In the Court of Appeal of Alberta Citation: Gauchier v Alberta (Metis Settlements Land Registry), 2014 ABCA 356 Date: 20141103 Docket: 1403-0006-AC Registry: Edmonton Between: Joseph Iner Gauchier Respondent (Applicant) - and - Registrar, Metis Settlements Land Registry Appellant (Respondent) - and – Peavine Metis Settlement and Peavine Metis Settlement Council Respondents (Respondents) - and – Barbara Cunningham, John Kenneth Cunningham, Lawrent Cunningham, Gordon Cunningham Not Parties to the Appeal (Respondents) - and – Gift Lake Metis Settlement Intervenor 2014 ABCA 356 (CanLII) _______________________________________________________ The Court: The Honourable Mr. Justice Ronald Berger The Honourable Mr. Justice Clifton OBrien The Honourable Mr. Justice J.D. Bruce McDonald _______________________________________________________ Memorandum of Judgment Appeal from the Order by The Honourable Mr. Justice M.D. Gates Dated the 3rd day of October, 2013 Filed on the 20th day of December, 2013 (2013 ABQB 713, Docket: 1103-15013) 2014 ABCA 356 (CanLII) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I Introduction [1] The Metis Settlement Act, RSA 2000, C. M-14 (the Act) mandates that unless a General Council Policy provides otherwise, a metis settlement member terminates membership in a settlement if he or she voluntarily becomes registered as an Indian under the Indian Act (Canada), or as an Inuk for purpose of a land claims agreement. The Act provides that upon receipt from the settlement council of a notice of termination of membership by reason of such registration, the Minister must remove the name of the person from the Settlement Members List. The Act also provides that the Minister must maintain, and keep up to date, a Settlement Members List, and that a name must be removed from the Settlement Members List when settlement members lose their membership in a settlement. [2] The Settlement Members List is maintained by the Registrar, Metis Settlements Land Registry (the Registrar), by way of delegation. Historically, the Registrar has interpreted these various provisions to mean that he/she is not obliged to strike a member’s name from the Settlement Members List until hearing from a Metis settlement council that a person’s membership has been terminated. In this case, however, a chambers judge held that the Registrar must do more and stated the duty as follows: [T]he Registrar must act to keep the membership list up to date by seeking out and obtaining information, in circumstances other than those in which information is sent to the Registrar by a Notice of Termination from the Peavine Settlement Council. [3] The Registrar appeals this direction. The issue before us is whether the Registrar has a duty to investigate whether settlement members have lost their membership status through registration as an Indian or Inuk, and then remove the names of such people from the Settlement Members List, without having first been given notice of a member’s termination by a Metis settlement council. II Factual Background [4] The context in which this appeal arises is set out at length in the judgment below: Gauchier v Cunningham, 2013 ABQB 713, [2013] AJ No 1338. This factual background can be summarized as follows. [5] In 2001, certain persons, including four members of the Cunningham family (the Cunninghams), were informed by the Registrar that their names had been stuck from the Peavine membership list because they had registered as Indians after November 1, 1990. 2014 ABCA 356 (CanLII) Page: 2 [6] Five years later, in 2006, the Cunninghams and the Peavine Metis Settlement brought a Charter challenge to the legislation pursuant to which the membership had been struck. Shelley J. dismissed the challenge in Peavine Metis Settlement v Alberta (Minister of Aboriginal Affairs and Northern Development), 2007 ABQB 517, 424 AR 271 (Peavine #2). [7] This Court allowed an appeal from Shelley J.’s decision and held the underlying legislation was unconstitutional: Cunningham v Alberta (Minister of Aboriginal Affairs and Northern Development) 2009 ABCA 239, 457 AR 297 (Peavine #3). The Cunninghams were restored to the membership list, retroactive to the dates their names were removed from the list. [8] The Supreme Court of Canada allowed the appeal, setting aside the decision of this Court and affirming the decision of Shelley J.: Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 (Peavine #4). [9] In 2011, after the ruling of the Supreme Court of Canada, the respondent, Gauchier, asked the Peavine Council, and the Registrar, to take the necessary action to have the Cunninghams struck from the Peavine Settlement Members List. At the time, Kenneth Cunningham was a member of the Peavine Council. [10] Neither the Peavine Council nor the Registrar took steps to remove the Cunninghams from the membership list. The Registrar took the position that no steps could be taken unless and until notice of termination was received from the Peavine Council. [11] The current proceedings were initiated by the respondent, Joseph Iner Gauchier, who brought applications seeking, among other things: (a) a declaration that Kenneth Cunningham was disqualified from serving as a member of the Peavine Council on the basis that he voluntarily registered as an Indian under the Indian Act (Canada) after November 1, 1990, (b) an order of mandamus to compel the Registrar to remove the Cunninghams from the Peavine membership list, and (c) an order of mandamus compelling the Registrar to update the Peavine Settlement membership list by confirming the Indian Act registration status, and registration