Translated from the original French  
Landry c. Procureur général du Canada (Registraire du registre  
des Indiens)  
2017 QCCS 433  
SUPERIOR COURT  
CANADA  
PROVINCE OF QUEBEC  
DISTRICT OF MONTREAL  
No.:  
500-17-066945-117  
DATE: February 7, 2017  
______________________________________________________________________  
PRESIDING: THE HONOURABLE CHANTAL MASSE, J.S.C.  
______________________________________________________________________  
YVES LANDRY  
ROGER LANDRY  
NICOLE LANDRY  
BIANCA LANDRY  
CHANTAL LANDRY  
PIERRE-OLIVIER LANDRY-BERTHIAUME  
FRANÇOIS LANDRY  
KATHLEEN LANDRY  
ANN LANDRY  
JEAN LANDRY  
MARTINE LANDRY  
SHAREEN LANDRY  
PAULE LANDRY  
SARAH LANDRY  
DAREN LANDRY-GAGNON  
NICOLE LANDRY-BELLERIVE  
DIANE LANDRY-CHARTIER  
MARINA CHARTIER  
FRÉDÉRIC CHARTIER  
SHIRLEY LANDRY-LAPERRIÈRE  
CHANTAL LAPERRIÈRE  
MARIANKA LANDRY-BÉLANGER  
MARTIN LAPERRIÈRE  
JM 2158  
500-17-066945-117  
PAGE: 2  
GISÈLE LEPAGE-LANDRY  
SYLVAIN POITRAS  
NATHALIE POITRAS  
MARTIN DUMAS  
COLETTE CHAMBERLAND  
GISÈLE CHAMBERLAND-ROBERT  
CARMEN CHAMBERLAND-LANDRY  
STEFAN DESFOSSÉS  
SACHA DESFOSSÉS  
CINDY DRAPEAU  
MARIE-CLAUDE DRAPEAU  
SERGE DUMONTHIER  
ÉRIC GROLEAU  
LUCIE LANDRY  
JULIE LABELLE  
CÉCILE LANDRY  
MARIO LANDRY  
JOSÉE LANDRY  
FRANCIS LANDRY  
MYRIAM LANDRY  
DENIS LANDRY  
JACQUES LANDRY  
GAETAN LANDRY  
NORMAND LANDRY  
LINDA LANDRY  
SOLANGE LANDRY  
PATRICK LANDRY  
NICHOLAS LELAIDUR  
CHRISTINE LANDRY  
JEAN-GUY LANDRY  
MARC LANDRY  
GUY LANDRY  
LYNE LANDRY  
KARINE LANDRY  
SONIA LANDRY  
JASON LANDRY  
DAVE LANDRY  
RÉGINE LANDRY  
LUCIE LANDRY  
YAN GROLEAU  
NATHALIE GROLEAU  
ALAIN LANDRY  
MARLÈNE LANDRY  
KRISTOPHER DABELIC  
MARIE-CLAUDE LANDRY  
GUYLAINE LANDRY  
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PAGE: 3  
DANY LANDRY  
LISE LANDRY  
FRANCE LANDRY  
JOSETTE DUMAS-LANDRY  
NOELLE LANDRY-DRAPEAU  
JEAN LANDRY  
DANNY LANDRY  
KEVEN LANDRY  
THÉRÈSE LANDRY  
STÉPHANE LANDRY  
CHRISTIAN DRAPEAU  
KARINE BELLERIVE  
FRANÇOIS BELLERIVE  
TIM LANDRY  
DIANE LANDRY-RENIÈRE  
KARINE LANDRY  
ANN-ÉLYZABETH ROCHELEAU  
JONATHAN ROCHELEAU  
ANNIE DUMAS  
SHANNON LANDRY-DALLAIRE  
GUY-ANNE LANDRY  
JULIE LANDRY  
PEGGY GAILLARDETZ-LANDRY  
PIERRE GAILLARDETZ-LANDRY  
ROXANNE GAILLARDETZ-LANDRY  
Appellants  
v.  
ATTORNEY GENERAL OF CANADA, acting for and on behalf of the Registrar of the  
Indian Register  
Respondent  
TABLE OF CONTENTS  
500-17-066945-117  
PAGE: 4  
OVERVIEW ………………………………………………………………………….…….. 7  
Preliminary observations on the overall context …….………………………….. 8  
The issues in this case and their specific context …..……………..……….….. 16  
I-  
THE FACTS, THE REGISTRAR’S NOTICES AND DECISIONS, AND THE  
PROCEDURE FOLLOWED………………………………………………………18  
ANALYSIS……………………………………………………………………..... 30  
II-  
1. What are the applicable standards of review in an  
appeal under s. 14.3 of the Act? .................................................................. 32  
1.1 The jurisdiction of the Registrar and the right of appeal ..……………… 32  
1.2 Administrative law standards of review apply …………………………… 34  
1.3 The standards of review applicable to the Registrar’s decision ............. 34  
1.4 The exercise of the administrative law power of review over questions  
of law relating to the interpretation of statutes that the specialized  
decision-maker is mandated to apply: the challenge of reconciling  
deference with respect for the rule of law, both in general and in the  
specific context of this case …..............................................................41  
2. Was there a breach of the Registrar’s duty of procedural fairness and, if so,  
what is the appropriate remedy?................................................................. 45  
2.1 The general principles ………………………………….………………… 45  
2.2 The Registrar’s refusal to grant the Appellants a hearing………......... 49  
2.3 The Registrar’s refusal to grant the Appellants more time to respond to  
the draft decision ……………………………………………................... 50  
2.4 The Appellants have not established grounds giving rise to a  
reasonable apprehension of bias ………………………………….….… 55  
3. Did the Registrar commit an error reviewable on appeal and, if so, what is  
the appropriate remedy? ……………………………………………………… 57  
3.1 The principles of interpretation …………………………………………. 59  
3.2 The most relevant provisions of the Act and the 1951 Act and the novel  
arguments presented by the Registrar ……………………………..….. 65  
3.3 The unreasonableness of the Registrar’s decision ……….…………... 86  
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3.3.1 The approach followed by the Registrar was reasonable and  
consistent with the one he was using when the 1985 Act came  
into force.…………………...….………………..………………... 86  
3.3.2 The Registrar’s conclusion that Joseph Landry was a recognized  
member of the Abenaki of Wôlinak Band and lived on the reserve  
for  
approximately  
eight  
years  
was  
reasonable  
………………………….……………………………………….… 96  
3.3.3 The Registrar’s conclusion that Joseph Landry lost his status  
before the birth of his son Antonio Landry was unreasonable  
…………………………………………….…………………….…. 97  
First observation: The Registrar ruled out the possibility that Joseph  
Landry could have been recognized as a band member on a ground  
other than his marriage on the basis of an unreasonable interpretation  
of the applicable law…………………………………..………………. . 97  
Second observation: In view of the law applicable in the territory of  
Lower Canada at the time, the facts as found by the Registrar imply  
that Joseph Landry had status as a band member on a basis other  
than his marriage ……………………………………………………… 111  
Third observation: The laws applicable to Joseph Landry after the  
recognition of his status as a band member did not cause him to lose  
this status, and the facts do not ground a reasonable conclusion that  
he lost his status when his son Antonio Landry was born  
.......................................................................................................... 112  
3.4 The appropriate remedy…………………………………………………117  
SCHEDULE:  
Excerpts from the most relevant statutes  
1. An Ordinance to Prevent the Selling of Strong Liquors to the Indians in the  
Province of Quebec, and also to Deter Persons from Buying their Arms or  
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Clothing, and for Other Purposes Relative to the Trade and Intercourse with the  
Said Indians, 17 Geo. III, c. 7 (Que., 1777).  
2. An Ordinance to repeal certain parts of an Ordinance therein-mentioned, and to  
amend certain other parts of the said Ordinance, and to provide for the further  
protection of the Indians in this Province, 3 & 4 Vict., c. 44 (1840).  
3. An Act for the protection of the Indians in Upper Canada from imposition, and the  
property occupied or enjoyed by them from trespass and injury, 13-14 Vict., c. 74  
(1850).  
4. An Act for the better protection of the Lands and property of the Indians of Lower  
Canada, 13-14 Vict., c. 42 (1850).  
5. An Act to repeal in part and to amend an Act, intituled, An Act for the better  
protection of the Lands and property of the Indians of Lower Canada, 14-15 Vict.,  
c. 59 (1851).  
6. An Act to encourage the gradual Civilization of the Indian Tribes in this Province,  
and to amend the Laws relating to Indians, 20 Vict., (1857), c. 26.  
7. An Act respecting Civilization and Enfranchisement of certain Indians, C.S.C.,  
(1859), c. 9 (United Canada Consolidation).  
8. An Act to prevent trespasses to Public and Indian Lands, CSUC, 22 Vict., (1859),  
c. 81 (Upper Canada).  
9. Act respecting Indians and Indian Lands, CSLC 1861, c.14 (Consolidation, Lower  
Canada).  
10.An Act providing for the organisation of the Department of the Secretary of State  
of Canada, and for the management of Indian and Ordnance Lands, Statutes of  
Canada 1868, c. 42 (31 Cict.).  
11.An Act for the gradual enfranchisement of Indians, the better management of  
Indian affairs, and to extend the provisions of the Act, 31st Victoria, Chapter 42,  
1869, 32 & 33 Vict., c . 6.  
12.An Act to amend certain laws respecting Indians, and to extend certain Laws  
relating to matters connected with Indians to the Provinces of Manitoba and British  
Columbia, 1874, 37 Vict., c. 21  
13. Indian Act, S.C. 1951, c. 29.  
14. Indian Act, R.S.C. 1985, c. I-5 (excerpts as currently in force).  
______________________________________________________________________  
JUDGMENT  
______________________________________________________________________  
500-17-066945-117  
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OVERVIEW  
[1]  
Did the Registrar in charge of maintaining the Indian Register (”the Registrar” and  
“the Register”) commit an error that justifies allowing the appeal from his decision,  
according to which he was well founded in having deleted the Appellants’ names from  
the Register? Was it reasonable for him to find that the Appellants’ ancestor Joseph  
Landry, born in 1838, was not or was no longer a member of the Abenaki of Wôlinak  
Band when his son Antonio Landry was born on February 16, 1874? Can he raise legal  
arguments in support of the decision under appeal that he did not raise when he  
rendered it? Did the Registrar breach his duty to act fairly? What is the standard of  
review applicable to each of the issues submitted? This list presents, in no particular  
order, the fundamental issues to be resolved in this appeal.  
[2]  
The Appellants nearly a hundred members of the Landry family seek to quash  
a decision of the Registrar dated January 28, 2011, which dismissed their protests  
against the deletion of their names from the Register established under the Indian Act1  
1
R.S.C. (1985), c. I-5, the Indian Act as currently in force. For ease of understanding, in this judgment,  
the Ordinance to Prevent the Selling of Strong Liquors to the Indians in the Province of Quebec, and  
also to Deter Persons from Buying their Arms or Clothing, and for Other Purposes Relative to the  
Trade and Intercourse with the Said Indians, 17 Geo. III, c. 7, will be referred to as the 1777 Act,the  
Ordinance to repeal certain parts of an Ordinance therein-mentioned, and to amend certain other parts  
of the said Ordinance, and to provide for the further protection of the Indians in this Province, 3 & 4  
Vict., (1840), c. 44, will be referred to as the “1840 Act,” the Act for the better protection of the Lands  
and property of the Indians of Lower Canada, 13-14 Vict., (1850), c. 42, as the “1850 Lands Act,” the  
Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or  
enjoyed by them from trespass and injury, 13-14 Vict., (1850), c. 74., as the “1850 Act to Protect  
Indians and their Lands,” the Act to repeal in part and to amend an Act, intituled, An Act for the better  
protection of the Lands and property of the Indians of Lower Canada, 14-15 Vict., (1851), c. 59, as the  
1851 Amendment to the 1850 Lands Act,” the Act to Authorise the Setting Apart of Lands for the Use  
of Certain Indian Tribes in Lower Canada, 1851, 14-15, Vict., c. 106, as the “1851 Act setting apart  
Lands and providing for the distribution of an annual amount to certain tribes”, the Act to encourage the  
gradual Civilization of the Indian Tribes in this Province, and to amend the Laws relating to Indians, 20  
Vict., (1857), c. 26., as the “1857 Act respecting Civilization,” the Act respecting Civilization and  
Enfranchisement of certain Indians, 1859, 22 Vict., c. 9, as the “1857 Act respecting Civilization as  
revised in 1859”, the Act to prevent trespasses to Public and Indian Lands, CSUC 1859, c. 81, as the  
Act to prevent trespasses to Public and Indian Lands”, the Act respecting Indians and Indian Lands,  
CSLC 1861, c. 14, as the “1861 Revised Statutes of Lower Canada respecting Indians and Lands,” the  
An Act providing for the organisation of the Department of the Secretary of State of Canada, and for  
the management of Indian and Ordnance Lands, 1868, 31 Vict. c. 42, as the “1868 Lands Act,” the Act  
for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the  
provisions of the Act 31st Victoria, Chapter 42, 1869, 32 & 33 Vict., c . 6, as the “1868 Act as amended  
in 1869” or the “1869 amendment to the 1868 Lands Act,” the Act to amend certain laws respecting  
Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of  
Manitoba and British Columbia, 1874, 37 Vict., c. 21, as the “1868 Lands Act as amended in 1869 and  
1874” or the “1874 amendment to the 1868 Lands Act as amended in 1869,” the Indian Act, SC 1886,  
49 Vict., c. 43, as the “1886 Act,” the Indian Act, S.C. 1951, c. 29, as the “1951 Act,” the Act to amend  
the Indian Act, S.C. 1985, c. 27 as the “1985 Act”, and the Gender Equity in Indian Registration Act,  
S.C. 2010, c. 18, as the “2010 Act.” It is fortunate that the Wôlinak reserve is in central Quebec, as the  
territorial variations affecting the province of Quebec and Lower Canada or Eastern Canada in the  
different eras are certain to have no impact. The most relevant excerpts of the statutes referred to  
above are reproduced in a schedule to this judgment. The provisions of the 1791 Act (Constitutional  
500-17-066945-117  
PAGE: 8  
(the “Act”). The Attorney General of Canada, acting for the Registrar (”the AGC”), argues  
that their action is unfounded.  
Preliminary observations on the overall context  
[3]  
It is important not to trivialize the interaction between the issue of entitlement to be  
registered and the identity of those who wish to be registered, while at the same time  
identifying the limits of the role to be played by the Court in this case.  
[4]  
An appeal concerning the scope of the entitlement to be registered within the  
meaning of the Act and the decision that will follow such an appeal can also have  
consequences beyond merely the parties to the case. This is particularly true in this case  
because of a question of law raised by the AGC, for reasons that will become clear in the  
course of the judgment. It is important that such a decision not be rendered without a  
certain understanding of the issues on which it is likely to have an impact.  
[5]  
The effects of the Act and its earlier versions have been the subject of much  
commentary. It is important to observe what these effects are in light of the already  
numerous comments on the subject, particularly since the Registrar and the undersigned  
have a duty to see to the application of these statutes. The difficult context in which the  
Registrar must act in carrying out the mandate conferred on him by the Act will also be  
made clear.  
[6]  
The Court’s first preliminary observations therefore concern issues relating to  
identity and the role of the courts.  
[7]  
A person’s identity may be distinct from his or her legal status, despite the latter’s  
relevance to the former. In other words, the identity of the Appellants is certainly not  
reduced to their status under the Act, whatever outcome any decision-maker may  
impose in this case.  
[8]  
Neither courts nor legislators, and neither administrative decision-makers –  
however specialized they may be nor members of a band with a membership code,  
may dictate who the Appellants are or determine their identity, according to the general  
meaning that this notion carries for all human beings. This observation is equally valid in  
respect of both the Appellants and their ancestors.  
[9]  
The following passage from the Report of the Royal Commission on Aboriginal  
Peoples (hereinafter, the “Dussault Report”) perfectly illustrates this point in relation to  
the context before us here:  
... Recognition as 'Indian' in Canadian law often had nothing to do with whether a  
person was actually of Indian ancestry. Many anomalies and injustices occurred  
Act, 1791, 31 George III, c. 31, s. XXXIII), the Union Act 1840 (An Act to reunite the Provinces of  
Upper and Lower Canada, and for the Government of Canada, 3 & 4 Vict., c. 35, s. XLVI) and the  
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.), s. 129) providing that laws enacted under the  
preceding regime shall remain in force until amendment or repeal are omitted.  
500-17-066945-117  
PAGE: 9  
over the years in this regard. For example, a woman of non-Indian ancestry would  
be recognized as Indian and granted Indian status upon marriage to an Indian  
man, but an Indian woman who married a man without Indian status would lose  
legal recognition as Indian. Moreover, for historical reasons, many persons of  
Indian ancestry were not recognized as being Indians in law and were,  
accordingly, denied Indian status.2  
[10] A statute that determines the rights of persons on the basis of a status that the  
statute itself defines has a significant impact on the persons concerned. Obviously, for a  
multitude of reasons, many would like to be recognized under such statutes. When  
granted, recognition has an impact not only in terms of eligibility for the benefits  
conferred by the statute, but also on the idea individuals form of their identity and on how  
others see them. This is the case with citizenship, for example, and with persons i.e.,  
Indians within the meaning of the Act who are entitled to be included in the Register  
under the Act.  
[11] What is more, the Act currently creates different categories of Indians, some who  
can pass their status down to their children regardless of their spouse’s status, and  
others who may do so only if their spouse is also a status Indian within the meaning of  
the Act. These distinctions can also have an impact on the identity of the persons  
concerned, and on the very future of Aboriginal peoples.  
[12] The federal government, because it must legislate within its jurisdiction, and the  
courts, because they must ensure respect for the division of powers, will eventually play  
an important role in determining which individuals belong to groups of non-status Indians  
and Métis. Indeed, the Supreme Court has recently recognized that individuals in these  
groups are Indians within the meaning of s. 91(24) of the Constitution Act, 1867, and  
stated that “Determining whether particular individuals or communities are non-status  
Indians or Métis … is a fact-driven question to be decided on a case-by-case basis in the  
future”.3  
[13] Eventually, these individuals may also be granted substantive rights that fall within  
federal legislative jurisdiction. Until such time, some will attempt to have their Aboriginal  
identity recognized under the Act.  
[14] Even then, there will still be individuals lacking a clear identity because they do  
not qualify in legal terms. The task of separating out those with status and rights often  
falls to specialized decision-makers and, as a last resort, the courts. This task is fraught  
with consequences for all of the parties concerned, and in some cases for society as a  
whole. It must be carried out respectfully and within the limits prescribed by the  
applicable laws, whatever their nature.  
2
Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal  
Peoples, 1966, Vol. 1 at 279.  
Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 S.C.R. 99 at para. 47.  
3
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[15] The second preliminary observation is related to the overall effect of the Act and  
the turbulent social and legal context in which this judgment is rendered.  
[16] Of course, the Appellants’ rights under the Act depend on their status thereunder.  
That is the issue the Registrar decided, and in this case the Court is asked to determine  
only whether the decision he rendered in respect of the Appellants should be upheld or  
not.  
[17] Consequently, this judgment in no way concerns the broader debates, which are  
political rather than legal, concerning the autonomy of Aboriginal peoples or whether the  
benefits available to registered Indians are appropriate. Those who intervene on these  
issues face significant challenges, of which the Court can merely take note.  
[18] It falls to Parliament to adopt definitions and eligibility requirements that  
accomplish the objectives of its statutes and to the government to create measures and  
programs that meet the actual needs of individuals entitled to these benefits, all the while  
bearing limited resources and constitutional requirements in mind.  
[19] In principle, neither those who must apply the laws, such as the Registrar, nor  
those whose task it is to review the Registrar’s decisions, such as the undersigned, have  
the discretion to disregard them.4  
[20] Section 11(c) of the 1951 Act, for example, provided for the entitlement to  
registration of all of a band member’s descendants in the male line, with no legal  
requirements that these persons adopt a particular way of life, be connected to the  
culture of Aboriginal peoples, or even be accepted by other members of the band. That  
fact in no way means that it was not possible for registered Indians to meet some or all of  
these criteria; it does, however, suggest that some of them may well have met none of  
them.  
[21] That provision still has an impact today, in particular through s. 6(1)(a) of the Act,  
which preserves the rights of individuals to whom the 1951 Act applied between  
September 4, 1951, and April 16, 1985. As a matter of fact, the provision has even more  
effect today since the 1985 abolition of the so-called “Double Mother Rule”,5 which  
4
This principle is subject only to a constitutional challenge before a competent court. In this case, no  
constitutional ground has been raised before the undersigned.  
According to the “Double Mother Rule” governing the second generation of mixed background under s.  
5
12(1)(a)(iv) of the 1951 Act, if an Indian father married a non-Indian after 1951 and was himself the  
child of a union between an Indian and a non-Indian, married or not, the children of such a marriage  
were entitled to preserve their status as Indians entered in the Register only until the age of 21. In  
Descheneaux c. Canada (Attorney General), J.E. 2015-1378 (Sup. Ct.) (discontinuance of appeal), the  
undersigned stated the following, at para. 27: [TRANSLATION] “It should be noted, however, that the  
evidence reveals that numerous exceptions to the Double Mother Rule were granted at the request of  
certain bands. Because the rule did not apply to members of these bands, male Indian members could  
have children with non-Indian women over several generations without any consequences on the  
status of their descendants, unless they were illegitimate girls. Moreover, the Double Mother Rule was  
not uniformly applied in practice, as children who should have been deleted from the Register at 21  
sometimes remained on it their whole lives.”  
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limited its application. Individuals who were victims of the rule during the application of  
the 1951 Act or those who would have been but for the coming into force of the 1985 Act  
benefit from either a remedy under s. 6(1)(c) or a grant of status under s. 6(1)(f), thus  
receiving permanent status rather than status terminating at the age of 21, as had been  
provided in s. 12(1)(a)(iv) of the 1951 Act.  
[22] The rights of individuals born after the 1985 Act came into effect are determined in  
accordance with the provisions of that Act and its amendments. Nevertheless, the rights  
they acquired from their parents under the earlier legislation may have an impact on the  
rights they are granted under the Act.  
[23] While conferring the entitlement to registration on more people with a view to  
remedying discrimination and certain past inequities, in the 1985 Act, Parliament chose  
to treat all persons who are entitled to register in a way that is strictly equal yet more  
disadvantageous in many respects.  
[24] Thus, the expert evidence produced in Descheneaux v. Canada (Attorney  
General)6 (”Descheneaux”) established that registered Indians would be extinguished  
over a few generations because of the provisions of the Act prohibiting children with only  
one Indian parent with s. 6(2) status from passing on that parent’s Indian status. This  
effect of the Act had already been noted and deplored in the Dussault Report in 1996.  
[25] The mechanism at work under the 1951 Act was considerably more generous  
towards descendants of Indians in the male line, even considering the so-called Double  
Mother Rule from which many bands had in any event also exempted themselves.  
[26] Finally, the remedies granted to individuals who historically suffered discrimination  
did not treat their descendants the same as descendants of Indians in the male line were  
treated under the 1951 Act. Those male descendants conferred status on their non-  
Indian wives, and the Double Mother Rule is now abolished, with its victims being  
granted remedies, as noted above. All of this now has an impact on the descendants of  
individuals who suffered discrimination and regained status, given the new rules that  
require two Indian parents to pass on status that the child can in turn pass on to the next  
generation.  
[27] As noted in Descheneaux, this [TRANSLATION] “means that Indian women and their  
descendants were never treated as favourably as Indian men and their descendants  
under the pre-1985 Acts.”7 It should be added and this is the least that can be said on  
the matterthat reducing the scope of the rights of the comparator groups used by  
persons suffering discrimination before conferring equal treatment on those persons is  
not a generally accepted approach in equality rights cases.  
6
Supra note 5.  
7
Ibid. at para. 35. A first statutory amendment in 2010 remedied this in part. Nevertheless, in McIvor v.  
Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153, the British Columbia Court of  
Appeal found the discriminatory effects flowing from vested rights to be justified. Another amendment  
is in the process of being adopted in the wake of Descheneaux.  
500-17-066945-117  
PAGE: 12  
[28] These are perhaps the phenomena Abella J. had in mind when she wrote the  
following for the Court in Daniels:  
[1] As the curtain opens wider and wider on the history of Canada’s relationship with its  
Indigenous peoples, inequities are increasingly revealed and remedies urgently sought.  
Many revelations have resulted in good faith policy and legislative responses, but the list  
of disadvantages remains robust. This case represents another chapter in the pursuit of  
reconciliation and redress in that relationship.8  
[29] As that judgment recognized, as we have seen, an undetermined category of  
unregistered Indian as falling within the jurisdiction of the federal government, it will  
eventually be necessary to determine whether this was an application of the  
communicating vessels theory.  
[30] Another effect of the 1985 Act was to give bands back their right to decide their  
own membership rules when they wanted to. Consequently, many of the Appellants are  
members of the Abenaki of Wôlinak Band, despite no longer being included in the  
Register.9 As the drafters of the Dussault Report noted, however, membership in a band  
without being registered can have perverse effects on band finances or result in limited  
rights for unregistered band members:  
The federal government, which normally funds bands through a formula based on  
the number of status Indian band members, does not generally provide funds to  
bands for persons who are not status Indians. Bands that allow people without  
Indian status to become band members are therefore penalized financially, since  
they then have to provide housing and other services to these new band members  
without offsetting federal payments. This is a strong disincentive to many bands,  
since most are poor and utterly dependent on the federal government for their  
funding. This means that large numbers of people of Indian ancestry who may  
have a connection to a band are unable to acquire either band membership or  
reserve residency.10  
[31] The judgment in Medzalabanleth v. Abénakis of Wôlinak Council11 provides  
insight into the status enjoyed by some of the Appellants, who for example may vote in  
band elections as members entered on the Band List without being Indians included in  
the Register. This is possible because they all have at least one female Abenaki  
ancestor who lived on the Abenaki of Wôlinak reserve, which, although not sufficient to  
give them Indian status within the meaning of the Act, meets the requirements of the  
Membership Code the Band has adopted.  
[32] The issue of spouses also poses significant problems with respect to the  
Membership Codes.  
8
Supra note 3 at para. 1.  
9
Except for some of the Appellants, who were re-registered on another basis or who allege to be  
entitled to be re-registered after the coming into force of the 2010 Act. See the re-re-re-amended  
notice of appeal, at para. 4 and, inter alia, the testimony of Yves Landry at the hearing.  
Dussault Report, supra note 2, Vol. 1 at 279-280.  
10  
11  
[2014] FC 508 at para. 57.  
500-17-066945-117  
PAGE: 13  
[33] Spouses of persons who regained status in 1985 do not enjoy the same  
treatment as female spouses of male individuals with rights acquired under the 1951 Act  
and the other earlier Acts. These female spouses were granted Indian status if they were  
married to their partners. Even non-Indian female spouses married before the coming  
into force of the 1985 Act to male persons registered after 1985 continue to benefit from  
Indian status under s. 6(1)(a), since they are deemed to have acquired the entitlement to  
registration the day before the 1985 Act came into force. The spouses of registered  
Indians who married them after 1985 are not entitled to any status under the Act.  
Unmarried spouses of registered Indians have never been entitled to any status under  
Canadian law.  
[34] The impacts in terms of band finances differ according to these different spousal  
categories.  
[35] All of these extremely complex and difficult issues, and undoubtedly others as  
well, form the longstanding backdrop to this case, in which the Registrar presented an  
argument that aimed to considerably limit the scope of vested rights under s. 6(1)(a) of  
the Act and thus of the population of Aboriginal people and Indians through marriage12  
who are entitled to register under this provision. This provision has been in force since  
1985 and has resulted in numerous registrations, which the Registrar has the power to  
delete if he finds that he has made an error of law. Only those registered before the 1985  
Act are sheltered from his actions.  
[36] A third preliminary observation is inevitable: as long as the provisions of the Act  
respecting inclusion in the register apply, their deplorable and shocking effects will  
continue.  
[37] Judges do not make such observations lightly or cheerfully, and they allow  
themselves to do so only in highly exceptional circumstances. However, in this case,  
such a remark is appropriate, as the rest of the judgment will demonstrate. Indeed,  
others have made the same observation on numerous occasions.  
[38] In multiple ways, this case, though not a constitutional challenge, mirrors the case  
heard by the undersigned in Descheneaux.  
[39] That case called for a determination of whether the Act as amended as a result of  
McIvor v. Canada (Registrar of Indian and Northern Affairs) (”McIvor”)13 allowed sex  
discrimination against the plaintiffs to persist. In McIvor, the Court of Appeal of British  
Columbia had found that this form of discrimination existed by comparing the plaintiffs in  
that case with the group of victims of the Double Mother Rule on whom rights beyond the  
rights acquired under the 1951 Act had been conferred. The Court nevertheless found  
12  
People who married Indians before 1985 who had no status within the meaning of the Act without this  
marriage may or may not have Aboriginal ancestry. Those who do not are included in the notion of  
“Indian through marriage”. The wives of registered Indians who are entitled to be registered because of  
their marriage but who nevertheless have Aboriginal ancestry are included in the Aboriginal population.  
13  
Supra note 7.  
500-17-066945-117  
PAGE: 14  
that discrimination resulting from “vested rights” preserved by s. 6(1)(a) of the Act was  
justified.  
[40] Because Parliament chose to remedy the discrimination identified in McIvor by  
limiting the remedy to persons whose situation was strictly identical to that of the plaintiffs  
in that case, the 2010 Act enacted to this end allowed the discriminatory effects to  
persist. In Descheneaux, the plaintiffs compared themselves to a specific sub-group of  
the advantaged group identified in McIvor and were successful. A statute intended to  
confer on them the right to register, which has potential effects on several tens of  
thousands of individuals, is currently being studied.  
[41] In this case, the Court must consider the scope of the [TRANSLATION] “vested  
rights” contemplated in s. 6(1)(a) of the Act because it was precisely these rights that the  
Appellants invoked before the Registrar as conferring on them the right to register and  
that the AGC seeks to limit by presenting a legal argument.  
[42] As discussed below, while the expression [TRANSLATION] vested rights” is  
generally used, the effect of s. 6(1)(a) might be better understood as a “grandfather  
clause” used by the authors of the Dussault Report. Under this grandfather clause, the  
Appellants are entitled to be registered after the coming into force of the 1985 Act on the  
basis of the provisions of the 1951 Act, which refers both implicitly and explicitly to even  
older provisions. The provisions of the earlier acts applicable to Indians and their effects  
which, given the scope of s. 6(1)(a), are perverse for many and discriminatory for some  
are more than an echo, and have a very tangible impact that still persists today, in  
2017.  
[43] Absent a redefinition of the legal framework for the status of Aboriginal people in  
Canada, courts sitting in appeal from decisions of the Registrar and indeed the  
Registrar himself are condemned to exercise their duties within the scope of these  
legislative provisions despite the sometimes unfair and arbitrary results of their  
application. The undersigned, like many others before, is no exception.  
[44] The Act has been the subject of extensive commentary, both in the case law14 and  
in the context of commissions of inquiry,15 not to mention judgments describing its  
historically discriminatory nature that still exists at the time of this judgment, albeit less  
than or differently from the time before 1985.  
[45] The authors of the Dussault Report, which was published in 1996, were also of  
the view that the Act still contained offensive” aspects. They suggested an approach  
14  
See, inter alia, Martin v. Chapman, [1983] 1 S.C.R. 365, the split decision of the Supreme Court of  
Canada on the scope of s. 11(1)(c) of the 1951 Act in respect of illegitimate male children, wherein all  
the judges agreed that the consequences of the provisions at issue were absurd but did not draw the  
same conclusions with respect to their interpretation and application to illegitimate, first-generation,  
mixed-background, male children.  
15  
See in particular the Dussault Report, supra note 2.  
500-17-066945-117  
PAGE: 15  
that in their view could be palliative in this respect and that would fall not to the courts but  
to all parties concerned with these issues:  
In our vision of self-government, nations are made up of thousands of individuals who  
should not be categorized as status or non-status, 6(1) or 6(2). All should be equal  
citizens of strong, healthy nations. The most offensive parts of the Indian Act cannot be  
changed overnight, but in re-establishing their concept of nationhood, Aboriginal people  
can overcome the many divisions that have arisen over the years as a result of federal  
policies. Many Aboriginal women who appeared before us spoke in eloquent terms about  
this important task.16  
[46] With such an approach, disputes like the one before the undersigned would no  
longer be necessary. Indeed, the laws applicable here give rise to an entirely different  
level of discussion.  
[47] Depending on the date of death or birth of a person’s ancestor, on the person’s  
own date of birth or of marriage, on the fact of the person’s marriage or lack thereof, on  
the person’s sex or the sex of his or her ancestor, or on the application of any given  
statutes some of which are more than 200 years old a person either will or will not be  
entitled to be included in the Register or will have a different status under the Act, which  
will have an impact on the rights of that person’s children.  
[48] This often leads to results that are absurd but that nevertheless clearly follow from  
the application of the Act, as brothers and sisters, half-brothers and half-sisters, or  
female and male cousins in the same family are treated differently in terms of their  
inclusion in the Register, despite their common Aboriginal ancestors.  
[49] Moreover, to fulfill the mandate of determining the right to register, the Registrar  
must apply and interpret multiple old laws, each one more convoluted than the last, and  
consider patchy evidence on the basis of which he or she must do his or her best to  
reconstitute the past while not taking into account any falsehoods that might be  
presented. If, following such an exercise, the Registrar registers someone who might for  
many years have believed himself or herself to be entitled to Indian status and then  
realizes that this registration was the result of an error in fact or in law, the Registrar  
deletes that person’s name from the Register. That is what happened here.  
[50] That is the Act that the Registrar had the duty to apply, and this Act and its earlier  
versions are what have determined the composition of the group of registered Indians.  
The Court must decide whether the Registrar’s decision to delete the Appellants from  
this group could be based on these laws, in light of the specific facts of this case.  
[51] Given the foregoing, the Act sometimes leads to surreal debates concerning the  
entitlement to be included in the Register.  
16  
Dussault Report, supra note 2, vol. 4 at 49.  
500-17-066945-117  
PAGE: 16  
[52] That was the case in Martin v. Chapman,17 a 1983 split decision of the Supreme  
Court that favoured the illegitimate son of a registered Indian and a non-Indian woman.  
[53] This case is another example.  
The issues in this case and their specific context  
[54] On the one hand, the Appellants invoke the status of member of the Abenaki of  
Wôlinak Band, which they claim their ancestor Joseph Landry acquired when he married  
an Indian woman, Vitaline Bernard, as they are descendants of Antonio Landry, a child  
born of Joseph’s second marriage with a non-Indian woman, Marie-Adéline Hébert.  
[55] According to them, one of the Acts applicable to Joseph allowed him to acquire  
this status and keep it. They argue that, even if a statute subsequent to the marriage in  
question repealed the possibility for a man to acquire such a status by marrying an  
Indian woman, Joseph’s vested right to his status could not be removed from him.  
However, they also argue that in any case, Joseph Landry has Indian blood.  
[56] On the other hand, in his April 1994 opinion that was made final in April 1996, the  
Registrar found that his predecessor’s 1990 opinion, which resulted in the Appellants’  
registration, contained an error of law, and that Joseph Landry did not acquire status  
through his first marriage to an Indian woman. According to this opinion, a statute ruling  
out this possibility was erroneously overlooked, and some of the evidence submitted at  
the time was false.  
[57] In his August 2010 draft decision, rendered final on January 28, 2011, the  
Registrar stated that he was nevertheless of the view that Joseph Landry was indeed a  
member of the Band during his marriage with the Indian woman Vitaline Bernard, but that  
remarrying a non-Indian woman and leaving the community caused him to lose this  
status.  
[58] In another complete reversal, the AGC argues on behalf of the Registrar that  
Joseph Landry never acquired any status whatsoever and submits only in the alternative  
that the Registrar’s final decision on this subject was well founded and that Joseph lost  
his status before his son Antonio was born by remarrying and leaving the reserve. It also  
argues that Joseph had no vested right to Band member status and that the evidence of  
the possibility that Joseph Landry had Indian blood is insufficient.  
[59] Finally, the AGC submits novel arguments regarding the scope of application of  
the 1985 Act and the 1951 Act, which contradict the interpretation and application of  
these Acts by the Registrar in this case and many others. If accepted, these arguments  
are likely to have a significant impact on the interpretation and application of the Act.  
[60] Given the arguments presented and the decision of the Registrar, these  
discussions require an interpretation of statutes going back to the late 19th and even the  
17  
Supra note 14.  
500-17-066945-117  
PAGE: 17  
18th century. At the time, these statutes did not aim to define the entitlement to be  
included in the Register, since this system was implemented only in 1951. Band Lists did  
exist before 1951, however, and names were entered on them.  
[61] In addition, as already noted, other connections exist between the Abenaki of  
Wôlinak community and the Appellants’ family. For example, Antonio Landry, the son of  
Joseph and Marie-Adéline, married Clothilde Metzalabanlette,18 an Abenaki woman from  
Wôlinak, in 1897. Many of the Appellants are descendants of this couple, and the fact  
that they have at least this one Abenaki ancestor in common is what allows them to  
currently be Band members, although it is not sufficient for them to claim Indian status  
under the Act.  
[62] The record also reveals actions committed by a few individuals that concerned  
several others, regarding which there is no reason to doubt the utmost good faith.  
[63] These persons, who are now deceased, signed sworn statements that their  
ancestor Antonio Landry was born of Joseph Landry’s first marriage with the Indian  
Vitaline Bernard. Given the legislative provisions then in force, according to the argument  
presented at the time, Joseph Landry could have acquired Indian status merely because  
of his marriage to an Indian. Apparently, an incomplete or false document concerning the  
birth of Antonio Landry was also submitted. It was later discovered that Antonio Landry  
was born of Joseph Landry’s second marriage with a non-Indian after Vitaline Bernard’s  
death, as noted above.  
[64] The evidence does not show who might have been involved with the forged  
document submitted, or whether any or all of the signatories of the sworn statements  
were in good or bad faith.19 According to the evidence adduced, even the two people  
most closely involved with the steps and documentary research did not know that the  
information and sworn statements about the birth of Antonio Landry were forged. The  
other Appellants were not involved with these documents in any way, according to the  
evidence in the record.20  
18  
The name Clothilde Metzalabanlette is spelled multiple ways in various documents and decisions and  
in the submissions and letters of counsel of record. The Court has made an entirely arbitrary choice to  
spell it as the Appellants did in a table submitted at the hearing. Quotations will nevertheless faithfully  
reproduce the spelling used in the documents cited.  
19  
Ray Fortin’s affidavit summarizes the nature of the statements made in the different affidavits,  
including those asserting that Antonio was born of Vitaline on the day she died but was not baptized  
until seven (7) years later and that certain documents attesting to this fact were destroyed in a fire. A  
birth certificate that does not indicate Antonio’s date of birth was also provided. However, a birth  
certificate submitted later on, in 1993, indicates that he was born the day before his baptism. It is now  
admitted that Antonio was born of Joseph’s second marriage, to a non-Indian.  
20  
This evidence was submitted at the hearing before the undersigned following the decision of  
September 4, 2013, rendered by Hardy-Lemieux J., authorizing it on the grounds that it concerned a  
breach of the rules of procedural fairness. In the view of the Court, the inappropriate and unfounded  
comment of the Registrar at the origin of this application was not a reason for his decision. Whether it  
was such as to raise a fear of bias will nevertheless be considered below.  
500-17-066945-117  
PAGE: 18  
[65] Moreover, whatever the answer to this question may be, it has no impact on the  
status of the Appellants, who admit that this information was false but submit that they  
are nevertheless entitled to be entered in the Register.  
[66] The Appellants also argue that the Registrar neglected to adequately consider all  
of their arguments because of the existence of these false or misleading documents,  
regarding which they were not heard by the Registrar and which they did not invoke in  
support of their protests or this appeal. They argue that the Registrar failed in his duty to  
act fairly in several respects.  
[67] The Registrar, for his part, believes these allegations to be without merit and  
submits that he rendered a reasonable decision in every respect and that he did not  
depart from the principles of procedural fairness in dismissing the Appellants’s protest.  
[68] Throughout the judgment, the Court will use the terms Indian” and “Sauvages.  
These are the French and English terms used in the applicable laws.  
I- THE FACTS, THE REGISTRAR’S NOTICES AND DECISIONS, AND THE  
PROCEDURE FOLLOWED  
[69] Joseph Landry, born in St-Henri de Mascouche, married Vitaline Bernard, an  
Indian member of the Abenaki of Wôlinak Band, on March 7, 1859.  
[70] They had two children, one born on March 27, 1860, and the other on May 3,  
1864.21 Joseph and his wife, as well as their children, are identified as “Sauvages” in the  
official documents of that time, including in an 1861 census of Bécancour, in which the  
Wôlinak reserve was located, as well as on their two children’s birth certificates.  
[71] It is also established that they appeared on a list of “Sauvages” who were  
recipients in the distribution of amounts sent by the government to the Abenaki of  
Bécancour in June 1863. This list was sent to the Department of Indian Affairs by the  
parish priest. The same document contained the following statement, whereby  
[TRANSLATION] “the Abenaki population of Bécancour is 60 or 80 souls because a few  
families are now absent.22  
21  
The Court does not accept the Appellants’ theory submitted in arguments at the hearing whereby a first  
child born to Joseph and Vitaline out of wedlock died in November 1855. The death certificate of a 15-  
month-old child according to the reading of the Appellants as argued at the hearing is difficult to  
read. It might also be dated 1865 and be the certificate of a child born on May 3, 1864, with a  
difference of only two months given the declared age of the deceased child. Moreover, in their protest,  
the Appellants had submitted a death certificate to the Registrar, affirming that it was indeed dated  
November 1865. In this context, it is not surprising that the Registrar did not deal with this issue.  
Nevertheless, it is one of the official documents in the file specifically describing Joseph Landry as an  
Indian.  
22  
Document attached to the letter dated April 16, 1999, from counsel for the Appellants to the Registrar  
(protest and attached documents), DDR 1551, vol. 2, tab 6.  
500-17-066945-117  
PAGE: 19  
[72] Joseph and his family were clearly considered to belong to the Abenaki Band of  
Bécancour at that time and they had received money from the government in this  
capacity.  
[73] As an aside, we note here that the Registrar, to whom this list was submitted  
along with the protest, assessed this evidence as follows, on top of the other evidence, in  
the decision under appeal:  
[TRANSLATION]  
According to the documents accompanying your letter of protest, it seems obvious  
that Joseph Landry was accepted as a member of the Abenaki of Wôlinak Band  
and recognized as an Indian, and that he availed himself of the benefits conferred  
on Band members while his wife was still alive and he lived in the community.23  
(Emphasis added by the undersigned)  
[74] Another important element is that the documents in the record in no way indicate  
the basis or foundation of Joseph’s recognition as a member of the band and as an  
Indian.  
[75] This excerpt, along with another from the final decision under appeal according to  
which Joseph subsequently [TRANSLATION] “no longer” lived on a reserve, also confirm  
the analysis whereby Joseph lived on the reserve with his family. None of the notices  
from the Registrar clearly threw into doubt that Joseph’s residence on the reserve had  
been established. Though the April 1994 draft opinion, confirmed in 1996, was vague on  
this issue, the final decision under appeal is clear. Let us return to the facts.  
[76] Vitaline Bernard died on July 2, 1867.  
[77] In August 1868, Joseph Landry remarried, this time to Marie-Adéline Hébert, a  
non-Indian. They were designated as French-Canadian in an 1871 census when they  
lived in the village of Larochelle.  
[78] Antonio Landry was born of the marriage of Joseph and Marie-Adéline, on  
February 16, 1874. In two subsequent censuses in 1881 and 1891, all the family  
members were identified as French-Canadian or French.  
[79] Antonio Landry married Clothilde Metzalabanlette, an Abenaki of Wôlinak, on  
June 15, 1897. They had several children together. They lived in St-Grégoire and Trois-  
Rivières, according to the 1901 ad 1911 censuses.  
[80] Antonio Landry died on April 13, 1939.  
23  
Letter of September 30, 2010, DDR 1551, Vol. 6, tab 13 at 5 and 6.  
500-17-066945-117  
PAGE: 20  
[81] The Landry family did not appear on the 1852 Abenaki of Wôlinak census or on  
the pay lists from 1893, 1900 and 1911. No member of the Landry family appears on the  
Band List of the Abenaki of St-François or on that of the Abenaki of Wôlinak, both of  
which are dated June 30, 1951.  
[82] After the coming into force of the 1985 Act, three of the children of Antonio Landry  
and Clothilde Metzalabanlette filed applications to be entered in the Register. All three  
obtained Indian status under s. 6(2) because their mother Clothilde was deemed to be  
admissible in the Register under ss. 6(1)(c) and 6(3)(b) of the Act. This status could not  
be passed on to their children because Antonio did not have Indian status as well.  
[83] This is what is written on the subject in a letter from the Registrar dated June 26,  
1987, explaining the reasons for his opinion:  
[TRANSLATION]  
I have in hand the excerpt from the Register of the parish of Ste-Cécile de Trois-  
Rivières of Joseph Télesphore Landry indicating that he was born on January 27,  
1919, son of Antonio Landry and Clothilde Metzalabanletz.  
I have in hand the birth and baptismal certificate of Marie Clotilde Metsalabanlette  
stating that she was born on January 1, 1879, daughter of Prose de Lima Lesné  
and Jean-Baptiste Metsalabanlette. I also have an excerpt from the Register of  
the parish of Nativité de N.D. de Bécancour indicating that Antonio Landry married  
Clotilde Metzalabanlette on June 15, 1897. I also have the excerpt from the  
Register of the parish of Nativité de N.D. de Bécancour for Joseph Antonio  
Metsalabanlet, indicating that he was born on March 14, 1884, son of Jean-  
Baptiste Metsalabanlet and Rose de Lima Lainé. I can confirm that Antonio  
Meatzalamenleth was registered at No. 8 of the Abénakis of Wolinak Band.  
From the foregoing, I am satisfied that Marie Clotilde Metsalabanlette was entitled  
to be registered as an Indian pursuant to s. 3 of the Indian Act, S.C. 1876, c. 18  
until her marriage to Antonio Landry, a non-Indian.  
Because Marie Clotilde Metsalabanlette lost her right to Indian status under s. 11  
of the Indian Act, R.S.C. 1886, c. 43 after marrying Antonio Landry, a non-Indian,  
she was entitled to be registered as an Indian under s. 6(1)(c).  
Since Joseph Télesphore Landry is a person who has a parent who is entitled to  
be entered as an Indian under s. 6(1) of the Indian Act, he is entitled to be entered  
as an Indian under 6(2) of the Indian Act. I therefore entered the name of Joseph  
Télesphore Landry in the Indian Register.  
24  
24  
Exhibit H attached to the affidavit dated August 12, 1994, of Ray Fortin, DDR Schedule, Vol. 9, tab 1.  
500-17-066945-117  
PAGE: 21  
[84] In October 1990, following receipt of additional evidence apparently showing that  
Antonio Landry was the son of Vitaline Bernard, the registration of Antonio’s three  
children was modified to grant them status under s. 6(1). Many of their descendants as  
well as several of their numerous brothers and sisters then filed applications to register.  
[85] The Registrar then explained his opinion in different letters in the record. Here are  
the relevant excerpts:  
[TRANSLATION]  
This letter is further to my letter of June 26, 1987, in which I informed you  
that you were registered under s. 6(2) of the Indian Act. According to the  
information I received about your case, I can confirm that your father [Antonio  
Landry] and your mother [Clothilde Metzalabanlette] were entitled to be registered  
as Indians under s. 6(1)(a) of the Indian Act. Therefore, you are also entitled to be  
registered under s. 6(1)(a) of the Act. I have modified your Indian file to reflect this  
change of registration category. You will remain registered under number  
0710011101 in the Indian Register under the name Marie-Blanche Antoinette  
Landry.”25  
(Bold and square bracket insertions by the undersigned.)  
I have in hand a birth certificate indicating that Antoine Landry, who was  
baptized on February 17, 1874, was the son of Joseph Landry and Marie-Adéline  
Hébert. In addition, I have a marriage certificate indicating that Joseph Landry,  
widower of Victorine Bernard, married Marie Olivine Hébert on August 24, 1868. I  
also have a birth and baptismal certificate indicating that Joseph Landry, son of  
Joseph Landry and Vitaline Bernard, was baptised on May 3, 1864. This certificate  
indicates that his father and his mother were [TRANSLATION] “...Indians of this  
parish.... What is more, I have a copy of the information from Nicolet Co.,  
Becancour Twp. indicating that Joseph Landry, his wife Vitaline Bernard, and a  
son, Joseph Landry, age 1, were recognized as Indians in that locality.  
In “The Provincial Statutes of Canada, 1850, 13 and 14 Victoria c. 42-43” the  
definitions of an Indian are found in the following paragraphs:  
V And for the purpose of determining any right of property, possession or  
occupation in or to any lands belonging or appropriated to any tribe or  
Body of Indians interested in such lands :  
First. All persons of Indian bloods, reputed to belong to the particular  
Body or Tribe of Indians interested in such lands and their descendants.  
