The Honourable Madam Justice Linda K. Webber

Transcription

1 Date: Docket: CSC Registy: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION GRAHAM TUPLIN AND: APPLICANT (APPELLANT) REGISTRAR, INDIAN & NORTHERN AFFAIRS CANADA RESPONDENT BEFORE: The Honourable Madam Justice Linda K. Webber D. Bruce Clarke David R. Sanderson Solicitor for the Appellant Solicitor for the Respondent Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island (In Chambers) January 13, 1998 Charlottetown, Prince Edward Island October 9, 1998

2 BETWEEN: GRAHAM TUPLIN AND: APPLICANT (APPELLANT) REGISTRAR, INDIAN & NORTHERN AFFAIRS CANADA RESPONDENT Prince Edward Island Supreme Court - Trial Division Before: Webber J. (In Chambers) Date Heard: January 13, 1998 Date of Decision: October STANDARD OF REVIEW - trial de novo - oral evidence. CASES CONSIDERED: Provincial Tar Commissioner v. Maritime Dredging Limited and Island Regulatory and Appeals Commission (1 9971, 2 P.E.I.R. 78; Simmonds v. Law Society of Prince Edward Island (1995), 131 Nfld. & P.E.I.R. 328 (P.E.1.S.C.- T.D.); Re McArthur et a/. v. Registrar, Department of Indian Affairs and Northern Development (19921, 91 D.L.R. (4th) 666 Sask. Q.8.) ; Delgamuuk v. British Columbia, ( S.C.J. No. 108 (Q.L.). STATUTES CONSIDERED: Indian Act, R.S.C. 1985, c. 1-5, 5s. 2, 5, 8 and 9, and 1 4.3; Prince Edward Island Supreme Court Rules of Court, Civil Procedure Rule 37.02(1); Constitution An, TEXTS CONSIDERED: Blake, Administrative Law in Canada, (2nd) D. Bruce Clarke, solicitor for the applicant David R. Sanderson, solici~or for the respondent

3 [I] On August 6, 1996 Graham Tuplin ("applicant') filed a notice of appeal of the decision rendered by the Registrar, Indian and Northern Affairs Canada, on a protest filed by Graham Tuplin. In that decision, the Regisbar affirmed the original decision to deny Mr. Tuplin's request to be registered In accordance with paragraph 6(l)(aJ of the indh A 4 R.S.C. 1985, c An amended notice of appeal, not relevant to thls application, was filed April 3, [2] On December 2, 1997 an application was made on behalf of the applicant for 'direction of the Court as to how the appeal should proceed" pursuant to Civil Procedure Rule 14.05(21. That Ruie deals with the originating process for the commencement of an application and so would not appear to be relevant. The application before me is in the nature of a motion for directions within the context of an existing appeal pursuant to s of the 1ndiutAc-t to the Supreme Court of Prince Edward Island, Trial Division. [31 kr there war; no objection raised by the iuspondent to the form of the motion, I will consider it before the Coun pursuant to Rule 37.02(1) (a judge of the court has jurisdiction to hear any motion in the proceeding) and deal with it as such. 141 The pre-hearing brief filed on behalf of the applicant Indicates that the applicant seeks:.to adduce evidence and legal argumenl to show thu custom adoption Is a constitutionally guaranteed &ori&al right that is not dependant on 9tahrte. reuulation or the interpretation of government bureaucrats for ib continued existence, importance and cifccct. (p. 5) 151 The Registrar refused to grant the applicant an oral hearing at which oral history evidence of custom adoption could be ptesenred. Thus, argues the applicant, this Coun should hear the appeal by way of trial de novo. In the alternat~ve, the applicant seeks to be allowed to adduce oral evidence on the appeal, so that oral history evidence of custom adoption will be heard. STANDARD OF REVIEW [6] In determining the standard of review required by a statutory appeal of a decision rendered by an administrative tribunal, the Prince Edward Island Court of Appeal in Provincial Tax Commissioner v. Multimt Dredging Limited and ldd Regulatory and Appeals Commission, (1997). 2 P.E.I.R. 78 stated that the legislative intent in conferring jurisdiction on the tribunal can be determined by considering