date, for each person rewarded on the membership list and to remove those person’s disqualified from membership by reason of their voluntary registration as an Indian after November 1, 1990. [12] In the alternative, the respondent sought an order compelling the Peavine Council to issue notices of termination to the Cunninghams, and any other persons recorded on the list that the Council or a Councillor had reason to believe voluntarily registered under the Indian Act after 2014 ABCA 356 (CanLII) Page: 3 November 1, 1990, and to require the Council to notify the Registrar to remove from the list those that the Registrar confirms voluntarily registered under the Indian Act after November 1, 1990. III Judgment Below [13] The chambers judge found that Kenneth Cunningham was no longer a member of the Peavine settlement with the result that he was precluded from voting, or running as a councillor, in Peavine’s elections. In conjunction with this finding, the chambers judge granted an order of mandamus requiring the Registrar to strike the names of the Cunninghams from the Settlement Members List. No appeal is taken from these portions of his order. [14] The chambers judge turned then to the respondent’s application for an order requiring the Registrar to investigate the possible Indian status of the other members of the Peavine settlement. In this context, he discussed the duties owed by the Registrar with respect to keeping the membership list up to date. He rejected the Registrar’s position that he/she had no duty to undertake investigations with respect to individuals if the Council had not submitted notice of termination relating to those persons. In his view, the Registrar had an obligation to take proactive steps to fulfill his duty to keep the membership lists up to date and to remove the names of those whose membership had terminated in accordance with the Act, (para 134). [15] Having said this, the chambers judge refused to grant mandamus compelling the Registrar to act as he was satisfied the Registrar would henceforth fulfill his duties in accordance with the clarification of those duties as set out in the decision. The chambers judge stated at para 136: This Court has now clarified that he [the Registrar] has a broader duty to ensure that a settlement membership list is kept up to date and that the names of those who have lost their membership in accordance with the Act are stuck from the list. [16] By agreement, the parties treated the chambers judge’s comments and clarification with respect to Registrar’s duties as being declaratory in nature and incorporated them in para 3 of the formal order which provides: The Application of the Applicant, to direct the Registrar to confirm the Indian Act registration status of all members on the Peavine Metis Settlement List is hereby dismissed, however the Registrar must act to keep the membership list up to date by seeking out and obtaining information, in circumstances other than those in which information is sent to the Registrar by a Notice of Termination from the Peavine Settlement Council. [17] Finally, the chambers judge denied the mandamus application directed at the Peavine Council (paras 139- 146). No appeal is taken from this part of his order. 2014 ABCA 356 (CanLII) Page: 4 IV Ground of Appeal [18] The Registrar appeals from para 3 of the Order on the ground that the chambers judge erred in his interpretation of the Act by “imposing a greater responsibility on the Registrar than the Act requires or allows”. The Registrar’s position remains, as it was on the application, that the Registrar has no obligation to investigate the Indian or Inuk status of settlement members, and strike names from the Settlement Members List, unless notice of termination is first received from the Council. V Standard of Review [19] The parties agree that the standard is correctness as the issue is one of law involving a question of statutory interpretation of the governing legislation. VI The Legislation [20] The relevant provisions of the Act are as follows: 90 (1) Unless a General Council Policy provides otherwise, a settlement member terminates membership in a settlement if (a) the person voluntarily becomes registered as an Indian under the Indian Act (Canada), or (b) the person becomes registered as an Inuk for the purpose of a land claims agreement. (2) On receipt from the settlement council of notice of a termination of membership under subsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the person concerned from the Settlement Members List. 96(1) The Minister must establish the Settlement Members List. (2) The following information is to be recorded on the Settlement Members List in respect of each settlement: (a) the full name of each settlement member; (b) the date of birth of each settlement member; (c) the settlement of which the person is a member; (d) any other information about each settlement member that the Minister and the General Council agree is necessary. 2014 ABCA 356 (CanLII) Page: 5 (3) The Minister must keep the Settlement Members List up to date but may, by agreement with the General Council, delegate the responsibility. (4) The Settlement Members List may be established and maintained as a book or by using any appropriate technology. 