A-32-74
John Bay (Applicant)
v.
The Queen (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, April 30 and May 1, 1974.
Judicial review—Registrar rejecting name for List of
Indian Band—Not a "decision" within s. 28 of the Federal
Court Act Indian Act, R.S.C. 1970, c. I-6, ss. S, 6, 7, 9, 11.
The applicant asked the Registrar under the Indian Act to
add his name to a Band List. The Registrar's refusal was
based on his view that the applicant was not entitled to be
registered. Judicial review of the refusal was sought by the
applicant under section 28 of the Federal Court Act.
Held, quashing the application, that a distinction must be
made between section 7 of the Indian Act and section 9.
Under section 9, where the Registrar investigates a protest
against the addition or deletion of a name under section 7,
he has power to render a decision. But where, as here, a
request is made for the addition of a name under section 7,
the Registrar, having granted or refused the request, may
later take a different position and exercise his power to
delete or add. He has made no "decision" under section 28
of the Federal Court Act.
Julius v. Bishop of Oxford [1880] 5 A.C. 214 (H.L.); In
re Danmor Shoe Co. Ltd. [1974] F.C. 22, applied.
APPLICATION.
COUNSEL:
D. W. Scott and George Hunter for
applicant.
Paul Betournay for respondent.
SOLICITORS:
Scott & Aylen, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—I agree with the Rea
sons given by the other members of the Court.
As, however, the question is of importance in
connection with_ the jurisdiction of the Court, I
will attempt to express my view on the point
involved very briefly in my own words.
With reference to the Indian Register, the
Registrar
(a) under section 7, has a power to add to a
Band List or a General List the name of a
person who is entitled to have his name
included in the list and to delete from such a
list the name of any person who is not entitled
to have his name included therein, which
power becomes a duty to add or delete, as the
case may be, when the occasion to exercise it
arises,' and
(b) under section 9, after causing an investi
gation to be made into a protest against the
addition or deletion of a name in the exercise
of the section 7 power, has a power to render
a decision concerning such protest, which
decision is final and conclusive. 2
When the Registrar is asked to exercise the
section 7 power to add or delete a name, he
must, of course, take a position as to whether
the person in question is or is not entitled to
have his name on the list so as to give rise to the
duty to add or delete. There is, however, a clear
difference between a position so taken by the
Registrar on the occasion of a request to exer
cise the section 7 power and a decision rendered
by the Registrar in the exercise of his section 9
decision-making power. Once the Registrar has
exercised his section 9 decision-making power,
his decision has legal effect and his power with
regard thereto is spent. When, however, the
Registrar takes a position as to whether he has a
section 7 duty to add or delete a name, that
"decision" has no legal effect. In such a case, as
a matter of law, nothing has been decided. The
Registrar himself, or his successor, in the very
case in which such position was taken, can take
a different position at any time and, having
taken such a different position, can exercise his
section 7 power to add or delete in accordance
therewith.
' Julius v. Bishop of Oxford, [1880] 5 A.C. 214 (H.L.).
2 By virtue of section 9(2), such a decision is final and
conclusive subject to the review provided by section 9(3).
In my opinion, a conclusion or position that
has no legal effect is not a "decision" that can
be "set aside" under section 28 of the Federal
Court Act. Setting aside a decision, in the con
text of section 28, can have no meaning unless
the decision set aside had, otherwise, some legal
effect.'
* * *
THURLOW J. (orally)—This is an application
under section 28 of the Federal Court Act to
review and set aside the refusal of the Registrar
under the Indian Act to add the name of the
applicant to the Band List of the Iroquois of
St. Regis Band. The Registrar's refusal was
based on his view that the applicant was not
entitled to be so registered and the applicant's
attack was directed against his reasons for
reaching that view.
The Registrar's authority to add names to a
Band List is found in section 7 of the Act which
is one of a group of sections dealing with the
definition and registration of Indians. Section 5
provides for the maintenance in the Department
of Indian Affairs of lists in which are to be
recorded the names of persons who are entitled
to be registered as Indians. Section 6 provides
that the name of every person who is a member
of a band and is entitled to be registered shall be
on the list for that band and that the name of
every person not a member of a band but en
titled to be registered shall be on a General List.
Sections 7, 8 and 9 provide as follows:
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 this Act, is entitled or not entitled,
as the case may be, to have his name included in that List.
(2) The Indian Register shall indicate the date on which
each name was added thereto or deleted therefrom.
8. The band lists in existence in the Department on the
4th day of September 1951 shall constitute the Indian
Register, and the applicable lists shall be posted in a con
3 Compare the decision of this Court in Re Danmor Shoe
Company Ltd. [1974) F.C. 22 and the decisions referred to
therein.
spicuous 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.
9. (1) Within six months after a list has been posted in
accordance with section 8 or within three months after the
name of a person has been added to or deleted from a Band
List or a General List pursuant to section 7
(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,
and
(c) the person whose name was included in or omitted
from the List referred to in section 8, or whose name was
added to or deleted from a Band List or a General List,
may, by notice in writing to the Registrar, containing a brief
statement of the grounds therefor, protest the inclusion,
omission, addition, or deletion, as the case may be, of the
name of that person, and the onus of establishing those
grounds lies on the person making the protest.
The remaining subsections of section 9 pro
vide that in such a case the Registrar is to cause
an investigation to be made upon which he may
render a decision which will be final and conclu
sive, subject to a further procedure for an inqui
ry into the correctness of his decision before a
County or Superior Court Judge.
These provisions leading to investigation and
decision on the entitlement of a person to regis
tration, however, do not apply to the present
situation. The applicant is not a person whose
name has been omitted from a list posted under
section 8 and who thereupon has protested
within the six months period referred to in sub
section 9(1). His case is simply one of a person
who has sought to have his name added to the
list under section 7, and that was the only
provision that counsel was able to invoke as
being applicable to it.
