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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