97(1) In this section, “Commissioner” means the Commissioner under the Metis Settlements Accord Implementation Act. (2)The Settlement Members List for each settlement must consist of (a) the persons shown as “confirmed settlement members” on the Commissioner’s final Settlement Membership Report issued in accordance with the regulations, whether or not the persons meet the requirements for settlement membership under this Act, (b) the persons shown as “uncertain status” on the Commissioner’s final Settlement Membership Report issued in accordance with the regulations who are subsequently confirmed as settlement members by the Appeal Tribunal, and (c) other persons approved as settlement members in accordance with this Act. (3) A name must be removed from the Settlement Members List when a settlement member loses membership in a settlement in accordance with this Act. [21] In interpreting these provisions, the court is obliged to apply the modern rule of statutory interpretation which requires that the words of the Act be considered “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at 21). VII Analysis [22] We begin by noting it is common ground that there is no General Council Policy creating an exception as allowed in s. 90(1). Furthermore, as contemplated by s. 96(3), the responsibilities 2014 ABCA 356 (CanLII) Page: 6 of the Minister with respect to a Settlement Members List have been delegated to the Registrar. The Delegation of Authority, made on September 11, 1996, authorizes the Registrar “to perform the powers and duties conferred upon the Minister by section 90 (2)… to verify registration as an Indian or Inuk or to remove names from or receive information on the Settlement Members List.” [23] Turning to the issue before us, the Registrar submits the chambers judge erred in law in by finding the Registrar has a general ongoing duty to seek out information in order to update the membership list of the Peavine Settlement, and by implication, the other seven settlements constituting several thousand persons. Rather, the Registrar submits, it is the duty of the settlement council to investigate membership status within the community and that for the Registrar to do so independently would usurp the council’s authority. The Registrar, supported by the intervenor Gift Lake Metis Settlement, urges that this interpretation of the Act best fits within its overarching objective which is to extend self-governance to Métis under the laws of Alberta (see the recital to the Act). The intervenor expands on this submission in its factum to say that “responsibility for termination of memberships falls squarely on the settlement councils themselves, based on both the plain language of the [Act] and when read in its appropriate legal, historical, constitutional and purposive context”. [24] While the Registrar acknowledged that the settlement council has a duty to provide notice in circumstances in which it is aware of Indian registration, he maintained that if the council failed to do so, the only recourse was to report such failure to the Minister who could then take appropriate steps to remedy council’s inaction. The Registrar is concerned that if the Act is interpreted as placing any duty to investigate upon him, he will be thrust into the community, and seen, as an unwanted meddler and roving investigator. [25] We acknowledge the importance of membership in a settlement community, and the general principle of self-governance, but in our view the premise of the Registrar’s and intervenor’s submissions is flawed. A settlement council, in the absence of a General Council Policy to the contrary, has no discretion or input as to whether or not the membership of a person who has voluntarily registered as an Indian should be continued. Under section 90 of the Act, which is headed “Automatic Termination”, the Legislature has determined that membership in a settlement terminates when a member registers as an Indian under the Indian Act (Canada), or as an Inuk under a land claims settlement. It follows that the continuation of a person’s membership in a settlement community, in either instance, has been taken out of the hands of the settlement council. It is not a matter over which a council has decision-making power. By statute the membership of a person in a Métis settlement is terminated once the member registers as an Indian or Inuk. That which remains is administrative in nature – verification of the registration and removal of the name from the membership list. [26] The intent and purpose of the legislation, therefore, is clear. Registration as an Indian or Inuk confers certain benefits upon persons so registered. It is apparent that the Legislators did not intend that a person would be entitled to both the benefits of membership in a settlement 2014 ABCA 356 (CanLII) Page: 7 community, and the benefits of registration as either an Indian or Inuk, unless the General Council in consultation with the Minister agrees otherwise. To do so, would permit an individual to benefit from a regime reserved for those who qualify. Indeed, the unique character of a Metis Settlement would be undermined by allowing membership to those not entitled to such status. [27] It is apparent from the decision of the Supreme Court in Peavine #4, that the removal of status Indians from membership lists promotes self-governance rather than being inimical to it. McLachlin CJC stated at paras 77-8: [77] To accord membership in the MSA communities to Métis who are also status Indians would undermine the object of the program of enhancing Métis identity, culture and governance, and would potentially hollow out the goal of the MSA of preserving and enhancing a distinct Métis culture, identity and governance. [78] Extending membership to significant numbers of people with Indian status may undercut the goals of preserving and enhancing the distinctive Métis culture, identity and self-governance into the future. To the extent that status Indians