Judgments

[1995] 2 F.C. 389

A-553-93

Alfred Goodswimmer, Keith Goodswimmer, Jerry Goodswimmer and Ron Sunshine on their own behalf and on behalf of other members of the Sturgeon Lake Indian Band, the Council of the Sturgeon Lake Indian Band, Mary Kappo, Mary Delphine Goodswimmer, Lucy Sunshine, Louise Redhead, Cecile Kiyawasew, Marina Plante, Florestine Chowace, Forence Standingribbon,[1] Wilfred Goodswimmer and the Lesser Slave Lake Indian Regional Council (Appellants)

v.

The Attorney General of Canada, the Minister of Indian Affairs and Northern Development and Darlene Desjarlais, in her capacity as Chief of the Sturgeon Lake Indian Band (Respondents)

Indexed as: Goodswimmer v. Canada (Attorney General) (C.A.)

Court of Appeal, Stone, Strayer and McDonald JJ.A.—Edmonton, February 23; Ottawa, March 21, 1995.

Native peoples — Elections — Appeal from F.C.T.D. order person not qualified as elector eligible for election as Band Chief — Respondent elected Band Chief though neither elector nor Indian — No eligibility requirement for office of Chief under Indian Act, s. 74(3)(a)(i) — Court not to disregard plain meaning of Act even if anomalous.

Construction of statutes — Interpretation of Indian Act, s. 74(3)(a)(i),(ii) — Whether Band Chief need be elector — Statutory history of Indian Act — Statute silent on eligibility requirements for person to be elected chief — Treaties, statutes relating to Indians to be liberally construed — Plain meaning of Act not to be disregarded even if giving rise to absurd results.

This was an appeal from a Trial Division order that, as a matter of interpretation of the Indian Act, a person who is not an elector of the Sturgeon Lake Indian Band may be elected as Chief of the Band. That person, one of the respondents herein, was elected Chief of the Band although she was neither a Band member nor a status Indian. After appeals against her election were filed, she lost a new election for Chief to one of the appellants. It was argued in the Trial Division that subparagraph 74(3)(a)(i) of the Act should be construed as meaning that no person is eligible to be elected Band Chief unless that person is an “elector” as defined in section 2 of the Act. The Motions Judge rejected that contention. The main issue in this appeal was whether the Motions Judge erred in determining that a person need not be an “elector” to be eligible for election as Chief of the Sturgeon Lake Indian Band.

Held, the appeal should be dismissed.

Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in their favour. Federal legislation since Confederation governing the election of a chief or chiefs of a band is silent on eligibility requirements. The law governing the election of a chief of a band was significantly changed by The Indian Act of 1951. By its provisions, the two former schemes for the election of a chief was replaced by a composite scheme which called for the election of a chief, in the circumstances therein stated, either by direct election or by the councillors so elected. Other than requirements for nominators, the statute laid down no eligibility requirement for the office of chief to be elected by direct vote pursuant to subparagraph 73(3)(a)(i). The history of the pre-1951 legislation does not assist in construing the provisions of paragraph 74(3)(a) of the present Act. There is no indication in the 1951 statute that the eligibility requirements for the election of a chief is to be analogized to those for the election of reeve or mayor of a municipal government.

The effect of the Motions Judge’s interpretation of subparagraphs 74(3)(a)(i) and (ii) of the present Act was that while a person who seeks the office of chief of a band need not be an elector, a person must be an elector to be elected chief by the elected councillors. That, according to the appellants, produced an absurdity which Parliament could not be taken to have intended. The fact that a provision gives rise to absurd results is not sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis. While a person in the position of the respondent, Desjarlais, might succeed in gaining nomination for the office of Chief though not an “elector”, that does not lead inevitably to election. That decision is by the Act left in the hands of those who are given the ultimate choice over whom shall become their leader—the “electors” of the Band as defined in section 2 of the Act. It is not the function of the Court to disregard the plain meaning of the Act simply because it may be viewed by some as anomalous.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

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, S.C. 1869, c. 6, s. 10.

An Act to amend the Indian Act, S.C. 1936, c. 20, s. 13.

Criminal Code, R.S.C., 1985, c. C-46.

Indian Act, R.S.C. 1906, c. 81, Part I, Part II.

Indian Act, R.S.C. 1927, c. 98, ss. 96, 97, 98, 99, 157, 168-194.

Indian Act, R.S.C. 1952, c. 149, s. 73(1),(2),(3).

Indian Act, R.S.C. 1970, c. I-6, s. 74(1),(2),(3).

Indian Act, R.S.C., 1985, c. I-5, ss. 2 “band”, “Band List” (as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 1), “elector” (as am. idem), “reserve” (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1), 74, 75, 76, 77 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 14), 78, 79, 81 (as am. idem, s. 15), 82, 83 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 10).

Indian Act (The), 1876, S.C. 1876, c. 18, ss. 61, 62.

Indian Act (The), 1880, S.C. 1880, c. 28, ss. 72, 73.