It will be observed that subsection 7(1) gives
the Registrar no express authority to decide
who is or who is not entitled to be registered. It
merely authorizes him to add the name of a
person who is entitled or to delete the name of a
person who is not entitled and no procedure for
determining entitlement or for the exercise of
the function is prescribed. If the Registrar adds
a name or deletes a name pursuant to section 7
the procedures of subsection 9(1) to which I
have referred may be invoked to determine the
entitlement. But if he refuses to add the name of
a person who asks to have his name added the
procedures do not apply save in the case
expressly provided for (i.e. the case of a name
omitted from a list when posted under section 8
and a protest within the time limited therefor)
and the person concerned has no procedure
under the Act for redress even if he is a person
entitled to be registered.
In these circumstances counsel for the appli
cant submitted that a power to decide who is
and who is not entitled to be registered is to be
implied in subsection 7(1) and that the action of
the Registrar in declining to register a person
who seeks registration is a decision which is
reviewable under section 28 of the Federal
Court Act.
In my opinion no power to decide the ques
tion of entitlement is contained in or is to be
implied from subsection 7(1). In a case of this
kind if a person is entitled to be registered but
registration is refused it seems to me that his
remedy before the coming into force of the
Federal Court Act would not have been to treat
the refusal as a decision to be reviewed on
certiorari but to have sought relief by man-
damus, when the question of his entitlement, if
put in issue, would have had to be determined
not by the Registrar but by the Court hearing
the application for mandamus.
Similarly it does not appear to me that a
refusal to register a person on the ground that in
the Registrar's view the person is not entitled to
registration can be treated as a decision within
the meaning of section 28 of the Federal Court
Act simply because it was necessary for the
Registrar to adopt a view on the question of the
person's entitlement in order to carry out his
function under section 7. As I see it, the Regis
trar when dealing with a matter under section 7
is not required to conduct an inquiry or to
afford any one a hearing on the question of a
person's entitlement to registration and his view
of the person's entitlement when reached binds
no one for he is free to change that view at any
time and thereupon to act accordingly.
It was also argued that the refusal was a
decision in a practical sense, but while I am not
unsympathetic to the plight of a person whose
application for registration has been refused, I
do not think that considerations as to the practi
cal effect can serve to confer on the Registrar a
power of decision which the plain wording of
the statute does not give him.
As this conclusion is sufficient to dispose of
the application it is unnecessary to consider or
deal with the merits of the applicant's claim of
entitlement to registration and as this may yet
be the subject matter of proceedings in the Trial
Division it is undesirable that any comment
should be made on it beyond saying that I have
reached no concluded or tentative view on it.
I would quash the application.
* *
PRATTE J.—This is a section 28 application
against the refusal of the Registrar under the
Indian Act to add the name of the applicant to
the Indian Register.
In order to understand the circumstances in
which this application was made as well as the
jurisdictional problem that it raises, it is neces
sary to have in mind the following provisions of
the Indian Act concerning the registration of
Indians:
5. An Indian Register shall be maintained in the Depart
ment, 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.
6. The name of every person who is a 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 this Act, is entitled or not entitled,
as the case may be, to have his name included in that List.
Finally, it must be mentioned that section 11
of the Act indicates who is entitled to be regis
tered as an Indian.
Mr. Bay, the applicant, is not registered as an
Indian. He thinks that he should be. He applied
to the Registrar to have his name added to the
Band List of the Iroquois of St. Regis Band. In
support of his application, he submitted evi
dence which, according to his counsel, estab
lished that Mr. Bay was entitled to have his
name included on that Band List. The Registrar
did not find this evidence satisfactory. He there
fore rejected Mr. Bay's request.
It is this "decision" of the Registrar that Mr.
Bay now seeks to have set aside under section
28(1) of the Federal Court Act. As I am of the
view that this Court has no jurisdiction, under
section 28(1), to set aside the so-called "deci-
sion" of the Registrar, I do not intend to express
any opinion on the merits of Mr. Bay's
contentions.
It has been made clear by previous judgments
of this Court that many expressions of opinion
which, in common parlance, are referred to as
"decisions", do not constitute decisions within
the meaning of section 28(1). In my view, the
refusal of the Registrar to accede to Mr. Bay's
request is not a decision that this Court has
jurisdiction to set aside under section 28(1) of
the Federal Court Act.
As was said by the Chief Justice in the
Danmor Shoe case 4 ,
A decision that may be set aside under section 28(1) must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament ... . Such a decision has the legal effect of
settling the matter or it purports to have such a legal effect.
Once a tribunal has exercised its "jurisdiction or powers" in
a particular case by a "decision", the matter is decided even
against the tribunal itself... .
In the present case, the so-called decision of
the Registrar has been made under section 7 of
the Indian Act. This section does not empower
the Registrar to decide whether a person is
entitled to be registered as an Indian; it merely
imposes on the Registrar the duty to add to or
4 [1974] F.C. 22 at page 28.
delete from the Register "the name of any
person who ... is entitled or not entitled, as the
case may be," to be registered. If the Registrar
wrongly refuses to record in the Register the
name of a person who is entitled to be regis
tered, he fails in his duty. However, in such a
case, the person who is entitled to be registered
does not, by virtue of such a refusal, lose his
right to be registered. The refusal of the Regis
trar to register a person who is entitled to be
registered does not have any legal effect, what
ever the importance of its practical effect; such
a refusal does not settle or purport to settle in
any way the question of the entitlement to the
registration; it is not binding on anyone. It is not
a decision within the meaning of section 28(1).
For these reasons, I would quash the
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.