Etches et al. v. Her Majesty the Queen as represented by the Registrar of the Department of Indian Affairs and Northern Development et al.

[Indexed as: Etches v. Canada (Department of Indian Affairs and Northern Development (Registrar))]

94 O.R. (3d) 161

Court of Appeal for Ontario,

Lang, Rouleau and Watt JJ.A.

February 27, 2009

Aboriginal peoples -- Registration -- Respondent being enfranchised by Order-in-Council -- Respondent subsequently re- registered pursuant to s. 6(1)(d) of Indian Act (which allows for registration of those who had previously been enfranchised voluntarily) -- Respondent subsequently seeking registration pursuant to s. 6(1)(a) of Act and arguing that enfranchisement was obtained by fraud -- Registrar of Indian Register not having authority to look behind valid Order-in- Council -- Superior Court having no greater power than Registrar on appeal from Registrar's decision -- Indian Act, R.S.C. 1985, c. I-5, ss. 6(1)(a), 6(1)(d).

The respondent F was enfranchised by an Order-in-Council pursuant to the Indian Act in 1952. After the Indian Act was amended to allow those who had previously lost their Indian status to re-register, F applied to the Registrar of the Indian Register for re-registration and was registered pursuant to s. 6(1)(d) of the Indian Act, R.S.C. 1985, c. I-5, which allows for the registration of those who had previously been enfranchised voluntarily. Because F re-registered after having been enfranchised, her daughter was required to register pursuant to s. 6(2) of the Act, and the descendants of those registered under s. 6(2) are not entitled to registration. Had F been registered pursuant to s. 6(1)(a) of the Act, then (subject to certain conditions) her descendents would also be entitled to registration. F and her daughter and granddaughter appealed to the Registrar, seeking registration pursuant to s. 6(1)(a). F argued that she had not been enfranchised voluntarily as the enfranchisement was obtained by fraud. The Registrar refused, and the respondents appealed to the Superior Court, seeking to have F registered as if she had never been enfranchised, i.e., registered under s. 6(1)(a). The appeal was allowed. The Crown appealed.

Held, the appeal should be allowed.

The Superior Court erred in finding that the Registrar could look behind a valid Order-in-Council. The Order-in-Council enfranchising F had never been revoked. An Order-in-Council is presumed to be valid until it is set aside or otherwise found to be invalid by a court of competent jurisdiction. Under s. 2(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, the Governor-in-Council, in issuing orders pursuant to the Indian Act, is considered to be a "federal board, commission or other tribunal". As a result, the Federal Court has exclusive jurisdiction to review the lawfulness of such orders. Neither the Registrar nor a provincial superior court has the authority to set aside such orders. Nothing in the Indian Act vests the Registrar with authority to question or challenge the legality or the propriety of a subsisting Order-in-Council. The Superior Court, sitting on an appeal from the Registrar's decision, has no greater authority than the Registrar.

The fact that F might be able to prove that the Order-in- Council was obtained by fraud did not create an "entitlement" to registration under s. 6(1)(a). Until the [page162] Order-in-Council was set aside, F was not a person "entitled to be registered immediately prior to April 17, 1985".

APPEAL from the order of Forestall J. (2008), 2008 CanLII 8610 (ON SC), 89 O.R. (3d) 599, [2008] O.J. No. 859 (S.C.J.) allowing an appeal from the decision of the Registrar of Indian Register.

