T-1794-79
John Martin (Applicant)
v.
H. H. Chapman (Respondent)
and
Deputy Attorney General of Canada and Band
Council of the Indian Reserve of Maria (Mis -en-
cause)
Trial Division, Marceau J.—Quebec City, October
26; Ottawa, November 28, 1979.
Prerogative writs — Mandamus — Indians — Eligibility
for registration as an Indian — Applicant, the son of an Indian
father and his non-Indian, common-law wife, applied for
registration as a member of his father's band pursuant to s.
11(1)(c) of the Indian Act — Registrar refused the application
because applicant is not legitimate — Whether or not appli
cant has the right to be registered and whether or not the
Court should order the Registrar by mandamus to act on the
application for registration — Indian Act, R.S.C. 1970, c. I-6,
s. 11(1)(c).
Brule v. Plummer [1979] 2 S.C.R. 343, distinguished.
Town of Montreal West v. Hough [1931] S.C.R. 113,
followed.
APPLICATION.
COUNSEL:
R. Poirier for applicant.
No one for respondent.
J. M. Aubry for mis -en-cause.
SOLICITORS:
Poirier & Mill, Bonaventure, for applicant.
No one for respondent.
Deputy Attorney General of Canada for
mis -en-cause.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: The case at bar raises a very
specific question which it is as well to define at the
outset. The question is whether section 11(1)(c) of
the Indian Act, R.S.C. 1970, c. I-6, applies to an
illegitimate as well as a legitimate child. This
section is the one in the Act which states the
persons entitled to be entered in the Indian Regis-
ter; in order to understand the problem, it must be
read in its entirety:
11. (1) Subject to section 12, a person is entitled to be
registered if that person
(a) on the 26th day of May 1874 was, for the purposes of An
Act providing for the organization of the Department of the
Secretary of State of Canada, and for the management of
Indian and Ordnance Lands, being chapter 42 of the Statutes
of Canada, 1868, as amended by section 6 of chapter 6 of the
Statutes of Canada, 1869, and section 8 of chapter 21 of the
Statutes of Canada, 1874, considered to be entitled to hold,
use or enjoy the lands and other immovable property belong
ing to or appropriated to the use of the various tribes, bands
or bodies of Indians in Canada;
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been
set apart or since the 26th day of May 1874, have been
agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to
be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male
line of a male person described in paragraph (a) or (b);
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a person described in paragraph (c);
(e) is the illegitimate child of a female person described in
paragraph (a), (b) or (d); or
(J) is the wife or widow of a person who is entitled to be
registered by virtue of paragraph (a), (b), (c), (d) or (e).
Applicant, who was born on October 27, 1953 of
the common-law union of a white person and an
Indian who was a registered member of the Band
known as "Micmacs of Maria", was denied by
respondent, the Registrar of the Indian Register,
the right to be registered as a member of his
father's Band. The Registrar told him that section
11(1) (c), which he relied on, did not apply to him
because he was not a legitimate child. The applica
tion at bar, which is objected to by the Deputy
Attorney General of Canada, is naturally designed
to secure recognition of applicant's right pursuant
to the paragraph in question, and asks the Court to
order the Registrar by mandamus to act on the
application for registration.
This is not the first time that the question [has
arisen] of whether the word "descendant" used by
the legislator in section 11(1)(c) of the Indian Act
should be understood in the wide sense of issue,
whether legitimate or not, or in the narrow sense
of legitimate descendants only. It has already been
once specifically raised before the Superior Court
of the Province of Quebec in Margaret Valerie
Chrystal Two Axe v. Iroquois of Caughnawaga
Band Council, and the Court, Bard J. presiding,
then affirmed the traditional restrictive interpreta
tion adopted by the government. This decision of
December 9, 1977, however, cannot be regarded as
a true precedent, because it was based essentially
on a premise that cannot be accepted at the
present time as such. Relying on a series of Eng-
lish and Canadian authorities, first among which
he placed the decision of the Supreme Court in
Town of Montreal West v. Hough [1931] S.C.R.
113—a case dealing with the interpretation of
article 1056 of the Quebec Civil Code—Bard J.
started with the assumption that the words
"child", "parent" and "descendant" used by them
selves in a legislative provision should in principle
mean legitimate child, parent or descendant, since
our law generally ignores a purely natural filial
relationship, except for limited and formally cir
cumscribed purposes. "It follows therefore", the
Judge wrote, "since there is no provision at section
11(1) (c) to include an illegitimate child among the
direct descendants in the male line of a male
Indian, it was the legislator's intention to exclude
him. It must be held therefore that section
11(1)(c) does not apply to an illegitimate child".
