Cameron v. Canada (Minister of Indian Affairs and Northern Development) et al., (2012) 411 F.T.R. 138 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: January 24, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 411 F.T.R. 138 (FC);2012 FC 579

Cameron v. Can. (2012), 411 F.T.R. 138 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. JN.078

Raymond Cameron (applicant) v. The Minister of Indian Affairs and Northern Development, Greg Blain, Earl Blain and Angeline Thorne (respondents)

(T-435-11)

Raymond Cameron (applicant) v. Ashcroft Indian Band Council, Greg Blain in his capacity as Chief of Ashcroft Indian Band, Earl Blain in his capacity as Councillor of Ashcroft Indian Band, and Angeline Throne in her capacity as Councillor of Ashcroft Indian Band (respondents)

(T-1401-11; 2012 FC 579; 2012 CF 579)

Indexed As: Cameron v. Canada (Minister of Indian Affairs and Northern Development) et al.

Federal Court

Mosley, J.

May 16, 2012.

Summary:

In 1987, the Ashcroft Indian Band took control of its band membership under s. 10(1) of the Indian Act by establishing written Membership Rules. Under the Rules, certain persons were automatically Band members and all others had to apply for membership and be accepted by a majority of the Band electors at a membership meeting. In 2005, the Band Council ceased holding the meetings. The current Chief of the Band (Blain) fell under the second group and had his name added to the membership list and list of eligible voters without being accepted as a member under the Rules procedure. In 2009, pursuant to a complaint initiated by Cameron and other Band members, a committee determined, inter alia, that persons not entitled to Band membership were on the membership list. Cameron's action in the British Columbia Supreme Court to have some members struck from the membership list was struck for want of jurisdiction in favour of the Federal Court's exclusive jurisdiction. Cameron's requests to the Band Council that it review the membership list was not responded to. At the next election, Cameron and Blain tied in votes for Chief. Applying the procedure for resolving ties (drawing of names), Blain was elected Chief. Cameron appealed the election to the Minister. The Minister's delegate dismissed the appeal. Cameron commenced two judicial review applications, which were heard together. The first respected the decision of the Minister's delegate. The second was for declaratory relief and mandamus to compel the Band Council to apply the Rules.

The Federal Court allowed both judicial review applications. The Rules and the Indian Act imposed a duty on the Band Council to maintain the membership list in accordance with the Rules. By refusing to act according to its jurisdiction and the law, the Band Council committed a reviewable error and breached the rule of law. The court granted the declaration sought and mandamus to compel the Band Council to review the membership list to ensure that it complied with the Rules. The Band Council was given six months to complete the review. Respecting the decision of the Minister's delegate to dismiss the election appeal, that decision was unreasonable, as it was not based on the facts and the law, and lacked justification, transparency and intelligibility. However, no remedy was granted, as the remedy in the other judicial review application was sufficient to solve the problem.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Indians, Inuit and Metis - Topic 6246 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - In 1987, the Ashcroft Indian Band took control of its band membership under s. 10(1) of the Indian Act by establishing written Membership Rules - Under the Rules, certain persons were automatically Band members and all others had to apply for membership and be accepted by a majority of the Band electors at a membership meeting - In 2005, the Band Council ceased holding the meetings - In 2009, pursuant to a complaint initiated by Cameron and other Band members, a committee determined, inter alia, that persons not entitled to Band membership were on the membership list - Cameron applied for judicial review, seeking a declaration that the Band Council breached its legal duty to comply with the Rules and mandamus to compel the Band Council to review the membership list to ensure compliance with those Rules - The Band Council challenged Cameron's standing to seek judicial review - The Federal Court held that Cameron "is a member of the Band and as such he has an interest in ensuring that the Band Council applies the law. This is particularly the case considering that it is the Band who delegated the authority over membership to the Band Council. .. Band members should be accorded standing to ensure that this is accomplished properly. ... [Cameron] is personally affected by the lack of enforcement of the Membership Rules. The voters list for Band elections is based on the membership list. If this list is inaccurate, election results may be compromised. As an elector, Mr. Cameron has the right to demand that regulations are properly applied to ensure the legitimacy of his government. It is clear that the membership list affects election results as it will have an impact on the number of electors and the number of candidates. ... [Cameron] has standing to bring this application." - See paragraphs 61 to 66.

Administrative Law - Topic 3503

Judicial review - Mandamus - When available - The Federal Court held that the criteria for issuing mandamus was: "1. There must be a public legal duty to act; 2. The duty must be owed to the applicant; 3. There must be a clear right to performance of this duty; 4. When the duty sought to be enforced is discretionary, the nature of the discretionary power and the manner in which it must be exercised must be considered; 5. No other adequate remedy is available to the applicant; 6. The order sought will be of some practical value or effect; 7. The court in the exercise of its discretion finds no equitable bar to the relief sought; 8. On a 'balance of convenience', an order in the nature of mandamus should (or should not) issue." - See paragraph 69.