Cases referred to Innu Takuaikan Uashat mak Mani-Utenam v. Noël, 2004 CanLII 91259 (QC CA), [2004] Q.J. No. 7341, [2004] R.J.Q. 2124, J.E. 2004-1553, [2004] 4 C.N.L.R. 66 (C.A.); Callihoo v. Canada (Minister of Indian Affairs and Northern Development), [2008] F.C.J. No. 1783, 2008 FCA 368, affg [2004] F.C.J. No. 1596, 2004 FC 1312, [2005] 1 C.N.L.R. 1, 134 A.C.W.S. (3d) 353 (T.D.); Telezone Inc. v. Canada (Attorney General) (2008), 94 O.R.(3d) 19, [2008] O.J. No. 5291, 2008 ONCA 892, 245 O.A.C. 91, distd Other cases referred to Baptiste v. Canada (Registrar of Indian and Northern Affairs), [2000] S.J. No. 384, 2000 SKQB 296, 195 Sask. R. 125, [2001] 2 C.N.L.R. 19, 97 A.C.W.S. (3d) 818; Canada (Indian and Northern Affairs) v. Sinclair, [2001] F.C.J. No. 553, 2001 FCT 319, 203 F.T.R. 275, 200 D.L.R. (4th) 347, [2001] 4 C.N.L.R. 11, 105 A.C.W.S. (3d) 187 (T.D.); Canada (Registrar, Indian Register, Indian and Northern Affairs) v. Sinclair, [2003] F.C.J. No. 1967, 2003 FCA 265, [2004] 3 F.C.R. 236, 243 D.L.R. (4th) 675, 320 N.R. 182, [2004] 2 C.N.L.R. 19, 131 A.C.W.S. (3d) 1; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65; F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry, [1975] A.C. 295, [1974] 2 All E.R. 1128, [1974] 3 W.L.R. 104 (H.L.); Gladstone Petroleum Ltd. v. Husky Oil (Alberta) Ltd., 1982 CanLII 2649 (SK CA), [1982] S.J. No. 1057, 140 D.L.R. (3d) 701, [1982] 6 W.W.R. 577, 18 Sask. R. 273, 16 A.C.W.S. (2d) 160 (C.A.) [Leave to appeal to S.C.C. refused [1982] 2 S.C.R. vii, [1983] 1 W.W.R. li]; Smith v. East Elloe Rural District Council, [1956] A.C. 736, [1956] 1 All E.R. 855, [1956] 2 W.L.R. 888, 6 P. & C.R. 102, 54 L.G.R. 233, 120 J.P. 263, 167 E.G. 328, [1956] E.G.D. 328 (H.L.) Statutes referred to Civil Code of Québec, S.Q. 1991, c. 64, art. 545 Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, s. 96 Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2 [as am.], (1) [as am.], 18 [as am.], 18.1 Indian Act, R.S.C. 1985, c. I-5, ss. 4(2), (2.1), (3), 6, (1), (a), (d), (2), 14.2(5), (6) Indian Act, S.C. 1951, c. 29 [rep.], s. 12(1)(a)(iii) Authorities referred to Canada, Report of the Royal Commission on Aboriginal Peoples: Looking Forward; Looking Back, vol. 1 (Ottawa: The Commission, 1996) Woolf, Rt. Hon. Lord, et al., De Smith's Judicial Review, 6th ed. (London: Sweet & Maxwell, 2007)

Gary Penner and Anna Yarmon, for appellant. Kimberly R. Murray, for respondents. [page163]

The judgment of the court was delivered by

ROULEAU J.A.: -- I. Overview

[1] Prior to the 1985 amendments to the Indian Act, R.S.C. 1985, c. I-5, it was possible to surrender one's legal status as an Indian and one's membership in a Band in exchange for Canadian citizenship and the right to hold land in fee simple through "enfranchisement". Once a person had been enfranchised, their descendants also lost their right to Indian status. The purpose of enfranchisement was to facilitate the federal government's attempts to assimilate Aboriginal peoples into the mainstream population. The Royal Commission on Aboriginal Peoples described enfranchisement as being amongst the most "oppressive amendments and practices" in the history of the Indian Act: see Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol. 1 (Ottawa: The Commission, 1996), at pp. 282 and 286. The federal government has attempted to redress the effects of enfranchisement; however, as explained below, in some instances, the remedy may be seen as incomplete.