are members of Métis settlements, the distinctive Métis identity, with its historic emphasis on being distinct from Indian identity, would be compromised. And to the extent that status Indians are members of Métis settlements, the goal of self-governance is hampered. For example, Indians who already enjoy the right to hunt off-reserve may have little interest in promoting the right of Métis to hunt outside settlement lands. The same may be ventured for other benefits and privileges. Because the Indian Act provides a scheme of benefits to status Indians, ranging from medical care to housing to tax-free status, status Indian members of Métis settlements may have less interest in fighting for similar benefits than Métis without Indian status. [28] As the legislators have determined that registration as an Indian or Inuk terminates membership in a settlement community, unless a General Council Policy provides otherwise, a person’s voluntary registration means that he or she is no longer entitled to Métis benefits so that the removal of the person’s name is a task within the responsibilities of the Registrar who may be expected to verify the facts to ensure that the removal of a person’s name is done only in circumstances contemplated by the Act. In our view, the exercise of this responsibility does not detract from self-government. [29] The Registrar argues, as a general rule of statutory construction, that the specific language found in s.90 of the Act, which requires the Registrar to act on notice from a settlement council, overrides the general language found in s.96 imposing an obligation to keep the membership list up to date. However, the obligations on the Registrar, imposed by sections 90(2), 96(3) and 97(3) are not mutually exclusive. They are intended to work together in harmony. The statutory provisions dealing with removal of names from a membership list overlap, to some degree, but they are not in conflict. 2014 ABCA 356 (CanLII) Page: 8 [30] Thus, it may well be that a settlement council will be appropriately active with regard to settlement membership, and the council will be the body that first discovers a member has taken Indian status. When it notifies the Registrar of this occurrence, section 90(2) makes clear that the Registrar, having taken whatever steps are necessary to verify this fact, must remove the individual’s name from the Settlement Members List. But as the chambers judge pointed out, the Registrar may hear, through other sources, even perhaps directly from the person who has registered, that a settlement member has registered as an Indian or an Inuk. It is consistent with the scheme of the Act that the Registrar, upon being satisfied of this fact through proper investigation and verification, would remove the name of that person from the Settlement Members List. This flows from the Registrar’s duty to keep the list up to date (96(3)) and the duty to remove names from the Settlement Members List when a settlement member loses membership in a settlement in accordance with this Act (97(3)). In such a situation, the Registrar need not wait passively for a notice from a settlement council that may not be aware of the member’s registration as either an Indian or Inuk. [31] The Registrar resists any obligation to be proactive in the sense of initiating any investigation with respect to registration. However, the twin obligations to keep the membership list up to date, and to remove names when a settlement member loses membership, contemplate a reasonable degree of diligence to achieve these ends. We agree that investigation is not the Registrar’s primary role, and that it was not the Legislature’s intent to turn the Registrar into a “roving police officer or investigator.” However, if relevant information comes to the Registrar’s attention, it is his responsibility to be pro-active and to act unilaterally. Simply put, the Registrar has a positive duty to maintain an accurate membership list on the basis of reliable information that comes to his or her attention. The history of this litigation, in which the delay in removing names allowed a person with Indian status to remain on the list, and to be elected as a counsellor, demonstrates the need for independent action on the part of the Registrar. [32] In our view, this is the meaning intended by the chambers judge when he said the Registrar “must act to keep the membership list up to date by seeking out and obtaining information in circumstances other than those in which information is sent to the Registrar by a Notice of Termination from the Peavine Settlement Council.” The chambers judge, in setting out this duty, did not attempt to define what method the Registrar must use to investigate and verify the information he has received, nor the degree of investigation or verification required. We agree with this approach. It is the Registrar’s responsibility, as the Minister’s delegate, to determine what must be done to fulfill the Minister’s statutory obligations under the Act. This includes determining how much information is required in order to act. It is expected, of course, that in carrying out these obligations, the Registrar will act reasonably and fairly, which may well include regular consultation with settlement councils to obtain information with respect to Indian and Inuk registrations as the circumstances may require. 2014 ABCA 356 (CanLII) Page: 9 VIII Conclusion [33] The appeal is dismissed. Appeal heard on October 02, 2014 Memorandum filed at Edmonton, Alberta this 3rd day of November, 2014 Berger J.A. OBrien J.A. M
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