Secondly. All persons intermarried with any such Indians and residing  
amongst them, and the descendants of all such persons.  
25  
Letter of October 1, 1990, from the Registrar to Blanche Landry, DDR individual files (1682), Vol. 21, tab  
10.  
500-17-066945-117  
PAGE: 22  
Thirdly. All persons residing among such Indians, whose parents on  
either side were or are Indians of such Body or Tribe, or entitled to be  
considered as such : And  
Fourthly: All persons adopted in infancy by any such Indians, and residing  
in the Village or upon the lands of such, or Tribe Body of Indians, and their  
descendants.  
I am satisfied that Joseph Landry, his wife and his children are entitled to be  
registered as Indians under s. 6(1)(a) of the Indian Act based on the definitions of  
Indian listed above. Therefore, Antoine a.k.a. Antonio Landry is entitled to be  
registered under s. 6(1)(a) of the Act.  
I also have a sworn statement indicating that Antoine Landry was seven years old  
when he was baptized, and his actual date of birth is July 2, 1867. Also, in the  
same affidavit, his child indicates that his actual mother was Victorine Bernard,  
Joseph Landry’s first wife, who died in childbirth.  
Finally, I have a marriage certificate indicating that Antonio Landry married  
Clothilde Metzalabanlette, the daughter of Jean-Baptiste Metzalabanlette and  
Rose de Lima Lainay on June 15, 1897. I can confirm that Clothilde  
Metzalabanlette’s brother was registered under the name Antonio  
Metzalabanlette, born on March 16, 1884, at number 8 of the Abenaki of Wôlinak  
Band until his death. In my letter dated June 26, 1987, I indicated that Clothilde  
Metzalabanlette lost her Indian status upon this marriage. But since her husband  
is entitled to be registered under s. 6(1)(a) of the Indian Act, she is entitled to be  
registered under s. 6(1)(a) of the Act, based on s. 2(h) of the Act, R.S.C. 1886, c.  
43, and not under s. 6(1)(c) of the Act.  
Joseph Charles-Edouard René Landry  
Born 1916/04/22  
No. 0710010901 in the Indian Registry  
In my letter of 1987/06/26, Ref. No. L0829 (071), I found that the aforementioned  
individual was entitled to be registered pursuant to s. 6(2) of the Indian Act. Given  
that I have found that his father is entitled to be registered under s. 6(1)(a) of the  
Act, the aforementioned individual is also entitled to be registered under s. 6(1)(a)  
of the Act, based on s. 2(f)(ii) of the Act, R.S.C. 1906, c. 81. To correct his Indian  
file, I hereby enter the following modifications in the Indian Register:  
1. I modify his category of registration from 6(2) to 6(1)(a).  
2. I modify the information about a non-Indian father to 0719999999 Landry,  
Antonio.  
3. I modify the information about the mother by striking the name Landry and  
adding the name Metzalabanlette  
500-17-066945-117  
PAGE: 23  
4. I add the comment that he married Laurette Faucher, a non-Indian, on  
1938/03/26, and that he married Josette Dumas in a second marriage on  
1979/07/03.”26  
(Bold added by the undersigned.)  
[86] The letters explaining the reasons for the Registrar’s opinion in October 1990  
refer to s. 6(1)(a) of the Act, which contains a reference to the 1951 Act because it  
concerns vested rights to register under that Act, and to the provisions applicable to  
persons deceased before 1951 or at the time of the birth of persons born before 1951  
and therefore before the creation of the Register, giving them the right to be “registered”.  
[87] It should also be noted that the Registrar referred to a definition of the notion of  
Indian in the 1850 Lands Act, not the statutes referred to in s. 11(a) of the 1951 Act (the  
1868 Lands Act as amended in 1869 and 1874). He therefore inevitably found that  
Joseph was a member of the Abenaki of Wôlinak Band under s. 6(1)(a) and s. 11(b) of  
the 1951 Act and proceeded to enter Joseph’s descendants in the Register on that basis.  
[88] These letters also establish that, at that time at least, the Registrar had no  
objection in principle to registering persons whose ancestor who was the source of  
entitlement to registration died before 1951. On the contrary, an Indian number even  
seems to have been assigned to Antonio Landry, who died in 1939.  
[89] Public servant Ray Fortin was in charge of these files at the time, having acted to  
determine whether, in the Registrar’s opinion, several members of the Landry family  
were entitled to be registered. He occupied the position of Protest Officer, however, as of  
June 1992.  
[90] Following receipt of the documents raising a doubt as to the identity of Antonio  
Landry’s mother – a doubt that later turned out to be well founded the Registrar,  
through Ray Fortin, who was now a Protest Officer re-examined the Landry family’s  
file, starting in 1993. Subsequently, several meetings took place, involving Ray Fortin  
and representatives of the Appellants, among others.  
[91] It should be noted, however, that this was a review by the Registrar of his 1990  
opinion seeking to determine whether he should form a different opinion and exercise his  
power to delete a person’s name under s. 5(2) of the Act, and not a protest under s. 14.3.  
According to what the Registrar had decided, the persons who had submitted the  
documents could not lodge a protest.  
[92] On April 5, 1994, the Registrar wrote to the Appellants, sending them a draft  
opinion stating that there had been an error and that their names should be deleted from  
the Register, but giving them sixty (60) days to provide evidence to show that her  
26  
Letter of October 1, 1990, from the Registrar to the Abenaki of Wôlinak Band, DDR individual files  
(7682), Vol. 24, tab 16.  
500-17-066945-117  
PAGE: 24  
conclusion was wrong.27 The reasons set out in the Registrar’s draft opinion are  
essentially the following:  
(a) Her predecessor’s decision finding that Joseph and Antonio Landry were both  
entitled to be registered under the 1985 Act was not well founded. He had seemed  
satisfied that Antonio Landry [TRANSLATION] “had the right to be recognized as a  
member of the Abenaki of Wôlinak Band as of his birth”, which would have entailed  
entitlement to registration under 6(1)(a) and rights for Antonio’s children.  
(b) Her predecessor had failed to take into account the 1851 Lands Act and the  
definition of Indian therein, which included only women married to Indian men and not  
men married to Indian women. He had also indicated that he believed it was highly  
unlikely that the marriage took place before 1851.  
(c) Based on the preceding, Joseph was not entitled to be considered a member of  
the Abenaki of Wôlinak Band solely due to his marriage to Vitaline Bernard in 1859.  
(d) Antonio was the son of Marie-Adéline Hébert, not Vitaline Bernard, although her  
predecessor believed the contrary to be true, and nothing in the file justified finding  
that Marie-Adéline Hébert or her parents were entitled to be registered. Antonio was  
therefore not entitled to be recognized as a band member.  
(e) To establish a person’s right to be registered, it is [TRANSLATION] “necessary to  
show that one of his or her parents is considered a member of an Indian band  
recognized by the Department of Indian and Northern Affairs Canada,28 which means  
that, in the case of Joseph Landry, [TRANSLATION] “it would need to be established  
that he was a descendant of a member of the Abenaki of Wôlinak Band.”29 This  
demonstration was not made (although certain documents appear to indicate that he  
was of Abenaki extraction, they do not state that Joseph Landry or his parents  
belonged to any particular band).  
(f) After a study that aimed to verify [TRANSLATION] “whether Joseph was recognized  
as a band member; that is, whether his name appeared on our old lists for that band,”  
his name did not appear on any of the lists found. The fact that Joseph’s name  
appeared only on the 1861 census “suggests that Joseph Landry was living among  
the Indians in Bécancour because of his marriage to Vitaline Bernard” and, the  
Registrar added, “when he married Adéline Hébert, it seemed that he left the Indian  
community in Bécancour.”  
(f) In view of the preceding, and since the Landry family name does not appear on an  
1852 census, on a list of (current or former) Abenaki of Wôlinak Band members who  
received interest payments from a land sale in 1893, 1900 and 1911, or on the  
Register, it can only be concluded that Antonio Landry was not entitled to be  
registered as an Indian and member of the Abenaki of Wôlinak Band.  
27  
Letter of April 5, 1994, from the Registrar, DDR individual files (1634), Vol. 10, tab 9.  
Ibid. at 7.  
Ibid.  
28  
29  
500-17-066945-117  
PAGE: 25  
(g) Because Antonio Landry was not entitled to be registered as an Indian and band  
member, and because Clothilde Metzalabanlette lost her Indian status by marrying  
him, their children were entitled to be registered only under s. 6(2) of the Act, not s.  
6(1).  
(h) 6(2) status cannot be passed down unless the other parent has 6(1) or 6(2) status,  
which is the not the case; as a result, Antonio’s grandchildren are no longer entitled to  
be registered.  
[93] It is once again worth noting that the Registrar’s draft opinion dated April 5, 1994,  
contains no reference to a ground whereby Joseph Landry or his descendants could not  
be registered because Joseph Landry and his son Antonio died before 1951, the year the  
Register was created.  
[94] It is also noteworthy that the status or right to be recognized as a band member of  
Joseph when Antonio was born or of Antonio himself were the important issues to be  
determined by the Registrar.  
[95] Various documents were provided, while thirty-five (35) members of the Landry  
family filed an application for judicial review with the Federal Court. The application was  
dismissed on March 22, 1996, when the Federal Court found that the Registrar’s opinion  
had no legal effect,30 unlike a decision that might be rendered after a protest, which may  
at that point be appealed.  
[96] When this action was brought before the Federal Court, the Registrar at the time  
signed an affidavit in which he described the procedure applicable to protests as follows:  
The Protest Process:  
24.  
A decision by the Registrar on someone’s registration as an Indian can be  
the subject of a protest in accordance with Section 14.2 of the Act. I cannot, as  
Registrar, undertake a formal review under Section 14.2 on my own initiative.  
25.  
Protests to decisions of the Registrar are addressed to the Registrar’s  
office and are investigated by two (2) Protest officers who report directly to the  
Registrar and who work separately from the officers on the entitlement teams.  
26.  
Protest officers research evidence from over thirty-five (35) sources.  
These include records kept in other departmental programs, e.g. Estates, and at  
national Archives. They correspond with officials of outside agencies, such as,  
Church officials and provincial Vital Statistics officers.  
27.  
Interpretation of documents and information relating to specific cases may  
be discussed between protest officers and/or with the Registrar, but never with  
30  
In his judgment, Nadon J. relied on both the judgment in Bay v. Canada, [1974] 1 F.C. 523, in  
connection with the former provisions, and on s. 14.2(7) of the Act, which provides that the decision  
rendered on a protest is final, subject only to appeal.  
500-17-066945-117  
PAGE: 26  
supervisors or officers of the entitlement. This ensures that the protest  
investigation is approached in an unbiased and objective manner.  
28.  
Over 500 protests have been filed with the Registrar since 1985. To date,  
approximately 12 % of these have resulted in a reversal of the earlier decision.31  
(Emphasis added by the undersigned.)  
[97] An appeal from the Federal Court judgment was brought on April 12, 1996. This  
appeal is considered to have been discontinued on November 13, 1998. The Federal  
Court’s decision is therefore final.  
[98] On April 17, 1996, the Registrar informed the Appellants and the Council of the  
Abenaki of Wôlinak that the opinion sent to them in draft form was now final and that  
their names and, if applicable, their children’s names were deleted from the Register. In  
an appendix to his letter, he stated that he had in his possession a marriage certificate  
showing that Joseph and Vitaline were married in 1859 and that his parents were from  
Ste-Rose de Laval, where the wedding took place, which in his view confirmed that  
Joseph was not entitled to become a band member upon his marriage to Vitaline  
Bernard.  
[99] On April 16, 1999, a protest against the April 17, 1996, opinion was filed by the  
counsel of record, who affirmed they were instructed by the descendants of Antonio  
Landry and Clothilde Metzalabanlette.  
[100] On November 9, 1999, the Appellants stated the following regarding the  
involvement of Ray Fortin for the purposes of their protest:  
First, with respect to the need for the Registrar to address the protest in an  
unbiased manner, we voiced our concern when you mentioned that the protest file  
was being handled by the very officer who had conducted the inquiry leading to  
the Landry’s being struck out from the Indian registry. We understand that you are  
now seeking ways to correct the situation and that you will inform us of any steps  
taken in that direction.32  
[101] The Registrar did not respond to this comment, and thus did not confirm that any  
measure was being taken to ensure that Ray Fortin would not be involved in the future. It  
should be noted that Ray Fortin was Protest Officer at the time, as everyone knew,  
thanks to the affidavit he filed during the action before the Federal Court and his  
involvement since the beginning of the protest.  
[102] After the letter from their counsel on November 9, 1999, the Appellants did not  
raise the issue of Ray Fortin’s involvement again, until these proceedings. At the hearing,  
31  
Affidavit of Terri Harris, December 21, 1994, DDR Schedule A, Vol. 11, tab 1 at 11-20.  
Letter of November 9, 1999, from counsel for the Appellants to the Registrar, DDR 151, vol. 3, tab 9.  
32  
500-17-066945-117  
PAGE: 27  
several documents were adduced establishing that Ray Fortin continued to be  
significantly involved in the file long after that letter.33  
[103] It was not until August 16, 2010, that the Registrar sent counsel for the Appellants  
a draft decision in English dismissing the protest, giving them 90 days to send him their  
remarks before the decision became final.  
[104] On September 30, 2010, a French version of the decision was sent, along with a  
confirmation that the 90 days would begin to run only on that date.  
[105] In a letter dated November 29, 2010, counsel for the Appellants submitted an  
application to the Registrar seeking an additional five months, until June 1, 2011, which  
could be [TRANSLATION] “extended if necessary, upon application” presented in a timely  
manner.  
[106] The grounds raised in support of this application are varied. They included the  
impossibility of counsel meeting with their clients until very recently given their number,  
as well as the fact that the French version was made available only on September 30,  
when the clients gave their consent to additional historical research in light of the  
preliminary decision. Counsel noted that the Appellants had only about 30 days to do this  
research. The fact that issues were complex, as the Registrar had acknowledged in an  
earlier correspondence, was also raised.  
[107] In a letter dated December 15, 2010, the Registrar rejected this application  
because, in his view, the Appellants had already benefited from a 44-day extension since  
the draft decision had already been received in English.  
[108] An answer was sent within the requisite time period by way of two letters from the  
counsel of record dated December 20 and 21, 2010, along with some additional  
documents.  
[109] The letter dated December 20 emphasized the unfairness of refusing to grant an  
additional delay in the circumstances and the failure to consider the reasons invoked to  
obtain it. The letter ended with a request for the Registrar to reconsider his decision to  
refuse to extend the delay.  
[110] The letter dated December 21 sent documents [TRANSLATION] “tending to show”  
Joseph’s Indian background, which were gathered during [TRANSLATION] “early-stage”  
research and which were [TRANSLATION] “not always legible”. The letter indicated that it  
would be [TRANSLATION] “another avenue that we will exploit if you grant us the delay we  
have requested.”  
[111] Gaétan Landry also sent the Registrar other documents by way of a letter dated  
December 26, 2010.  
33  
There has been no objection to this evidence by the AGC, and the Court allowed it since it was aimed  
at demonstrating a breach of the principles of procedural fairness.  
500-17-066945-117  
PAGE: 28  
[112] The final decision was rendered in a letter sent on January 28, 2011.34 The letter  
refers to the correctness of the interpretations set out in the draft decision dated  
September 30, 2010, while also stating that the Registrar did not accept the arguments  
submitted on December 21, 2010. The reasons for the decision are essentially the  
following:  
(a) The additional documents submitted do not establish that Joseph Landry is a  
descendant of an Indian and that his paternal great-grandmother was a Saulteaux  
Indian.  
(b) In addition, whether or not Joseph Landry lost his status, his son Antonio is not  
entitled to be registered because he does not meet the criteria under the 1868 and  
1874 acts.  
(c) The Registrar agrees that the 1857 Act respecting Civilization extended  
protection, which had been more limited under the 1850 Act to Protect Indians and  
their Lands from trespass, to persons married to Indians recognized as band  
members and living on Indian land, though the definition was amended in 1868.  
(d) The Registrar agrees with the conclusion whereby the definition of the term Indian  
in the 1859 Act respecting civilization applies to Joseph Landry. He added the  
following, however: [TRANSLATION] “Any reasonable interpretation of a person who  
is or is not considered an ‘Indian’ for the purposes of this Act must take his or her  
specific circumstances into account. Section 1 of c. 9, C.S.C. 1859 required that  
non-Indians meet several conditions to be considered Indiansand a member of  
an Indian band. According to the wording of this Act, it appears that any change of  
such conditions could remove a person from the application of the definition ....”35  
(e) [TRANSLATION] Therefore, as long as Joseph Landry was (1) married to Vitaline  
Bernard, (2) reputed to be a member of the Abenaki of Wôlinak Band, and (3)  
living on land reserved for the Abenaki of Wôlinak Band, he was a member of his  
wife’s band and could receive all the benefits granted the other members.  
According to the documents accompanying your letter of protest, it seems obvious  
that Joseph Landry was accepted as a member of the Abenaki of Wôlinak Band  
and recognized as an Indian, and that he availed himself of the benefits conferred  
on the band members while his wife was still alive and he lived in the  
community.36  
(Bold added by the undersigned.)  
(f) [TRANSLATION] However, the situation changed when Joseph Landry ceased  
fulfilling one of the three criteria allowing a non-Indian man married to an Indian  
woman to live on Indian land without licence: at that point he no longer met the  
definition of the term Indian, i.e., he was no longer a member of the tribe, band or  
body of Indians to which his wife belonged. After the death of Vitaline Bernard,  
Joseph Landry married Marie-Adéline Hébert (for whom no Indian background or  
34  
Letter of January 28, 2011, from the Registrar, DDR 1551, vol. 7, tab 1.  
Letter of September 30, 2010, from the Registrar, DDR 1551, vol. 6, tab 13.  
Ibid. at 5-6, bold added by the undersigned.  
35  
36  
500-17-066945-117  
PAGE: 29  
membership in a band has been established) and he left the Indian community.  
With no longer any links by marriage to the Abenaki of Wôlinak Band, and no  
longer living on lands reserved for the Band, he could no longer avail himself of  
the provisions of c. 9 of the C.S.C. 1859 to justify his membership in the Band.  
Because it was impossible to prove that he was related to the Band by blood, he  
was not a person described as an “Indian” within the meaning of section 11 of the  
Act respecting Indians and Indian Lands, C.S.L.C. 1861, c. 14.37  
(Bold added by the undersigned.)  
(g) [TRANSLATION] “Conclusion: after the death of Vitaline Bernard, Joseph Landry  
married a non-Indian and left the Indian community to which his late spouse had  
belonged. Therefore, Joseph Landry was no longer a member of the Abenaki of  
Wôlinak Band.38  
(h) Joseph Landry was not an Indian within the meaning of the 1868 Lands Act as  
amended in 1869 when his son Antonio Landry was born in 1874, and he did not  
benefit from any rights acquired under ss. 33 and 42 of that Act.  
(i) Antonio Landry was not a member of an Indian band at birth or at any other time  
in his life, and the arguments assuming that Joseph was a member of such a band  
are moot, given the above conclusion.  
(j) Antonio Landry’s wife, Clothilde Metzalabanlette, was a member of the Abenaki of  
Wôlinak Band, as were her parents. Because she lost her right to be registered  
when she married Antonio, she is deemed eligible for registration under s. 6(1)(c)  
of the Act, their children are deemed entitled to be registered under 6(2), and their  
grandchildren are deemed not to be entitled because only one of their parents  
were.  
[113] Again, there is nothing in the Registrar’s decision dated January 28, 2011, stating  
that Joseph and Antonio were not entitled to be registered because they were not band  
members when the 1951 Act was enacted or that their descendants were not entitled to  
be registered for the same reason.  
[114] Moreover, the Registrar’s letter dated January 28, 2011, contains the following  
passage:  
[TRANSLATION]  
To begin, I would like to point out that, even though the Federal Court found that  
the registration of the Landry family was based on forged documents, I have given  
your client the benefit of the doubt, taken his objection into consideration, and  
carried out an investigation.”39  
37  
Ibid. at 6-7, bold added by the undersigned.  
Ibid. at 7.  
DDR 1551, vol. 7, tab 1.  
38  
39  
500-17-066945-117  
PAGE: 30  
[115] However, although the Federal Court did refer to evidence on this issue, the  
decision invoked here drew no conclusion on this subject, dismissing the action on purely  
legal grounds.  
[116] At the hearing, counsel for the AGC acknowledged that this comment was  
unfounded and unfortunate.  
[117] Moreover, the evidence submitted to the undersigned at the hearing on this matter  
is described above, and it rules out the participation of the Appellants in any fraud or  
forgery whatsoever. The Appellants maintain that this remark contributes to an  
appearance of lack of impartiality towards them on the part of the Registrar.  
II -  
ANALYSIS  
[118] The Appellants invoke ss. 11(a), (b), (c), and 11(d)(ii) of the 1951 Act, and s. 6 of  
the 1985 Act as conferring on them entitlement to be registered in the Register. In their  
view, the Registrar committed several reviewable errors in the interpretation and  
application of the provisions at issue and the 19th century laws to which they refer  
implicitly or explicitly, by imposing on them too onerous a burden of proof and by failing  
to recognize rights acquired under various provisions.  
[119] The decisions at issue here have considerable impact on the persons concerned  
because of the undeniable connection they have with the identity of these persons and  
the consequences they have on their rights under the Act. The decisions also have  
repercussions on the rights of the descendants of the persons concerned. The process  
followed to make such decisions must comply with the rules of procedural fairness.  
[120] In addition to their challenge on the merits, the Appellants submit that the  
Registrar rendered his decision without complying with the rules of procedural fairness.  
[121] Where the principles of procedural fairness are breached, any decision rendered  
in violation of these principles must be vacated. As the Court of Appeal noted in MPI  
Moulin à Papier de Portneuf inc. c. Sylvestre,40 given the [TRANSLATION] “distinct and  
absolute” nature of the right, it is not appropriate to speculate as to the decision that  
might have been made absent an infringement of procedural fairness, since the negation  
of the right must always render the decision invalid:  
[TRANSLATION]  
[103] As Lamer C.J. noted in Université du Québec à Trois-Rivières v.  
Larocque, it is not appropriate to speculate on the decision the CLP might have  
made were it not for the infringement of procedural fairness:  
Secondly, and more fundamentally, the rules of natural justice have enshrined certain  
guarantees regarding procedure, and it is the denial of those procedural guarantees which  
justifies the courts in intervening. The application of these rules should thus not depend  
40  
J.E. 2013-960 (C.A.) at paras. 68 to 70, 91 to 93, and 103.  
500-17-066945-117  
PAGE: 31  
on speculation as to what the decision on the merits would have been had the rights of the  
parties not been denied. I concur in this regard with the view of Le Dain J., who stated  
in Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, at  
p. 661:  
the denial of a right to a fair hearing must always render a decision invalid,  
whether or not it may appear to a reviewing court that the hearing would likely  
have resulted in a different decision. The right to a fair hearing must be regarded  
as an independent, unqualified right which finds its essential justification in the  
sense of procedural justice which any person affected by an administrative  
decision is entitled to have.  
[122] The AGC acknowledges that the Registrar had to act fairly but disputes the scope  
that the Appellants give to this duty and submits that the Registrar rendered his decision  
without breaching it. It also argues that, with respect to the arguments on the merits, the  
Registrar’s decision was reasonable and is based on the evidence that was before him.  
[123] First, a discussion of the standard of review the Court must apply in appeal is in  
order. Moreover, given the sanction attached to the grounds based on procedural  
fairness, it seems appropriate to dispose of this issue before addressing the grounds  
raised on the merits.  
[124] To decide the outcome of the Appellants’ action, the Court must decide the  
following issues:  
1.  
2.  
What are the applicable standards of review in an appeal under s. 14.3 of the Act?  
Was there a breach of the Registrar’s duty of procedural fairness and if so, what is  
the appropriate remedy?  
3.  
Did the Registrar commit an error reviewable in appeal and if so, what is the  
appropriate remedy?  
1. WHAT ARE THE APPLICABLE STANDARDS OF REVIEW IN AN APPEAL  
UNDER S. 14.3 OF THE ACT?  
1.1  
The jurisdiction of the Registrar and the right of appeal  
[125] The provisions outlining the Registrar’s jurisdiction and setting out the right of  
appeal from an unfavourable decision further to a protest are in ss. 2, 5, and 14.1 to 14.3  
of the Act, which are reproduced in a schedule to this judgment.  
[126] Section 2 of the Act defines the Registrar as “the officer in the Department who is  
in charge of the Indian Register and the Band Lists maintained in the Department”, while  
s. 2 of the 1951 Act stated that the term meant “the officer of the Department who is in  
charge of the Register”. The Registrar is not an administrative tribunal, but an officer of  
the state.  
500-17-066945-117  
PAGE: 32  
[127] Section 5(3) of the Act provides that the Registrar may add or delete the name of  
any person who, in accordance with the Act, is entitled or not entitled, as the case may  
be, to have his or her name included in the Indian Register. Section 5(5) specifies that  
the name of a person who is entitled to be registered is not required to be entered in the  
Register unless an application for registration is made to the Registrar.  
[128] According to s. 14.1, on inquiry from any person who believes that he or she or  
any person he or she represents is entitled to have his or her name included in the  
Register, the Registrar indicates to the person making the inquiry whether or not that  
name is included therein.  
[129] Section 14.2(1) provides that a protest may be made by notice in writing to the  
Registrar, containing a brief statement of the grounds therefor. Such a protest must be  
made within three years after the inclusion or addition, or the omission or deletion.  
[130] Under ss. 14.2(2) and (3), when it concerns the Register, as opposed to a Band  
List, a protest may be made by the person in respect of whose name the protest is made  
or that person’s representative.  
[131] Section 14.2(4) states that the onus of establishing the grounds of a protest lies  
on the person making the protest, yet subsection (5) specifies that the Registrar “shall  
cause an investigation to be made into the matter” and render a decision. Section 14.2(6)  
states that the Registrar may receive any evidence “on oath, on affidavit or in any other  
manner” as the Registrar sees fit or deems just, whether or not this evidence is  
admissible in a court of law. Finally, s. 14.2(7) provides that the Registrar’s decision on a  
protest is “final and conclusive”41 or “définitif et sans appelsubject to an appeal under s.  
14.3.  
[132] The Court notes here that the final and conclusive nature of the Registrar’s  
decision on a protest is subject only to the right of appeal under s. 14.3, and not the  
Registrar’s power to add or delete a person’s name under s. 5(3) of the Act.  
[133] The decision of the Registrar that the Appellants seek to vacate does not give rise  
to judicial or quasi-judicial proceedings.  
[134] Before the Registrar, there is no lis inter parties. It is above all an investigation  
that must be based on research by the Registrar as well as by the person who makes the  
protest.42 After this duty of inquiry is exercised and the results analyzed in connection  
with the applicable provisions and the evidence and arguments raised, the Registrar  
exercises a jurisdictional duty that entails significant consequences for the persons  
41  
This is the wording in the codification of the Act as currently in force. In the 1985 Act, while the English  
version was the same, the French version mysteriously, since s. 14.2 was not amended read  
finale et péremptoire. This does not, however, have any impact on the analysis.  
The case law refers to the Registrar’s inquiry in the form of both research and hearings of witnesses  
42  
when deemed necessary. For an example of a situation in which a hearing was necessary, see Innu  
Takuaikan Uashat mak Mani-Utenam c. Noël, [2004] R.J.Q. 2013-960 (C.A.) at paras. 55.  
500-17-066945-117  
PAGE: 33  
concerned since the Registrar makes a final decision on whether they are entitled to be  
registered, subject to appeal under s. 14.3 only.  
[135] Section 14.3(1) provides that this right of appeal must be exercised within six  
months of the Registrar’s decision on a protest. Section 14.3(3) provides that any  
documentary evidence considered in arriving at the decision must be filed as well as “any  
recording or transcript of any oral proceedings related thereto that were held before the  
Registrar.” The protest files of each of the Appellants were filed, as required under this  
provision. Because there was no hearing, they contain no recordings or transcripts.  
[136] Section 14.3(4) reads as follows:  
(4) The court may, after hearing an appeal under this section,  
(a)  
(b)  
affirm, vary or reverse the decision of the Registrar; or  
refer the subject-matter of the appeal back to the Registrar for  
reconsideration or further investigation.  
[137] Section 14.3(5) provides, inter alia, that these appeals are heard before the  
Superior Court in Quebec. These are appeals based on the written record and not  
appeals de novo.  
1.2  
Administrative law standards of review apply  
[138] The mission conferred on the Registrar of determining whether a person is  
entitled to be registered because he or she is Indian within the meaning of the Act is a  
specialized one. Carrying out this mission requires calling on a background of technical  
knowledge in research and analysis of facts, some of which are historical and require an  
in-depth knowledge of the interpretation and application of the different laws that have  
governed Indians during the various relevant periods.  
[139] The Registrar considers the issue of entitlement to be included in the Register in a  
distinctive legislative context that he or she must frequently apply to facts; the Registrar  
should therefore be recognized as having “a measure of relative institutional expertise”.43  
[140] The standards of review to be applied in an appeal from a decision rendered by a  
specialized body before a generalized court or a court of original general jurisdiction such  
as the Superior Court fall under administrative law in matters of judicial review, and not  
procedural law.44  
43  
Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 29.  
Mouvement laïque québecois v. Saguenay (City), [2015] 2 S.C.R. 3 at paras. 31 to 44, Mattel Inc. v.  
44  
3894207 Canada Inc., [2006] 1 S.C.R. 772 at para. 40. Law Society of New Brunswick v. Ryan, [2003]  
1 S.C.R. 247 at para. 21, and Dr. Q. v. College of Physicians and Surgeons, supra note 43 at paras.  
20 and 21. See also to the same effect but a contrario a nuanced analysis of these authorities and  
several others in Parizeau c. Barreau du Québec, [2011] R.J.Q. 1506 at paras. 58 to 78 (leave to  
appeal to S.C.C. refused).  
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[141] Similarly, the Supreme Court teaches that the analytical framework applicable to  
administrative tribunals applies to administrative decision-makers to whom legal powers  
have been delegated under the Act, at least when they exercise adjudicative as opposed  
to legislative functions.45  
[142] Both parties in fact made this argument, though they took opposing positions as to  
the standard of review applicable to the questions of law and questions of mixed fact and  
law raised in this appeal.  
1.3  
The standards of review applicable to the Registrar’s decision  
[143] It is common ground that an administrative decision-maker’s compliance with the  
rules of natural justice or procedural fairness is an issue that must be considered on its  
merits, without judicial deference, at least when the interpretation of the legislative  
provisions falling within the decision-maker’s expertise is not at issue, and in accordance  
with the current state of the law.46 Nevertheless, it must be demonstrated that such an  
issue is actually in question for there to be an intervention on the basis of this standard.  
[144] It is also established that there should be no intervention with respect to questions  
of fact save in the presence of unreasonable error, something that counsel for both  
parties have recognized.  
[145] The Supreme Court summarized this standard in the very recent judgment in  
Canada (Attorney General) v. Igloo Vikski Inc.,47 referring to the relevant case law:  
Reasonableness review is concerned with the reasonableness of the substantive  
outcome of the decision, and with the process of articulating that outcome. The  
reasoning must exhibit “justification, transparency and intelligibility within the  
decision-making process”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1  
S.C.R. 190, at para. 47. The substantive outcome and the reasons, considered  
together, must serve the purpose of showing whether the result falls within a  
range of possible outcomes: Newfoundland and Labrador Nurses’ Union v.  
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.  
708, at para. 14. While the adequacy of a tribunal’s reasons is not on its own a  
discrete basis for judicial review, the reasons should “adequately explain the  
bases of [the] decision”: Newfoundland Nurses, at para. 18, quoting from Canada  
Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56 (), [2011] 2  
F.C.R. 221, at para. 163 (per Evans J.A., dissenting), rev’d 2011 SCC 57, [2011]  
3 S.C.R. 572.  
45  
Canadian National Railway Co. v. Canada (Attorney General), [2014] 2 S.C.R. 135 at paras. 51 to 54.  
Mission Institution v. Khela, [2014] 1 S.C.R. 502, Université du Québec à Trois-Rivières v. Larocque,  
46  
[1993] 1 S.C.R. 471, MPI Moulin à Papier de Portneuf inc. c. Sylvestre, J.E. 2013-960 (C.A.) at paras.  
68 to 70, Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paras. 74 and  
75, Canada (Citizenship and Immigration) v. Khosa [2009] 1 S.C.R. 339 at para. 43, Ménard c.  
Gardner, J.E. 2012-1772 (C.A.) at para. 55, Syndicat des travailleuses et travailleurs de ADF-CSN c.  
Syndicat des employés de Au Dragon forgé inc., J.E. 2013-917 (C.A.) at paras. 45 to 47.  
47  
2016 SCC 38 at paras. 17 and 18.  
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PAGE: 35  
[146] The Appellants submit, however, that the standard of correctness is applicable to  
questions of mixed fact and law as well as to questions of law, while the AGC argues that  
the standard of unreasonableness is also applicable to all of these questions.  
[147] The Registrar’s mission, which consists in determining entitlement to be entered  
in the Register, has been accurately characterized by the courts on several occasions as  
a specialized mission, although the standard of review of correctness might have been  
applied to questions of law and to the application of the law to the facts, as the case law  
on this issue is split or ambivalent.48  
[148] Several of the judgments applying this standard refer to judgments rendered in  
the late 1990s or the early 2000s as establishing the applicable standard, and some of  
these judgments refer to standards of review applicable to procedural law appeals.  
Others did not deal with the applicable standard or explicitly refused to decide this issue,  
affirming that the result would be the same regardless of the standard applied.  
[149] The law has evolved significantly over the last decade in terms of the analytical  
framework for judicial review and the right to appeal decisions of administrative bodies. It  
is not appropriate to determine the applicable standard by simply referring to judgments  
48  
Sparrow v. Canada (Department of Indian and Northern Affairs, Registrar), [1987] B.C.J. No. 1321 at  
3, Tuplin v. Registrar (Indian and Northern Affairs Canada), [1998] P.E.I.J. No. 81 at paras. 17 and 22  
(it should be noted that it was decided in that case that the appeal was an appeal de novo and that  
fresh evidence could be adduced it is important to point out that s. 9 of the 1951 Act, formerly  
applicable, was in line with this decision, as it provided for a hearing to be held in the context of a  
review of the fairness of a decision and allowed the judge to rule on the entitlement to be registered,  
Wilson v. Canada (Indian Registry, Registrar), 1999 5333 (B.C.S.C.) at para. 22, Tuplin v.  
Canada (Indian and Northern Affairs), [2001] P.E.I.J. No. 113 at paras. 16 and 20, Innu Takuaikan  
Uashat mak Mani-Utenam v. Noël, supra note 42, a 2004 judgment in which the Court of Appeal of  
Quebec was not asked to determine the applicable standard of review to rule on the appeal, Samson  
Cree Nation v. Canada (Registrar of Indian and Northern Affairs), [2005] 255 D.L.R. (4th) 723, Buffalo  
v. Canada (Registrar of Indian and Northern Affairs), 2005 ABQB 372 at para. 26, Etches v. Canada,  
[2008] 2 C.N.L.R. 35 (Ont. S.C.) at para. 58, LeBouthillier v. Canada (Attorney General), 2010 NBQB  
401 and Lecaine v. Canada (Indian and Northern Affairs, Registrar), 2013 SKQB 253. In a judgment  
rendered that same day, however, the judge found that deference was called for in respect of the  
Registrar’s decision when the Registrar decided whether a person was Indian within the meaning of  
the Act, which is a question of mixed fact law and fact: Lecaine v. Canada (Indian and Northern Affairs,  
Registrar), 2013 SKQB 254 at para. 14. The Court of Appeal of Saskatchewan sitting in appeal from  
these two judgments found that it was not necessary to determine the applicable standard because the  
decision would be the same no matter the standard: Lecaine v. Canada (Registrar of Indian and  
Northern Affairs), 2015 SKCA 43 at para. 26 and Lecaine v. Canada (Registrar of Indian and Northern  
Affairs), 2015 SKCA 42 at para. 23. See also Johnson v. Canada (Aboriginal Affairs and Northern  
Development), 2014 BCSC 352, in which the judge related the respective positions of the parties that  
are consistent with a review on the standard of reasonableness or the criterion generally used in  
procedural law matters of palpable error when the decision concerns the determination of Indian  
status, but does not explicitly take a position on this subject, and Marchand v. Canada (Ministry of  
Indian and Northern Affairs Registrar), 2000 BCCA 642, a judgment in which the applicable standard of  
review is in no way discussed but that seems to decide the pure question of law at issue on the basis  
of correctness in law with no deference in particular.  
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PAGE: 36  
rendered before this evolution took place, or even to more recent decisions that refer to  
those judgments.  
[150] It must be recognized that the case law, which is unclear or contradictory, does  
not conclusively establish the standard of review with regard to the questions of mixed  
fact and law and questions of law raised in this appeal.  
[151] The Appellants maintain that the Registrar erred in law in his interpretation of the  
statutes applicable in the late nineteenth century, which cannot be dissociated from  
questions of fact related to the determination of a band member’s status. They also  
argue that he committed errors of mixed fact and law with respect to this last issue.  
[152] The Registrar, for his part, submits that the decision is reasonable because he  
had to adopt an interpretation that restricted the application of the 1951 Act to individuals  
who were alive after it came into force, which is a pure question of law and which, as  
noted above, is in no way referred to in the reasons for his decision. Moreover, these  
reasons and the opinions that preceded it are inconsistent with this interpretation. The  
Registrar did not indicate which standard of review would apply to this interpretation,  
which was presented as his current interpretation. We will come back to this.  
[153] Given what was argued by the parties with regard to the applicable standards,  
and also given the presumption established by the Supreme Court whereby the  
interpretation by a specialized administrative decision-maker of its home or closely-  
connected statutes requires deference,49 it must be determined whether the category of  
question at issue or a contextual analysis would rebut that presumption.50  
[154] The contextual analysis concerns the application of several factors, including “(1)  
the presence or absence of a privative clause; (2) the purpose of the tribunal as  
determined by interpretation of enabling legislation; (3) the nature of the question at  
issue, and; (4) the expertise of the tribunal.”51 Some of these factors may be decisive,  
though they need not all be taken into account.  
[155] The Act itself, as well as its prior versions and particularly all of the late-nineteenth  
century statutes relating to Indians, belong to the category of statutes closely related to  
the Registrar’s mandate. The historical context of their enactment since the creation of  
the Register in 1951 also falls within the Registrar’s expertise. Starting in 1985, this  
expertise was given greater recognition by Parliament as apparent through a comparison  
of the wording of the appeal regime in s. 14.3 of the 1985 Act with that of the review  
proceedings that had been set out in s. 9 of the 1951 Act.  
49  
Alberta (Information and Privacy Commissionner) v. Alberta Teachers' Association, [2011] 3 S.C.R.  
654 at paras. 34 to 39.  
50  
McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895 at paras. 21 and 22.  
Dunsmuir v. New-Brunswick, [2008] 1 S.C.R. 190 at para. 64.  
51  
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PAGE: 37  
[156] The statutes that the Registrar must apply for the purpose of carrying out his  
mission, including the Act as currently in force, are technical and complex in many  
respects.  
[157] Moreover, the very purpose of the Registrar’s existence is precisely to be in  
charge of the Register and to add or delete names from it according to his opinion  
regarding the right to be registered. His mission also includes carrying out a investigation  
in the event of a protest against the inclusion, addition, omission or deletion of a name on  
the Register and rendering a final decision on the right to be registered, subject only to  
the right of appeal as conferred by the Act.  
[158] The Registrar’s mission is specific and specialized, and is performed as part of a  
“discrete and special administrative regime”52 that provides for a right of appeal, of which  
the Appellants have availed themselves.  
[159] The lack of a complete or perfect privative clause is not decisive in this context,  
just as it was not in Canadian National Railway Co. v. Canada (Attorney General),53  
where the Supreme Court decided that deference was required towards the Governor in  
Council’s interpretation of a statute closely related to its duty to review economic  
regulations.  
[160] In Canada (Attorney General) v. Igloo Vikski Inc.,54 the Supreme Court noted that  
specialized decision-makers are often better equipped than reviewing courts to answer  
technical questions of law, and found that the standard of review applicable to such  
issues when decided by the Canadian International Trade Tribunal was that of  
reasonableness:  
[17] I agree that reasonableness is the applicable standard of review here. As  
the Federal Court of Appeal has noted, the CITT has specific expertise in  
interpreting “the very complex customs tariff and the international and national  
rules for its interpretation”: Star Choice Television Network Inc. v. Canada  
(Customs and Revenue Agency), 2004 FCA 153, at para. 7 (). The  
questions of law at issue in this appeal are of “a very technical nature” which the  
CITT will often be better equipped than a reviewing court to answer: Minister of  
National Revenue (Customs and Excise) v. Schrader Automotive Inc. (1999), 240  
N.R. 381 (F.C.A.), at para. 5.  
[161] The Appellants invoke the judgment of the Court of Appeal of Alberta in Edmonton  
East (Capilano) Shopping Centers Limited v. Edmonton (City).55 That case can be  
distinguished from this one in several respects. It concerned a right of appeal with leave  
on questions of law or jurisdiction only. The right of appeal concerned judgments from  
52  
Ibid. at para. 55.  
53  
Supra note 45. The Federal Court of Appeal’s judgment in David Suzuki Foundation v. Canada, [2013]  
4 F.C.R. 155 (F.C.A.) invoked by the Appellants cannot be applied unreservedly here in light of this  
later judgment of the Supreme Court.  
Supra note 47 at para. 17.  
54  
55  
2015 ABCA 85.  
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PAGE: 38  
multiple tribunals, more specifically an “assessment review board” from each of the  
province’s municipalities. The Court’s remarks regarding the relative expertise of these  
decision-makers in comparison with that of the courts in the interpretation of statutes  
should be considered in this context. We should also consider the excerpt cited above  
from the Supreme Court of Canada’s decision in Canada (Attorney General) v. Igloo  
Vikski Inc.56  
[162] Moreover, at the time of rendering the present judgment, the judgment of the  
Court of Appeal of Alberta has since been overturned by the Supreme Court, which  
stated that the applicable standard of review was that of reasonableness.57  
[163] In this case, the Registrar, the sole decision-maker in all of Canada for the  
questions that come before him, is better equipped than the Court to rule on the technical  
issues related to the interpretation of the Act.  
[164] Moreover, the right of appeal from the Registrar’s decision on the merits of a  
protest is general and as of right. There is no reference in the language setting out this  
right of appeal that is similar to that considered in Tervita Corp. v. Canada  
(Commissioner of Competition)58 which indicated that the Registrar’s decision should be  
dealt with as though it was the decision of a court of justice as opposed to a specialized  
administrative decision-maker, whatever the nature of the issue under appeal.  
[165] The specific nature of the questions of law at issue do not require the application  
of the standard of correctness:  
(a) No true question of jurisdiction within the narrow meaning this notion must now  
be given59 and no question in a specific category that might call for the  
application of the standard of correctness other than questions concerning  
compliance with procedural fairness was raised in this case. Thus, no  
question concerning the constitution or the division of powers between  
Parliament and the provinces is at issue here. There is also no question  
concerning the division of respective jurisdictions between two specialized  
tribunals.  
(b) According to the recent judgment of the Supreme Court in Commission  
scolaire de Laval v. Syndicat de l’enseignement de la région de Laval60  
(CSL”), while the legal principles according to which a specialized decision-  
maker is alleged to have made a reviewable error are important, the issue as  
to whether these rules and principles apply when they are well known and not  
56  
Supra note 47.  
57  
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at paras. 27 to 31.  
[2015] 1 S.C.R. 161 at paras. 34 to 40.  
Alberta (Information and Privacy Commissioner) v. Alberta Teacher’s Association, supra note 49 at  
58  
59  
para. 39.  
2016 SCC 8.  
60  
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PAGE: 39  
controversial does not necessarily mean that the presumption is automatically  
rebutted.  
(c) According to the majority decision of the Supreme Court in CSL, where the  
coherence of the fundamental legal order of the country is not at issue, the  
presumption in favour of the standard of review of reasonableness is not  
rebutted. Thus, for example, the issue as to whether the Appellants’ ancestors  
had acquired rights to band member status or Indian status under the laws in  
force in the late nineteenth century does not call for the application of the  
standard of correctness solely because the notion of vested rights is at issue.  
(d) A party can demonstrate that the presumption is not in play, for example,  
where the scope of the applicable legal principles and the critical importance  
for the entire legal system are at issue, or where the question has significant  
repercussions on other legislative regimes and they do not fall within the  
specific expertise of the first decision-maker.61  
(e) Although the issues raised in this case are undoubtedly important for the  
Appellants and perhaps even to all of the individuals seeking recognition of  
their Indian status within the meaning of the Act, it was not argued that they  
would have an impact on the entire legal system or on any other legislative  
regimes.  
(f) Similarly, when the matter concerns a general law whose application also falls  
to the courts of justice and the issues are likely to be considered both by a  
generalist court in first instance and an administrative decision-maker, the  
presumption is rebutted.62 That is not the case here, or at least not now, as it  
involves among other things the interpretation of statutes that no longer  
directly apply today, and the courts of law play the role of appellate court  
regarding those that still apply to the right to be registered of the descendants  
of people to whom those laws once applied.  
[166] In the current state of the law, only a tiny part of the questions of law that come  
before specialized decision-makers can be reviewed without showing deference or  
according to the standard of correctness, and it is up to the party arguing that it applies to  
demonstrate that a question requires the application of the least restrictive standard.  
[167] In the very recent judgment of the Supreme Court in Wilson v. Atomic Energy of  
Canada Ltd.,63 McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ. chose not to  
61  
See Mouvement laïque québécois v. Saguenay (City), [2015] 2 S.C.R. 3 at para. 51, concerning the  
State’s duty of neutrality flowing from freedom of conscience and of religion, and Alberta (Information  
and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at paras. 19 to 26, concerning the  
determination of the conditions in which statutory language is sufficient to authorize an administrative  
tribunal to violate solicitor-client privilege.  
62  
Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada,  
[2012] 2 S.C.R. 283 at para. 15.  
2016 SCC 29.  
63  
500-17-066945-117  
PAGE: 40  
agree for the time being with the proposed reform of the analytical framework for the  
standards of review that Abella J. set out in obiter, and Cromwell J. specifically stated  
that he disagreed with her suggested approach. Moldaver, Côté and Brown JJ.,  
dissenting, would have applied the standard of correctness in the presence of a  
persistent disagreement among administrative decision-makers. They stated that they  
had reservations regarding Abella J.’s approach and postponed the discussion of this  
subject until later since the outcome of the appeal could be resolved otherwise.  
[168] For the moment, then, the state of the law with regard to the general framework  
for standards of review remains unchanged since Dunsmuir. The only observable  
development since that judgment, which is not favourable to the Appellants, is that it is  
increasingly difficult to demonstrate that deference is not required on questions of law.  
[169] The Appellants have not shown that the presumption is rebutted with regard to the  
questions of law they raise, but that does not mean that there is no justification for  
intervening according to the standard of review of reasonableness.  
[170] A fortiori, the preceding analysis entails the application of the standard of  
reasonableness to questions of mixed law and fact.  
1.4  
The exercise of the administrative law power of review over questions of law  
relating to the interpretation of statutes that the specialized decision-maker is  
mandated to apply: the challenge of reconciling deference with respect for the rule  
of law, both in general and in the specific context of this case  
[171] Acknowledging the expertise of administrative decision-makers in the  
determination of the applicable standard of review does not mean that the courts of law  
themselves have no expertise in statutory interpretation. Applying their own expertise,  
they can certainly identify reviewable errors of law, that is, those that fall outside the  
possible outcomes in light of the law, since the law it goes nearly without saying though  
it might sometimes be forgotten includes the principles of statutory interpretation. This  
is the standard of review to which the Court must limit its consideration of the questions  
of law raised in this case.  
[172] When the legal principles the specialized decision-maker must apply in deciding a  
pure question of law are clear and uncontroversial, the actual exercise to determine  
whether the decision is lawfully based on these principles and whether it can be  
considered possible and therefore reasonable is, in the end, nearly the same as the  
analysis based on the standard of correctness.  
[173] Nevertheless, this exercise must be performed, on pain of rendering entirely  
inoperative the reviewing power of the superior courtsor, as in this case, the appellate  
courts, which is fundamental to ensuring the maintenance of the rule of law.  
[174] The principle of judicial deference must not become a licence allowing  
administrative decision-makers to adopt any interpretation at all or approximate  
interpretations of the applicable laws under the guise of their specialization.  
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PAGE: 41  
[175] In Canada (Canadian Human Rights Commission) v. Canada (Attorney  
General),64 the Supreme Court, per LeBel and Cromwell JJ., decided that a “careful  
examination”65 of the text of the provisions interpreted by the specialized tribunal as well  
as their context and purpose led to the conclusion that the tribunal’s interpretation was  
unreasonable. The law in question was one within the tribunal’s mandate to interpret.  