[2] In 1952, Laura Flood was ostensibly voluntarily enfranchised by an Order-in-Council. Her position, however, is that the enfranchisement was obtained by fraud. In 1985, the Indian Act was amended to allow those who had previously lost their Indian status for a variety of reasons to re-register. Laura Flood applied to the Registrar of the Indian Register, and was registered pursuant to s. 6(1)(d) of the Indian Act, which allows for the registration of those who had been previously enfranchised voluntarily. Because she re-registered after having been enfranchised, her daughter, Dorothy Flood, was required to register pursuant to s. 6(2). Since the descendants of those registered under s. 6(2) are not entitled to registration, Dorothy Flood's daughter, Angel Larkman, was not entitled to be registered as an Indian. Laura Flood, Dorothy Flood and Angel Larkman (collectively, the "respondents") appealed to the Registrar, seeking registration pursuant to s. 6(1)(a). The Registrar refused and the respondents appealed to the Superior Court, seeking to have Laura Flood registered as if she had never been enfranchised. This would result in her registration being made pursuant to s. 6(1)(a), which would, in turn, if certain conditions were met, secure entitlement to registration for her descendants as well. The Superior Court judge allowed the appeal and the Crown appeals to this court. [page164]

[3] The central issue on this appeal is whether, in carrying out the duties prescribed by statute, the Registrar has the authority or the discretion to look behind an Order-in-Council enfranchising someone and to rule on its validity. III. Facts (1) Enfranchisement of Laura Flood

[4] Laura Flood (née Batisse) was born on March 1, 1926, in Matachewan, Ontario. She is a member of the Matachewan First Nation and was registered there as "Laura Batisse" in accordance with the Indian Act, S.C. 1951, c. 29.

[5] A request for Laura Batisse's enfranchisement was granted by Order-in-Council P.C. 4582 dated December 4, 1952 pursuant to the Indian Act. At that time, a person who was enfranchised was entitled to one per capita share of the capital and revenue moneys held on behalf of the Band, and an amount equal to the amount that the person would have received during the next 20 years under the applicable treaty. In Laura Flood's case, this amounted to $82.23. Laura Flood swore that she never received the $82.23 that was owed to her. As a result of enfranchisement, Laura Flood lost her interest in the reserve land and lost all legislative benefits that flow to Indians, such as the right to reside on the reserve, the right to a tax exemption and the right to vote in Band elections. (2) 1985 amendments to the Indian Act

[6] In 1985, the federal government introduced Bill C-31 in order to eliminate the assimilation policies embodied in the Indian Act; it did so by removing the voluntary and involuntary enfranchisement provisions. In addition, the amendments allowed for the re-registering of those who had been enfranchised. Sections 6(1) and 6(2) specify who is entitled to be registered as an Indian:

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; (b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; (c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, (i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or (ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or (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.

(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).

6(1) Sous réserve de l'article 7, une personne a le droit d'être inscrite si elle remplit une des conditions suivantes : a) elle était inscrite ou avait le droit de l'être le 16 avril 1985; [page165] b) elle est membre d'un groupe de personnes déclaré par le gouverneur en conseil après le 16 avril 1985 être une bande pour l'application de la présente loi; c) son nom a été omis ou retranché du registre des Indiens ou, avant le 4 septembre 1951, d'une liste de bande, en vertu du sous-alinéa 12(1)a)(iv), de l'alinéa 12(1)b) ou du paragraphe 12(2) ou en vertu du sous-alinéa 12(1)a)(iii) conformément à une ordonnance prise en vertu du paragraphe 109(2), dans leur version antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui d'une de ces dispositions; d) son nom a été omis ou retranché du registre des Indiens ou, avant le 4 septembre 1951, d'une liste de bande, en vertu du sous-alinéa 12(1)a)(iii) conformément à une ordonnance prise en vertu du paragraphe 109(1), dans leur version antérieure au 17 avril 1985, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui d'une de ces dispositions; e) son nom a été omis ou retranché du registre des Indiens ou, avant le 4 septembre 1951, d'une liste de bande : [page166] (i) soit en vertu de l'article 13, dans sa version antérieure au 4 septembre 1951, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui de cet article, (ii) soit en vertu de l'article 111, dans sa version antérieure au 1er juillet 1920, ou en vertu de toute disposition antérieure de la présente loi portant sur le même sujet que celui de cet article; f) ses parents ont tous deux le droit d'être inscrits en vertu du présent article ou, s'ils sont décédés, avaient ce droit à la date de leur décès.

