Ottawa, Ontario, this 10th day of May, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
NORWAY HOUSE CREE NATION BAND COUNCIL
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Mr. Donald Eric Sandberg, asserts that he was granted membership in the Norway House Cree Nation (the "NHCN") in 1988 and has received certain benefits of membership since that date. Upon being advised that he was not a member of the NHCN, Mr. Sandberg, under protest, submitted an application for membership in 1998. There has been no final decision on that application. The Respondent, the NHCN Band Council, submits that Mr. Sandberg did not become a member in 1988, that he never applied for membership until 1998 and that his application is on hold pending the submission of further information.
[2] Mr. Sandberg seeks:
1. a declaratory order that he is a member of the NHCN;
2. an order of certiorari quashing the decision of the Respondent terminating his membership in the NHCN; and
3. in the alternative, an order of mandamus compelling the NHCN Council to make a decision respecting his 1998 application for membership.
ISSUES
[3] The issues raised by this application are as follows:
1. Has Mr. Sandberg been a member of the NHCN since 1988, based on the treatment that he has received from the NHCN?
2. If no, should an order of mandamus issue to compel the Respondent to make a decision on Mr. Sandberg's 1998 application for membership?
ANALYSIS
Issue #1: Has Mr. Sandberg been a member of the NHCN since 1988?
[4] On July 24, 1987, Mr. Sandberg applied for registration under the Indian Act, R.S.C. 1985, c. I-5, as amended (the "Act"). On August 9, 1988, Mr. Sandberg received a letter from the Department of Indian and Northern Affairs Canada (the "Department") confirming that he was registered in the Indian Register maintained in accordance with s. 6(2) of the Act. The letter contained two important instructions:
_ under the provisions of Section 10 of the Indian Act, the NHCN had assumed control of its membership; his application for band membership should therefore be sent to the Band Manager; and
_ to obtain a Certificate of Indian Status, he needed to complete the enclosed application and send it, along with a photograph, to the Band Manager.
[5] There is no dispute that Mr. Sandberg completed the second set of instructions. He submitted the enclosed application and photograph as instructed and, in due course, received a Certificate of Indian Status. The Certificate contains the photo of Mr. Sandberg and an identification number. The first three digits of the registry number (278) identify the NHCN; the next four digits (3626) identify Mr. Sandberg; the last two digits (01) indicate that he is the first person to have this number. The back of the card is signed by Ms. Scribe, who was the Band Manager at the time of issuance.
[6] The parties disagree, however, on whether Mr. Sandberg completed a separate application for membership in the NHCN; Mr. Sandberg submits that he did do so and the Respondent states that he did not.
[7] Whether Mr. Sandberg completed the application or not, he acknowledges that the NHCN never carried out the process set out in the Membership Code and Rules of Norway House Indian Band (the "Membership Code") which were adopted by the NHCN on June 24, 1987 and subsequently approved by the responsible Minister as required by s. 10(7) of the Act. In spite of this lack of formal procedure, Mr. Sandberg asserts that he has been a member since 1988 when his Treaty Certificate was issued.
[8] Since 1988, Mr. Sandberg has received some benefits of membership from the NHCN. There is sufficient evidence on the record to demonstrate that the following actions were taken by the NHCN which, in Mr. Sandberg's view, establish his claim to membership:
_ He applied for, and eventually was placed on the waiting list to receive housing on the reserve, a privilege extended only to members;
_ He voted in six referendums held by the NHCN;
_ He received at least one per capita payment in December 2000 from the NHCN paid to the members of the NHCN;
_ For a period of about one year, commencing in 1997, he held the position of Economic Development Officer for the NHCN, during which time he was described as a "Band Member of our Cree Nation" in a NHCN newsletter.
[9] The question is whether these trappings of membership are sufficient to establish membership. In other words, can Mr. Sandberg attain membership by acquiescence of the NHCN or must he be admitted through the process set out in the Membership Code?
[10] The term "member of a band" is defined in s. 2(1) of the Act to mean "a person whose name appears on a Band List or who is entitled to have his name appear on a Band List". It is important to note that a person may be registered as an Indian under the Act without being a member of a band.
