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COMMUNITIES AND GOVERNANCE - Membership in community

Wednesday, August 14, 2019 @ 6:45 AM  

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Appeal by the Band Council from a Federal Court decision allowing the respondent’s application for judicial review and declaring that he was a member of the appellant Band. The appellant rejected the respondent’s membership application on the basis that it properly excluded him from membership in their discretion in 1987 because he had been placed
by the Registrar on a conditional membership list pursuant to s. 11(2) of the Indian Act. Relying on the 1987 correspondence from the Registrar to the respondent which stated that he was registered as a member pursuant to s.  11(1)(a) of the Act, and the fact that the respondent’s name appeared on the manually maintained list sent to the appellant in 1987, the Federal Court found that the respondent acquired a right to membership in the appellant before its Membership Code came into effect and that the appellant could not deprive him of his previously acquired right to membership in the appellant. The Federal Court concluded that the Band Council’s failure to recognize that the respondent was statutorily entitled to membership in the Band through the operation of Bill C-31 rendered its decision unreasonable.

HELD: Appeal allowed. The application was remitted to the Band Council for redetermination. The appellant’s decision was unreasonable. The appellant misapprehended the record before it when it found the respondent had been placed on the band list pursuant to s. 11(2). The respondent was placed on the manually maintained list which was separate and distinct from the s. 11(2) list. The reasons given by the Band Council gave no indication that the Council considered the Membership Code in effect when the respondent applied for membership in 2016 but focused on the fact that he was excluded from membership in 1987. The current Membership Code was relevant to his application, and it was unreasonable for the Band Council not to consider it. There is no evidence that the Band took these membership rules, or any membership rules, into account when it decided to exclude the respondent from membership in 1987. The Band Council was required to consider those rules and its failure to do so, coupled with its misapprehension of the factual record, rendered its decision unreasonable.

Peters v. Peters First Nation Band Council, [2019] F.C.J. No. 775, Federal Court of Appeal, E.R. Dawson J.A. and J.M. Woods A.C.J. and M. Rivoalen A.C.J., July 4, 2019. Digest No. TLD-August12019006