Form submitted by Veronica Wilson, an Indian Registry Administrator, dated May 29, 2018 [Wilson Incident Report Form] states that Ms. Wilson told the Applicant that she needed the long- form birth certificate, not the version that she had with her. Ms. Wilson claims that during this interaction the Applicant " “got loud” " and demanded that Ms. Wilson photocopy the birth certificate and renew her status card. Ms. Wilson reported that she " “felt threatened by her aggressive and rude behaviour” " .

There is no evidence that this incident was raised with the Applicant by OKIB at that time. [ 18 ] On June 15, 2018, surveyor Jason Shortt attempted to access the Remaining Simla Estate Lands for the purposes of a survey at the request of Council. On October 25, 2018, he wrote a letter to Council stating that the Applicant had refused to allow the surveyors to proceed without a court order [Shortt Letter].

The record contains no evidence indicating why this letter was submitted four months after the surveyor’s attendance. [ 19 ] A decision on the Applicant’s request to transfer her band membership was made on July 30, 2018 by way of a Band Council Resolution [2019 Decision]. Council declined to consent to have the Applicant’s name entered in the OKIB Band List, under

section 12 of the Indian Act and OKIB’s 2017 Transfer Policy, on the basis that the Applicant had failed to provide signed letters from the Nak’azdli Whut’en Indian Band stating that she does not hold a Certificate of Possession on any of that band’s land and that she does not have any outstanding debts, which documents were required by sections 6.1(b)(ii) and 6.1(b)(iii) of the 2017 Transfer Policy.

However, that another application would be considered sooner than 5 years from the date of the decision if she provided the missing information. [ 20 ] By September 18, 2018, the Applicant had provided the two outstanding letters.

She claims that she had advised OKIB that they had been delayed due to forest fires in the area of the Nak’azdli Whut’en reserve lands which had forced evacuations. [ 21 ] On October 29, 2018 and November 27, 2018, Victor Rumbolt, then Executive Director of OKIB, wrote to the Applicant advising that the outstanding letters had been received and that her application to transfer her membership to OKIB was now being considered by Council. However, that Council’s initial review had raised two issues.

The Applicant was invited to make further submissions on those issues before Council made a final decision. [ 22 ] The first issue was her OKIB ancestry. The letter states that the Applicant’s mother was not an OKIB member and her father was not listed on her birth certificate. OKIB’s membership files indicated that when the Applicant first sought to join OKIB in the 1980’s she provided one or more statutory declarations to the Indian Registry to establish that her father was an OKIB band member. However, OKIB did not have copies.

The letter requested that she provide copies, and any other information or documentation she might like Council to consider regarding her ancestry, by November 13, 2018.

[ 23 ] The second issue was described as threatening behaviour to OKIB staff and guests. Copies of the Brewer and Marchand Emails (with names deleted), the Wilson Incident Report Form (name deleted) and the Shortt Letter were attached. The Applicant was advised that if she would like to respond to those statements with her own perspective on these incidents and how Council should take them into account when determining her membership application, she should do so by letter by November 13, 2018.

The Applicant responded by letter dated December 3, 2018. [ 24 ] By Band Council Resolution dated January 7, 2019 Council declined to consent to the Applicant’s name being added to the OKIB band list [2019 Decision]. The stated reason for this was that: OKIB has received multiple reports of aggressive and threatening behaviour by Ms. Johnston toward OKIB staff and guests, including verbal threats to use a firearm against an OKIB member, and she has not provided sufficient excuse or explanation for this behaviour. She has not taken responsibility for this behaviour and has denied it.

As a result, we do not believe she would make a positive contribution to the OKIB community. [ 25 ] On September 17, 2019, OKIB filed a Notice of Civil Claim in the Supreme Court of British Columbia [SCBC] seeking, among other things, a declaration that OKIB, as the beneficial owner of the Remaining Simla Estate Lands, was entitled to all of the rents, actual and potential, in respect to those lands since the death of Rhoda Simla; damages arising from trespass and conversion; and an order enjoining the Applicant from entering the OKIB reserve and the subject lands. [ 26 ] On January 17, 2020, pursuant to

section 4.10 of the version of the 2017 Transfer Policy then in effect (adopted September 25, 2017 and amended November 14, 2017), the Applicant launched a protest against the 2019 Decision [Protest].

Section 4.10 provided that any applicant wishing to appeal a decision of Chief and Council under the transfer policy could submit a protest to the Indian Registrar under

section 14.2 of the Indian Act . [ 27 ] On August 4, 2020, OKIB filed an application for

summary trial in the SCBC seeking remedies that included a declaration that OKIB, as the beneficial owner of the Remaining Simla Estate Lands, was entitled to all the rents, both actual and potential, in respect of the land since the death of Rhoda Simla, damages arising from trespass and conversion and, an order enjoining Ms. Johnston, the defendant in that action, from entering the Reserve and the Remaining Simla Estate Lands [Trespass Claim]. [ 28 ] On August 17, 2020, the Applicant brought a cross application seeking a stay of the SCBC Trespass Claim until her Protest could be heard. [ 29 ] The SCBC issued its decision with respect to the

summary trial application and the stay application on October 14, 2020 ( Okanagan Indian Band v Johnston , 2020 BCSC 1749 ) [Trespass Decision]. It adjourned OKIB’s

summary trial application with respect to the Trespass Claim and stayed the proceedings for a period of one year. [ 30 ] In December 2020, the 2017 Transfer Policy was amended by Council to remove the right to protest to the Indian Registrar. [ 31 ] By letter dated January 11, 2021, OKIB Chief Byron Louis wrote to the Applicant and offered to reconsider the 2019 Decision.

The letter refers to her Protest to the Indian Registrar in which counsel for the Applicant stated that the Applicant did not have an adequate opportunity to respond to the statements from OKIB representatives and guests regarding the Applicant’s behaviour prior to Council making its decision to deny her application. Chief Louis stated that Council wished to give the Applicant another opportunity to respond and present her views to Council. The previously provided documents (the Brewer and Marchand Emails, Wilson Incident Report and the Shortt Letter) were again attached.

Chief Louis advised that Council would consider any further information or documentation if received by February 10, 2021 and also invited the Applicant to attend a Council meeting (via Zoom) on March 1 or March 8, 2021 to make verbal submissions to Council, should she wish to do so. She could also bring a lawyer to the Council meeting if she wished. Chief Louis also noted that the 2017 Transfer Policy had been amended in December 2020 to remove the right to protest to the Indian Registrar. [ 32 ] The Applicant initially declined the invitation to make submissions to Council (by letter dated January 21, 2021).

However, by letter to Council dated February 10, 2021, her counsel advised that the Applicant was agreeable to attend a Council meeting on March 8, 2021, via Zoom, and requested that her legal counsel also be in attendance. By the same letter, counsel for the Applicant provided written submissions to Council [February Submissions]. Ultimately, however, counsel for the Applicant advised by letter of April 13, 2021 that the Applicant did not wish to attend the Council meeting in person and requested that the reconsideration of her membership transfer application be made based on the February Submissions.

