Norris v. Matsqui First Nation, (2012) 423 F.T.R. 178 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: December 06, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 423 F.T.R. 178 (FC);2012 FC 1469

Norris v. Matsqui First Nation (2012), 423 F.T.R. 178 (FC)

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[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. DE.044

Bibiana Norris and Clinton Norris (applicants) v. Matsqui First Nation (respondent)

(T-654-12; 2012 FC 1469; 2012 CF 1469)

Indexed As: Norris v. Matsqui First Nation

Federal Court

Shore, J.

December 12, 2012.

Summary:

The applicants, two siblings, were initially members of the Halalt First Nation (HFN). Their mother had been a member of the respondent, the Matsqui First Nation (MFN). The applicants applied for membership in the MFN under a provision of the Membership Code that applied only to applicants under the age of 18. The MFN membership committee revoked the applicants' membership, finding that they had reached the age of 18 when their names were entered on the Band list. The applicants applied for judicial review.

The Federal Court, on the standard of review of reasonableness, dismissed the application.

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - The applicants, two siblings, were initially members of the Halalt First Nation (HFN) - Their mother had been a member of the respondent, the Matsqui First Nation (MFN), before marrying a member of the HFN - The applicants applied for membership in the MFN under s. 7 of the Membership Code which entitled children of at least one natural parent who was or was entitled to be a Band member to become members - Under s. 2 of the Code, "child" meant an individual who had not reached the age of 18 - The MFN Membership Committee found that the applicants had reached the age of 18 at registration and thus revoked membership - On judicial review, the applicants argued that the Committee's decision failed to comply with s. 10(4) and s. 10(5) of the Indian Act (IA) - The Federal Court rejected the argument - In interpreting the relevant sections of the IA, the court applied the "modern rule" of statutory interpretation - Neither the applicants' mother nor the applicants were automatically entitled to membership in the Band under s. 11(1)(c), and ss. 10(4) and (5) did not prohibit the Band from applying the two-part test to them - "Applying the two-part test to the children of women whose membership was transferred to another band under section 14 of the former IA [because they married an Indian from that band] is not inconsistent with the IA and falls within the range of possible, acceptable outcomes" - See paragraphs 51 to 63.

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - The applicants, two siblings, were initially members of the Halalt First Nation - Their mother had been a member of the respondent, the Matsqui First Nation (MFN) - The applicants applied for membership in the MFN under s. 7 of the Membership Code which entitled children of at least one natural parent who was or was entitled to be a Band member to become members - Under s. 2 of the Code, "child" meant an individual who had not reached the age of 18 - The MFN Membership Committee found that the applicants had reached the age of 18 at registration and thus revoked the applicants' membership - The applicants should have proceeded as inter-tribal transfers under s. 10 of the Code - The Federal Court held that the decision was not unreasonable - A contextual analysis supported the two-part test applied by the Committee - The word "children" in s. 7 was to be read harmoniously with s. 2 - The Committee's approach was also reasonable in light of s.13 of the Indian Act, which provided that no person was entitled to have his name entered at the same time on more than one band list - See paragraphs 64 to 68.

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - The applicants sought judicial review of a decision by the respondent Band Membership Committee to revoke their membership - The Committee, in interpreting the Membership Code, applied a two-part test that included an age component - The Federal Court dismissed the judicial review application - The two-part test was in harmony with the scheme of the Code - "The preamble to the Code identifies three inter-linked objectives for the Band's membership rules: (i) to protect cultural integrity and social harmony; (ii) to maintain and enhance economic stability; and, (iii) to ensure continued peace and good order among the members of the Band. ... [T]he Applicants, in arguing that the two-part test fractures the Band's cultural integrity by arbitrarily distinguishing between individuals over and under the age of 18, only cite the first objective" - When read in conjunction with the provision for inter-tribal transfers (s. 10 of the Code), the two-part test was consistent with the objective of maintaining economic stability while preserving cultural integrity and social harmony - See paragraphs 69 to 72.

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - The applicants, two siblings, applied to join the respondent Band under s. 7 of the Membership Code which entitled children of at least one natural parent who was or was entitled to be a Band member to become members - Although the applicants had a bloodline connection (their mother), they had been raised in a different First Nation community - Under s. 2 of the Code, "child" meant an individual who had not reached the age of 18 - The Membership Committee revoked the applicants' membership, finding that their names had been entered on the Band list in error as they had reached the age of 18 at registration - The Federal Court dismissed the judicial review application - The Committee's application of a two-part test did not give rise to any internal absurdities in the Code - It was not unreasonable for the respondent to take the view that a person seeking membership under s. 7 of the Code should have a sufficient cultural tie to the Band, and to require that such persons join the Band while they were still young enough to be raised in order to strengthen those cultural ties - See paragraphs 73 to 78.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 31].

Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513; 178 F.T.R. 210 (T.D.), refd to. [para. 34].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 53].

Sawridge Indian Band v. Canada, [2004] 3 F.C.R. 274; 316 N.R. 332; 2004 FCA 16, refd to. [para. 56].

Grismer et al. v. Squamish Indian Band (2006), 299 F.T.R. 268; 2006 FC 1088, refd to. [para. 75].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 6(1)(c), sect. 10(4), sect. 10(5), sect. 11, sect. 13 [Annex A].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 53].

Counsel:

Michelle S. Jones, for the applicants;

Stan H. Ashcroft, for the respondent.

Solicitors of Record:

Lawson Lundell LLP, Vancouver, British Columbia, for the applicants;

Ashcroft & Company, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on December 6, 2012, before Shore, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated December 12, 2012, at Ottawa, Ontario.