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - In 1987, the Ashcroft Indian Band took control of its band membership under s. 10(1) of the Indian Act by establishing written Membership Rules - Under the Rules, certain persons were automatically Band members and all others had to apply for membership and be accepted by a majority of the Band electors at a membership meeting - In 2005, the Band Council ceased holding the meetings - In 2009, pursuant to a complaint initiated by Cameron and other Band members, a committee determined, inter alia, that persons not entitled to Band membership were on the membership list - Cameron applied for judicial review of the Band Council's deliberate failure to convene membership meetings and the placing of persons on the membership list who had not been approved for membership in accordance with the Rules - The Federal Court allowed the applications - The Rules and the Indian Act imposed a public law duty on the Band Council to maintain the membership list in accordance with the Rules - By refusing to act according to its jurisdiction and the law, the Band Council committed a reviewable error and breached the rule of law - The court granted the declaration sought and mandamus to compel the Band Council to review the membership list to ensure that it complied with the Rules - The Band Council was given six months to complete the review - See paragraphs 37 to 72.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - In 1987, the Ashcroft Indian Band took control of its band membership under s. 10(1) of the Indian Act by establishing written Membership Rules - Under the Rules, certain persons were automatically Band members and all others had to apply for membership and be accepted by a majority of the Band electors at a membership meeting - In 2005, the Band Council ceased holding the meetings - In 2009, pursuant to a complaint initiated by Cameron and other Band members, a committee determined, inter alia, that persons not entitled to Band membership were on the membership list - Cameron applied for judicial review, seeking a declaration that the Band Council breached its legal duty to comply with the Rules and mandamus to compel the Band Council to review the membership list to ensure compliance with those Rules - The Federal Court held that "the Band Council, an elected body, has no particular expertise in interpreting the Indian Act and the Membership Rules. The appropriate standard of review for the ... application is correctness: - See paragraphs 27 to 29.

Indians, Inuit and Metis - Topic 6246

Government - Elections - Setting aside elections - In 1987, the Ashcroft Indian Band took control of its band membership under s. 10(1) of the Indian Act by establishing written Membership Rules - Under the Rules, certain persons were automatically Band members and all others had to apply for membership and be accepted by a majority of the Band electors at a membership meeting - In 2005, the Band Council ceased holding the meetings - In 2009, pursuant to a complaint initiated by Cameron and other Band members, a committee determined, inter alia, that persons not entitled to Band membership were on the membership list - Cameron's requests to the Band Council that it review the membership list was not responded to - At the next election, Cameron and Blain tied in votes for Chief - Applying the procedure for resolving ties (drawing of names), Blain was elected Chief - Cameron appealed the election to the Minister - The Minister's delegate dismissed the appeal - Cameron sought judicial review of the delegate's decision - The Federal Court held that the standard of review was reasonableness, stating that the election provisions of the Indian Act and the Regulations lies inside the specialized area of expertise of the decision-maker ... The question of law is not central to the legal system. Finally, it is fair to assume that the delegate has expertise in interpreting the electoral law and in applying them in accordance with INAC policies ... All these factors point towards a high degree of deference." - The court allowed the application - The delegate was required to report to the Governor-in-Council if he was satisfied that, inter alia, there was a contravention of the Act which might have affected the election result or there was an ineligible candidate - It was reasonable for the delegate not to look beyond the membership list where the Band took control over its membership (i.e., appeal was from election, not issue of membership) - However, the delegate ignored Cameron's evidence of a contravention affecting the outcome and failed to provide an adequate explanation for her decision - The decision to dismiss the appeal was not based on the facts and the law, and lacked justification, transparency and intelligibility- See paragraphs 30 to 34, 74 to 91.

Cases Noticed:

Cameron v. Albrich et al., [2011] B.C.T.C. Uned. 549; 2011 BCSC 549, refd to. [para. 12].

Okemow-Clark et al. v. Lucky Man Cree Nation et al. (2008), 331 F.T.R. 225; 2008 FC 888, affd. (2010), 399 N.R. 311; 2010 FCA 48, refd to. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Martselos v. Salt River Nation #195 (2008), 411 N.R. 1; 2008 FCA 221, refd to. [para. 28].

Angus et al. v. Chipewyan Prairie First Nation Tribal Council (2008), 334 F.T.R. 187; 2008 FC 932, refd to. [para. 28].

Felix v. Sturgeon Lake First Nation (2011), 398 F.T.R. 88; 2011 FC 1139, refd to. [para. 28].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 28].

Bacon v. Betsiamites Indian Band et al. (2009), 359 F.T.R. 235; 2009 FC 1060, refd to. [para. 29].

Esquega et al. v. Canada (Attorney General) (2008), 316 F.T.R. 193; 2007 FC 878, varied (2009), 379 N.R. 191; 2008 FCA 182, refd to. [para. 30].

Dumais v. Fort McMurray No. 468 First Nation et al., [2010] F.T.R. Uned. 205; 2010 FC 342, refd to. [para. 30].

Giroux v. Swan River First Nation et al. (2006), 288 F.T.R. 55; 2006 FC 285, varied (2007), 361 N.R. 360; 2007 FCA 108, refd to. [para. 30].

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 32].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 33].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 36].