Indian Act (The), R.S.C. 1886, c. 43, ss. 75, 93, 94, 95, 96, 127, 166.

Indian Act (The), S.C. 1951, c. 29, ss. 73, 74(2), 80, 81(2), 82(1), 123(1),(2).

Indian Advancement Act (The), 1884, S.C. 1884, c. 28, ss. Preamble, 3, 4, 5, 6, 10.

Indian Advancement Act (The), R.S.C. 1886, c. 44, ss. 5, 6, 10, 177-194.

Indian Band Election Regulations, C.R.C., c. 952.

Indian Bands Council Method of Election Regulations, SOR/90-46, ss. 2, 3, Schedule 1.

Indian (Soldier Settlement) Act, R.S.C. 1927, c. 98, ss. 187, 188, 189, 190.

Local Authorities Election Act, S.A. 1983, c. L-27.5, ss. 21, 47.

Municipal Government Act, R.S.A. 1980, c. M-26, s. 29.

Revised Statutes of Canada, 1985 Act, R.S.C., 1985 (3rd Supp.), c. 40, s. 4.

Statute Revision Act, S.C. 1974-75-76, c. 20, ss. 5, 6, 7.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. McIntosh, [1995] S.C.J. No. 16 (QL); Cardinal et al. v. The Queen, [1982] 1 S.C.R. 508; (1982), 133 D.L.R. (3d) 513; [1982] 3 W.W.R. 673; 41 N.R. 300.

AFFIRMED:

Goodswimmer v. Canada (Minister of Indian Affairs and Northern Development), [1994] 2 C.N.L.R. 56; (1993), 66 F.T.R. 279 (F.C.T.D.).

CONSIDERED:

Nowegijick v. The Queen, [1983] 1 S.C.R. 29; (1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89; [1983] CTC 20; 83 DTC 5041; 46 N.R. 41; River Wear Commissioners v. Adamson and Others, [1874-80] All E.R. Rep. 1 (H.L.).

REFERRED TO:

R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; (1990), 71 D.L.R. (4th) 193; [1990] 5 W.W.R. 97; 67 Man. R. (2d) 81; [1990] 3 C.N.L.R. 46; 110 N.R. 241; 3 T.C.T. 5219.

AUTHORS CITED

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.

APPEAL from a Trial Division order ([1994] 2 C.N.L.R. 56; (1993), 66 F.T.R. 279) that, as a matter of interpretation of the Indian Act, a person who is not an elector of the Sturgeon Lake Indian Band may be elected as Chief of the Band. Appeal dismissed.

COUNSEL:

Philip P. Healey, John K. Gormley and Catherine M. Twinn for appellants Mary Kappo, Mary Delphine Goodswimmer, Lucy Sunshine, Louise Redhead, Cecile Kiyawasew, Marina Plante, Florestine Chowace, Florence Standingribbon, Wilfred Goodswimmer and The Lesser Slave Lake Indian Regional Council.

Robert W. Hladun, Q.C., and Gary R. Braun for appellants Alfred Goodswimmer, Keith Goodswimmer, Jerry Goodswimmer and Ron Sunshine on their own behalf and on behalf of other members of the Sturgeon Lake Indian Band.

Kirk N. Lambrecht for respondents.

SOLICITORS:

Shibley, Righton, Toronto, McLennan Ross, Edmonton, and Catherine M. Twinn, Slave Lake, Alberta, for appellants Mary Kappo, Mary Delphine Goodswimmer, Lucy Sunshine, Louise Redhead, Cecile Kiyawasew, Marina Plante, Florestine Chowace, Florence Standingribbon, Wilfred Goodswimmer and The Lesser Slave Lake Indian Regional Council.

Hladun & Company, Edmonton, for appellants Alfred Goodswimmer, Keith Goodswimmer, Jerry Goodswimmer and Ron Sunshine on their own behalf and on behalf of other members of the Sturgeon Lake Indian Band.

Deputy Attorney General of Canada for respondents.

The following are the reasons for judgment rendered in English by

Stone J.A.: This appeal is from an order of the Trial Division dated August 31, 1993 [[1994] 2 C.N.L.R. 56], which answered a question in an action on an agreed statement of facts. The same question was posed on the same facts in a second action which was disposed of by the Trial Division by order dated the same day. An appeal is before us from this second order in Court File No. A-553-93. These reasons will apply to both appeals and shall be filed accordingly.

Background

The Sturgeon Lake Indian Band (the Band) is a “band” within the meaning of the Indian Act, R.S.C., 1985, c. I-5, as amended (the Act), and the reserve, which is situated near Valleyview, Alberta, is a “reserve” [as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1] within the meaning of the Act. Pursuant to subsection 74(1) of the Act, the Band was declared by order of the Minister made on December 14, 1986, to be one whose chief and council are selected in accordance with the Act.[2] Normally, the council consists of one chief and twelve councillors. The Chief is elected by a majority of the votes cast by electors of the Band pursuant to subparagraph 74(3)(a)(i) of the Act and the councillors are elected by majority of the votes cast by the electors of the Band in accordance with subparagraph 74(3)(b)(i).

