T-5083-80
Terry James Sahanatien (Plaintiff)
v.
Leslie G. Smith, in his capacity as Registrar of
the Indian Register (Defendant)
Trial Division, Cattanach J.—Toronto, March 16;
Ottawa, March 24, 1982.
Judicial review — Equitable remedies — Declarations
Mandamus — Indians — Registration — Plaintiff illegitimate
son of enfranchised Indian mother and registered Indian father
— Plaintiff legally adopted by parents who are registered
Indians — Plaintiff denied registration under Indian Act and
seeks declaration that he is entitled to registration as Indian
and order of mandamus directing Registrar to act accordingly
— S. 11 of Indian Act describes persons entitled to registration
— S. 12 describes persons not entitled to registration —
Plaintiff not entitled to registration under s. 1l(1)(d) through
descent from father because not legitimate — Not entitled to
registration as illegitimate child of mother under s. 11(1)(e)
because she does not fall within s. 11(1)(a),(b) or (d) by reason
of having become enfranchised — S. 86(1) of Child Welfare
Act of Ontario provides that plaintiff becomes child of adopt
ing parents and ceases to be child of person who was parent
prior to adoption order — S. 88 of Indian Act provides that
provincial laws applicable to Indians except to extent that
such laws inconsistent with Indian Act — Whether non-Indian
child by definition becomes entitled to registration by virtue of
adoption by Indian parents — Whether inconsistency exists
with Indian Act — Plaintiff not entitled to relief because
adoption of a non-Indian child by Indian parents would cir
cumvent precise conditions precedent to registration set out in
s. 11 of Indian Act thereby creating inconsistency with Indian
Act — Indian Act, R.S.C. 1970, c. I-6, ss. 11, 12, 88 — Child
Welfare Act, R.S.O. 1980, c. 66, s. 86.
The Natural Parents v. The Superintendent of Child
Welfare [1976] 2 S.C.R. 751, applied.
ACTION.
COUNSEL:
R. N. Weekes for plaintiff.
I. MacGregor for defendant.
SOLICITORS:
Sullivan & Weekes, Gravenhurst, for plain
tiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: At the outset of the trial of this
matter counsel for the plaintiff, with the consent of
counsel for the defendant moved to amend the
style of cause by replacing H. H. Chapman,
named as Registrar of the Indian Register, a posi
tion Mr. Chapman held under the Indian Act,
R.S.C. 1970, c. I-6, with Leslie G. Smith. Mr.
Chapman had held that position at the inception of
this action but prior to trial he had retired and had
been replaced by Mr. Smith.
I acceded to the requested change in the style of
cause and accepted the consent of counsel for the
defendant as a motion to make a consequential
amendment to paragraph 3 of the statement of
defence.
Counsel for the parties at the outset of the trial
had also agreed upon a statement of facts. In the
light of the amendment of the style of cause and
pleadings paragraph 2 of the agreed statement of
facts, which I reproduce in its entirety is not
accurate:
AGREED STATEMENT OF FACTS
1. The Plaintiff resides in the Township of Muskoka Lakes, in
the District Municipality of Muskoka and Province of Ontario,
and is employed as a school bus driver.
2. The Defendant was, at the time of the commencement of this
action, the Registrar of the Indian Register pursuant to the
Indian Act.
3. The Plaintiff is the natural son of Louise York and Larry
King. He was born out of wedlock on September 23, 1955.
Louise York and Larry King never married.
4. The said Louise York was enfranchised along with her
father, Isaac Elmer York and the other members of his family
by order of the Governor General in Council PC 50/262 made
January 23, 1948 pursuant to Section 114 of the Indian Act,
R.S.C. 1927, Chapter 98 and she consequently on that date
ceased to be an Indian within the meaning of that word in the
Indian Act.
5. The said Larry King was a registered Indian and was and is
a member of the Parry Island Reserve.
6. The Plaintiff was legally adopted by Gordon and Violet
Sahanatien on the 12th day of June, 1959 by order of the
District Court of the District of Muskoka.
7. Gordon and Violet Sahanatien are registered Indians, being
members of the Gibson Indian Reserve.
8. The Plaintiff, Terry James Sahanatien, resides on the Gibson
Indian Reserve.
9. The Defendant has denied to the Plaintiff registration under
the Indian Act.
The plaintiff seeks a declaration that he is en
titled to be registered as an Indian and as a
member of the Gibson Indian Reserve and an
order of mandamus directing the Registrar to act
accordingly.
There is no question whatsoever that the plain
tiff's mother was a full-blooded Indian as was his
father. In accordance with the "lex sanguis" that
also makes the plaintiff a full-blooded Indian but
does not necessarily entitle him to registration.
Had his mother not been enfranchised upon the
application of her father on behalf of himself, his
wife and minor unmarried children, she would not
have been deemed not to be an Indian within the
meaning of the Indian Act and the plaintiff would
have been entitled to registration subject to the
caveat in subsection 12(2) of the Indian Act.
The pertinent sections of the Indian Act are
sections 11 and 12 which read:
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
(/) is the wife or widow of a person who is entitled to be
registered by virtue of paragraph (a), (b), (c), (d) or (e).
(2) Paragraph (1)(e) applies only to persons born after the
13th day of August 1956.
12. (1) The following persons are not entitled to be regis
tered, namely,
(a) a person who
(i) has received or has been allotted half-breed lands or
money scrip,
(ii) is a descendant of a person described in subparagraph
(i),
(iii) is enfranchised, or
(iv) is a person born of a marriage entered into after the
4th day of September 1951 and has attained the age of
twenty-one years, whose mother and whose father's mother
are not persons described in paragraph 11(1)(a), (b) or (d)
or entitled to be registered by virtue of paragraph
11(1)(e),
unless, being a woman, that person is the wife or widow of a
person described in section 11, and
(b) a woman who married a person who is not an Indian,
unless that woman is subsequently the wife or widow of a
person described in section 11.