Counsel indicated that should Council have any questions or concerns the Applicant and her counsel would be happy to answer them in writing . [ 33 ] By Band Council Resolution dated May 10, 2021, Council again refused to consent to the Applicant’s transfer of her membership to OKIB. That decision is the subject of this judicial review. Relevant Legislation Indian Act , RSC 1985 c I-5 12 Commencing on the day that is two years after the day that

an Act entitled

An Act to amend the Indian Act , introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under

section 13.1, any person who (

a) is entitled to be registered under

section 6, but is not entitled to have his name entered in the Band List maintained in the Department under

section 11, or (

b) is a member of another band,

is entitled to have his name entered in the Band List maintained in the Department for a band if the council of the admitting band consents.

Section 12 Membership Transfer Policy (as approved on September 25, 2017 and amended on November 14, 2017 and December 21, 2020) 1 PURPOSE 1.1. The purpose of this Policy is to establish procedures for obtaining the consent of Chief and Council pursuant to

section 12 of the Indian Act for the admission to membership in the Okanagan Indian Band of any person who: (

a) is entitled to be registered under

section 6 of the Indian Act , but not entitled to have his or her name entered in the OKIB Membership List, or (

b) is a member of another band. 1.2. This Policy establishes the circumstances in which: (

a) Chief and Council may consent to the admission of a person to the OKIB Membership List under

section 12 of the Indian Act without a Community Vote; and (

b) Chief and Council will refer an application for admission to the electors of OKIB for a Community Vote prior to consenting to the admission of a person to the OKIB Membership List under

Section 12 of the Indian Act . 2 SCOPE 2.1. This Policy applies to registered status Indians under

section 6 of the Indian Act who wish to transfer to the OKIB Membership List in accordance with

section 12 of the Indian Act . 3

DEFINITIONS … 3.2. Applicant means a person seeking Chief and Council’s consent under this policy to become a Band Member, pursuant to

section 12 of the Indian Act . 3.3. Band Member means a person on the OKIB Membership List. 3.4. Chief and Council means the elected Chief and Council of OKIB. 3.5. Community Vote means the non-binding vote by eligible OKIB electors in person, at a vote called by Chief and Council, on whether or not an Applicant should be added to the OKIB Membership List. 3.6 Filing Fee means a one-time, non-refundable processing fee of $250.00 dollars to be paid before OKIB processes and application under this Policy 3.7.

INAC means the Ministry of Indigenous and Northern Affairs Canada and any successor ministry or department. 3.8. Indian Registry Administrator means the OKIB staff person responsible for maintaining a list of Band Members for the Indian Registrar and registering status Indians on behalf of INAC. .... 3.10. OKIB Ancestry means a connection by line of descent to a current or former Band Member. 3.11. OKIB Membership List means the Band List of the Okanagan Indian Band maintained under

section 8 of the Indian Act . 3.12. OKIB means the Okanagan Indian Band. … 3.14. Statutory Declaration means a solemn declaration that meets the requirements of

section 41 of the Canada Evidence Act . 3.15 . Supporting Documents means all documents submitted by the Applicant and the documents listed in

section 7 of this policy. … 3.16 Well-Established Community Residence means a person has been living on one of the OKIB reserves for at least five consecutive years. 4 POLICY Applicants with OKIB or Syilx Ancestry

4.1. The Chief and Council may, by band council resolution, consent to the admission of an Applicant to the Membership List without a Community Vote where the Applicant is registered under

section 6 of the Indian Act and: (

a) was formerly registered as a Band Member and was involuntarily transferred to the membership of another band, including transfer as a child; (

b) was formerly registered as a Band Member and voluntarily transferred to the membership of another band; (

c) is of OKIB ancestry and has provided evidence satisfactory to the Chief and Council of OKIB Ancestry; or (

d) is of Sylix Ancestry and has provided evidence satisfactory to the Chief and Council of Sylix Ancestry, Well-Established Community Residence and current familial and community ties to the OKIB. Other Applicants 4.2 Chief and Council may, by band council resolution, refer an applicant to a Community Vote where an Applicant: (

a) does not meet the criteria in

section 4.1 of this Policy; (

b) is a registered Indian under

section 6 of the Indian Act ; (

c) has provided some evidence of Well-Established Community Residence; and (

d) has provided some evidence of current familial and community ties to OKIB; 4.3 Subject to

section 4.4, Chief and Council may, by band resolution, consent to the admission of an Applicant to the Membership List where the Applicant: (

a) does not meet the criteria in

section 4.1 of this Policy; (

b) is a registered Indian under

section 6 of the Indian Act ; (

c) has provided evidence satisfactory to the Chief and Council of Well-Established Community Residence; and (

d) has provided evidence satisfactory to the Chief and Council of current familial and community ties to OKIB. 4.4 Chief and Council will consider the results of a Community Vote under

section 4.2 in deciding whether to grant consent under

section 4.3. ….. Denial of Admission to Band Membership 4.6. Chief and Council will, by band council resolution, deny the admission of Applicants to the OKIB Membership List who do not meet the criteria in at least one of sections 4.1 and 4.3. 4.7 OKIB understands and complies with its obligations not to discriminate on the basis of criminal convictions for which a pardon has been granted or in respect of which a suspension of records has been ordered.

However, to the extent it is permitted by the Canadian Human Rights Act , Chief and Council may deny admission of an Applicant to the OKIB Membership List who has been deemed by Chief and Council to pose a risk to the safety and social well-being of OKIB Band Members because of criminal activity. 4.8 Chief and Council may deny the admission of an Applicant to the OKIB Membership List who holds a Certificate of Possession for lands on the reserve of another band or who owes outstanding debts to another band. 4.9 An Applicant who applies to the OKIB Membership List and is denied may not re-apply to the OKIB for at least five years following the Applicant’s last application, except if the Applicant is able to provide new evidence of OKIB Ancestry of Sylix Ancestry. …. 5 RESPONSIBILITY 5.1.

The Indian Registry Administrator is responsible for providing recommendations to Chief and Council with complete applications and all Supporting Documents. 5.2. Each Applicant is responsible for providing the Indian Registry Administrator with the documents required by this policy. Incomplete applications will not be processed. 6 PROCEDURE Applicants with OKIB or Syilx Ancestry – Application Requirements 6.1. Where an Applicant applies under

section 4.1: (

a) The Applicant must submit a signed, dated Membership Transfer Application and Filing Fee to the Indian Registry