[11] A Band List is a list of persons that is maintained under s. 8 of the Act. Section 8 of the Act provides that a Band List "shall be maintained . . . in which shall be entered the name of every person who is a member of that band." There are two ways in which membership in any given band may proceed. The default position in the statute is that Band Lists are maintained in the Department (s. 9). However, an individual band may assume control of its membership by establishing membership rules for itself in writing and meeting the conditions set out in s. 10(1) of the Act. Once a band assumes control of its membership, s. 10(10) provides that a band may "add to or delete from a Band List the name of any person who, in accordance with the membership rules of the band, is entitled or not entitled, as the case may be, to have his name included in that list."
[12] Thus, the Act does not permit a band to deviate from its membership rules. This is understandable. Band membership is, like any citizenship, an honour and a privilege that carries with it rights and obligations. Those aspiring to membership or those who may not be living up to the obligations of their citizenship should know the requirements of membership in this exclusive group. Membership should neither be granted nor taken away randomly on the whim of a few but, rather, should be subject to systematic and fair assessment. The Act together with the membership rules of each band who chooses to control its own membership provide integrity to the process of becoming and remaining a member of a band.
[13] It follows that a person, regardless of how he has been treated by the band, is not a member until and unless there has been compliance with the membership rules.
[14] The NHCN has controlled its membership since 1988 when notice was given by the Minister as required by s. 10(7). Its Membership Code reinforces the importance of the Band List when it asserts that the Band List "shall at all times and for all purposes be the official list evidencing the membership of Norway House Indian Band".
[15] There is no evidence before me that Mr. Sandberg was added to the Band List in accordance with the membership rules of the NHCN. In fact, it appears that no formal Membership Committee, as required under the Membership Code, existed to deal with any membership application that he may have made in 1988. In the absence of a Membership Committee, it was impossible for Mr. Sandberg have been added to the Band List. Even if his name was included on a Band List for the NHCN, it would not have been added in accordance with the Membership Code and would likely have been done in error. In spite of his receipt of certain rights normally accorded only to members of the NHCN, any benefits were granted to him without authority or on the basis of an error by the band. These errors cannot be used to justify membership status without adherence to the proper procedure set out in the Membership Code.
[16] No Band List was presented in evidence showing Mr. Sandberg as a member at any time. Mr. Sandberg asserts that, since he was allowed to vote in certain matters, he must have been included on the Band List. However, the evidence is that he only voted in referendums of the NHCN and not in elections for Chief and Council. As explained by the Respondent, the issues canvassed in a referendum could have impacts on non-members as well as members; it is not unreasonable to permit non-members with links to the NHCN to vote in these matters. Thus, the fact that he voted in several referendums carried out by the NHCN does not necessarily mean that he was included on the Band List.
[17] In summary on this issue, Mr. Sandberg cannot be a member of the NHCN unless he is named or is eligible to be named on the Band List of the NHCN. He can only be added to the Band List in accordance with the NHCN Membership Code. Since that has not happened, I conclude that he was not a member of the NHCN in 1988 or at any time following.
Issue #2: Shouldan order of mandamus issue to compel the Respondent to make a decision on Mr. Sandberg's 1998 application for membership?
[18] As noted, upon being advised that he was not a member of the NHCN, Mr. Sandberg submitted an application to the NHCN. The process for dealing with an application for membership is set out in the Membership Code. The code establishes a Membership Committee who act in an advisory capacity and make recommendations to the Chief and Council, and who are not bound by the recommendations. The Code also sets out a number of considerations to be taken into account by the Membership Committee; these include the degree of Band blood of the applicant, how long the applicant has lived among the NHCN and whether "the applicant is of good moral character and is a citizen of Canada".
[19] The recommended list of new band members is then considered by the Chief and Council who:
. . . . shall decide to accept or reject the applicant for membership following an open hearing where evidence may be submitted orally or in writing. The Chief and Council shall decide to accept or reject the application for membership which decision shall be by majority vote which may follow the hearing and in camera. If the application is rejected Chief and Council shall provide written reason for the decision and shall within 7 days of such decision mail a copy of their decision and the reasons for the same to the applicant. . . .
