T-706-88
John Badger (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: BADGER v. CANADA (T.D.)
Trial Division, Strayer J.—Saskatoon, October 3;
Ottawa, October 11, 1990.
Constitutional law — Responsible government — Executive
branch — Delegation of Minister's powers — Whether Deputy
Minister can amend Order in Council — Band member seeking
declarations (I) Band still subject to Order in Council declar
ing elections to be in accordance with Indian Act (2) amend
ment to Order in Council by Deputy Minister of no effect as
made without authority — Act empowering Governor in Coun
cil to make order band council elections to be held in accord
ance with Act — Act amended substituting Minister for Gov
ernor in Council — Majority vote in referendum at reservation
favouring reversion to band custom for elections — Deputy
Minister purporting to amend Order in Council deleting band
from Schedule to Order listing those having elections governed
by Act — Since then several elections held under band custom
— S. 3(2) of Act conferring broad delegation authority — Not
question of implied authority — Minister's power lawfully
delegated.
Native peoples — Elections — 1952 Order in Council
declaring chief and council of certain Indian bands to be
elected in accordance with provisions of Indian Act — Deputy
Minister's 1982 amendment resulting in reversion to band
custom elections — Referendum indicating majority of voters
favouring reversion to band custom for elections — Band
Council passing resolution to that effect — Minister lawfully
delegating power as authorized by general provisions of Inter
pretation Act and in absence of specific provision to contrary
— Amendment valid — Minister's power to issue or repeal
declaration under present s. 74(1) bringing band's election
under Indian Act not conditional on holding referendum or
adoption of band council resolution.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Indian Act, R.S.C., 1985, c. I-5, ss. 3, 4(2), 74(1).
Interpretation Act, R.S.C. 1970, c. I-23, ss. 26(4), 36(g).
Interpretation Act, R.S.C., 1985, c. I-21, ss. 2, 31(4),
44(g).
Statutory Instruments Act, S.C. 1970-71-72, c. 38.
The Indian Act, S.C. 1951, c. 29, s. 73 (as am. by S.C.
1956, c. 40, s. 20).
COUNSEL:
J. R. Cherkewich for plaintiff.
Bruce Gibson for defendant.
SOLICITORS:
Cherkewich & Yost, Prince Albert, Saskatch-
ewan, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
STRAYER J.:
Relief Requested
The plaintiff seeks a declaration that the Cote
Indian Band in Saskatchewan is still subject to
Order in Council P.C. 1701 of March 25, 1952
which declared that the election of the chief and
council of the Band should be in accordance with
the provisions of The Indian Act [S.C. 1951, c.
29]. A declaration is also sought that a purported
amendment to that Order in Council issued by the
Deputy Minister of Indian and Northern Affairs
on January 26, 1982 is of no effect as being made
without authority.
Facts
The plaintiff is a treaty Indian and a member of
the Cote Band which occupies Cote Reserve #64 in
the province of Saskatchewan.
Order in Council P.C. 1701, which was adopted
on March 25, 1952 declared that on and after
April 1, 1952 the chief and council of each of the
Indian bands named in the Schedule to the Order
in Council were to be elected in accordance with
the provisions of The Indian Act. It also provided
that the chief of each of the said bands should be
elected by a majority of votes of the electors of the
band as should the councillors, the elections for
councillors to be held at large without the respec
tive reserves being divided into electoral divisions.
The Cote Band was one of those listed in the
Schedule to the Order in Council.
It appears that this Order in Council was adopt
ed under the authority of section 73 of The Indian
Act then in force.' Subsection 73(1) of that Act
provided:
73. (1) Whenever he deems it advisable for the good govern
ment 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.
Subsections 73(3) and (4) authorized the Gover
nor in Council to adopt additional orders or regu
lations prescribing whether the chiefs were to be
elected by the bands at large or by the elected
members of council, lnd whether councillors were
to be elected at large or elected each from a
separate electoral district.
In 1956, subsection 73(1) was amended sub
stituting the Minister for the Governor in
Counci1. 2 The effect of this was to empower the
Minister to make a declaration that band elections
should be governed by The Indian Act. Although
the remainder of the section was amended some
what, the amendments left with the Governor in
Council as before the power to make orders or
regulations in respect of certain modalities of the
elections.
