NATIVE PEOPLES |
Medeinos v. Ginoogaming First Nation
T-935-99
2001 FCT 1318, Lemieux J.
30/11/01
49 pp.
Application for judicial review of two decisions by Band Chief and Council on use of proceeds of settlement agreement (for damages suffered by flooding after Ontario Hydro constructed dam on Kenogami River) for benefit of on-reserve members of First Nation, thus excluding applicants-- Challenged decisions made before S.C.C. decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 which invalidated Indian Act, s. 77(1) (excluding off-reserve members of Indian Band from right to vote in band council elections) as inconsistent with Charter, s. 15--Principal issue whether Band council decisions under review should be struck down as discriminating against applicant members of First Nation who do not live on reserve, but nearby, in Hornepayne--Application allowed--As band council resolutions herein challenged on grounds of discrimination, question of law to be appreciated in specific factual context, lower standard of deference called for, enhanced by taking into account lack of privative clause--Standard of reasonableness applicable--No provisions of Indian Act which would authorize band council to discriminate between on-reserve and off-reserve members of band--Exclusion of off-reserve members discriminatory; direct and intended differential treatment by band council to its off-reserve members--Procedurally wrong for Chief and Council of First Nation to have excluded off-reserve members living in Hornepayne from participating in settlement agreement ratification process--Also wrong for band council to pass resolution conferring benefits only to on-reserve band elders--Procedurally, Hornepayne members of First Nation had legitimate expectation they would be able to participate in final approval process--Substantial element of discrimination exclusion of all benefits--Justifications advanced by First Nation either that its off-reserve members at Hornepayne were members simply by inadvertence or part of separate Hornepayne First Nation cannot be accepted because to do so would subvert membership band process and band recognition provisions provided for in Indian Act--Fact Hornepayne First Nation recognized by other Aboriginal groups cannot override legislative structure governing membership on Band Lists and creation of new bands from existing Band Lists and, as result, cannot justify discriminatory treatment between on-reserve and off-reserve members--Instant case similar to Barry v. Garden River Band of Ojibways (1997), 33 O.R. (3d) 782 (C.A.) with respect to distribution of funds derived from settlement of claims related to lands--Indian Act, R.S.C., 1985, c. s. 77(1) (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 14)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.