On August 28, 1991, an election was held for the position of chief and twelve councillors. On an appeal to the Minister this first election was set aside and a second election was conducted on March 31, 1992. At this second election Darlene Desjarlais was elected Chief of the Band and thereafter assumed the office of Chief. Ms. Desjarlais was not a member of the Band and therefore not an elector in the Band election, although she was married to a Band member and lived on the reserve. Nor was she a status Indian. In April 1992, appeals against the election of Ms. Desjarlais were filed. By letter of July 13, 1992, the Department of Indian Affairs and Northern Development advised that there were insufficient grounds for the Minister to recommend to the Governor in Council to set aside the election. The Department’s position with respect to eligibility for election to the office of chief of a band was foreshadowed in its letter of April 29, 1992 to Ms. Desjarlais, where it was stated:

One particular concern that I want to provide confirmation on is your eligibility to be a candidate for the office of chief. Section 75(1) of the Indian Act (copy attached) states that only an elector can be nominated for the office of councillor.

However, the Indian Act does not specify any eligibility requirements to be a candidate for the office of chief. Band membership, residency and age are not factors considered by an Electoral Officer when accepting nominations for chief. Therefore, you were an eligible candidate and your election to the position of chief was within the provision of the Indian Act.

The question

On August 31, 1993, the date of the orders appealed from, Ms. Desjarlais lost a new election as Chief of the Band to one of the appellants. In light of this development, this Court (Hugessen J.A.) by orders of October 31, 1994, consolidated both appeals and, among other things, granted leave to amend the style of cause and the pleadings. The only relief claimed is an answer to the question that was answered in the Trial Division [at page 57], the question being:

Whether as a matter of interpretation of the Indian Act, R.S.C., 1985, c. I-5, as amended, and regulations thereunder, a person who is not an elector of the Sturgeon Lake Indian Band (the “Band”), is eligible to be a candidate for, and may be elected, as Chief of the Band.

Relevant statutory provisions

In section 2 of the Act, the following terms are defined as follows [“Band List” (as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 1), “elector” (as am. idem)]:

2. (1) In this Act,

…

“Band List” means a list of persons that is maintained under section 8 by a band or in the Department;

…

“council of the band” means

(a) in the case of a band to which section 74 applies, the council established pursuant to that section,

(b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band;

…

“elector” means a person who

(a) is registered on a Band List,

(b) is of the full age of eighteen years, and

(c) is not disqualified from voting at band elections;

…

“member of a band” means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List

Sections 74-79 [section 77 (as am. idem, s. 14)] of the Act read as follows:

74. (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.

(2) Unless otherwise ordered by the Minister, the council of a band in respect of which an order has been made under subsection (1) shall consist of one chief, and one councillor for every one hundred members of the band, but the number of councillors shall not be less than two nor more than twelve and no band shall have more than one chief.

(3) The Governor in Council may, for the purposes of giving effect to subsection (1), make orders or regulations to provide

(a) that the chief of a band shall be elected by

(i) a majority of the votes of the electors of the band, or

(ii) a majority of the votes of the elected councillors of the band from among themselves,

but the chief so elected shall remain a councillor; and

(b) that the councillors of a band shall be elected by

(i) a majority of the votes of the electors of the band, or

(ii) a majority of the votes of the electors of the band in the electoral section in which the candidate resides and that he proposes to represent on the council of the band.

(4) A reserve shall for voting purposes consist of one electoral section, except that where the majority of the electors of a band who were present and voted at a referendum or a special meeting held and called for the purpose in accordance with the regulations have decided that the reserve should for voting purposes be divided into electoral sections and the Minister so recommends, the Governor in Council may make orders or regulations to provide for the division of the reserve for voting purposes into not more than six electoral sections containing as nearly as may be an equal number of Indians eligible to vote and to provide for the manner in which electoral sections so established are to be distinguished or identified.

75. (1) No person other than an elector who resides in an electoral section may be nominated for the office of councillor to represent that section on the council of the band.

(2) No person may be a candidate for election as chief or councillor of a band unless his nomination is moved and seconded by persons who are themselves eligible to be nominated.

76. (1) The Governor in Council may make orders and regulations with respect to band elections and, without restricting the generality of the foregoing, may make regulations with respect to

(a) meetings to nominate candidates;

(b) the appointment and duties of electoral officers;

(c) the manner in which voting is to be carried out;

(d) election appeals; and

(e) the definition of residence for the purpose of determining the eligibility of voters.

(2) The regulations made under paragraph (1)(c) shall provide for secrecy of voting.

77. (1) A member of a band who has attained the age of eighteen years and is ordinarily resident on the reserve is qualified to vote for a person nominated to be chief of the band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors.

(2) A member of a band who is of the full age of eighteen years and is ordinarily resident in a section that has been established for voting purposes is qualified to vote for a person nominated to be councillor to represent that section.