[176] In particular, the Court found that the decision-maker’s interpretation violated the  
principle of interpretation whereby the legislature is presumed to avoid superfluous or  
meaningless words (presumption against tautology).66  
[177] The Court also found that the legislative history and the decision-maker’s  
consistent understanding of this issue had been neglected.67  
[178] All these elements led to the conclusion that the specialized decision-maker’s  
interpretation did not fall within the range of reasonable outcomes.68  
[179] Thus, when the interpretation applied flouts the principles of statutory  
interpretation, it is appropriate to intervene. For example, an interpretation that finds no  
basis in law because the meaning it assigns to a provision is inconsistent with the  
purpose of the statute at issue when another, consistent interpretation exists is a  
reviewable error because it is unreasonable.  
[180] Generally speaking, precisely because of the expertise of specialized decision-  
makers, their interpretations are consistent with the purpose of the statute, which they  
know well, and should therefore be subject to deference even if other interpretations  
exist that are compatible with that purpose.  
[181] Often, an interpretation that might appear counterintuitive in the eyes of the  
reviewing judge is adopted by the specialized decision-maker to further the purpose of  
the statute at issue. Such an interpretation should give rise to an intervention only if a  
contextual interpretation demonstrates that it does not fall within the range of possible or  
acceptable outcomes.  
[182] In the same spirit, an interpretation that privileges one statutory provision over  
another, where an interpretation that is consistent with both laws and that reconciles their  
purposes is possible, may give rise to an intervention.69  
64  
[2011] 3 S.C.R. 471.  
Ibid. at para. 32.  
Ibid. at para. 38.  
Ibid. at para. 42.  
65  
66  
67  
68  
Ibid.  
69  
However, Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, illustrates that if the  
principles of interpretation are generally seen as clear and uncontroversial, their application may give  
rise to significant differences. In that pre-Dunsmuir era, the majority judges (McLachlin C.J. and  
Bastarache, Binnie and Charron JJ.) applied the standard of control of correctness to the issue of  
conflicting legislation, characterized as a pure question of law and of general importance not requiring  
the expertise of a grievance arbitrator, while applying the standard of reasonableness to an issue  
500-17-066945-117  
PAGE: 42  
[183] Generalist judges who must exercise their reviewing powers over decisions  
relating to issues of statutory interpretation in multiple areas of law with which they are  
not always familiar should not be left entirely on their own to determine the purpose of  
the legislative provisions applied by specialized decision-makers.  
[184] Accordingly, an interpretation of legislative provisions that is creative yet  
nevertheless respects the wording chosen by the legislator may be accepted if the  
specialized decision-maker appropriately identified the purpose of the act and the  
objective of the provision at issue and clearly set out his or her reasoning in support of  
that interpretation.  
[185] If this was not done and the reasons are therefore deficient in these respects, the  
decision-maker is at a greater risk that a party will challenge the interpretation in a  
proceeding to review the legality of the decision. In such a case, before quashing or  
reviewing a decision, the judge exercising the reviewing power must try to supplement  
the decision-maker’s reasons to verify whether the result or the interpretation adopted is  
among the range of possible outcomes.  
[186] That said, a long legal analysis cannot realistically be performed in each and  
every one of the innumerable administrative and quasi-judicial decisions that specialized  
decision-makers are required to render daily. If the interpretation is unusual and  
uncommon, however, the interpretive exercise might well require a special effort, and it  
would more appropriately be done by the specialized decision-maker to the degree  
possible, bearing in mind the limits on that decision-maker rather than supplemented  
by a generalist judge sitting in appeal or in judicial review.  
[187] In all cases, the party impugning the specialized decision-maker’s interpretation  
must be able to justify the intervention it seeks on the basis of a contextual interpretation  
demonstrating that the interpretation applied is in no way possible.  
[188] Such a demonstration and for seasoned jurists, this is no doubt a statement of  
the obvious may rely on the wording of the provisions at issue and of other provisions  
of the interpreted statute and related statutes, the context of these provisions, and other  
decisions, preferably from the same specialized decision-maker or tribunal, so as to  
properly identify the purpose of the statute and the provisions whose interpretation is at  
issue, and how that interpretation was applied.  
[189] The risks associated with a literal and out-of-context interpretation of statutory  
provisions are immense and can have disastrous consequences on the actual rights of  
raising a question of mixed law and fact, that of the interpretation and application of a provision in the  
Police Act. They intervened only on the issue calling for the standard of review of reasonableness.  
Deschamps and Fish JJ. did not discuss the standard of review, but arrived at a different result  
regarding the application of the principles of interpretation and would have intervened on this issue.  
Abella J. would have applied the standard of reasonableness to all the questions of law raised but  
agreed with the outcome of the majority judges’ decision. The law, it must be acknowledged, is not an  
exact science.  
500-17-066945-117  
PAGE: 43  
parties. This case, in which such an interpretation was proposed to the Court, is a  
striking illustration.  
[190] As for the reviewing power, it also cannot be exercised in an approximate manner.  
[191] In the same vein, the existence of conflicting decisions by specialized decision-  
makers in a specific field or by different members of an administrative tribunal does not in  
itself justify intervention. This is currently the state of the law.70 However, if it is shown  
that one of the two contradictory currents promotes an interpretation that is irreconcilable  
with the purpose of the statute or the provision at issue, intervention may be justified.  
[192] It is also worth noting that there might be differences of opinion as to the purpose  
of the statutory provisions.  
[193] This is less frequent when it comes to the more general purpose of a statute, but it  
can occur more regularly when the specific purpose of a particular statutory provision is  
at issue.  
[194] If legislative intent cannot be identified with sufficient certainty, it is up to the  
legislator to clarify its intent by amending statutes that give rise to divergent  
interpretations by specialized decision-makers. In such a case, according to the current  
state of the law, the role of the reviewing judge is limited to determining the  
reasonableness of the two opposing schools of thought.  
[195] This case is an example of a specialized decision-maker adopting an  
interpretation of a provision while failing to take into account the rules governing the  
interpretation of apparently contradictory provisions, including the rule whereby an  
attempt must be made to reconcile them in a way that achieves their respective  
purposes. Such a case does not attract deference.  
[196] The record also reveals differing interpretations of the Act, the 1951 Act, and the  
older acts; unusually, these interpretations are by a single specialized decision-maker  
who contradicted himself or his predecessor several times in the very same file –  
specifically, that of the Appellants, the Landry family.  
[197] Deference in such a case is not an easy notion to apply. It is nevertheless owed to  
the decision under appeal, since the reviewing power on appeal is conferred by the  
legislature over that decision and the reasons given in support thereof.  
[198] All of the reasons set out in the Registrar’s opinions will be considered, since they  
reflect or may be presumed to reflect this expert’s administrative interpretation, at least  
unless the Registrar demonstrates the contrary on the basis of case law or the reasons  
70  
Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R.  
756, and Alliance québécoise des techniciens de l’image et du son (AQTIS) c. Association des  
producteurs de théâtre privé du Québec (APTP), J.E. 2012 -1783 (C.A.) (leave to appeal to S.C.C.  
refused) at paras. 107 and 108.  
500-17-066945-117  
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of the decision under appeal in light of case law that uses an approach similar to this  
administrative interpretation.  
[199] Legal arguments submitted in support of the outcome of the decision but that  
contradict the reasons set out in that very decision are owed no deference.  
[200] It would indeed be quite difficult to show deference to two diametrically opposed  
or mutually exclusive interpretations, one in the decision under appeal and the other  
submitted in argument by counsel representing the administrative decision-maker.  
[201] Although the Registrar has confirmed via counsel of record that his current  
interpretation is reflected in the arguments submitted, the fact nevertheless remains that  
the appeal is in respect of his decision and the reasons supporting it. No matter how  
skilfully presented, arguments cannot take the place of reasons or even additional  
reasons, to which deference would be owed. The Registrar has also not presented any  
court decisions outlining such an interpretation or any decision that he himself has  
rendered (perhaps because of personal information contained in such reasons, which  
become public only when they come before the courts but the Court can only  
speculate).  
[202] Whatever the case may be, for the reasons set out below, this new interpretation  
brought to the Court’s attention cannot be accepted because it has no basis in the Act  
and is likely to give rise to injustice.  
2. WAS THERE A BREACH OF THE REGISTRAR’S DUTY OF PROCEDURAL  
FAIRNESS AND, IF SO, WHAT IS THE APPROPRIATE REMEDY?  
2.1  
General principles  
[203] The Registrar does not dispute that he had a duty to act fairly in determining, in  
the context of a protest, the entitlement to be registered in the Register. His argument,  
rather, is that he did not breach this duty.71  
[204] In Canada (Attorney General) v. Mav,72 the Supreme Court reiterated that  
procedural fairness is a fundamental component of Canadian administrative law. The  
duty of procedural fairness is incumbent on all public bodies rendering administrative  
decisions that are not legislative in nature and that affect a person’s rights, privileges or  
property.  
[205] The general duty to comply with the requirements of procedural fairness applies,  
save in the presence of clear statutory language or necessary implication to the  
contrary.73  
71  
AGC’s amended memorandum of facts at 34 et seq.  
[2011] 2 S.C.R. 504.  
Ibid. at para. 39.  
72  
73  
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[206] As noted above, the violation of the duty of procedural fairness renders any  
decision made in breach thereof invalid, whatever the opinion of the judge regarding  
what the decision on the merits should have been.  
[207] In every case, it must be determined what this duty may reasonably involve for a  
particular authority in terms of specific procedural rights in the applicable legislative and  
administrative context.74  
[208] To determine the content of the duty in a specific case, the non-exhaustive list  
drawn up by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship  
and Immigration)75 may be considered:  
22 Although the duty of fairness is flexible and variable, and depends on an  
appreciation of the context of the particular statute and the rights affected, it is  
helpful to review the criteria that should be used in determining what procedural  
rights the duty of fairness requires in a given set of circumstances. I emphasize  
that underlying all these factors is the notion that the purpose of the participatory  
rights contained within the duty of procedural fairness is to ensure that  
administrative decisions are made using a fair and open procedure, appropriate to  
the decision being made and its statutory, institutional, and social context, with an  
opportunity for those affected by the decision to put forward their views and  
evidence fully and have them considered by the decision-maker.  
23 Several factors have been recognized in the jurisprudence as relevant to  
determining what is required by the common law duty of procedural fairness in a  
given set of circumstances. One important consideration is the nature of the  
decision being made and the process followed in making it. In Knight, supra, at p.  
683, it was held that “the closeness of the administrative process to the judicial  
process should indicate how much of those governing principles should be  
imported into the realm of administrative decision making”. The more the process  
provided for, the function of the tribunal, the nature of the decision-making body,  
and the determinations that must be made to reach a decision resemble judicial  
decision making, the more likely it is that procedural protections closer to the trial  
model will be required by the duty of fairness. See also Old St. Boniface, supra, at  
p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p.  
118; Syndicat des employés de production du Québec et de l’Acadie v. Canada  
(Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p.  
896, per Sopinka J.  
24 A second factor is the nature of the statutory scheme and the “terms of the  
statute pursuant to which the body operates”: Old St. Boniface, supra, at p. 1191.  
The role of the particular decision within the statutory scheme and other  
surrounding indications in the statute help determine the content of the duty of  
fairness owed when a particular administrative decision is made. Greater  
procedural protections, for example, will be required when no appeal procedure is  
provided within the statute, or when the decision is determinative of the issue and  
74  
Canada (Attorney General) v. Mavi, supra note 72 at para. 38.  
[1999] 2 S.C.R. 817 at paras. 22 to 28.  
75  
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PAGE: 46  
further requests cannot be submitted: see D. J. M. Brown and J. M. Evans,  
Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-  
67.  
25 A third factor in determining the nature and extent of the duty of fairness owed  
is the importance of the decision to the individual or individuals affected. The  
more important the decision is to the lives of those affected and the greater its  
impact on that person or those persons, the more stringent the procedural  
protections that will be mandated. This was expressed, for example, by Dickson J.  
(as he then was) in Kane v. Board of Governors of the University of British  
Columbia, [1980] 1 S.C.R. 1105, at p. 1113:  
A high standard of justice is required when the right to continue in one’s  
profession or employment is at stake. A disciplinary suspension can have  
grave and permanent consequences upon a professional career.  
As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council,  
ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667:  
In the modern state the decisions of administrative bodies can have a more  
immediate and profound impact on people’s lives than the decisions of courts, and  
public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been  
alive to that fact. While the judicial character of a function may elevate the  
practical requirements of fairness above what they would otherwise be, for  
example by requiring contentious evidence to be given and tested orally, what  
makes it “judicial” in this sense is principally the nature of the issue it has to  
determine, not the formal status of the deciding body.  
The importance of a decision to the individuals affected, therefore, constitutes a  
significant factor affecting the content of the duty of procedural fairness.  
26 Fourth, the legitimate expectations of the person challenging the decision may  
also determine what procedures the duty of fairness requires in given  
circumstances. Our Court has held that, in Canada, this doctrine is part of the  
doctrine of fairness or natural justice, and that it does not create substantive  
rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan  
(B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate  
expectation is found to exist, this will affect the content of the duty of fairness  
owed to the individual or individuals affected by the decision. If the claimant has a  
legitimate expectation that a certain procedure will be followed, this procedure will  
be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and  
Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada  
(Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v.  
Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.).  
Similarly, if a claimant has a legitimate expectation that a certain result will be  
reached in his or her case, fairness may require more extensive procedural rights  
than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed.  
1996), at pp. 214-15; D. Shapiro, “Legitimate Expectation and its Application to  
Canadian Immigration Law” (1992), 8 J.L. & Social Pol’y 282, at p. 297; Canada  
(Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1.  
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Nevertheless, the doctrine of legitimate expectations cannot lead to substantive  
rights outside the procedural domain. This doctrine, as applied in Canada, is  
based on the principle that the “circumstances” affecting procedural fairness take  
into account the promises or regular practices of administrative decision-makers,  
and that it will generally be unfair for them to act in contravention of  
representations as to procedure, or to backtrack on substantive promises without  
according significant procedural rights.  
27 Fifth, the analysis of what procedures the duty of fairness requires should also  
take into account and respect the choices of procedure made by the agency itself,  
particularly when the statute leaves to the decision-maker the ability to choose its  
own procedures, or when the agency has an expertise in determining what  
procedures are appropriate in the circumstances: Brown and Evans, supra, at pp.  
7-66 to 7-70. While this, of course, is not determinative, important weight must be  
given to the choice of procedures made by the agency itself and its institutional  
constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282,  
per Gonthier J.  
28 I should note that this list of factors is not exhaustive. These principles all help  
a court determine whether the procedures that were followed respected the duty  
of fairness. Other factors may also be important, particularly when considering  
aspects of the duty of fairness unrelated to participatory rights. The values  
underlying the duty of procedural fairness relate to the principle that the individual  
or individuals affected should have the opportunity to present their case fully and  
fairly, and have decisions affecting their rights, interests, or privileges made using  
a fair, impartial, and open process, appropriate to the statutory, institutional, and  
social context of the decision.  
[209] In concrete terms, the scope of what is implied by the duty of procedural fairness  
in a specific case also depends on the specific circumstances of the case.76 This is also  
what was noted in the following passages from the Supreme Court’s judgment in  
Dunsmuir, which pointed out in passing that the application of this fundamental principle  
is not always straightforward:  
[77] Procedural fairness has many faces. It is at issue where an administrative  
body may have prescribed rules of procedure that have been breached. It is also  
concerned with general principles involving the right to answer and defence where  
one’s rights are affected. In this case, the appellant raised in his grievance letter  
that the reasons for the employer’s dissatisfaction were not specified and that he  
did not have a reasonable opportunity to respond to the employer’s concerns.  
There was, in his view, lack of due process and a breach of procedural fairness.  
[79] Procedural fairness is a cornerstone of modern Canadian administrative law.  
Public decision makers are required to act fairly in coming to decisions that affect  
the rights, privileges or interests of an individual. Thus stated the principle is easy  
to grasp. It is not, however, always easy to apply. As has been noted many times,  
76  
Ibid. at para. 21. See also Canada (Attorney General) v. Mavi, supra note 72 at para. 42.  
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“the concept of procedural fairness is eminently variable and its content is to be  
decided in the specific context of each case” (Knight, at p. 682; Baker, at para. 21;  
Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002  
SCC 11, at paras. 74-75).77  
[210] The Appellants submit that the Registrar breached his duty to act fairly in several  
ways.  
2.2  
The Registrar’s refusal to grant the Appellants a hearing  
[211] The Appellants submit that the Registrar should have granted them a hearing.  
The Court does not accept this submission. Several factors weigh in favour of a flexible  
standard for the process to be followed by the Registrar, one in which a hearing is not  
mandatory in every case, despite the importance of the decision to the rights of the  
persons concerned.  
[212] The process before the Registrar is not a trial where two parties confront each  
other. There is a right of appeal. Another important element is that, under the Act, the  
Registrar is the master of his or her own procedure.78  
[213] Moreover, given the basic considerations in his decision, it was not indispensable  
for the Registrar to hear the Appellants testify at a hearing to be able to examine their  
application fully and fairly,79 although he could have chosen to do so.  
[214] Hearing the testimony in the context of a hearing would thus have contributed little  
to the analysis, which was essentially based on documents describing facts regarding  
which there are no longer any living witnesses. Consequently, there were also no issues  
involving the assessment of the credibility of witnesses.  
[215] In addition, in letters dated September 16, 2004, and December 1, 2004, counsel  
for the Appellants requested a hearing, but they did not refer to any evidence that  
needed to be presented through witnesses.80 On January 6, 2005, the Registrar stated  
the following in a letter addressed to the Appellants:  
I can confirm that an officer has been working on your protest and I will render my preliminary  
decision in the near future in a letter to you. At this time, I can see no compelling advantage to  
receive any evidence by way of oral presentation rather than in writing. You will then have the  
opportunity to submit any further argument you or your clients may have in writing. I can then give  
the new evidence the weight it warrants while considering the complex arguments you have  
presented in this case.81  
77  
Dunsmuir v. New-Brunswick, supra note 51 at paras. 77 and 79.  
See ss. 14.2(6) and 14.3(3) of the Act.  
Baker v. Canada (Minister of Citizenship and Immigration), supra note 75 at paras. 33 and 34.  
78  
79  
80  
See McArthur v. Saskatchewan (Registrar, Department of Indian Affairs and Northern Development),  
[1992] 9 D.L.R. (4th) 666, a judgment in which written submissions were allowed and the nature of  
possible testimonies was not raised. The judge in that case found that there was no violation of the  
principles of natural justice  
81  
DDR, Vol. 5, tab 3.  
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[216] After the Registrar sent his draft decision in August 2010, counsel for the  
Appellants did not submit any further request for a hearing.  
[217] Given the specific circumstances and the analysis of the relevant factors, the  
Appellants have not established that there was a violation of procedural fairness because  
of the Registrar’s refusal to grant a hearing.  
2.3  
The Registrar’s refusal to grant the Appellants more time to respond to the  
draft decision  
[218] The Appellants also fault the Registrar for refusing to grant them an additional five  
months to make their submissions or provide further information, which they allege  
violated his duty to act fairly.  
[219] The AGC maintains that the Appellants had sufficient time between the filing of  
the protest and the decision rendered in January 2011 to do their research and present  
their arguments. It also argues that the Appellants would have been able to present a  
new application to the Registrar based on any evidence gathered during later research.  
[220] In the specific context before us here, it is the Court’s view that the Registrar  
breached his duty to act fairly.  
[221] First, it bears noting that, in his decision refusing to grant additional time to the  
Appellants, the Registrar did not refer to any interpretation that would allow them to  
submit a new application.82  
[222] The AGC’s position that such a possibility exists as of right has no basis in the  
applicable law, given the clear wording of s. 14.2(7) of the Act, which provides that the  
Registrar’s decision on a protest is final and conclusive, subject only to an appeal under  
s. 14.3.  
[223] The AGC submits a single authority to the contrary, which does not contain a  
detailed analysis of the issue but states merely that the appellant in that case  
[TRANSLATION] “should address a new application to be registered to the Registrar”,83 as  
the judge had concluded that she could not accept new evidence in an appeal from the  
Registrar’s decision. Perhaps that judgment should be seen as referring the file back to  
the Registrar for reconsideration or further investigation (s. 14.3(4)(b) of the Act), or to be  
taking note of the Registrar’s argument regarding the existence of this possibility.  
Whatever the case may be, the Court finds itself in agreement with the judgments of the  
Federal Court of Appeal and the Federal Court,84 which state that the opinions the  
82  
Admittedly, Terri Harris’s affidavit submitted before Nadon J. may perhaps be interpreted this way.  
However, this affidavit was clearly submitted before Nadon J.’s decision in relation to the present case  
and was reported in Landry v. Canada (Affaires indiennes du Nord), [1996] 118 F.T.R. 184.  
McKenzie c. Ministère des affaires indiennes et du nord Canada, [2003] J.Q. no 6410, SOQUIJ AZ-  
83  
50177344 (Sup. Ct.).  
84  
See the judgment of the Federal Court of Appeal in Bay v. Canada, [1974] 1 F.C.. 523 (F.C.A.), and  
the judgment of Nadon J. of the Federal Court relating to the present case.  
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PAGE: 50  
Registrar formed further to an application to be entered in the Register, before any  
protest, binds no one, while decisions rendered further to such a protest are final, subject  
only to an appeal under s. 14.3. This is moreover a simple observation of what is clearly  
set out in the Act.  
[224] This means that, in principle, the Registrar can no longer change his mind under  
s. 5 of the Act, once the entitlement or lack of entitlement to be registered has been  
determined further to a protest in which one of the parties concerned had the opportunity  
to participate.  
[225] In principle, new evidence submitted or found after the fact by a party cannot be  
used to challenge the finality of the decision rendered, much as in matters of res  
judicata85 or the common law doctrine of issue estoppel,86 notions that also apply to final  
judgments rendered by administrative authorities. This was pointed out by the Supreme  
Court in Boucher v. Stelco:87  
[32] At this stage of the proceedings, from the perspective of Quebec law, the problem is  
one of res judicata. The three necessary elements of identical cause, object and parties are  
present. The conditions for applying this principle pursuant to art. 2848 C.C.Q. and the  
case law have been met (see Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2  
S.C.R. 440). The Superintendent had jurisdiction to make the decision. The Quebec action  
implicitly requires a review of the question of the right to pension benefits, on which the  
Superintendent has already ruled. Moreover, the appellants were parties to the process  
before the Superintendent. The content of the wind up report and the benefit calculations  
were sent to them, and it was open to them to raise any objections they might have had.  
Lastly, the principle of res judicata applies not only to the decisions of courts, but also to  
the decisions of administrative tribunals and bodies (see J.-C. Royer, La preuve civile (3rd  
ed. 2003), at pp. 567-68). In the instant case, the main debate between the parties thus  
concerns a question that was already settled by the Superintendent, since the action cannot  
succeed unless his decision is varied or quashed. In this context, the principle of res  
judicata, which is in fact codified for the purposes of Quebec private international law in  
art. 3137 C.C.Q., bars the suit even if Quebec law applies to this aspect of the case.  
[33] Insofar as a decision of an administrative body created by the Ontario legislature is  
in issue, in a case within that body’s jurisdiction under Ontario law, the common law rules  
governing issue estoppel lead to the same result regarding the admissibility of the action.  
This Court recently considered the conditions for this type of estoppel in Danyluk v.  
Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, and Toronto (City) v. C.U.P.E., Local  
85  
Under Quebec procedural law, for example, see Werbin c. Werbin, J.E. 2010-727 (C.A.) at para. 8. For  
applications of administrative law, see Boucher v. Stelco, [2005] 3 S.C.R. 279 at paras. 32 to 35 and  
Liu v. McGill University Non-Academic Certified Association, 2013 EXP-2072 at para. 8. See also arts.  
2848 and 2866 C.C.Q.  
86  
Under the common law, there is a discretionary power to overrule a final judgment. See Danyluk v.  
Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at paras. 66 et seq. and Toronto (City) v. CUPE,  
Local 79, [2003] 3 S.C.R. 77 at paras. 52 and 53.  
Supra note 85 at paras. 32 to 35.  
87  
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79, [2003] 3 S.C.R. 77. In City of Toronto, Arbour J., citing the reasons of Binnie J. in  
Danyluk, set out three preconditions for issue estoppel:  
Issue estoppel is a branch of res judicata (the other branch being cause  
of action estoppel), which precludes the relitigation of issues previously  
decided in court in another proceeding. For issue estoppel to be successfully  
invoked, three preconditions must be met: (1) the issue must be the same as  
the one decided in the prior decision; (2) the prior judicial decision must have  
been final; and (3) the parties to both proceedings must be the same, or their  
privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, at para.  
25, per Binnie J.). [Emphasis in original; para. 23.]  
[34] These three preconditions are met in the case at bar. The issue, that is, the principal  
object of the case, is the same as the one decided by the Superintendent. The parties were  
also involved in the approval procedure for the partial wind up. And the decision that was  
rendered is final in nature. Also, in my view, the facts of the instant case would not justify  
the courts in exercising their residual discretion to decline to apply estoppel. Not only the  
appellants’ failure to make use of the usual means of redress appeal or judicial review  
but also the situation in which any other decision would place the respondent, militates  
against this. Stelco could find itself in the strange position of having to comply with the  
Superintendent’s decision under Ontario law while at the same time being required to  
execute a Quebec judgment to the contrary, at least with regard to former plan members  
from Quebec. As the intervener points out, such a result could call into question the  
benefit calculations for all the retirees and the measures taken to ensure the plan’s  
solvency.  
35 The situation in which the respondent could find itself if the principles of res judicata  
or issue estoppel were not applied illustrates the danger of a collateral attack and of the  
failure to avail oneself in a timely manner of the recourses against decisions of  
administrative bodies or courts of law that are available in the Canadian legal system. The  
stability and finality of judgments are fundamental objectives and are requisite conditions  
for ensuring that judicial action is effective and that effect is given to the rights of  
interested parties. Modern adjective law and administrative law have gradually established  
various appeal mechanisms and sophisticated judicial review procedures, so as to reduce  
the chance of errors or injustice. Even so, the parties must avail themselves of those  
options properly and in a timely manner. Should they fail to do so, the case law does not in  
most situations allow collateral attacks on final decisions (City of Toronto, at paras. 33-  
34), which Arbour J. likened to a form of abuse of process (para. 34) (see also: Quebec  
(Attorney General) v. Laroche, [2002] 3 S.C.R. 708, 2002 SCC 72, at paras. 73-76). In the  
case at bar, the type of action brought by the appellants necessarily entailed an  
impermissible collateral attack on the Superintendent’s decision, as can be seen from the  
analysis regarding res judicata. Consequently, the action was inadmissible.  
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[226] Given that status is ongoing,88 the first adjustment to be made to these principles  
would be an amendment to the Act to ensure that future legal consequences of the facts  
at issue will be different from those that result from the Act as currently in force. An  
amendment to the Act with retroactive effect is also still possible, if Parliament so  
chooses. In such a case, the issue to decide would not be the same, which would rule  
out the application of res judicata or issue estoppel.  
[227] In addition, as LeBel J. points out in the above-cited passage, under the common  
law, decision-makers have a residual discretion allowing them to overrule a final decision  
to avoid injustice. Various factors must be considered and weighed, however, before  
allowing a final decision to be challenged. Therefore, in legal terms, there was no  
guarantee that such a discretionary power would be exercised in favour of the  
Appellants, especially since one of the elements to consider is the existence of a right of  
appeal and whether or not it was exercised.89  
[228] Similarly, s. 14.2(6), which allows the Registrar to receive any evidence  
regardless of whether it is admissible before the courts of law, leaves it to “his discretion”  
as he “sees fit or deems just.” The Registrar will not automatically accept new evidence  
that is presented or obtained after a long investigation has been carried out and a final  
decision has been rendered.  
[229] It would only be after discretion has been exercised in favour of a party wishing to  
present such evidence in a new request that the Registrar could again intervene in a  
decision on a protest that is final under the Act. Given the nature of the requests that  
come before the Registrar, which involve among other things the search for and  
discovery of historical facts, it can be assumed that, to avoid injustice, his or her powers  
are generally exercised in favour of individuals presenting new requests even after a  
protest is dismissed. However, the possibility of such a favourable exercise of these  
88  
Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at paras. 39 to 59, and McIvor v. Canada  
(Registrar of Indian and Northern Affairs), 2007 BCSC 827 at paras. 144 to 158, applying the principles  
respecting Indian status set out in Benner. See also the judgment of the British Columbia Court of  
Appeal in McIvor v. Canada (Registrar of Indian and Northern Affairs), supra note 7 at paras. 50 to 57,  
affirming the latter judgment on this issue.  
89  
See Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at paras. 62 et seq. Following  
Toronto (City) v. CUPE, Local 79, supra note 86 at para. 53, the test for obtaining “new evidence in  
appropriate circumstances” must be assessed to determine whether it will “overcome the interest in  
maintaining the finality of the original decision”. In view of s. 40 of the Canada Evidence Act, R.S.C.  
1985, c. C-5, and the fact that the proceedings with the Registrar were brought in Ottawa, the more  
flexible common law rules will prevail over Quebec law. Whatever the case may be, under s. 40, s.  
14.2(6) of the Act will prevail over the applicable provincial statute since the Registrar is not bound by  
the rules of admissibility of evidence, which include the rules regarding the inadmissibility of evidence  
seeking to challenge a decision that has acquired the force of res judicata or benefits from estoppel  
because the issue has already been decided. The Registrar may not refuse to admit evidence that  
would be legally admissible, but he may exercise his discretion to admit evidence that would not. In  
connection with s. 40 of the Canada Evidence Act and its suppletive role, see Jean-Claude Royer, La  
preuve civile, 3d ed. (Yvon Blais, 2003) at paras. 417 and 1169.  
.
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PAGE: 53  
powers or speculation about that possibility should not be a consideration when  
determining whether to grant an additional time period while the protest is pending.  
[230] In this context, the Registrar’s decision can be explained by finding that he  
erroneously believed that a new request was admissible before him as of right, which  
was an unreasonable error. He refused without explanation and therefore apparently  
without taking the unique aspects of the case into account to grant additional time to  
the Appellants even though the decision on the protest was in principle final.  
[231] Here are some of the elements that do not appear to have been dealt with and  
that were invoked by counsel for the Appellants in support of their request for an  
extension to submit, among other things, additional evidence further to as-yet unfinished  
research:  
The number and language of the Appellants caused a delay before it was  
possible to meet with them along with the translated draft decision, which left  
them little time (approximately 30 days) to complete an additional search;  
The Appellants believed that it was sufficient to show that Joseph had been a  
member of the Band at some point, rather than that he also had Indian blood  
or had continued to spend time with the Band after his second marriage until  
the birth of Antonio, as the draft decision seems to require, which explains  
why research had not been completed on these issues;  
The existence of new evidence tending to show that Joseph had Indian blood  
based on research that had begun but was still embryonic justified giving  
them the opportunity to complete this research.  
[232] Procedural fairness required that the Appellants be granted more time, in view of  
the specific and complex legislative context applicable at the time in question, the  
arguments the Appellants raised, the fact that in principle the decision on the protest is  
final, and the impact that decision would have on the rights and identity of the Appellants  
and their descendants.  
[233] The long time that the Registrar needed for analysis and research before a  
decision would be rendered was another factor that should have should have led him to  
grant the Appellants more time.  
[234] Although the Court cannot admit new evidence in appeal, it can return the file to  
the Registrar so that the Appellants can present him with any new evidence they might  
have, since any research could or should have been completed during the appeal.  
[235] The other issues raised in this case must also be discussed, however. Indeed, If  
the Registrar committed a reviewable error in respect of one of these issues, and the  
Court is convinced that the only possible outcome based on the facts currently on the  
record and the law is to reverse the Registrar’s decision and find that the Appellants are  
entitled to be registered, it is appropriate to do so.  
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[236] Before deciding those issues, the evidence invoked by the Appellants as raising  
an apprehension of bias on the part of the Registrar should also be briefly addressed.  
2.4  
The Appellants have not established grounds giving rise to a reasonable  
apprehension of bias  
[237] According to the Appellants, the Registrar violated a measure that he himself had  
implemented to avoid raising an apprehension of bias in the protest process under the  
Act. They also believe that the refusal to allow them an additional five months to make  
their submissions or provide further information, which as we have seen was contrary to  
procedural fairness, also contributed to an apprehension of bias. In addition, they invoke  
a comment in the Registrar’s decision they consider to be inappropriate and unfounded,  
which they claim also raises an apprehension of bias.  
[238] The applicable test for bias is well known. The judgments in Wewaykum Indian  
Band v. Canada90 and Québecor c. S.R.C.,91 among others, restate the test in  
Committee for Justice and Liberty v. Canada (National Energy Board),92 which requires  
determining whether an informed, reasonable and right-minded person, viewing the  
matter realistically and practically, and having thought the matter through, would  
conclude that in all likelihood the decision-maker, either consciously or not, would not  
render a fair decision.  
[239] According to the internal procedure established by the Registrar, public servants  
acting as Protest Officers may discuss the interpretation of documents and information  
relating to a specific case amongst themselves and with the Registrar, but “never” with  
the officials who determine the entitlement to be registered in the first place. This rule  
aims at ensuring that protests are considered objectively and without bias. An affidavit  
from the Registrar to this effect was produced at the Federal Court proceeding and is  
part of the record, as we have seen.93  
[240] Had the Registrar not put in place any specific measures, he clearly could not be  
faulted for reviewing his own decisions, either informally or in the event of a protest,  
since that is what the Act prescribes and provides.94 However, the record shows that  
such measures are in place.  
[241] The spirit of the measures established by the Registrar appear to have been  
violated here, since Ray Fortin, Protest Officer at the time, was involved both during the  
informal review and after the protest, yet he had also been involved in 1987 and 1990,  
when he was still an Entitlement Officer.  
90  
[2003] 2 S.C.R. 259.  
J.E. 2011-480 (C.A.)  
[1978] 1 S.C.R. 369  
See note 30 and corresponding text.  
91  
92  
93  
94  
Ringrose v. College of Physicians, [1977] 1 S.C.R. 814 at 824, and Brosseau v. Alta. Securities  
Commission, [1989] 1 S.C.R. 301 at 310 and 313.  
500-17-066945-117  
PAGE: 55  
[242] In the specific circumstances of this case, after their letter dated November 9,  
1999, the Appellants still had to ensure immediate follow-up if they really wanted Ray  
Fortin not to be involved. And in fact, the letter from counsel for the Appellants called for  
a response from the Registrar:  
First, with respect to the need for the Registrar to address the protest in an  
unbiased manner, we voiced our concern when you mentioned that the protest file  
was being handled by the very officer who had conducted the inquiry leading to  
the Landry’s being struck out from the Indian registry. We understand that you are  
now seeking ways to correct the situation and that you will inform us of any steps  
taken in that direction.95  
(Emphasis added by the undersigned)  
[243] Since the Registrar never confirmed that any measures had been implemented to  
exclude Ray Fortin from the file, the Appellants could not wait for years before raising  
this issue again, thereby, in a way, holding this potential argument in reserve in the event  
they were not successful. The only possible conclusion regarding this way of doing  
things is that the argument was raised late.96  
[244] The refusal to allow additional time to comment on the preliminary decision cannot  
be found to give rise to a reasonable apprehension of bias according to the applicable  
test. After thinking the matter through, a person would undoubtedly find that a period of  
90 days was not unusual. It was in fact 30 days longer than the time allowed after the  
draft opinion submitted in 1994. Also, as we have seen, the decision might have resulted  
from the Registrar’s false impression that the Appellants would be able to submit a new  
request as of right.  
[245] Finally, the Registrar’s inappropriate, inept and unfounded remark was not such  
as to lead an informed, reasonable and right-minded person, viewing the matter  
realistically and practically, and having thought the matter through, to believe that in all  
likelihood he would not, either consciously or not, render a fair decision.  
[246] First, while they do not constitute the basis of the Federal Court’s decision, there  
are documents on the record that are ultimately false or misleading, although it has not in  
any way been established that the Appellants had any role to play in this respect.  
Second, the Registrar explicitly stated that he did not consider this element and that he  
considered the request on its own merits.  
[247] Whether the foregoing elements are taken in isolation or together, they are  
insufficient to give rise to a reasonable apprehension of bias on the part of the Registrar.  
The Appellants’ ground on this issue must fail.  
95  
Letter dated November 9, 1999, from counsel for the Appellants to the Registrar, file of Joseph Yvon  
Roger Landry (1551) DDR, Vol. 3, tab 9.  
Compagnie de Taxi Laurentides inc. c. Commission des transports du Québec, [2009] R.J.Q. 655 (C.A.)  
96  
at paras. 47, 48 and 53. See also Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.  
500-17-066945-117  
PAGE: 56  
[248] It remains to be determined whether the Registrar committed any reviewable  
errors on the other issues raised by the Appellants and, if so, whether the Court is able to  
determine that reversing the Registrar’s decision and recognizing the Appellants’  
entitlement to be registered is the only possible outcome in light of the facts and the law.  
3. DID THE REGISTRAR COMMIT AN ERROR REVIEWABLE ON APPEAL AND, IF  
SO, WHAT IS THE APPROPRIATE REMEDY?  
[249] The draft opinion dated April 5, 1994, was made final by the Registrar on April 17,  
1996. According to that opinion, neither Joseph nor Antonio Landry had status likely to  
give them the entitlement to be registered under the legislative provisions in force during  
their lifetimes.97  
[250] The Registrar was therefore of the opinion that the children of Clothilde and  
Antonio were entitled only to s. 6(2) status because of Clothilde’s s. 6(1)(c) status, and  
modified the Register accordingly. Consequently, the subsequent generations lost all  
status.  
[251] The Appellants bore the burden of proving the merits of the protest against the  
Registrar’s opinion in this respect.98 It required them to demonstrate, on a balance of  
probabilities, that they were entitled to be registered, for a final determination of their  
entitlement.99  
[252] In the decision under appeal, the Registrar found that the Appellants had in some  
respects discharged their factual burden by demonstrating in the documents  
accompanying their protest that, as he stated, [TRANSLATION] “it seems obvious that  
Joseph Landry was accepted as a member of the Abenaki of Wôlinak Band and  
recognized as an Indian, and that he availed himself of the benefits given to Band  
members while his wife was still alive and he lived in the community.100  
[253] Nevertheless, the Registrar found that:101  
Joseph’s status depended on his compliance with the conditions for such  
status imposed by the 1857 Act respecting Civilization as revised in 1859,  
to wit: he had (1) to be married to Vitaline Bernard, (2) to be deemed to  
97  
See the detailed summary of this opinion in paragraph 92 of this judgment.  
Section 14.2(4) of the Act.  
According to the Registrar’s affidavit, the notion of [TRANSLATION] “giving the benefit of the doubt” which  
98  
99  
the Appellants raise in their written and oral pleadings is applicable only when he may subsequently revisit  
his decision. Nevertheless, the inherent difficulties of historical evidence must be taken into account and  
indeed, the Registrar is not bound by the rules of evidence applicable to the courts.  
100  
Draft opinion of the Registrar dated September 30, 2010, DDR, Vol. 6, tab 13, subsequently rendered  
final in the decision dated January 2011.  
See the detailed summary of the Registrar’s decision and the excerpts quoted in paragraph 91 of this  
101  
judgment. The entire reasons are included in the letters dated September 30, 2010, and January 28,  
2011, DDR, Vol. 6, tab 13 and DDR, Vol. 7, tab 11.  
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PAGE: 57  
belong to the Band, and (3) to live on lands reserved for the Abenaki of  
Wôlinak Band.  
Joseph ceased being a member of the Band after he stopped meeting  
these conditions upon the death of his wife in 1867, after he remarried and  
left the community in 1868, and in the absence of a demonstration that he  
had a blood relationship with the Band under the requirements of the 1861  
Revised Statutes of Lower Canada respecting Indians and Lands,  
applicable at the time;  
Joseph could no longer rely on the 1857 Act as revised in 1859 and was no  
longer an Indian within the meaning of the 1861 Revised Statutes of Lower  
Canada respecting Indians and Lands;  
Joseph was also not an Indian within the meaning of the 1869 amendment  
to the 1868 Lands Act when his son Antonio was born and did not benefit  
from any vested rights under ss. 33 and 42 of that Act;  
Antonio was not a member of the Band at birth or at any other time in his  
life.  
[254] Consequently, according to the Registrar, for reasons that differed from those he  
put forward in 1996, the Appellants did not discharge their burden of proving the merits of  
their protest.  
[255] The debate in the appeal from a decision of a specialized administrative tribunal is  
generally focused on whether that decision and its supporting reasons are reasonable.  
[256] In principle, the Tribunal need only determine whether the decision at issue falls  
within a range of possible, acceptable outcomes that are defensible in light of the facts  
and the law.  
[257] The AGC, however, presented arguments that broaden the debate.  
[258] First, the principles of interpretation will be addressed. Second, the relevant  
provisions of the Act and the 1951 Act will be considered, along with the expanded  
arguments presented by the AGC, bearing in mind the role of the Court in this appeal.  
Third, the issue as to the reasonableness of the Registrar’s decision will be discussed.  
3.1 The principles of interpretation  
[259] The case law on the interpretation of legislation respecting Indians clearly  
establishes that provisions seeking to preserve the rights of Indians should be interpreted  
broadly, and that those seeking to limit or repeal them should be interpreted restrictively  
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PAGE: 58  
and an attempt should be made to determine what Parliament intended in enacting  
them.102  
[260] The same case law also establishes that Parliament’s intent should not be  
overlooked, as it is the result of the interpretation of legislation, not of treaties.103 The  
contextual approach is therefore applicable and is the one the Registrar should have  
applied in interpreting the provisions applicable to the Appellants and their ancestors  
Joseph and Antonio Landry.  
[261] Under this approach, the legislative provisions are to be read in their full 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.104 The principle dictating the strict  
interpretation of statutes seeking to repeal the rights of Indians, the presumption of  
compliance with Charter values (to the extent that they are in force at the time the  
relevant provision applies), and the other principles of interpretation apply only if a  
provision’s meaning is ambiguous, or, in other words, if it is open to more than one  
plausible reading, each equally in accordance with Parliament’s intention.105  
[262] In a recent case, the Federal Court of Appeal referred to the most recent  
restatement of these principles by the Supreme Court, as follows:  
[40]  
I begin consideration of this issue by canvassing the applicable principles  
of statutory interpretation.  
[41]  
The preferred approach to statutory interpretation has been expressed in  
the following terms by the Supreme Court in Rizzo & Rizzo Shoes Ltd.  
(Re), [1998] 1 S.C.R. 27, 1998 837 at paragraph 21:  
Today there is only one principle or approach, namely, the words of an Act  
are to be read 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.  
See also: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at  
paragraph 29.  
[42]  
The Supreme Court restated this principle in Canada Trustco Mortgage  
Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at paragraph 10:  
102  
Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 36, Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85  
at 143, Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746 at paras. 68, 124 and 125, and  
Canada (Registrar of Indian Register) v. Sinclair, [2002] 3 F.C. 292 at paras. 64 to 71 (overturned due  
to the lack of jurisdiction of the Federal Court because the issues were concerned with disputed facts  
and because an appeal lies after protest, [2004] 3 F.C.R. 236 (F.C.A).  
Ibid.  
103  
104  
105  
Bell Express Vu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at paras. 26 to 30.  
Ibid.  
500-17-066945-117  
PAGE: 59  
It has been long established as a matter of statutory interpretation that “the  
words of an Act are to be read 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”: see 65302 British  
Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The  
interpretation of a statutory provision must be made according to a textual,  
contextual and purposive analysis to find a meaning that is harmonious  
with the Act as a whole. When the words of a provision are precise and  
unequivocal, the ordinary meaning of the words plays a dominant role in  
the interpretive process. On the other hand, where the words can support  
more than one reasonable meaning, the ordinary meaning of the words  
plays a lesser role. The relative effects of ordinary meaning, context and  
purpose on the interpretive process may vary, but in all cases the court  
must seek to read the provisions of an Act as a harmonious whole.  
[underlining added].  
[43] This formulation of the proper approach to statutory interpretation was  
repeated in Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1  
S.C.R. 3 at paragraph 21, and Canada (Information Commissioner) v. Canada  
(Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 at paragraph  
27.  
[44] Inherent in the contextual approach to statutory interpretation is the  
understanding that the grammatical and ordinary sense of a provision is not  
determinative of its meaning. A court must consider the total context of the  
provision to be interpreted “no matter how plain the disposition may seem upon  
initial reading” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities  
Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at paragraph 48). From the text and this  
wider context, including the apparent purpose, the interpreting court aims to  
ascertain legislative intent, “[t]he most significant element of this analysis” (R. v.  
Monney, [1999] 1 S.C.R. 652, at paragraph 26).106  
[263] In Montreal (City) v. 2952-1366 Québec Inc.107 McLachlin C.J. and Deschamps J.,  
for reasons with which Bastarache, LeBel, Abella and Charron JJ. agreed, stated that the  
more general the wording adopted by the lawmakers, the more important the context  
becomes. The contextual approach to interpretation has its limits, however, since  
decision-makers may perform their interpretive role only when the wording lends itself to  
interpretation and the lawmakers’ intention is clear from the context.  
[15] Any act of communication presupposes two distinct but inseparable  
components: text and context (Côté, at p. 280). Some spheres of government  
activity are more conducive to precisely worded texts, while others lend  
themselves more to general language. The use of general language in  
environmental matters was approved by the Court …. The subject matter does not  
lend itself well to precise language. In the interpretation process, the more general  
the wording adopted by the lawmakers, the more important the context  
becomes. The contextual approach to interpretation has its limits. Courts perform  
106  
Canada (Attorney General) v. Stanford, 2014 FCA 234 at paras. 40 to 44.  
[2005] 3 S.C.R. 141.  
107  
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PAGE: 60  
their interpretative role only when the two components of communication converge  
toward the same point: the text must lend itself to interpretation, and the  
lawmakers’ intention must be clear from the context.108  
[264] The Appellants also invoke a specific rule of application, whereby even where the  
terms are clear, the lawmaker is presumed not to have wanted to legislate unreasonably.  
[265] This presumption is eloquently recalled and applied by Bich J.A. in 4053532  
Canada inc. c. Longueuil (Ville de),109 citing with approval the remarks of Pierre-André  
Côté:  
[TRANSLATION]  
[56] Can we nevertheless find in favour of the respondent by mechanically  
applying s. 1.1 A.D.T.I. to the situation?  
[57] The respondent’s argument flows from a quite literal yet no less serious  
reading of the provisions at issue. While it is true that any interpretation of the law  
is focused on a search for the intention and therefore the objectives of the  
legislator, it goes without saying that the first indication of this intention and these  
objectives is in the words used to express them.  
[58] We may not, however, refer solely to the letter of the law, notably because  
[n]ot only does the strictly literal approach ask more of language than it can offer,  
but it also overestimates the foresight and skill of the drafter” – not to mention the  
fact that drafting is occasionally clumsy. The purpose, context, logic and spirit of  
the law must also be taken into account. The effects or consequences of a given  
interpretation must also be considered, since the legislator is presumed not to  
have wanted to legislate unreasonably or unfairly:  
Themis, the goddess of justice, bears a scale in her hands and a blindfold  
over her eyes, a symbol of her indifference to anything other than legal  
considerations. Justice should be meted out without concern for the  
consequences of its impartial application: dura lex, sed lex. “But  
fortunately judges are human”, as Lord Reid pointed out, and they  
therefore hesitate to interpret statutes in a way that will produce  
unreasonable or iniquitous consequences. The judge will express this  
hesitation by invoking a presumption of legislative intent: the legislature is  
presumed to have intended its statutes to apply in a way that is not  
contrary to reason and justice.  
Regardless of whether it is clear or obscure, the text is merely the starting  
point of the interpretive process: only the intention or the norm can  
constitute its outcome. Moreover, a rule which leads to an absurd  
108  
Ibid. at para. 15.  
[2013] R.J.Q. 1331 (C.A.) at paras. 56 to 60.  
109  
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PAGE: 61  
consequence cannot be deemed clear, since it is hardly likely that this was  
the legislature’s intention.  
[59]  
This presumption is of course not without its limits, though it must not be  
overlooked and may turn out to be determinative.  
[60] That is the case here, in my view.  
[266] Another presumption is particularly relevant in this case: that concerning  
legislative coherence, which gives rise to an analysis to determine whether both statutes  
are truly in conflict before deciding that one should prevail over the other. The test to  
determine whether a conflict is inevitable is set out by the Supreme Court of Canada,  
citing author P.-A. Côté, in Lévis (City) v. Fraternité des policiers de Lévis Inc.:110  
[47] The starting point in any analysis of legislative conflict is that legislative  
coherence is presumed, and an interpretation which results in conflict should be  
eschewed unless it is unavoidable. The test for determining whether an  
unavoidable conflict exists is well stated by Professor Côté in his treatise on  
statutory interpretation:  
According to case law, two statutes are not repugnant simply because  
they deal with the same subject: application of one must implicitly or  
explicitly preclude application of the other.  