4 Page: 2 the nature of the statutew conferring jurisdiction; the tribunal's role or function; the presence or absence of a privative clause; whether or not there is a statutory right of appeal; the expertise of the tribunal; whether the question goes to the jurisdiction of the tribunal; the role of the tribunal in policy development; and the nature of the problem before the tribunal. [;rl In the instant case, the Registrar of lndian Affairs is the 'tribunal' whose decision is appealed. [Bl In the Indian A d "Registrar" is defined in s. 2: s. 2 'Registrar' means theofficer in the Department who is in charge of the lndian Register and the Band Lists maintamed in the Oepment. [9 Section 5 of the Indian Act establishes an lndian Register and gives the Registrar the authority to add or delete from that Register:... the name of any penon who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the lndian Register. [I 01 Seaion 8 provides for the maintenance of a Band List. Section 9 states that such list shall be maintained in the Department by the Registrar until a band assumes control of its Band List, and gives the Registrar the authority to add to or delete from that 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. [I 11 Anyone who disagrees with a decision made by the Registrar in connection with such lists may file a protest with the Registrar: A protest may be made in respect of the inclusion or addition of the name of a person in, or the omission or deletion of the name of a person from, the lndian Reginer, or a Band List maintained in the Department, within three years after the inclusion or addition, or omission or deletion, as the case may be, by notice in writing to the Registrar, containing a brief sutement nf the ground, therefor. 12) A protest may be made under this section in respect of the Band List of a band by the councll of the band, any member of the band or the penon in respect d whore name the proter IS made or that person's representative.

5 Page: 3 (3) A protest may be made under this section In respect of the Indian Register by the person in respect of whose name the protest is made or that person's representative. (4) The onus of establishing the grounds of a protest under this section lies on the person making the protest. (5) Where a protest 1s made to the Registrar under this seaion, the Registrar shall cause an investigation to be made into the matter and render a decsron. (6) For the purposes of this section, the Registrar may receive such evidence on oath, on affidavit or in any other manner, whether or not admissible in a court of law, as the Registrar, in his direction, sees fit or deems just. (7) Subject to smion 14.3, the decision oi the Registrar under subsection (5) is final and conclusive. [I 21 The decision appealed from is the decision made by the Registrar after Graham Tuplin filed his protest in accordance with s of the Indian Act. [I 3) It is noteworthy that the Registrar has responsibility for both determining whose name is on the lndian Register and for investigating the decision on who is registered, if the decision is protested. While there is a privative clause, that clause is subsumed to the right of appeal; "Subject to section 14.3 [the appeal section] the decision... is final and conclusive". This would suggest it is not a true privative clause. [I 41 The dual role of the Registrar - as decision-maker and the person who investigates and rules on the decision - is most significant. In this context, the person affected is one who has not yet had an opportunity to be heard on appeavprotest of the decision by any independent person or tribunal. The following comments of the Court of Appeal in Provincial Tax Commissioner v. Maritime Dredging, eta/. are therefore relevant:... Although vested with the jurisdiction to consider a Notice of Objection pursuant to s. 9, the Provincial Tax Commissioner is under no obligation to hold a hearing, and he could hardly be said to be at arms length from the Provincial Treasurer, the person from whom he takes his direction and the person responsible for the assessment of the tax in the first instance. In substance, when the Provincial Tax Commissioner a N on a Notice of Objection, he is conducting a reconsideration of the assessment, a process which is not in the nature of an appeal.... (p. 86, per McQuaid, J.A.) These latter comments regarding the reconsideration of a decision after a notice of