78. (1) Subject to this section, the chief and councillors of a band hold office for two years.

(2) The office of chief or councillor of a band becomes vacant when

(a) the person who holds that office

(i) is convicted of an indicatable offence,

(ii) dies or resigns his office, or

(iii) is or becomes ineligible to hold office by virtue of this Act; or

(b) the Minister declares that in his opinion the person who holds that office

(i) is unfit to continue in office by reason of his having been convicted of an offence,

(ii) has been absent from three consecutive meetings of the council without being authorized to do so, or

(iii) was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.

(3) The Minister may declare a person who ceases to hold office by virtue of subparagraph (2)(b)(iii) to be ineligible to be a candidate for a chief or councillor of a band for a period not exceeding six years.

(4) Where the office of chief or councillor of a band becomes vacant more than three months before the date when another election would ordinarily be held, a special election may be held in accordance with this Act to fill the vacancy.

79. The Governor in Council may set aside the election of a chief or councillor of a band on the report of the Minister that he is satisfied that

(a) there was corrupt practice in connection with the election;

(b) there was a contravention of this Act that might have affected the result of the election; or

(c) a person nominated to be a candidate in the election was ineligible to be a candidate.

In the Regulations[3] which were adopted for the purpose of giving effect to subsection 74(1), the following provisions appear under the heading “Method of Election:”

2. The chief and the councillors of each band set out in Schedule I shall be elected by a majority of the votes of the electors of the band.

3. The councillors of each band set out in Schedule II shall be elected by a majority of the votes of the electors of the band and the chief of each of those bands shall be elected by a majority of the votes of the elected councillors of the band from among themselves, but the chief so elected shall remain a councillor.

As already mentioned, the Band is listed in Schedule 1 of these Regulations.

The order below

The heart of the dispute centres on the language of subparagraphs 74(3)(a)(i) and (ii) of the Act. It was argued by the appellants in the Trial Division that subparagraph 74(3)(a)(i) should be construed as meaning that no person is eligible to be elected chief of the band unless that person is an “elector” as defined in section 2 of the Act. The learned Motions Judge rejected that contention. After reciting the various arguments advanced by the appellants, he stated at pages 59-60:

All of these arguments presuppose a finding that s. 75 when considered in light of the election provisions as a whole is ambiguous, but I disagree. Throughout ss. 74 to 79 of the Act a distinction has been made between the chief of the band and the councillors. Had Parliament intended that the eligibility requirements for candidates for councillors be applicable to candidates for chief, surely it would have specifically included the office of chief in s. 75(1) or simply referred to nomination for membership in the council of the band which, in accordance with s. 74(1) and (2), would include both chief and councillors. There is nothing in the applicants’ arguments that would lead me to conclude that Parliament intended to extend the eligibility requirements applicable to councillors to a candidate for chief. Section 75(2), however, does contain an eligibility requirement for candidates for chief, that is, neither the candidates nor the persons nominating the candidate can be the subject of a declaration by the Minister under s. 78(3).

Counsel also asks me to consider the decisions of Heron Seismic Services Ltd. et al. v. Peepeekisis Indian Band, [1991] 2 C.N.L.R. 52, 87 Sask. R. 66 (Q.B.), aff’d [1992] 4 C.N.L.R. 32 (C.A.) and Joe (M.) et al. v. John (M.) et al. (1990), 34 F.T.R. 280, [1991] 3 C.N.L.R. 63 (T.D.). These are Provincial Court decisions concerning eligibility for election to municipal council and, in my opinion, have no bearing here. Municipal councils are creatures of provincial statute which should provide the framework for resolutions of electoral disputes. While there are inviting similarities to the present case, it is equally clear to me that I must turn to Parliament for the resolution of this dispute and particularly to the language of the Indian Act.

Finally, the applicants contend that if s. 75 is interpreted as containing no eligibility requirements for a candidate for the office of chief a non Canadian, nonresident under the age of 18 could be elected chief after being nominated by two non Canadian, nonresident minors. The premise, however, is flawed as it presupposes that the nominated individual will in fact ultimately be the chief of the band. The election provisions in the Indian Act provide an effective safeguard against such absurd results since in accordance with s. 74(3)(a)(i), the chief of a band shall be elected by a majority of the votes of the electors of the band.

I am also influenced by one other important consideration. Darlene Desjarlais was elected chief of the Sturgeon Lake Indian Band as a result of an election held in accordance with the provisions of the Indian Act in which she received a majority of the votes of the electors of the band. It seems to me that if this court, in the absence of a clear statutory provision requiring the candidate to be an elector, interprets s. 75 so as to effectively vitiate the democratic will of the electors of the band, the principles enunciated by the Supreme Court of Canada and advanced by the applicants here as being applicable to the interpretation of the Indian Act would be violated.

The principles of interpretation alluded to by the Motions Judge are those set forth in Nowegijick v. The Queen, [1983] 1 S.C.R. 29; R. v. Sparrow, [1990] 1 S.C.R. 1075 and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85.