Administrator accompanied by the following documents: (

i) A photocopy of the Applicant’s current Indian registration card; (ii) The Applicant’s original long form birth certificate; and (iii) If the Applicant is a member of a band governed by

section 10 of the Indian Act , a signed letter or band council resolution from the originating band confirming the Applicant is a member. (

b) Applicants eighteen years of age or older must provide the following additional information: (

i) Criminal Record Check; (ii) Signed letter from the originating band stating the Applicant does not hold a Certificate of Possession on any of the band’s lands; and (iii) Signed letter from the originating band stating the Applicant does not have any outstanding debts to that band. (

c) The Applicant may submit evidence of OKIB Ancestry, if applicable, including any one or more of the following: (

i) Full form birth certificate; (ii) Full form baptismal certificate; (iii) A Statutory Declaration of one or more parents or grandparents of OKIB Ancestry declaring that person’s knowledge or belief as to the OKIB Ancestry of the Applicant; (iv) Statutory Declarations of three other persons of OKIB Ancestry declaring their knowledge or belief as to the OKIB Ancestry of the Applicant; or (

v) Any other evidence satisfactory to the Chief and Council of an Applicant’s OKIB Ancestry. (

d) The Applicant may submit evidence of Syilx Ancestry, if applicable, including any one or more of the following: (

i) Full form birth certificate; (ii) Full form baptismal certificate; (iii) A Statutory Declaration of one or more parents or grandparents of Syilx Ancestry declaring that person’s knowledge or belief as to the Syilx Ancestry of the Applicant; (iv) Statutory Declarations of three other persons of Syilx Ancestry declaring their knowledge or belief as to the Syilx Ancestry of the Applicant; or (

v) Any other evidence satisfactory to the Chief and Council of an Applicant’s Syilx Ancestry. (

e) The Applicant may submit evidence of Well-Established Community Residence, if applicable, Including any one or more of the following: …… (

f) The Applicant may submit evidence of current familial and community ties to OKIB, if applicable, including any one or more of the following: …… (

g) The Indian Registry Administrator will review the complete applications and submit a recommendation including all Supporting Documents to Chief and Council. (

h) Upon receipt of the Indian Registry Administrator’s recommendations at a duly convened Council meeting, Chief and Council will, by band council resolution, give or deny their consent to the Applicant becoming a Band Member. ….. Other Applicants – Application Requirements 6.2 Where an Applicant applies under

section 4.3: …… NOTICE OF DECISIONS ON BAND MEMBERSHIP 6.9. After a final decision on an application has been made by Chief and Council, the Indian Registry Administrator will send a formal letter to each individual Applicant stating: (

a) whether the Applicant’s application was approved or denied;

(

b) Chief and Council’s reasons for approving or denying the application; and (

c) the effective date of the approval or denial. …… Decision under Review [ 34 ] The Band Council Resolution which comprises the 2021 Reconsideration Decision begins with a series of recitals by Council. These include the statement that the Applicant’s request for membership was governed by subsection 12 (

b) of the Indian Act and by the 2017 Transfer Policy. Further, that subsection 12 (

b) gives band councils broad discretion to grant or deny consent to transfer to their band from another band. And, that the 2017 Transfer Policy establishes the procedures for seeking the consent of the OKIB pursuant to

section 12 of the Indian Act admission to membership in the OKIB, including for former band members and people with OKIB ancestry. However, that the 2017 Transfer Policy does not limit Council’s discretion to grant or deny consent to transfer membership of OKIB where the procedures are followed, or the basis on which it may grant or deny consent, except that it may not consent where the criteria in one of sections 4.1 and 4.3 are not met. Further, that the consent of Council is not automatic once an applicant has provided the documentation listed in the 2017 Transfer Policy.

Council states that the fulfilment of these requirements only means that the application is ready to be considered by Council (or put to the Community in circumstances where a vote is required), and that Council retains the discretion to grant or deny consent to transfer. [ 35 ] Council next set out the background facts to the reconsideration.

This includes that the Applicant had first been registered for Indian status and membership in OKIB on November 16, 1987, but that she had requested a transfer to the Nak’azdli Whut’en band on January 22, 1988 and, on August 19, 2002, she wrote to OKIB to request a transfer back to OKIB from Nak’azdli Whut’en band. Council states that between 2002 and 2018 the Applicant had provided documents and written submissions on her application to transfer and that during this period she had also written to Council several times to request that her application be processed.

There had also been correspondence from OKIB to the Applicant requesting missing information and inviting her to submit information regarding her ancestry. Council states that in making its decision it considered all correspondence between OKIB and the Applicant regarding her application and all of the documents she provided. Council notes that the Applicant relocated to OKIB’s reserve lands in 2009 to live with OKIB member Rhoda Simla who had bequeathed the Simla Lands to the Applicant.

However, that the Applicant was not able to inherit those as she was not a member of OKIB and her membership application was still outstanding. The Applicant continued to live on the Simla Estate Lands. Council also states that it was aware of reports by a Councillor, staff and visitor regarding " “threatening, aggressive or obstructive behaviour” " by the Applicant, " “including” " the three incidents then listed – these were the events described in the Brewer and Marchand Emails, the Wilson Incident Report Form and the Shortt Letter.

Council then summarizes the procedural steps that led to the reconsideration. [ 36 ] Council next summarizes the Applicant’s submissions. This included that she spent her weekends and holidays as a child with her aunt and uncle, Rhoda and Raymond Simla, and other OKIB members on the OKIB reserve; she viewed her aunt as a mother; and, has a close connection to the community and has family members living and buried on the reserve.

The Applicant had submitted that she transferred to the Nak’azdi Whut’en band for purposes of her work in a specialized victim service program in that community, she always planned to return to OKIC and, at the time she transferred her membership out, she was advised by OKIB employees that she could transfer her membership back. The Applicant relocated to the lands of her aunt and uncle in 2009, where she resides with her youngest daughter and grandson.

As to the alleged incidents of threatening behaviour, the applicant had submitted that: - With respect to the alleged Brewer/Marchand incident, she was frustrated and concerned that OKIB’s delay in processing her membership transfer application might lead to the sale of the Remaining Simla Estate Lands. She requested the surveyor to leave and demanded OKIB get a court order if they wanted to conduct a survey. She denied that she threatened Councillor Brewer at all or with a gun. She does not own a firearm; - With respect to the alleged incident with Veronica Wilson, she recalled interacting with Ms.

Wilson, was frustrated by the delay in considering her membership transfer application but did not threaten Ms. Wilson. The Applicant is an elder and was 70 years old at the time; - With respect to the alleged incident with Jaron Shortt, she requested the surveyor to leave the lands. She recalled an RCMP officer was present and was sympathetic to her situation.

She requested OKIB get a court order to proceed with the survey. [ 37 ] Council also noted that in her Protest, which the Applicant referred to in her written submission, she alleged bias on the part of Council members because they wish to acquire the Simla Estate Lands. One of her letters to Council also appeared to allege bias because one of the Councillor’s relatives, Cecil Louis, purchased some of the land that had previously been sold. [ 38 ] Council then set out its findings.

Council states that it considered the available evidence on OKIB ancestry and accepted that there is evidence of the Applicant’s OKIB ancestry by way of the statutory declaration of Frank Jack. However, that ancestry was just one factor that may be considered in the exercise of its discretion when considering a request to transfer membership. Further, that ancestry or former band membership does not obligate Council to consent to transfer of membership.

Council states that " “in all of the circumstances” " , ancestry on its own was an insufficient basis to justify granting consent to the Applicant to transfer her membership. [ 39 ] Council states it considered the Applicant’s evidence of connection to the OKIB community and acknowledges that she says that she spent time with her aunt and uncle on OKIB as a child, and had a close bond with Ms. Simla.

