Digests

Poitras v. Sawridge Band

T-2655-89

2001 FCT 690, Hugessen J.

22/6/01

18 pp.

Motions by defendant Band to strike statement of claim; motion by plaintiff for summary judgment--Plaintiff member of Sawridge Band until married non-Indian in 1965, whereupon lost both Band membership in Sawridge Band and Indian status--After 1985 amendment to Indian Act, plaintiff applied for reinstatement of Indian status and of membership in Sawridge Band--Plaintiff reinstated to general register maintained by Department but was told would have to apply to Band for membership, as Band had submitted proposal to take control of its membership effective July 1985, pursuant to provisions of Indian Act--Present action launched in 1988, seeking declaration plaintiff member of Sawridge Band, damages, accounting and various other consequential relief--Motion to strike on ground declaration should have been sought on application for judicial review; no reasonable cause of action--Summary judgment sought on very narrow ground plaintiff, as child of persons on Band List, entitled to be registered under provision of Band's Membership Rules, R. 3(b) (natural child of parents both of whose names entered on Band List)--Both motions dismissed--As present action started in 1988 and took form not only permitted but required by law as it then stood--1992 Federal Court Act amendments not having retroactive effect, motion to strike must be dismissed with costs--As to summary judgment--Application of R. 3(b) questionable as plaintiff's father's name removed from Band List when died in 1981--Although likely that at time of plaintiff's birth, parents both entered on Band List or its predecessor, no conclusive evidence to that effect--And if Rule viewed as having retrospective effect as of either date of her birth or date of creation of 1951 Band List, effect now spent for plaintiff indeed accepted as band member and entered on Band List up to time of marriage to non-Indian--Even if effect of plaintiff's father's death ignored, plaintiff still seeking to benefit twice from application of provisions of R. 3(b): once when first entered on Band List and again today--Cannot be correct reading of Rules, as would mean persons who had voluntarily resigned from Band, or been properly expelled from it, could seek re-admission as of right--Furthermore, context strong argument against interpretation proposed by plaintiff--Rules adopted as consequence of and in purported implementation of 1985 amendments to Indian Act--For interpretation of R. 3(b), in particular, context of course including remainder of Rules of which it forms but part--Plaintiff became entitled to restoration of Indian status and to be re-admitted to Band as result of 1985 legislation--R. 3(a) specifically contemplates such persons and purports to apply to them additional conditions which must be fulfilled before they can claim membership--Valid or not, reading of R. 3(a) essential to understanding of true meaning and intent of R. 3(b)--Simply inconceivable person who drafted both Rules intended to give R. 3(b) scope contended for by plaintiff--Proper construction R. 3(b) only prospective in scope and not applying to acquired rights person contemplated in Act, s. 11(1)--Death of plaintiff's father in 1981 irrelevant to claim to membership--As plaintiff person who would be entitled pursuant to Act, s. 11(1) to have his or her name entered on Band List, case comprehensively dealt with by R. 3(a), and R. 3(b) simply not applying to her--As Band counsel entirely unhelpful on hearing of motion, no costs awarded on motion for summary judgment--Motion to strike dismissed with costs--Indian Act, R.S.C., 1985, c. I-5, s. 11(1) (as am. by S.C. 1985, c. 27, s. 4)--Indian Act, R.S.C. 1970, c. I-5--Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8).