On July 31, 1981 a referendum was held on the
Cote reserve to determine whether members of the
Band wished to revert to band custom for elec
tions. It is agreed that the results of this referen
dum were as follows: number of eligible electors
227; number of electors who voted — 131; number
of voters in favour (of reverting to band custom
elections) — 65; number of voters against — 62;
and number of rejected ballots — 4. A document
purporting to be a band council resolution which
was put in evidence, dated October 6, 1981, states
that a Cote Reserve Elections Act has been devel
oped by the council, approved by a majority of the
treaty Indians of Cote, and is therefore declared in
force. This resolution was signed by the chief and
seven of the twelve councillors.
On January 26, 1982, Mr. Paul M. Tellier,
Deputy Minister of Indian and Northern Affairs
issued an instrument which purported to amend
' S.C. 1951, c. 29.
2 S.C. 1956, c. 40, s. 20.
Order in Council P.C. 1701 by deleting from the
Schedule to that Order in Council the Cote Band
of Indians. The purported purpose and effect of
this instrument was to allow the Cote Band to
return to band custom in respect of elections. It is
not disputed that since that time several elections
have been held in accordance with band custom.
The plaintiff himself was elected as a member of
the council of the Cote Band on July 31, 1986, in
an election governed by band custom.
The plaintiff now seeks a declaration that there
was never a lawful reversion to band custom elec
tions because the Order of Paul Tellier of January
26, 1982 is invalid. Although Her Majesty is the
nominal defendant, there is no objection raised by
the Crown as to this form of a proceeding for a
declaration. Nor does the Crown dispute the
standing of the plaintiff as a member of the Band
and of the council to seek such a declaration.
Conclusions
I have concluded that the only issue necessary
for me to decide is whether the Order of the
Deputy Minister of January 26, 1982 was valid.
The essential issue raised by the plaintiff, in this
respect, is as to whether a Deputy Minister can
amend an order in council. At first blush, the
suggestion that this is possible is somewhat
surprising.
It will be useful first to consider whether the
Minister of Indian and Northern Affairs himself
could have similarly amended the Order in Coun
cil of 1952. It will be noted that had the Minister
or his predecessor originally issued the declaration
made under what was then subsection 73(1) of the
The Indian Act, it would appear that he could
annul that declaration. This follows from subsec
tion 31(4) of the Interpretation Act. 3
31....
(4) Where a power is conferred to make regulations, the power
shall be construed as including a power, exercisable in the same
3 R.S.C., 1985, c. I-21, at the time of the 1982 Order, the
comparable provision was subsection 26(4) of the R.S.C. 1970,
c. 1-23.
manner and subject to the same consent and conditions, if any,
to repeal, amend or vary the regulations and make others.
In the Interpretation Act, "regulation" is defined
as an "order, regulation ... or other instrument
issued, made or established in the execution of a
power conferred by or under the authority of an
Act".
A declaration made under former subsection 73(1)
of The Indian Act would be an instrument made in
the execution of a power conferred by that Act.
Therefore by the general provisions of the Inter
pretation Act, and in the absence of any specific
provision limiting the implied power of repeal, the
Minister would have had the power to repeal his
own regulation. I do not accept, as the plaintiff
suggests, that such a limitation can be found in
subsection 4(2) of the Indian Act [R.S.C., 1985, c.
I-5] which grants authority to the Governor in
Council alone to declare that certain portions of
the Indian Act are not to apply to any particular
Indian band. The plaintiff suggests that because
that general power exists in the Governor in Coun
cil, it precludes the power of the Minister implied
by the Interpretation Act to repeal his own orders.
I do not agree as I believe these respective powers
to be quite distinguishable. There is no reason to
infer from subsection 4(2) of the Indian Act a
"contrary intention" overriding the power other
wise conferred by the Interpretation Act whereby
those who can make regulations or orders can also
repeal them.
Of course the declaration of 1952, which the
Deputy Minister purported to repeal in respect of
this Band, was not made by a minister or a deputy
minister. It was made by Order in Council, the
Governor in Council being the only person or body
then authorized by The Indian Act of 1951 to
make such a declaration bringing the Cote Band
under The Indian Act for election purposes. How
ever, paragraph 44(g) of the Interpretation Act 4
provides that where any enactment is repealed,
then:
^ Supra note 3; the relevant provision at the time of the 1982
Order would have been R.S.C. 1970, c. 1-23, paragraph 36(g).