(2) Sous réserve de l'article 7, une personne a le droit d'être inscrite si l'un de ses parents a le droit d'être inscrit en vertu du paragraphe (1) ou, s'il est décédé, avait ce droit à la date de son décès.

[7] If a person had been voluntarily enfranchised, he or she would not have been "entitled to be registered" prior to the 1985 amendments to the Indian Act. That person would not, therefore, be registered pursuant to s. 6(1)(a). Instead, she would be registered pursuant to s. 6(1)(d). The difference is significant because the children of a woman registered pursuant to s. 6(1)(a), who are born prior to April 17, 1985, who are illegitimate or whose father was an Indian, would themselves be "entitled to be registered" prior to the 1985 amendments to the Act. As a result, these children would also be entitled to registration pursuant to s. 6(1)(a). In contrast, the children of women who are registered pursuant to s. 6(1)(d), and who do not meet the criteria of any of [page167] the subsections under s. 6(1), can only be registered pursuant to s. 6(2). A person whose parent is registered pursuant to s. 6(2) is not entitled to be registered under the Indian Act (unless of course entitlement to registration flows to this person from the other parent). In this way, the statutory provisions aimed at redressing the previous enfranchisement regime appear to treat descendants of an enfranchised person differently than the descendants of a person who was never enfranchised. (3) Registration

[8] Laura Flood applied to be added to the Indian register on September 12, 1985, and was informed by the Registrar on March 25, 1987 that she had been registered in accordance with s. 6(1)(d). When Dorothy Flood, Laura Flood's daughter, applied to be added to the Indian register along with her children, she was advised by the Registrar that she was registered under s. 6(2), but that her children, including Angel Larkman, were not entitled to registration.

[9] Beginning on April 7, 1995, the respondents, and Aboriginal Legal Services of Toronto ("ALST") on behalf of the respondents, wrote to the Registrar on multiple occasions requesting that Laura and Dorothy Flood be registered pursuant to s. 6(1)(a). They argued that Laura Flood's enfranchisement was invalid as it had been obtained by fraud. The Registrar responded that there was no reason to revisit the earlier decisions. On November 26, 1996, ALST again wrote to the Registrar asking the Registrar to investigate the validity of Laura Flood's enfranchisement. The Registrar agreed to do so and by means of a letter dated August 18, 1997, conveyed her conclusion that Laura Flood's enfranchisement was valid.

[10] On August 17, 1998, a notice of protest of the Registrar's decision was filed on behalf of Laura Flood and Angel Larkman. The various affidavits filed by Laura Flood explained, among other things, that: (a) in 1952, the only words that she was able to read or write were her first and last name; (b) she did not draft any letters in 1952 addressed to J. Marleau, Indian agent for Sturgeon Falls, purporting to request enfranchisement, nor did she request that they be drafted on her behalf; (c) the 1952 correspondence and application contain numerous errors and anomalies, such as the statement that Laura [page168] Flood lived away from the reserve for 13 years rather than the correct figure of seven, and the omission of the names of her two sons; and (d) it is unlikely that she would instruct the Indian agent to proceed with her application despite the fact that by doing so she would lose her timber royalties when she did not know what a timber royalty was.

[11] Although she acknowledges that the signature on the application for enfranchisement is hers, Laura Flood states that she did not know what she was signing. According to Laura Flood, Chief Alfred Batisse and the Indian agent requested that she sign the document in 1952. She trusted her Chief and always obeyed the instructions of the Indian agent. She did not know nor was she told that she would be giving up her Indian status by signing the document. She states that had she known, she would never have signed it.