(P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at  
p. 443)  
Thus, a law which provides for the expulsion of a train passenger who fails to pay  
the fare is not in conflict with another law that only provides for a fine because the  
application of one law did not exclude the application of the other (Toronto  
Railway Co. v. Paget (1909), 42 S.C.R. 488). Unavoidable conflicts, on the other  
hand, occur when two pieces of legislation are directly contradictory or where their  
concurrent application would lead to unreasonable or absurd results. A law, for  
example, which allows for the extension of a time limit for filing an appeal only  
before it expires is in direct conflict with another law which allows for an extension  
to be granted after the time limit has expired (Massicotte v. Boutin, [1969] S.C.R.  
818).  
(Emphasis added by the Court.)  
[267] The parties, with no objection from either side, have referred the Court to various  
documents and reports that can potentially shed light on the legislative provisions at  
issue and their history, application, and any difficulties associated with their application.  
They include excerpts from the Dussault Report, a 1944 report by Macdonald J., and a  
brief prepared by the Indian Affairs Branch on the status of Indians, these last two  
110  
Supra note 69 at para. 47. See also the principles to guide the resolution of an inevitable conflict at  
para. 58, the consideration of the objective sought by the legislator at paras. 61 and 62, and the  
summary of the analysis at para. 67. See also the principles and authorities to which the dissenting  
judges refer in that case, at paras. 83 and 85 to 90.  
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PAGE: 62  
documents having been submitted to the Special Joint Committee of the Senate and the  
House of Commons charged with examining the 1927 Act in the years prior to the  
enactment of the 1951 Act.  
[268] The Court also informed the parties that it had taken judicial notice more broadly  
of the Dussault Report and the debates surrounding the enactment of the 1951 Act and  
the 1985 Act. During a hearing convened to hear their submissions on this issue and on  
other issues raised ex officio, counsel were all of the opinion that the Court could take  
notice of these documents since they could not be considered evidence relating to the  
adjudicative facts.  
[269] The Dussault Report relates certain facts concerning how the 1951 Act and the  
1985 Act might have been applied at various times. At the urging of the AGC, these  
elements were considered with caution, since they might not fall within the range of  
indisputable facts of which the Court may take judicial notice. They nevertheless have  
some relevance, albeit limited, in that they confirm certain interpretations in the case law  
or a possible analysis of the statutes even if these elements are not taken into account.  
The observations in the Dussault Report about the legislative facts of the enactment of  
the nineteenth-century statutes and the 1951 Act do not appear to be disputable, but  
nevertheless, in the interest of greater certainty, they too should be treated with caution.  
[270] Certain facts on the record that might be considered anecdotal if taken alone,  
however, should be given more weight given this contextual evidence.111  
[271] Finally, the legal opinions of the drafters were considered without reservation, that  
is to say, the same as any scholarly commentary that is not binding upon the Court but  
that may be relied on to support its reasoning.  
[272] The Appellants also invoke various court decisions, including some that  
interpreted s. 11 of the 1951 Act before the enactment of s. 6(1)(a) of the 1985 Act,  
which refers to it implicitly. As author Pierre-André Côté states, case law prior to the  
1985 Act should be taken into account, with certain precautions, since the legislature can  
be assumed to have been familiar with it when it enacted the statute:  
Courts will frequently refer to previous judicial interpretations of a similar or  
identical statute, or of the same statute. This practice appears justified because  
judicial interpretation is part of the context of enactment and because of the  
binding or persuasive authority of the prior decision.  
111  
This is the case, in particular, of the reference in the 1863 letter in the record that the list of Abenaki  
people referred to is incomplete because several families are absent. The Dussault Report observed  
that the Band Lists before the 1951 Act came into force were incomplete. In a situation where judicial  
facts that are confirmed in the Dussault Report are also entered in the evidence on this issue, these  
elements should be considered to justify a conclusion that the lists were not exhaustive. This does not  
require taking a huge step, since before 1951, the statutes made no provision whatsoever that the lists  
had to be kept systematically.  
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PAGE: 63  
The courts assume the legislature to have been aware of judicial decisions made  
prior to the statute’s enactment. Such decisions can thus be deemed part of the  
context of the legislation, and therefore relevant to its interpretation.  
Case law may be cited both as binding precedent or simply persuasive authority.  
The relative weight afforded to a precedent will depend on parameters which  
exceed the scope of this discussion, but the recent rapprochement that many  
have observed between common law and civil law jurists on this question is worth  
noting.  
When a case dealing with one provision is used to interpret another, even in the  
same statute, the need for caution cannot be overstated. Since meaning always  
partially depends on context, and the courts’ determination of meaning is  
influenced by the specific circumstances in which a provision is applied, there is a  
danger in transposing the meaning given by one judge to a word in a specific  
context to another enactment for which a different context may suggest a different  
meaning.  
Subject to these caveats, the courts may consult judicial interpretations of similar  
texts appearing in the same enactment, or in related legislation.112  
[273] Finally, in principle, an administrative decision-maker such as the Registrar takes  
into account his or her own administrative practices and interpretations when rendering a  
decision. For the decision-maker, this is not a principle of interpretation but a way of  
ensuring coherence, consistency and fairness for all by dealing with every party the  
same way when applying the statutes under his purview. He or she is in no way bound,  
however, by earlier interpretations that are inconsistent with the Act.113  
[274] Sometimes the courts take the administrative interpretation into consideration  
when they are asked to decide disputes on the interpretation of statutes applied by  
administrative authorities, but they generally do not feel bound by them.  
[275] In the context of an appellate review of an administrative decision, the deference  
the appellate court must show towards the administrative practice in the interpretation  
and application of the statutes i.e., the practice revealed in the decision under appeal,  
so long as it is consistent with the practice applied in other files is more than a principle  
of statutory interpretation but a rule of judicial review.  
112  
Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011) at  
578-584.  
113  
The rule of stare decisis applies to the courts, which are bound by precedents established by higher  
courts.  
500-17-066945-117  
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[276] In some circumstances, as will be discussed further on, the administrative practice  
must be assigned even more weight before both the courts of law and the administrative  
decision-maker himself or herself.  
[277] This is particularly the case where serious injustices might arise from a change in  
practice or interpretation proposed by an administrative decision-maker when his or her  
interpretation had become an integral part of a statute, or when this statute was modeled  
on the administrative interpretation relevant at the time it came into force.  
3.2  
The most relevant provisions of the Act and the 1951 Act and the novel  
arguments presented by the Registrar  
[278] A good portion of the debate before the Court concerned the interpretation of the  
provisions applicable to Joseph Landry’s status at the end of the nineteenth century. The  
issues of interpretation of these older statutes will be discussed further on.  
[279] These provisions are themselves relevant because of ss. 11 and 12 of the 1951  
Act, which explicitly and implicitly referred to some of those statutes to determine who  
was or was not entitled to be registered under it. Section 2 contains several relevant  
definitions, and ss. 5 to 10 are also important. For ease of reading, only ss. 11 and 12  
are reproduced here, and the other relevant provisions of the 1951 Act are reproduced in  
a schedule to this judgment:  
11. Sous réserve de l'article douze, une  
11. Subject to section twelve, a person is personne a droit d'être inscrite si  
entitled to be registered if that person  
a) elle était, le vingt-six mai mil huit  
(a) on the twenty-sixth day of May,  
cent soixante-quatorze, aux fins de la  
eighteen hundred and seventy-four, was, for  
loi alors intitulée: Acte pourvoyant à  
the purposes of An Act providing for the  
l'organisation du Département du  
organization of the Department of the  
Secretary of State of Canada, and for the  
Secrétaire d'État du Canada, ainsi qu'à  
l'administration  
des  
Terres  
des  
management of Indian and Ordnance Lands,  
chapter forty-two of the statutes of 1868, as  
amended by section six of chapter six of the  
statutes of 1869, and section eight of chapter  
twenty-one of the statutes of 1874, considered  
to be entitled to hold, use or enjoy the lands  
and other immovable property belonging to or  
appropriated to the use of the various tribes,  
bands or bodies of Indians in Canada,  
Sauvages et de l'Ordonnance, chapitre  
quarante-deux des Statuts de 1868,  
modifiée par l'article six du chapitre six  
des Statuts de 1869 et par l'article huit  
du chapitre vingt et un des Statuts de  
1874, considérée comme ayant droit à  
la détention, l'usage ou la jouissance  
des terres et autres biens immobiliers  
appartenant aux tribus, bandes ou  
groupes d'Indiens au Canada, ou  
affectés à leur usage,  
(b) is a member of a band  
(i) for whose use and benefit, in  
common, lands have been set apart or since  
the twenty-sixth day of May, eighteen  
hundred and seventy-four have been agreed  
b) elle est membre d'une bande  
(i) à l'usage et au profit communs  
de laquelle des terres ont été mises de  
côté ou, depuis le vingt-six mai mil huit  
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by treaty to be set apart, or  
cent soixante-quatorze, ont fait l'objet  
d'un traité les mettant de côté, ou  
(ii) que le gouverneur en conseil  
a déclaré une bande aux fins de la  
présente loi,  
(ii) that has been declared by the  
Governor in Council to be a band for the  
purposes of this Act,  
c)  
elle est du sexe masculin et  
(c) is a male person who is a direct  
descendant in the male line of a male person  
described in paragraph (a) or (b),  
descendante directe, dans la ligne  
masculine, d'une personne du sexe  
masculin décrite à l'alinéa a) ou b),  
d) elle est l'enfant légitime  
(d) is the legitimate child of  
(i)  
paragraph (a) or (b), or  
(ii) a person described in paragraph  
a mal person described in  
(i)  
d'une personne du sexe  
masculin décrite à l'alinéa a) ou b), ou  
(ii) d'une personne décrite à  
l'alinéa c),  
e) elle est l'enfant illégitime d'une  
personne du sexe féminin décrite à  
l'alinéa a), b) ou d), à moins que le  
registraire ne soit convaincu que le père  
de l'enfant n'était pas un Indien et n'ait  
déclaré que l'enfant n'a pas le droit  
d'être inscrit, ou  
(c),  
(e) is the illegitimate child of a female  
person described in paragraph (a), (b) or (d),  
unless the Registrar is satisfied that the father  
of the child was not an Indian and the  
Registrar has declared that the child is not  
entitled to be registered, or  
(f) is the wife or widow of a person who  
is entitled to be registered by virtue of  
paragraph (a), (b), (c), (d) or (e).  
f) elle est l'épouse ou la veuve d'une  
personne ayant le droit d'être inscrite  
aux termes de l'alinéa a), b), c), d) ou  
e).  
12. (1) The following persons are not  
entitled to be registered, namely,  
(a) a person who  
(i) has received or has been allotted  
half-breed lands or money scrip,  
(ii) is a descendant of a person  
described in sub-paragraph (i),  
12. (1) Les personnes suivantes n'ont pas  
le droit d'être inscrites, savoir:  
a) une personne qui  
(i) a reçu ou à qui il a été attribué,  
des terres ou certificats d'argent de métis,  
(iii) is enfranchised, or  
(ii)  
est un descendant d'une  
(iv) is a person born of a marriage  
entered into after the coming into force of  
this Act and has attained the age of twenty-  
one years, whose mother and whose father's  
mother are not persons described in  
paragraph (a), (b), (d), or entitled to be  
registered by virtue of paragraph (e) of  
section eleven, unless, being a woman, that  
person is the wife or widow of a person  
described in section eleven, and  
personne décrite au sous-alinéa (i),  
(iii) est émancipée, ou  
(iv) est née d'un mariage contracté  
après l'entrée en vigueur de la présente loi  
et a atteint l'âge de vingt et un ans, dont la  
mère et la grand-mère paternelle ne sont  
pas des personnes décrites à l'alinéa a), b)  
ou d) ou admises à être inscrites en vertu  
de l'alinéa e) de l'article onze,  
sauf si, étant une femme, cette personne est  
l'épouse ou la veuve de quelqu'un décrit à  
l'article onze, et  
(b) a woman who is married to a person  
who is not an Indian.  
(2) the Minister may issue to any Indian  
to whom this Act ceases to apply, a certificate  
b) une femme qui a épousé une  
personne non indienne.  
500-17-066945-117  
PAGE: 66  
to that effect.  
(2) Le Ministre peut délivrer à tout  
Indien auquel la présente loi cesse de  
s'appliquer, un certificat dans ce sens..  
[280] The 1951 Act essentially remained as is, until the 1985 Act came into force. The  
scope of s. 11 has been the subject of some discussion in the case law, which includes  
in particular references to the Registrar’s past interpretation and application of that  
provision. We will return to this.  
[281] The powers exercised by the Registrar in this case can be found in s. 5 of the Act  
as it applies today, and in particular in s. 5(3):  
5 (1) There shall be maintained in the  
5 (1) Est tenu au ministère un registre des  
Department an Indian Register in which shall  
Indiens où est consigné le nom de chaque  
be recorded the name of every person who is  
personne ayant le droit d’être inscrite  
comme Indien en vertu de la présente loi.  
this Act.  
entitled to be registered as an Indian under  
(2) Les noms figurant au registre des  
(2) The names in the Indian Register  
Indiens le 16 avril 1985 constituent le  
immediately prior to April 17, 1985 shall  
registre des Indiens au 17 avril 1985.  
constitute the Indian Register on April 17,  
1985.  
(3) Le registraire peut ajouter au registre des  
(3) The Registrar may at any time add to or  
delete from the Indian Register the name of  
any person who, in accordance with this Act,  
is entitled or not entitled, as the case may be,  
to have his name included in the Indian  
Register.  
Indiens, ou en retrancher, le nom de la  
personne qui, aux termes de la présente loi,  
a ou n’a pas droit, selon le cas, à l’inclusion  
de son nom dans ce registre.  
(4) Le registre des Indiens indique la date  
où chaque nom y a été ajouté ou en a été  
retranché.  
(4) The Indian Register shall indicate the date  
on which each name was added thereto or  
deleted therefrom.  
(5) Il n’est pas requis que le nom d’une  
personne qui a le droit d’être inscrite soit  
consigné dans le registre des Indiens, à  
moins qu’une demande à cet effet soit  
présentée au registraire.  
(5) The name of a person who is entitled to be  
registered is not required to be recorded in the  
Indian Register unless an application for  
registration is made to the Registrar.  
[282] These are broad powers that have been the subject of commentary, which is  
outlined below. Section 5(3) of the Act is nearly identical to s. 7(1) of the 1951 Act.  
500-17-066945-117  
PAGE: 67  
[283] Section 6 of the 1985 Act provides for the entitlement to be registered of persons  
who were entitled the day before it came into force. The effect is to render the provisions  
of the 1951 Act and those of the earlier statutes to which it refers relevant to the  
determination of the Appellants’ entitlement to register. Moreover, some of the  
paragraphs of this provision refer to persons whose names have been omitted or deleted  
from the Register “or from a band list prior to September 4, 1951, “under” provisions  
prior to the 1951 Act.  
[284] It is worth pointing out that no law prior to the 1951 Act required that Band Lists be  
maintained. There were, however, lists containing the names of band members who  
received annuities or who lived on reserve and were deemed entitled to do so.  
[285] The names of individuals who did not meet or no longer met the requirements of  
the applicable statutes were in a way “omitted” from such lists or, in principle, did not  
appear on them. These lists are described and referred to in all case law dealing with  
these issues, as well as in the Registrar’s notices and decisions.  
[286] The wording of s. 6 reflects the Registrar’s interpretation of “band memberwithin  
the meaning of s. 11 of the 1951 Act, as well as the application of this provision before  
and immediately after the 1985 Act came into force, as described further on in this  
judgment.  
[287] Section 6 of the Act114 reads as follows:  
6 (1) Subject to section 7, a person is 6 (1) Sous réserve de l’article 7, toute  
entitled to be registered if  
personne a le droit d’être inscrite dans les cas  
suivants :  
(a) that person was registered or entitled to be  
registered immediately prior to April 17, 1985;  
a) elle était inscrite ou avait le droit de  
l’être le 16 avril 1985;  
(b) that person is a member of a body of  
persons that has been declared by the  
Governor in Council on or after April 17, 1985  
to be a band for the purposes of this Act;  
b) elle est membre d’un groupe de  
personnes déclaré par le gouverneur en  
conseil après le 16 avril 1985 être une  
bande pour l’application de la présente loi;  
(c) the name of that person was omitted or  
deleted from the Indian Register, or from a  
band list prior to September 4, 1951, under  
subparagraph 12(1)(a)(iv), paragraph 12(1)(b)  
or subsection 12(2) or under subparagraph  
12(1)(a)(iii) pursuant to an order made under  
subsection 109(2), as each provision read  
c) son nom a été omis ou retranché du  
registre des Indiens ou, avant le 4  
septembre 1951, d’une liste de bande, en  
vertu du sous-alinéa 12(1)a)(iv), de l’alinéa  
12(1)b) ou du paragraphe 12(2) ou en vertu  
du sous-alinéa 12(1)a)(iii) conformément à  
114  
Section 6 of the 1985 Act has been amended since 1985, but these amendments have no impact for  
the purposes of this judgment. This provision will be referred to as currently in force, unless otherwise  
indicated.  
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PAGE: 68  
immediately prior to April 17, 1985, or under  
any former provision of this Act relating to the  
same subject-matter as any of those  
provisions;  
une ordonnance prise en vertu du  
paragraphe 109(2), dans leur version  
antérieure au 17 avril 1985, ou en vertu de  
toute disposition antérieure de la présente  
loi portant sur le même sujet que celui  
d’une de ces dispositions;  
(c.1) that person  
c.1) elle remplit les conditions suivantes :  
(i) is a person whose mother’s name was, as a  
result of the mother’s marriage, omitted or  
deleted from the Indian Register, or from a  
band list prior to September 4, 1951, under  
paragraph 12(1)(b) or under subparagraph  
12(1)(a)(iii) pursuant to an order made under  
subsection 109(2), as each provision read  
immediately prior to April 17, 1985, or under  
any former provision of this Act relating to the  
same subject-matter as any of those  
provisions,  
(i) le nom de sa mère a été, en raison  
du mariage de celle-ci, omis ou  
retranché du registre des Indiens ou,  
avant le 4 septembre 1951, d’une liste  
de bande, en vertu de l’alinéa 12(1)b)  
ou en vertu du sous-alinéa 12(1)a)(iii)  
conformément à une ordonnance prise  
en vertu du paragraphe 109(2), dans  
leur version antérieure au 17 avril  
1985, ou en vertu de toute disposition  
antérieure de la présente loi portant sur  
le même sujet que celui d’une de ces  
dispositions,  
(ii) is a person whose other parent is not  
entitled to be registered or, if no longer living,  
was not at the time of death entitled to be  
registered or was not an Indian at that time if  
the death occurred prior to September 4, 1951,  
(ii) son autre parent n’a pas le droit  
d’être inscrit ou, s’il est décédé, soit  
n’avait pas ce droit à la date de son  
décès, soit n’était pas un Indien à cette  
date dans le cas d’un décès survenu  
avant le 4 septembre 1951,  
(iii) was born on or after the day on which the  
marriage referred to in subparagraph (i)  
occurred and, unless the person’s parents  
married each other prior to April 17, 1985, was  
born prior to that date, and  
(iii) elle est née à la date du mariage  
visé au sous-alinéa (i) ou après cette  
date et, à moins que ses parents se  
soient mariés avant le 17 avril 1985, est  
née avant cette dernière date,  
(iv) had or adopted a child, on or after  
September 4, 1951, with a person who was not  
entitled to be registered on the day on which  
the child was born or adopted;  
(iv) elle a eu ou a adopté, le 4  
septembre 1951 ou après cette date, un  
enfant avec une personne qui, lors de la  
naissance ou de l’adoption, n’avait pas  
le droit d’être inscrite;  
(d) the name of that person was omitted or  
deleted from the Indian Register, or from a  
band list prior to September 4, 1951, under  
subparagraph 12(1)(a)(iii) pursuant to an order  
made under subsection 109(1), as each  
provision read immediately prior to April 17,  
1985, or under any former provision of this  
Act relating to the same subject-matter as any  
of those provisions;  
d) son nom a été omis ou retranché du  
registre des Indiens ou, avant le 4  
septembre 1951, d’une liste de bande, en  
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PAGE: 69  
vertu  
du  
sous-alinéa  
12(1)a)(iii)  
(e) the name of that person was omitted or  
deleted from the Indian Register, or from a  
band list prior to September 4, 1951,  
conformément à une ordonnance prise en  
vertu du paragraphe 109(1), dans leur  
version antérieure au 17 avril 1985, ou en  
vertu de toute disposition antérieure de la  
présente loi portant sur le même sujet que  
celui d’une de ces dispositions;  
(i) under section 13, as it read immediately  
prior to September 4, 1951, or under any  
former provision of this Act relating to the  
same subject-matter as that section, or  
e) son nom a été omis ou retranché du  
registre des Indiens ou, avant le 4  
septembre 1951, d’une liste de bande :  
(ii) under section 111, as it read immediately  
prior to July 1, 1920, or under any former  
provision of this Act relating to the same  
subject-matter as that section; or  
(i) soit en vertu de l’article 13, dans sa  
version antérieure au 4 septembre  
1951, ou en vertu de toute disposition  
antérieure de la présente loi portant sur  
le même sujet que celui de cet article,  
(f) that person is a person both of whose  
parents are or, if no longer living, were at the  
time of death entitled to be registered under  
this section.  
(ii) soit en vertu de l’article 111, dans  
sa version antérieure au 1er juillet 1920,  
ou en vertu de toute disposition  
antérieure de la présente loi portant sur  
le même sujet que celui de cet article;  
(2) Subject to section 7, a person is entitled to  
be registered if that person is a person one of  
whose parents is or, if no longer living, was at  
the time of death entitled to be registered  
under subsection (1).  
f) ses parents ont tous deux le droit d’être  
inscrits en vertu du présent article ou, s’ils  
sont décédés, avaient ce droit à la date de  
leur décès.  
(3) For the purposes of paragraph (1)(f) and  
subsection (2),  
(a) a person who was no longer living  
immediately prior to April 17, 1985 but who  
was at the time of death entitled to be  
registered shall be deemed to be entitled to be  
registered under paragraph (1)(a);  
(2) Sous réserve de l’article 7, une  
personne a le droit d’être inscrite si  
l’un de ses parents a le droit d’être  
inscrit en vertu du paragraphe (1) ou,  
s’il est décédé, avait ce droit à la date  
de son décès.  
(b) a person described in paragraph (1)(c), (d),  
(e) or (f) or subsection (2) and who was no  
longer living on April 17, 1985 shall be  
deemed to be entitled to be registered under  
that provision; and  
(3) Pour l’application de l’alinéa (1)f)  
et du paragraphe (2) :  
a) la personne qui est décédée avant le 17  
avril 1985 mais qui avait le droit d’être  
inscrite à la date de son décès est réputée  
avoir le droit d’être inscrite en vertu de  
l’alinéa (1)a);  
(c) a person described in paragraph (1)(c.1)  
and who was no longer living on the day on  
which that paragraph comes into force is  
deemed to be entitled to be registered under  
500-17-066945-117  
PAGE: 70  
that paragraph.  
b) la personne visée aux alinéas (1)c), d),  
e) ou f) ou au paragraphe (2) et qui est  
décédée avant le 17 avril 1985 est réputée  
avoir le droit d’être inscrite en vertu de ces  
dispositions;  
c) la personne visée à l’alinéa (1)c.1) et qui  
est décédée avant l’entrée en vigueur de  
cet alinéa est réputée avoir le droit d’être  
inscrite en vertu de celui-ci.  
[288] The authors of the Dussault Report provide a useful summary of ss. 6(1) and 6(2):  
The bill created two main categories of status Indians. Under subsection 6(1),  
legal status is assigned to all those who had status before 17 April 1985, all  
persons who are members of any new bands created since 17 April 1985 (none  
have been created), and all individuals who lost status through the discriminatory  
sections of the Indian Act. More specifically, these classes of persons are as  
follows:  
• section 6(1)(a): this is a grandfather clause granting Indian status to persons  
entitled to it under the pre-1985 version of the Indian Act;  
• section 6(1)(b): persons entitled to status as a member of a band declared by the  
governor in council to exist after Bill C-31 came into force (there are none: the  
class is therefore empty 58);  
• section 6(1)(c): persons regaining status under Bill C-31 who lost or were denied  
status because of  
• the double mother rule (former section 12(1)(a)(iv));  
• marriage out (that is, to a non-Indian) (former section 12(1)(b));  
• illegitimate children of an Indian mother and non-Indian father (former section  
12(2));  
• involuntary enfranchisement upon marriage to a non-Indian, including any  
children involuntarily enfranchised because of the involuntary enfranchisement of  
the mother (former subsection 12(1)(a)(iii) and 109(2));  
section 6(1)(d): persons 'voluntarily' enfranchised upon application by the Indian  
man, including the Indian wife and children enfranchised along with him (former  
subsection 12(1)(1)(iii) and 109(1));  
500-17-066945-117  
PAGE: 71  
• section 6(1)(e): persons enfranchised because of other enfranchisement  
provisions, that is, residency outside Canada for more than five years (former  
section 13 between 1927 and 1951) and upon obtaining higher education or  
professional standing (former section 111 between 1867 and 1920); and  
• section 6(1)(f): children whose parents are both entitled to be registered under  
any of the preceding subsections of section 6.  
Subsection 6(2) covers people with only one parent who is or was a status Indian  
under any part of section 6(1). It must be stressed that the one-parent rule in  
subsection 6(2) applies only if that parent is entitled to status under subsection  
6(1). Thus, if an individual has one parent covered by subsection 6(2) and one  
who is non-Indian, the individual is not entitled to status. The children or other  
descendants of Indian women who lost status under the discriminatory provisions  
described earlier will generally gain status under subsection 6(2), not subsection  
6(1), since the reason their mothers lost status in the first place was that their  
fathers did not have Indian status when their parents were married.  
As discussed earlier, the rules are complex and difficult to apply, particularly in  
cases where applicants may not have the required documentary proof of their  
ancestry. This can be a problem in some areas where written records are lacking  
and where oral traditions are still strong. It is also a problem where Indian children  
were adopted by non-Indian parents and the records are covered by the Privacy  
Act or withheld because of the confidentiality of provincial adoption records.115  
(Emphasis added by the undersigned)  
[289] The use of the term “grandfather clause” as opposed to a clause preserving  
vested rights is worth emphasizing here. If s. 6(1)(a) had merely preserved the rights of  
persons who were already registered or even of those who had applied to register, this  
would clearly be a clause preserving vested rights within the meaning usually assigned  
to this notion in law. This provision does more than that, however, by preserving the  
possibility of being registered after the coming into force of the 1985 Act under former  
rules that are no longer in force.  
[290] While the provision allows, among other things, the registration of persons born  
immediately before the coming into force of the 1985 Act who could not be registered  
under the former rules, the scope of the provision is even broader, as this case clearly  
illustrates.  
[291] It should further be noted that, under s. 6 of the 1951 Act, the Registrar had a duty  
to register any person who was entitled to be registered. Technically, then, an application  
to this effect was not necessary for this right to exist and be considered a vested right  
even without an application. Therefore, vested rights are preserved here, though they  
have an unusually broad scope because of the specific legislative context. Under the  
115  
Dussault Report, supra note 2, vol. 4 at 36-37.  
500-17-066945-117  
PAGE: 72  
1985 Act, the Registrar is required to register a person only where an application has  
been made to this effect.  
[292] Paragraph 6(1)(c.1) was enacted after McIvor, which was rendered subsequent to  
the Dussault Report, and is therefore not mentioned in the Report. This amendment  
enacted a very specific correction for individuals in situations that are strictly identical to  
that of the parties in that case.  
[293] No legislative facts were submitted to the undersigned about why the remedy  
granted to persons contemplated by ss. 6(1)(c), 6(1)(c.1), 6(1)(d) and 6(1)(e) corrects  
discrimination or unfair situations that arose before September 4, 1951, instead of only  
those occurring after the coming into force of the Register or the 1951 Act. McIvor,  
however, provides a list of the five objectives Parliament had set for itself:  
[123] I have already quoted from the speech of the Minister of Indian Affairs and  
Northern Development in the House of Commons on moving second reading of  
the legislation. He set out five objectives, or principles, for the legislation:  
(1)  
Removal of sex discrimination from the Indian Act.  
(2)  
Restoration of Indian status and band membership to those  
who lost such status as a result of discrimination in the former  
legislation.  
(3)  
Removal of any provisions conferring or removing Indian  
status as a result of marriage.  
(4)  
Preservation of all rights acquired by persons under the  
former legislation.  
(5)  
Conferral on Indian bands of the right to determine their own  
membership.  
[124] The extensive legislative history presented in this case clearly establishes  
that these were, indeed, the objectives of the 1985 legislation. It cannot be  
seriously suggested that the government acted other than in good faith in enacting  
legislation in pursuit of these objectives.116  
[294] Objectives 2 and 4 are mirror images of each other. The preservation of vested  
rights under the former statute is reflected by the restoration of status for people who lost  
it due to discrimination under the old law.  
116  
McIvor, supra note 12 at paras. 123 and 124. The Minister in fact described these objectives during  
debates of which the Court has taken judicial notice. He also made remarks demonstrating that  
Parliament chose to strike a balance between re-establishing tens of thousands of descendants of  
persons who had lost band member status and giving bands full autonomy on this issue. According to  
the Minister’s comments, only those who lost their Indian status due to discrimination and their first  
generation descendants would be re-assigned status. See the debates of the House of Commons on  
June 12, 1985, at 5686 and March 1, 1985, at 2645. The corrections to the legislation were no doubt  
made in good faith, but with full knowledge of the discrimination that was allowed to persist.  
500-17-066945-117  
PAGE: 73  
[295] Because the Register was created from existing lists drawn up when the pre-1951  
statutes applied, there is nothing surprising in the fact that the reference to “former  
legislation” (“l’ancienne loi”) was expressed in the 1985 Act as references to statutes  
from before 1951.  
[296] The remedy granted may also be seen as a mirror image of the Registrar’s  
practices with respect to the registration of descendants of people contemplated by ss.  
11(a) and (b) of the 1951 Act. According to this interpretation, the remedy granted  
117  
sought, to a certain degree,  
to treat persons who suffered discrimination or unfair  
situations the same as those who had been entitled to be registered under the 1951 Act.  
This interpretation is consistent with the application of the Act by the Registrar in this  
case.  
[297] According to the applicable principles of interpretation, the provision cannot be  
analyzed “in silos,” so to speak, as the Registrar proposes when he suggests that only  
persons covered by the specific paragraphs referring to pre-1951 legislation have  
recourse to those statutes for the purposes of registration.  
[298] As for s. 6(3)(a), both counsel of record have confirmed that it had no impact on  
the determination of the rights of the Appellants. The AGC nevertheless submitted an  
interpretative argument whereby the presumption that an individual was entitled to be  
registered necessarily required that he or she was alive after September 4, 1951,  
because the Register did not exist before then.  
[299] In response to this argument, it must be noted that it would have been easy for  
Parliament to clearly limit the application of this provision to people who died between  
September 4, 1951, and April 16, 1985.  
[300] Instead, the provision states that the presumption applies to persons who died  
before April 17, 1985, with no explicit past time limitation, while s. 7 of the Act refers to  
persons who were “registered” under provisions from prior to 1951, and s. 6 refers to  
those whose names were omitted from Band Lists prior to 1951.  
[301] Though the words “who were entitled to be registered” do not appear in s. 6(3)(b),  
that is only because the individuals covered by that provision are those to whom a  
remedy was granted precisely because they were not entitled, and not because they  
benefited from a broader application of the provision over time.  
[302] This specific issue need not be resolved here, however, but the Court’s opinion is  
apparent from the foregoing.  
[303] Again, it should be pointed out that none of these arguments appear in the  
Registrar’s decision.  
117  
To a certain degree must be specified since the children of female persons who benefited from the  
correction in many cases did not obtain the same status as male children of Indians.  
500-17-066945-117  
PAGE: 74  
[304] Moreover, s. 7 of the Act provides in particular that certain persons are not entitled  
to be registered if they were registered “under” s. 11(1)(f)118 of the 1951 Act (wife or  
widow of a person entitled to be registered) or were registered “under any former  
provision of this Act relating to the same subject-matter as that paragraph”, whose name  
was “subsequently omitted or deleted” under the Act, which also confirms the relevance  
of the laws prior to 1951 to the entitlement to register:  
7.(1) The following persons are not 7. (1) Les personnes suivantes n'ont pas droit  
entitled to be registered:  
d'être inscrites :  
(a)  
a person who was  
a) celles qui étaient inscrites en  
registered under paragraph 11(1)(f), as it  
read immediately prior to April 17, 1985,  
or under any former provision of this Act  
relating to the same subject-matter as that  
paragraph, and whose name was  
subsequently omitted or deleted from the  
Indian Register under this Act; or  
vertu de l'alinéa 11 (1)f), dans sa version  
antérieure au 17 avril 1985, ou en vertu de  
toute disposition antérieure de la présente  
loi portant sur le même sujet que celui  
de cet alinéa, et dont le nom a  
ultérieurement été omis ou retranché du  
registre des Indiens en vertu de la  
présente loi;  
(b) a person who is the child of  
a person who ·was registered or entitled  
to be registered under paragraph 11  
(1)(f), as it read immediately prior to  
April 17,1985, or under any former  
provision of this Act relating to the  
same subject• matter as that paragraph,  
and is also the child of a person who is not  
entitled to be registered.  
b) celles qui sont les enfants  
d'une personne qui était inscrite ou avait  
droit de l'être en vertu de l'alinéa 11  
(1 )f), dans sa version antérieure au 17  
avril  
1985, ou en vertu de toute  
disposition antérieure de la présente loi  
portant sur le même sujet que celui de  
cet alinéa, et qui sont également les  
enfants d'une personne qui n'a pas droit  
d'être inscrite.  
(2) Paragraph (1 )(a) does not apply in  
respect of a female person who was, at any  
time prior to being registered under paragraph  
11(1)(f), entitled to be registered under any  
other provision of this Act.  
(2) L'alinéa (1)a) ne s'applique pas à une  
personne de sexe féminin qui, avant qu'elle ne  
soit inscrite en vertu de l'alinéa 11( 1 )f), avait  
droit d'être inscrite en vertu de toute autre  
disposition de la présente loi.  
(3) Paragraph (l)(b) does not apply in respect  
of the child of a female person who was, at  
any time prior to being registered under  
(3) L'alinéa (1)b) ne s'applique pas à l'enfant  
d'une personne de sexe féminin qui, avant  
qu'elle ne soit inscrite en vertu de l'alinéa  
11 ( 1 )f), avait le droit d'être inscrite en  
vertu de toute autre disposition de la présente  
loi.  
paragraph  
11(1)(f),  
entitled  
to be  
registered under any other provision of this  
Act  
118  
These are wives or widows of persons entitled to be registered under ss. 11(a), (b), (c), (d) or (e) of the  
1951 Act.  
500-17-066945-117  
PAGE: 75  
[305] The 1985 Act thus explicitly confirms that there is an entitlement to be registered  
“under” provisions prior to the 1951 Act, i.e. before the Register existed, contrary to what  
the Registrar now argues. According to the Court’s analysis,119 this is merely an apparent  
paradox.  
[306] There are strong indications in the Act that justify resolving it in favour of the  
Registrar’s interpretation and application of the 1951 Act immediately before the coming  
into force of the 1985 Act, an interpretation and application that necessarily formed part  
of the background to the drafting of the 1985 Act and that continued after the latter  
statute came into effect.  
[307] In such a context, administrative practice carries a definite weight and  
relevance.120  
[308] There was obviously no evidence before the Registrar of his own interpretation of  
the 1951 Act before 1985, especially as his draft decision did not refer to the  
interpretation whereby the Act does not allow the Appellants to register because their  
ancestors had died before 1951, which is what the AGC now argues.  
[309] Nevertheless, the Court raised, ex officio, the issues as to whether the Registrar’s  
interpretation had evolved over time and what the impact of an affirmative answer to this  
question would be, since such an interpretation would necessarily have formed part of  
the background against which the 1985 Act was drafted.  
[310] During the hearing on January 12, 2017, the Registrar took the following position:  
The Registrar maintains that his current interpretation and application is reflected  
in the amended memorandum of the AGC whereby the members of the band  
contemplated in s. 11(b) are only those who were alive during the application of  
that statute, unlike those contemplated in s. 11(a), since that provision uses a  
different verb tense and would likely apply to only a few individuals if it required  
individuals who were entitled on May 26, 1874, to still be alive on September 4,  
1951.121  
119  
The Court took the liberty of performing this analysis without deference, in an attempt to supplement  
the Registrar’s reasons in the decision under appeal, while the AGC submits an argument that  
contradicts the Registrar’s own interpretation.  
P.A. Côté, The Interpretation of Legislation in Canada, supra note 112 at 585 to 588. See also Harel v.  
120  
Deputy Minister of Revenue (Quebec), [1978] 1 S.C.R. 851.  
In the Court’s opinion, this is another example of an interpretation “in silosthat is literal, rather than  
121  
contextual.  
500-17-066945-117  
PAGE: 76  
He also maintains his interpretation regarding the lack of an entitlement to be  
registered for persons who died before the coming into force of the 1951 Act.  
The Registrar also recognized that some court decisions describe a different  
interpretation from him and that, in this case, he did in fact have a different  
interpretation.  
The Registrar also said that he was not able to state whether or not this  
interpretation was systematic at any given time, as doing so would require him to  
check certain things in his files, which he is not able to do.  
Although the Court deduced that a different administrative interpretation had  
existed, the Registrar maintains that he was and is free to change it to render it  
consistent with the applicable legislation, including the 1951 Act.  
[311] Given the above-described indications in the Act, the references to a different  
interpretation and application by the Registrar in court judgments invoking them or citing  
the Registrar’s reasons for decision and, above all, the Registrar’s opinions and decision  
in this case, the Court finds that the Registrar’s current position on the interpretation of  
the 1951 Act cannot be accepted here.  
[312] It is worth looking at the Registrar’s position in greater detail.  
[313] In the appeal, the AGC, relying on textual arguments that do not appear in the  
Registrar’s decision, submitted that Joseph and Antonio were not entitled to be  
registered because only persons alive when the 1951 Act came into force may have that  
entitlement or benefit from the presumption of registration under s. 6(3)(a) of the 1985  
Act, because the Registrar did not exist before.122  
[314] The AGC also submits that s. 11(b), [TRANSLATION] “drafted in the present tense,  
instead contemplates persons who were members of a band under the scheme of that  
same statute [the 1951 Act]”.123  
[315] In both cases, these arguments appear contrary to the implicit and explicit  
reasons of the Registrar in support of his opinion throughout the file, and in support of  
the decision under appeal.  
[316] For that reason, even though the arguments seek to support the outcome of the  
decision under appeal i.e., the refusal to allow the protest they are not consistent with  
the concept of “deference as respect”124 and thus of “a respectful attention to the reasons  
122  
Amended memorandum of the AGC at paras. 77, 149 and 153.  
Ibid. at para. 79.  
Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3  
123  
124  
S.C.R. 708 at paras. 11 et seq., citing Dunsmuir, in turn citing Professor Dyzenhaus.  
500-17-066945-117  
PAGE: 77  
offered or which could be offered in support of a decision”.125 In this case, the Court is  
not being asked to “supplement”126 the reasons, but to contradict them.  
[317] It should be recalled that, in October 1990, the Registrar had issued the opinion  
that the Appellants were entitled to be registered on the basis of, inter alia, the band  
member status of Joseph, who we may presume died before 1951,127 and of Antonio,  
who we know died in 1939. The Indian number 0719999999 was even used to refer to  
Antonio Landry.128  
[318] In this context, the Registrar’s position before the Court, presented through the  
AGC, is astonishing.  
[319] The position also contradicts the Registrar’s approach as reported in all of the  
case law submitted to the Court. Both before and after the coming into force of the 1985  
Act, references can be found to the Registrar finding that persons who died long before  
the coming into force of the 1951 Act were entitled to be registered in the Register or  
were presumed to be registered under the legislation in force at the relevant time,129  
thereby conferring rights on their descendants.  
[320] These judgments show that these persons were deemed entitled to register  
because they were entitled to have their names on a Band List under the provisions in  
force during their lifetimes and in light of the evidence submitted or discovered through  
research, or simply because their names were on lists prepared for purposes related to  
their membership in a band.  
[321] According to what is reported in at least two decisions rendered before 1985, it is  
clear that the Registrar had the same position as that referred to in court judgments  
rendered in connection with applications after the 1985 Act came into force, as noted  
above.  
125  
Ibid.  
Ibid.  
126  
127  
The date of his death is unknown, but this is what the AGC argued in its amended memorandum.  
See note 25 and the corresponding text which refers to René Landry’s father, Antonio Landry, as  
128  
“0719999999 Landry, Antonio.”  
Concerning the interpretation given by the Registrar after the coming into force of the 1985 Act, see in  
129  
particular Canada (Indian and Northern Affairs Canada) v. Sinclair, [2001] F.T.R. 275 (reversed in  
appeal on an issue of jurisdiction) at paras. 6, 7, 13 and 40, and the interpretation referred to in para.  
75, which appears to reflect the Registrar’s interpretation at the time, LeBouthillier v. Canada (Attorney  
General), [2011] 1 C.N.L.R. 168 at para. 4, which states that the Registrar had looked for the name of  
an ancestor of the appellant in lists of Indians maintained for band purposesthat were kept after  
1867, Wilson v. The Registrar of the Indian Registry, [1999] B.C.J. 2510 at paras. 4, 5, 31, 32, 38 and  
39, which describes the Registrar’s decision, following an analysis taking into account the life  
circumstances of an ancestor born in 1827, that he was not entitled to be registered under s. 11(a) or  
(b) of the 1951 Act, thus preventing his descendant from being registered under s. 6(1)(a) of the Act,  
and Johnson v. Canada (Aboriginal Affairs and Northern Development), 2014 BCSC 352 at para. 29  
and Appendix B, wherein the position of the Registrar was described as, among other things, that a  
person married in 1862 who can therefore be presumed to no longer have been alive in 1951 was  
presumed to have s. 6(1)(a) status because she was “entitled on a band list throughout her life”.  
500-17-066945-117  
PAGE: 78  
[322] The Registrar’s practice as related in these decisions and his manner of  
exercising it are consistent with what was done in this case.130 The same approach was  
always applied to applications under s. 6(1)(a) and s. 11 of the 1951 Act.131 It is not  
possible to limit this approach solely to persons who benefit from a remedy.  
[323] The Court has found no judgment reporting that the Registrar took the position  
defended by the AGC on the application of the 1951 Act, including in the opinions and in  
the decision rendered in this case, as mentioned several times.  
[324] Moreover, no such decision was submitted during the hearing on January 13,  
2017, when the Court raised ex officio the question of the evolution of the Registrar’s  
position over time and the impact of this question on the interpretation of the Act,  
referring the parties to specific excerpts from court judgments and the evidence citing the  
Registrar’s interpretation.  
[325] On the contrary, as stated above, when confronted with the evidence, counsel for  
the AGC had to recognize that the Registrar did not always have the position he defends  
today through the AGC. In the same breath, she indicated that she was not able to  
confirm whether or not such an interpretation was systematic at any given time.  
[326] To the extent that the turning point marking the change in the Registrar’s position  
originated in certain remarks made by the Court of Appeal of British Columbia in  
McIvor,132 it should be noted that McIvor in no way concerned the scope of “vested  
rights” under s. 6(1)(a) of the Act. It did not analyze that issue at all.  
[327] In Daniels, the Supreme Court of Canada, per Abella J., also did not consider the  
specific issue before us here, but nevertheless made remarks that are in the same vein  
as the application adopted by the Registrar and these reasons:  
2. When Newfoundland and Labrador joined Confederation in 1949, for example, they  
brought with them many Aboriginal peoples who were obviously not and had never  
been registered under the federal Indian Act and were therefore non-status Indians.  
130  
Bay v. Canada (Registrar of Indians), [1976] F.C J. No. 204 at paras. 6, 11 and 28, a judgment in  
which the status of Indian or member of a band of a person who died in 1924 was considered by the  
Registrar (the fact that the appellant could not prove he was her son having led to the refusal to allow  
the appellant to register, a decision that the judge reversed in appeal, concluding that he was entitled  
to be registered under s. 11(1)(c) as the descendant of a person contemplated under 11(a)), and In re  
The Indian Act; In re Wilson, [1954] 12 W.W.R. (N.S.) 676 (Alberta District Court), wherein, according  
to the judge’s findings, the Registrar – or at least the Registrar at the time did not seem to have  
restricted the application of s. 11(f) to widows of persons covered by ss. 11(a) and (b) who were alive  
at the time the Act came into force.  
131  
Johnson, Lebouthillier, and Wilson (1999), referred to in note 129, concern notably and clearly rights  
under s. 6(1)(a) in connection with s. 11 of the 1951 Act. Bay and Wilson (1954), cited in the note  
directly preceding this one, were rendered when the 1985 Act was not yet in force, and are therefore  
also in connection with s. 11 of the 1951 Act. In this case, the Registrar’s approach was also the same  
in relation to the rights invoked under s. 6(1)(a) of the 1985 Act and s. 11 of the 1951 Act, as it appears  
from his opinions and decisions.  
132  
See for example, paras. 95 to 101 and 152 to 154 of that judgment, supra note 7.  
500-17-066945-117  
PAGE: 79  
The federal government nonetheless assumed jurisdiction over them and many were  
incorporated into the Indian Act in 1984 and 2008.133  
[328] It should be recalled that the Register did not exist in 1949. Indians registered  
within the meaning of statutes that preceded its existence were, inter alia, band  
members, including those appearing on the pay lists or who lived on reserve and were  
documented as such, and those who the Registrar has subsequently recognized as  
being entitled.  
[329] At the very least, the foregoing analysis of the case law and of the Registrar’s  
reasons in his opinions and his decision in this case implies that the Registrar recognized  
that the provisions of pre-1951 statutes could grant the children and descendants of  
persons to whom those laws applied the entitlement to be registered in the Register  
under s. 11 of the 1951 Act if their ancestor qualified as an Indian or a band member  
under them.  
[330] This was the interpretation enshrined in s. 6(1)(a) of the Act, in light of the strong  
indications in this respect in ss. 6 and 7. Since the coming into force of the 1985 Act, this  
interpretation can no longer apply to anyone born before April 17, 1985, and who was  
alive while the 1951 Act applied, pursuant to s. 6(1)(a). It is not necessary, however, for  
the ancestors on whose basis these persons make their claim to have been alive while  
that statute applied.  
[331] To decide the appeal, it need not be decided whether Antonio was entitled to be  
registered posthumously, or to determine whether the Registrar could reasonably assign  
him an Indian number or whether it was the Registrar’s practice to do so systematically.  
[332] On this last issue, the references in the case law are in fact contradictory, since  
on occasion mention is made of people who died before 1951 as deemed to have status  
under s. 6(1)(a) rather than entitled to be registered. Perhaps it was simply more  
practical in terms of the administration of the Act, given the number of persons involved,  
to assign Antonio an Indian number. Whatever the case may be, the fact that the  
Registrar assigned him one clearly reveals his interpretation of the Act and the 1951 Act  
in his case, and in the case of his descendants.  
[333] As a result of the foregoing, if the band member status of an ancestor is  
demonstrated, even under a statute prior to the 1951 Act, the status of the children and  
descendants to whom the 1951 Act applied is modified under that statute, pursuant to s.  
6(1)(a) of the Act.  
[334] In reality, this is the application and the interpretation of the Registrar in multiple  
files concerning both s. 11(a) and s. 11(b) of the 1951 Act, as well as in this case.  
133  
Daniels v. Canada (Indian and Northern Affairs Canada), supra note 2, footnote 2 of the Supreme  
Court judgment.  
500-17-066945-117  
PAGE: 80  
[335] If the Court has a role to play here, it is to give this interpretation the respectful  
attention it deserves, and to seek to supplement the reasons of the Registrar in  
connection with the opinions and decision rendered in this case and not to contradict  
them.  
[336] In this spirit, the following elements might be taken into account:  
The wording of ss. 11 and 12 of the 1951 Act, and the use in particular of the  
expression “person described” in ss. 11(a), (b) and (c) in connection with the  
entitlement to be registered of the children and descendants referred to in ss.  
11(c) and (d), instead of the expression “person who is entitled to be registered by  
virtue of” these same provisions, as in s. 11(e). Thus, the descendants or children  
(contemplated in ss. 11(c) and (d) and alive sometime between September 4,  
1951, and April 16, 1985, inclusively) of persons who were entitled on May 26,  
1874, are entitled to be registered, whether these persons described in s. 11(a)  
died before or after the coming into force of the 1951 Act. The same is true for the  
descendants or children (contemplated in ss. 11(c) and (d) and alive sometime  
between September 4, 1951, and April 16, 1985, inclusively) of band members  
covered by s. 11(b) who were members of a band by virtue of legislative schemes  
prior to 1951, whether the persons described in s. 11(b) died before or after the  
coming into force of the 1951 Act.  