Laboucan v. Little Red River Cree Nation #447 (2010), 372 F.T.R. 262; 2010 FC 722, refd to. [para. 37].

Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1995] F.C.J. No. 1010 (T.D.), refd to. [para. 37].

Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al. (2011), 396 F.T.R. 308; 2011 FC 1432, refd to. [para. 38].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 38].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 38].

Abénakis of Odanak Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2008), 386 N.R. 105; 2008 FCA 126, refd to. [para. 41].

Sandberg v. Norway House Cree Nation Band Council (2005), 272 F.T.R. 221; 2005 FC 656, refd to. [para. 42].

Scrimbitt v. Sakimay Indian Band Council, [2000] 1 C.N.L.R. 205; 178 F.T.R. 210 (T.D.), refd to. [para. 44].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 48].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2010), 379 F.T.R. 183; 2010 FC 1233, varied (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 54].

David Suzuki Foundation v. British Columbia (Minister of Fisheries & Oceans) - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 54].

Sparvier v. Cowessess Indian Band No. 73 et al., [1993] 3 F.C. 142; 63 F.T.R. 242 (T.D.), refd to. [para. 59].

Lavallee v. Alberta Securities Commission (2009), 467 A.R. 152; 2009 ABQB 17, refd to. [para. 60].

Prince Edward Island v. Burge et al. (1995), 135 Nfld. & P.E.I.R. 245; 420 A.P.R. 245 (P.E.I.C.A.), refd to. [para. 60].

Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 2011 ABCA 238, refd to. [para. 61].

Harris et al. v. Minister of National Revenue, [1999] 2 F.C. 392; 161 F.T.R. 288 (T.D.), refd to. [para. 61].

Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al., [2011] B.C.T.C. Uned. 1219; 2011 BCSC 1219, refd to. [para. 61].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 61].

Moulton Contracting Ltd. v. British Columbia et al. (2011), 309 B.C.A.C. 15; 523 W.A.C. 15; 335 D.L.R.(4th) 330; 2011 BCCA 311, refd to. [para. 64].

Devinat v. Commission de l'immigration et du statut de réfugié du Canada (1999), 250 N.R. 326 (F.C.A.), refd to. [para. 69].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc. (1994), 162 N.R. 177 (F.C.A.), refd to. [para. 69].

Seyoboka v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 822; 2005 FC 1290, refd to. [para. 69].

Canadians for Abolition of the Seal Hunt and Harrison v. Minister of Fisheries and Environment, [1981] 1 F.C. 733 (T.D.), refd to. [para. 70].

I.W.A./I.B.A. Canada, Local 2995 v. Ontario, [2002] O.J. No. 5202 (Div. Ct.), refd to. [para. 70].

R. v. Benson (D.), [2009] O.T.C. Uned. 165 (Div. Ct.), refd to. [para. 70].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 84].

Keeper v. Canada (Minister of Indian Affairs and Northern Development) et al. (2011), 386 F.T.R. 71; 2011 FC 307, refd to. [para. 87].

Hudson v. Canada (Minister of Indian Affairs and Northern Development) et al. (2007), 309 F.T.R. 52; 2007 FC 203, refd to. [para. 87].

Ross v. Canada (Minister of Indian and Northern Affairs) et al. (2007), 313 F.T.R. 68; 2007 FC 499, refd to. [para. 93].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 93].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 94].

Girard v. Canada (Ministre de l'Agriculture) (1994), 79 F.T.R. 219 (T.D.), refd to. [para. 96].

Metis National Council of Women et al. v. Canada (Attorney General) (2005), 265 F.T.R. 162; 2005 FC 230, refd to. [para. 100].

AstraZeneca AB et al. v. Apotex Inc. et al. (2006), 285 F.T.R. 258; 46 C.P.R.(4th) 418; 2006 FC 7, refd to. [para. 100].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 101].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al. (2003), 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 104].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 2(1), sect. 8, sect. 10(1), sect. 10(8), sect. 10(9), sect. 10(10), sect. 14.2(1), sect. 14.2(2), sect. 75, sect. 77, sect. 79 [para. 24].

Indian Act Regulations (Can.), Indian Band Election Regulations, C.R.C. 1978, c. 952, sect. 2, sect. 4(1)(a), sect. 9, sect. 12, sect. 13(1), sect. 14 [para. 26].

Indian Band Election Regulations - see Indian Act Regulations (Can.).

Counsel:

Rosanne Kyle, Elin Sigurdson and Janes Freedman, for the applicant, Raymond Cameron;

F. Matthew Kirchner and Kate Bloomfield, for the respondents, Greg Blain and Earl Blain;

Shelan Miller, for the respondent, Minister of Indian Affairs and Northern Development.

Solicitors of Record:

Kyle Law Corporation, Vancouver, British Columbia, for the applicant, Raymond Cameron;

Ratcliff & Company LLP, Vancouver, British Columbia, for the respondents, Greg Blain and Earl Blain;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent, Minister of Indian Affairs and Northern Development.

These applications were heard on January 24, 2012, at Vancouver, British Columbia, before Mosley, J., of the Federal Court, who delivered the following judgment on May 16, 2012.