Date: 20030611
Citation: 2003 FCA 265
Docket: A-39-02
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CORAM: |
DESJARDINS J.A. |
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NADON J.A. |
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SEXTON J.A. |
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BETWEEN: |
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THE REGISTRAR OF THE INDIAN REGISTER, |
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INDIAN AND NORTHERN AFFAIRS CANADA |
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AND THE ATTORNEY GENERAL OF CANADA |
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Appellants |
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and |
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JOHN JEREMIAH SINCLAIR |
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Respondent |
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Docket: A-239-02 |
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BETWEEN: |
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JOHN JEREMIAH SINCLAIR |
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Appellant |
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and |
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THE REGISTRAR OF THE INDIAN REGISTER, INDIAN AND NORTHERN AFFAIRS CANADA AND THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE COURT
DESJARDINS J.A.
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[1] We are of the view that this reference was not properly brought before the Trial Division.
The questions referred by the (Acting) Registrar of the Indian Register were as follows:
1. Would I err in law in deciding that, under the provisions of the Indian Act, the Respondent is not entitled to have his name entered on the Indian Register and assigned an Indian Registry number under the said Act?
2. In the event the first question is answered in the negative, would I err in law in deleting the Respondent's name and Indian registry number from the Indian Register pursuant to section 5(3) of the Indian Act, prior to the Respondent exhausting his protest and appeals against my decision under sections 14.2 and 14.3 of the Indian Act, on the basis that the deletion of his name and registry number would, (but for the existence of an interlocutory injunction issued on the 16" of February, 1999 by the Associate Chief Justice of the Federal Court of Canada restraining me from deleting the Respondent's name pending the final disposition of the within proceeding in the Trial Division), cause the Respondent to lose access to the benefits available to him as a Registered Indian residing in the Province of Alberta, pending the determination of his appeals.
[2] Both questions require clarification on the status of Isabelle Courteoreille prior to the signature of Treaty No. 8.
[3] The facts of this case are highly disputed and cannot be entertained by the Trial Division, considering that eventually an appeal lies from the decision of the Registrar of the Indian Register (after protest) to the provincial courts as provided in subsection 14.3(5) of the Indian Act (R.S.C. 1985 c. I-5).
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[4] The jurisdiction of the Trial Division, under a reference by a federal board, commission
or other tribunal, is stated in subsection 18.3(1) of the Federal Court Act and is limited to "any
question or issue of law, of jurisdiction or of practice and procedure". That subsection indeed
provides:
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18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Trial Division for hearing and determination. (our emphasis)
18.3 (1) Les offices fédéraux peuvent, à tout stade de leurs procédures, renvoyer devant la Section de première instance pour audition et jugement toute question de droit, de compétence ou de pratique et procédure. (nous soulignons)
[5] This jurisdiction does not extend to questions which involve disputed facts raised in this
reference (Air Canada, Re (1999), 241 N.R. 157 (F.C.A.); Re: Immigration Act, (1991), 137 N.R. 64 (F.C.A.); Martin Service Station Ltd. v. MMR [1977] 2 S.C.R. 996).
[6] The Trial Division lacked jurisdiction to hear the reference as brought by the Registrar of the Indian Register. We therefore cannot hear this matter.
[7] The appeals, the cross-appeal, the decisions of the Trial Division and the reference will be quashed.
[8] There will be no costs in the circumstances.
A. Desjardins Judge
FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-239-02
STYLE OF CAUSE: JOHN JEREMIAH SINCLAIR v. THE REGISTRAR OF THE
INDIAN REGISTER ET AL
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED APRIL 11, 2001, TRIAL DIVISION FILE NO. T-141-99
DOCKET: A-39-02
STYLE OF CAUSE: THE REGISTRAR OF THE INDIAN REGISTER ET AL v. JOHN JEREMIAH SINCLAIR
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED DECEMBER 20, 2001, TRIAL DIVISION FILE NO. T-141-99
Mr. John B. Edmond FOR THE REGISTRAR OF THE INDIAN REGISTER OF THE INDIAN
Ottawa Ontario AND NORTHERN AFFAIRS CANADA
AND THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JUNE 11, 2003
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A., NADON J.A., SEXTON J.A. DELIVERED FROM THE BENCH BY: DESJARDINS J.A.
APPEARANCES:
Mr. Marc LeClair FOR JOHN JEREMIAH SINCLAIR
Ms. Michelle LeClair-Harding
Mr. John B. Edmond FOR THE REGISTRAR OF THE INDIAN REGISTER ,
THE INDIAN AND NORTHERN AFFAIRS CANADA
AND THE ATTORNEY GENERAL OF CANADA
SOLICITORS OF RECORD:
Mr. Marc LeClair FOR JOHN JEREMIAH SINCLAIR
Chelsea, Quebec FOR JOHN JEREMIAH SINCLAIR