In a situation where the entitlement or lack of entitlement of a descendant or child  
to be registered under ss. 11(c) and (d) of the 1951 Act, a broad interpretation of  
the notion of a person entitled to have his or her name on a Band List makes it  
possible both to avoid the feeling of circularity that a first glance at certain  
provisions might cause, and to give full effect to the Registrar’s power to add the  
names of those entitled to be included in the list at any time:  
i. The Register comprises, inter alia, Band Lists that were “then in  
existence in the Department” (ss. 5 and 8 of the 1951 Act);  
ii. Band members are entitled to be registered in the Register and  
therefore to be on a Band List (ss. 11(b), 6 and 8 of the 1951  
Act);  
iii. A member of a band is a person whose name appears on a  
Band List or who is entitled to have his or her name appear on  
a Band List (s. 2(j));  
iv. The Registrar may at any time add to or delete from a Band List  
the name of any person who is entitled or not entitled, as the  
case may be, to have his name included in that List (s. 7(1))  
Persons whose names appeared on the Band Lists “in existence” were considered  
to be persons recognized as having the status of a member of a band by virtue of  
provisions prior to the 1951 Act. Descendants of members of a band under these  
provisions were therefore entitled to have their name on a Band List and the  
Registrar could add their names to that List.  
500-17-066945-117  
PAGE: 81  
Moreover, a Band List that was “in existence” could include the name of persons  
who had died before the coming into force of the 1951 Act, hence the necessary  
conclusion that deceased persons could be considered to be members of a band  
entitled to be registered in the Register under s. 11(b). The list of members of the  
Abenaki of Wôlinak Band most contemporaneous to the coming into force of the  
1951 Act on September 4, 1951, is dated June 30, 1951. Over two months, deaths  
may occur. All Band Lists, including those from the past, must be considered  
when the issue is the rights of the descendants or children of band members.  
Any ground based on posting and deadlines to challenge the Band List should  
take into account the need to demonstrate that the posting did indeed take place  
in accordance with the provisions of the Act, as set out in Re Poitras;134 the  
Registrar referred to the lack of challenge in 1951 by members of the Landry  
family in his April 1994 draft opinion, but did not mention evidence relating to the  
circumstances of its application or particularly to the posting for the Abenaki of  
Wôlinak Band;135  
134  
[1956] 20 W.W.R. 545 paras. 15 to 17. This argument has already been raised by the Registrar, but not  
in his final decision or in the draft submitted before it was rendered final. It is therefore not as “novel”  
as the arguments relating to the interpretation of the 1951 Act. The fact nevertheless remains that the  
Appellants did not have the opportunity to address it when the final decision was rendered. In addition,  
the Court can find no trace of a similar argument being made in case law subsequent to Poitras, and  
the Act has not belied the approach adopted in this case when the entitlement to register under s.  
6(1)(a) was recognized. See also the Dussault Report, supra note 2, Part 2, chapter 9, section 11:  
“... This enabled federal officials to keep track of reserve populations and to remove non-status Indians  
and others. Before this, federal officials had kept various records, such as treaty and interest  
distribution lists, estates administration, band membership and 'half-breed' scrip records, but had  
attempted no comprehensive listing of Indians.  
The mention of "Indian blood", which had been a feature of the act's definition section since 1876, was  
replaced by the notion of registration, with a strong bias in favour of descent through the male line. At  
the time the new registration system was introduced, the practice according to the provisions of the  
1951 Indian Act was to use the existing band lists as the new "Indian Register" called for by the act.  
These lists may have been band fund entitlement lists, treaty pay lists or similar records. Given the  
relative informality and lack of comprehensive documentation at the time, they were not by any means  
complete lists of status Indians or of those entitled to legal status as Indians.  
The lists were to be posted "in a conspicuous place in the superintendent's office that serves the  
band", and six months were given for additions, deletions and protests before the band list was  
finalized as the basis for the Indian register. In addition, a general list of Indians without band  
affiliations was kept in Ottawa. The registrar could add to or delete names from that list, under his own  
authority, or from band lists through application of the status rules in the new act.  
The names of many people who ought to have been on the band lists or the general list were never  
added. They may, for example, have been away from the reserve when band lists were posted. In  
remote places, especially where people still practised a subsistence lifestyle, people could have been  
away on hunting parties, fishing or on their traplines. Such people were also the least likely to have  
been able to read in the first place. Some people were opposed to any form of registration, seeing it as  
a derogation from the historical status of Indian nations. Sometimes, it has been argued, the  
"conspicuous place" called for in the Indian Act was less conspicuous than it ought to have been. In  
any event, and for whatever reason, many people claim that they or their parents or grandparents were  
never included on these lists when they should have been and that they were prevented later from  
obtaining Indian status.”  
135  
See, for example, the letter dated April 5, 1994, from the Registrar to Lucie Landry, DDR vol. 10, tab  
10.  
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The provisions of the 1985 Act, and in particular the wording of ss. 6 and 7, are  
presumed to take into account prior case law that applied and interpreted s. 11 of  
the 1951 Act and the application and interpretation of this provision by the  
Registrar that was current before its enactment.136 A reading of these provisions  
makes it clear that the Act recognizes an entitlement to register “under” earlier  
legislative provisions of the 1951 Act, which leads to the observation that a  
change to this interpretation of the 1951 Act would in reality constitute an  
amendment to the Act. Such an amendment would obviously not be within the  
purview of the Registrar.  
The 1985 Act sought to preserve rights that existed under the 1951 Act on April  
16, 1985, not to limit them;137 when two interpretations are possible, the one that is  
more favourable to the Indians is to be preferred, so long as it is compatible with  
the purpose of the Act.  
[337] The Registrar’s usual approach, which is the one applied in this case, is informed  
by this logic, which can find its basis in the 1985 Act and the 1951 Act, as well as their  
contexts. There is nothing sufficiently clear in the Act, the 1951 Act or the earlier statutes  
to justify the Court now repudiating the Registrar’s approach and interpretation in this  
case.  
[338] These arguments were in fact inadmissible in this case because they did not  
constitute a foundation of the decision under appeal and could have involved the  
presentation of evidence (relating to the application of the Act by the Registrar himself in  
the past or to the posting of lists after the enactment of the 1951 Act) by the Appellants  
before the Registrar.  
[339] The Act, the Registrar’s reasons on the record and the case law contain sufficient  
elements for them to be declared unfounded, with no need for additional clarification.  
And so it is done.  
[340] Finally, it should be noted that if the Registrar changed direction at a certain point  
which is the case, in light of the foregoing and what has been argued here by the AGC  
on his behalf, but it only took place recently it risks creating significant insecurity for  
several persons who were registered under s. 6(1)(a) between the coming into force of  
the 1985 Act and this change in direction.138 Section 5 of the Act, after all, allows the  
136  
See note 112 and corresponding text. See also paragraphs 272 to 276 and 285 to 329 of this judgment  
and, in particular, the authorities cited in note 120. The Appellants never had the opportunity to  
produce such evidence because the Registrar must be presumed to be familiar with and comply with  
his own practices and because he never raised such an interpretation in his draft decision.  
137  
McIvor v. Canada (Registrar of Indian and Northern Affairs), supra note 7 at para. 31, outlining the five  
principles or objectives underlying the 1985 Act, including putting an end to the discriminatory effects  
of the Act, reinstating the status of victims of discrimination and not causing individuals to lose vested  
rights.  
138  
The validity of the registration of persons who were registered the day before it came into force cannot,  
however, be questioned. See Marchand v. Canada (Registrar, Indian and Northern Affairs), supra note  
48. According to the position he now submits to the Court, and in light of the powers conferred by s. 5  
of the Act, he could challenge the status of persons registered after 1985.  
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Registrar at least at first glance and so long as there has not been a final decision  
rendered after protest to revisit his errors of law, as he has in fact argued in this case.  
[341] The Court specifically raised the issue of whether the Registrar could change an  
administrative interpretation that formed the background to the drafting of the 1985 Act  
and that has been applied since that statute was enacted. As we have seen, the  
Registrar, through counsel for the AGC, stated that if the Court were to conclude that this  
took place, he nevertheless believes that he can always go back to an interpretation that  
is more in keeping with Parliament’s intention in the 1951 Act.  
[342] The Court does not agree, because doing so would run contrary to Parliament’s  
intention as expressed in the 1985 Act. Not only did Parliament take into consideration  
the interpretation that was current then, it also wove it into the provisions it enacted at the  
time, which are still in force.  
[343] Moreover, doing so would create new categories of Indians and potentially give  
rise to serious injustice.  
[344] The first category would be made up of Indians registered before 1985 who were  
recognized rights on the basis of the interpretation of the statutes applicable to them at  
the time, since the registration of these Indians can no longer be questioned, as decided  
in Marchand. The second category, those registered after 1985 under the same  
provisions applicable before 1985 could see their status questioned due to a new  
interpretation of these statutes, but it would not be certain to happen, given the sheer  
magnitude of the task of identifying them from amongst the thousands of new  
registrations that followed the coming into force of the 1985 Act. Finally, a third category,  
those hoping to be registered under the same vested rights when the new interpretation  
was adopted, would never be entitled.  
[345] These three categories of persons, whose rights would flow from exactly the same  
statutes, would thus receive completely different treatment under them, as some would  
be recognized as having Indian status and an unassailable right to this status, others  
would have a more precarious right, and still others would be denied such a right. This  
would be a flagrant and unacceptable injustice.  
[346] An injustice that is perhaps taking place now, since the Register confirmed before  
the undersigned that this is his current application of the Act.  
[347] If this is the case, no deference is owing to decisions rendered on such a basis. In  
fact, under s. 5, the Registrar must try to remedy it as soon as possible, in cases that  
allow it. The principle of judicial deference, as fundamental as it is, does not go so far as  
to prevent findings of injustice.  
[348] Here, it must be emphasized that the Registrar’s good faith is in no way in  
question. Modifying an administrative interpretation to render it more consistent with the  
statutes is something that can and must be done to give legislative provisions the  
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meaning intended by the legislator and that is therefore just in its eyes. It is very possible  
that this is what the Registrar believed he was doing.  
[349] Amending an administrative interpretation in a manner contrary to the applicable  
law, however, particularly in the context before us, is a source of injustice.  
[350] Considering the nature of the rights at issue, it was already too late after, and  
possibly even before, the enactment of the 1985 Act to revisit an interpretation of the  
1951 Act that might have been reasonable if the Registrar had adopted it immediately  
after the statute came into force. That is all the more the case now, more than half a  
century after it came into effect.  
[351] The position of the Registrar and the AGC in this case, which is contrary to  
Parliament’s intention in ss. 6 and 7 of the Act and likely to lead to injustice because of  
the powers of the Registrar, will not be endorsed in this judgment.  
3.3  
The unreasonableness of the Registrar’s decision  
[352] From the foregoing and the Registrar’s decision, it follows that if he committed a  
reviewable error as to whether Joseph is a person described in either s. 11(a) or s. 11(b)  
of the 1951 Act, there is no need to decide whether he also committed the same error in  
regard to Antonio, who would have become a person described in s. 11(c) for the  
purposes of the rights of his children and other descendants, which would suffice to  
assure the Appellants their entitlement to be registered.139 As the Registrar noted, the  
arguments relating to Antonio depend essentially on the merits of those presented in  
connection with his father, Joseph.  
[353] In reality, then, the Appellants are arguing that Joseph Landry is a person  
described in s. 11(a) or a person described in s. 11(b), and that the Registrar committed  
a reviewable error in not recognizing this fact.  
[354] They are right in arguing that Joseph Landry is a person described in s. 11(b), and  
the appeal should therefore be allowed. This being the case, it becomes unnecessary to  
decide the argument under s. 11(a).  
3.3.1 The approach followed by the Registrar was reasonable and consistent with  
the one he was using when the 1985 Act came into force  
[355] It was never disputed that the Abenaki of Wôlinak are a band contemplated in s.  
11(b). The subject of the dispute is whether the Registrar committed an unreasonable  
139  
This is also the analysis of Sigurdson J. in Wilson v. Registrar of Indian Registry, supra note 129 at  
para. 39 : “If the appellant had been able to persuade the Registrar that Culaxton fit into either (a) or  
(b), as he contends, the appellant would subsequently fall within subsection (c). Thus the appellant  
would have been entitled to registration under s. 6(1)(a) of the Act on the basis that he was a person  
entitled to be registered immediately prior to April 17, 1985; that is, under the terms of the 1951 Act.”  
Obviously, Sigurdson J. benefited from submissions from counsel for the Registrar in that case. It  
should be recalled that Culaxton was born in 1827.  
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error in concluding that Joseph Landry was not a member of this band within the  
meaning of this provision.  
[356] The Registrar admitted that the Appellants have shown that Joseph’s name  
appeared on a list relating to membership in the Abenaki of Wôlinak band, and that he  
was recognized as a member of that band for several years.  
[357] During the application of the 1951 Act and before the 1985 Act came into force,  
there were few precedents on how to consider and deal with Band Lists in existence on  
September 4, 1951, which are what created the Register.  
[358] In re The Indian Act; In re Wilson,140 a case invoked by the Appellants both before  
the Registrar and in this appeal, is not discussed in any way in the Registrar’s decision,  
though it implicitly rejects the interpretation of s. 11(b) in that case.141  
[359] Wilson’s mother was an Indian. According to the evidence admitted, Wilson, born  
in 1893 or 1894, had received annuities starting in 1900. Largely on the basis of  
statements by Wilson himself about the circumstances of his own birth, his name was  
deleted from the Band List following an investigation held more than 40 years later.  
[360] When the 1951 Act came into force a few years after that, Wilson asked the  
Registrar to register him in the Register. The request was refused. Buchanan, J. sitting in  
review142 further to a protest giving rise to a decision in which the Registrar had  
maintained his position, had before him contradictory evidence respecting Wilson’s  
father. He assigned no probative weight to any statement Wilson himself might have  
made about the circumstances of his birth and concluded that he was entitled to be  
registered under both s. 11(b) and s. 11(e) of the 1951 Act, given the contradictory  
evidence on the record.143  
[361] Here is how the judge expressed himself with respect to the interpretation of s.  
11(b) of the 1951 Act.  
[22] Clause (b) I do not find easy of interpretation. Its apparent simplicity is  
deceiving. I believe that like clause (a) it deals with general and basic entitlement;  
that although it is phrased in the present tense, it necessarily imports the past;  
that by design it contains no reference whatever to blood or paternity but merely to  
band membership, the intention, in my view, being that in determining the  
entitlement of the older members of any band which came into being, in its  
relationship to the Act, in the last decade of the 19th century, when records were  
140  
Supra note 130.  
141  
Letter of October 27, 1999, from counsel for the Appellants, at 7 and 8, DDR 1551, vol. 3, tab 12.  
Under s. 9 of the 1951 Act, the judge sitting in review had to “inquire into the correctness of the  
142  
Registrar’s decision” and “decide whether the person in respect of whom the protest was made is, in  
accordance with the provisions of the Act, entitled or not entitled, as the case may be, to have his  
name included” in the Register. This decision was final and conclusive.  
143  
He had allegedly stated that his father died when he was 1 year old. The judge therefore found that his  
testimony on this subject could only have derived from what was told to him later and could not be  
assigned any probative weight.  
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of necessity inadequate, there must above all be finality; there must be a band  
membership which, once established, cannot be impugned on any grounds. This  
interpretation of the significance of clause (b) is rendered the more reasonable by  
the nature of clauses (c) (d) (e), and (f) which follow; they deal with the  
descendants, male or female, of the two classes described in (a) and (b). This  
interpretation moreover has the eminent recommendation that it gives a fair and  
just meaning to the clause; in effect it raises a self-imposed estoppel against the  
crown – let membership once be established and the status of the ‘member’ is  
beyond challenge.  
[23] If, therefore, it can be acceptably argued that Wilson ‘is’ or ‘was’ a member of  
the Beaver Band, then his status as a person ‘entitled to be registered’ is  
established.  
[24] Neither Wilson nor his mother appeared on the band list of July 6, 1899 but,  
as stated supra his mother Madeline did appear in the pay list of June 1, 1900 (as  
No. 41 thereon) and as a member of a family of two. She and her child are  
described thereon as ‘Indians not paid last year who have returned.’ It is  
conceded that the second member of the family was the infant child, later to be  
known as Sam Jean Baptiste Wilson. It should be noted that in the same pay list  
of June 1 1900, there also appeared as a member of the band, under No. 19, one  
Goutaugeau Narcisse. Under the same No. 19 on the approved Beaver Band  
membership list of June 30 1951, appears widow Gouraugeau (Gourgan). On the  
June 1 1900, pay list under No. 21 appears Kygar, with an additional member of  
this family, presumably his wife. On the approved Beaver Band membership list of  
June 30, 1951, appears ‘Kygar, widow.’ Is it not a fair conclusion that if the widow  
of Gouraugeau, no. 19, and the widow of Kygar, No. 21, survive as eligible  
members of the Beaver Band as shown by the band list of June 30, 1951, they do  
so by virtue of the fact that their husbands were and are deemed to have been  
‘members of the band’ viz., Beaver Band as defined in sec. 11(b)? And does not  
the appearance of the widows Gouraugeau and Kygar on the June 30 1951, band  
list indicate that such is the view of the registrar? In my view the treaty pay list of  
June 1, 1900, must be joined with the treaty pay list of July 6, 1899, to form the  
original band membership list of the Beaver Band. That being done, Wilson’s  
name as the infant of Madeline, No. 41, must be held to have been and to be a  
member of the Beaver Band from the date of the first payment of annuity to his  
mother on his behalf.  
[25] I hold therefore that Wilson was, and is, a member of a band as defined in  
sec. 11(b) and is entitled to be registered.  
[362] The Registrar did not appeal that judgment, which must nevertheless be  
interpreted cautiously because the decision is based on two distinct reasons.  
[363] These excerpts from Buchanan J.’s judgment are useful at least in respect of two  
issues: that relating to the use of earlier Band Lists, and that concerning the application  
of the 1951 Act by the Registrar shortly after it came into force.  
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[364] According to the judge’s findings, the Registrar, or at least the one at the time, did  
not seem to have limited the application of s. 11(f) to widows of persons contemplated in  
ss. 11(a) and (b) who were alive when the 1951 Act came into force.  
[365] This application of the 1951 Act by the Registrar at the time it came into force –  
despite the wording of s. 11(f) which refers to the widow of “a person who is entitled to be  
registered” as opposed to a person “described” in the listed paragraphs, as in ss. 11(c)  
and 1(d)(ii) weighs a fortiori in favour an interpretation that does not limit the application  
of the latter provisions solely to descendants and children of persons alive when the  
1951 Act came into force. In fact, this was the Registrars interpretation and application  
until just recently, as we have seen.  
[366] Buchanan J. found that Parliament had adopted a simplified approach so as to  
confer finality on the entitlement to be registered, since it had not retained the criterion of  
blood or paternity due to the limited availability of documentation from the relevant times,  
but only that of being a band member.  
[367] According to Buchanan J., in so doing, the legislator imposed a form of estoppel  
since, once it was proved that a person had been a band member, for example by  
observing that the person’s name appeared on earlier treaty pay lists that were supposed  
to be merged into the more recently used list in 1951, the Crown could not demonstrate  
that the registration was invalid. Buchanan J. described this process as resulting in a just  
and fair application of s. 11(b).  
[368] A similar interpretive approach was used more recently by the British Columbia  
Court of Appeal in this same subject matter.  
[369] By providing in particular that persons registered in the Register immediately  
before the coming into force of the 1985 Act are entitled to be registered, s. 6(1)(a)  
prevents the validity of the registration under the laws applicable at the time from being  
challenged or disputed.  
[370] This interpretation was accepted by the British Columbia Court of Appeal in  
Marchand v. Canada (Registrar, Indian and Northern Affairs)144 on the basis of textual  
arguments, practical considerations, and elements from the legislative background,  
though the Court refrained from deciding whether persons registered fraudulently can  
avail themselves of Indian status:  
[37] The Registrar submits that Parliament could not have intended that the mere  
fact of registration on April 17, 1985, without entitlement to registration as of that  
date, would be effective to permit a continuation of Indian status.  
[38] It is apparent, however, that s. 6(1)(a) of the 1985 Act draws a distinction  
between those who are actually registered and those who are entitled to be  
registered. On a plain reading of the relevant provisions, both those who are  
actually registered as of April 17, 1985 and those who are entitled to be registered  
144  
Supra note 48 at paras. 38 to 44.  
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as of that date are entitled to Indian status. If Parliament had intended to restrict  
registration only to those entitled to be registered, it could have so provided.  
Instead, it chose to include those, like Ms. Marchand, who had held Indian status  
for many years, and who were registered as of the cut-off date, whether or not  
they were otherwise entitled to be registered as of that date.  
[39] There were undoubtedly pragmatic and administrative considerations which  
entered into the decision to include in the Indian Register all those registered as  
well as those entitled to be registered. It would have been a mammoth task to  
start with a blank register and to require that all Indians prove their entitlement to  
registration. As it was, there were thousands of applications for registration from  
those who had lost their Indian status under the repealed provisions of the earlier  
legislation. The magnitude of the administrative problems posed by the  
amendments was referred to in the following extract from vol. 4 of the Royal  
Commission on Aboriginal Peoples (Ottawa: Supply and Services, 1996) at pp.  
34-36:  
The impact of Bill C-31 was enormous and profound. . . . More than  
21,000 applications, representing 38,000 individuals, were received in the  
first six months after enactment. A backlog of applications took five years  
to clear. By June 1990, 75,761 applications had been made, representing  
133,134 persons. The status Indian population grew by 19 per cent in five  
years because of Bill C-31 alone and, when natural growth was included,  
by a total of 33 per cent. . . . As of 30 June 1995, Bill C-31 had added  
95,429 persons to the status Indian population in Canada, more than half  
of them (57.2 per cent, 54,589) female.  
[40] Administrative considerations aside, in our view there is no basis for reading  
the word "validly" into s. 6(1)(a) of the legislation. If Parliament had intended to  
empower the Registrar to de-register those women who had gained Indian status  
solely by virtue of their marriage to a status Indian, it could have done so by  
omitting the second proviso from s. 7(1)(a) of the 1985 Act so that it provided:  
7. (1) The following persons are not entitled to be registered:  
1. a person who was registered under paragraph 11(1)(f),  
as it read immediately prior to April 17, 1985, or under  
any former provision of this Act relating to the same  
subject-matter as that paragraph.  
Instead, Parliament chose to add an additional proviso that such a person was not  
entitled to be registered only if her name had been subsequently omitted or  
deleted from the Indian Register.  
[41] Further, to read the word "validly" into s. 6(1)(a) of the Act would be to cloak  
the Registrar with untrammelled power to engage in a roving commission to  
investigate any or all of those named in the Indian Register as of April 17, 1985 to  
determine if they were "validly" registered. Such a sweeping power would create  
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great uncertainty for all of those registered and could give rise to concerns of  
discriminatory and arbitrary treatment with respect to those singled out for review.  
[42] It is also apparent from the history leading up to the enactment of the  
legislation that such potentially invasive authority in the Registrar was not  
contemplated and, in fact, had been rejected by those proposing the legislation.  
As the chambers judge noted, prior to the 1985 amendments an assurance was  
given on behalf of the then Minister of Indian Affairs that "Those who are now  
registered will continue to be registered." It is also interesting to note that, on April  
23, 1985, the standing committee considering the amendments voted to amend  
the Act by adding the words "registered or" before the words "entitled to be  
registered" in s. 6(1)(a). In the result, the legislation enacted included that  
amendment which is contained in the present wording of s. 6(1)(a).  
[43] In our view, it is apparent from both the unambiguous wording of the  
legislation and its legislative history that Parliament considered the ramifications of  
including in the Indian Register both those who were actually registered as of April  
17, 1985 and those who were entitled to be registered. In the result, it opted for a  
Register which could be relied upon by those who were registered as of the cut-off  
date and by government, as containing the names of those entitled to Indian  
status.  
[44] Counsel for the Registrar suggested that this interpretation of these  
provisions of the 1985 Act could result in a person being found entitled to Indian  
status or Band membership who had obtained registration by fraudulent means.  
We expressly decline to deal with that point, which does not arise on these facts  
and which might well give rise to different legal considerations.  
(Emphasis added by the undersigned.)  
[371] The Band Lists composing the Register had acquired a permanency, however,  
that the lists that had been maintained before them had not. The fact nevertheless  
remains that it was those lists, however imperfect they were in 1951, that were used to  
create the Register.  
[372] A systematic verification of the entitlement to be a band member of every person  
who received annuities in this capacity and appeared on the band lists used to form the  
Register would also have been very challenging in 1951. Would persons whose names  
appeared on band lists have to prove it? If so, would they all have been able to  
document, without encountering any opposition, that they did indeed have Indian blood  
or that their ancestors had met the various definitions of Indian that were in force at every  
strategic point in time over the years so that their descendants could inherit their status?  
[373] Several other contextual elements also weighed in favour of the legislative  
approach in 1951 to simplify, and not perpetuate the complexity of, or even make more  
complex, the identification of persons with Indian status, while also protecting those who  
had been recognized as such when past applicable legislative provisions were less  
restrictive:  
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House of Commons Debates, 2nd Session, 21st Parliament, Vol. IV, 1950, at  
4054 to 4055;  
Commission to Inquire into Matters of Membership in the Indian Bands in Lesser  
Slave Lake Agency, Report of Mr. W.A. MacDonald Following an Enquiry Directed  
Under Section 18 of the Indian Act, 7 August 1944.  
Brief on Indian status and eligibility to be a Band member, submitted for  
consideration by the Special Joint Committee of the Senate and House of  
Commons Appointed to Examine and Consider the Indian Act, Appendix EL to the  
minutes of proceedings and testimony of No. 12 of the Special Joint Committee of  
the Senate and the House of Commons Appointed to Continue and Complete the  
Examination an Consideration of the Indian Act, 1947 at 38.  
[374] According to the Minister’s remarks during the debates, the way to ensure that  
Indian blood would predominate in the future was to establish the “double-mother rule” or  
the “quatroon” rule but not give it any retroactive effect. Persons with mixed backgrounds  
whose names appeared on the lists and were deemed to meet past definitions were  
therefore protected. The lists and acceptance by the band were the key elements. These  
elements also weigh in favour of the interpretation accepted by Buchanan J.  
[375] However, during these same debates, the Minister said, the act, however, will not  
adversely affect anyone entitled to protection under the present act, and sympathetic  
consideration will be given to any person whose residence on a reserve has been  
accepted generally by the band”. The key term here perhaps being “consideration”, as  
opposed to “sympathetic”.  
[376] According to what Buchanan J. stated in Wilson, when band member status was  
demonstrated and this is the only criterion in s. 11(b) no uncertainty regarding the  
entitlement to be registered could persist. No evaluation of the validity of this status could  
be done, regardless of the basis for recognizing the status of band member, respecting  
which there was not necessarily any documentation either.  
[377] However, the same Buchanan J., or at least so it would appear, rendered a  
decision with a contrary effect a few years later in Re Samson Indian Band145  
(”Samson”):  
[23] … I agree with Mr. Steer that ss. 11 and 12, in fact, set the standards by which the  
Band Lists in existence in the Department of Indian Affairs upon the coming into force of  
the Act were to be regulated, corrected, and if found encumbered with the names of those  
not entitled to be registered, to be purged.  
[24] If the correct application of those sections results in the purging from Band Lists of  
the descendants of scrip takers, descendants who have passed their entire lives on  
reserves, and if that result is to be deemed inhumane it is for Parliament not for the Court  
145  
[1957] 7 D.L.R. (2d) 745 at para. 23.  
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to amend the legislation. It is not the function of the Court to whittle down and render  
nugatory the clearly expressed intentions of Parliament. On their fifth ground of objection  
[the ground in question submitted that s. 12 of the 1951 Act could not be given retroactive  
effect enabling the confirmation of status of the ancestors of persons on the Band List;  
see para. 19 of the judgment] the appellants therefore fail  
(Comment in brackets added by the undersigned.)  
[378] This last interpretation prevailed, assigning the Registrar with broad powers under  
s. 7 of the 1951 Act until the 1985 Act came into force.  
[379] Parliament did not amend the 1951 Act to follow through on the comment clearly  
calling for its intervention to correct a potentially unjust and inhumane effect of the Act or  
the powers exercised under it.  
[380] More than that, it once again enacted a provision giving the Registrar identical  
powers under the 1985 Act.  
[381] In the above case, Buchanan J. nevertheless quashed the Registrar’s decision  
denying the entitlement to be registered because the postings had been insufficiently  
proved and, consequently, the right to protest of persons who disputed the appellants’  
entitlement to be registered in that case never arose, resulting in an inquiry by the  
Registrar that was, ab initio, a nullity. Thus, a purely procedural ground allowed the  
appellants in that case to remain on the list.  
[382] History does not indicate whether they subsequently remained on the list or  
whether the Registrar exercised his power to delete their names from the list on his own  
initiative under s. 7 of the 1951 Act, a power that was explicitly recognized not only in  
that Act but also in Buchanan J’s judgment.146  
[383] The Court can only assume that the Registrar did not use his powers in the  
inhumane way described in the judgment, a manner of doing things that had already  
been decried in 1944, in the report by Justice MacDonald referred to above, where he  
wrote, “When individuals of mixed blood are admitted to treaty from time to time by the  
local agent with the approval, either express of implied, of the Department, it seems to  
me that their status, especially after the lapse of many years, should be held to be fixed  
and determined.”  
[384] The Registrar thus had the power to delete but also in some cases to add names  
to the Register on the basis of statutes that were applicable long before the 1951 Act  
came into force. It must be assumed here that he generally used this power to recognize  
the status of persons who did not appear on the original Band Lists used in 1951.  
146  
Ibid. at para. 14: “It should be stated that any action taken by the Registrar independently under s.7 is  
subject to the right of protest given by s. 9 of the Act.It is worth noting that in the case before us, the  
information on which the Registrar based his re-opening of the Appellants’ file was submitted to him by  
persons to whom he had not recognized the right to protest.  
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[385] How can lists that have been in existence since 1951 be “purged” of the names of  
persons who were registered without the so-called entitlement to be, and how can the  
names of persons who were entitled to be registered be added? The Registrar chose to  
verify whether they had “band member” status according to earlier laws, or “under” them,  
which is a possible and reasonable interpretation, or at least one that can no longer be  
modified now, as discussed above.  
[386] Because the statutes applicable in the territory of Lower Canada after 1850  
recognized the rights of Indians to live without licence on land reserved for their use,  
there was also a certain logic to considering those laws, as well as those from after  
Confederation. The 1951 Act was in fact an extension of those laws, providing in s. 18 for  
the holding by Her Majesty of reserves for the use of Indians.  
[387] The difficulty or, perhaps, the paradox, resides in the fact that these statutes did  
not in any way aim to ensure that systematic Band Lists were maintained. They were  
nevertheless a way to provide a minimum framework for the Registrar’s powers to  
correct the lists. The verification of a status under s. 11(a), which refers to a specific date  
and to specific statutes may, at first glance, appear to be relatively objective in nature.  
However, the laws that the provision mentions contain references to recognized band  
members and persons with Indian blood. They are, in fact, the same statutes, but they  
refer to a specific point in time and a specific right.  
[388] Could the Registrar have reduced the references to prior statues to the date  
referred to in s. 11(a), i.e., May 26, 1874? Perhaps, but that is not what he did, in view of  
the wording of ss. 11(c) and (d) conferring the entitlement to register on descendants of  
members of the band referred to in s. 11(b) and to descendants of the persons described  
in s. 11(a). For reasons already explained, the Court cannot accept a change to the  
interpretation that the Registrar has applied for more than half a century and that is  
enshrined in the Act, or any interpretation of this issue other than the one the Registrar  
made in this case.  
[389] The verification of the status of a band member under either 11(a) and 11(b)  
would become a Kafkaesque process for anyone hoping to have Indian status  
recognized or whose right to have it recognized was, for one reason or another,  
questioned by the Registrar on his own initiative.  
[390] Buchanan J.’s earlier decision in Wilson has remained undisturbed, however, with  
respect to the relevance of earlier Band Lists, although the appearance of a name on  
these lists can be contradicted by facts suggesting that a person had lost his or her  
status after being included on it.  
[391] Such an investigation became difficult to challenge as the rights of descendants in  
the male line could reasonably be seen as having devolved from a status that their  
ancestor should still have possessed when the eldest among them were born. Obviously,  
for members in the female line, marriage with non-Indians was a common cause for loss  
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PAGE: 93  
of status and also led to the conclusion that a name had to be struck or omitted from a  
Band List or the Register, starting with a statutory amendment made in 1869.  
[392] Despite the injustices that could result from the exercise of a power like the one  
expressly conferred on the Registrar in 1951, as described in Marchand, this power  
could be exercised without restriction until the 1985 Act came into effect. All the case law  
referred to above describes this same approach.147  
[393] The Registrar’s practice with respect to the addition of names to the Register  
despite the lack of contestation of the lists within the time period set out in the 1951 Act  
also benefited from the clarity brought by the judgment in Re Poitras,148 cited and  
repeated with approval in Samson:149  
[14] Sec. 9 of the Act gives the right to protest within six months after a list has been  
posted in accordance with sec. 8. Sec. 8 requires the list to be posted upon the Act  
coming into force in a conspicuous place in the superintendent’s office that serves the  
band, or persons to whom the list relates, and in all other places where band notices are  
ordinarily displayed.  
[15] The only evidence of posting as required by sec. 8 is that given by Mr. Malcolm  
McCrimmon, the registrar, who said the list was posted September 4, 1951. Mr.  
McCrimmon did not say where the list was posted nor did he say that it was posted as  
required by sec. 8. A photostatic copy of the band list is now before me [Mtre] and I  
observe there is attached thereto the following words:  
This list is posted pursuant to Section 9, Cap29, 15, George VI, 1951 (The Indian  
Act).  
[16] There is nothing in sec. 9 that requires a band list to be posted. It is sec. 8 that  
directs the posting. There is no evidence that the band list was posted in the  
superintendent’s office and in all other places where band notices are ordinarily  
displayed.  
[17] In absence of proof of posting the list in places stated in sec.8 the registrar, in my  
opinion, erred in entertaining the protest. In my opinion, the absence of proof of proper  
posting is fatal to the protestors’ right to be heard.150  
[394] It should be noted that this issue was not raised in any way during the registration  
of the Appellants in the early 1990s. The argument was also not invoked in the  
Registrar’s final decision after the protest. It was brought up in the 1994 opinions and in  
the arguments in this appeal.  
[395] By registering the Appellants a first time in the early 1990s and by not raising this  
issue in his draft decision rendered final in 2010, the Registrar waived the possibility of  
147  
See the case law cited in notes 129 to 131.  
Supra note 134.  
Supra note 145 at paras. 29 and 30.  
Re Poitras, supra note 134 at paras. 15 to 17.  
148  
149  
150  
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PAGE: 94  
invoking it to bar their registration. Since the record of appeal contains no facts about this  
issue, and given the decision quoted above, this is in no way surprising.  
[396] After 1985, the Registrar’s practice pursuant to s. 7 of the 1951 Act continued  
under the powers conferred by the current s. 5 of the Act. However, the judgment in  
Marchand, cited above, put an end to this practice for persons who were entered in the  
Register immediately before the coming into force of the 1985 Act.  
[397] It persists, however, when it comes to persons who were entered on the Register  
on or after April 17, 1985, as this case in fact illustrates. The Registrar deletes from the  
Register the names of persons that he entered earlier when he believes that he  
committed an error of fact or of law in entering them, and conducts an investigation to  
verify whether the ancestors’ names appeared on Band Lists that existed as far back as  
before Confederation.  
[398] It was according to the Registrar’s practice and administrative interpretation that  
was current even after 1985 that the Appellants were first registered, based on the band  
member status of the members of the family formed by Joseph, Vitaline and Antonio,  
under the laws deemed to be applicable to them at the time. They were then struck from  
the Register for reasons that, while varied, all related to the laws applicable to Joseph  
and his status, in light of the new facts about the Appellants’ female ancestor, Adéline  
Hébert, rather than Vitaline Bernard, who was not a band member.  
[399] This approach was reasonable in that it could be justified under the 1985 Act. It is  
in fact consistent with the administrative interpretation taken into consideration by  
Parliament when it adopted this Act, as we have seen.  
3.3.2 The Registrar’s conclusion that Joseph Landry was a recognized member of  
the Abenaki of Wôlinak Band and lived on the reserve for approximately eight  
years was reasonable  
[400] The facts accepted by the Registrar on the issue of recognition go beyond mere  
de facto recognition by the band and involve the recognition of Joseph’s status by non-  
Aboriginal authorities. In particular, the letter from a priest placing Joseph on a list of  
Indians who received money from the government had a determinative effect on the  
findings of fact on this issue, and on the issue of residence on the reserve in the final  
decision. The Registrar’s decision on this issue cannot be considered unreasonable  
because it is based on facts in the record and his expertise in assessing them.  
[401] During oral arguments, the AGC went so far as to point out that the Registrar only  
just barely concluded that Joseph had lived on reserve.  
[402] Again, it bears pointing out the incongruous nature of the AGC’s position on  
behalf of the Registrar in making submissions that, if accepted, imply that the decision  
under appeal, which in principle it should defend, is unreasonable.  
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PAGE: 95  
[403] The Court brings up this point only to better rely on the Registrar’s findings of fact,  
to which deference is owed, and not to question them.  
[404] The basis of this recognition was considered by the Registrar, while taking into  
consideration the legislative context, which is also reasonable. However, the Registrar  
still had to determine what this context was, based on reasoning that was justifiable  
under the applicable statutes. That is not what he did.  
3.3.3 The Registrar’s conclusion that Joseph Landry lost his status before the  
birth of his son Antonio Landry was unreasonable  
[405] Three observations ground the conclusion that the Registrar’s decision on this  
issue was unreasonable.  
First observation: The Registrar ruled out the possibility that Joseph Landry could  
have been recognized as a band member on a ground other than his marriage on  
the basis of an unreasonable interpretation of the applicable law  
[406] The Registrar committed several unreasonable errors of law, all of which result  
from his failure to reconcile the 1857 Act respecting Civilization with the statutes in force  
on the territory of Lower Canada at that time, and his failure to consider the actual  
purpose of all of these statutes.  
[407] Thus, the Registrar failed to note that:  
The definition in the 1851 Amendment to the 1850 Lands Act of the right to live on  
reserved lands applied for the purposes of all provisions relating to living on  
reserves and never stopped applying in the territory of Lower Canada;  
This definition did not allow a male person to live on reserve land in Lower  
Canada without licence merely because he was married to an Indian;  
The evidence reveals no written permission from the Governor to Joseph under s.  
3 of the 1777 Act, repeated in the 1861 Revised Statutes of Lower Canada  
respecting Indians and Lands. Such licence could not in any event be reconciled  
with the fact that Joseph received band moneys as an Indian and member of the  
band, a fact that the Registrar himself admitted;  
Joseph lived for approximately eight years on the reserve, whereas s. 2 of the  
1840 Act and the 1851 Amendment to the 1850 Lands Act allowed the Governor  
of Lower Canada to order, inter alia, any person who was not an Indian within the  
meaning of the 1851 Amendment which included male persons who claimed to  
have status because of their marriage to an Indian after 1851 to leave the  
reserve under pain of a fine or, failing payment, imprisonment.  
These provisions were repeated in ss. 3, 4 and 11 of the 1861 Revised Statutes of  
Lower Canada respecting Indians and Lands, and could have been invoked by the  
authorities during the same period that Joseph was living on the reserve with his  
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PAGE: 96  
family and, in 1863, receiving annuities intended for the band; Joseph left only  
after he married a second time on an undetermined date in 1868;  
Joseph’s clearly recognized status therefore had to be based on something other  
than his marriage to Vitaline Bernard, even if the Appellants are unable to provide  
specific documentation now;  
The only possible basis for recognizing Joseph as a band member under the laws  
in force at the time was that he was the descendant of an Indian member of the  
Abenaki of Wôlinak Band or had been accepted as such.  
[408] Because of this same failure to reconcile the statutes in force and thus preserve  
the purpose of these statutes, the Registrar assigned an absurd scope to the definition in  
s. 1 of the 1857 Act respecting Civilization, interpreting it as requiring an Indian to live on  
reserved lands at all times to remain an Indian.  
[409] All these errors mean that the registrar unreasonably found that the more  
restrictive definition provided in the 1851 Amendment to the 1850 Lands Act and the  
provisions suggesting that Indians could remain without licence on the reserve until 1869  
were implicitly repealed by the definition of s. 1 of the 1857 Act respecting Civilization,  
whereas it was in fact possible to arrive at an interpretation reconciling all of these laws.  
[410] These unreasonable errors justify the intervention of the Court. Here is how they  
can be demonstrated.  
[411] Joseph and Vitaline were married on March 7, 1859, in the territory of Lower  
Canada under the regime of the Union Act, which was in force between 1841 and 1867.  
[412] At the time, a single legislature enacted laws. These laws could be applicable in  
the territory of either Upper Canada or Lower Canada, or in the entire territory of the  
Province of Canada uniting these territories, also known as United Canada.  
[413] Precisely during the time period that concerns us here, the legislator also revised  
the laws applicable in these different territories.  
[414] It is not surprising that a certain confusion is apparent in the Registrar’s opinions  
and decisions on the issue of the applicable laws.  
[415] The relevant laws applicable on the territory of Lower Canada at the time Joseph  
and Vitaline were married were the following:  
1777 Act (province of Quebec, pre-union ordinance and pre-1791);  
1840 Act (province of Quebec, pre-union ordinance);  
1851 Amendment to the 1850 Lands Act (territory of Lower Canada during Union);  
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PAGE: 97  
1857 Act respecting Civilization (territory of United Canada or province of Canada  
during Union);  
[416] Although they came into force after the marriage of Joseph and Vitaline, the  
revision of the laws of Upper and Lower Canada and of the laws applying to the entire  
Province of Canada shed a useful light on the statutes applicable and in force at the  
time:  
The 1861 Revised Statutes of Lower Canada respecting Indians and Lands a  
revision of several laws applicable to the territory of Lower Canada appearing in  
the 1861 Revised Statutes of Lower Canada repeats the provisions of the 1777  
Act, the 1840 Act and the 1851 Amendment to the 1850 Lands Act;  
None of these statutes, moreover, appeared in the schedules to the 1859  
Revised Statutes of Canada that referred to laws repealed and revised at the  
time;  
The 1857 Act respecting Civilization as revised in 1859 came into force by  
proclamation on December 5, 1859,151 on the same date as the Consolidated  
Statutes for Upper Canada,152 while the Revised Statutes of Lower Canada came  
into effect on January 31, 1861.153  
[417] Finally, the following statutes applicable on the territory of Upper Canada also  
have some relevance, if only to ease the understanding of what was in force and what  
was able to remain in force, and because the 1857 Act respecting Civilization and the  
decision under appeal refer to the first one:  
1850 Act to Protect Indians and their Lands (territory of Upper Canada during  
Union);  
An Act to prevent trespasses to Public and Indian Lands (CSUC 1859) (territory of  
Upper Canada during Union);  
[418] Excerpts from each of these statutes can be found in a schedule to this judgment.  
These reasons will refer only to those that are the most relevant, with a view to yet  
without much real hope for simplification.  
[419] The Court’s interpretive exercise will seek to verify whether the Registrar’s  
reasoning can be justified by the applicable laws, which must be done due to the lack of  
detailed reasons in the decision under appeal on the issue of the reconciliation of the  
applicable laws.  
151  
Proclamation, (1861) 18 The Canada Gazette at 2864.  
Ibid. at 2865.  
Proclamation, (1861) 22 The Canada Gazette at 172.  
152  
153  
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PAGE: 98  
[420] The simplest way of proceeding with this necessary comparison is to refer to the  
provisions appearing in the 1861 Revised Statutes of Lower Canada respecting Indians  
and Lands.  
[421] The 1777 Act did not remain in exactly the same form in the 1861 Revised  
Statutes of Lower Canada respecting Indians and Lands, however. The content of its  
introductory paragraph is worth highlighting, however, as it implies that the prohibition  
against settling in what was designated at the time as “any Indian village or in any Indian  
country, within this Province” (“aucuns pays ou villages sauvages dans cette Province”)  
without a licence as provided under s. III did not apply to Indians at that time. This was in  
fact the Registrar’s interpretation, made reality in the era of the reserves. He stated in his  
judgment that Joseph could live on reserve without a licence as long as he had this  
status.  
[422] When reading the provisions of the Revised Statutes, it is important to bear in  
mind that they were all in force on the territory of Lower Canada when Joseph and  
Vitaline got married.  
[423] It must also be remembered that, as of 1851, the definition of “Indian” for the  
purposes of the right to live on reserved lands clearly excluded male persons other than  
descendants of band members, or more specifically, white men and Indians with no  
relationship with the band who were married to Indian women who were band members.  
[424] Below are the provisions in question, as they appeared in the 1861 Revised  
Statutes of Lower Canada respecting Indians and Lands. For more clarity, the references  
to the original statutes at the end of each provision are preserved:  
3. No person shall settle in any Indian village 3. Nul ne s’établira dans un village sauvage,  
or in any Indian country, within Lower ou dans une contrée sauvage, dans le Bas  
Canada, without a license in writing from the Canada, sans une permission par écrit du  
Governor, under a penalty of forty dollars for gouverneur, sous peine d’une amende de  
the first offence, and eighty dollars for the quarante  
piastres  
pour  
la  
première  
second and every other subsequent offence.  
17 G.3, c.7, s.3.  
contravention, et de quatre-vingts piastres en  
cas de récidive, et de toute autre contravention  
subséquente.  
17 G.3, c.7, s.3.  
4.  
The Governor may, by a written  
instrument, order any person who has become 4. Le gouverneur pourra, en vertu d’un  
resident in any of the Indian villages in Lower instrument par écrit, ordonner à toute personne  
Canada, to remove from such village; and in qui est venue résider dans aucun des villages  
case of default by the said person so to remove sauvages, dans le Bas Canada, de quitter tel  
from such Indian village, within seven days village ; et dans le cas où elle ne quitterait pas  
from such order being signified to him, he tel village sauvage dans le cours de sept jours  
shall forfeit the sum of twenty dollars, for each après que tel ordre lui aura été signifié, elle  
day after the said seven days, during which he encourra une amende de vingt piastres, pour  
continues to remain in such Indian village, chaque jour après les sept jours susdits qu’elle  
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PAGE: 99  
with all costs of prosecution, and shall suffer continuera de demeurer dans tel village  
imprisonment for a period not less than one sauvage, avec tous les frais de poursuite ; et  
month and not exceeding two months, and sera emprisonnée pour un espace de pas moins  
further, until he has paid the said last d’un mois, ni de plus de deux mois, et jusqu’à  
mentioned penalty and costs.  
ce qu’elle ait payé la dite amende et les frais.  
3,4V. c. 44, s.2  
3,4V. c.44, s.2  
5.All the penalties imposed by this Act, for the  
offences therein specified, may be recovered 5.  
Toutes les amendes imposées par le  
by information on behalf of Her Majesty, présent acte, pour les offenses qui y sont  
before any two or more of Her Majesty’s indiquées, pourront être recouvrées, sur  
Justice of the Peace, for the district in which plainte, au nom de Sa Majesté, devant deux ou  
the offence is committed: and such two or un plus grand nombre des juges de paix de Sa  
more Justices of the Peace shall hear and Majesté pour le district où l’offense est  
determine such information in a summary commise, et ces deux juges de paix, ou plus,  
manner, and upon the oath of one credible entendront et jugeront l’information d’une  
witness, and shall levy the said penalties, manière sommaire, et sur le serment d’un  
together with the costs of suing for the same témoin digne de foi, et prélèveront les  
by a warrant to seize and sell the goods and amendes susdites avec les frais de poursuite,  
chattels of the person or persons offending, par un warrant, ou ordre de saisie et vente des  
and shall inflict the said imprisonment in the biens et effets du contrevenant, et le  
manner hereinbefore provided; and all the said condamneront à l’emprisonnement en la  
pecuniary penalties shall be paid into the manière ci-dessus prescrite ; et toutes ces  
hands of the Receiver General, for the public amendes seront versées entre les mains du  
uses of this Province.  
receveur-général pour les usages publics de la  
province.  
3, 4 V. c. 44, s.3.  
3,4 V.c.44, s.3.  
6. All information under and by this Act, shall  
be brought within six months from the time 6. Toutes plaintes portées, sous l’autorité du  
that the offence is committed, and not présent acte, le seront dans les six mois après  
afterwards.  
que l’offense aura été commise, et non après.  
3,4 V. c. 44, s.4.  
3, 4 V. c. 44, s.4.  
[…]  
10.  
Nothing herein contained shall be  
construed to derogate from the rights of any 10. Rien de contenu au présent ne sera censé  
individual Indian or other private party, as déroger au droit d’aucun sauvage, ou individu,  
possessor or occupant of any lot or parcel of qui possède ou occupe un lot ou morceau de  
land forming part of or included within the terre, formant partie des terres dont le dit  
limits of any land vested in the Commissioner commissaire est mis en possession, ou compris  
aforesaid.  
dans les limites des dites terres.  
