Citation: Tuplin v. Indian & Northern Affairs Canada 2001 PESCTD 89

Date: 20011107 Docket: GSC 15372 Registry: Charlottetown

PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION

BETWEEN: GRAHAM TUPLIN Appellant AND: REGISTRAR, INDIAN AND NORTHERN AFFAIRS CANADA Respondent

Before: The Honourable Justice David H. Jenkins

Stuart C.B. Gilbey for D. Bruce Clarke Gregory J. Howard -

Solicitor for Appellant Solicitor for Respondent

Place and date of hearing

-

Charlottetown, Prince Edward Island October 16, 17 and 18, 2000

Place and date of judgment

-

Charlottetown, Prince Edward Island November 7, 2001

Citation: Tuplin v. Indian & Northern Affairs Canada 2001 PESCTD 89

GSC-15372

BETWEEN: GRAHAM TUPLIN Appellant AND: REGISTRAR, INDIAN AND NORTHERN AFFAIRS CANADA Respondent

Prince Edward Island Supreme Court - Trial Division Before: Jenkins J. Dates Heard: October 16, 17, and 18, 2000 Judgment: November 7, 2001 (25 pages)

ABORIGINAL RIGHTS: band membership - registration under Indian Act. ADMINISTRATIVE LAW: statutory appeal - limited jurisdiction standard of review affected by mode of appeal. CONSTITUTIONAL LAW: aboriginal rights - section 14.2 of the Indian Act, R.S.C. 1985, Chap. I-5 - custom adoption. CONSTITUTIONAL LAW: applications under s. 24(1) of the Charter and s. 35 of the Constitution Act, 1982 - jurisdiction - proper forum.

CASES CONSIDERED: Tuplin v. Indian & Northern Affairs, [1998] 2 P.E.I.R. 160; Dickason v. University of Alberta, [1992] 2 S.C.R. 1126; Lamb v. Canadian Reserve Oil & Gas Ltd., [1977] 1 S.C.R. 517; Dudley v. Chiropractic Assn. (Alberta) (1977), 2 Alta. L.R. 384 (Alta. Dist. Ct.); Wilson v. Canada (Indian Registry Registrar), [1999] B.C.J. No. 2510 (B.C.S.C.); Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Baker v. Canada (Minister of

Citizenship and Immigration), [1999] 2 S.C.R. 817; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Guerin v. The Queen, [1984] 2 S.C.R. 335; Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (F.C.T.D.); Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159; R. v.

- ii Adams, [1996] 3 S.C.R. 101; Casimel v. Insurance Corp. of British Columbia (1994), 106 D.L.R. (4th) 720 (B.C.C.A.); Re Tagornak Adoption Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C.); Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358. STATUTES CONSIDERED: Indian Act, R.S.C. 1985, Chap. I-5, ss. 6, 6(1)(a) and (f), 6(2), 11, 11(e), 14, 14.2(5) and 14.3; Canadian Charter of Rights and Freedoms, ss. 15(1) and 24(1); Constitution Act, 1982, ss. 35, 35(1) and 52. TEXTS CONSIDERED: Jones and de Villars, Principles of Administrative Law (3rd ed.); Blake, Administrative Law in Canada (2nd ed.); Hogg, Constitutional Law in Canada (2nd ed.).

Stuart C.B. Gilbey for D. Bruce Clarke Gregory J. Howard -

Solicitor for Appellant Solicitor for Respondent

Jenkins J.: [1] This is a statutory appeal under s. 14 of the Indian Act, R.S.C. 1985, Chap. I-5. The decision appealed is a decision of the Registrar made February 7, 1996, which affirmed a previous decision of the Registrar made August 26, 1994 that denied Mr. Tuplin’s request to change his registration from s. 6(1)(f) to s. 6(1)(a) of the Act. [2] Graham Tuplin sought a review by the Registrar of the registration of his father Joseph under s. 6(2) rather than under s. 6(1)(a) of the Act based on Joseph having been registered prior to coming into force of the 1985 Act or having been entitled to be registered by virtue of the custom adoption of Joseph into the Mi’kmaq community of Lennox Island. The Registrar denied Graham Tuplin’s request, because she found it was not in accordance with the Act. [3] The length and complexity of my reasons for decision reflects the meandering course this appeal has taken. Since its inception, this proceeding has mutated from a statutory appeal of administrative action, first to include constitutional questions, second to involve a trial de novo with concomitant involvement of new evidence on the aboriginal right of custom adoption since time immemorial, and third to include a request for Canadian Charter of Rights and Freedoms relief. As a result, I have found that the only effective way in which to present my deliberations and conclusions is to (i) set out the background of the process before the Registrar and then before this Court; (ii) address the procedural considerations and to exclude consideration issues beyond the purview of a statutory appeal; and then (iii) decide the issues which are appropriate for determination on this appeal. Proceedings leading to this appeal: [4]

The Registrar set out the events leading to her decision: The following is a brief chronology of events with respect to Graham Tuplin’s protest: 1. In 1985, Graham Tuplin made an application for registration under the Act. He was registered in accordance with subsection 6(2) in 1986, as the child of one Indian parent, i.e. his mother, who was entitled to be registered in accordance

Page: 2 with paragraph 6(1)(c). The effect of this was that he could not pass on entitlement to his children. 2. In 1991, Mr. Tuplin sought a review of his registration under subsection 6(2) of the Act, specifically the recognition of the entitlement to registration of his father, Joseph Tuplin, as an Indian. Mr. Tuplin adduced evidence establishing that Joseph Tuplin who was of unknown parentage, was custom adopted by an Indian parent. 3. In 1992, a decision was made to deem Joseph Tuplin entitled to registration based on his adoption in accordance with Indian custom. The Registrar’s decision was premised on the practise of custom adoption being recognized by statutory amendments to the current Act. As a result of these amendments, Joseph Tuplin was deemed entitled to registration in accordance with subsection 6(2) of the Indian Act, R.S.C. 1985, c. 1-5 as a person “entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1)”. Since Joseph Tuplin’s adopted mother was entitled to be registered under subsection 6(1) of the Act, the Registrar concluded that he was entitled to be registered under subsection 6(2). As a consequence of deeming Joseph Tuplin entitled to registration under subsection 6(2), Graham Tuplin’s registration category was changed to be in accordance with paragraph 6(1)(f) as a person “both of whose parents are, or if no longer living, were at the time of death entitled to be registered under this section”. As a result, Graham Tuplin’s children became entitled to registration. 4. On August 16, 1994, Graham Tuplin again sought a review of the categories under which members of the Tuplin family had been reinstated. Specifically, he sought the re-categorization of his father, Joseph Tuplin, under paragraph 6(1)(a) rather then [sic] subsection 6(2) of the Act. Graham Tuplin submitted that Joseph Tuplin was entitled to be registered in accordance with paragraph 6(1)(a) as a person “registered or entitled to be registered immediately prior to April 17, 1985". 5. On August 26, 1994 the Registrar replied to Graham Tuplin’s request for a review in the following manner:

Page: 3 i) Joseph Tuplin was never entitled to be registered as an Indian prior to 1985; ii) Prior to the 1985 amendments there were never any provisions in the Indian Act by which persons of nonIndian status could gain entitlement to registration through legal or custom adoption. Consequently, Joseph Tuplin was not and could not have been registered or entitled to be registered in accordance with subsection 6(1)(a), as a result of his adoption through Indian custom by an Indian parent.

iii) The Registrar considered the historical evidence regarding Joseph Tuplin’s previous attempts to be registered in the 1930's, 1940's and 1950's. These attempts were unsuccessful due to his unknown parentage. Since the Act did not recognize custom adoption during the period between Joseph Tuplin’s birth and 1985 as a basis for entitlement to registration, he was deemed not entitled to be registered in accordance with subsection 6(1)(a) of the current Act. For the above reasons, the Registrar concluded that the decision to deem Joseph Tuplin entitled to registration in accordance with subsection 6(2) of the current act, as a person who was never entitled to be registered until after the amendments to the Act in 1985 and who had only one Indian parent through custom adoption was correct. 6. On March 9, 1995 Graham Tuplin wrote to the Registrar to formally protest the Registrar’s decision of August 26, 1994.

[5] The Registrar conducted a paper appeal, and then rendered a decision with reasons. The Registrar addressed the grounds of protest, and stated conclusions including the following conclusions which Mr. Tuplin now appeals: In rendering my decision in relation to the issue of Joseph Tuplin’s entitlement to band membership, I have examined the historical records of the Department and a synopsis is provided below. You will note that some documents are not attached as they contain information protected under the Access to Information and Privacy Acts;

Page: 4 In light of the historical evidence, I have reached the conclusion that Joseph Tuplin was not a member of the Lennox Island Indian Band and therefore was not entitled to be registered in accordance with subsection 11(b) of the Act. Although Joseph Tuplin’s name appeared from time to time on band lists as a band member, he was never included on any band list authorized by the Department and could not be included as there was no evidence to suggest that he was an Indian; Furthermore, at the time of Joseph Tuplin’s birth, entitlement to band membership was determined by section 2 of the Indian Act, R.S.C. 1886, c. 43. In order to become a band member it would have been necessary to establish that he was the “child” of a male person of Indian blood reputed to belong to a particular band; Joseph Tuplin’s entitlement to registration cannot be considered under paragraph 6(1)(a) of the Indian Act, R.S.C. 1985, c. 1-5 because until the current Act came into effect there was no specific provision for the registration of persons who were adopted in accordance with Indian custom. I am therefore satisfied that Graham Tuplin is correctly registered under paragraph 6(1)(f); Consequently, the request of Mr. Graham Tuplin to be registered in accordance with paragraph 6(1)(a) is denied.

This appeal: [6] Mr. Tuplin appealed from the decision of the Registrar. His rather extensively stated grounds are set out in full as follows: [1] That the removal of Joseph Tuplin’s name and the names of his family from the Lennox Island Band List and the Minister’s letter of February 13, 1951 confirming that deletion of names and the alleged reasons therefor are based on or constitute a decision regarding Joseph Tuplin’s entitlement to reside on the Reserve and to be a member of the Lennox Island Indian Band that is entirely without legal authority and accordingly that decision should be reversed; [2] That the custom adoption laws are laws of self-determination and self-governance. Families and communities practice these customs collectively. The consequences of a custom adoption are felt within the community as well as the families involved. A custom adoption has always meant that a child became a member of that body of Indians whether it be a Band or a village. As Canada has recognized that custom without extinguishing, modifying or regulating that custom and

Page: 5 as it became entrenched in the Constitution in 1982, the Registrar erred in deciding that custom adoption only became a basis for entitlement to registration in 1985; [3] That custom adoption has been practised by the Mi’Kmaq Nations since time immemorial and continues to be practised today in substantially the same manner. This is true of all aboriginal peoples in Canada. Contrary to the principles of natural justice and contrary to the Indian Act, the Registrar denied Mr. Tuplin’s application for an oral hearing in order for his witnesses to prove that the custom has been practised consistently for hundreds of years and that the consequences of a custom adoption including membership in the tribe or Nation have never changed; [4] That custom adoption has never been extinguished, modified or regulated by law. Nothing in any statute has ever had this effect. In fact, the repeated efforts by Canada to recognize this custom means that Canada acknowledges the aboriginal right to practice this custom without qualification and that these rights are entrenched and protected by section 35 of the Constitution Act, 1982;

[5] That custom adoption is an aboriginal right recognized by statute and affirmed by numerous courts prior to 1982 and as that right has never been extinguished, modified or regulated, the aboriginal right of custom adoption became entrenched in the Constitution in 1982 and in particular under section 35 in its full vigour and with its full meaning; [6] That the interpretation of custom adoption as stated by the Registrar and as printed in the policy of the Department is an infringement of the aboriginal right known as custom adoption contrary to section 35 of the Constitution; [7] Subsection (5) of section 14.2 of the Indian Act, R.S.C. 1985, c. I-5, as am. allows the Registrar to conduct an investigation into the inclusion or addition and the omission or deletion of the name of a person from the Register of Indians. Subsection (6) imbues the Registrar with wide discretion in conducting that investigation. There are no specific guidelines for how that discretion is to be exercised. That discretion risks infringing Aboriginal rights in a substantial number of applications when custom adoption is in issue. Individually and in combination, subsections (5) and (6) fail to provide the Registrar with sufficient directives to fulfil her fiduciary duties to Native Peoples. Consequently, the subsections are contrary to law and fail to meet the required tests set out by the Supreme Court of Canada in R. v. Sparrow

Page: 6 and R. v. Adams for the exercise of administrative discretion which may infringe an Aboriginal right. The impugned subsections are in violation of sections 35 and 52 of the Constitution Act, 1982 and are of no force or effect; [8] As Mr. Tuplin’s rights are being infringed, he is entitled to a remedy. The unlawful removal of Joseph Tuplin’s name and his family’s names from the Lennox Island Band List, the impugned policy of the Department and the Registrar’s interpretation of the custom, which is contrary to law and contrary to history, require a remedy under sections 15(1) and 24(1) of the Canadian Charter of Rights and Freedoms. The remedy in this case is not only the recognition of his father as being a person entitled under section 6(1)(a), but also Mr. Tuplin himself should be recognized as being a person entitled under section 6(1)(a) of the Indian Act; [9] The denial by the Registrar of Mr. Tuplin’s requests for an oral hearing, those requests being made in accordance with the Indian Act, means that the Appellant must herein apply to have this appeal heard by trial de novo. Mr. Tuplin has no other means of presenting the relevant evidence regarding custom adoption among the Mi’Kmaq Peoples, evidence which the registrar refused to hear.