(2) The addition to a Band List of the name of an illegiti
mate child described in paragraph 11(1)(e) may be protested at
any time within twelve months after the addition, and if upon
the protest it is decided that the father of the child was not an
Indian, the child is not entitled to be registered under that
paragraph.
(3) The Minister may issue to any Indian to whom this Act
ceases to apply, a certificate to that effect.
(4) Subparagraphs (1)(a)(i) and (ii) do not apply to a person
who
(a) pursuant to this Act is registered as an Indian on the
13th day of August 1958, or
(b) is a descendant of a person described in paragraph (a) of
this subsection.
(5) Subsection (2) applies only to persons born after the 13th
day of August 1956.
By virtue of paragraph 11(1)(d) the plaintiff
was not eligible for registration through descent
from his father because he was not legitimate.
Neither was he entitled to registration as an
illegitimate child of his mother by virtue of para
graph 11(1)(e) because she did not fall within any
of the categories set forth in paragraphs 11(1) (a),
(b) or (d) by reason of having become enfran
chised. (See subparagraph 12(1)(a)(iii) and sec
tions 109 and 110.)
As is recited in paragraph 6 of the agreed
statement of facts the plaintiff was legally adopted
by Gordon and Violet Sahanatien who are regis
tered Indians and members of the Gibson Indian
Reserve.
Subsection 86(1) of the Child Welfare Act,
R.S.O. 1980, c. 66 provides:
86.—(1) For all purposes, as of the date of the making of an
adoption order,
(a) the adopted child becomes the child of the adopting
parent and the adopting parent becomes the parent of
the adopted child; and
(b) the adopted child ceases to be the child of the person
who was his or her parent before the adoption order was
made and that person ceases to be the parent of the
adopted child, except where the person is the spouse of
the adopting parent,
as if the adopted child had been born to the adopting parent
and all the rights and responsibilities of a legal guardian of the
child that have vested in any adoption agency pursuant to
subsection 69(3) are terminated.
By that subsection the plaintiff becomes the
child of the adopting parents and ceases to be the
child of the person who was his parent prior to the
adoption order, in this instance his mother.
Section 88 of the Indian Act reads:
88. Subject to the terms of any treaty and any other Act of
the Parliament of Canada, all laws of general application from
time to time in force in any province are applicable to and in
respect of Indians in the province, except to the extent that
such laws are inconsistent with this Act or any order, rule,
regulation or by-law made thereunder, and except to the extent
that such laws make provision for any matter for which provi
sion is made by or under this Act.
Thus a provincial law, such as subsection 86(1)
of the Child Welfare Act of Ontario, is applicable
except to the extent to which it is inconsistent with
the Indian Act.
The initial phrase of subsection 86(1) of the
Child Welfare Act, "For all purposes" must be
taken to refer to all purposes within the provincial
legislative competence. It should not be construc
ted as having any effect upon the status and rights
acquired as an Indian under the Indian Act. It is a
cardinal principle of the interpretation of a statute
that if there are two possible interpretations one of
which would lead to the statute being ultra vires
and the other to the statute being intra vires the
latter interpretation should prevail.
In The Natural Parents v. The Superintendent
of Child Welfare [1976] 2 S.C.R. 751 the
Supreme Court was unanimous that an order of
adoption pursuant to the Adoption Act, R.S.B.C.
1960, c. 4, allowing non-Indian parents to adopt an
Indian child is valid.
The Trial Judge held that there was an incon
sistency between the Adoption Act and the Indian
Act. In his opinion the Indian Act clothed those
within its terms with a certain status from which
alone certain rights arise and that status would be
obliterated by the operation of the Adoption Act.
The British Columbia Court of Appeal was
unanimously of the opinion that Indian status
survived despite adoption. It held that the Adop
tion Act, as a provincial statute of general applica
tion, applied to the adoption of Indian children,
and was blunted only to the extent of inconsistency
with the Indian Act.
The question which was raised is whether an
Indian child can be legally adopted by non-Indian
parents. The Indian Act while contemplating
adoption does not provide for it. That being so,
provincial laws would apply, there being no other.
The Indian Act does not forbid the adoption of
an Indian child by non-Indian parents. Assuming
that the child would lose his status as an Indian as
a consequence of the adoption by non-Indian par
ents there would be no conflict between the Adop
tion Act and the Indian Act (see Beetz J. at pages
784-785).
On the key issue the Court was unanimous in
the conclusion that there was no conflict between
the Indian Act and the Adoption Act since the
adoption by non-Indian parents did not deprive the
child of that status. There was an additional status
conferred upon the child and that did not detract
from his original status which remained inviolate.
In this action the exact converse is the case. The
plaintiff, a non-Indian child only because he is so
defined by the Indian Act, has been adopted by
Indian parents.
The question is whether by virtue of that adop
tion the plaintiff becomes entitled to registration to
which he had formerly not been entitled.
That question, in my view, falls to be deter
mined on whether there is an inconsistency with
the Indian Act.
If the adoption of a non-Indian child by Indian
parents would circumvent the precise conditions
precedent to registration set out in section 11 of
the Indian Act then, in that sense, an inconsistency
subsists. That would be the case in this instance.
Accordingly the plaintiff is not entitled to the
relief sought by him and the action is dismissed.
In my view the circumstances are such that each
party shall bear their respective 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.