[12] By letter dated July 21, 2000, the Registrar responded to the notice of protest confirming her earlier decision declaring that the enfranchisement was valid and declining to alter the registration status of the respondents. (4) The decision of the Superior Court

[13] On appeal, the Superior Court judge found that the Registrar had engaged in speculation and had made findings based on a complete absence of evidence. Further, the Registrar erred by imposing on Laura Flood the burden of proving each individual piece of evidence rather than addressing the burden of proof on the basis of the evidence as a whole, and by imposing a requirement for corroboration where none exists at law. The Superior Court judge then concluded that Laura Flood had demonstrated that the enfranchisement was invalid.

[14] The Superior Court judge also considered the issue of jurisdiction. The Crown's position was that in issuing the Order-in-Council enfranchising Laura Flood, the Governor-in- Council acted as a federal board, commission or other tribunal as defined in s. 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Pursuant to s. 18 of the Federal Courts Act, the Federal Court has the exclusive jurisdiction to review the validity of the Order-in-Council. As a result, neither the Registrar nor the Superior Court could look behind the Order- in-Council.

[15] The Superior Court judge disagreed with the Crown's position and found that the Indian Act conferred jurisdiction on the Registrar to determine whether an individual is entitled to registration [page169] as well as the provision under which the individual is entitled to be registered. She concluded that the Registrar's jurisdiction is not circumscribed by prior enfranchisement decisions of the Governor-in-Council except in limited circumstances not applicable in the present case. Accordingly, the Superior Court judge allowed the appeal and ordered that Laura Flood, Dorothy Flood and Angel Larkman each be registered pursuant to s. 6(1)(a) of the Indian Act. III. Issues

[16] On appeal, the Crown submits that the Superior Court judge erred as follows: (a) in holding that the Registrar had the jurisdiction to register Laura Flood pursuant to s. 6(1)(a) despite the existence of a valid Order-in-Council declaring Laura Flood enfranchised; (b) in holding that the Registrar failed to apply the appropriate burden of proof to the totality of the evidence and in finding that the Registrar was clearly wrong; and (c) in concluding that the respondents are entitled to registration under s. 6(1)(a) as the Registrar failed to make the essential findings of fact necessary to support such a conclusion.

[17] For the reasons that follow, I have concluded that the Superior Court judge erred in finding that the Registrar could look behind a valid Order-in-Council. As a result, I would allow the appeal on the first ground and need not address the second and third. IV. Discussion

[18] The respondents maintain that the Superior Court judge was correct in concluding that each of the respondents should be registered pursuant to s. 6(1)(a). In support of that position, the respondents' principal submissions were as follows: (1) The Registrar has the discretion to look behind an Order- in-Council. Support for this proposition can be found in the Quebec Court of Appeal's decision in Innu Takuaikan Uashat mak Mani-Utenam v. Noël, 2004 CanLII 91259 (QC CA), [2004] Q.J. No. 7341, [2004] 4 C.N.L.R. 66 (C.A.); (2) An "entitlement" to registration under s. 6(1)(a) can be found to exist despite the Order-in-Council if the respondents can show that the Order-in-Council was obtained by fraud. Sections 4(2) and 4(2.1) of the Indian Act lend support to this conclusion; and [page170] (3) As a result of the Federal Court's decision in Callihoo v. Canada (Minister of Indian Affairs and Northern Development), 2004 FC 1312, [2004] F.C.J. No. 1596, [2005] 1 C.N.L.R. 1 (T.D.), all questions relating to registration under the Indian Act are to be heard in the provincial superior courts and not in Federal Court. It is the Superior Court, therefore, that has the jurisdiction to deem the Order-in- Council to be invalid.