Council states that it had no reason to doubt this. [ 40 ] Council states that there was no evidence of involvement with or participation in the community in her adult life prior to her receiving OKIB membership in 1987, which she gave up only two months later, in January 1988. Her January 1988 request to transfer membership notes that she had been living in Fort St. James for 11 years, and that she did not feel she could do justice by the OKIB

living so far away. Council states that other than her transfer request in 2002 and residing on the reserve lands since 2009, Council was not aware of any participation by the Applicant in the community before or after relocating to the OKIB reserve, nor was there any evidence of this before Council.

Council considered that the Applicant’s submissions on her connection to the community must be balanced against her brief time as an OKIB member, her willingness to give up that membership for other opportunities, and the absence of evidence of contribution to or participation in the community as an adult. [ 41 ] Council also states that the Applicant’s potential contribution as an OKIB member must be considered in light of the reports of threatening or aggressive behaviour towards OKIB councillors and staff.

Council states that it considered the Applicant’s submissions regarding these alleged incidents of threatening behaviour, but that she had not provided any accounts from others regarding the alleged incidents. Council states that it accepted and preferred the account of Councillor Lyle Brewer, which was confirmed by Randy Marchand, and of Ms. Wilson whom Council states had no personal interest in the matter and gave written reports shortly after the alleged incidents. Council found that the Applicant had demonstrated threatening and aggressive behaviour as described by Councillor Brewer and Ms. Wilson.

Council accepted that no threats were uttered in the Shortt incident, but found that the Applicant prevented the surveyors from completing their survey. Council states that it took notice of the fact that the RCMP were contacted by Randy Marchand on September 27, 2017 and attended with the surveyors on June 15, 2018 at the request of OKIB.

Further, that Councillor Brewer had noted in his account that OKIB officials and the surveyors left after the Applicant’s threat, out of concern that the altercation might turn physical and found that this suggested the threatening behaviour was taken seriously and there were concerns about safety. [ 42 ] Council notes that the Applicant had not provided any statements from others to speak to her character.

Council found that the Applicant had demonstrated some connection to the community, but in light of all of the circumstances, including incidents of threatening and aggressive behaviour, it was not convinced that she had positively contributed to or participated in the community, or would do so in the future. Council states that it remained concerned about the threatening and aggressive behaviour involving Councillor Brewer and Ms. Wilson and did not believe that the Applicant would make a positive contribution to the community.

In these circumstances, her ancestry and connections to the OKIB community were not sufficient to justify consenting to her OKIB membership. [ 43 ] Council went on to address allegations of bias in her Protest and in a letter to Council dated May 18, 2017, although they had not been addressed in her most recent submissions to Council, and dismissed that concern. [ 44 ] Council resolved that the Applicant’s request for Council’s consent to transfer her membership to the OKIB was denied.

Issues and Standard of Review Preliminary Issue [ 45 ] OKIB has filed a motion to strike the Applicant’s affidavit affirmed on October 15, 2021 [Johnston Affidavit] and filed in support of her application for judicial review of the 2021 Reconsideration Decision. That motion will be dealt with as a preliminary issue in these reasons. Issues [ 46 ] The issues raised by the Applicant in this matter can be appropriately reframed as follows: 1 . Was the 2021 Reconsideration Decision reasonable? 2 . Was there a breach of the duty of procedural fairness? 3 .

If the Applicant is successful on issue 1 or 2, what remedy should issue? [ 47 ] With respect to the first issue, the parties submit and I agree that the reasonableness standard of review applies. [ 48 ] This is because when a court reviews the merits of an administrative decision there is a presumption that the reasonableness standard of review will apply for all aspects of that decision, including the administrative decision-maker’s

interpretation of its enabling statute ( Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ] at paras 10 , 23 and 25; see also Peters First Nation v Engstrom , 2021 FCA 243 at para 14 ). [ 49 ] On judicial review, the Court " “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” " ( Vavilov at para 99 ). [ 50 ] As to the second issue, issues of procedural fairness are to be reviewed on a correctness standard (see: Mission Institution v Khela , 2014 SCC 24 at para 79 ; Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 43 ).

That said, in Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 [ CPR ] the Federal Court of Appeal held that although the required reviewing exercise may be best – albeit imperfectly – reflected in the correctness standard, issues of procedural fairness do not necessarily lend themselves to a standard of review analysis. Rather, the Court is to determine whether the proceedings were fair in all of the circumstances.

That is, " “the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” " ( CPR at paras 54-56 ; see also Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship) , 2020 FCA 196 at para 35 ). [ 51 ] Subsequently, the Federal Court of Appeal in Ahousaht First Nation v Canada (Indian Affairs and Northern Development) , 2021 FCA 135 [ Ahousaht ] restated this as follows:

[14] The standard of review on issues of procedural fairness is essentially correctness: Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502 at para. 79 . As stated in Vidéotron Ltée v. Canada (Shared Services) , 2019 FCA 307 , 313 A.C.W.S. (3d) 299 at para. 12 : Issues of procedural fairness are to be reviewed on a correctness standard.

While it may be that “no standard of review is being applied” when a court considers issues of procedural fairness because the question is “whether the procedure was fair having regard to all the circumstances,” this Court’s review is “best reflected in the correctness standard” for such issues ( Canadian Pacific Railway Company v. Canada (Attorney General) , 2018 FCA 69 , [2018] F.C.J. No. 382 at para. 54 ). [ 52 ] Accordingly, I understand the standard of review for issues of procedural fairness to be correctness, or at least, essentially correctness.

Preliminary Issue [ 53 ] OKIB has brought a motion seeking to strike out the Johnston Affidavit. The basis for this motion is stated to be that the Johnston Affidavit " “seeks to establish itself as an alternative to the Certified Tribunal Record” " [CTR] and that it contains “inadmissible duplicative information”, most of which is included in the CTR, fresh evidence that was not before Council when it made the 2021 Reconsideration Decision and, that the affidavit narrative colours the facts in the CTR which is " “argument masquerading as evidence” " .

OKIB submits that the offending portions of the affidavit are so numerous and intertwined with the surrounding paragraphs that severance of the offending portions is difficult so the affidavit should be struck out in whole.

Alternatively, the offending portions should be struck out. [ 54 ] The Applicant submits that her affidavit contains general background information and sets out, in a chronological way, relevant facts which for the most part form a part of the record, Where facts in the affidavit do not form part of the record, they are relevant and are not controversial, do not contain hearsay, argument or opinion and are not prejudicial. Analysis [ 55 ] An applicant who files an application for judicial review is entitled to file supporting affidavit evidence ( Rule 306 , Federal Courts Rules , SOR/98-106 [ Rules ]).

Affidavits are to be confined to facts within the deponent’s personal knowledge (Rule 81(1)), and are to " “adduce facts relevant to the dispute without gloss or explanation” " ( Canada (Attorney General) v Quadrini , 2010 FCA 47 at para 18 [ Quadrini ] ). Affidavits must be free from argumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw negative conclusions ( Canadian Tire Corporation v Canadian Bicycle Manufacturers Association , 2006 FCA 56 at paras 9-10 [ Canadian Tire ] ).

