Registrar of Indian and Northern Affairs v. Sinclair, (2001) 215 F.T.R. 194 (TD)

• Judge: Lemieux, J.
• Court: Federal Court (Canada)
• Case Date: July 05, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 215 F.T.R. 194 (TD)

Indian & No. Affairs v. Sinclair (2001), 215 F.T.R. 194 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. JA.020

The Registrar of the Indian Register, Indian and Northern Affairs Canada and the Attorney General of Canada (applicants) v. John Jeremiah Sinclair (respondent)

(T-141-99; 2001 FCT 1418)

Indexed As: Registrar of Indian and Northern Affairs v. Sinclair

Federal Court of Canada

Trial Division

Lemieux, J.

December 20, 2001.

Summary:

Pursuant to s. 18.3 of the Federal Court Act, the Registrar of the Indian Register, joined by the Attorney General of Canada, referred the following questions to the court for determination: (1) whether the Registrar would err in law in deciding that, under the provisions of the Indian Act, Sinclair was not entitled to have his name entered on the Indian Register and assigned an Indian Registry number under the Indian Act; and (2) if the first question was answered in the negative, would the Registrar err in law in deleting Sinclair's name and Indian registry number from the Indian Register pursuant to s. 5(3) of the Indian Act, prior to Sinclair exhausting his protest and appeals against the decision under ss. 14.2 and 14.3 of the Indian Act, on the basis that the deletion of his name and registry number would cause Sinclair to lose access to the benefits available to him as a registered Indian residing in the province of Alberta, pending the determination of his appeals.

The Federal Court of Canada, Trial Division, in a decision reported at 203 F.T.R. 275, answered "no" to the first question.

The Federal Court of Canada, Trial Division, answered "yes" to the second question.

Indians, Inuit and Métis - Topic 163

Registration - Jurisdiction of Registrar - [See Indian, Inuit and Métis - Topic 164 ].

Indians, Inuit and Métis - Topic 164

Registration - Entitlement (incl. persons entitled) - The following question was referred to the court: if the court ruled that the Registrar of the Indian Register would not err in deciding that Sinclair was not entitled to have his name entered on the Indian Register and assigned a number under the Indian Act, would the Registrar err in law in deleting Sinclair's name and Indian registry number from the Indian Register pursuant to s. 5(3) of the Act, prior to Sinclair exhausting his protest and appeals under ss. 14.2 and 14.3, on the basis that the deletion of his name and registry number would cause Sinclair to lose access to the benefits available to him as a registered Indian, pending the determination of his appeals - The Federal Court of Canada, Trial Division, answered "yes" to the question - The court held that the Registrar can, and must, delete before protest if there was sufficient evidence to do so - However, the court held that the Registrar's practice of advising governmental authorities that the person affected was no longer an Indian when deletion was made constituted an error of law because entitlement to Indian status was not decided pursuant to s. 5(3), but rather after the protest stage.

Indians, Inuit and Métis - Topic 170

Registration - Protests - General - [See Indian, Inuit and Métis - Topic 164 ].

Cases Noticed:

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 27].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 27].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161, refd to. [para. 27].

Bay v. The Queen, [1974] F.C. 523 (F.C.A.), appld. [para. 39].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 44].

Landry v. Canada (Ministre des Affaires Indiennes et du Nord) (1996), 118 F.T.R. 184 (T.D.), appld. [para. 45].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 52].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 52].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 5 [para. 21]; sect. 14.1, sect. 14.2, sect. 14.3 [para. 23].

Counsel:

John B. Edmond and Patricia Johnston, for the applicants;

Marc LeClair, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicants;

Marc Le Clair, Ottawa, Ontario, for the respondent.

This matter was heard on July 5, 2001, at Ottawa, Ontario, before Lemieux, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on December 20, 2001.