3,4V. c. 44, s.2  
3,4V. c.44, s.2  
11. For the purpose of determining what 11.  
Dans le but de déterminer quelles  
persons are entitled to hold, use or enjoy the personnes ont droit de posséder et occuper les  
lands and other immoveable property terres et autres propriétés immobilières  
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PAGE: 100  
belonging to or appropriated to the use of the appartenant ou affectées aux diverses tribus ou  
various tribes or bodies of Indians in Lower peuplades de sauvages dans le Bas Canada, et  
Canada, the following persons and classes of peuvent en jouir, les personnes et classes de  
persons, and none other, shall be considered as personnes suivantes, et nulles autres, seront  
Indians belonging to the tribe or body of considérées comme sauvages appartenant aux  
Indians interested in any such lands or tribus ou peuplades de sauvages intéressées  
immoveable property:  
dans telles terres ou propriétés immobilières :  
Firstly. All persons of Indian blood, reputed to Premièrement. Tous sauvages pur sang,  
belong to the particular tribe or body of réputés appartenir à la tribu ou peuplade  
Indians interested in such lands or immoveable particulière de sauvages intéressés dans les  
property, and their descendants;  
dites terres ou propriétés immobilières, et leurs  
descendants ;  
Secondly. All persons residing among such Secondement. Toutes personnes résidant parmi  
Indians, whose parents were or are, or either of les sauvages, dont les père et mère étaient ou  
them was or is, descended on either side from sont descendus, ou dont l’un ou l’autre était ou  
Indians, or an Indian reputed to belong to the est descendu, de l’un ou de l’autre côté, de  
particular tribe or body of Indians interested in sauvages, ou d’un sauvage réputé appartenir à  
such lands or immoveable property, and the la tribu ou peuplade particulière de sauvages  
descendants of all such persons; And  
intéressés dans les dites terres ou propriétés  
immobilières, ainsi que les descendants de  
telles personnes ; et  
Thirdly. All women lawfully married to any Troisièmement. Toutes femmes légalement  
of the persons included in the several classes mariée à aucune des personnes comprises dans  
hereinbefore designated; the children issue of les diverses classes ci-dessus désignées, les  
such marriages, and their descendants.  
14, 15 V. c. 59, s.2.  
enfants issus de tels mariages, et leurs  
descendants.  
14, 15 V. c. 59, s.2.  
[…]  
13. There shall be paid yearly out of the  
Consolidated Revenue Fund of this Province, a 13. Il sera payé annuellement, à même le  
sum not exceeding four thousand dollars, to be fonds consolidé des revenus de cette province,  
distributed amongst certain Indian tribes in une somme n’excédant pas quatre mille  
Lower Canada by the Superintendent General piastres, qui sera distribuée et répartie entre  
of Indian affairs, in such proportions amongst certaines tribus sauvages dans le Bas Canada,  
the said Indian tribes, and in such manner as par le surintendant général des affaires des  
the Governor in Council may from time to sauvages, en telles proportions et de telle  
time direct.  
manière, que le gouverneur en conseil  
l’ordonnera de temps à autre.  
Ibid, s.2. [17 G.3, c.7, s.2.]  
Ibid, s.2. [17 G.3, c.7, s.2.]  
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[425] The 1857 Act respecting Civilization, also applicable when Joseph and Vitaline  
got married, provided another definition and made that definition applicable to all laws  
applicable to Indians.  
I. The third section of the Act passed in the . La troisième section de l’acte passé en la  
Session held in the thirteenth and fourteenth session tenue en la treizième et la quatorzième  
years of Her Majesty’s Reign, chaptered années du règne de Sa Majesté, chapitre  
seventy-four and intituled, An Act for the soixante-et-quatorze, et intitulé : Acte pour  
protection of the Indians in Upper Canada protéger les sauvages dans le Haut Canada  
from imposition and the property occupied or contre la fraude, et les propriétés qu’ils  
enjoyed by them, from trespass and injury, occupent ou dont ils ont jouissance, contre  
shall apply only to Indians or persons of Indian tous empiétements et dommages, ne  
blood or intermarried with Indians, who shall s’appliquera qu’aux sauvages ou personnes de  
be acknowledged as members of Indian Tribes sang sauvage, ou mariées avec des sauvages,  
or Bands residing upon lands which have qui seront reconnues comme membres de  
never been surrendered to the Crown (or tribus sauvages, ou bandes résidant sur des  
which having been so surrendered have been terres qui n’ont jamais été cédées à la  
set apart of shall then be reserved for the use couronne ou qui ayant ainsi été cédées, ont été  
of any Tribe or Band of Indians in common) mises à part ou seront alors réservées pour  
and who shall themselves reside upon such l’usage de toute tribu ou bande de sauvages en  
lands, and shall not have been excepted from commun, et qui devront elles-mêmes résider  
the operation of the said section, under the sur ces terres, et qui n’auront pas été  
provisions of this Act; and such persons and exemptées de l’opération de la dite section, en  
such persons only shall be deemed Indians vertu des dispositions du présent acte ; et les  
within the meaning of any provision of the dites personnes seulement seront censées être  
said Act of any other Act or Law in force in sauvages, dans le sens de toute disposition du  
any part of this Province by which any legal dit acte ou de tout autre acte ou loi en vigueur  
distinction is made between the rights and en aucune partie de cette province, qui établit  
liabilities of Indians and those of her Majesty’s une distinction légale entre les droits et les  
other Canadian Subjects.  
obligations des sauvages, et les droits et les  
obligations des autres sujets canadiens de Sa  
Majesté.  
[426] The 1857 Act respecting Civilization as revised in 1859 repeats the same  
definition, with slight modifications:  
I.  
In the Following enactments, the term 1. Dans les dispositions suivantes, le mot  
«Indian» means only Indians or persons of «sauvage» ne s’applique qu’aux sauvages  
Indian blood or intermarried with Indians, ou personnes de sang sauvage, ou mariées  
acknowledged as members of Indian Tribes or avec des sauvages, reconnues comme  
Bands residing upon lands which have never membres de tribus sauvages, ou bandes  
been surrendered to the Crown (or which having résidant sur des terres qui n’ont jamais été  
been so surrendered have been set apart or are cédées à la couronne, (ou qui ayant ainsi  
then reserved for the use of any Tribe or Band été cédées, ont été mises à part ou sont dès  
of Indians in common), and who themselves lors réservées pour l’usage de toute tribu ou  
reside upon such lands, and have not been bande de sauvages en commun,) et qui  
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exempted from the operation of the next section elles-mêmes résident sur ces terres, et n’ont  
under the other provisions of this Chapter; And pas été exemptées de l’opération de la  
such persons and such persons only shall be section suivantes en vertu des autres  
deemed Indians within the meaning of any dispositions du présent acte; et ces  
provision of this Chapter or of any other Act or personnes seulement seront censées être  
Law in force in any part of this Province by sauvages, dans le sens des dispositions de  
which any legal distinction is made between the cet acte ou de tout autre acte ou loi en  
rights and liabilities of Indians and those of Her vigueur en aucune partie de cette province,  
Majesty’s other Canadian Subjects: And the qui établit une distinction légale entre les  
term “enfranchised Indian” means any person to droits et les obligations des sauvages, et les  
whom the next section would have been droits et les obligations des sujets canadiens  
applicable but for the operation of the provisions de Sa Majesté; et le terme «sauvage  
hereinafter made in that behalf: And the term émancipé» signifie toute personne à laquelle  
Tribe, includes any Band or other recognized la section suivante se serait appliquée, si les  
community of Indians.  
dispositions ci-dessous n’eussent été  
établies à cet égard; et le mot «tribu»  
comprend toutes bande ou autre société  
reconnue de sauvages.  
[427] As already noted a few times, in his decision, the Registrar accepted that the  
documents submitted by the Appellants demonstrate clearly that Joseph was recognized  
as a band member and as an Indian. His decision implied, however, that recognition of  
his status flowed from the definition of Indian under the 1857 Act respecting Civilization,  
which covered persons of both sexes married to Indians.  
[428] According to the Registrar, Joseph could be recognized as an Indian only if the  
definition in that statute could apply to him, that is, for so long as he was married to  
Vitaline Bernard and lived on reserved lands without a licence to do so.  
[429] The Registrar stated that he accepted that this statute extended the protection,  
which was more limited under the 1850 Act to Protect Indians and their Lands, to  
persons married to Indians who were recognized as members of the band and who lived  
on Indian territory. He also analyzed the 1857 Act respecting Civilization as implying that,  
among other things, Joseph lost all status by leaving the reserve.  
[430] These observations and analyses cannot find any basis in a reasonable  
interpretation of the applicable legislative provisions:  
(a) The 1850 Act to Protect Indians and their Lands applied only on the territory of  
Upper Canada. Therefore, it never applied to Joseph Landry, at least in  
respect of the right to live on reserved lands, as contemplated in s. X of that  
statute and not s. III, which is referred to in s. 2 of the 1857 Act respecting  
Civilization. See statutes 3 and 6 in the Schedule.  
(b) The 1850 Act to Protect Indians and their Lands, as it provided in section X,  
already applied to persons married to Indians, and they could consequently  
live on reserve in the territory of Upper Canada, long before the coming into  
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force of the 1857 Act respecting Civilization. See statutes 3 and 6 in the  
Schedule.  
(c) Instead, the 1857 Act respecting Civilization sought to limit the protection  
provided by the 1850 Act to Protect Indians and their Lands to only Indians or  
persons with Indian blood or married to Indians, thus introducing the notion of  
Indian blood, which had not been explicit before that, and limiting it to persons  
who were recognized band members with the right to live on reserved lands,  
which had not been required before that. See statutes 3 and 6 in the Schedule.  
(d) As for the Indians in Upper Canada, this statute, and in particular the definition  
it rendered applicable to all statutes establishing a distinction between the  
rights and obligations of Indians and those of other Canadian citizens,  
therefore did not expand or extend any additional protection whatsoever. In  
many respects, it even had the opposite effect, excluding among other things  
all protection for people of Aboriginal descent who were not recognized band  
members living on reserved lands. See statutes 3 and 6 in the Schedule.  
(e) That being the case, the objective of “civilizing” Indians was de facto achieved  
in part by excluding several categories of persons from the notion of Indian in  
all laws applicable to Indians at the time that granted them a certain protection.  
All that remained was to convince persons covered by the more restrictive  
notion of Indian thus established to seek enfranchisement. Clearly, the  
ultimate objective of the 1857 Act respecting Civilization was to extinguish all  
protection for Indians by assimilating those contemplated in that statute and by  
denying the existence of other Aboriginal people that had before been covered  
by protections granted. History reveals that the legislative expectations were  
not entirely fulfilled.  
(f) Even if the reference in the Registrar’s decision to the 1850 Act to Protect  
Indians and their Lands (Upper Canada only) is read as referring to the 1851  
Amendment to the 1850 Lands Act, the 1777 Act and the 1840 Act applicable  
on the territory of Lower Canada at the time, the 1857 Act respecting  
Civilization also did not extend the protection set out in those statutes.  
(g) First it should be noted that these statutes effectively establish distinctions  
between the rights and obligations of Indians and “other Canadian  
Subjects”,154 with the definition in the 1857 Act respecting Civilization  
effectively rendering them applicable under that statute. The Registrar was  
therefore reasonable in his approach by taking this definition into account.  
(h) If the source of the Registrar’s confusion was indeed s. II of the 1857 Act  
respecting Civilization which would not be surprising at all, considering its  
wording the analysis of all the provisions at issue establishes that  
Parliament’s failure to also refer to the 1777 Act as amended by the 1840 Act  
154  
This is the expression used in s. I of the 1857 Act respecting Civilization.  
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was probably inadvertent. These two ordinances were enacted under pre-  
Union regimes. Regardless, even if that is not the case, ss. I and II of the 1857  
Act respecting Civilization never rendered section X of the 1850 Act to Protect  
Indians and their Lands which is the provision concerning the right to live on  
reserved lands in Upper Canada and requiring a licence for persons other than  
Indians to live and settle on reserved lands applicable in Lower Canada, as it  
concerned only section III or the “third section” of that Act. This last provision  
sets out protections relating to judicial proceedings against Indians. See  
statutes 1, 2, 3 and 6 in the Schedule.  
(i) This interpretation is also confirmed in light of the 1857 Act respecting  
Civilization as revised in 1859, wherein the wording of s. 1 was adjusted and  
the scope of ss. 2 to 5 was narrowed to Indians in “Upper Canada”, since  
protections analogous to these existed in the 1777 Act and the 1840 Act that  
were applicable on the territory of Lower Canada. See statutes 1, 2 and 7 in  
the Schedule.  
(j) Moreover, the 1861 Revised Statutes of Lower Canada respecting Indians and  
Lands, a revision of the statutes applicable in Lower Canada, confirms that  
both the 1851 Amendment to the 1850 Lands Act and the 1777 Act as  
amended in 1840 continued to apply despite the coming into force of the 1857  
Act respecting Civilization. See the above excerpts from the Revision, also  
reproduced in statute 9 in the Schedule.  
(k) Since these statutes were applicable at the same time on the territory of Lower  
Canada, they must therefore be reconciled as much as possible before finding  
that there was conflicting legislation or adopting an interpretation that would  
have the effect of repealing one of them.155  
(l) The 1777 Act and the 1840 Act did not provide a definition of Indian. The 1850  
Lands Act defined the notion of Indian for the purpose of the right to live on  
reserved lands only. From then on, the provisions of the 1777 Act and 1840  
Act that affected these rights should have been interpreted with this definition  
in mind. When the definition was amended and narrowed in 1851, that was the  
one that became applicable. See statutes 1, 2, 4 and 5 in the Schedule.  
(m)From 1851 to 1857, the 1777 Act and the 1840 Act did not always provide a  
definition of Indian relating to protections other than those related to the right  
to live on reserved lands. The general definition rendered applicable by s. 1 of  
the 1857 Act respecting Civilization explicitly limited the scope of the term  
Indian for the purposes of these protections, in the same way it did for the  
1850 Act to Protect Indians and their Lands applicable on the territory of  
Upper Canada. There was no conflict, contradiction or implicit repeal, but  
merely an explicit amendment. See statutes 1 and 6 in the Schedule.  
155  
See note 110 and corresponding text.  
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(n) The two definitions of the term “Indian” applicable at the same time, one of  
which applied for the purpose of all laws respecting Indians and the other  
relating specifically to residential rights on reserved lands, raise more complex  
issues of interpretation.  
(o) Both the 1777 Act, applicable on the territory of Lower Canada, and the 1850  
Act to protect Indians and their Lands, applicable in Upper Canada, provided  
that a licence was required for persons other than Indians to live and settle on  
reserved lands. See statutes 1 and 3 in the Schedule.  
(p) That means that the requirement did not apply to the Indians of United Canada  
and that, at that moment in history, they could come and go without a licence.  
This is also the understanding of the Registrar, who stated in his decision that  
Joseph could live on the reserve without a licence as long as he was deemed  
to be an Indian. This interpretation by the Registrar is reasonable and finds  
support in the applicable legislation, in particular, in the introductory paragraph  
of the 1777 Act. See statutes 1 and 3 in the Schedule.  
(q) This is in fact the interpretation that must apply when taking into account births  
and status acquired through marriage, which involve the settlement of new  
people on a reserve, as well as the fairly nomadic way of life of some Indians  
who hunted and fished for entire seasons, and of those who were in residential  
schools, which involved long absences possibly followed by a return. This  
interpretation also implies that an Indian who was absent from the reserve for  
several years could return home without a licence and, more particularly in the  
territory of Lower Canada after 1851, according to the definition set out in the  
1851 Amendment to the 1850 Lands Act, that the descendant of an Indian  
deemed to belong to the band could do the same, even though he or she had  
never before lived on a reserve and was not born there. See statute 5 in the  
Schedule.  
(r) The 1857 Act respecting Civilization did not implicitly repeal these provisions  
by providing in the definition in s. 1 that Indians are, inter alia, persons who  
“shall themselves reside” (“devront elles-mêmes résider”) on reserved lands.  
This requirement can be interpreted in a manner that will reconcile it with the  
statutes applicable at the time. It should be read as referring to otherwise  
defined Indians who are entitled to live on Lands. This interpretation reconciles  
the 1857 Act respecting Civilization with the provisions referred to above, and  
avoids an interpretation with absurd effects, in particular that which would  
make an Indian lose all status and protection as soon as he or she leaves the  
reserve for a certain period of time.156 It is also not inconsistent with the  
156  
Such an interpretation would have in fact created nearly unsolvable problems and might have led to  
great uncertainty about the application of the protective measures provided by the acts respecting  
Indians. Did Indians who returned to live on reserve regain the protection of the laws applicable to  
Indians, or did they lose them permanently when they left? If they regained them, what was the  
required duration of non-residence on reserved lands before they stopped being Indian? Was the  
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purpose of the 1857 Act respecting Civilization. It requires a right to live on  
reserved lands, which is consistent with the fact that enfranchisement involved  
the granting of rights on reserved lands.  
(s) The Registrar’s interpretation to the contrary effect is unreasonable in that it  
implies that an implicit repeal of Indians’ mobility rights resulted from the  
provisions relating to the obligation of non-Indian persons to obtain a licence to  
live on reserved lands. See statute 6 in the Schedule, also cited above.  
(t) In some respects, and solely for the purpose of establishing who was entitled  
to live on reserved lands, the 1851 Amendment to the 1850 Lands Act  
provided an even more restrictive definition of “Indian” than the one in the  
1857 Act respecting Civilization. The 1851 Amendment aimed specifically to  
exclude men other than descendants of band members, even those married to  
Indian women band members, from the right to live on reserve, including white  
men and Indians not connected to the band.157 See the definitions of Indian in  
statutes 4 and 5 in the Schedule.  
(u) As noted above,158 two statutes are not in conflict merely because they apply  
to the same subject matter. Conflict is inevitable only when they are in direct  
contradiction with one another, i.e., the application of one explicitly or implicitly  
rules out the application of the other, or their concurrent application gives rise  
to unreasonable or absurd results.159  
(v) The 1857 Act respecting Civilization did not allow any white men or men of  
Indian blood with no connection to the band, whether or not they were married  
to Indian women, to live on reserved land in Lower Canada, or at least no men  
who were married after 1851. Such a finding implies the repeal of the 1851  
intention not to return to the reserve to live a requirement? When could such an intention be inferred  
from the circumstances? If they became Indian again when they returned to the reserve, should the  
transactions that they took part in while they were not residing there but that were assessed once they  
returned be considered protected by the laws applying to Indians? And so on. A few years later, a clear  
provision specifically provided that status would be lost as the result of time spent in a foreign country  
without written permission from the authorities. Section 10 of the 1886 Act provided: “Any Indian who  
has for five years continuously resided in a foreign country without the consent, in writing, of the  
Superintendent General or his agent, shall cease to be a member of the band of which he or she was  
formerly a member; and he shall not again become a member of that band, or of any other band,  
unless the consent of such band, with the approval of he Superintendent General or his agent, is first  
obtained.”  
157  
According to the drafters of the Dussault Report, it was enacted in response to the concerns of Indians  
precisely in order to prevent white men, who had little inclination to consider reserved lands from the  
perspective of Indian custom, from taking them over. The text itself indicates that there was a desire to  
exclude them, even if they were married to Indian women who were band members. Indians who could  
not demonstrate they were descendant from a band member were also excluded. See the Dussault  
Report, supra note 2, Vol. 1 at 287. The report also says, in Vol. 1 at 137: “In all cases, however, and  
wherever they are located, Indian reserves have been plagued since their creation by illegal non-Indian  
squatters and the unlicensed use and exploitation of timber and other resources on Indian lands.”  
Ibid.  
158  
159  
Ibid.  
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Amendment to the 1850 Lands Act and the impossibility of achieving the  
objective of increased protection for reserved lands in Lower Canada that this  
amendment specifically sought.  
(w)The definition in the 1857 Act respecting Civilization as revised in 1859 is not  
contradicted by the more restrictive definition applicable for the purposes of  
the right to live on a reserve only within Lower Canada, as of 1851; the  
definition aimed simply to ensure that the protection granted by that statute  
and by others could not be claimed by more individuals or individuals other  
than those described therein. It provided that the law applied only to Indians  
who met the definition, and that “only” these Indians were Indians within the  
meaning of the acts respecting Indians. This in no way means that the  
definition cannot be narrowed even more through the application of another  
statute. Moreover, by providing that Indians live on the lands, which amounts  
to requiring that they have the right to live there, this statute made its own  
application subject to compliance with other statutes relating to the right to live  
on them.  
(x) This was the same Parliament as that under the Union Act regime. It is  
presumed not to have been unaware of the differences and distinctions  
between the various statutes that it itself adopted and that applied on the  
territories of Upper Canada and Lower Canada at various times. Since the  
1857 Act respecting Civilization was supposed to apply to the entire territory,  
the definition provided therein was intended to include all persons entitled to  
live on reserved lands on both territories, pursuant to the statutes that were  
applied to them at different times.  
(y) This definition therefore preserved its entire scope over the territory of Upper  
Canada, seeing as the applicable law in Upper Canada, as previously noted,  
recognized the right of persons of both sexes married to Indians to live on  
reserves in that territory; it also preserved a meaning for men married to  
Indians before 1851 on the territory of Lower Canada, as well as for the  
purposes of the 1777 Act and the 1840 Act, concerning issues other than  
residence;  
(z) The Registrar’s interpretation was unreasonable in that its result was to repeal  
the 1851 Amendment to the 1850 Lands Act when there was an interpretation  
that reconciled the two definitions and made it possible to achieve the  
objectives of each statute.  
(aa) White men or Indians who were not descendant from band members but who  
married Indian women band members before 1851 and were recognized as  
band members and lived on reserve could therefore benefit from the 1857  
Act respecting Civilization as revised in 1859 and become enfranchised  
under that statute, thus bringing about the enfranchisement of their wives;  
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(bb) Joseph, however, could only benefit from it as a result of the recognition of  
status on the basis of a pure-blood Indian ancestor who was a member of  
the Abenaki of Wôlinak Band, because without such a status, he would never  
have been entitled to live on reserve in Lower Canada:  
i.  
He did not marry an Indian woman until 1859 and  
therefore could not have acquired the right to live on  
reserve in the territory of Lower Canada solely because of  
his marriage to her;  
ii.  
He was not born on reserve, and therefore could not be  
considered to be a person with Indian blood who acquired  
the right to live there without licence by birth;  
iii.  
The only remaining possibility was that he was the  
descendent of a band member, and this is in fact the  
burden that the Registrar said fell on the Appellants in his  
April 5, 1994, opinion, where he stated that, in the case of  
Joseph Landry, [TRANSLATION] “it would be necessary to  
establish that he was descendant from a member of the  
Abenaki of Wôlinak Band”.160  
[431] According to the foregoing, the Registrar’s conclusion that Joseph’s Indian status  
was recognized solely because of his marriage to Vitaline Bernard under the 1857 Act  
respecting Civilization is unreasonable because it was not based on the statutes at issue.  
Second observation: In view of the law applicable in the territory of Lower Canada  
at the time, the facts as found by the Registrar imply that Joseph Landry had  
status as a band member on a basis other than his marriage  
[432] The Registrar himself concluded that the Appellants had succeeded in proving  
that Joseph had lived on reserve and benefited from the status of band member and  
Indian for approximately eight years.  
[433] He attributed the basis of this recognition, unreasonably in law, to his marriage to  
Vitaline Bernard.  
[434] Because all the facts on which the Registrar’s assessment in this respect took  
place in Lower Canada at a time when the applicable laws permitted expelling any male  
person not descendant from an Indian deemed to be a band member from a reserve,  
whether or not he was married to an female Indian band member, the only possible  
outcome was to conclude that Joseph was the descendant of a member of the Abenaki  
of Wôlinak Band or had been accepted as such by everyone.  
160  
Letter of April 5, 1994, from the Registrar, DDR individual files (1634), vol. 10, tab 9 at 7.  
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[435] The concern with preserving white men’s land or Indian land not belonging to a  
band was already apparent in a statute applicable since 1851 on the territory of Lower  
Canada.161 Joseph was recognized by the band despite that statute. In light of the  
applicable legislative context, the Registrar cannot today question the determination  
made by the band, which was endorsed by non-Aboriginal authorities and which he  
himself recognized in his assessment of the facts.  
[436] The Court would not have taken the liberty of assessing the facts itself. The  
Registrar’s assessment could clearly have been based on the evidence and, when  
reread in light of the applicable legal context, it is no less valid merely because Joseph’s  
time on reserve that was recognized by the Registrar corresponds approximately with the  
duration of Joseph’s marriage:  
There is nothing in the file indicating that Joseph was expelled or no longer  
recognized as a band member once Vitaline Bernard died on the day after  
Confederation.  
There is also nothing to indicate that he might have been expelled after the  
coming into force of the 1868 Act in May 1868, a few months before his marriage  
to Adéline Hébert. The publication of [TRANSLATION] “three banns of marriage” was  
in fact done [TRANSLATION] “during parish sermons in Bécancourt” and Joseph was  
described as [TRANSLATION] “widower of full age of the deceased Victoire Bernard  
of Bécancourt”, while Adéline Hébert was described as “daughter of full age of  
David Hébert and Odile Tellier also of this parish”, according to the marriage  
certificate in the record.162  
He married Adéline Hébert in August 1868 and, until the 1871 census, there is  
nothing in the record indicating where they lived, that they were expelled from the  
reserve, or when exactly they moved to Larochelle, where they were included in  
the census.  
Any inference by the Registrar that the departure of Joseph and Adéline was not  
the consequence of their own choice or resulted from a rejection by the band is  
not based on concrete evidence. For that reason, such an inference is  
unreasonable.  
[437] In short, the Court exercises its role in accordance with the applicable principle of  
deference and does nothing more than observing the only possible outcome of the facts  
and the law.  
161  
This was also one of the concerns underlying the 1869 amendment to the 1868 Lands Act, according  
to the debates submitted by the AGC; Debates of the House of Commons, 1st Leg., 2nd sess., No. 32-  
33 Vic., April 27, 1869, at 84. On the other hand, it should also be understood that these restrictions  
also had the effect of reducing the amount of new blood on reserves, including new Indian blood from  
people with other Aboriginal backgrounds and maybe even descendants of band members who could  
not document their background to the satisfaction of the non-Aboriginal authorities.  
162  
Marriage certificate of Joseph Landry and Adéline Hébert, DDR 1551, Vol.7, tab 4 at 27.  
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Third observation: The laws applicable to Joseph Landry after the recognition of  
his status as a band member did not cause him to lose this status, and the facts  
do not ground a reasonable conclusion that he lost his status when his son  
Antonio Landry was born  
[438] The key moment where it must be determined whether Joseph still had band  
member status and was a person described in s. 11(b) of the 1951 Act for the purposes  
of ss. 11(c) and (d) is the birth of Antonio. The Registrar recognized this; he addressed  
the issue in the decision under appeal and identified it as the applicable criterion for  
refusing to recognize the Appellants’ entitlement to be registered in his April 1994  
opinion, which was made final in 1996.  
[439] The Registrar’s finding may be based on the fact that the question here is the right  
of the descendants of a person described in s. 11(b) and the children of descendants  
described in s. 11(c), in accordance with both s. 11(c) directly, which gives the  
entitlement to be registered to all descendants in the male line from persons described in  
s. 11(b), and s. 11(d), which provides for the entitlement to be registered of the children  
of descendants in the male line described in s. 11(c). These are the provisions invoked  
by the Appellants. The Registrar therefore required that they demonstrate that their  
ancestor Joseph was a band member who had not lost his status when Antonio was born  
in February 1874, as he was the first descendant in the male line from whom the  
Appellants claim to receive their entitlement to be registered.  
[440] This requirement can be reasonably based on the law.  
[441] Up until the birth of Antonio in February 1874, the provisions preserving the right  
of Indians to live on reserve without licence must be taken into account, while also  
considering the coming into force of the 1868 Lands Act and its 1869 amendment.  
[442] The licence requirement for persons other than Indians flows from the 1777 Act  
and, as we have seen, implied that Indians were entitled to live there without licence. The  
1850 Lands Act contained a reference specifically providing that nothing in the contents  
of that act “shall be construed to derogate from the rights of any individual Indian or other  
private party, as possessor or occupant of any lot or parcel of land forming part of Indian  
territory.163 This reference was not amended in 1851. The two statutes were still  
considered to be in force after Joseph married Vitaline in 1859 and while he lived with  
her and their children on the reserve. Their provisions were also repeated in the 1861  
Revised Statutes of Lower Canada respecting Indians and Lands. They were still in force  
when Vitaline Bernard died on July 2, 1867, as the Constitution Act, 1867 specifically  
provided that statutes enacted under the previous regime remained in force.  
[443] As noted above, these provisions mean, inter alia, that any Indian band member  
who had resided on lands reserved for the band and who subsequently left could return  
to settle there without a licence.  
163  
Section IV of the 1850 Lands Act, repeated in s. 3 of the Revised Statutes of Lower Canada respecting  
Indians and Lands.  
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[444] During the years that Joseph remained on reserve as a recognized member of  
the band and as an Indian, he acquired the right to return to live there without a licence.  
The 1868 Act did not affect this right, given the wording of s. 15 of that Act, which is in no  
way inconsistent with the prior definition of Indian, and the absence of any other  
provision inconsistent with that right at the time. Section 42 also provides that any  
inconsistent Act was repealed, except only as to things done before the coming into force  
of that Act.  
[445] The coming into force of the 1868 Lands Act in May 1868, which was shortly  
before Joseph’s marriage to Marie-Adéline Hébert that same year, changes nothing with  
regard to the fact that in marrying a recognized band member benefiting from the  
acquired right to live on reserved land without a licence, she was marrying the  
descendant of a pure blood Indian deemed to belong to the band or recognized as such.  
[446] The legal consequences of this fact under s. 15 of the 1868 Act was to confer the  
status of Indian on her within the meaning of that statute at that time. These provisions  
therefore in no way caused Joseph to lose his status, but they did result in Adéline  
Hébert gaining status upon marrying him. Whether or not Adéline Hébert identified with  
Aboriginal culture has nothing to do with the effect of the applicable legislative provisions.  
[447] According to the 1869 statutory amendment, from then on, no Indian would be  
deemed to lawfully be in possession of reserved land unless he or she had obtained the  
right to be located there by the order of the Superintendent General of Indian Affairs.  
Thus, even with Indian status, Joseph no longer had a vested right to live without  
permission on reserved lands as of 1869. As a band member and Indian, however, he  
was still entitled to obtain the right to live there by complying with s. 1 of the 1869  
amendment to the 1868 Lands Act.  
[448] Whether or not he complied with the provisions has no relevance for the purposes  
of his status as a person described in s. 11(b) of the 1951 Act, i.e., status of member of  
the Abenaki of Wôlinak Band.  
[449] The amendment did not withdraw this status from him, but it meant that to return  
to live on lands reserved for the Abenaki of Wôlinak or to continue to do so, he had to  
obtain the right to locate there by order of the Superintendent General. There is no  
evidence in the record establishing that Joseph asked to obtain such a right and was  
refused.  
[450] As for this Act’s amendment to the definition of Indian, which had the effect of  
removing any status from an Indian woman who married anyone other than an Indian, it  
had no impact on Joseph’s status, or on Adéline’s newly acquired status through her  
marriage to Joseph.  
[451] The Registrar’s conclusion that Joseph had lost all status because he could no  
longer benefit from the 1857 Act respecting Civilization as revised in 1859 is  
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unreasonable in law for the reasons set out above. Moreover, that statute was repealed  
by s. 23 of the 1869 amendment to the 1868 Lands Act.  
[452] In light of the above analysis, Joseph benefited from a status under the provisions  
of the 1868 Lands Act and maintained this status after the 1869 amendment. In fact, s. 4  
of the 1869 amendment to the 1868 Lands Act explicitly preserved Joseph’s right to his  
share of the annuities paid to the band, without regard to his portion of Indian blood.  
Specifically, this provision provided that the requirement that “no person of less than one-  
fourth Indian blood ... shall be deemed entitled to share in any annuity” applied only to  
persons born after the Act was passed. Moreover, s. 13 of the same Act, which provided  
for the right of Indians to enfranchisement, no longer imposed any requirements relating  
to the right to live on reserve, contrary to the 1857 Act respecting Civilization as revised  
in 1859, which it repealed. (See ss. 4, 13 and 23 of statute 11 in the Schedule).  
[453] Section 4 of the 1869 amendment to the 1868 Lands Act, however, might possibly  
have had an effect on the children of Joseph and Adéline and their right to annuities. In  
fact, this could very well explain the decision of the two parents to leave the reserve.  
[454] It was not possible to reasonably find that Joseph had lost his status as a band  
member when Antonio was born in February 1874.  
[455] Factually speaking, there was also no reason to rule out the possibility that the  
recognition of his status continued, or to believe that the band or non-Aboriginal  
authorities would have refused to allow him to settle on reserved lands if he had wanted  
to or had complied with the applicable provisions.  
[456] When the Registrar referred to evidence of Joseph’s lifestyle, he was attempting  
to verify whether Joseph was still “recognized” by everyone as being a band member.  
[457] The issue as to whether people could lose status that they had been  
acknowledged to have, solely on the basis of a subsequent analysis of the facts and  
without any statutory provision stating that they must lose it as was the case for Indian  
women marrying non-Indian men, for example is a difficult one. In principle, a mere de  
facto refusal to recognize status is not tantamount to a demonstration that the status did  
not exist in law. A band’s refusal to recognize status under the rules of belonging  
applicable at the time might have such an effect, however, because the provisions refer  
to an acknowledged member of a band.  
[458] Assuming that Parliament wished to leave such questions in the hands of the  
Registrar, the evidence on the record does not in any event allow for this conclusion to  
be reasonably drawn.  
[459] Commencement of proof of the loss of recognized status would require at a  
minimum that the facts justify a finding that there was a later refusal to recognize this  
status, either by the band or by the authorities themselves, in connection with the  
exercise of the rights related to this status. There is no such evidence on the record of  
such a refusal.  
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PAGE: 113  
[460] By referring both to the band’s rules of belonging based on an approach that the  
drafters of the Dussault Report described as a “natural, community-based and self-  
identification approach to determining group membership”164 and to the rules in the  
applicable laws with their “purely legal approach controlled by non-Aboriginal  
government officials”,165 the record does not justify concluding that Joseph Landry was  
refused anything at all up until the time his son Antonio was born. It is worth repeating:  
there is a complete absence of evidence in this respect.  
[461] First, it should be observed that there is a total absence of any evidence on the  
rules of belonging to the Abenaki of Wôlinak community at the time. Any conclusion that  
Joseph was no longer a band member, therefore, could only be based on a stereotype  
that assumes that Joseph no longer identified with the band and was not interested in  
taking active part in the life of the band because he lived off-reserve and had married a  
non-Indian.166  
[462] To assume that he had to avail himself of the right to annuities systematically and  
therefore appear on all Band Lists of the time to take part in the life of a band and belong  
to it would be equally reductive, especially since the lists were far from systematically  
maintained and did not include anywhere near all the people who were entitled to be on  
them, as illustrated by the note in the 1863 letter stating that many families were absent  
from the Wôlinak reserve when the list was drawn up in June 1863. This fact is also  
confirmed in the Dussault Report.  
[463] In the amendments to the 1868 Act, which came into force on May 26, 1874,  
shortly after Joseph’s birth in February of that year, s. 8 provides that Indians would be  
defined as persons within the definition of the 1868 Act as amended in 1869 and who  
“participate in the annuities and interest moneys and rents of any tribe, band or body of  
Indians” (see statute 12 in the Schedule).  
[464] This provision, like the reference to Indians who “shall reside” and “reside” on the  
lands in the 1857 Act respecting Civilization and its 1859 revision must be construed as  
referring to the right to take part in these benefits. This is in fact what Mahoney J.  
concluded in Bay v. Canada (Registrar of Indians).167 Indeed, as already seen, s. 4 of the  
1869 amendment to the 1868 Lands Act specifically preserved the right to annuities of  
Indians born before 1869, such as Joseph.  
[465] Moreover, there is no Band List in the record on which Joseph’s name might have  
been excluded between the 1863 list, where he appears, and the birth of Joseph in  
February 1874. Through his research, the Registrar was able to track down several Band  
Lists but only ones from prior to the 1863 list submitted by counsel for the Appellants or  
from after February 1874. The later lists, which indeed do not include his name, were  
164  
Dussault Report, supra note 2, Vol. 1 at 251.  
Ibid.  
By analogy, but in a current context, see Corbière v. Canada (Minister of Indian and Northern Affairs),  
165  
166  
[1999] 2 S.C.R. 203 at para. 18.  
Supra note 130 at para. 15.  
167  
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PAGE: 114  
from 1893 and after. There is no Band List between 1863 and February 1874 on the  
record.  
[466] The Registrar therefore had no evidence to justify an assumption that Joseph’s  
name was omitted before the relevant time, i.e., the birth of Antonio, and even less any  
to justify a conclusion that such an omission which is purely hypothetical occurred  
“under” a statutory provision or because Joseph was no longer recognized as a band  
member.  
[467] Even if non-Aboriginal authorities identified Joseph and his second family as  
French-Canadian in the censuses, or even if he identified himself that way, this has  
nothing to do with the exercise of the rights related to Joseph’s status.  
[468] These facts do not mean that the band members had excluded Joseph, or that he  
no longer identified with the band. The situation also did not legally remove Joseph’s  
status, which had earlier been acknowledged.  
[469] Finally, the fact that Antonio, Joseph’s son from his second wife, married a  
member of the Abenaki of Wôlinak Band in 1897, nearly 29 years after Joseph left,  
weighs against finding that all connections between the Landry family and the Abenaki of  
Wôlinak were broken.  
[470] This all means that the only possible outcome based on the evidence on the  
record is that it was impossible to find that, when Antonio was born, Joseph had lost the  
status he had earlier been recognized. It even means that Antonio had status at birth as  
a descendant of a band member, pursuant to the provision applicable at the time, which  
was s. 15 of the 1869 amendment to the 1868 Lands Act. It was in fact only after the  
amendment that took place a few months after Antonio’s birth that it became necessary  
to be entitled to annuities to be able to possess band member status under s. 8 of the  
1874 amendment to the 1868 Lands Act as amended in 1869 (see statutes 10, 11 and  
12 in the Schedule).  
[471] Thus, Antonio Landry was born a member of the Abenaki of Wôlinak Band in  
February 1874, but, unlike his father Joseph, he was probably never entitled to share in  
the annuities given to the band. Based on the evidence on the record, his mother, Indian  
by marriage, could not say that she had Indian blood, and his father could establish his  
own Indian blood only through ancestors more distant than his parents. Antonio therefore  
in all probability could not prove that he had a quarter or more Indian blood to meet the  
requirements under s. 4 of the 1869 amendment to the 1868 Lands Act. It is therefore  
not surprising that the Landry family name was not subsequently found on the Band Lists  
prepared for the distribution of these annuities. However, more than 50% Indian blood  
flowed in the veins of his children with Clothilde, assuming that this band member was  
considered to have 100% Indian blood. Antonio and Clothilde never lived on reserve,  
however, and their Aboriginal ancestry and that of their children was overlooked for some  
time, in legal terms. This time came to an end in 1951, with the coming into force of s.  
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PAGE: 115  
11, though the Landry family did not avail themselves of it until after the coming into force  
of the 1985 Act, which preserved their vested rights.  
[472] The Appellants, all descendants of Joseph and Antonio, could therefore benefit  
from Joseph’s status as a band member under provisions previous to the 1951 Act, since  
Joseph was a person described in s. 11(b) of the 1951 Act for the purposes of their  
entitlement to be registered under ss. 11(c) and (d) of the 1951 Act and s. 6(1)(a) of the  
Act.  
3.4  
The appropriate remedy  
[473] For the purposes of the 1951 Act and with regard to all of the descendants in the  
male line to whom the Act applied between September 4, 1951, and April 16, 1985,  
inclusively, Antonio, his sons, their sons in turn, and so on in the male line, are also  
direct male descendants in the male line of a person “described” in s. 11(b), or in other  
words, a band member. According to s. 11(c) of the 1951 Act, they were therefore  
entitled to be registered.  
[474] Section 6(1)(a) preserved their entitlement to be registered upon the coming into  
force of the 1985 Act.  
[475] Several other Appellants in the male line also have other bases for their right, as  
the Registrar’s processing of their files reveals, because if they are children of a  
marriage, their fathers’ wives gained or were presumed to have gained status under s.  
6(1)(a) in accordance with the laws applicable at the relevant time. This right was also  
enhanced through the remedy granted to victims of the Double Mother Rule, as seen in  
the “Overview” section of this judgment.  
[476] As for Antonio’s daughters, granddaughters and other female descendants, even  
those in the male line, and their male and female descendants in turn, still today, their  
status in law is treated differently from those of male descendants in the male line, solely  
because of their sex.  
[477] Male descendants in the male line to whom the 1951 Act applied all had status  
under s. 6(1)(a) and would pass on their status to their children.  
[478] A female descendent interrupts the male line, and other rules then apply.  
[479] By 1991, all of Antonio’s children had obtained status under s. 6(2) of the Act,  
which they could only pass on to their children if their other parent also had status. These  
are the Appellants Gisèle Chamberland-Robert, Carmen Chamberland-Landry, Colette  
Chamberland and Serge Dumontier. Their descendants, if any, are not among the  
Appellants in this case. All the other Appellants have more ancestors in the male line.  
[480] It is impossible in this judgment to reproduce the huge table submitted to the  
Court that includes all the Appellants in this case, amounting to nearly a hundred  
individuals. The most disadvantaged female line stops with Antonio’s grandchildren, i.e.,  
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PAGE: 116  
the four children of his daughters referred to above, the last of whom was born on  
October 22, 1947. The most disadvantaged male line stops several generations later,  
with the last descendent Appellant in the case born on July 20, 1989. The contrast is  
striking and distressing in terms of the right to equality and the lack of fairness between  
male and female cousins, their children, and their grandchildren.  
[481] There is nothing the Court can do in this respect in terms of remedies, since this is  
not a constitutional action. The Act, whatever its nature, must be applied so long as it is  
in force, including its unfair and discriminatory effects. Perhaps the corrective measures  
granted in 2010 may apply, or perhaps future ones will compensate for this deplorable  
situation that this case cannot resolve. It does bring it quite clearly to light, however.  
[482] It will be recalled that, in McIvor, the discriminatory effects based on sex were  
deemed justified by the objective of preserving vested rights, subject to the comparison  
with a group of victims of the Double Mother Rule, who obtained rights greater than the  
vested rights preserved under s. 6(1)(a) of the 1985 Act. In Descheneaux, the  
undersigned commented on McIvor and gave reasons for disagreeing with the  
conclusion in that judgment whereby discrimination resulting from the vested rights is  
justified.168  
[483] It is not necessary to send the case back to the Registrar so that he may re-  
assess the facts in light of the legal context that was actually applicable. The Appellants  
are entitled to be registered because no other result is possible in light of the file and a  
reasonable assessment of the facts in view of the applicable law.  
[484] This is based on:  
168  
The Court here reiterates the reservations regarding the British Columbia Court of Appeal’s  
characterization of the remedy granted in first instance in McIvor and regarding the justification of the  
discrimination because vested rights were preserved. See Descheneaux, supra note 5 at footnote 9  
and paras. 180 to 192 and 210. To paraphrase the recent comment of the Supreme Court in Daniels,  
supra note 3 at para. 49, there is no principled reason that persons who are no longer accepted by  
their communities because they were separated from them as a result of government policies should  
be excluded from the protection of the Acts and, it should be added, in view of the right to the same  
protection and benefit of these Acts, from the equality rights enshrined in s. 15 of the Canadian  
Charter. However, this is what Parliament did in 1985, when, after the debates, it struck a compromise  
between equality rights and the will of the communities to decide the rules for band membership. All  
this to say, the Court was and is in principle in full agreement with the remedy granted by the trial judge  
in McIvor. The remedy sought to do nothing more than grant equal treatment to the descendants of  
Indian women excluded for discriminatory reasons, while the descendants of Indian men in the male  
line could and those born before 1985 still can obtain Indian status by identifying an Indian who  
was registered or a band member among their forebears and receive the attending benefits. This  
remedy, however, necessarily had significant financial consequences. Practically speaking, Parliament  
should have had the option to make its decisions in light of the financial issue in particular, as well as  
possibly other options. It did not have to do so to such a broad degree as what the trial judgment in  
McIvor implied, since the Court of Appeal judgment considerably limited the finding of unjustified  
discrimination while referring the issue back instead of imposing its own remedy. As for the remedy  
that was finally imposed, Parliament limited it to the barest minimum.  
500-17-066945-117  
PAGE: 117  
the Registrar’s own assessment of the facts, where he found that Joseph Landry  
was an acknowledged member of the Abenaki of Wôlinak Band and lived on the  
reserve for more than eight years, having married a member of the Band in 1859,  
been included in the census there in 1861, received annuities in 1863, had  
children there in 1860 and 1864 (one having died in 1865), and been personally  
identified as an Indian in all of the documents related to these events or facts;  
when he remarried, more than a year after the July 2, 1867, death of his first wife  
Vitaline Bernard, i.e., in August 1868, the marriage certificate stated that he was  
from Bécancour, where the reserve was;  
the fact that Joseph did not meet the definition of Indian in effect on the territory of  
Lower Canada when all these facts took place because of his marriage to Vitaline  
Bernard;  
the fact that, when all these facts took place, there was only one legal basis for  
Joseph’s recognition as a band member, namely, that he was at the time  
recognized or considered to be the descendent of a member of the Abenaki of  
Wôlinak Band; and  
the absence in the record of any fact and of any legislative provision likely to lead  
to the conclusion that Joseph lost his status as member of the Abenaki of Wôlinak  
Band before the birth of his son Antoni, considering the basis on which this status  
was acknowledged.  
[485] It is quite rare for a judge exercising a power of review in which the standards of  
administrative law apply to decide the outcome of the action. However, that is the case  
here, as no other outcome is possible. Section 14.3(4) of the Act also explicitly allows for  
this to happen.  
[486] It is nevertheless necessary to return the file to the Registrar so that he may  
establish precisely which provision applies to the status of each of the Appellants (s. 6(1)  
or s. 6(2)), as this issue is likely to involve facts or an application of corrective measures  
which, rightly, are not before the Court or were not argued or submitted before it, as they  
are not the subject of the decision under appeal.169 Any such determination would only  
improve the Appellant’s status recognized in the early 1990s, however, given the  
correctives that were not yet in force at the time.  
169  
The submissions to the Court in the letters dated December 17, 2015, and January 22, 2016, from  
counsel for the parties confirm that the Registrar would establish the specific mechanism whereby the  
provisions would be applied to determine the status of each of the Appellants under s. 6(2) or s. 6(1).  
The Registrar did not deal with the Appellants’ situation in light of the correctives that were imposed  
after McIvor or, obviously, those that were established after Descheneaux. Out of deference for the  
specialized duties of the Registrar, and because such an exercise would be of nearly insurmountable  
difficulty without a prior analysis from the Registrar, it would be inappropriate, or at the very least risky,  
for the Court to express any opinion on these matters. Moreover, not all the relevant facts are  
necessarily on the record. Ultimately, out of respect for the still-ongoing legislative process regarding  
the statutory amendments further to the ruling in Descheneaux, no remark about the bill in its current  
state will be made.  
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PAGE: 118  
[487] The Appellants’ entitlement to be registered should be re-established in light of ss.  
11(c) and 11(d)(ii) of the 1951 Act and s. 6(1)(a) of the Act, along with any corrective  
measures under s. 6(1) that may apply. It goes almost without saying that the status of  
any spouse must also be considered in the decision to be rendered.  
[488] In light of the foregoing, the appropriate remedy is to reverse the Registrar’s  
decision and order him to re-register the Appellants in the Register pursuant to this  
judgment and the Act as amended since the Appellants’ names were deleted. These are  
the conclusions sought in the consolidated notice of appeal.  
[489] In conclusion, the Court also notes that the complex legal arguments raised in this  
case were argued with impeccable skill by counsel for the appellant and respondent  
parties. They were all considered, although the disposition of this appeal did not require  
a decision on all of them.  
[490] FOR THESE REASONS, THE COURT:  
[491] ALLOWS the appeal;  
[492] REVERSES the Registrar’s decision of January 28, 2011;  
[493] ORDERS the Registrar to re-register the Appellants in the Indian Register  
pursuant to this judgment as well as the amendments to the Indian Act since their names  
were deleted from the Indian Register;  
[494] WITH LEGAL COSTS.  
__________________________________  
Chantal Masse, J.S.C.  