And, while an affidavit may contain non-argumentative orienting statements, such evidence is admissible only for the narrow purpose of providing background information for the reviewing court and may not engage in spin or advocacy ( Delios v Canada (Attorney General) , 2015 FCA 117 at para 45 [ Delios ] ). [ 56 ] As explained in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency , 2012 FCA 22 [ Assn of Universities and Colleges ] , in determining the admissibility of an affidavit in support of an application for judicial review, the differing roles played by the court and the administrative decision-maker must be kept in mind.

Parliament gave the administrative decision- maker, and not the court, jurisdiction to determine certain matters on their merits. Because of this demarcation of roles, the court cannot allow itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before a court on judicial review is restricted to the evidentiary record that was before the decision-maker.

Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible. [ 57 ] The recognized exceptions are when an affidavit: provides general background in circumstances where that information might assist the court in understanding the issues relevant to the judicial review but does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker; brings to the attention of the reviewing court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker so that the court can fulfill its role of reviewing for procedural unfairness; and, highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding ( Assn of Universities and Colleges at para 20; Bernard v Canada (Revenue Agency) , 2015 FCA 263 at paras 19-25 [ Bernard ] ; Delios at para 45 ; Henri v Canada (Attorney General) , 2016 FCA 38 at para 39-41 [ Henri ] ).

Duplicate Information [ 58 ] OKIB takes great exception to the fact that much of the Johnston Affidavit addresses information contained in the CTR. OKIB has generated a chart to demonstrate that 22 of the 36 exhibits attached to the Johnstone Affidavit are in fact found in the CTR.

OKIB submits that the Johnston Affidavit contains information that is duplicative of the CTR filed by OKIB " “thereby contravening the requirement that affidavit evidence neither ‘supplement the evidentiary record [nor] replace that evidence’” " , citing Tsleil-Waututh Nation v Canada (Attorney General) 2017 FCA 116 at paragraph 33 [ Tsleil-Waututh ] . [ 59 ] In my view, to the extent that OKIB is suggesting that because a document appears in a CTR that an applicant may not refer to and attach as an exhibit the same document in their supporting affidavit, OKIB misreads Tsleil-Waututh .

There, Justice Stratas revisited the general rule that evidence that was not before the decision-maker, subject to certain exceptions, is not admissible at judicial review. He also spoke to the general background rule: [29] The applicants do not object to the fact that the affidavits filed by the respondents contain background explanations and summaries. After all, looking at the material before me, it seems that most of the affidavits filed by the applicants do that as well.

[30] Instead, the applicants object to the extent to which the respondents’ affidavits provide background information andsummaries, the argumentative nature of some of the statements, and the presence of hearsay and opinion….. [31] The current law on providing background information or orienting summaries of information in an affidavit offered inan application for judicial review is set out in authorities such as Association of Universities and Colleges of Canada v.Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297, Delios v.

Canada (AttorneyGeneral), 2015 FCA 117, 472 N.R. 171 and Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189. [32] According to these authorities, normally the evidentiary record before the administrative decision-maker is the onlyevidence admissible in the reviewing court.

But in circumstances where the administrative decision-maker has developed anevidentiary record and the record is complex, voluminous or both, summaries or statements of general background in anaffidavit are admissible in the reviewing court for orienting or introductory purposes and for no other purpose. [33] Where, as here, the administrative decision-maker has developed an evidentiary record, general background statementsor summaries are tendered not to supplement the evidentiary record, replace that evidence or wade into the merits of thematter decided by the administrative decision-maker.

Instead, they are admissible for just one limited purpose: to explain therecord and the proceeding below for the purpose of orienting the reviewing court. This is seen from the following passage inAssociation of Universities (at para. 20): Sometimes this Court will receive an affidavit that provides general background in circumstances where thatinformation might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of CorinneKelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013at paragraphs 39-40; Chopra v.

Canada (Treasury Board) (1999), (FC), 168 F.T.R. 273 atparagraph 9.

Care must be taken to ensure that the affidavit does not go further and provide evidence relevant tothe merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. [34] In Delios, this Court amplified upon this (at para. 45), adding that the general background statements and summariesshould avoid argumentation: The “general background” exception applies to non-argumentative orienting statements that assist the reviewingcourt in understanding the history and nature of the case that was before the administrative decision-maker.

Injudicial reviews of complex administrative decisions where there is procedural and factual complexity and arecord comprised of hundreds or thousands of documents, reviewing courts find it useful to receive an affidavitthat briefly reviews in a neutral and uncontroversial way the procedures that took place below and the categoriesof evidence that the parties placed before the administrator.

As long as the affidavit does not engage in spin oradvocacy—that is the role of the memorandum of fact and law—it is admissible as an exception to the generalrule. [35] In Delios (at para. 46), this Court also reiterated the warning in Association of Universities to the effect that in providingbackground information, the affidavit must not go further and does not “go further and provide evidence relevant to themerits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider.” [36] The reference in Delios to “non-argumentative … statements” is a nod to the many cases in our Court and Rule 81(1) tothe effect that affidavits are to be “confined to facts” without argument. [37] A number of the applicants cited Canada (Attorney General) v.

Quadrini, 2010 FCA 47 and its admonition in para. 18that facts should be presented without “gloss or explanation.” This phrase should not be read out of context. Quadrini warnsagainst controversial argumentation that steps over the line of permissibility. Sometimes a good, admissible

summary ofwhat took place below can contain explanations. But an affidavit is not supposed to be a memorandum of fact and law. [38] In Bernard, this Court emphasized the primary rationale behind allowing an affidavit filed on judicial review to providebackground information: it is to assist “this Court’s task of reviewing the administrative decision (i.e., this Court’s task ofapplying rule of law standards) by identifying, summarizing and highlighting the evidence most relevant to that task”without offering fresh evidence going to the merits of the matter before the administrative decision-maker (at para. 23).

This“respects the differing roles of the administrative decision-maker and the reviewing court, the roles of merits-decider andreviewer, respectively, and in so doing respects the separation of powers” (at para. 23).

Again, the background informationis merely for orienting the reviewing court, not to provide evidence as to what took place before the administrative decision-maker: the record before that decision-maker is the evidence of what took place. ……. [40] I conclude that all of the background statements and summaries to which the applicants object are admissible for thelimited purpose of orienting this Court as the reviewing court, not as evidence of what actually happened below.

Theevidence of what actually happened below is found exclusively in the record that will be filed with this Court. (Emphasis added) [60] Tsleil-Waututh does not stand for the proposition that if documents are contained in a CTR then an Applicant is precluded fromaddressing them in neutral way in a narrative when providing the history or background to the matter at issue. Rather, Tsleil-Waututhestablishes that if a CTR or other record exists, then general background statements or summaries are admissible for the limited purposeof explaining the record and the proceeding below to orient the reviewing court.

In so doing, they do not replace the evidence found inthe record.