6 Page: 4 objection has been filed appear very applicable to the Registrar's investigation of a protest of his own decision. [15] In the instant case, the person rendering the initial decision was not the same person rendering the decision on the protest. However, this was because the person holding the position of Registrar happened to change during the coune of time this matter was being dealt with: I have accepted your letter as a protest of my predecessor's decision... (letter, Tab 22, Record) [16] 1 do not consider that this fortuitous change of persons removes the protest process from the comments cited above in Maritime Dredging. [17] The role of the Registrar, the one who makes the initial decision and the one who reviews that decision, is problematic from the perspective of the fairness of the hearing at the level of the protest. While there is a privative clause, it is subject to a right of appeal. The Registrar would not appear to be any more expert than the court in interpreting the sections of the hdian Ad regarding registration and applying them to the faas of the case The type of hearing contemplated on appeal is not specified in the Indian Ad. Section 14.3 provides for a right of appeal within six months after the Registrar renders a decision on a protest under The only directions given are: 14.3(3) On receipt of a copy of a notlce of appeal under subsection (Z), the Registrar shall forthwith file with the court a copy of the decision being appealed together with all documentary evidence considered in arriving at that dec~sion and any recording or transcript of any oral proceedings related thereto that were held before the Registrar. (4) The court may, after hearing an appeal under this section, la1 affirm, vary or reverse the decision oi the Registrar; or + (bl refer the subject-matter of the appeal back to the Registrar for reconsideration or further invest~gat~on. [I 91 The fact that the Registrar is required to forward the record to the court, and the fad that the court may send matters back to the Registrar 'for reconsideration or further investigation' does not overcome the problem with the procedure set out in the lndian Ad, insofar as providing the applicant with a fair hearing. [201 This is not to say that the hearing needed to have been in any special form. I

7 Page: 5 find no merit in the argument of the applicant that the Registrar's refusal to allow an oral hearing supports the argument for a trial de novo. As stated in Simmonds v. Law Society of Prince Edward Island (1 999, 134 Nfld. & P.E.I.R. 328 (P.E.I.S.C.-T.D.), the rules of natural justice do not require an oral hearing for there to be a fair hearing. [21] Counsel for the respondent cited Re Mdrthur et a1 v. Registrar, Department of Indian Affairs and Northern Development (1992), 91 D.L.R. (4th) 666 (Sask. Q.B.) in support of its argument that an appeal pursuant to s of the Ad is a review of the record only, not a trial de novo. Matheson J. states in that case: The foregoing provision 114.3(31 and (4)] would not seem to contemplate that additional evidence might be adduced in the appellate courr. (p. 671) However, Matheson 1. goes on to point out that additional evidence was put forward in that case by way of affidavit and no objection was made to this additional evidence. Clearly in that case, the nature of the hearing contemplated by s was not raised as an issue and so was not dealt with at any length by Matheson j. AS this appeal will be the first opportunity for the applicant to be heard by an independent tribunal, I conclude that the hearing of this appeal should be by way of trial de novo. ADMISSION OF EVIDENCE [221 However, this is not to say that any particular type of evidence may be put before the trial judge. As stated in the text Administrative Law in Canada (2nd) by Sara Blake, at p 136: If the appeal is by way of a new hearing, when and to what extent may reference be made to [he record of the proceedings below7 The appellate body i s not expected to stan from scratch. The evidence before and the reasons for decision of the inferior tribunal are admissible before the appellate tribunal and may be accorded considerable weight especially it the inferior tribunal war expert in the field, heard the parties' evidence and made detailed findings of fact, and rendered extensive, well-thoughtsut reasons. New evidence that was not available at the timeof the hearing before the lower tribunal should be admitted. Evidence not presented to the tribunal of first instance may be admitted before the appellate tribunal. However, if it was deliberately withheld from the first tribunal, it should be approached with caution. The appellate tribunal should not require the appellant to show that the subordinate tribunal's decision was patently unrea5onable before interfering. It should assess the evidence it has heard and come to its own decision, but may give weight to the decision under appeal. [23] The thrust of the applicant's motion in the instant case, although framed broadly in the nature of an order determining that the appeal hearing be by way of