[7] Mr. Tuplin seeks remedies pursuant to four sources: (i) under s. 14.3 of the Indian Act, (ii) under ss. 15(1) and 24(1) of the Canadian Charter of Rights and Freedoms, (iii) under ss. 35(1) and 52 of the Constitution Act, 1982, and (iv) under the inherent powers of this Court. In particular, he seeks: a) A reversal of the decision of the Registrar denying Joseph Tuplin and Graham Tuplin registered status as Indians under section 6(1)(a) of the Indian Act; b) A Declaration that the impugned decision of the Registrar was in violation of section 15(1) of the Charter and is of no force or effect under section 52 of the Constitution Act, 1982, and that consequently Graham Tuplin requires a remedy under section 24 of the Charter, which remedy is the granting to Graham Tuplin of status as an Indian under section 6(1)(a) of the Indian Act; c) A Declaration that the practice of custom adoption of the Mi’Kmaq People is an Aboriginal right recognized and protected under section 35 of the Constitution Act, 1982; d) A Declaration that the impugned decision of the Registrar was contrary to section 35 of the Constitution Act, 1982, and is

Page: 7 consequently of no force or effect under section 52 of the same Act; e) A Declaration that subsections (5) and (6) of section 14.2 of the Indian Act violate section 35 of the Constitution Act, 1982 and are consequently of no force or effect under section 52 of the same Act.

The Indian Act: [8]

The following statutory provisions are directly pertinent on this appeal: 2.(1) In this Act .... “child” includes a child born in or out of wedlock, a legally adopted child and a child adopted in accordance with Indian custom. .... “Indian” means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian; .... “Indian Register” means the register of persons that is maintained under section 5; .... “member of a band” means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List; .... “Registrar” means the officer in the Department who is in charge of the Indian Register and the Band List maintained in the Department; .... 6.(1) Subject to section 7, a person is entitled to be registered if (a)

that person was registered or entitled to be registered immediately prior to April 17, 1985;

Page: 8 .... (f)

that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.

6.(2)

Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1). ....

8. There shall be maintained in accordance with this Act for each band a Band List in which shall be entered the name of every person who is a member of that band. .... 9.(1) Until such time as a band assumes control of its Band List, the Band List of that band shall be maintained in the Department by the Registrar. 9.(2) The names in a Band List of a band immediately prior to April 17, 1985 shall constitute the Band List of that band on April 17, 1985. 9.(3) The Registrar may at any time add to or delete from a Band List maintained in the Department 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. .... 9.(5) The name of a person who is entitled to have his name entered in a Band List maintained in the Department is not required to be entered therein unless an application for entry therein is made to the Registrar. .... 11.(1) Commencing on April 17, 1985, a person is entitled to have his name entered in a Band List maintained in the Department for a band if

Page: 9 (a)

the name of that person was entered in the Band List for that band, or that person was entitled to have his name entered in the Band List for that band, immediately prior to April 17, 1985; ....

(d)

that person was born on or after April 17, 1985 and is entitled to be registered under paragraph 6(1)(f) and both parents of that person are entitled to have their names entered in the Band List or, if no longer living, were at the time of death entitled to have their names entered in the Band List.

14.2(1) 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 Indian Register, 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 statement of the grounds therefor. .... 14.2(4) The onus of establishing the grounds of a protest under this section lies on the person making the protest. 14.2(5) Where a protest is made to the Registrar under this section, the Registrar shall cause an investigation to be made into the matter and render a decision. 14.2(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 discretion, sees fit or deems just. 14.2(7) Subject to section 14.3, the decision of the Registrar under subsection (5) is final and conclusive. .... 14.3(1) Within six months after the Registrar renders a decision on a protest under section 14.2, (a)

in the case of a protest in respect of the Band List of a band, the council of the band, the person by whom the

Page: 10 protest was made, or the person in respect of whose name the protest was made or that person’s representative, or .... may, by notice in writing, appeal the decision to a court referred to in subsection (5). .... 14.3(3) On receipt of a copy of a notice of appeal under subsection (2), 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 decision and any recording or transcript of any oral proceedings related thereto that were held before the Registrar. 14.3(4) The court may, after hearing an appeal under this section (a)

affirm, vary or reverse the decision of the Registrar; or

(b)

refer the subject-matter of the appeal back to the Registrar for reconsideration or further investigation.

14.3(5) An appeal may be heard under this section .... 14.3(5)

(c)

in the Province of Prince Edward Island or Newfoundland, before the Trial Division of the Supreme Court; ...

Process on appeal: !

Directions from interlocutory motion on mode of hearing

[9] On an interlocutory motion for directions before the Trial Division (Tuplin v. Indian & Northern Affairs, [1998] 2 P.E.I.R. 160), Webber J. ruled that the hearing of the matter appealed be by trial de novo. In this determination, Webber J. was influenced by the Registrar having had a dual administrative role, first, of making a determination regarding the placement of

Page: 11 a name on the Band List, and second, as the adjudicator of the ensuing protest of the initial decision. Webber J. noted that both the initial decision-maker and the Registrar were from within the Department and function under the direction of the Minister. She observed that the Registrar was not at arms length from the Minister, and she classified the function of the Registrar as a reconsideration and a process not in the nature of an appeal. Webber J. held that in pursuit of fairness, absent specific statutory direction the preferred mode of appeal was hearing de novo, as the present appeal would be “the first opportunity for the applicant to be heard by an independent tribunal”. [10] This appeal was heard and will be determined by the Court in accordance with that judicial direction. [11] Webber J. also issued a ruling regarding admission of evidence regarding custom adoption. Mr. Tuplin had sought to adduce evidence to show that custom adoption is a constitutionally guaranteed aboriginal right that is not dependent on any statutory provision or governmental decision for its continued existence, importance and effects. Having determined the appeal would be a hearing de novo, Webber J. observed that in an administrative law statutory appeal the court hearing an appeal is not expected to start from scratch, and can consider the tribunal record plus categories of new evidence. She then held that admissibility of evidence regarding custom adoption for the Lennox Island Band depends on relevance, which in turn is dependent on determination of the legal question regarding Mr. Tuplin’s rights, and determined that this is a matter to be assessed by the judge hearing the appeal. It was left to the trial judge to decide whether or not oral history evidence of custom adoption is relevant, and if relevant, in what form it may be adduced. ! [12]

Nature and Scope of Appeal

This proceeding is a statutory appeal.