[ 61 ] In my view, OKIB’s argument that because a CTR exists containing much the same documentation referred to and contained in the Johnston Affidavit and that the affidavit should be struck out as containing duplicate information, cannot succeed. Further, it is obvious that if the information is found both in the record and in the affidavit then it is not new evidence, it is evidence that was before Council when it made its decision. I note that the Applicant has provided a chart which links most of the paragraphs (by paragraph number) of the Johnston Affidavit to information found in the CTR (by page number).

Another chart lists the remaining paragraphs and indicates the Applicant’s description of the information in that paragraph and the Applicant’s position that it provides general information and/or non- controversial and non-prejudicial information. [ 62 ] As indicated above, the jurisprudence establishes that affidavit evidence that provides general background information may, as an exception to the general rule, be admissible on judicial review, but that such evidence can go no further.

It cannot speak to the merits of the matter that was before the administrative decision-maker. [ 63 ] Thus, the question is whether the information contained in the Johnson Affidavit – to the extent that it is not also contained in the CTR – falls within that exception. Background Information [ 64 ] OKIB asserts that the Applicant is " “padding the record” " .

OKIB submits that in reproducing much of the CTR, as well as providing impermissible and unnecessary duplication, the affidavit provides fresh evidence and additional narrative and commentary that asserts or is suggestive of additional facts that were not before the decision-maker and does not fall within any of the exceptions to the new evidence rule. [ 65 ] More specifically, OKIB submits the Johnston Affidavit is too lengthy and too wide ranging to be considered general background statement of

summary of the record below and that much of the Johnston Affidavit is " “recycled” " from a previous affidavit filed in relation to OKIB’s Trespass Claim against her. [ 66 ] While I do not consider the Johnston Affidavit to be either lengthy or wide ranging, I do note that the Applicant first applied to transfer her membership back to OKIB in 2002, nearly 20 years before the 2021 Reconsideration Decision. It is therefore unsurprising that her affidavit would take 71 paragraphs to set out the background to the decision under review.

I also found her affidavit to be very helpful in that it sets out in clear, chorological order the background leading up to that decision. An applicant’s narrative of events can provide helpful background information and context which is otherwise not reflected in the record ( Marcusa v Canada (Public Safety and Emergency Preparedness ), 2019 FC 1092 at para 20 ).

This is such a circumstance. [ 67 ] Nor do I see the basis for OKIB’s expressed concern because the content of the Applicant’s affidavit filed in the Trespass Claim contains similar content to her affidavit filed in support of this application for judicial review. While it may be that certain of the issues in these two proceedings differ, both arise from the same basic factual situation and encompass the Applicant’s efforts to transfer her membership to OKIB and to inherit, possess and occupy the subject lands. [ 68 ] OKIB does not explain why the similarity of Ms.

Johnston’s affidavit evidence filed in both matters is problematic with respect to the admissibility of her evidence in this matter. In my view, OKIB’s real concern is with the Trespass Decision itself, which is found in the CTR, and which sets out and is based on the similar (or " “recycled” " ) affidavit evidence from Ms. Johnston filed in the Trespass Claim (I note that affidavit of Ms.

Johnston which was filed in that matter and to which OKIB averts is not included in the CTR, but that OKIB includes it in its motion record as an exhibit to an affidavit sworn by a paralegal employed by OKIB’s counsel). [ 69 ] OKIB also submits that the 2021 Reconsideration Decision postdates the commencement and subsequent stay of the Trespass Claim. This is true, but is not particularly relevant to OKIB’s motion to strike the Johnston Affidavit, particularly as OKIB Council had to have been aware of the SCBC proceedings.

OKIB goes on to submit that on judicial review the focus must be on whether the 2021 Reconsideration Decision was reasonable and procedurally fair. I agree. However, OKIB next states that matters relevant to the trespass issue are fundamentally different from those before this Court on this judicial review. While that may, or may not be so, this simply serves to again highlight that OKIB’s real concern here is with any perceived potential impact the Trespass Decision could have in this proceeding.

OKIB does not explain why – in relation to the Trespass Claim – the Johnston Affidavit filed in support of this judicial review is not background information. [ 70 ] OKIB also provides a chart listing 12 items that OKIB submits demonstrate that the Johnston Affidavit contains information that could have been provided to OKIB prior to the 2021 Reconsideration Decision but was not. Thus, it is inadmissible. [ 71 ] For example, paragraph 21 of the Johnston Affidavit and related Exhibit I.

Paragraph 21 states that the Applicant’s membership transfer application was brought to OKIB band council for consideration in 2010, but, following a closed room decision, her application was tabled. She states that she continued to make attempts to have her membership approved but OKIB failed to process the application. She attaches correspondence from OKIB dated March 17, 2011.

This is a " “To Whom it May concern” " notice that, effective October 6, 2010, OKIB Chief and Council developed a new membership transfer policy entailing a $50 fee and asking that recipients resubmit their applications with the documents listed on a checklist and to pay the fee if they had not already done so. [ 72 ] It is of note that the February Submissions to Council also state that the Applicant’s application was brought to OKIB band council for consideration in 2010 but following a closed room decision, her application was tabled.

This information was therefore before Council when it made the 2021 Reconsideration Decision. It is not new evidence. I also note that Exhibit I, the generic notice apparently aimed at persons who had previously applied for membership transfer, is not controversial.

Indeed, OKIB filed the affidavit of Michael Fotheringham, Executive Director for OKIB, affirmed on October 15, 2021 [Fotheringham Affidavit] which speaks to the OKIB transfer policy history and confirms that on October 6, 2010 OKIB approved the 2010 Policy. [ 73 ] OKIB also takes issue with paragraph 28 of the Johnston Affidavit where the Applicant states that her aunt named her as the sole beneficiary of her estate. She attached as Exhibit N a copy of her aunt’s will.

I note that the February Submissions to Council state that Rhoda Simla named the Applicant as the sole beneficial of her estate in her will dated December 21, 2002. Accordingly, this is not new

evidence, as it was information before Council when it made the 2021 Reconsideration Decision. Further, the content of the will is not controversial. While the actual will itself was not before Council (or at least is not in the CTR), its content is not in dispute. In my view, in these circumstances, attaching the will as an exhibit does not, in effect, provide " “new evidence” " thereby warranting the striking out of the Johnston Affidavit or that paragraph thereof.

The actual document can and will be disregarded but its content is not in dispute and is not controversial. [ 74 ] OKIB also takes issue with paragraph 35 of the Johnston Affidavit. This states that the Applicant received correspondence from AANDA advising that Lot 145 Block 4 and Lot 144-1 Block 4, the Sold Simla Lots, had been sold and attaching as Exhibit Q a letter from AANDC dated August 18, 2015 in that regard. The identity and sale of these lots is not new information.

The February Submissions made on behalf of the Applicant also states that two of the four parcels comprising the lands left to her by her aunt had been sold pursuant to

section 50 of the Indian Act . And, again, this is not controversial. OKIB sought to have those lands sold and was well aware that they had been sold. While the AANDC letter may not have been before Council (although I would expect that similar notification from AANDA may well have been), the sale of the lots is not new information warranting the striking out of the Johnston Affidavit in whole or the subject paragraph.