On the basis of the above-recited reasoning, the Motions Judge, by his order of August 31, 1993, answered the question in issue in the affirmative.

Statutory history

There is no dispute that the provisions of section 74 of the Act are directly traceable to The Indian Act, S.C. 1951, c. 29. Subsections 73(1) and (2) and paragraphs (3)(a) and (b) of that statute were framed as follows:

73. (1) Whenever he deems it advisable for the good government of a band, the Governor in Council may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.

(2) The council of a band in respect of which an order has been made under subsection one shall consist of one chief, and one councillor for every one hundred members of the band, but the number of councillors shall not be less than two nor more than twelve and no band shall have more than one chief.

(3) The Governor in Council may, for the purposes of giving effect to subsection one, make orders or regulations to provide

(a) that the chief of a band shall be elected by

(i) a majority of the votes of the electors of the band, or

(ii) a majority of the votes of the elected councillors of the band from among themselves, but the chief so elected shall remain a councillor,

(b) that the councillors of a band shall be elected by

(i) a majority of the votes of the electors of the band, or

(ii) a majority of the votes of the electors of the band in the electoral section in which the candidate resides and that he proposes to represent on the council of the band. [Emphasis added.]

As will be seen, these provisions represented somewhat of a departure from those which had governed the election of a chief of a band in previous years. Subsections 73(1), (2) and (3) were consolidated in chapter 149 of the Revised Statutes of Canada, 1952 as subsections 73 (1), (2) and (3) and, in turn, in chapter I-6 of the Revised Statutes of Canada, 1970 as subsections 74 (1), (2) and (3). Much of the argument addressed to the Court focused on the only change that appears in the text of subsection 74(3) as consolidated in the Revised Statutes of Canada, 1985. Whereas in The Indian Act, S.C. 1951, c. 29 and in the 1952 and 1970 consolidations the words “but the chief so elected shall remain a councillor” were incorporated within subparagraph 73(3)(a)(ii), they were placed at the very end of paragraph 74(3)(a) which is the corresponding paragraph in the 1985 consolidation. As appears from section 3 of the Indian Bands Council Method of Election Regulations, adopted in 1989,[4] the framers thereof evidently considered that these words qualified the provisions of subparagraph 74(3)(a)(ii) and not of subparagraph 74(3)(a)(i).

Beyond this brief history, the Court’s attention was drawn to the larger history of various provisions of federal statutes governing the election of a chief or chiefs of a band after Confederation. It is not necessary to deal with these in detail. Pursuant to a statute enacted by the Parliament of Canada in 1869, “the Chiefs of any tribe, band or body of Indians” could, by order of the Governor in Council, be elected “by the male members of each Indian Settlement of the full age of twenty-one years.”[5] That statute, however, was silent on eligibility requirements for a person to be elected as chief. In 1876, Parliament made it clear that the election of a chief or chiefs be at a “meeting” of the band by those so qualified[6] but otherwise left the provisions of the earlier statute substantially unchanged. In 1880, Parliament enacted a new statute which authorized the Governor in Council to “introduce the election system of chiefs” whenever that body deemed “it advisable for the good government of a band.” Those eligible to vote under that system remained as had been previously provided and, again, no specific eligibility requirement of a person seeking election to the office of chief was laid down.[7] These various provisions, with some modification that are not material, were consolidated in the Revised Statutes of Canada, 1886.[8]

In 1884, the Parliament of Canada adopted The Indian Advancement Act, 1884,[9] the purpose of which was made apparent in the preamble which read in part:

WHEREAS it is expedient to provide means by which Indians on reserves in diverse parts of the Dominion, may be trained for the future exercise of municipal privileges and powers:

By section 3 of that statute the Governor in Council could declare “any band or bands of Indians … to be considered fit to have this Act applied to them.” Sections 4-5 of the statute provided for the division of any reserve into sections and for the election to the council of the reserve of one or more councillors to represent each section. Section 5 thereof required “the male Indians of the full age of twenty-one years, resident on the reserve (hereinafter termed electors)” to meet to elect “one or more members … to represent each section” as councillors. By this section, the “Indian or Indians … possessed of, and living in, a house in the reserve” and having the greatest number of votes, would be declared elected. Section 6 of that statute governed the election of the “chief councillor.” It read:

6. On a day, and at a place, and between hours to be designated by the Superintendent General or his deputy, (provided the day fixed for the same be within eight days from the date at which the councillors were elected), the said councillors shall meet and elect one of their number to act as chief councillor; and the councillor so elected shall be the chief councillor.

Section 10 of the statute empowered the council of a band to make by-laws, rules and regulations on a number of subjects with the intention that these should have force as law “if approved and confirmed by the Superintendent General.” This statute was consolidated in the Revised Statutes of Canada, 1886[10] where the provisions of sections 4, 5 and 10 of the 1884 statute appeared as sections 5, 6 and 10 respectively.