44....
(g) all regulations made under the repealed enactment remain
in force and are deemed to have been made under the new
enactment, in so far as they are not inconsistent with the new
enactment, until they are repealed or others made in their stead
As noted above, the former subsection 73 (1) of
The Indian Act in effect in 1952 which authorized
the Governor in Council to make a declaration
that a band's elections were to be held under The
Indian Act was amended in 1956 to delete the
authority of the Governor in Council and to confer
it instead on the Minister. The effect, therefore, of
paragraph 44(g) of the Interpretation Act and its
predecessor is that all "regulations" (and it has
been already noted that such a declaration would
be a "regulation" within the meaning of the Inter
pretation Act) made under the old subsection
73(1) such as the declaration in question here,
would remain in force but would be deemed to
have been made under the subsection as amended
in 1956; namely, it would be deemed to have been
made by the Minister. As we have seen, by subsec
tion 31(4) of the Interpretation Act and its prede
cessors, if the Minister were deemed to have made
the declaration in the Order in Council of 1952
then he would have the right to repeal that
declaration.
The question remains as to whether such author
ity to repeal could be delegated to his Deputy
Minister. Section 3 of the Indian Act provides:
3. (1) This Act shall be administered by the Minister, who
shall be the superintendent general of Indian affairs.
(2) The Minister may authorize the Deputy Minister of
Indian Affairs and Northern Development or the chief officer
in charge of the branch of the Department relating to Indian
affairs to perform and exercise any of the duties, powers and
functions that may be or are required to be performed or
exercised by the Minister under this Act or any other Act of
Parliament relating to Indian affairs.
The power of the Minister to delegate to the
Deputy Minister in subsection 3(2) is unlimited in
scope, including any of the "duties, powers and
functions" that the Minister may exercise under
this Act. A certified copy of the Instrument of
Delegation of Authority dated June 10, 1980 and
in force at the time of the 1982 Order, issued by
the then Minister of Indian Affairs and Northern
Development, authorized the Deputy Minister
among others:
... to perform and exercise any of the powers, duties and
functions that may be or are required to be performed or
exercised by me under the Indian Act ... .
It is difficult to imagine a more sweeping authori
zation to delegate than is found in subsection 3(2)
of the Indian Act nor a more sweeping exercise of
that authority to delegate than that set out in the
Instrument of Delegation. While I accept the
argument of counsel for the plaintiff that in cer
tain circumstances a power to delegate is not to be
implied, there is no need to imply such power here
as it is expressly granted in very broad terms, and
has been exercised in equally express and broad
terms. In the circumstances it is not necessary to
seek a further implied authority such as in para
graph 24(2)(c) of the Interpretation Act and its
predecessor as relied on by the defendant.
I therefore conclude that the power which the
Minister had to repeal the declaration made in the
1952 Order in Council had been lawfully delegat
ed to his Deputy Minister who lawfully exercised
that authority in his Order of January 26, 1982.
This being the case there is no possibility of grant
ing the declarations as requested by the plaintiff.
It should be noted that although the plaintiff
also pleaded that the Deputy Minister's Order had
not been published as required by the Statutory
Instruments Act' this position was abandoned in
argument. I have declined to deal with the validity
of the referendum of July 31, 1981, or of the band
council resolution of October 6, 1981 because I am
unable to see that they can in any way affect the
validity of the Order of the Deputy Minister of
January, 1982. The power of the Minister to issue
or repeal a declaration under present subsection
74(1) with respect to bringing a band's election
under the Indian Act is in no way conditioned on
the holding of a referendum or the adoption of a
band council resolution. While it is no doubt
5 S.C. 1970-71-72, c. 38.
highly important that the Minister have regard to
the views of the Band, to the extent that those can
be ascertained, the Act in no way requires some
formal expression of those views such as by refe
rendum or band council resolution. Counsel for the
defendant relied in part on the Band having itself
requested the repeal of the declaration in 1982 as a
factor for the Court to consider in deciding against
the plaintiff either on the basis of estoppel or in
the exercise of equitable discretion. Having con
cluded that no declaration could be issued, I need
not consider either estoppel or the criteria for the
exercise of discretion. I would only observe that I
have serious doubts that estoppel could bar the
plaintiff from attacking the Order of 1982 if in
fact there was no statutory authority for the
making of that Order.
The action is therefore 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.