[20] The Membership Code also provides that anyone who is denied membership or any other member of the NHCN may apply for a review of a decision on membership.
[21] Mr. Sandberg's application, in accordance with the Membership Code, was considered by the Membership Committee who recommended that he, along with many others, be approved for membership. At the special council meeting held on February 24, 1998, the Chief and Council reviewed the recommendations made by the Membership Committee. With respect to the group of recommendations that included Mr. Sandberg, the result was a motion by one of the councillors, seconded and carried that:
. . . the Chief and Council accept the recommendation made by the Membership Committee to accept as Band Members on the list of the February 16th Membership Committee Meeting with the exception, pending further information on Don Sandberg. [emphasis added]
[22] Mr. Sandberg was apparently aware of the status of his application through verbal communication with various personnel in the NHCN. However, the only formal notice from the Respondent was a letter dated October 4, 1999 - some 19 months after the meeting -signed on behalf of the Membership Committee informing him that "your application is presently on hold pending further information on charges against you". The letter also states:
For our information and files, we would like to hear your side of the story on the alleged charges or incidents at your previous residence. Please provide a written report . . .
Mr. Sandberg did not comply with the request on the basis that it is a waste of time to do so.
[23] Mr. Sandberg seeks an order of mandamus compelling the Respondent to make a decision respecting his application for membership. He submits that the Chief and Council did not have the authority to put his application on hold; rather, they only could approve or reject his application. I do not agree. Inherent in an authority to consider an application and to hold a hearing into the matter must be the ability to request further information. I also note that considerable deference should be shown to the procedures and decisions of a Band Council (News v. Wahta Mohawks [2000] F.C.J. No. 637 (F.C.T.D.). Nevertheless, this is not "a carte blanche for Band Council decisions to be made in complete absence of procedural fairness or from adhering to its own established rules and procedures" (Ermineskin v. Ermineskin Band Council [1995] F.C.J. No. 821, at para. 11 (F.C.T.D.)). In some circumstances, an order of mandamus may be appropriate to address a failure of the Respondent to reach a conclusion that would allow Mr. Sandberg to receive reasons for the rejection of his membership application and to pursue his further remedy of the review procedure set out in the Membership Code. In my view, that situation has not yet arisen. The reason lies with the actions of Mr. Sandberg.
[24] In this case, I agree with Mr. Sandberg that the Respondent has not acted particularly well. The 19-month delay in advising Mr. Sandberg in writing of what it wanted from him is overly long. Further, the Respondent may have deviated from strict compliance with the procedure set out in the Membership Code.
[25] In spite of this concern about the Respondent's behaviour towards Mr. Sandberg, I note that an order for mandamus is an extraordinary remedy. There are several requirements that must be met before mandamus will issue (Apotex Inc. v. Canada (Attorney General) [1994] 1 F.C. 742 (F.C.A.) at para. 45). One of the requirements is that the person seeking mandamus must have satisfied all the conditions precedent giving rise to that duty. In this case, Mr. Sandberg has refused to provide the requested written report. Absent compliance with this request, I am not prepared to conclude that Mr. Sandberg has a clear right to performance of the duty of the Respondent to either allow or deny his application.
[26] Once the requested information is provided and if the Respondent continues to "stonewall" Mr. Sandberg's application, an order of mandamus may well be appropriate, particularly given the lengthy delay in considering Mr. Sandberg's application. At this stage, an application for mandamus is premature.
CONCLUSION
[27] For these reasons, the application will be dismissed. In my discretion, I decline to make any order as to costs.
ORDER
This Court orders that:
1. The application is dismissed.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1365-01
STYLE OF CAUSE: DONALD ERIC SANDBERG v.
NORWAY HOUSE CREE NATION BAND COUNCIL
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: April 26, 2005
REASONS FOR ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Michael Paluk FOR APPLICANT
Mr. J.R. Norman Boudreau FOR RESPONDENT
SOLICITORS OF RECORD:
Aboriginal Law Centre FOR APPLICANT
Winnipeg, Manitoba
Booth Dennehy LLP FOR RESPONDENT
Winnipeg, Manitoba