[13] Any right to appeal must be found in the Indian Act. A right of appeal is not a legal requirement. No appeal from an administrative action exists unless provided by statute; although good public administration usually requires at least one level of appeal of a decision of a statutory delegate. [14]

The scope of the appeal is defined by the statute. The Indian Act is not

Page: 12 specific regarding the ambit and mode of the appeal. As the appellate body, this Court chose by the ruling on the interlocutory motion that the appellant’s protest would be heard on its merits. In any event, being an appeal, the mandate and jurisdiction of this Court regarding the subject matter of the protest is limited to the matters that were before the Registrar, the tribunal whose decision is appealed.

[15] On a hearing de novo, the role of this Court is to freshly consider and decide the issues previously decided by the Registrar; and also to consider whether the Registrar had legal authority to do what she did. The scope of the appeal and latitude for a different decision is broader than on an appeal on the record, where the question would be limited to whether the Registrar made a reviewable error. In a hearing de novo, the appellate court can receive new evidence, and is not confined to reviewing the record of the Registrar’s decision. An appellate court can choose to refer to the record, and can treat the Registrar’s factual findings and decision as having evidential value, or substantial evidential value, and/or can treat the Registrar’s findings with some respect and deference in view of the Registrar’s expertise, or substitute its view for the Registrar’s on the facts without deference to the Registrar. See Jones and de Villars, Principles of Administrative Law (3rd ed.) Ch. 14; Blake, Administrative Law in Canada (2nd. ed.) Ch. 6; Dickason v. University of Alberta, [1992] 2 S.C.R. 1126; Lamb v. Canadian Reserve Oil & Gas Ltd., [1977] 1 S.C.R. 517; Dudley v. Chiropractic Assn. (Alberta) (1977), 2 Alta. L.R. 384 (Alta. Dist. Ct.). [16] I must respectfully state that I would have preferred to have heard and determined this appeal based upon review of the Registrar’s record rather than by hearing de novo. Appeal on the record is the usual practice where the statute is silent and a statutory appeal is to a superior court. Appeal on the record is consistent with primary administrative law principles which reflect the interface within public administration of Parliament, government, and the courts, from which has emerged the principle of curial deference toward the exercise of administrative functions by statutory delegates. The particular and specialized expertise of the Registrar regarding the subject matter of this appeal, which I find is clearly present, accentuates the preference both for the mode of conventional administrative law appellate review and for deference to the

Page: 13 Registrar’s findings of fact through application of the “clearly wrong” standard. Regarding the expressed concern of the motions judge for fairness, in a review of the record there is opportunity to adequately address all appropriate issues of fairness. The appellate court can always address procedural fairness before a tribunal on matters of procedure and process. But in my respectful view, it is not the role of the court to pursue an assurance of fairness regarding the substance of the protest by hearing the protest afresh and entertaining new evidence that was not before the tribunal whose decision is impugned. (This view is supported by Jones and de Villars, Principles of Administrative Law, (3rd ed.) at p. 228.) The effect of proceeding with a new hearing and hearing additional evidence and more issues is to expand the statutory right of appeal beyond what is intended by the legislation. Parliament assigned to the Registrar the function of maintaining band registries in accordance with legislatively stated administrative rules, and Parliament established an administrative structure which contemplates bureaucratic continuity and developed expertise. Parliament stated that the Registrar’s decision upon hearing a protest is final and conclusive, subject only to the expressly stipulated right of appeal. In those circumstances, assumption by a court of the mandate of conducting a fresh hearing, hearing new evidence, entertaining new issues, and substituting its findings of fact for the Registrar’s without deference plays out in practice by usurping Parliament’s decision to install an administrative system of Indian registries checked by appellate review. [17] I share the view of Sigurdson J. in Wilson v. Canada (Indian Registry Registrar), [1999] B.C.J. No. 2510 (B.C.S.C.) which prefers appeal on the Registrar’s record as being consistent with the scheme of the Act. [18] That said, I reiterate that this appeal was heard and will be determined as a hearing de novo. The scope of the review is full. All the evidence before the Court, including the record of the Registrar’s proceeding and the viva voce evidence and exhibits received at trial, are addressed. !

Standard of review

[19] Regarding the standard of review applicable to matters of fact, upon adoption of the notion of hearing de novo the administrative law “clearly wrong” standard is necessarily excluded. This Court is obliged to hear the matter anew, and consequently to consider the evidence afresh. Any deference to the

Page: 14 Registrar’s findings of fact arises instead from judicial assessment of the nature of the evidence in relation to the Registrar’s expertise. Consistent with my assessment that the Registrar does indeed have very substantial legislatively demonstrated expertise about the subject matter of the protest, it follows that subject to such evidence being challenged or contradicted, I would contemplate the Registrar’s evidence to be credible and to be of substantial evidential value.

[20] Regarding the standard of review applicable to matters of law and application of law to the facts, the standard of correctness applies. Webber J. and Sigurdson J. shared the observation that the Registrar is no more expert than the court in interpreting registration provisions in the Indian Act and applying them to the facts of the case. I will subscribe to that observation. It accords with accepted administrative law principles on standard of judicial review of administrative action regarding matters of law. That said, it does seem to me though that the reality is, as intended, that the Registrar would possess a developed wealth of experience in interpreting and applying the statutory provisions covering band membership and registration. It follows that upon entertaining a legal challenge this Court should, while still fully exercising its own opinion and without shying away from its appropriate judicial function on appellate review, bear in mind and appropriately take into account the Registrar’s accumulated expertise before substituting its contrary opinion. ! Charter, s. 15 and Constitution Act, 1982, s. 35 challenges [21] In this appeal, the appellant seeks relief under the Charter for alleged infringements of his equality rights, and under s. 35 of the Constitution Act, 1982 to compel recognition of a constitutionally recognizable existing aboriginal right. I have concluded that these grounds and claims are beyond the jurisdiction of this Court on the present appeal, and in any event are inappropriate for determination within a s. 14.3 statutory appeal. [22] As a provincial superior court, this Court is a court of competent jurisdiction under s. 24(1) of the Charter in cases where a Charter issue arises in proceedings before it. Similarly, this Court is a court of competent jurisdiction to entertain a declaration of rights under s. 35 of the Constitution Act, 1982.

