Digests

Sark v. Abegweit Band Council

T-1028-00

2001 FCT 1184, O'Keefe J.

31/10/01

30 pp.

Judicial review of denial by delegate of Minister of Indian and Northern Affairs of applicants' petition for separation from Abegweit Band--Abegweit First Nation Band has three reserves in Prince Edward Island--Of 158 band members, 39 live on Rocky Point Reserve--Almost all of remaining band members reside on Scotchfort Reserve--In June, 1999 petition signed by 13 residents of Rocky Point Reserve sent to William Montour, Director General (Minister's delegate) requesting Minister to constitute new band for Rocky Point Reserve--In August 1999, Department sending to Council of Abegweit Band 1991 policy entitled "New Bands/Band Amalgamations", setting out six-step procedure to form new bands--First step requiring new band to submit written request to region, and parent band to submit band council resolutions indicating agreement to creation of new band--Second step district and regional analysis of proposal, utilizing new band/band amalgamation checklist, and report by Regional Director General containing recommendation on proposal for Associate Deputy Minister--After much correspondence between those seeking to separate, Minister's delegate, on May 16, 2000 Minister's delegate writing letter reiterating that separation of Rocky Point Reserve not supported; stating office committed to building of strong First Nation communities, reaffirming offer to facilitate discussions--Indian Act, s. 17 permitting Minister to constitute new bands from existing Band lists if requested to do so by persons proposing to form new bands--Federal Court Act, s. 18.1(2) providing application for judicial review of decision, order of federal board, commission, other tribunal shall be made within 30 days after decision communicated to party--"Federal board, commission or other tribunal" defined in s. 2 as any body, person purporting to exercise jurisdiction conferred by, under Act of Parliament--Application allowed--(1) May 16, 2000 letter from Minister's delegate was "decision or order of federal board, commission or tribunal"--In Markevich v. Canada, [1999] 3 F.C. 28 (T.D.) Evans J. held letter need not be "decision or order" in order to be subject to judicial review; words "decision or order" found in s. 18.1(2) which simply provides limitation period; s. 18.1(3), permitting Trial Division to set aside "decision, order, act or proceeding of federal board, commission or other tribunal", containing permitted subject-matter i.e. "act or proceeding" may include administrative action not amounting to "decision or order"--Analysis of Minister's delegate's letter indicating Atlantic Region not supporting formation of new band--Proposal not making it through step 2 of procedure recommended in policy as neither new band/band amalgamation checklist nor report containing recommendation of Regional Director General to Assistant Deputy Minister--Letter having effect of ending establishment of proposed new band--Reviewable pursuant to s. 18.1(3)--(2) Therefore not necessary to determine whether decision made pursuant to Indian Act, s. 17-- Proceedings not initiated prematurely--(3) Matter justiciable--Decision not to follow procedure outlined by policy in dealing with new band application in issue-- Decision, as result of application of policy, for Minister to make, as long as made following legal principles applicable to such decisions--(4) Department put in place six-step procedure for dealing with applications for new band by way of band division--Reasonable to assume all such applications would be dealt with according to policy set out by department--Analysis contemplated by step 2 not carried out--No new band/band amalgamation check list included in record--No report containing recommendation of Regional Director General on proposal to be prepared for Associate Deputy Minister--Decision made not to proceed further and complete necessary steps under policy--Only at step 4 that rejection of proposal by Deputy Minister provided for in policy--Legitimate expectations of person challenging decision may also determine what procedures duty of fairness requires in given circumstances: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817-- Applicants could expect that, at minimum, policy respecting new bands would be followed as indicated by former Minister --Breach of duty of procedural fairness in that application not dealt with in accordance with policy which department established to deal with such applications--Applicants, at minimum, entitled to have application dealt with according to policy established for that purpose--To extent process of policy not completed, Minister or delegate fettered discretion --(5) If reasons required, can be gleaned from correspondence --Obvious respondent not sending application forward because simply did not support establishment of new bands by division of existing band--Indian Act, R.S.C., 1985, c. I-5, s. 17 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 7)--Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18.1 (as am. idem, s. 5).