The attached exhibit can simply be disregarded. [ 75 ] Finally, by way of one further example, I note that while the Johnston Affidavit refers in paragraphs 55, 56 and 57 to the filing of her Protest, the commencement of the Trespass Claim and her response filed to that claim, this is not new evidence. Moreover, OKIB would undoubtedly have in its records copies of the attached exhibits pertaining to those proceedings. Council, in fact, addressed the Applicant’s assertions contained in the Protest in the 2021 Reconsideration Decision.

The documents are also exhibits to the affidavit filed with OKIB’s motions to strike – clearly, OKIB was aware of them and their content. [ 76 ] In short, having reviewed all of the items identified by OKIB, I agree with the Applicant that the challenged paragraphs provide general background information which is not controversial.

To the extent that the affidavit evidence and related exhibits are not found in the CTR and do not provide the necessary foundation for the alleged breaches of procedural fairness ( Marcusa at para 20 ), they will not be considered in determining this application for judicial review. [ 77 ] OKIB also asserts that the Johnston Affidavit contains impermissible gloss or explanation. OKIB submits that this includes paragraphs 2 to 12 of the affidavit in which the Applicant " “narrates her upbringing, career opportunities, and life decisions, including transferring away from OKIB to Fort St.

James and her justification for doing so” " . Again, however, most of this information – including why she transferred her membership to Nak’azdli Whu’en in 1988 – is contained in the February Submissions, which submissions are acknowledged in the 2021 Reconsideration Decision. It is true, as the Applicant concedes, that at paragraph 11 she adds that she was highly respected for her work in victim services and received long time service awards from the Fort St. James RCMP detachments, which information was not contained in the February Submissions or elsewhere in the CTR and, as such, it will be disregarded.

But this is a minor transgression. [ 78 ] OKIB also takes issue with paragraphs 36 and 37 of the Johnston Affidavit as providing a " “new gloss” " . However, paragraph 36 merely recites the content of the Brewer and Marchand Emails which are contained in the CTR. In paragraph 37, the Applicant denies threatening Mr. Brewer or anyone else with physical violence. She states she does not own a firearm and did not own one in 2016. At that time, she was 66 years old. She is 5’ 4” tall. She states she has no history of violence or threatening behaviour and that her career has involved defusing tense situations.

She simply wanted the surveyors to leave the Remaining Simla Estates Lands as they were left to her by her aunt in a valid will. To the extent that this evidence goes beyond describing the content of the February Submissions speaking to this incident, I agree that it adds a gloss and must be disregarded.

However, this is not a circumstance where the affidavit evidence is " “tendentious, opinionated and argumentative” " nor is the purpose of the Johnston Affidavit " “to provide to this Court an assessment of the evidence which differs from that made by” " the decision-maker, as was the case in Canadian Tire Corporation (at paras 10, 12 ). [ 79 ] Finally, OKIB takes issue with paragraphs 44 to 67 of the Johnston Affidavit. These essentially describe the Applicant’s efforts to have her membership transferred to OKIB from 2018 forward.

OKIB asserts that the Applicant provides unnecessary, although unspecified, gloss on the application process and on the alleged interactions with Veronica Wilson and Jason Shortt. While in my view it would have been preferable that the affidavit simply referred to the information contained in the February Submissions with respect to those alleged incidents, much of what is stated is encompassed by these submissions.

To the extent that it goes beyond this, I will disregard it, together with any other affidavit evidence that goes beyond a neutral depiction of background events. [ 80 ] OKIB also submits that the Johnson Affidavit essentially repeats the February Submission made by her counsel as a first-person narrative and that by retelling this same story as a first hand account the Applicant is impermissibly interpreting the evidence previously considered by Council, referencing Canadian Tire Corporation . [ 81 ] However, this is the Applicant’s story.

She is entitled to file an affidavit in support of her application for judicial review. More significantly, and as set out above, in doing so she is largely simply setting out the factual background of which she has personal knowledge and which was before Council when it made the 2021 Reconsideration Decision and is found in the CTR.

To the extent that certain sentences of some paragraphs or even some paragraphs of her affidavit go beyond this, they will be disregarded. [ 82 ] In that regard, the Applicant points out that in Tsleil-Waututh the Court considered whether some of the background statements and summaries in the respondent’s affidavits were too argumentative or contained statements of opinion.

Even though the Court found that, in some respects, some of the background statements and summaries in the affidavits should have been more clinically expressed, much of what was claimed to be said to be argumentative, when examined, was not argumentative at all. Further, that the panel hearing the applications would not be misled or swayed by argumentative statements or statement of opinion.

Justice Stratas concluded that the subject background information and summaries offered by the respondents’ deponents fulfilled the purpose of orienting the panel as to what happened below, at least from the respondents’ perspective, without causing undue prejudice. Accordingly, he declined to strike out any of the background information and summaries in the respondents’ affidavits. [ 83 ] In my view, this is a similar circumstance.

While the Johnston Affidavit could have been more carefully crafted to ensure that aspects of it did not add a gloss to information or go beyond providing a neutral depiction of the background events leading up to the 2021 Reconsideration Decision, to the minor extent that it does, the Court is able to disregard those sentences or paragraphs of the

affidavit. Scope of Application [ 84 ] OKIB next attacks the scope of the Johnston Affidavit on the basis that it is not co-extensive with the relief sought.

OKIB submits that because the Applicant is challenging only the 2021 Reconsideration Decision, much of her affidavit is irrelevant and addresses matters that do not assist the Court in resolving the claim - such as her prior attempts to have her membership transferred. [ 85 ] However, I agree with the Applicant that understanding the history of her applications for a transfer of her membership is essential context to the decision under review, which itself refers to some of these past events.

This does not expand the scope of the application, as the parties agree that the present application concerns only the 2021 Reconsideration Decision. Further, the Applicant asserts that the 2021 Reconsideration Decision is both unreasonable and breached procedural fairness. Her evidence pertaining to delay speaks, at the very least, to the latter assertion. Whether delay is, or is not, relevant is an issue on the merits.

I also note that OKIB submits that " “[t]he Applicant cannot arbitrarily expand the scope of legal relevance by adding evidence” " citing Merck Frosst Inc v Canada (Minister of Health) , [1997] FCJ No 1847 at paragraphs 8 and 9 . First, I do not agree that this is what the Applicant is doing. Second, the Court in Merck held that formal relevance is determined by reference to the issues of fact which separate the parties.

In an application for judicial review, the notice of motion is required to set out the legal rather than the factual grounds for seeking review, the issues are defined by the affidavits filed by the parties. Thus, cross-examination on those affidavits – which is what was at issue in the paragraphs referenced by OKIB – is limited to those facts sworn to by the deponents. Here, the Applicant asserts in her Notice of Application that there was a breach of procedural fairness/natural justice based on delay.

In her affidavit, she states, among other things, that Council did not address this when assessing her membership transfer application. I also note that OKIB chose not to cross-examine her on her affidavit. Procedural Fairness Exception [ 86 ] OKIB next asserts that much of the evidence in the Johnston Affidavit does not establish the breaches of procedural fairness set out in her Notice of Application.