Page: 15 [23] The jurisdiction to deal with issues does not come from any one section of the Charter or constitutional provision. Jurisdiction stems from the nature of the proceedings before the court and the legislation under which the initial application was made. [24] In the present case, this Court is sitting on a statutory appeal. As such, its authority is limited to overseeing matters that were before the tribunal whose decision is appealed. The remedies that can be obtained on this appeal are limited to the remedies delineated in the Act. This Court can consider constitutional questions as they pertain to the Registrar’s performance of her delegated functions. As a statutory delegate the Registrar is required to comply with the Charter and s. 35 of the Constitution Act, 1982. But it is the Registrar’s actions and decision which are the proper subject matter of an administrative law statutory appeal, not the validity of the authorizing legislation. Whether the legislation is constitutionally infirm is a serious question to be heard in a different proceeding. Where constitutional issues are not questions about the proper exercise of the Registrar’s authority, but pertain instead to the validity of the enabling legislation itself and to the operation of the Act in relation to an asserted right of higher standing, these matters are beyond the authority of the Registrar to consider, and are outside the remedial authority of the Court on this particular appeal. [25] Consideration of those constitutional questions is also unnecessary to addressing all the issues in the appeal so as to fulfill the statutory role of the appellate court. This Court is authorized only to monitor the tribunal’s decision and then to affirm, reverse, or vary the appealed decision or remit the subject matter of the appeal back to the Registrar for further consideration.

[26] In my opinion, this statutory appeal is as well not the proper forum for a constitutional challenge about the authorizing legislation. In a statutory appeal, the Court is called upon to consider the subject matter that was before the tribunal. That includes interpretation of the legislation. It does not include determination of the validity of the authorizing legislation. This proceeding being hearing de novo, I have considered whether arguably the constitutional validity of the legislation could be included as an issue. In my opinion, it cannot. This Court is constituted in this proceeding with a specific mandate—to hear a statutory appeal. Even if the jurisdiction hurdle was

Page: 16 overcome, considerations of civil procedure come into play: (a) being an administrative law case, this proceeding was not subjected to the usual pre-trial process; (b) as a constitutional case it may have been commenced and carried on as an action with corresponding assurance of sufficient evidential underpinning (see Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, Sopinka J., at p. 265); (c) as a constitutional case, it might have been referred directly to the Appeal Division, or (d) have found its way into the Federal Court of Canada; and (e) on a direct constitutional law application it would likely not have been dominated by the myriad of administrative law issues that are present on this appeal. [27] The burden is on the appellant to establish to the court’s satisfaction that a case is an appropriate one for the immediate consideration of a superior court. I am not satisfied that this appeal proceeding is the appropriate vehicle for adjudication of constitutional questions about the legality of the Act itself. Background facts: [28] From the evidence, I have drawn inferences and made some conclusions of fact. Joseph Tuplin’s paternity was never ascertained. The evidence strongly suggests that he was a Caucasian, or in the language of the record a white man, born in 1892. There is no evidence that he was a child of a male person of Indian blood. The local agents believed his father was James Tuplin of Black Point, P.E.I., hence the name Tuplin. [29] The infant Joseph was taken to Lennox Island when he was about three days old. He appears to have been adopted according to Mi’kmaq custom. He was given over to a Mi’kmaq woman, Mrs. Bernard, and she reared Joseph and brought him up as an Indian. Joseph Tuplin lived as a member of the Lennox Island Mi’kmaq community and he was always considered by that community to be a full member. He married Mi’kmaq women twice, in 1911 and 1934, with whom he raised two families totalling 10 children, including the appellant Graham. Joseph was actively involved in farming, fishing, and the community affairs of the Lennox Island First Nation. [30] In 1930, Joseph’s name was added onto the Lennox Island band register maintained by the local agent. His name was never included on the official Department register maintained in Ottawa. This difference was identified and

Page: 17 variously addressed by Department officials and agents from 1930 onward. The efforts of the local agents were directed toward confirming Joseph’s registration. The Department refused registration because Joseph did not qualify as an Indian within the statutory definition then in effect. [31] In 1949 the Department determined that Joseph was not, never was, and should not have been, officially on the register. Over the next two years Joseph sought reinstatement, without success. In 1951 the Indian Act received substantial revision pursuant to which a Lennox Island membership list was created, absent Joseph’s name. On February 13, 1951 the Minister officially denied Joseph status as an Indian. Joseph did not appeal under the 1951 Act. [32] In 1951, after having lived as described as an integrated part of the Mi’kmaq community on Lennox Island all his life, and having served Canada in both World Wars, Joseph, then about age 59, along with his family including the appellant Graham, was expelled from Lennox Island. Consideration of the issues: [33] The issues are variously restated by counsel throughout the pre-trial briefs and closing arguments. I surmise this varied treatment results from the mutation of this proceeding in the manner mentioned in paragraph 3 of this judgment. I have addressed each ground of appeal and remedy as stated by the appellant’s Second Amended Notice of Appeal. The appellant’s eight stated grounds of appeal relate to three matters: (i) the Registrar’s process; (ii) the 1951 Band List; and (iii) the status of custom adoption. The Notice also seeks a remedy for a separate matter: (iv) Charter relief, which I refer to as Ground No. 9. In addition, the appeal asserts throughout, although without stating a separate ground, the basic assertion that the Registrar made legal errors in her decision. I will address all the grounds under these four enumerated heads. !