However, in a very recent decision Brule v. Lois
Evelyn Plummer, Executrix of the Estate of the
late Rudolph Joseph Brule, deceased [ 1979] 2
S.C.R. 343 in which it had to interpret the word
"child" as used in the Ontario The Insurance Act,
R.S.O. 1960, c. 190, the Supreme Court rejected
the initial premise of Bard J. The Chief Justice,
writing for the majority, clearly stated his view on
this point in the opening remarks of his reasons [at
page 346]:
However, it is undeniable that the ordinary, the literal mean
ing of the word "child" is offspring, the immediate progeny of
the mother who bore the child and of the father with whom the
child was conceived. To say that the word "child", standing
unqualified in a statute, means legitimate child only is not to
take the ordinary meaning, but rather to take away from it by a
legal modification said to be compelled by the common law, to
gloss it by a judicial policy that put illegitimate children beyond
the pale of the law.
Clearly, the issue here depends, in large part, on one's
starting point. If we begin with the ordinary dictionary and
biological meaning, a meaning which embraces illegitimate
children, other considerations, such as history and context,
must be invoked to displace it. If, however, as the appellant
urges, we begin with the meaning alleged to be required by the
common law, displacement must equally depend on other con
siderations. It seems to me that if there is nothing in the
statute, taken as a whole, to require that the reference to
children be confined to legitimate children, then we are faced
squarely with the problem whether we wish at this time to
continue to gloss the word with the limited meaning that some
Courts in the past have placed upon it. There is no decision of
this Court directly in point, and we are thus free to arrive at
what we think is the better policy, in the absence of any explicit
direction from the Legislature.
A solution to the problem raised by the interpre
tation of the provision in question can therefore no
longer be found in reasoning based on a kind of
presumption that the legislator ordinarily thinks
only in terms of legitimacy. Such a solution must
now be found based on the exactly opposite pre
sumption, and this clearly requires a re-examina
tion based on a completely different approach.
This is what I have attempted to do. In fact,
however, my final conclusion remains the same as
that of Bard J., because in my opinion the legisla
tive context of section 11(1)(d) of the Indian Act
makes it apparent that the rule which it enacts can
only relate to legitimate descendants. My reasons
for this conclusion are as follows.
First: a general reading of the Indian Act shows
clearly in my opinion that Parliament has been
careful at all times, in stating its intention, to
distinguish legitimate from illegitimate children,
and while it uses the adjective "legitimate" only
very rarely (when the provision to be enacted
requires greater clarification because it is in prox
imity to a parallel opposing provision, as in the
case of paragraphs (d) and (e) of the section in
question here), it repeatedly deals with the case of
the illegitimate child by designating him as such
formally and expressly. Thus, in section 48 regard
ing the transmission of property on intestacy, after
covering the case of children in general, it deals
specifically with the case of illegitimate children.
Similarly, in section 68 regarding child support,
there are rules separate from those enacted for
children in general, dealing specifically with
illegitimate children. The drafters of the Act were
undoubtedly persuaded of the validity of the prem
ise rejected by the Supreme Court, namely that
the word "child" used by itself ordinarily means a
legitimate child.
Second, and more importantly: accepting the
argument of applicant, that paragraph (c) of sec
tion 11(1) gives the illegitimate son of an Indian
the status of an Indian, makes meaningless para
graph (d), by which the child of an Indian, wheth
er son or daughter, can claim the status of an
Indian provided he is legitimate. The result of this
is obviously inadmissible: an ambiguous provision
in a section must be interpreted so far as possible
to give effect to the other provisions to which it is
related (see, among several examples, Montreal
Light, Heat and Power Co. v. City of Montreal
[1924] 2 D.L.R. 605). Indeed, this is why I do not
even think that in adopting paragraph (c), the
legislator had in mind an Indian's own son; he
wished the provision to apply to the other descend
ants. I think, in fact, that the legislator's intent
was that the status of an Indian should be reserved
for someone who was definitely of Indian blood.
Such a certainty can obviously only result from
irrefutable proof of filiation, proof which is in
reality only possible with respect to the mother,
and in law, as a result of the well-known pater is
est presumption, with respect to the legitimate
father. Speaking of an Indian man's legitimate
child in paragraph (d) (the legitimate child of an
Indian woman does not have to be considered, for
she is either married to an Indian man, and there
no problem arises, or she is not and by that very
fact loses the status of an Indian (section 14)), and
of the illegitimate child of an Indian woman, in
paragraph (e), the legislator covered all legitimate
and illegitimate children on whom he intended to
confer the status of an Indian. In this context,
paragraph (c) can only be understood as applying
to filiation other than in the first degree, that is a
descendant beyond a son, and since paternal filia-
tion is involved, this means legitimate paternal
filiation, as it would be absurd to conclude that it
was intended to give the illegitimate grandson of
an Indian man a status which his illegitimate son
could not himself claim. Understood in this way,
the real practical utility of the provision may be
open to question, but I do not think I need under
take to analyze the assumptions which the legisla
tor may have had in mind; I need only observe that
this is the only interpretation that makes coherent
sense of the provision itself and the others to which
it is related.
In my opinion, therefore, respondent properly
denied applicant the right to be entered in the
Indian Register pursuant to section 11(1)(c) of the
Indian Act: this provision cannot be relied on as a
basis for registration in the Register by the illegiti
mate child of an Indian man.
The motion for mandamus will accordingly be
dismissed.
ORDER
The motion is dismissed with costs.
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.