Page: 19
[35] In Abenakis of Odanak v Canada (Indian Affairs and Northern Development), 2008 FCA
126 [Odanak], the Federal Court of Appeal cited and adopted the Supreme Court’s interpretation
in Cardinal, holding that s 10(1) of the Indian Act which refers to “a majority of the electors of
the band” required “a majority of the majority” to vote in favour of taking control of the band’s
membership (at para 47). The Federal Court of Appeal stated its reasoning as follows:
[41] The expression “a majority of the electors of the band” is
used in subsections 2(3), 10(1) and (2), sections 13.1 and 13.2
and subsections 39(1) and (2) of the Act. Elsewhere, in sections
74, 85.1 and 120 of the Act, specific terms concerning voting
rights are associated with the words “majority of the votes of the
electors of the band” or “majority vote of those electors of the
band”.
[42] There is no mistake in interpreting the words “majority of
the electors” in section 10 of the Act according to the interpretation
given by the Supreme Court of Canada in Enoch Band of Stony
Plain Indian Reserve No. 135 v. Canada, 1982 173
(SCC), [1982] 1 S.C.R. 508. That case concerned the interpretation
to be given to the words “majority … of the band … at a meeting
… summoned for that purpose” in section 49 of the Indian Act,
R.S.C. 1906, c. 81, which dealt with the surrender of all or part of
the reserve’s lands. Estey J., writing on behalf of the Supreme
Court of Canada, stated the following (paragraph 13 of the
reasons):
13 It may be helpful to analogize the first
requirement of the majority to that of a prescription
of quorum and it may be helpful to refer to the
second requirement that the assent be given at a
meeting as simply a prescribed mechanical method
of determining the will of the meeting on the issue
of assent. In adverting to the common law
principle, supra, I had in mind The Mayor,
Constables, and Company of Merchants of the
Staple of England v. The Governor and Company of
the Bank of England (1887), 21 Q.B.D. 160 at p.
165 where it was stated by Wills J. in reference to
the acts of a corporation being those of the major
part of the corporators corporately assembled:
This means that, in the absence of special
custom, the major part must be present at the