The Indian Advancement Act, 1884 as such was not consolidated in the Revised Statutes of Canada, 1906. However, that consolidation did include the Indian Act[11] which in Part I carried forward the scheme for electing councillors and chiefs that had been provided for in The Indian Act, R.S.C. 1886, c. 43[12], and in Part II carried forward the scheme for electing councillors and chiefs and for adopting local laws and regulations that had been provided for in The Indian Advancement Act, R.S.C. 1886, c. 44.[13] This same statutory scheme was perpetuated in the Revised Statutes of Canada, 1927 in Parts I and II respectively.[14]

As already indicated, the law governing the election of a chief of a band was significantly changed by The Indian Act, S.C. 1951, c. 29, when the two schemes referred to above which had prevailed alongside each other since 1884 were replaced. In their places was substituted the new scheme for electing councillors and chiefs established in that statute.[15] Section 80 of that statute also provided for the adoption of by-laws and regulations by the council of a band but these were liable to be disallowed by the Minister pursuant to subsection 81(2). By virtue of subsection 82(1), the Governor in Council could declare “that a band has reached an advanced stage of development” and as a result the council thereof could with “the approval of the Minister” make money by-laws and provide for their enforcement. This new scheme, with amendment, now appears in sections 74-79 and 81-83 [section 81 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 15), section 83 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 10)] of the Act.

The issue

The principal issue before this Court is whether the Motions Judge erred in determining that a person need not be an “elector” in order to be eligible for election as the chief of the Sturgeon Lake Indian Band. The first five appellants take issue with the order below on several grounds. These are that the Motions Judge failed to properly apply “the Nowegijick principle,” that is to say the principle of interpretation of a statute relating to Indians enunciated by the Supreme Court of Canada in Nowegijick, supra; that he failed to consider paragraph 74(3)(a) of the Act in its entirety; that he neglected the purpose of the relevant statutory provisions as revealed by their history; that he ought to have analogized the eligibility requirements for election of a chief under section 74 to those for the election of a mayor or reeve of a municipality at the provincial level;[16] and, finally, that he erred in concluding [at page 60] that a requirement that a candidate for chief be an elector would “vitiate the democratic will of the electors of the band.” The remaining appellants placed particular emphasis on the history of the legislation as indicating an intention by Parliament that any person seeking election as Chief of the Band be an “elector” as defined in section 2 of the Act.

Analysis

The Motions Judge regarded the relevant provisions of the Act as unambiguous. It is in this light, it seems to me, that he found no assistance in the principles of interpretation enunciated by Dickson J. (as he then was) in Nowegijick, supra. In that case, Dickson J. stated, at page 36:

It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. If the statute contains language which can reasonably be construed to confer tax exemption that construction, in my view, is to be favoured over a more technical construction which might be available to deny exemption. In Jones v. Meehan, 175 U.S. 1 (1899), it was held that Indian treaties “must … be construed, not according to the technical meaning of [their] words … but in the sense in which they would naturally be understood by the Indians”.

These principles were repeated by Dickson C.J. in Mitchell, supra, at pages 98-99. At page 98, the learned Chief Justice reduced them to the following elements:

Two elements of liberal interpretation can be found in this passage: (1) ambiguities in the interpretation of treaties and statutes relating to Indians are to be resolved in favour of the Indians, and (2) aboriginal understandings of words and corresponding legal concepts in Indian treaties are to be preferred over more legalistic and technical constructions. In some cases, the two elements are indistinguishable, but in other cases the interpreter will only be able to perceive that there is an ambiguity by first invoking the second element.

Of the remaining Justices, three made no mention of the Nowegijick principles. The other three Justices, for whom La Forest J. wrote, dealt with them explicitly. At page 142, La Forest J. stated that he did not take issue “with the principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.” However, at page 143, he added the following:

But as I view the matter, somewhat different considerations must apply in the case of statutes relating to Indians. Whereas a treaty is the product of bargaining between two contracting parties, statutes relating to Indians are an expression of the will of Parliament. Given this fact, I do not find it particularly helpful to engage in speculation as to how Indians may be taken to understand a given provision. Rather, I think the approach must be to read the Act concerned with a view to elucidating what it was that Parliament wished to effect in enacting the particular section in question. This approach is not a jettisoning of the liberal interpretative method. As already stated, it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. Thus if legislation bears on treaty promises, the courts will always strain against adopting an interpretation that has the effect of negating commitments undertaken by the Crown; see United States v. Powers, 305 U.S. 527 (1939), at p. 533.

At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the polices the Act seeks to promote.

In any event, nothing in the record before us expressly indicates that the relevant statutory provisions “would naturally be understood by the Indians” in any particular way; nor was it clearly demonstrated that the interpretation favoured by the appellants would necessarily be “in favour of the Indians.”