Registrar’s process: Ground No. 3 - Mode of hearing before the Registrar - evidence of custom adoption:

[34] Mr. Tuplin submits that the Registrar breached (i) the principles of natural justice and (ii) the Act by denying his request for an oral hearing. In particular, he asserts that the Registrar prevented him from adducing evidence

Page: 18 that custom adoption is and has since time immemorial been practised consistently by the Mi’kmaq Nations with the consequence of membership in the tribe or Nation. [35] First of all, it is noteworthy that there is in this case no statutory requirement for an oral hearing; and procedural fairness requires an oral hearing only in some circumstances. Absent a statutory requirement the general starting point is that a tribunal may establish its own procedure. In the end, it really depends on the circumstances. For the present case, in my opinion the Registrar did not make an error by declining Mr. Tuplin’s request for an oral hearing. The evidence which Mr. Tuplin sought to adduce by an oral hearing was manifestly irrelevant, because the Act recognized custom adoption, the Registrar was following the Act, and challenges to the validity of the Registrar’s enabling legislation were beyond the bounds of her authority to entertain. See Jones and de Villars, Principles of Administrative Law (3rd ed.) at pp. 249255; and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at pp. 842-844. [36] This ground spawned the interlocutory motion for a hearing de novo, which was granted with the qualification that the trial judge would ultimately decide on the relevance and admissibility of particular evidence. [37] The appellant raised the question as to how evidence of Mi’kmaq elders is to be received by the Court. Evidence of oral history is admissible subject to relevance. Aboriginal rights, being sui generis, demand a unique approach to treatment of evidence which accords due weight to the perspective of aboriginal peoples. (See Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. [38] This Court heard very interesting, knowledgable, and credible evidence on the subject of custom adoption. [39] Dr. Margaret Johnson was born in Rocky Point, Prince Edward Island. She is the child of a mother who was, as she described it, a blue-eyed, freckled baby, given to the Indians, and then raised as an Indian. Dr. Johnson is a status Indian and a member of the Mi’kmaq Eskasoni (Cape Breton) First

Page: 19 Nation. [40] Professor Murdena Marshall was qualified to give expert evidence in Mi’kmaq custom adoption practices. Professor Marshall described from her research the Mi’kmaq traditional communal process since before European contact of caring for the child, and considering the child as sacred, because children are the people who will lead us in the future. She described the white person’s notion of the nucleus family, with discrete boundaries and ‘ownership’ of children, and the modern notions of legal adoption and children’s aid agencies, as being foreign to Mi’kmaq culture. When a child was given to a Mi’kmaq woman, she would take the child back to her home community and the child would be raised as a community member no different than any other children in the community. [41] Noel Knockwood is a status Indian. He is a member of the Mi’kmaq Nation and belongs to the Indian Brook First Nation. He was born on a reserve and now resides in Dartmouth, Nova Scotia. Mr. Knockwood is the Sergeant-at-Arms in the Nova Scotia House of Assembly. Within the Mi’kmaq community he is an elder. He is a life member of the Grand Council, which is the governing body of the Mi’kmaq Nation. Mr. Knockwood spoke of the importance of custom adoption to Mi’kmaq people—of each person requiring identity, culture, language, a way of life—and of the practice having been present since ancient times. Mr. Knockwood did not have specific knowledge about practices in Lennox Island. [42] Jack Sark is a status Indian. He was Chief of the Lennox Island First Nation from 1972 to 1998. Jack Sark knew Joseph Tuplin as a next-door neighbour. He confirmed Joseph’s harmonious and integrated relationship within the Lennox Island Mi’kmaq community and the community’s adverse reaction to the expulsion of Joseph and his family. Mr. Sark described the old pre-Act system of custom adoption in which prisoners of war became adopted into the community. [43] All of this oral evidence has probative value toward proof of the appellant’s contention that custom adoption has been practised continuously since before European contact. However, none of this evidence is necessary or relevant to the determinations to be made on this particular proceeding. The Registrar accepted, as does this Court, that Joseph Tuplin was adopted by

Page: 20 Mi’kmaq custom and on that basis he was entitled to registration under the Act. [44] In my opinion, the Registrar did not make an error by declining to hear oral evidence on the length, duration, and effects of custom adoption. The Registrar’s function was to give recognition for Joseph’s custom adoption in accordance with the Act as prescribed from time to time, which she did. The evidence proffered on behalf of the appellant in this appeal imbues this Court with respect and admiration for Mi’kmaq custom adoption; however, it does not demonstrate any error by the Registrar in the conduct of her review. !

Registrar’s process: Ground No. 7 - Appeal process under ss. 14.2(5) and (6):

[45] Mr. Tuplin submits that the appeal provisions of ss. 14.2(5) and/or (6) are contrary to law, in particular to the Constitution Act, 1982, ss. 35 and 52, because they confer upon the Registrar too much discretion and insufficient direction to fulfill her fiduciary duties to Native Peoples. [46] To the extent this assertion refers to the exercise of her mandate by the Registrar, I disagree. To the extent it refers to the validity of those provisions of the Act, which appears to be the main thrust of this ground, it attacks the validity of the enabling legislation rather than the administrative action and as such is beyond the purview of this appeal. My reasons previously stated at paragraphs 21 to 27 apply to this opinion. [47] The Registrar carried out her investigation as directed, and made her decision only with reference to the facts and material before her, all of which appears to have been in accordance with the registration provisions stipulated by the Act. In making this determination I am mindful and I have subscribed to the direction in Nowegijick v. The Queen, [1983] 1 S.C.R. 29 that statutory provisions relating to Natives are to be interpreted in a generous and liberal manner. [48] I have considered all the evidence. I reach the same conclusion as did the Registrar, i.e. that under the Act Mr. Tuplin qualifies for registration under s. 6(1)(f) and not under s. 6(1)(a). The Registrar did not address Joseph’s life situation, except regarding the provisions of the Act. The Act does not

Page: 21 authorize the Registrar to exercise discretion based on sympathy or a compelling life story. The Registrar looked at Joseph’s previous attempts, and his denial because of his unknown parentage. She specifically noted that the Act did not at the pertinent times past recognize custom adoption as a basis for entitlement. [49] Based on her review of the historical records, the Registrar reached the conclusion that Joseph was not a member of the Lennox Island Indian Band, and so was not entitled to registration under the 1951 Act. This finding of fact appears correct. Joseph was not a member on the register maintained under the legislation then in force. The evidence clearly suggests that Joseph was fully integrated into the Mi’kmaq community of Lennox Island; and from a Mi’kmaq perspective he was fully accepted. But, under the legislation then in force he was not a member or eligible to be registered as a member of the band. He did not satisfy the requirement of being a child of a male person of Indian blood reputed to belong to that band. [50] Under a different legislative provision the Registrar also concluded that she was not satisfied Joseph’s father was an Indian. Again, this finding of fact appears as correct. [51] The Registrar identified the main premise of the appellant’s protest to be whether or not a person of unknown parentage could have gained Indian status by virtue of being custom adopted in accordance with the practices of the Indian community. The Registrar proceeded to interpret the definition of “child” in s. 11(e) of the 1951 Act. The Registrar correctly found that the definition of child presupposed that the child was Indian. She intended to follow the Act. The Registrar said: In this regard, there is no statutory basis on which I could conclude that the reference to “child” prior to April 17, 1985 included a child adopted by Indian custom.