8 SUWtMt COURT PEI PAGE 07 Page: 6 trial de novo, has in faa been to seek an order approving the tendering at trial of oral history evidence regarding custom adoption for the Lennox Island Band. [24] Such an order will depend upon the relevance of that evidence as determined by the trial judge. The relevance of such evidence is an issue upon which the applicant and respondent disagree. [25] In a letter to the applicant dated August 26, 1994 (tab 20, record) the Registrar's view of the issue regarding custom adoption was stated as follows on p. 3: The decision that Joseph Tuplin is not entitled to be registered in accordance with paragraph 6(lKa) does not at all imply a finding that no parentchild relationship was created by the custom adoption. It is based solely on the fact that at no time prior to April 17, 1985 did adoption of any kind constitute a basis for registration as an Indian In a letter dated November 14, 1995 (tab 19, record), the Registrar dealt with the same issue when deciding upon the applicant's request for an oral hearing as follows: The fact that your client's father was adopted by a member of the Lennox Island Band in accordance with the customs of that communiry is nor in dispute.... Lp.11 I beiieve the larger question raised by Mr. Tuplin's protest is whether or not a non-indian person could have gained Indian Status by virtue of being adopted in accordance with the laws of the state or province in which the adoption took place or in accordance with the customary practices of the lndian community to which his adoptive parenb belonged prior to April 17, As I stated in my letter to Mr. Tuplin, I do not believe that any form of adoption would have created a situation by which a non-indian child could become registered under the Act prior to the 1985 amendments. In light of the above, your request for a hearing is denied. [p.2] I271 While the applicant argues on appeal that the Registrar breached the principles of natural justice by denying the applicant an oral hearing to prove that custom adoption has been practised for hundreds of years, the basis for the denial is that proving that point would be irrelevant and have no bearing upon registration rights under the lndian Ad. As stated by the respondent in her facturn (tab 3, p. 5, para. 15): The determining issue is not the validity of the practice of custom adoption but the interpretation of section 6UJ of the Indian Act, relating to registrat~on of adopted individuals....

9 Page: 7 [28] In response, the applicant's argument appears to be: we need to put forward evidence of custom adoption so that we can prove it is an entrenched aboriginal right and that, in turn, will show an entitlement to registration under the Indian Ad. [29] However, the trial judge must be the one to decide on the relevance of such evidence, since even if custom adoption is an aboriginal right proteded by s. 35(1) of the Constitution Act, 1982 the evidence the applicant seeks to adduce may in fact be unnecessary. The Registrar's comments suggest there may be no dispute about Joseph Tuplin having been adopted in accordance with such custom. The Registrar appears to have accepted that a parentlchild relationship was established by custom adoption. What is at issue is the right to be registered under the lndian Ad as a result of that custom adoption. [30] What the applicant must do is connect custom adoption with registration rights under the Indian Ad. Registration rights are granted based upon the characteristics of the registrant. The applicant disputes the characterization of Joseph Tuplin and, subsequently, his son Graham Tuplin. The reason for the dispute is the Registrar's position that custom adoption did not grant full registration rights under the Indian Act until after April 17, The applicant's position appears to be that these rights are inherent and can't be so limited by statute. This is a legal question to be answered by the trial judge. [31] 1 also note that the applicant appears to confuse oral history with oral evidence. Oral history, as referred to in Delgamuukw v. British Columbia, [I 99n S.C.J. No. 108 [Q.L.) is a type of evidence arid the Court's comments refer to the way in which this evidence must be dealt with, not the way in which it must be received. "Oral history" could be taped and transcribed and in that way produced in documentary form for consideration. There is nothing in Delgamuukw, supra, to suggest this would be inappropriate. [32] Regarding the merits of the applicant's constitutional argument that custom adoption is an aboriginal right, that is a matter for the trial judge to decide. It follows, then, that a decision about whether or not evidence of custom adoption is relevant to this proceeding cannot be made by anyone other than the trial judge. CONCLUSION [33] The hearing of this matter shall be by way of trial de novo.

10 Page: 8 [34] The trial judge must dqide whether or not oral history evidence of custom adoption is relevant and, if relevant, in what form it may be adduced. October 9, 1998