Mtre Nicholas Dodd  
Mtre Marie-Eve Dumont  
Mtre Charlotte Chicoine-Wilson  
Dionne Schulze  
Counsel for the Applicants  
Mtre Nancy Bonsaint  
Mtre Mireille-Anne Rainville  
Minister of Justice Canada  
Counsel for the Defendant  
Date of hearing:  
November 23, 24, 25 and 26, 2015, and January 12, 2017  
December 17, 2015, letter from Mtre Mireille-Anne Rainville  
January 12, 2016, letter from Mtre Nicholas Dodd  
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PAGE: 119  
January 14, 2016, telephone conference  
January 22, 2016, letter from Mtre Nicholas Dodd  
January 29, 2016, letter from Mtre Nancy Bonsaint  
January 9, 2017, letter from the Court  
500-17-066945-117  
PAGE: 120  
SCHEDULE  
Excerpts from the most relevant statutes  
1. An Ordinance to Prevent the Selling of Strong Liquors to the Indians in  
the Province of Quebec, and also to Deter Persons from Buying their Arms  
or Clothing, and for Other Purposes Relative to the Trade and Intercourse  
with the Said Indians, 17 Geo. III, c. 7 (Que., 1777)  
Whereas many mischiefs may be occasioned Pouvant arriver plusieurs malheurs de la  
by the practice of selling Rum and other pratique de vendre aux Sauvages de l’eau-de-  
Strong Liquors to the Indians, and of buying vie et autres liqueurs fortes, d’acheter leurs  
their Cloaths and Arms, and also by Trading armes et leurs habillements, comme aussi de  
with the said Indians, or settling amongst commercer avec lesdits Sauvages ou de  
them, without a Licence, it is ordained and s’établir avec eux sans une permission; il est  
enacted by His Excellency the Captain Statué et Ordonné par Son Excellence le  
General and Governor-in-Chief of this Capitaine-Général et Gouverneur en Chef de  
Province, by and with the advice and consent cette Province, de l’avis et consentement du  
of the Legislative Council of the same, that Conseil Législatif d’icelle ce qui suit, que du  
from and after the publication of this jour et après la publication de cette  
Ordinance, no person or persons whatsoever Ordonnance, qui que ce soit ne vendra,  
shall sell, distribute, or otherwise dispose of, distribuera ou autrement disposera à tous  
to any Indian or Indians within this Province, Sauvages en cette Province, ou à tous autres  
or to any other person or persons for their use, particuliers, pour eux aucuns eaux-de-vie ou  
any Rum or other strong Liquors, of what kind autres liqueurs fortes de quelques sorte ou  
or quality soever, or shall knowingly or qualité qu’elles soient, ou ne souffrira, en  
willingly suffer the same, in any manner, to quelque manière que ce soit, sciemment et  
come to the hands of any Indian or Indians, volontairement qu’il en parvienne aucunes  
without a special Licence in writing, for that entre les mains de tous Sauvages, sans en  
purpose first had and obtained from the avoir premièrement obtenu une permission  
Governor,  
Lieutenant  
Governor,  
or expresse et par écrit du Gouverneur, du  
Commander-in-Chief of this Province for the Lieutenant-Gouverneur ou du Commandant en  
time being, or from His Majesty’s Agents or Chef de cette Province, ou des agents ou  
Superintendants for Indian affairs, or from His surintendants de Sa Majesté pour les affaires  
Majesty’s Commandants of the different Forts des Sauvages, ou des commandants des  
in this Province, or from such other person or différents forts de Sa Majesté en cette  
persons as the Governor, Lieutenant Province, ou d’autres que le Gouverneur, le  
Governor, or Commander-in-Chief of the Lieutenant-Gouverneur ou le Commandant en  
Province for the time being, shall authorise for Chef de la Province autorisera à cet effet.  
500-17-066945-117  
that purpose.  
PAGE: 121  
[…]  
III. Du jour et après la publication de cette  
III. From and after the publication of this Ordonnance, il ne sera permis à qui que ce soit  
Ordinance, it shall not be lawful for any de s’établir dans aucun pays ou villages  
person to settle in any Indian village or in any sauvages dans cette Province, sans une  
Indian country, within this Province, without a permission par écrit du Gouverneur, du  
Licence in writing from the Governor, Lieutenant-Gouverneur ou du Commandant en  
Lieutenant Governor, or Commander-in-Chief Chef de la Province, sous peine d’une amende  
of the Province for the time being, under a de dix livres pour la première contravention,  
penalty of Ten pounds for the first offence, et de vingt livres en cas de récidive et de toute  
and Twenty pounds for the second, and every autre contravention subséquente.  
other subsequent offence.  
2. An Ordinance to repeal certain parts of an Ordinance therein-mentioned,  
and to amend certain other parts of the said Ordinance, and to provide for  
the further protection of the Indians in this Province, 3 & 4 Vict., (1840), c. 44  
Whereas it is necessary to repeal certain parts Attendu qu’il est nécessaire de rappeler  
of an Ordinance hereinafter mentioned, and to certaines parties de l’Ordonnance ci-après  
amend certain other parts of the said mentionnée, et d’amender certaines autres  
Ordinance, and to make provision for the parties de la dite Ordonnance, et de faire des  
further protection of the Indians in this provisions pour la protection des Indiens ou  
Province: - Be it therefore Ordained and Sauvages en cette Province; - Qu’il soit donc  
Enacted by His Excellency the Governor of Ordonné et Statué par Son Excellence le  
this Province of Lower Canada, by and with Gouverneur de la Province du Bas-Canada, par  
the advice and consent of the Special Council et de l’avis et consentement du Conseil Spécial  
for the affairs of the said Province, constituted pour les affaires de ladite Province, constitué  
and assembled by virtue and under the et assemblé en vertu et sous l’autorité d’un  
authority of an Act of the Parliament of the Acte du Parlement du Royaume-Uni de la  
United Kingdom of Great-Britain and Ireland, Grande-Bretagne et d’Irlande, passé dans la  
passed in the first year of the Reign of Her première année du règne de Sa présente  
present Majesty, intituled, “An Act to make Majesté, intitulé, «Acte pour «établir des  
temporary provision for the Government of dispositions  
temporaires  
pour  
le  
Lower Canada,” and also by virtue and under Gouvernement du Bas-Canada,» et aussi en  
the authority of a certain other Act of the same vertu et sous l’autorité d’un certain autre Acte  
Parliament, passed in the Session held in the du même Parlement passé dans la Session  
second and third years of the Reign of Her tenue dans les deuxième et troisième années  
present Majesty, intituled, “An Act to amend du règne de Sa présente Majesté, intitulé,  
an Act of the last Session of Parliament, for «Acte pour amender un Acte de la dernière  
making temporary provision for the Session du Parlement, «pour établir des  
Government of Lower Canada;” and it is dispositions  
temporaires  
pour  
le  
500-17-066945-117  
PAGE: 122  
hereby Ordained and Enacted by the authority Gouvernement du Bas-Canada,» et il est par  
of the said Acts of Parliament, that from and les présentes Ordonné et Statué par l’autorité  
after the passing of this Ordinance, so much of des dits Actes du Parlement, que depuis et  
an Ordinance passed in the seventeenth year of après la passation de cette Ordonnance,  
the Reign of His late Majesty George the qu’autant d’une Ordonnance passée dans la  
Third, intituled, An Ordinance to prevent the dix-septième année du règne de feu Sa Majesté  
selling of strong liquors to the Indians in the George Trois, intitulée, «Ordonnance qui  
Province of Quebec, as also to deter persons défend de vendre des liqueurs «fortes aux  
from buying their Arms or Clothing, and for Sauvages dans la Province de Québec, qui  
other purposes relative to the trade and empêche aussi d’acheter «leurs armes et  
intercourse with the said Indians,” as is habillements, et pour d’autres objets  
contained in the fourth clause thereof, shall be, concernant la traite et le «commerce avec les  
and the same is hereby repealed.  
dits Sauvages,» qui est contenu dans la  
quatrième clause d’icelle sera, et est par les  
présentes rappelé.  
II. And be it further Ordained and Enacted by  
the authority aforesaid, that it shall be lawful  
for the Governor of this Province, by a written  
Instrument, to order any person who  
heretofore hath been, or now is, or may  
hereafter become resident in any of the Indian  
Villages in this Province, to remove from such  
Village; and in case of default by the said  
person or persons so to remove from such  
Indian Village, within seven days from such  
order being signified to him, he shall forfeit  
the sum of five pounds currency, for each and  
every day after the said seven days during  
which he shall continue to reside or remain in  
such Indian Village, with, all costs of  
prosecution; and shall suffer imprisonment for  
a period not less than one month and not  
exceeding two months, and further, until he  
shall have paid the said last mentioned penalty  
and costs.  
II. Et qu’il soit de plus Ordonné et Statué par  
l’autorité susdite, qu’il sera loisible au  
Gouverneur de cette Province, par un  
instrument en écrit, d’ordonner à toute  
personne qui ci-devant aura été, ou est  
maintenant, ou deviendra ci-après résident,  
dans aucun des Villages Sauvages dans cette  
Province, de partir de tel Village; et dans le cas  
où elle ne partirait pas de tel Village dans le  
cours de sept jours après que tel ordre lui aura  
été signifié, elle encourra une amende de cinq  
livres courant, pour tout et chaque jour après  
les dits sept jours qu’elle continuera de résider  
ou demeurer en tel Village avec tous les frais  
de poursuite; et sera emprisonnée pour une  
espace de pas moins d’un mois ni plus de deux  
mois, et plus jusqu’à ce qu’elle aura payé la  
dite amende en dernier lieu mentionnée et les  
frais.  
III. Et qu’il soit de plus Ordonné et Statué par  
l’autorité susdite, que toutes les pénalités  
imposées par les seconde et troisième clauses  
de la dite Ordonnance, pour les offenses y  
spécifiées, et toutes les pénalités et amendes  
imposées par cette Ordonnance, seront  
recouvrées sur information de la part de Sa  
Majesté, ses héritiers et successeurs, devant  
aucun deux ou plus des Juges de Paix pour le  
district ou la division de la dite Province, où  
III. And be it further Ordained and Enacted by  
the authority aforesaid, that all the penalties  
imposed by the second and third clauses of the  
said Ordinance for the offences therein  
specified, and all the penalties and forfeitures  
imposed by this Ordinance shall be recovered  
by information on behalf of Her Majesty, Her  
Heirs of Successors, before any two or more of  
Her Majesty’s Justices of the Peace for the  
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PAGE: 123  
District or Division of the said Province, in l’offense aura été commise, et tels deux ou  
which the offence shall have been committed, plus des Juges de Paix sont par les présentes  
and such two or more Justices of the Peace are autorisés et requis d’entendre et déterminer  
hereby authorised and required to hear and telle information d’une manière sommaire, et  
determine such information in a summary sur le serment d’un témoin digne de foi, et de  
manner, and upon the oath of one credible prélever telles pénalités avec les frais de  
witness, and to levy the said penalties together poursuite, par un warrant de vendre et saisir  
with the costs of suing for the same by a les biens et effets de la personne ou des  
Warrant, to seize and sell the goods and personnes commettant l’offense, et de  
chattels of the person or persons offending, condamner au dit emprisonnement de la  
and to inflict the said imprisonment in the manière susdite; lesquelles pénalités et  
manner hereinbefore provided, all which said amendes seront payées entre les mains du  
penalties and forfeitures shall be paid into the Receveur Général de Sa Majesté pour les  
hands of Her Majesty’s Receiver General, for usages publics de la Province.  
the public uses of this Province.  
IV. And be it further Ordained and Enacted by  
IV. Et qu’il soit de plus Ordonné et Statué par  
l’autorité susdite, que toutes informations sous  
et en vertu de cette Ordonnance seront portées  
dans les six mois après que l’offense aura été  
commise et non après.  
the authority aforesaid, that all informations  
under and by virtue of this Ordinance, shall be  
brought within six calendar months from the  
time that the offence shall have been  
committed, and not afterwards.  
3. An Act for the protection of the Indians in Upper Canada from  
imposition, and the property occupied or enjoyed by them from trespass  
and injury, 13-14 Vict., (1850), c. 74  
III. And be it enacted, That no person shall III. Et qu’il soit statué, que personne ne  
take any confession of Judgment or Warrant of prendra une confession de jugement ou  
Attorney from any Indian within Upper procuration d’aucun sauvage dans le Haut  
Canada, or by means thereof, or otherwise Canada, ou n’obtiendra au moyen d’icelle,  
howsoever obtain any judgment for any debt or ou autrement, jugement pour aucune dette  
pretended debt or pretended debt, or upon any ou prétendue dette, ou sur une obligation,  
bond, bill, note, promise or other contract billet, bon, promesse, ou autre contrat  
whatsoever, unless such Indian shall be seized quelconque, à moins que tel sauvage ne  
in fee simple in his own sole right of real estate possède en pleine propriété, et comme lui  
in Upper Canada, the title to which shall be appartenant individuellement, un bien-  
derived directly or through others by Letters fonds, dans le Haut Canada, dont le titre  
patent from the Crown, and shall be assessed dérivera directement ou par l’entremise  
in respect of such real estate to the amount of d’autre partie en vertu de lettres patentes de  
twenty-five pounds or upwards.  
la couronne, et à moins que le dit bien-fonds  
ne soit cotisé jusqu’à concurrence de la  
somme de vingt-cinq louis ou plus.  
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PAGE: 124  
[…]  
X. And whereas for the purpose of affording  
better protection to the Indians in the X. Et attendu qu’afin d’accorder plus ample  
unmolested possession and enjoyment of their protection aux sauvages dans la possession  
lands, it is expedient to give more summary et la jouissance paisible de leurs terres, il est  
and effectual powers to the Commissioners expédient d’accorder des pouvoirs plus  
appointed or who may be appointed by virtue sommaires  
et  
plus  
effectifs  
aux  
of the Act of the Province of Upper Canada, commissaires nommés ou qui pourront être  
passed in the second year of Her Majesty’s nommés en vertu de l’acte de la province du  
Reign, chaptered fifteen, and intituled, And Act Haut Canada, passé dans la deuxième année  
for the protection of the lands of the Crown in du règne de sa Majesté, chapitre quinze,  
this Province from trespass and injury, and intitulé : Acte pour la protection des terres  
also by virtue of the Act of this Province, de la couronne dans cette province, contre  
passed in the twelfth year of Her Majesty’s les empiétations et dommages, et aussi en  
Reign, chaptered nine, and intituled, An Act to vertu de l’acte de cette province, passé dans  
explain and amend an Act of the Parliament of la douzième année du règne de Sa Majesté,  
the late Province of Upper Canada, passed in chapitre neuf, intitulé :  
«Acte pour  
the second year of Her Majesty’s Reign, expliquer et amender un acte du parlement  
intituled, “An Act for the protection of the de la ci-devant province du Haut Canada,  
lands of the Crown in this Province from passé dans la deuxième année du règne de  
trespass and injury, and to make further Sa Majesté, intitulé :  
Acte pour la  
provision for that purpose, to enable them protection des terres de la couronne dans  
more efficiently to protect the said lands from cette province, contre les empiétations et  
trespass and injury, and to punish all persons dommages, et faire d’autres dispositions à  
trespassing upon or doing damage thereto: Be cet effet, afin de les mettre même de  
it therefore enacted, That it shall not be lawful protéger plus efficacement les dites terres  
for any person or persons other than Indians, contre les empiétations et dommages et de  
and those who may be inter-married with punir toutes les personnes qui empièteront  
Indians, to settle, reside upon or occupy any sur icelles ou y feront dommage : à ces  
lands or roads or allowances for roads running causes, qu’il soit statué, qu’il ne sera  
through any lands belonging to or occupied by loisible à nul autre qu’à des sauvages, et à  
any portion or Tribe of Indians within Upper ceux qui sont mariés à des sauvages, de  
Canada, and that all leases, contracts and s’établir ou de résider sur des terres ou  
agreements made or to be made, purporting to chemins ou réserves de chemins, traversant  
have been or to be made, by any Indians, or by des terres appartenant à aucune tribu de  
any person or persons inter-married with any sauvages dans le Haut Canada; et tous baux,  
Indian or Indians whereby any person or contrats et conventions faits ou à faire par  
persons other than Indians shall be permitted to des sauvages, ou par aucune personne ou  
reside upon such lands, shall be absolutely personnes mariées à un sauvage, ou à des  
void; and if any person or persons other than sauvages, au moyen desquels toutes  
Indians, or these who may be inter-married personne ou personnes autre que des  
with Indians as aforesaid, shall without the sauvages aura la permission de résider sur  
license of the said Commissioners or any or les dites terres, seront nuls et de nul effet; et  
either of them, (which license, however, the si quelques personnes autres que des  
said Commissioners or any of them, may at sauvages ou mariées à des sauvages résident  
any time revoke,) settle, reside upon or occupy sur les terres ou chemins ou réserves de  
500-17-066945-117  
PAGE: 125  
any such lands, roads or allowances for roads, chemins, ou les occupent, sans une  
it shall be the duty of the Commissioners or autorisation des dits commissaires ou  
any or either of them, on complaint made to d’aucun d’eux, laquelle autorisation,  
them or any of them, and on due proof of the cependant, les dits commissaires ou aucun  
fact of such settlement, residence or d’eux pourront révoquer en aucune temps, il  
occupation, to issue their or his warrant under sera du devoir des commissaires ou d’aucun  
their hands and seals, or his hand and seal, d’eux, sur plainte portée devant eux, et sur  
directed to the Sheriff of the County, or Union preuve du fait de telle résidence ou  
of Counties in which the said lands may lie, or occupation comme susdit, d’expédier leur  
if the said lands may not be situated within any warrant sous leur seing et sceau adressé au  
County or Union of Counties, then such shérif du comté ou des comtés unis dans  
warrant shall be directed to any literate person lesquels les dites terres sont situées, ou si  
who may be willing to act in the premises, les dites terres ne sont pas situées dans un  
commanding him forthwith to remove all such comté ou dans des comtés unis, alors le dit  
persons settling, residing upon or occupying warrant sera adressé à toute personne qui  
such lands, with his, her or their families, from sait lire et qui voudra bien agir à cet égard,  
the said lands or roads or allowances for roads, lui enjoignant d’expulser incontinent toutes  
and it shall be the duty of such Sheriff, or other les personnes qui se sont établies ou  
person accordingly, to remove such person or occupent les dites terres avec leur famille ;  
persons, and for that purpose he shall have and et il sera du devoir du dit shérif ou autre  
possess the same powers as in the execution of personne d’expulser lesdites personnes, et à  
criminal  
process:  
provided  
always, cet effet, il aura et possédera les mêmes  
nevertheless, that the provisions in this and the pouvoirs que pour l’exécution d’une  
two following sections of this Act contained, procédure au criminel : pourvu toujours,  
shall extend and be construed to extend to such néanmoins, que les dispositions contenues  
Indian lands only as the Governor of this dans cette section, et les deux sections  
Province for the time being shall from time to suivantes du présent acte, ne s’étendront et  
time, by Proclamation under the Great Seal ne seront censées s’étendre qu’aux dites  
thereof, think fit to declare and make subject to terres seulement suivant que le gouverneur  
the same, and so long only as such de cette province jugera à propos de le  
Proclamation shall remain unrevoked and in déclarer et de les y assujettir de temps à  
full force.  
autre, par proclamation sous le grand sceau  
de la province, et tant que la dite  
proclamation ne sera pas révoquée et aura  
pleine force et effet.  
4. An Act for the better protection of the Lands and property of the  
Indians of Lower Canada, 13-14 Vict., (1850), c. 42.  
IV. Provided always, and be it enacted, That IV. Pourvu toujours, et qu’il soit statué, que  
nothing herein contained shall be construed to rien de contenu au présent, ne sera censé  
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PAGE: 126  
derogate from the rights of any individual déroger au droit d’aucun sauvage ou individu  
Indian or other private party, as possessor or qui possédera ou occupera un lot ou morceau  
occupant of any lot or parcel of land forming de terre formant partie des terres dont le dit  
part of or included within the limits of any land commissaire est investi, ou compris dans les  
vested in the Commissioner aforesaid.  
limites des dites terres.  
V. And for the purpose of determining any V. Et à l’effet de déterminer tout droit de  
right of property, possession or occupation in propriété, possession ou occupation à l’égard  
or to any lands belonging or appropriated to de toute terre appartenant à toute tribu ou  
any Tribe of Body of Indians in Lower Canada, peuplade de sauvages dans le Bas-Canada, ou  
Be it declared and enacted: That the following appropriés pour son usage, qu’il soit déclaré et  
classes of persons are and shall be considered statué, que les classes suivantes de personnes  
as Indians belonging to the Tribe or Body of sont et seront considérées comme sauvages  
Indians interested in such lands:  
appartenant à la tribu ou peuplade de sauvages  
intéressée dans les dites terres :  
First.- All persons of Indian blood, reputed to  
belong to the particular Body or Tribe of Premièrement.- Tous sauvages pur sang,  
Indians interested in such lands, and their réputés appartenir à la tribu ou peuplade  
descendants.  
particulière de sauvages intéressée dans ladite  
terre, et leurs descendants :  
Secondly. All persons intermarried with any  
such Indians and residing amongst them, and Deuxièmement.- Toutes les personnes mariées  
the descendants of all such persons.  
à des sauvages, et résidant parmi eux, et les  
descendants des dites personnes :  
Thirdly. All persons residing among such  
Indians, whose parents on either side were or Troisièmement.- Toutes personnes résidant  
are Indians of such Body or Tribe, or entitled parmi les sauvages, dont les parents des deux  
to be considered as such: And  
côtés étaient ou sont des sauvages de telle  
tribu ou peuplade, ou ont droit d’être  
Fourthly. All persons adopted in infancy by considérés comme tels :  
any such Indians, and residing in the Village or  
upon the lands of such Tribe or Body of Quatrièmement.- Toutes personnes adoptées  
Indians, and their descendants.  
dans leur enfance par des sauvages, et résidant  
dans le village ou sur les terres de telle tribu  
VI. And be it enacted, that the Interpretation ou peuplade de sauvages, et leurs descendants.  
Act shall apply to this Act. VI. Et qu’il soit statué, que l’acte  
d’interprétation s’appliquera au présent acte.  
5. An Act to repeal in part and to amend an Act, intituled, An Act for the  
better protection of the Lands and property of the Indians of Lower  
Canada, 14-15 Vict., (1851), c. 59  
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PAGE: 127  
WHEREAS it is expedient to designate more ATTENDU qu’il est expédient de désigner  
accurately the persons who have and shall avec plus de précision les personnes qui ont et  
continue to have a right of property, continueront d’avoir un droit de propriété,  
possession or occupation in the lands and other possession ou occupation dans les terres ou  
immoveable property belonging to or autres propriétés immobilières appartenant aux  
appropriated to the use of the various Tribes or diverses tribus ou peuplades de sauvages  
bodies of Indians residing in Lower Canada. résidant dans le Bas-Canada, ou appropriées à  
Be it therefore enacted by the Queen’s most leur usage : à ces causes, qu’il soit statué par  
Excellent Majesty, by and with the advice and la très-excellente Majesté de la Reine, par et  
consent of the Legislative Council and of the de l’avis et consentement du conseil législatif  
Legislative Assembly of the Province of et de l’assemblée législative de la province du  
Canada, constituted and assembled by virtue Canada constitués et assemblés en vertu et  
and under the authority of an Act passed in the sous l’autorité d’un acte passé dans le  
Parliament of the United Kingdom of Great parlement du Royaume-Uni de la Grande-  
Britain and Ireland, and intituled, An Act to re- Bretagne et d’Irlande, et intitulé : Acte pour  
unite the Provinces of Upper and Lower réunir les provinces du Haut et du Bas  
Canada, and for the Government of Canada, Canada, et pour le gouvernement du Canada,  
and it is hereby enacted by the authority of the et il est par le présent statué par l’autorité  
same, That the fifth section of the Act passed susdite, que la cinquième section de l’acte  
in the now last session of the present passé dans la deuxième session du présent  
Parliament, chaptered forty-two, and intituled, parlement, chapitre quarante-deux, et intitulé :  
An Act for the better protection of the Lands Acte pour mieux protéger les terres et les  
and property of the Indians in Lower Canada, propriétés des sauvages dans le Bas-Canada,  
shall be, and the same is hereby repealed.  
sera et est par le présent abrogé.  
II. And be it declared and enacted, That for II. Et qu’il soit déclaré et statué, qu’afin de  
the purpose of determining what persons are déterminer quelles personnes auront droit de  
entitled to hold, use or enjoy the lands and posséder et occuper les terres et autres  
other immoveable property belonging to or propriétés immobilières appartenant aux  
appropriated to the use of the various Tribes or diverses tribus ou peuplades de sauvages dans  
Bodies of Indians in Lower Canada, the le Bas-Canada, ou appropriées à leur usage, et  
following persons and classes of persons, and pourront en jouir, les personnes et classes de  
none other, shall be considered as Indians personnes suivantes, et nulles autres ; seront  
belonging to the Tribe or Body of Indians considérées comme sauvages appartenant à la  
interested in any such lands or immoveable tribu ou peuplade de sauvages intéressés dans  
property:  
telles terres ou propriété immobilières :  
Firstly. All persons of Indian blood, reputed to Premièrement.  
Tous sauvages pur sang,  
belong to the particular Tribe or Body of réputés appartenir à la tribu ou peuplade  
Indians interested in such lands or immoveable particulière de sauvages intéressés dans les  
property, and their descendants:  
dites terres ou propriétés immobilières, et leurs  
descendants.  
Secondly. All persons residing among such Secondement. Toutes personnes résidant parmi  
Indians, whose parents were or are, or either of les sauvages dont les père et mère étaient ou  
them was or is, descended on either side from sont, ou dont l’un ou l’autre était ou est  
Indians, or an Indian reputed to belong to the descendu de l’un ou l’autre côté, de sauvages,  
particular Tribe of Body of Indians interested ou d’un sauvage réputé appartenir à la tribu ou  
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PAGE: 128  
in such lands or immoveable property, and the peuplade particulière de sauvages intéressés  
descendants of all such persons: And  
dans les dites terres ou propriétés  
immobilières, ainsi que les descendants de  
telles personnes ; et  
Thirdly. All women, now or hereafter to be Troisièmement. Toutes femmes maintenant  
lawfully married to any of the persons légalement mariées, ou qui le seront ci-après à  
included in the several classes hereinbefore aucune des personnes comprises dans les  
designated; the children issue of such diverses classes ci-dessus désignées ; les  
marriages, and their descendants.  
enfants issus de tels mariages, et leurs  
descendants.  
6. An Act to encourage the gradual Civilization of the Indian Tribes in this  
Province, and to amend the Laws relating to Indians, 20 Vict., (1857), c. 26  
WHEREAS it is desirable to encourage the CONSIDÉRANT  
qu’il  
est  
désirable  
progress of Civilization among the Indian d’encourager le progrès de la civilisation  
Tribes in this Province, and the gradual parmi les tribus sauvages en cette province, et  
removal of all legal distinctions between them de faire disparaître graduellement toutes  
and Her Majesty’s other Canadian Subjects, distinctions légales qui existent entre eux et les  
and to facilitate the acquisition of property and autres sujets canadiens de Sa Majesté, et de  
of the rights accompanying it, by such donner aux membres individuels de ces tribus  
Individual Members of the said Tribes as shall qui désireraient rencontrer un pareil  
be found to desire such encouragement and to encouragement et qui l’auraient mérité, plus de  
have deserved it: Therefore, Her Majesty, by facilité pour acquérir des propriétés et les  
and with the advice and consent of the droits qui s’y rattachent : à ces causes, Sa  
Legislative Council and Assembly of Canada, Majesté, par et de l’avis et du consentement du  
enacts as follows:  
conseil législatif et de l’assemblée législative  
du Canada, décrète ce qui suit :  
I. The third section of the Act passed in the  
Session held in the thirteenth and fourteenth l. La troisième section de l’acte passé en la  
years of Her Majesty’s Reign, chaptered session tenue en la treizième et la quatorzième  
seventy-four and intituled, An Act for the années du règne de Sa Majesté, chapitre  
protection of the Indians in Upper Canada soixante-et-quatorze, et intitulé : Acte pour  
from imposition and the property occupied or protéger les sauvages dans le Haut Canada  
enjoyed by them, from trespass and injury, contre la fraude, et les propriétés qu’ils  
shall apply only to Indians or persons of Indian occupent ou dont ils ont jouissance, contre  
blood or intermarried with Indians, who shall tous empiétements et dommages, ne  
be acknowledged as members of Indian Tribes s’appliquera qu’aux sauvages ou personnes de  
or Bands residing upon lands which have sang sauvage, ou mariées avec des sauvages,  
never been surrendered to the Crown (or qui seront reconnues comme membres de  
which having been so surrendered have been tribus sauvages, ou bandes résidant sur des  
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PAGE: 129  
set apart of shall then be reserved for the use terres qui n’ont jamais été cédées à la  
of any Tribe or Band of Indians in common) couronne ou qui ayant ainsi été cédées, ont été  
and who shall themselves reside upon such mises à part ou seront alors réservées pour  
lands, and shall not have been excepted from l’usage de toute tribu ou bande de sauvages en  
the operation of the said section, under the commun, et qui devront elles-mêmes résider  
provisions of this Act; and such persons and sur ces terres, et qui n’auront pas été  
such persons only shall be deemed Indians exemptées de l’opération de la dite section, en  
within the meaning of any provision of the vertu des dispositions du présent acte ; et les  
said Act of any other Act or Law in force in dites personnes seulement seront censées être  
any part of this Province by which any legal sauvages, dans le sens de toute disposition du  
distinction is made between the rights and dit acte ou de tout autre acte ou loi en vigueur  
liabilities of Indians and those of her Majesty’s en aucune partie de cette province, qui établit  
other Canadian Subjects.  
une distinction légale entre les droits et les  
obligations des sauvages, et les droits et les  
obligations des autres sujets canadiens de Sa  
Majesté.  
II. The term “Indianin the following  
enactments shall mean any person to whom II. Le terme «Sauvage» dans les dispositions  
under the foregoing provisions, the third suivantes, signifiera toute personne à laquelle  
section of the Act therein cited shall continue en vertu des dispositions précédentes, la  
to apply; and the term “enfranchised Indiantroisième section de l’acte y cité continuera à  
shall mean an person to whom the said section s’appliquer ; et le terme «Sauvage émancipé»  
would have been applicable, but for the signifiera toute personne à laquelle la dite  
operation of the provisions hereinafter made in section se serait appliquée, sans l’opération  
that behalf: and the term “Tribe, shall include des dispositions ci-dessous établies à cet  
any Band or other recognized community of égard ; et le mot «Tribu» comprendra toute  
Indians.  
bande ou autre société reconnue de sauvages.  
7. An Act respecting Civilization and Enfranchisement of certain Indians,  
C.S.C., (1859), c. 9 (United Canada Consolidation)  
In order to encourage the progress of civilization Dans le but d’encourager le progrès de la  
among the Indian Tribes in this Province, and the civilisation parmi les tribus sauvages de cette  
gradual removal of all legal distinctions between province,  
et  
de  
faire  
disparaître  
them and Her Majesty’s other Canadian graduellement toutes les distinctions légales  
Subjects, and to facilitate the acquisition of qui existent entre eux et les autres sujets  
property and of the rights accompanying it, by canadiens de Sa Majesté, et de donner aux  
such Individual Members of the said Tribes as membres individuels de ces tribus qui  
are found to desire such encouragement and to désirent obtenir un pareil encouragement et  
have deserved it: Her Majesty, by and with the qui l’ont mérité, plus de facilité pour  
advice and consent of the Legislative Council acquérir des propriétés et les droits qui s’y  
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PAGE: 130  
and Assembly of Canada, enacts of follows:  
rattachent; à ces causes, Sa Majesté, par et de  
l’avis et du consentement du conseil  
législatif et de l’assemble législative du  
1.In the Following enactments, the term IndianCanada, décrète ce qui suit :  
means only Indians or persons of Indian blood or  
intermarried with Indians, acknowledged as  
members of Indian Tribes or Bands residing 1. Dans les dispositions suivantes, le mot  
upon lands which have never been surrendered to «sauvage» ne s’applique qu’aux sauvages ou  
the Crown (or which having been so surrendered personnes de sang sauvage, ou mariées avec  
have been set apart or are then reserved for the des sauvages, reconnues comme membres de  
use of any Tribe or Band of Indians in common), tribus sauvages, ou bandes résidant sur des  
and who themselves reside upon such lands, and terres qui n’ont jamais été cédées à la  
have not been exempted from the operation of couronne, (ou qui ayant ainsi été cédées, ont  
the next section under the other provisions of this été mises à part ou sont dès lors réservées  
Chapter; And such persons and such persons pour l’usage de toute tribu ou bande de  
only shall be deemed Indians within the meaning sauvages en commun,) et qui elles-mêmes  
of any provision of this Chapter or of any other résident sur ces terres, et n’ont pas été  
Act or Law in force in any part of this Province exemptées de l’opération de la section  
by which any legal distinction is made between suivantes en vertu des autres dispositions du  
the rights and liabilities of Indians and those of présent acte; et ces personnes seulement  
Her Majesty’s other Canadian Subjects: And the seront censées être sauvages, dans le sens  
term «enfranchised Indian» means any person to des dispositions de cet acte ou de tout autre  
whom the next section would have been acte ou loi en vigueur en aucune partie de  
applicable but for the operation of the provisions cette province, qui établit une distinction  
hereinafter made in that behalf: And the term légale entre les droits et les obligations des  
«Tribe», includes any Band or other recognized sauvages, et les droits et les obligations des  
community of Indians. 20 V. c.26, ss. 1 and 2.  
sujets canadiens de Sa Majesté; et le terme  
«sauvage émancipé» signifie toute personne  
à laquelle la section suivante se serait  
appliquée, si les dispositions ci-dessous  
n’eussent été établies à cet égard; et le mot  
«tribu» comprend toutes bande ou autre  
société reconnue de sauvages. 20 V. c. 26,  
ss. 1, 2.  
.
NOTE: Sections 2 to 5 of this statute  
apply only to Upper Canada (Confession  
of judgments, spirituous liquors, pawn for  
spirituous liquor and seizure of annuities).  
Sections 6 to 18 apply to Upper Canada  
and Lower Canada (enfranchisement).  
8. An Act to prevent trespasses to Public and Indian Lands, CSUC, 22 Vict.,  
(1859), c. 81 (Upper Canada)  
500-17-066945-117  
PAGE: 131  
25. No persons other than Indians, and those inter-married with Indians, shall settle, reside upon  
or occupy any lands or roads or allowances for roads running through any lands belonging to or  
occupied by any portion or Tribe of Indians within Upper Canada, and all leases, contracts and  
agreements made or purporting to be made, by any Indians, or any persons inter-married with  
Indians whereby persons other than Indians are permitted to reside upon such lands, shall be  
absolutely void.  
26. If any persons other than Indians, or those intermarried with Indians do, without the license  
of the said Commissioners or one of them, (which license, however, the said Commissioners or  
any of them may at any time revoke,) settle, reside upon or occupy any such lands, roads or  
allowances for roads, the Commissioners or any of them, shall, on complaint made to them or  
any of them, and on due proof of the fact, issue their or his warrant signed and sealed, directed to  
the Sheriff of the proper County, or if the said lands be not situated within any County, then  
directed to any literate person willing to act in the premises, commanding him forth-with to  
remove from the said lands or roads or allowances for roads all such persons and their families,  
so settled residing upon or occupying such lands, and the Sheriff, or other person shall,  
accordingly, remove such persons, and for that purpose shall have the same powers as in the  
execution of criminal process; but the provisions in this and the four following sections shall  
extend to such Indian lands only, as the Governor from time to time, by Proclamation under the  
Great Seal, declares and makes subject to the same, and so long only as such Proclamation  
remains in force.  
9. Act respecting Indians and Indian Lands, CSLC 1861, c. 14 (Consolidation,  
Lower Canada)  
3. No person shall settle in any Indian village 3. Nul ne s’établira dans un village sauvage,  
or in any Indian country, within Lower ou dans une contrée sauvage, dans le Bas  
Canada, without a license in writing from the Canada, sans une permission par écrit du  
Governor, under a penalty of forty dollars for gouverneur, sous peine d’une amende de  
the first offence, and eighty dollars for the quarante  
piastres  
pour  
la  
première  
second and every other subsequent offence.  
17 G.3, c.7, s.3.  
contravention, et de quatre-vingts piastres en  
cas de récidive, et de toute autre contravention  
subséquente.  
4.  
The Governor may, by a written  
17 G.3, c.7, s.3.  
instrument, order any person who has become  
resident in any of the Indian villages in Lower 4. Le gouverneur pourra, en vertu d’un  
Canada, to remove from such village; and in instrument par écrit, ordonner à toute personne  
case of default by the said person so to remove qui est venue résider dans aucun des villages  
500-17-066945-117  
PAGE: 132  
from such Indian village, within seven days sauvages, dans le Bas Canada, de quitter tel  
from such order being signified to him, he village ; et dans le cas où elle ne quitterait pas  
shall forfeit the sum of twenty dollars, for each tel village sauvage dans le cours de sept jours  
day after the said seven days, during which he après que tel ordre lui aura été signifié, elle  
continues to remain in such Indian village, encourra une amende de vingt piastres, pour  
with all costs of prosecution, and shall suffer chaque jour après les sept jours susdits qu’elle  
imprisonment for a period not less than one continuera de demeurer dans tel village  
month and not exceeding two months, and sauvage, avec tous les frais de poursuite ; et  
further, until he has paid the said last sera emprisonnée pour un espace de pas moins  
mentioned penalty and costs.  
3,4V. c.44, s.2  
d’un mois, ni de plus de deux mois, et jusqu’à  
ce qu’elle ait payé la dite amende et les frais.  
3,4V. c.44, s.2  
5.All the penalties imposed by this Act, for the  
offences therein specified, may be recovered 5.  
Toutes les amendes imposées par le  
by information on behalf of Her Majesty, présent acte, pour les offenses qui y sont  
before any two or more of Her Majesty’s indiquées, pourront être recouvrées, sur  
Justice of the Peace, for the district in which plainte, au nom de Sa Majesté, devant deux ou  
the offence is committed: and such two or un plus grand nombre des juges de paix de Sa  
more Justices of the Peace shall hear and Majesté pour le district où l’offense est  
determine such information in a summary commise, et ces deux juges de paix, ou plus,  
manner, and upon the oath of one credible entendront et jugeront l’information d’une  
witness, and shall levy the said penalties, manière sommaire, et sur le serment d’un  
together with the costs of suing for the same témoin digne de foi, et prélèveront les  
by a warrant to seize and sell the goods and amendes susdites avec les frais de poursuite,  
chattels of the person or persons offending, par un warrant, ou ordre de saisie et vente des  
and shall inflict the said imprisonment in the biens et effets du contrevenant, et le  
manner hereinbefore provided; and all the said condamneront à l’emprisonnement en la  
pecuniary penalties shall be paid into the manière ci-dessus prescrite ; et toutes ces  
hands of the Receiver General, for the public amendes seront versées entre les mains du  
uses of this Province.  
receveur-général pour les usages publics de la  
province.  
3, 4 V. c. 44, s.3.  
3,4 V.c.44, s.3.  
6. All information under and by this Act, shall  
be brought within six months from the time  
that the offence is committed, and not 6. Toutes plaintes portées, sous l’autorité du  
afterwards.  
3, 4 V. c. 44, s.4.  
présent acte, le seront dans les six mois après  
que l’offense aura été commise, et non après.  
3,4 V. c. 44, s.4.  
[…]  
10.  
Nothing herein contained shall be  
construed to derogate from the rights of any 10. Rien de contenu au présent ne sera censé  
individual Indian or other private party, as déroger au droit d’aucun sauvage, ou individu,  
possessor or occupant of any lot or parcel of qui possède ou occupe un lot ou morceau de  
land forming part of or included within the terre, formant partie des terres dont le dit  
500-17-066945-117  
PAGE: 133  
limits of any land vested in the Commissioner commissaire est mis en possession, ou compris  
aforesaid.  
dans les limites des dites terres.  
3,4V. c.44, s.2  
3,4V. c.44, s.2  
11. For the purpose of determining what 11.  
Dans le but de déterminer quelles  
persons are entitled to hold, use or enjoy the personnes ont droit de posséder et occuper les  
lands and other immoveable property terres et autres propriétés immobilières  
belonging to or appropriated to the use of the appartenant ou affectées aux diverses tribus ou  
various tribes or bodies of Indians in Lower peuplades de sauvages dans le Bas Canada, et  
Canada, the following persons and classes of peuvent en jouir, les personnes et classes de  
persons, and none other, shall be considered as personnes suivantes, et nulles autres, seront  
Indians belonging to the tribe or body of considérées comme sauvages appartenant aux  
Indians interested in any such lands or tribus ou peuplades de sauvages intéressées  
immoveable property:  
dans telles terres ou propriétés immobilières :  
Firstly. All persons of Indian blood, reputed to Premièrement. Tous sauvages pur sang,  
belong to the particular tribe or body of réputés appartenir à la tribu ou peuplade  
Indians interested in such lands or immoveable particulière de sauvages intéressés dans les  
property, and their descendants;  
dites terres ou propriétés immobilières, et leurs  
descendants ;  
Secondly. All persons residing among such Secondement. Toutes personnes résidant parmi  
Indians, whose parents were or are, or either of les sauvages, dont les père et mère étaient ou  
them was or is, descended on either side from sont descendus, ou dont l’un ou l’autre était ou  
Indians, or an Indian reputed to belong to the est descendu, de l’un ou de l’autre côté, de  
particular tribe or body of Indians interested in sauvages, ou d’un sauvage réputé appartenir à  
such lands or immoveable property, and the la tribu ou peuplade particulière de sauvages  
descendants of all such persons; And  
intéressés dans les dites terres ou propriétés  
immobilières, ainsi que les descendants de  
Thirdly. All women lawfully married to any telles personnes ; et  
of the persons included in the several classes Troisièmement. Toutes femmes légalement  
hereinbefore designated; the children issue of mariée à aucune des personnes comprises dans  
such marriages, and their descendants.  
14, 15 V. c. 59, s.2.  
les diverses classes ci-dessus désignées, les  
enfants issus de tels mariages, et leurs  
descendants.  
14, 15 V. c. 59, s.2.  
[…]  
13. There shall be paid yearly out of the  
Consolidated Revenue Fund of this Province, a 13. Il sera payé annuellement, à même le  
sum not exceeding four thousand dollars, to be fonds consolidé des revenus de cette province,  
distributed amongst certain Indian tribes in une somme n’excédant pas quatre mille  
Lower Canada by the Superintendent General piastres, qui sera distribuée et répartie entre  
of Indian affairs, in such proportions amongst certaines tribus sauvages dans le Bas Canada,  
the said Indian tribes, and in such manner as par le surintendant général des affaires des  
the Governor in Council may from time to sauvages, en telles proportions et de telle  
time direct.  
manière, que le gouverneur en conseil  
l’ordonnera de temps à autre.  
Ibid, s.2. [17 G.3, c. 7, s.2.]  
500-17-066945-117  
PAGE: 134  
Ibid, s.2. [17 G.3, c.7, s.2.]  
10. An Act providing for the organisation of the Department of the Secretary of  
State of Canada, and for the management of Indian and Ordnance Lands.  
Statutes of Canada 1868, c. 42, 31 Vict.  
15. The following persons and classes of 15. Dans le but de déterminer quelles  
persons, and none other, shall be considered as personnes ont droit de posséder, occuper ou  
Indians belonging to the tribe, band or body of exploiter les terres et autres propriétés  
Indians interested in any such lands or immobilières, appartenant ou affectées aux  
immoveable property :  
diverses nations, tribus ou peuplades de  
Sauvages en Canada, les personnes et classes  
de personnes suivantes, et nulles autres, seront  
considérées comme Sauvages appartenant aux  
nations, tribus ou peuplades de Sauvages  
intéressées dans les terres ou propriétés  
immobilières en questions : -  
Firstly. All persons of Indian blood, reputed to  
Premièrement Tout Sauvage pur  
belong to the particular tribe, band or body of sang, réputé appartenir à la nation, tribu ou  
Indians interested in such lands or immoveable peuplade particulière de Sauvages intéressés  
property, and their descendants;  
dans ces terres ou propriétés immobilières, et  
ses descendants;  
Secondly. All persons residing among such  
Secondement Toutes personnes  
Indians, whose parents were or are, or either of résidant parmi ces Sauvages, dont les père et  
them was or is, descended on either side from mère étaient ou sont descendus, ou dont l’un  
Indians or an Indian reputed to belong to the ou l’autre était ou est descendu, de l’un ou  
particular tribe, band or body of Indians l’autre côté, de Sauvages ou d’un Sauvage  
interested in such lands or immoveable réputé appartenir à la nation, tribu ou peuplade  
property, and the descendants of all such particulière de sauvages intéressés dans ces  
persons; And  
terres ou propriétés immobilières, ainsi que  
leurs descendants; et  
Thirdly. All women lawfully married to any  
Troisièmement Toutes femmes  
of the persons included in the several classes légitimement mariées à aucune des personnes  
hereinbefore designated; the children issue of comprises dans les diverses classes ci-dessus  
such marriages, and their descendants.  
désignées, les enfants issus de ces mariages, et  
leurs descendants.  
[…]  
18. If any persons other than Indians or those 18.  
Si quelque personne autre que les  
intermarried with Indians do, without the Sauvages ou ceux qui sont mariés à des  
licence of the Secretary of State, (which Sauvages vient, sans la permission du  
500-17-066945-117  
PAGE: 135  
license, however, he may at any time revoke,) Secrétaire d’État (permission qui sera,  
settle, reside upon or occupy any such lands, néanmoins, en tout temps révocable) s’établir  
roads or allowances for roads, the Secretary of ou résider sur ces terres, chemins ou réserves  
State, or such officer or person as he may de chemins ou les occuper, le Secrétaire  
thereunto depute and authorize, shall, on d’État, ou l’officier ou agent qu’il pourra à cet  
complaint made to him, and on proof of the effet déléguer et autoriser, devra, sur plainte à  
fact to his satisfaction, issue his warrant signed lui faite, et sur preuve des faits à sa  
and sealed, directed to the sheriff of the proper satisfaction, émettre un mandat (warrant) sous  
county of district, or if the said lands be not ses seing et sceau, adressé au shérif du district  
situated within any county or district, then ou comté qu’il appartient, - ou si les terres en  
directed to any literate person willing to act in question ne sont pas situées dans un comté ou  
the premises, commanding him forthwith to district, alors adressé à toute personne lettrée à  
remove from the said lands or roads, or ce consentante, - lui enjoignant d’expulser  
allowances for roads, all such persons and immédiatement de ces terres ou chemins ou  
their families, so settled, residing upon or réserves de chemins, toutes les personnes ainsi  
occupying the same; and such sheriff or other établies ou résidant sur ces terres, chemins ou  
person shall, accordingly, remove such réserves de chemins, ou les occupant, et leurs  
persons, and for that purpose shall have the familles; et le shérif ou autre personne en  
same powers as in the execution of criminal question les expulsera en conséquence, et aura,  
process; but the provisions in this and the four à cette fin, les mêmes pouvoirs que pour  
next following sections shall extend to such l’exécution de mandats en matières  
Indian lands only, as the Governor, from time criminelles; mais les dispositions énoncées  
to time, by Proclamation published in the dans la présente ainsi que dans les quatre  
Canada Gazette, declares and makes subject to sections  
suivantes,  
ne  
s’appliqueront  
the same, and so long only as such uniquement qu’aux terres des Sauvages que le  
proclamation remains in force.  
Gouverneur pourra, de temps à autre, par  
proclamation publiée dans la Gazette du  
Canada, placer sous leur effet, et ce pendant le  
temps seulement que la proclamation devra  
rester en vigueur.  
19.  
If any person after having been 19. Si quelque personne expulsée comme il  
removed as aforesaid returns to, settles upon, est dit ci-haut, vient de nouveau s’établir ou  
resides upon, or occupies, any of the said lands résider sur les terres, chemins ou réserves de  
or roads or allowances for roads, the Secretary chemins en question, ou les occuper, le  
of State or any officer or person deputed and Secrétaire d’État ou tout officier ou agent par  
authorized, as aforesaid, upon view, or upon lui délégué et autorisé en la manière ci-dessus  
proof on oath made before him or to his énoncée, devra, s’il en a connaissance  
satisfaction, that the said person has returned personnelle, ou s’il lui est prouvé sous serment  
to, settled or resided upon or occupied any of prêté devant lui ou à sa satisfaction, que la  
the said lands or roads or allowances for roads, même personne est venue de nouveau s’établir  
shall direct and send his warrant signed and ou résider sur ces terres, chemins ou réserves  
sealed, to the Sheriff of the proper County of de chemins, ou les occuper, émettre un mandat  
District, or to any literate person therein, and if sous ses seing et sceau, adressé au shérif du  
the said lands be not situated within any comté ou district qu’il appartient, ou à toute  
County, then to any literate person, personne lettrée y domiciliée, - et si ces terres  
500-17-066945-117  
PAGE: 136  
commanding him forthwith to arrest such ne sont pas situées dans un comté, alors à toute  
person and commit him to the Common Gaol personne lettrée, lui enjoignant d’arrêter le  
of the said County of District or to the contrevenant sans délai et de le confiner dans  
Common Gaol of the nearest County or la prison commune de ce comté ou district, ou  
District to the said lands, if the said lands be dans celle du comté ou district le plus voisin  
not within and County or District, there to des terres en question, si ces dernières ne se  
remain for the time ordered by such warrant, trouvent pas dans un comté ou district, pour y  
but which shall not exceed thirty days  
rester pendant la période déterminée dans le  
mandat, laquelle ne devra pas excéder trente  
jours.  