[52] I have reviewed the Registrar’s reasons for decision. I interpret the applicable provisions of the Indian Act as did the Registrar. The Registrar followed the Act throughout. Her reasons clearly state each step of her process. Her starting point is that under the Act prior to 1985 Joseph was never entitled to be registered. She identified the particular absence of statutory provisions to cover Joseph’s situation. She correctly found what the Act permitted.

Page: 22 [53] The essence of the appellant’s grievance is not so much that the Registrar did not follow the Act, but that the Act itself is deficient and unconstitutional. The appellant urged the Registrar and this Court to go beyond reviewing the Registrar’s function and to consider and declare upon the constitutional validity of those statutory provisions. !

Registrar’s process Ground No. 7 - ss. 14.2(5) and (6): Registrar’s fiduciary duty

[54] The appellant asserts the Registrar had a fiduciary duty toward him and Joseph Tuplin when making her decision under ss. 14.2(5) and (6), and that those provisions fail to provide the Registrar with sufficient directives to fulfill her fiduciary duty to Native Peoples. [55] Regarding the Registrar’s performance of her statutory duties, I do not share the view that the Registrar owed a fiduciary duty to the appellant in the consideration of his protest. The Registrar is an administrator with a corresponding public law duty of procedural fairness and good faith. There is no evidence of administrative law bad faith. The second challenge in this ground questions the validity of the enabling legislation. This is a constitutional challenge asserting that the legislation contravenes the Constitution Act, 1982, s. 35. That is a matter beyond the purview of this statutory appeal proceeding. My reasons previously stated at paragraphs 21 to 27 apply to this opinion.

[56] This case calls for a note of clarification regarding application of fiduciary duty to government relations in aboriginal matters. There is an element of fiduciary duty in government relations with aboriginal peoples, applicable to negotiations and like matters. However, its presence does not extend to the Registrar’s administration of an individual protest. In my understanding, the Supreme Court directives do not intend fiduciary duty to override, emasculate, or stand in conflict with the performance by an administrator such as the Registrar of a public law duty specifically prescribed by statute. This excerpt from the judgment of Dickson J. (later C.J.) in Guerin v. The Queen, [1984] 2 S.C.R. 335 at pp. 384-385 observes the presence and touches on the boundaries of fiduciary duty upon the Crown:

Page: 23 ...I do agree, however, that where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary’s strict standard of conduct. .... It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the “political trust” cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obligated to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is none the less in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.

This statement in Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (F.C.T.D.) expands upon the distinction for performance of administrative functions: In the absence of legislative or constitutional provisions to the contrary, the law of fiduciary duties, in the Aboriginal context, cannot be interpreted to place the Crown in the untenable position of having to forego its public law duties when such duties conflict with Indian interests (per Rothstein, J., paragraph 67).

See also Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159. [57] In this case, the Registrar’s duty was to consider and determine an individual’s claim in accordance with specific statutory rules or criteria.

Page: 24

!

Discretion

[58] The appellant asserts that the Act is deficient because it does not contain sufficient guidelines on the exercise of discretion by the Registrar. [59] This ground appears to be yet another challenge to the validity of the legislation, as contravening the Constitution Act, 1982 s. 35. As such it is beyond the purview of this statutory appeal. My reasons previously stated at paragraphs 21 to 27 apply to this opinion. [60] The appellant does not appear to directly challenge the Registrar’s exercise of discretion in the performance of her statutory function. However, should I have understated this ground, I note now that there is no evidence of abuse of discretion by the Registrar. [61] I would also readily note that the Registrar does not have a broad discretion under the Act. The Registrar had only the discretion to hear and decide according to specific statutory rules. I do not associate with the appellant’s view under law generally or with reference to aboriginal rights. The Registrar’s discretion does not offend the direction in R. v. Adams, [1996] 3 S.C.R. 101. Sections 14.2(5) and (6) are administrative, and innocuous, and neither countenance nor authorize violation of protected aboriginal rights. !

Constitutional validity of the Act

[62] In Ground No. 7 the appellant alleges that the Act violates the aboriginal rights provisions of the Constitution Act, 1982. This submission goes beyond the Registrar’s performance of her statutory duty—it challenges the constitutionality of the authorizing legislation. As such, for the reasons previously stated, it is beyond the purview of this statutory appeal proceeding.

Page: 25 The 1951 Band List: Ground No. 1 [63] The appellant alleges that the Minister wrongfully removed the name of his father Joseph from the Lennox Island Band List on February 13, 1951. This ground fails procedurally and substantively. [64] First of all, this is not a decision which this Court can review on this appeal. The appeal is out of time. It is beyond the three year period for appeals stipulated by the Act. [65] Secondly, in any event, the Minister did not remove Joseph Tuplin’s name from the Band List. Joseph’s name was never on the official list. When the Department officials discovered Joseph’s name on the list maintained by the local agent, the reason given that Joseph Tuplin would not qualify for band membership under the Act then in force was that he was a white man. [66] It is understandable that the appellant is aggrieved by his perception that the earlier Indian Act legislation and/or administration denied his father access to registration. However unfortunate or unfair the treatment of Joseph and his family may appear, this is not something which the Registrar had authority to rectify in 1996. As a statutory delegate, the Registrar had only authority to follow her enabling legislation, which she appears to have done. [67] This Court understands Mr. Tuplin’s expressed concern that there is a loss of opportunity for him and his children regarding the automatic right to membership in a band. He states that s. 6 of the current Act must be read in conjunction with s. 11, which limits the right of an “Indian” to have his or her name placed on a Band membership list. Conferring s. 6(1) status on Joseph ultimately confers the same status on Graham. An “Indian” with s. 6(1)(a) status is entitled under s. 11(a) to have his or her name entered on a Band List. One with a s. 6(1)(f) status is only entitled to have his or her name entered on a Band List of they were born after April 17, 1985 and both parents were entitled to have their names placed on a Band List. Graham is denied that right. In his submission, he is discriminated against. [68] Counsel for the Registrar responded that there is no denial of any right, that the appellant can now pass on his “Indianness”, and that based on the evidence the people of the Lennox Island First Nation would fully accept

Page: 26 Graham Tuplin within their Mi’kmaq community. [69] In any event, whether or not there is current consequence flowing from administrative action, the Registrar’s reasons show the administrative action to have been in accordance with the then-current legislation, and the Registrar does not have legal authority to grant a classification different than is permitted by the present legislation. The appellant’s grievance is that the legislation did not, and does not, comport with his aboriginal rights. That is a matter of concern beyond the scope of this statutory appeal. !