The appellants contend that sections 74-79 of the Act should be read in their historical setting. That setting indicates that, up to 1884, the election of a chief of any band was by direct vote; that under the provisions of The Indian Advancement Act, 1884 the Parliament of Canada established a modified scheme of self-government both with respect to band elections and the adoption by a band of laws and regulations applying on the reserves to which that statute applied; that this scheme and the one which had already existed were both consolidated in the Revised Statutes of Canada, 1886; that both schemes, with modifications that are not of significance, continued in effect as Parts I and II, respectively, of the Revised Statutes of Canada, 1906 and 1927; that these two schemes disappeared in 1951 by virtue of The Indian Act, S.C. 1951, c. 29 and a new scheme was substituted; that the new scheme was consolidated in the Revised Statutes of Canada 1952 and 1970, and in the Act with some modification in the 1985 consolidation.

According to the appellants, this history reveals that residency on a reserve has been a feature of eligibility for election as the chief of a band. That, indeed, was true with respect to the election of a chief under The Indian Advancement Act, 1884 which was ultimately incorporated in Part II of the 1927 consolidation. To be eligible for election thereunder, a candidate had to be an “Indian … possessed of, and living in, a house in the reserve” and unless that person was first elected to the band council he could not be elected as “chief councillor” pursuant to that statute. In all other situations under the previous legislation as incorporated in Part I of the 1927 consolidation, no particular eligibility requirement for election as chief of a band was laid down. At the time The Indian Act, S.C. 1951, c. 29 was enacted, therefore, the position appeared to have been that whereas under Part I of the former statute no particular eligibility requirement was imposed for a candidate seeking office as chief of a band, under Part II of that statute, which was referable to advanced bands, such a candidate had to be resident on the reserve and be possessed of and living in a house thereon.

It is clear that the 1951 statute did work important changes in the law as previously applied. By its provisions, the two former schemes for the election of a chief of the band was replaced by a composite scheme. This new scheme called for the election of a chief of a band, in the circumstances therein stated, either by direct election or by the councillors so elected. Whether a person sought election as chief or as a councillor, he or she had to be nominated, that is “moved and seconded by persons who are themselves eligible to be nominated” as provided in subsection 74(2) of that statute. Otherwise the statute, like the Act, laid down no eligibility requirement for the office of a chief to be elected by direct vote pursuant to subparagraph 73(3)(a)(i).

The history of the pre-1951 legislation does not assist me in construing the provisions of paragraph 74(3)(a) of the Act. In particular, I do not find in it any reliable indication of an intention that eligibility for election as a band chief is to be analogized to the eligibility requirements for election as mayor or reeve of a municipal government at the provincial level. While under Part II of the 1927 consolidation and for many years previously a candidate for election as band chief had to be “possessed of a house on, or living on, the reserve,”[17] there is no reliable evidence that this requirement was intended to be applied across the board under the 1951 statute. For an even longer period of time prior to 1951, a person could be elected chief of many bands by direct vote without holding any particular eligibility requirement. In my view, by chapter 29 of 1951 Parliament adopted somewhat more flexible provisions for the election of the chief of a band which appear to partake of some of the features of the former legislation. For example, subparagraph 73(3)(a)(i) may be compared with Part I of the former statute in that it lays down no eligibility requirement; subparagraph 73(3)(a)(ii) may be compared with the eligibility requirements under Part II thereof. It was, of course, open to Parliament to build upon the concept of local self-government, which it did, but the extent it wished to do so was a matter for it alone to decide. In summary, I do not find the 1951 statute as indicating that the eligibility requirements for the election of a chief is to be analogized to those for the election of a reeve or mayor at the provincial level.

The post-1951 legislation must be treated separately. The appellants contend that paragraph 74(3)(a) of the Act contains a significant modification to that which was adopted as paragraph 73(3)(a) of the 1951 statute. It will be recalled that whereas the words “but the chief so elected shall remain a councillor,” were incorporated at the end of subparagraph 73(3)(a)(ii) of the latter statute and in the 1952 and the 1970 consolidations thereof, they now appear at the very end of paragraph 74(3)(a). The argument here is that this indicates an intention to modify both subparagraph 74(3)(a)(i) and (ii) rather than subparagraph (ii) alone as had previously been the case. Thus a person elected as chief under subparagraph (i) is, like one elected as chief under subparagraph (ii), to have been a councillor in order to “remain” one. In other words, a chief elected by direct vote under subparagraph (i) must be an “elector.” Otherwise he or she would not be eligible to be elected as a councillor. At the very least, it is contended that the paragraph as it now stands is ambiguous and therefore should be construed according to the Nowegijick principles.

I have difficulty with these arguments. In the first place, if the appellants are correct, the application of the words “but the chief so elected shall remain a councillor” to both subparagraphs would make little or no sense because the election of a chief by direct vote under subparagraph (i) is a discrete election from that which is provided for in subparagraph (ii). It makes more sense to read them as modifying subparagraph (ii) alone, which clearly had been the case in chapter 29 of 1951 and through the 1952 and 1970 consolidations thereof.