[19] I will deal with each of these submissions in turn. (1) Does the Registrar have discretion to look behind an Order-in-Council? (a) The Order-in-Council

[20] The Order-in-Council enfranchising Laura Flood has never been revoked. An Order-in-Council is presumed to be valid until it is set aside or otherwise found to be invalid by a court of competent jurisdiction: see The Rt. Hon. Lord Woolf, Jeffrey Jowell and Andrew Le Sueur, De Smith's Judicial Review, 6th ed. (London: Sweet & Maxwell, 2007), at para. 4-061. Until it is invalidated, the order remains legally effective: see Gladstone Petroleum Ltd. v. Husky Oil (Alberta) Ltd., 1982 CanLII 2649 (SK CA), [1982] S.J. No. 1057, 140 D.L.R. (3d) 701 (C.A.), at pp. 723-25 D.L.R., leave to appeal to S.C.C. refused [1982] 2 S.C.R. vii, [1983] 1 W.W.R. li; F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry, [1975] A.C. 295, [1974] 2 All E.R. 1128 (H.L.), at pp. 319-20 A.C.; and Smith v. East Elloe Rural District Council, [1956] A.C. 736, [1956] 1 All E.R. 855 (H.L.), at pp. 769-70 A.C.

[21] Under s. 2(1) of the Federal Courts Act, the Governor- in-Council, in issuing orders pursuant to the Indian Act, is considered to be a "federal board, commission or other tribunal". As a result, ss. 18 and 18.1 of the Federal Courts Act provide that the Federal Court has the exclusive jurisdiction to review the lawfulness of such orders and to order judicial review remedies in respect of these. Neither the Registrar nor a provincial superior court (or any other court enumerated in s. 96 of the Constitution Act, 1867) has the authority to set aside such orders and no application has been brought before the Federal Court seeking such relief.

[22] The Registrar, therefore, is bound by a valid and subsisting Order-in-Council enfranchising Laura Flood. (b) The impact of the 1985 amendments to the Indian Act

[23] Section 6 of the Indian Act, as amended in 1985, creates a comprehensive set of categories of persons having the right to registration. Prior to the 1985 amendments, an enfranchised [page171] person did not have the right to be registered as an Indian. The 1985 amendments now allow a person who has been voluntarily or involuntarily enfranchised to regain their status as an Indian and to be registered. Registration of involuntarily enfranchised persons is pursuant to s. 6(1)(c) and registration of voluntarily enfranchised persons is pursuant to s. 6(1)(d). As explained earlier, registration pursuant to those subsections does not put the person into the same position as if the person had never been enfranchised. As these provisions are not being challenged in this proceeding, the Registrar and the court are to apply the legislative provisions, whether or not those provisions are viewed as fair.

[24] Section 6 tasks the Registrar with the responsibility to assess all applications or registrations and to process them in accordance with the provisions set out therein. The Registrar's authority is set out in s. 5(3). The Registrar is to "add to or delete from the Indian Register 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 the Indian Register" (emphasis added).

[25] As set out in Canada (Indian and Northern Affairs) v. Sinclair, 2001 FCT 319, [2001] F.C.J. No. 553, 200 D.L.R. (4th) 347 (T.D.), at para. 76, the Registrar, in discharging the duties and functions under the Act,

. . . does not exercise any discretion in the sense of having been given a choice of options within a statutorily imposed set of boundaries (see, Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at 852 [para. 52]). Rather, the Registrar's principal task is to find the facts, based on the record, relevant to entitlement to registration and then apply those facts to the law. Counsel for the applicants aptly described the Registrar as an historian looking to see if there was evidence of entitlement to registration. [See Note 1 below]

[26] The Registrar is not any given any discretion and the exercise of power must be in accordance with the statutory regime created by Parliament: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at para. 29, and Baptiste v. Canada (Registrar of Indian and Northern Affairs), 2000 SKQB 296, [2000] S.J. No. 384, [2001] 2 C.N.L.R. 19 (Q.B.), at para. 11. (c) Laura Flood's application for registration

[27] When Laura Flood presented her application for registration, the Registrar correctly determined that there was a valid [page172] existing Order-in-Council enfranchising Laura Flood. Applying the Act, the only basis upon which Laura Flood was "entitled" to be registered was, as provided in s. 6(1)(d), that her name had been "omitted or deleted from the Indian Register . . . under subparagraph 12(1)(a)(iii) pursuant to an [enfranchisement] order made under subsection 109(1), as each provision read immediately prior to April 17, 1985". The Registrar could not ignore the existence of the Order-in- Council nor the fact that Laura Flood's name had been previously deleted from the Register pursuant to that Order-in- Council. Registration was not available under any other subsection of s. 6.