The status of custom adoption: Ground Nos. 2, 4, 5 and 6

[70] In four separate grounds, the appellant asserts that custom adoption has particular standing in law, is an entrenched and protected constitutional right, and that the Registrar erred in considering custom adoption. In Ground Nos. 4 and 5 he submits that the right is entrenched and protected (i) by the Constitution Act, 1982, s. 35; and (ii) by court decisions and statute prior to 1982. In Ground Nos. 2 and 6 he submits that the Registrar erred in deciding custom adoption only became a basis for entitlement to registration in 1985; and the Registrar’s interpretation and the Department policy infringe the aboriginal right of custom adoption. [71] These grounds promote the main premise of Graham Tuplin’s protest to the Registrar and of this appeal. His presentation has imbued this Court with respectful appreciation for aboriginal custom adoption. However, this ground cannot be entertained within this statutory appeal proceeding. The essence of the appellant’s challenge is that the Act does not comply with constitutionally recognized aboriginal rights recognized. That is a matter beyond the ambit of this appeal. My reasons previously stated at paragraphs 21 to 27 apply to this opinion. [72] I will address the Registrar’s conduct under the Act regarding the appellant’s protest. The Act recognizes custom adoption. The Act does not extinguish the right of custom adoption. In her decision, the Registrar recognized and accepted that Joseph Tuplin was adopted in accordance with Mi’kmaq custom. The Registrar’s decision of the Registrar is in accordance with the practice of custom adoption, and not contrary to that practice.

Page: 27 [73] The practice of Indian custom adoption has long been recognized by the courts. Custom adoption is an outstanding characteristic of aboriginal culture. The status conferred by aboriginal customary adoption is recognized by the courts on application of common law principles and statutory provisions: see Casimel v. Insurance Corp. of British Columbia (1994), 106 D.L.R. (4th) 720 (B.C.C.A.), which adopts many precedents from the N.W.T. Territorial Court. Re Tagornak Adoption Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C.) is an instructive case. In that case the Court was asked to amend the necessary records to show that a valid adoption had taken place. Interestingly, the father adopting by native custom was in fact non-native, though he was accepted into the Inuit community. The Court reviewed the judicial acceptance of custom adoption, and then issued a declaration that adoption by native custom had indeed taken place. In doing so, the Court specifically acknowledged itself bound by s. 35(1) of the Constitution Act, 1982. [74] For the reasons stated, the declaration sought by Mr. Tuplin that custom adoption is an aboriginal right guaranteed by s. 35 is unnecessary for determination of the present statutory appeal, and is beyond its scope. That said, one observation about the Act is noteworthy here. [75] Prior to 1985, the Act did not recognize custom adoption. Joseph Tuplin could not have been registered under the Act prior to the 1985 amendments. Those amendments intended to bring the Act into compliance with the Charter and the Constitution Act, 1982. Whether it accomplished that goal is beyond the purview of this appeal. Respecting the issues for consideration on this appeal, the Registrar complied with the new direction of the Act, and properly revised the register regarding Joseph Tuplin based on custom adoption. Charter remedy: Ground No. 9 [76] In paragraph 13 of his Second Amended Notice of Appeal, the appellant submits: “As Mr. Tuplin’s rights are infringed, he is entitled to a remedy”. He asserts that the Registrar’s action pursuant to the Department’s impugned policy entitles him to a remedy under ss. 15(1) and 24(1) of the Charter. [77] In this request for relief, the appellant asks this Court to declare that the Act should do something different than it does. Such relief does not flow from this statutory appeal proceeding. My reasons previously stated at paragraphs

Page: 28 21 to 27 apply to this opinion. It is also noteworthy that this request for relief is a Charter challenge that is not stated within any ground of appeal. [78] In any event, whatever one’s view of the now repealed Indian Acts of the past, of 1896, 1926, 1951, the Registrar made the impugned decision under the 1985 Act currently in force. The Charter operates only prospectively. See Hogg, Constitutional Law in Canada (2nd ed.) at p. 665. [79] The appellant submits this case is “on all fours” with Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358. While the Registrar’s denial of Joseph Tuplin’s status took place in 1996, after the Charter came into effect, Mr. Tuplin submits denial was based in part on the prohibited ground of “sex” under s. 15. The Registrar claimed to have no proof Joseph was the child of a male “Indian” parent. The appellant submits she had no proof either that Joseph was not the child of a male Indian parent, that the Registrar just chose the negative route, and based her decision on the analogous ground of “illegitimacy”. The appellant submits the Registrar went out of her way to deny status. [80] It seems unnecessary to engage in a Benner analysis regarding the Registrar’s action. The Registrar was not incorrect in making a finding of fact that Joseph’s father was not an Indian. There was no evidence that he was an Indian, and there was evidence that he was not. Regarding the validity of the law, i.e. the Act, (i) this is a constitutional challenge, and beyond the purview of the statutory appeal; (ii) in any event, the post-Charter legislation does recognize custom adoption and permit registration on that basis; and (iii) the appellant seeks relief for the Charter rights of anther person, i.e. Joseph, which would not be an eligible claim. Disposition: [81] For all the foregoing reasons, the appellant’s statutory appeal of the decision of the Registrar is dismissed. Costs: [82]

The Registrar made a summary request for costs at the conclusion of the

Page: 29 hearing. Should the Registrar wish to pursue costs, then in all the circumstances, I would wish to receive further submissions from both parties reflecting upon this decision and raising all other pertinent circumstances. The Court recognizes that in the usual course costs follow the result; and that prior to the hearing the Registrar asked for attribution against the appellant regarding two procedures which added to costs, namely: (i) amendment to his pleadings just before trial; and (ii) extensive irrelevant testimony from witnesses on custom adoption. In any event, I seek counsels’ input on whether the nature of the proceeding and the appellant’s particular circumstances suggest that this is a case for special considerations or for some accommodation.

November 7, 2001

_________________________ Justice David H. Jenkins