In seeking the solution to this problem it must not be overlooked that this change was made in the course of consolidating the public general statutes of Canada rather than in a newly enacted public statute. The Revised Statutes of Canada, 1985 have their legal foundation in the Statute Revision Act, S.C. 1974-75-76, c. 20. By that statute, a Statute Revision Commission was established with power, under section 5, to “arrange, revise and consolidate the public general statutes of Canada.” In preparing the revision, the Commission was mandated by section 6 of the statute, inter alia, to:

6. …

(h) correct editing, grammatical or typographical errors in the statutes.

Section 7 of the statute envisioned the enactment of a further statute, a model of which was set out in the Schedule. That statute was adopted as the Revised Statutes of Canada, 1985 Act, R.S.C., 1985 (3rd Supp.), c. 40, (adopted as S.C. 1987, c. 48, assented to 17 December 1987). The legal effect of the revision and repeal brought about by the adoption of the Revised Statutes of Canada, 1985 is made plain in section 4 of this statute:

4. The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law as contained in the Acts and portions of Acts repealed by section 3 and for which the Revised Statutes are substituted.

It is difficult to know why the phrase “but the chief so elected shall remain a councillor” was repositioned in paragraph 74(3)(a) of the 1985 consolidation. Possibly it was done pursuant to paragraph 6(h) of the Statute Revision Act. Given its former position in subparagraph 73(3)(a)(ii) of the 1951 statute, there can be little doubt that it was there intended to modify the earlier portion of that subparagraph only. In other words, its role was to make clear that a person elected by fellow councillors to the office of chief from among themselves did not thereby cease to be a councillor. However, section 4 of the Revised Statutes of Canada, 1985 Act, puts to rest any suggestion that the repositioning of the phrase was intended to change the previous law, for that section clearly states that the Revised Statutes of Canada, 1985 “shall not be held to operate as new law.”

There can be no doubt that the effect of the Motions Judge’s interpretation of subparagraphs 74(3)(a)(i) and (ii) of the Act is that while a person who seeks the office of chief of a band need not be an elector, a person must be an elector in order to be elected chief by the elected councillors. This, say the appellants, produces an absurdity which Parliament cannot be taken to have intended. The alleged absurdity is identified by the Motions Judge, when he stated [at page 60]:

Finally, the applicants contend that if s. 75 is interpreted as containing no eligibility requirements for a candidate for the office of chief a non Canadian, nonresident under the age of 18 could be elected chief after being nominated by two non Canadians, nonresident minors.

The proper approach, they say, is to read each subparagraph as requiring that in order for a person to be elected as chief of the band, whether by direct vote or indirectly by the duly elected councillors, he or she must be an elector.

The principle here relied upon was enunciated by Lord Blackburn in River Wear Commissioners v. Adamson and Others, [1874-80] All E.R. Rep. 1 (H.L.), at page 12:

But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call “the golden rule” is right, viz., that we are to take the whole statute together, and construe it altogether, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity, or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear.

See also Driedger on the Construction of Statutes, 3rd ed. (Toronto: 1994), at page 79 et seq.

That the application of this principle of construction has its limitations has become clear from a very recent decision of the Supreme Court of Canada: R. v. McIntosh [[1995] S.C.J. No. 16 (QL)]. That, of course, was a criminal case but, as will appear, the opinion of the majority on the point has general application. The Court had to interpret certain provisions of the Criminal Code [R.S.C., 1985, c. C-46] from which it was argued that those provisions could not mean what they said because the result would be absurd and Parliament could not have intended an absurd result. In rejecting this argument, the Chief Justice of Canada, speaking for the majority, stated at page 38:

I would adopt the following proposition: where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.

And at page 42, he added:

Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical in light of s. 35, and may lead to some absurdity, I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.

In Cardinal et al. v. The Queen, [1982] 1 S.C.R. 508, it was made plain that the provisions of the Act are not to be construed in any special way if the language used is clear. At page 520, Estey J. stated:

It serves no purpose to interpret the language of Parliament by attributing to it meanings which are not plain and natural, but rather which are super-imposed upon the words adopted by Parliament in order to promote an intention conceived by the Court to be inadequately attended to by Parliament itself. If the words employed … are clear and unambiguous as in my view they are, there is no need to invoke some mechanics of interpretation which might bring about a restrictive or unnatural interpretation.

As the Motions Judge intimates, while a person in the position of Ms. Desjarlais might well succeed in gaining nomination for the office of Chief of the Band even though that person is not an “elector,” this does not lead inevitably to the election of that person to that office. That decision is by the Act firmly left in the hands of those who are given the ultimate choice over whom shall become their leader—the “electors” of the Band as defined in section 2 of the Act. It is not the function of this Court to disregard the plain meaning of the Act simply because it may be viewed by some as anomalous. That is the task of Parliament itself, provided it can be persuaded that a person to be elected as chief of a band pursuant to subparagraph 74(3)(a)(i) of the Act ought to be an “elector” as defined in section 2 thereof.

I would dismiss the appeal with one set of costs in the appeal and the appeal in Court File No. A-553-93.

Strayer J.A.: I agree.

McDonald J.A.: I agree.

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