33. Nothing in this Act contained shall a 33. Rien dans le présent acte n’aura l’effet de  
affect the provisions of the ninth chapter of the modifier les dispositions du neuvième chapitre  
Consolidated Statutes of Canada, intituled: An des Statuts Refondus du Canada, intitulé :  
Act  
respecting  
the  
civilization  
and « Acte concernant  
la civilisation et  
enfranchisement of certain Indians, in so far as l’émancipation des Sauvages, » en ce qui  
respects Indians in the Provinces of Quebec concerne les Sauvages des provinces de  
and Ontario, nor of any other Act when the Québec et d’Ontario, ni celles d’aucun autre  
same is not inconsistent with this Act.  
acte qui ne sera pas d’ailleurs incompatible  
avec le présent.  
42. Toute partie d’acte ou loi qui  
pourrait être incompatible avec le  
présent, ou qui renferme des  
dispositions relatives à quelque matière  
qui y est prévue, différentes de celles  
établies par le présent acte, est  
révoquée, excepté quant aux faits  
accomplis, aux obligations contractées  
ou aux pénalités encourues avant  
l’entrée en vigueur du présent acte.  
42. So much of any Act or law as may be  
inconsistent with this Act, or as makes any  
provision in any matter provided for by this  
Act, other than such as is hereby made, is  
repealed, except only as to things done,  
obligations contracted, or penalties incurred  
before the coming into force of this Act.»  
11. An Act for the gradual enfranchisement of Indians, the better  
management of Indian affairs, and to extend the provisions of the Act,  
31st Victoria, Chapter 42, 1869, 32 & 33 Vict., c. 6  
500-17-066945-117  
PAGE: 137  
1. In Townships or other tracts of land set 1. Dans les townships ou autres étendues de  
apart or reserved for Indians in Canada, and terre réservées pour les Sauvages en Canada,  
subdivided by survey into lots, no Indian or et subdivisées en lots à la suite d’arpentages,  
person claiming to be of Indian blood, or nul Sauvage ou nulle personne se prétendant  
intermarried with an Indian family, shall be Sauvage ou allié par mariage à quelque famille  
deemed to be lawfully in possession of any Sauvage, ne sera réputé avoir la légitime  
land in such Townships or tracts, unless he or possession d’une terre dans ces townships ou  
she has been or shall be located for the same étendues, à moins qu’il n’ait obtenu le droit de  
by the order of the Superintendent General of l’occuper par ordre du surintendant-général  
Indian affairs; and any such person or persons, des affaires des Sauvages ; et toute personne  
assuming possession of any lands of that qui prendra possession de quelqu’une de ces  
description, shall be dealt with as illegally in terres, sera considérée comme n’en ayant pas  
possession, and be liable to be summarily la possession légitime, et pourra en être  
ejected therefrom, unless that within six sommairement évincé, à moins que dans les  
months form the passing of this Act, a location six mois de la passation du présent acte, il ne  
title be granted to such person or persons by lui ait été concédé un permis d’occupation  
the said Superintendent General of Indian (location title) par le surintendant-général des  
affairs or such officer or person as he may affaires des Sauvages ou par tout officier ou  
thereunto depute and authorize; but the personne à ce délégué ou autorisé par le  
conferring of any such location title shall not surintendant ; mais la concession d’un permis  
have the effect of rendering the land covered d’occupation n’aura pas l’effet de rendre  
thereby transferable or subject to seizure under transférable, ou saisissable par voie de  
legal process.  
procédures judiciaires, la terre couverte par ce  
titre.  
2. Any person liable to be summarily ejected, 2.  
Quiconque sera passible de l’éviction  
under the next preceding section, may be sommaire mentionnée dans la section  
removed from the land of which he may have précédente, pourra être expulsé de la terre dont  
assumed possession, in the manner provided il aura pris possession, de la manière prévue  
by the eighteenth section of the Act passed in par la dix-huitième section de l’acte passé en  
the thirty-first year of Her Majesty’s reign, la trente-unième année du règne de Sa  
chapter forty-two, with respect to persons Majesté, chapitre quarante-deux, relativement  
other than Indians or those intermarried with aux personnes autres que les Sauvages ou ceux  
Indians settling on the lands therein referred to mariés à des Sauvages, qui s’établissent sur les  
without license of the Secretary of State; and terres y énumérées sans la permission du  
the said section and the nineteenth, twentieth secrétaire d’État ; et cette dernière section,  
and twenty-first sections of the said Act, are ainsi que les dix-neuvième, vingtième et vingt-  
hereby extended to and shall apply to persons unième sections du même acte s’étendront et  
liable to be summarily ejected under this Act, s’appliqueront aux personnes passibles de  
as fully in all respects as to persons liable to be l’éviction sommaire sous l’autorité du présent  
removed from lands under the said Act.  
acte, aussi amplement, à tous égards, qu’à  
celles passibles de l’expulsion en vertu de  
l’acte plus haut mentionné.  
[…]  
500-17-066945-117  
PAGE: 138  
4. In the division among the members of any 4. Lors de la distribution d’annuités, intérêts  
tribe, band, or body of Indians, of any annuity ou rentes entre les membres d’une nation, tribu  
money, interest money or rents, no person of ou peuplade de Sauvages, nulle personne ayant  
less than one-fourth Indian blood, born after moins d’un quart de sang sauvage et née après  
the passing of this Act, shall be deemed la passation du présent acte, n’aura droit de  
entitled to share in any annuity, interest or partager dans ces annuités, intérêts ou rentes,  
rents, after a certificate to that effect is given après qu’un certificat à cet effet aura été donné  
by the Chief or Chiefs of the band or tribe in par le ou les chefs de la tribu ou peuplade en  
Council, and sanctioned by the Superintendent conseil assemblés et approuvé par le  
General of Indian affairs.  
surintendant-général  
Sauvages.  
des  
affaires  
des  
5. Any Indian or person of Indian blood who 5.  
Nul Sauvage ou nulle personne de sang  
shall be convicted of any crime punishable by sauvage qui sera convaincu d’un crime  
imprisonment in any Penitentiary or other punissable par l’incarcération au pénitencier  
place of confinement, shall, during such ou autre lieu de détention, ne pourra, pendant  
imprisonment, be excluded from participating la durée de son emprisonnement, partager dans  
in the annuities, interest money, or rents les annuités, intérêts ou rentes payables à sa  
payable to the Indian tribe, band, or body, of nation, tribu ou peuplade ; et lorsqu’un  
which he or she is a member; and whenever Sauvage sera convaincu d’un crime punissable  
any Indian shall be convicted of any crime par l’emprisonnement dans le pénitencier ou  
punishable by imprisonment in a Penitentiary, autre lieu de détention, les frais de justice  
or other place of confinement, the legal costs encourus pour procurer sa conviction et faire  
incurred in procuring such conviction, and in exécuter la sentence prononcée pourront être  
carrying out the various sentences recorded, payés par le surintendant-général des affaires  
may be defrayed by the Superintendent des Sauvages, à même toute annuité ou tous  
General of Indian Affairs, and paid out of any intérêts afférant à ce Sauvage ou à sa peuplade  
annuity or interests coming to such Indian, or ou tribu, selon le cas.  
to the band or tribe, as the case may be.  
6. La quinzième section de la trente-unième  
6. The fifteenth section of the thirty-first Victoria, chapitre quarante-deux, est amendée  
Victoria, Chapter forty-two, is amended by en y ajoutant le proviso suivant : « mais toute  
adding to it the following proviso :  
femme Sauvage qui se mariera à un autre  
Provided always that any Indian woman qu’un Sauvage, cessera d’être une Sauvage  
marrying any other than an Indian, shall cease dans le sens du présent acte, et les enfants  
to be an Indian within the meaning of this Act, issus de ce mariage ne seront pas non plus  
nor shall the children issue of such marriage be considérés comme Sauvages dans le sens du  
considered as Indians within the meaning of présent acte ; pourvu aussi que toute femme  
this Act; Provided also, that any Indian woman Sauvage qui se mariera à un Sauvage d’une  
marrying an Indian of any other tribe, band or autre nation, tribu ou peuplade cessera d’être  
body shall cease to be a member of the tribe, membre de la nation, tribu ou peuplade à  
band or body to which she formerly belonged, laquelle elle appartenait jusque-là, et deviendra  
and become a member of the tribe, band or membre de la nation, tribu ou peuplade à  
body of which her husband is a member, and laquelle appartient son mari ; et les enfants  
the children, issue of this marriage, shall issus de ce mariage seront membres de la tribu  
belong to their father’s tribe only.”  
de leur père seulement ;»  
500-17-066945-117  
PAGE: 139  
7. The Superintendent General of Indian 7. Le surintendant-général des affaires des  
affairs shall have power to stop the payment of Sauvages aura le pouvoir de suspendre le  
the annuity and interest money of any person paiement des annuités ou intérêts afférant à un  
of Indian blood who may be proved to the Sauvage, après s’être pleinement convaincu  
satisfaction of the Superintendent General of que ce dernier s’est rendu coupable d’avoir  
Indian affairs to have been guilty of deserting abandonné sa femme ou ses enfants, et il  
his wife or child, and the said Superintendent pourra en appliquer le montant au soutien de la  
may apply the same towards the support of any femme ou des enfants ainsi abandonnés.  
woman or child so deserted.  
8. The Superintendent General of Indian 8. Le surintendant-général des affaires des  
Affairs in cases where sick or disabled, or Sauvages pourra, - dans les cas où les  
aged and destitute persons are not provided for personnes malades, infirmes, âgées et  
by the tribe, band or body of Indians of which nécessiteuses ne sont pas soutenues par la  
they are members, may furnish sufficient aid nation, tribu ou peuplade à laquelle elles  
from the funds of each tribe, band or body, for appartiennent, - prendre sur les fonds affectés  
the relief of such sick, disabled, aged or à chaque nation, tribu ou peuplade une somme  
destitute persons.  
suffisante pour secourir ces personnes.  
[…]  
13. The Governor General in Council may on 13. Le gouverneur-général en conseil pourra,  
the report of the Superintendent General of sur le rapport du surintendant-général des  
Indian Affairs order the issue of Letters Patent affaires des Sauvages, ordonner l’émission de  
granting to any Indian who from the degree of lettres-patentes concédant à tout Sauvage qui,  
civilization to which he has attained, and the à raison du degré de civilisation qu’il aura  
character for integrity and sobriety which he atteint et de la réputation d’intégrité et de  
bears, appears to be a safe and suitable person sobriété dont il jouit, semblera mériter de  
for becoming a proprietor of land, a life estate devenir propriétaire de terre, un droit viager  
in the land which has been or may be allotted dans la terre qui lui a été ou pourra lui être  
to him within the Reserve belonging to the assignée dans la réserve appartenant à la  
tribe band or body of which he is a member; nation, tribu ou peuplade dont il est membre ;  
and in such case such Indian shall have power et, en pareil cas, ce Sauvage aura la faculté de  
to dispose of the same by will, to any of his la transmettre par testament à aucun de ses  
children, and if he dies intestate as to any such enfants, et s’il meurt intestat quant à ces terres,  
lands, the same shall descend to his children elles passeront à ces enfants, suivant les lois de  
according to the laws of that portion of the la partie de la Puissance du Canada dans  
Dominion of Canada in which such lands are laquelle elles sont situées, et les enfants  
situate, and the said children to whom such auxquels telle terre est ainsi léguée ou passera,  
land is so devised or descends shall have the en jouiront en pleine propriété.  
fee simple thereof.  
[…]  
23. Le chapitre neuf des Statuts Refondues du  
23. Chapter nine of the Consolidated Statutes Canada est par le présent abrogé.  
500-17-066945-117  
PAGE: 140  
of Canada is hereby repealed.  
24. Le présent acte sera interprété comme ne  
24. This Act shall be construed as one Act faisant qu’un seul et même acte avec l’acte  
with the Act thirty-first Victoria, chapter forty- trente-et-un Victoria, chapitre quarante-deux.  
two.  
12. An Act to amend certain laws respecting Indians, and to extend  
certain Laws relating to matters connected with Indians to the Provinces  
of Manitoba and British Columbia, 1874, 37 Vict., c. 21  
8. An Indian is hereby defined to be a person 8. Le Sauvage sera réputé une personne selon  
within the definition contained in the fifteenth la définition de la quinzième section de l’acte  
section of the thirty-first Victoria, chapter trente et un Victoria chapitre quarante-deux, tel  
forty-two, as amended by the sixth section of qu’amendé par la sixième section de l’acte  
the thirty-second and thirty-third Victoria, trente-deux et trente-trois Victoria, chapitre six,  
chapter six, and who shall participate in the et qui participera aux annuités, aux intérêts et  
annuities and interest moneys and rents of any rentes pécuniaires de toute tribu, bande ou  
tribe, band or body of Indians.  
peuplade de Sauvages.  
14. This Act shall be construed as one Act 14. Le présent sera censé ne former qu’un seul  
with the Acts thirty-first Victoria, chapter et même acte avec les actes trente et un  
forty-two, and thirty-second and thirty-third Victoria, chapitre quarante-deux, et trente-deux  
Victoria, chapter six. »  
et trente-trois Victoria, chapitre six  
13. Indian Act, S.C. 1951, c. 29  
2. (1) In this Act,  
2. (1) Dans la présente loi, l'expression  
[…]  
g) Indianmeans a person who  
g) «Indien» signifie une personne qui,  
500-17-066945-117  
pursuant to this Act is registered  
PAGE: 141  
conformément à la présente loi, est  
inscrite à titre d'Indien ou a droit de  
l'être;  
as an Indian or is entitled to be  
registered as an Indian;  
[…]  
[…]  
j) «membre d’une bande» signifie une  
personne dont le nom apparaît sur une  
liste de bande ou qui a droit à ce que  
son nom y figure;  
j) “member of a bandmeans a  
person whose name appears on a  
Band List or who is entitled to  
have his name appear on a Band  
List;  
m) registeredmeans registered as  
m) «inscrit» signifie inscrit comme  
Indien dans le registre des Indiens;  
n) «registraire» désigne le fonctionnaire  
du ministère qui est préposé au  
registre des Indiens;  
an Indian in the Indian Register;  
n) Registrarmeans the officer of  
the Department who is in charge  
of the Indian Register;  
[…]  
5.  
An Indian Register shall be maintained  
5.  
Est maintenu au ministère un registre des  
in the Department, which shall consist of  
Band Lists and General Lists and in which  
shall be recorded the name of every person  
who is entitled to be registered as an Indian.  
Indiens, lequel consiste dans des listes de bande  
et des listes générales et où doit être consigné le  
nom de chaque personne ayant droit d'être  
inscrite comme Indien.  
6.  
The name of every person who is a  
6. Le nom de chaque personne qui est membre  
d'une bande et a droit d'être inscrite doit être  
consigné sur la liste de bande pour la bande en  
question, et le nom de chaque personne qui n'est  
pas membre d'une bande et a droit d'être inscrite  
doit apparaître sur une liste générale.  
member of a band and is entitled to be  
registered shall be entered in the Band List for  
that band, and the name of every person who  
is not a member of a band and is entitled to be  
registered shall be entered in a General List.  
7. (1) The Registrar may at any time add to  
or delete from a Band List or a General List  
the name of any person who, in accordance  
with the provisions of this Act, is entitled or  
not entitled, as the case may be, to have his  
name included in that List.  
7. (1) Le registraire peut en tout temps ajouter  
à une liste de bande ou à une liste générale, ou  
en retrancher, le nom de toute personne qui,  
d'après les dispositions de la présente loi, a ou  
n'a pas droit, selon le cas, à l'inclusion de son  
nom dans cette liste.  
(2) The Indian Register shall indicate the  
date on which each name was added thereto  
or deleted therefrom.  
(2) Le registraire des Indiens doit indiquer  
la date où chaque nom y a été ajouté ou en a été  
retranché.  
8. Upon the coming into force of this Act, the  
band lists then in existence in the Department  
8.  
Dès l'entrée en vigueur de la présente loi,  
les listes de bande alors dressées au ministère  
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PAGE: 142  
shall constitute the Indian Register, and the doivent constituer le registre des Indiens et les  
applicable lists shall be posted in a listes applicables doivent être affichées à un  
conspicuous place in the superintendent's endroit bien en vue dans le bureau du  
office that serves the band or persons to surintendant qui dessert la bande ou les personne  
whom the list relates and in all other places visées par la lite et dans tous les autres endroits  
where band notices are ordinarily displayed.  
où les avis concernant la bande sont  
ordinairement affichés.  
9. (1) Within six months after a list has been 9. (1) Dans les six mois de l'affichage d'une  
posted in accordance with section eight or liste conformément à l'article huit ou dans les  
within three months after the name of a trois mois de l'addition du nom d'une personne à  
person has been added to or deleted from a une liste de bande ou à une liste générale ou de  
Band List or a General List pursuant to son retranchement d'une telle liste, en vertu de  
section seven  
l'article sept,  
a) dans le cas d'une liste de bande, le conseil  
(a) in the case of a Band List, the council  
of the band, any ten electors of the band, or  
any three electors if there are less than ten  
electors in the band,  
(b) in the case of a posted portion of a  
General List, any adult person whose name  
appears on that posted portion,  
de la bande, dix électeurs de la bande ou  
trois électeurs, s'il y en a moins de dix,  
b) dans le cas d'une portion affichée d'une  
liste générale, tout adulte dont le nom figure  
sur cette portion affichée,  
et  
c) la personne dont le nom a été inclus dans  
la liste mentionnée à l'article huit, ou y a été  
omis, ou dont le nom a été ajouté à une liste  
de bande ou une liste générale, ou en a été  
retranché,  
and  
(c) the person whose name was included in  
or omitted from the list referred to in peuvent, par avis écrit au registraire, renfermant  
section eight, or whose name was added to un bref exposé des motifs invoqués à cette fin,  
or deleted from a Band List or a General protester contre l'inclusion, l'omission, l'addition  
List, may, by notice in writing to the ou le retranchement, selon le cas, du nom de  
Registrar, containing a brief statement of cette personne.  
the grounds therefor, protest the inclusion,  
omission, addition, or deletion, as the case  
may be, of the name of that person.  
(2) Where a protest is made to the Registrar (2) Lorsqu'une protestation est adressée au  
under this section he shall cause an registraire, en vertu du présent article, il doit  
investigation to be made into the matter and faire tenir une enquête sur la question et rendre  
shall render a decision, and subject to a une décision qui, sous réserve d'un renvoi prévu  
reference under subsection three, the decision au paragraphe trois, est définitive et péremptoire.  
of the Registrar is final and conclusive.  
(3) Dans les trois mois de la date d'une  
(3) Within three months from the date of a décision du registraire aux termes du présent  
decision of the Registrar under this section  
(a) the council of the band affected by  
the Registrar's decision, or  
article,  
a) le conseil de la bande que vise la  
décision du registraire, ou  
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PAGE: 143  
(b) the person by or in respect of whom  
the protest was made,  
b) la personne qui a fait la protestation ou  
à l'égard de qui elle a eu lieu,  
peut, moyennant un avis par écrit, demander au  
may, by notice in writing, request the registraire de soumettre la décision à un juge,  
Registrar to refer the decision to a judge for pour révision, et dès lors le registraire doit  
review, and thereupon the Registrar shall refer déférer la décision, avec tous les éléments que le  
the decision, together with all material registraire a examinés en rendant sa décision, au  
considered by the Registrar in making his juge de la cour de comté ou district du comté ou  
decision, to the judge of the county or district district où la bande est située ou dans lequel  
court of the county or district in which the réside la personne à l'égard de qui la protestation  
band is situated or in which the person in a été faite, ou de tel autre comté ou district que le  
respect of whom the protest was made Ministre peut désigner, ou, dans la province de  
resides, or such other county or district as the Québec, au juge de la cour supérieure du district  
Minister may designate, or in the Province of où la bande est située ou dans lequel réside la  
Quebec, to the judge of the Superior Court for personne à l'égard de qui la protestation a été  
the district in which the band is situated or in faite, ou de tel autre district que le Ministre peut  
which the person in respect of whom the désigner.  
protest was made resides, or such other  
district as the Minister may designate.  
(4) The judge of the county, district or  
(4) Le juge de la cour de comté, de la cour  
Superior Court, as the case may be, shall de district ou de la cour supérieure, selon le cas,  
inquire into the correctness of the Registrar's doit enquêter sur la justesse de la décision du  
decision, and for such purposes may exercise registraire et, à ces fins, peut exercer tous les  
all the powers of a commissioner under Part I pouvoirs d'un commissaire en vertu de la Partie I  
of the Inquiries Act; the judge shall decide de la Loi des enquêtes. Le juge doit décider si la  
whether the person in respect of whom the personne qui a fait l'objet de la protestation a ou  
protest was made is, in accordance with the n'a pas droit, selon le cas, d'après les dispositions  
provisions of this Act, entitled or not entitled, de la présente loi, à l'inscription de son nom au  
as the case may be, to have his name included registre des Indiens, et la décision du juge est  
in the Indian Register, and the decision of the définitive et péremptoire.  
judge is final and conclusive.  
10. Where the name of a male person is 10. Lorsque le nom d'une personne du sexe  
included in, omitted from, added to or deleted masculin est inclus dans une liste de bande ou  
from a Band List or a General List, the names une liste générale, ou y est ajouté ou omis, ou en  
of his wife and his minor children shall also be est retranché, les noms de son épouse et de ses  
included, omitted, added or deleted, as the case enfants mineurs doivent également être inclus,  
may be.  
ajoutés, omis ou retranchés, selon le cas.  
111. Subject to section twelve, a person is 11. Sous réserve de l'article douze, une personne  
entitled to be registered if that person  
a droit d'être inscrite si  
(a) on the twenty-sixth day of May, eighteen  
a) elle était, le vingt-six mai mil huit  
hundred and seventy-four, was, for the cent soixante-quatorze, aux fins de la loi alors  
500-17-066945-117  
PAGE: 144  
purposes of An Act providing for the intitulée: Acte pourvoyant à l'organisation du  
organization of the Department of the Secretary Département du Secrétaire d'État du Canada,  
of State of Canada, and for the management of ainsi qu'à l'administration des Terres des  
Indian and Ordonnance Lands, chapter forty- Sauvages et de l'Ordonnance, chapitre quarante-  
two of the statutes of 1868, as amended by deux des Statuts de 1868, modifiée par l'article  
section six of chapter six of the statutes of six du chapitre six des Statuts de 1869 et par  
1869, and section eight of chapter twenty-one l'article huit du chapitre vingt et un des Statuts  
of the statutes of 1874, considered to be de 1874, considérée comme ayant droit à la  
entitled to hold, use or enjoy the lands and détention, l'usage ou la jouissance des terres et  
other immovable property belonging to or autres biens immobiliers appartenant aux tribus,  
appropriated to the use of the various tribes, bandes ou groupes d'Indiens au Canada, ou  
bands or bodies of Indians in Canada,  
affectés à leur usage,  
b) elle est membre d'une bande  
(i) à l'usage et au profit  
(b) is a member of a band  
(i) for whose use and benefit, in  
common, lands have been set apart or since the communs de laquelle des terres ont été mises de  
twenty-sixth day of May, eighteen hundred and côté ou, depuis le vingt-six mai mil huit cent  
seventy-four have been agreed by treaty to be soixante-quatorze, ont fait l'objet d'un traité les  
set apart, or  
mettant de côté, ou  
(ii) que le gouverneur en  
Governor in Council to be a band for the conseil a déclaré une bande aux fins de la  
purposes of this Act, présente loi,  
(c) is a male person who is a direct c) elle est du sexe masculin et  
descendant in the male line of a male person descendante directe, dans la ligne masculine,  
(ii) that has been declared by the  
described in paragraph (a) or (b),  
(d) is the legitimate child of  
d'une personne du sexe masculin décrite à  
l'alinéa a) ou b),  
(i) a mal person described in  
paragraph (a) or (b),  
or  
d) elle est l'enfant légitime  
(i) d'une personne du sexe  
masculin décrite à l'alinéa a) ou b),  
ou  
(ii)  
a person described in  
(ii) d'une personne décrite à  
l'alinéa c),  
paragraph (c),  
(e) is the illegitimate child of a  
(e) elle est l'enfant illégitime d'une  
female person described in paragraph (a), (b) or personne du sexe féminin décrite à l'alinéa a), b)  
(d), unless the Registrar is satisfied that the ou d), à moins que le registraire ne soit  
father of the child was not an Indian and the convaincu que le père de l'enfant n'était pas un  
Registrar has declared that the child is not Indien et n'ait déclaré que l'enfant n'a pas le droit  
entitled to be registered, or  
d'être inscrit, ou  
(f) is the wife or widow of a person who is  
(f) elle est l'épouse ou la veuve d'une  
entitled to be registered by virtue of paragraph personne ayant le droit d'être inscrite aux termes  
(a), (b), (c), (d) or (e). de l'alinéa a), b), c), d) ou e).  
12. (1) The following persons are not entitled 12. (1) Les personnes suivantes n'ont pas le  
500-17-066945-117  
PAGE: 145  
to be registered, namely,  
(a) a person who  
droit d'être inscrites, savoir:  
a) une personne qui  
(i)  
has received or has been  
(i) a reçu ou à qui il a été  
allotted half-breed lands or money scrip,  
attribué, des terres ou certificats d'argent de  
(ii) is a descendant of a person métis,  
described in sub-paragraph (i),  
(iii) is enfranchised, or  
(iv) is a person born of a marriage  
entered into after the coming into force of this  
(ii) est un descendant d'une  
personne décrite au sous-alinéa (i),  
(iii) est émancipée, ou  
(iv) est née d'un mariage  
Act and has attained the age of twenty-one contracté après l'entrée en vigueur de la présente  
years, whose mother and whose father's mother loi et a atteint l'âge de vingt et un ans, dont la  
are not persons described in paragraph (a), (b), mère et la grand-mère paternelle ne sont pas des  
(d), or entitled to be registered by virtue of personnes décrites à l'alinéa a), b) ou d) ou  
paragraph (e) of section eleven, unless, being a admises à être inscrites en vertu de l'alinéa e) de  
woman, that person is the wife or widow of a l'article onze,  
person described in section eleven,  
and  
sauf si, étant une femme, cette personne est  
l'épouse ou la veuve de quelqu'un décrit à  
(b) a woman who is married to a person l'article onze, et  
who is not an Indian.  
b) une femme qui a épousé une  
personne non indienne.  
(2) the Minister may issue to any Indian to  
(2) Le Ministre peut délivrer à tout Indien  
whom this Act ceases to apply, a certificate to auquel la présente loi cesse de s'appliquer, un  
that effect.  
certificat dans ce sens.  
[…]  
18. (1) Subject to the provisions of this Act, 18. (1) Sauf les dispositions de la présente  
reserves shall be held by His Majesty for the loi, Sa Majesté détient des réserves à l’usage et  
use and benefit of the respective bands for au profit des bandes respectives pour lesquelles  
which they were set apart; and subject to this elles furent mises de côté ; et, sauf la présente  
Act and to the terms of any treaty or surrender, loi et les stipulations de tout traité ou cession, le  
the Governor in Council may determine gouverneur en conseil peut décider si tout objet  
whether any purpose for which lands in a pour lequel des terres dans une réserve sont ou  
reserve are used or are to be used is for the use doivent être utilisées, se trouve à l’usage ou au  
and benefit of the band.  
profit de la bande.  
[…]  
14. Indian Act, R.S.C., 1985, c. I-5 (excerpts as currently in force)  
2 (1) In this Act,  
2 (1) Les définitions qui suivent  
s’appliquent à la présente loi.  
500-17-066945-117  
PAGE: 146  
[…]  
Registrar means the officer in the  
registraire Le  
fonctionnaire  
du  
Department who is in charge of the  
Indian Register and the Band Lists  
maintained in the Department;  
ministère responsable du registre des  
Indiens et des listes de bande tenus au  
ministère.  
[…]  
5 (1) There shall be maintained in the  
Department an Indian Register in  
which shall be recorded the name of  
every person who is entitled to be  
registered as an Indian under this Act.  
5 (1) Est tenu au ministère un registre  
des Indiens où est consigné le nom de  
chaque personne ayant le droit d’être  
inscrite comme Indien en vertu de la  
présente loi.  
(2) The names in the Indian Register  
immediately prior to April 17, 1985  
shall constitute the Indian Register on  
April 17, 1985.  
(2) Les noms figurant au registre des  
Indiens le 16 avril 1985 constituent le  
registre des Indiens au 17 avril 1985.  
(3) Le registraire peut ajouter au  
registre des Indiens, ou en retrancher,  
le nom de la personne qui, aux termes  
de la présente loi, a ou n’a pas droit,  
selon le cas, à l’inclusion de son nom  
dans ce registre.  
(3) The Registrar may at any time add  
to or delete from the Indian Register  
the name of any person who, in  
accordance with this Act, is entitled or  
not entitled, as the case may be, to  
have his name included in the Indian  
Register.  
(4) The Indian Register shall indicate  
the date on which each name was  
added thereto or deleted therefrom.  
(4) Le registre des Indiens indique la  
date où chaque nom y a été ajouté ou  
en a été retranché.  
(5) The name of a person who is  
entitled to be registered is not required  
to be recorded in the Indian Register  
unless an application for registration is  
made to the Registrar.  
(5) Il n’est pas requis que le nom  
d’une personne qui a le droit d’être  
inscrite soit consigné dans le registre  
des Indiens, à moins qu’une demande  
à cet effet soit présentée au registraire.  
6 (1) Subject to section 7, a person is entitled  
to be registered if  
6 (1) Sous réserve de l’article 7, toute  
personne a le droit d’être inscrite dans  
les cas suivants :  
(a) that person was registered or entitled  
to be registered immediately prior to April  
17, 1985;  
a) elle était inscrite ou avait le droit  
de l’être le 16 avril 1985;  
500-17-066945-117  
(b) that person is a member of a body of  
PAGE: 147  
b) elle est membre d’un groupe de  
persons that has been declared by the  
Governor in Council on or after April 17,  
1985 to be a band for the purposes of this  
Act;  
personnes  
déclaré  
par  
le  
gouverneur en conseil après le 16  
avril 1985 être une bande pour  
l’application de la présente loi;  
(c) the name of that person was omitted or  
deleted from the Indian Register, or from  
a band list prior to September 4, 1951,  
c) son nom a été omis ou retranché  
du registre des Indiens ou, avant le  
4 septembre 1951, d’une liste de  
bande, en vertu du sous-alinéa  
12(1)a)(iv), de l’alinéa 12(1)b) ou  
du paragraphe 12(2) ou en vertu du  
under  
subparagraph  
12(1)(a)(iv),  
paragraph 12(1)(b) or subsection 12(2) or  
under subparagraph 12(1)(a)(iii) pursuant  
to an order made under subsection 109(2),  
as each provision read immediately prior  
to April 17, 1985, or under any former  
provision of this Act relating to the same  
subject-matter as any of those provisions;  
sous-alinéa  
12(1)a)(iii)  
conformément à une ordonnance  
prise en vertu du paragraphe  
109(2), dans leur version antérieure  
au 17 avril 1985, ou en vertu de  
toute disposition antérieure de la  
présente loi portant sur le même  
sujet que celui d’une de ces  
dispositions;  
(c.1) that person  
(i) is a person whose mother’s name  
was, as a result of the mother’s  
marriage, omitted or deleted from the  
Indian Register, or from a band list  
prior to September 4, 1951, under  
paragraph  
12(1)(b)  
or  
under  
subparagraph 12(1)(a)(iii) pursuant to  
an order made under subsection  
109(2), as each provision read  
immediately prior to April 17, 1985,  
or under any former provision of this  
Act relating to the same subject-matter  
as any of those provisions,  
c.1) elle  
suivantes :  
remplit  
les  
conditions  
(i) le nom de sa mère a été, en raison  
du mariage de celle-ci, omis ou  
retranché du registre des Indiens ou,  
avant le 4 septembre 1951, d’une liste  
de bande, en vertu de l’alinéa 12(1)b)  
ou en vertu du sous-alinéa 12(1)a)(iii)  
conformément à une ordonnance prise  
en vertu du paragraphe 109(2), dans  
leur version antérieure au 17 avril  
1985, ou en vertu de toute disposition  
antérieure de la présente loi portant  
sur le même sujet que celui d’une de  
ces dispositions,  
(ii) is a person whose other parent is  
not entitled to be registered or, if no  
longer living, was not at the time of  
death entitled to be registered or was  
not an Indian at that time if the death  
occurred prior to September 4, 1951,  
(iii) was born on or after the day on  
which the marriage referred to in  
subparagraph (i) occurred and, unless  
the person’s parents married each  
(ii) son autre parent n’a pas le droit  
d’être inscrit ou, s’il est décédé, soit  
500-17-066945-117  
other prior to April 17, 1985, was  
PAGE: 148  
n’avait pas ce droit à la date de son  
décès, soit n’était pas un Indien à cette  
date dans le cas d’un décès survenu  
avant le 4 septembre 1951,  
born prior to that date, and  
(iv) had or adopted a child, on or after  
September 4, 1951, with a person who  
was not entitled to be registered on the  
day on which the child was born or  
adopted;  
(iii) elle est née à la date du mariage  
visé au sous-alinéa (i) ou après cette  
date et, à moins que ses parents se  
soient mariés avant le 17 avril 1985,  
est née avant cette dernière date,  
(d) the name of that person was omitted or  
deleted from the Indian Register, or from  
a band list prior to September 4, 1951,  
under subparagraph 12(1)(a)(iii) pursuant  
to an order made under subsection 109(1),  
as each provision read immediately prior  
to April 17, 1985, or under any former  
provision of this Act relating to the same  
subject-matter as any of those provisions;  
(iv) elle a eu ou a adopté, le 4  
septembre 1951 ou après cette date, un  
enfant avec une personne qui, lors de  
la naissance ou de l’adoption, n’avait  
pas le droit d’être inscrite;  
d) son nom a été omis ou retranché  
du registre des Indiens ou, avant le  
4 septembre 1951, d’une liste de  
bande, en vertu du sous-alinéa  
12(1)a)(iii) conformément à une  
ordonnance prise en vertu du  
paragraphe 109(1), dans leur  
version antérieure au 17 avril 1985,  
ou en vertu de toute disposition  
antérieure de la présente loi portant  
sur le même sujet que celui d’une  
de ces dispositions;  
(e) the name of that person was omitted or  
deleted from the Indian Register, or from  
a band list prior to September 4, 1951,  
(i) under section 13, as it read  
immediately prior to September 4,  
1951, or under any former provision  
of this Act relating to the same  
subject-matter as that section, or  
e) son nom a été omis ou retranché  
du registre des Indiens ou, avant le  
4 septembre 1951, d’une liste de  
bande :  
(ii) under section 111, as it read  
immediately prior to July 1, 1920, or  
under any former provision of this Act  
relating to the same subject-matter as  
that section; or  
(i) soit en vertu de l’article 13, dans  
sa version antérieure au 4  
septembre 1951, ou en vertu de  
toute disposition antérieure de la  
présente loi portant sur le même  
sujet que celui de cet article,  
(f) that person is a person both of whose  
parents are or, if no longer living, were at  
the time of death entitled to be registered  
under this section.  
(ii) soit en vertu de l’article 111,  
dans sa version antérieure au 1er  
juillet 1920, ou en vertu de toute  
(2) Subject to section 7, a person is  
entitled to be registered if that person  
is a person one of whose parents is or,  
500-17-066945-117  
if no longer living, was at the time of  
PAGE: 149  
disposition antérieure de la présente  
loi portant sur le même sujet que  
celui de cet article;  
death entitled to be registered under  
subsection (1).  
(3) For the purposes of paragraph  
(1)(f) and subsection (2),  
f) ses parents ont tous deux le droit  
d’être inscrits en vertu du présent  
article ou, s’ils sont décédés,  
avaient ce droit à la date de leur  
décès.  
(a) a person who was no longer living  
immediately prior to April 17, 1985 but  
who was at the time of death entitled to be  
registered shall be deemed to be entitled  
to be registered under paragraph (1)(a);  
(2) Sous réserve de l’article 7, une  
personne a le droit d’être inscrite si  
l’un de ses parents a le droit d’être  
inscrit en vertu du paragraphe (1) ou,  
s’il est décédé, avait ce droit à la date  
de son décès.  
(b) a person described in paragraph (1)(c),  
(d), (e) or (f) or subsection (2) and who  
was no longer living on April 17, 1985  
shall be deemed to be entitled to be  
registered under that provision; and  
(3) Pour l’application de l’alinéa (1)f)  
et du paragraphe (2) :  
a) la personne qui est décédée avant le  
17 avril 1985 mais qui avait le droit  
d’être inscrite à la date de son décès  
est réputée avoir le droit d’être inscrite  
en vertu de l’alinéa (1)a);  
(c) a person described in paragraph  
(1)(c.1) and who was no longer living on  
the day on which that paragraph comes  
into force is deemed to be entitled to be  
registered under that paragraph.  
b) la personne visée aux alinéas (1)c),  
d), e) ou f) ou au paragraphe (2) et qui  
est décédée avant le 17 avril 1985 est  
réputée avoir le droit d’être inscrite en  
vertu de ces dispositions;  
7 (1) The following persons are not entitled to  
be registered:  
(a) a person who was registered under  
paragraph 11(1)(f), as it read immediately  
prior to April 17, 1985, or under any  
former provision of this Act relating to the  
same subject-matter as that paragraph,  
and whose name was subsequently  
omitted or deleted from the Indian  
Register under this Act; or  
c) la personne visée à l’alinéa (1)c.1)  
et qui est décédée avant l’entrée en  
vigueur de cet alinéa est réputée avoir  
le droit d’être inscrite en vertu de  
celui-ci.  
7 (1) Les personnes suivantes n’ont pas le  
droit d’être inscrites :  
(b) a person who is the child of a person  
who was registered or entitled to be  
registered under paragraph 11(1)(f), as it  
read immediately prior to April 17, 1985,  
or under any former provision of this Act  
relating to the same subject-matter as that  
a) celles qui étaient inscrites en vertu  
de l’alinéa 11(1)f), dans sa version  
antérieure au 17 avril 1985, ou en  
vertu de toute disposition antérieure  
500-17-066945-117  
paragraph, and is also the child of a  
PAGE: 150  
de la présente loi portant sur le même  
sujet que celui de cet alinéa, et dont le  
nom a ultérieurement été omis ou  
retranché du registre des Indiens en  
vertu de la présente loi;  
person who is not entitled to be registered.  
(2) Paragraph (1)(a) does not apply in  
respect of a female person who was, at  
any time prior to being registered  
under paragraph 11(1)(f), entitled to  
be registered under any other  
provision of this Act.  
b) celles qui sont les enfants d’une  
personne qui était inscrite ou avait le  
droit de l’être en vertu de l’alinéa  
11(1)f), dans sa version antérieure au  
17 avril 1985, ou en vertu de toute  
disposition antérieure de la présente  
loi portant sur le même sujet que celui  
de cet alinéa, et qui sont également les  
enfants d’une personne qui n’a pas le  
droit d’être inscrite.  
(3) Paragraph (1)(b) does not apply in  
respect of the child of a female person  
who was, at any time prior to being  
registered under paragraph 11(1)(f),  
entitled to be registered under any  
other provision of this Act.  
(2) L’alinéa (1)a) ne s’applique pas à  
une personne de sexe féminin qui,  
avant qu’elle ne soit inscrite en vertu  
de l’alinéa 11(1)f), avait le droit d’être  
inscrite en vertu de toute autre  
disposition de la présente loi.  
14 (1) Within one month after the day an Act  
entitled An Act to amend the Indian Act,  
introduced in the House of Commons on  
February 28, 1985, is assented to, the  
Registrar shall provide the council of each  
band with a copy of the Band List for the  
band as it stood immediately prior to that day.  
(3) L’alinéa (1)b) ne s’applique pas à  
l’enfant d’une personne de sexe  
féminin qui, avant qu’elle ne soit  
inscrite en vertu de l’alinéa 11(1)f),  
avait le droit d’être inscrite en vertu de  
toute autre disposition de la présente  
loi.  
(2) Where a Band List is maintained by the  
Department, the Registrar shall, at least once  
every two months after a copy of the Band  
List is provided to the council of a band under  
subsection (1), provide the council of the  
band with a list of the additions to or  
deletions from the Band List not included in a  
list previously provided under this subsection.  
[…]  
14 (1) Au plus tard un mois après la date de  
sanction de la loi intitulée Loi modifiant la  
Loi sur les Indiens, déposée à la Chambre des  
communes le 28 février 1985, le registraire  
transmet au conseil de chaque bande une  
copie de la liste de la bande dans son état  
antérieur à cette date.  
(3) The council of each band shall, forthwith  
on receiving a copy of the Band List under  
subsection (1), or a list of additions to and  
deletions from its Band List under subsection  
(2), post the copy or the list, as the case may  
be, in a conspicuous place on the reserve of  
the band.  
(2) Si la liste de bande est tenue au ministère,  
le registraire, au moins une fois tous les deux  
mois après la transmission prévue au  
500-17-066945-117  
PAGE: 151  
paragraphe (1) d’une copie de la liste au  
conseil de la bande, transmet à ce dernier une  
liste des additions à la liste et des  
retranchements de celle-ci non compris dans  
une liste antérieure transmise en vertu du  
présent paragraphe.  
14.1 The Registrar shall, on inquiry from any  
person who believes that he or any person he  
represents is entitled to have his name  
included in the Indian Register or a Band List  
maintained in the Department, indicate to the  
person making the inquiry whether or not that  
name is included therein.  
(3) Le conseil de chaque bande, dès qu’il  
reçoit copie de la liste de bande prévue au  
paragraphe (1) ou la liste des additions et des  
retranchements prévue au paragraphe (2),  
affiche la copie ou la liste, selon le cas, en un  
lieu bien en évidence sur la réserve de la  
bande.  
14.2 (1) A protest may be made in  
respect of the inclusion or addition of the  
name of a person in, or the omission or  
deletion of the name of a person from, the  
Indian Register, or a Band List maintained in  
the Department, within three years after the  
inclusion or addition, or omission or deletion,  
as the case may be, by notice in writing to the  
Registrar, containing a brief statement of the  
grounds therefor.  
14.1 Le registraire, à la demande de toute  
personne qui croit qu’elle-même ou que la  
personne qu’elle représente a droit à  
l’inclusion de son nom dans le registre des  
Indiens ou une liste de bande tenue au  
ministère, indique sans délai à l’auteur de la  
demande si ce nom y est inclus ou non.  
(2) A protest may be made under this section  
in respect of the Band List of a band by the  
council of the band, any member of the band  
or the person in respect of whose name the  
protest is made or that person’s  
representative.  
14.2 (1) Une protestation peut être formulée,  
par avis écrit au registraire renfermant un bref  
exposé des motifs invoqués, contre  
l’inclusion ou l’addition du nom d’une  
personne dans le registre des Indiens ou une  
liste de bande tenue au ministère ou contre  
l’omission ou le retranchement de son nom de  
ce registre ou d’une telle liste dans les trois  
ans suivant soit l’inclusion ou l’addition, soit  
l’omission ou le retranchement.  
(3) A protest may be made under this section  
in respect of the Indian Register by the person  
in respect of whose name the protest is made  
or that person’s representative.  
(4) The onus of establishing the grounds of a  
protest under this section lies on the person  
making the protest.  
(2) Une protestation peut être formulée en  
vertu du présent article à l’égard d’une liste  
de bande par le conseil de cette bande, un  
membre de celle-ci ou la personne dont le  
nom fait l’objet de la protestation ou son  
représentant.  
(5) Where a protest is made to the Registrar  
under this section, the Registrar shall cause an  
investigation to be made into the matter and  
render a decision.  
(6) For the purposes of this section, the  
Registrar may receive such evidence on oath,  
on affidavit or in any other manner, whether  
or not admissible in a court of law, as the  
Registrar, in his discretion, sees fit or deems  
(3) Une protestation peut être formulée en  
vertu du présent article à l’égard du registre  
des Indiens par la personne dont le nom fait  
l’objet de la protestation ou son représentant.  
500-17-066945-117  
PAGE: 152  
just.  
(4) La personne qui formule la protestation  
prévue au présent article a la charge d’en  
prouver le bien-fondé.  
(7) Subject to section 14.3, the decision of the  
Registrar under subsection (5) is final and  
conclusive.  
(5) Lorsqu’une protestation lui est adressée en  
vertu du présent article, le registraire fait tenir  
une enquête sur la question et rend une  
décision.  
14.3 (1) Within six months after the Registrar  
renders a decision on a protest under section  
14.2,  
(6) Pour l’application du présent article, le  
registraire peut recevoir toute preuve  
présentée sous serment, par affidavit ou  
autrement, si celui-ci, à son appréciation,  
l’estime indiquée ou équitable, que cette  
preuve soit ou non admissible devant les  
tribunaux.  
(a) in the case of a protest in respect of the  
Band List of a band, the council of the  
band, the person by whom the protest was  
made, or the person in respect of whose  
name the protest was made or that  
person’s representative, or  
(7) Sous réserve de l’article 14.3, la décision  
du registraire visée au paragraphe (5) est  
définitive et sans appel  
(b) in the case of a protest in respect of  
the Indian Register, the person in respect  
of whose name the protest was made or  
that person’s representative,  
14.3 (1) Dans les six mois suivant la date de  
la décision du registraire sur une protestation  
prévue à l’article 14.2, peuvent, par avis écrit,  
en interjeter appel devant le tribunal visé au  
paragraphe (5) :  
may, by notice in writing, appeal the decision  
to a court referred to in subsection (5).  
(2) Where an appeal is taken under this  
section, the person who takes the appeal shall  
forthwith provide the Registrar with a copy of  
the notice of appeal.  
a) s’il s’agit d’une protestation  
formulée à l’égard d’une liste de  
bande, le conseil de la bande, la  
personne qui a formulé la protestation  
ou la personne dont le nom fait l’objet  
de la protestation ou son représentant;  
(3) On receipt of a copy of a notice of appeal  
under subsection (2), the Registrar shall  
forthwith file with the court a copy of the  
decision being appealed together with all  
documentary evidence considered in arriving  
at that decision and any recording or  
transcript of any oral proceedings related  
thereto that were held before the Registrar.  
b) s’il s’agit d’une protestation  
formulée à l’égard du registre des  
Indiens, la personne dont le nom a fait  
l’objet de la protestation ou son  
représentant.  
(2) Lorsqu’il est interjeté appel en vertu du  
présent article, l’appelant transmet sans délai  
(4) The court may, after hearing an appeal  
under this section,  
500-17-066945-117  
(a) affirm, vary or reverse the decision of  
PAGE: 153  
au registraire une copie de l’avis d’appel.  
the Registrar; or  
(3) Sur réception de la copie de l’avis d’appel  
prévu au paragraphe (2), le registraire dépose  
sans délai au tribunal une copie de la décision  
en appel, toute la preuve documentaire prise  
en compte pour la décision, ainsi que  
l’enregistrement ou la transcription des débats  
devant le registraire.  
(b) refer the subject-matter of the appeal  
back to the Registrar for reconsideration  
or further investigation.  
(5) An appeal may be heard under this  
section  
(a) in the Province of Quebec, before the  
Superior Court for the district in which  
the band is situated or in which the person  
who made the protest resides, or for such  
other district as the Minister may  
designate;  
(4) Le tribunal peut, à l’issue de l’audition de  
l’appel prévu au présent article :  
a) soit confirmer, modifier ou  
renverser la décision du registraire;  
(a.1) in the Province of Ontario, before  
the Superior Court of Justice;  
b) soit renvoyer la question en appel  
au registraire pour réexamen ou  
nouvelle enquête.  
(b) in the Province of New Brunswick,  
Manitoba, Saskatchewan or Alberta,  
before the Court of Queen’s Bench;  
(5) L’appel prévu au présent article peut être  
entendu :  
(c) in the Province of Newfoundland and  
Labrador, before the Trial Division of the  
Supreme Court;  
a) dans la province de Québec, par la  
Cour supérieure du district où la  
bande est située ou dans lequel réside  
la personne qui a formulé la  
protestation, ou de tel autre district  
désigné par le ministre;  
(c.1) [Repealed, 1992, c. 51, s. 54]  
(d) in the Province of Nova Scotia, British  
Columbia or Prince Edward Island, in  
Yukon or in the Northwest Territories,  
before the Supreme Court; or  
a.1) dans la province d’Ontario, par la  
(e) in Nunavut, before the Nunavut Court  
of Justice.  
Cour supérieure de justice;  
b) dans la province du Nouveau-  
Brunswick, du Manitoba, de la  
Saskatchewan ou d’Alberta, par la  
Cour du Banc de la Reine;  
c) dans la province de Terre-Neuve-et-  
Labrador, par la Section de première  
instance de la Cour suprême;  
500-17-066945-117  
PAGE: 154  
c.1) [Abrogé, 1992, ch. 51, art. 54]  
d) dans les provinces de la Nouvelle-  
Écosse, de la Colombie-Britannique et  
de l’Île-du-Prince-Édouard, au Yukon  
et dans les Territoires du Nord-Ouest,  
par la Cour suprême;  
e) au Nunavut, par la Cour de justice.  


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