For example, her evidence pertaining to delay is not relevant or probative because it speaks to historical conduct, not a procedural defect in relation to the 2021 Reconsideration Decision, which is the only decision under review.

OKIB states that the Applicant did not lead any evidence that suggests she was not provided with an opportunity to know the basis on which the 2021 Reconsideration Decision would be made or that OKIB was lacking evidence when deciding issues. [ 87 ] In my view, the issue of delay, and its role, if any, with respect to procedural fairness afforded to the Applicant with respect to the making of the 2021 Reconsideration Decision, is an issue on the merits. If delay is determined not to be relevant, then the evidence concerning delay will also not be relevant.

And, in that regard, the Applicant submits that she has provided evidence that she was not provided an opportunity to know the basis on which the decision would be made in paragraph 62 of her affidavit which, ironically, OKIB seeks to strike out. [ 88 ] OKIB goes on to submit that the Applicant does not adduce any evidence regarding how or whether the alleged defects of procedural fairness prejudiced her ability to receive a fair outcome in her decision. Again, this goes to the merits of the Applicant’s procedural fairness arguments and the sufficiency of her evidence.

In my view, OKIB’s real concern here is reflected in its submission that it is prima facia prejudicial to OKIB for the Applicant to " “confound " ” the review of the 2021 Reconsideration Decision with allegations relating to wholly distinct matters, including relating to the Trespass Claim or past unchallenged decisions pertaining to her membership transfer requests and that the " “reasonableness or fairness of the 2021 Reconsideration Decision under review cannot take its colour from separate conduct or unrelated matters” " .

The Court is not confounded and is able to discern the relevance, if any, of these issues. [ 89 ] Finally, OKIB submits that the Applicant does not contest the level of procedural fairness she received from OKIB and that " “it appears to be common ground that she received the maximum level of procedural fairness available” " . Therefore, there is no justification for leading evidence suggestive of her rights and interests in the matter under review, as she has received the highest level of procedural fairness. OKIB submits that as this is not in issue, all such evidence is immaterial. The Applicant disagrees.

In particular, she disagrees with OKIB’s statement that she was advised by letter in advance of the reconsideration setting out the " “central issues vexing OKIB about her transfer application” " .

Again, in my view, this is an issue to be dealt with on the merits, it is not an issue to be eliminated – as OKIB would prefer – by the striking out of the Johnston Affidavit. [ 90 ] In conclusion, I note that the Applicant refers to Mayne Pharma (Canada) v Canada (Minster of Health) , 2005 FCA 50 , which held that motions to strike out all or parts of affidavits should not be routinely made, especially where the question is one of relevance. Only in exceptional cases where prejudice is demonstrated and the evidence is obviously irreverent will such motions be justified (at para 13).

Further, that in Quadrini at para 18 the Federal Court of Appeal held that, as a general rule, an affidavit must contain relevant information which would be of assistance to the Court in determining the application and that the purpose of an affidavit is to adduce facts relevant to the dispute without gloss or explanation. " “The Court may strike affidavits, or portions of them, where they are abusive or clearly irrelevant, where they contain opinion, argument or legal conclusions” " .

I note that the Federal Court of Appeal has also held that it is well-established that the discretion to strike an affidavit or part of it should be exercised sparingly, only in exceptional circumstances, and where it is in the interest of justice to do so, such as where a party would be materially prejudiced ( Canada (Board of Internal Economy) v Canada (Attorney General) , 2017 FCA 43 at para 29 ). [ 91 ] For the reasons above I am not persuaded that the Johnston Affidavit is abusive or that it is clearly or " “obviously irrelevant” " ( Maynard at para 18; Coldwater First Nation v Canada (Attorney General) , 2019 FCA 292 at para 14 ).

Nor am I persuaded that this is an exceptional circumstance or that OKIB will be prejudiced if the affidavit is not struck out. To the extent that some portions of it add a gloss to the evidence that was before Council, it will be disregarded. [ 92 ] In my view, the Johnston Affidavit is admissible as much of it already forms a part of the record. To the extent that it does not, it is admissible as general background information for the limited purpose of orienting the Court (or as it speaks to the allegations of breach of procedural fairness).

As stated in Tsleil-Waututh , in any judicial review of an administrative decision where a complete record exists

before the administrative decision-maker, if the Court needs to know what happened below it will look to that record, including documents filed before the administrative decision-maker. If what happened below actually bears upon any of the issues to be decided by the Court, the Court will rely on the record. Thus, background statements or summaries " “will not factor into the Court’s decision at all” " ( Tsleil-Waututh at para 24 ). [ 93 ] Accordingly, I decline to exercise my discretion to strike all or part of the Johnston Affidavit.

Issue 1: Whether the 2021 Decision Was Reasonable Applicant’s Position [ 94 ] The Applicant submits that Council erred when it misinterpreted the 2017 Transfer Policy. She submits that on the plain wording of the policy she was entitled to a positive decision and to OKIB membership as she met the criteria set out in

section 4.1(

b) of the 2017 Transfer Policy. Evidence of well-established community residence and community ties to OKIB applies only to

section 4.1(d), not 4.1(

b) under which she applied. [ 95 ] The Applicant further submits that Council erred when it considered irrelevant factors when making the 2021 Reconsideration Decision, including the alleged threatening behaviour, contribution to the community, and character. By doing so, Council failed to comport with the specific constraints imposed by the 2017 Transfer Policy as to when membership transfer application may be denied, which are set out in sections 4.7 and 4.8 of the policy, and acted outside of its jurisdiction.

Alternatively, if those considerations were relevant, then the Applicant should have been given the opportunity to address them in her application. [ 96 ] Further, that the reasonableness of the decision is also constrained by the serious impact of the decision on the Applicant, which in effect will dispossess her from her ancestral home and precludes her from inheriting the Remaining Simla Estate Lands. [ 97 ] Finally, the Applicant submits that the 2021 Reconsideration Decision does not comply with the rationale and purview of the 2012 Transfer Policy, which is to promote " “fair treatment for those seeking to transfer to OKIB” " and a “return to hereditary values”.

Respondent’s Position [ 98 ] The Respondent submits that Council reasonably interpreted the legislation and policy scheme as giving it wide discretion to consider and weigh membership transfer applications " “on any rational basis” " . The Respondent submits that when assessing legislative

interpretation by an administrative decision-maker, courts should begin from a position of deference and only undertake a preliminary analysis of the text, context and purpose of the legislation and then examine the decision-maker’s reasons (referencing Canada (Citizenship and Immigration) v Mason , 2021 FCA 156 at paras 8-20 [ Mason ] ). While administrative decision-makers must follow the modern rule of statutory

interpretation, they are not required to engage in a formalistic

interpretation of statutory language (referencing Vavilov at paras 119-122 ). [ 99 ] The Respondent submits that the Council’s

interpretation was both reasonable and correct in light of the legislative scheme of

section 12 of the Indian Act and the text, context and purpose of the 2017 Transfer Policy. This is because

section 12 of the Indian Act grants broad discretion to band councils to grant or withhold their consent to requests to transfer into their band and, because the 2017 Transfer Policy structures the transfer application process that Council is expected to follow but main

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