[28] Nothing in the Act vests the Registrar with authority to look behind an Order-in-Council. The Registrar cannot question or challenge the legality or the propriety of a subsisting Order-in-Council. The Registrar administers the Act and, in essence, the statute directs the Registrar to register someone in Laura Flood's circumstances pursuant to s. 6(1)(d). (d) The Innu decision

[29] The respondents rely on Innu Takuaikan Uashat mak Mani- Utenam v. Noël, supra, for the proposition that the Registrar was entitled to look behind an Order-in-Council when determining entitlement to registration under the Act. In Innu, the Quebec Court of Appeal held that the Registrar, when determining entitlement to registration, erred in refusing to look beyond an adoption order that had been made by the Court of Quebec. The Quebec Court of Appeal reasoned that the Registrar could not simply accept the adoption order as being determinative of the issue of whether the applicant met the definition of child in the Indian Act, but rather was obligated to investigate, receive evidence, evaluate it and decide the issue.

[30] I do not view the Innu decision as being of assistance to the respondents. I say so for two reasons. First, in Innu, the Registrar was presented with an adoption order made when the applicant was 37 years old. Under Quebec law, it was not always necessary for an adult adoptee seeking an adoption order to show that an in loco parentis situation had existed while the adoptee was a minor. [See Note 2 below] Although the court granting the adoption order in [page173] Innu accepted the applicant's evidence that an in loco parentis situation existed when the applicant was a minor, the Band challenging the applicant's eligibility to be registered on the Band list was not a party to the adoption proceedings. The Band relied on the Indian and Northern Affairs Canada ("INAC") policy which stipulates that in order to acquire entitlement to Indian status through adoption, individuals who were adopted as adults must demonstrate that they were adopted in all practical senses of the term while still a minor. The applicant in Innu provided, in addition to his adoption order, sworn statements seeking to establish that he had been raised by a status Indian.

[31] The Band Council protested the addition of the applicant's name to its Band list. It claimed that the adoption order had been obtained on the basis of false statements and provided affidavit evidence stating that the applicant had not been brought up by a status Indian. The Registrar held that it was beyond her jurisdiction to resolve the matter; in order for the Band's protest to succeed, it must first have the adoption order declared null and void by a court. The Quebec Court of Appeal held that the Registrar erred in failing to exercise the jurisdiction conferred on her by ss. 14.2(5) and (6) of the Indian Act, which require the Registrar to "cause an investigation to be made", receive evidence and "render a decision" when a protest is made. The Registrar could not rely solely on the adoption order. An adoption order obtained as an adult was not determinative because the applicant also had to show that the adoption occurred when the applicant was a minor, pursuant to the INAC policy.

[32] Second, Orders-in-Council are quite different from adoption orders made by a provincial court. Orders-in-Council were an integral part of the Indian Act and are the specific instruments that are determinative of the right of an applicant to be registered pursuant to ss. 6(1)(c) and 6(1)(d). Where the Registrar is satisfied that an applicant was enfranchised by an Order-in-Council, the Act directs the Registrar to register the individual under s. 6(1)(c) where the enfranchisement was involuntary and under s. 6(1)(d) where it was voluntary. By conferring on the Registrar the power to conduct an investigation pursuant to ss. 14.2(5) and (6), Parliament did not, however, make the Registrar into a court of competent jurisdiction with the power to judicially review existing Orders-in-Council or the discretion to disregard Orders-in- Council that can be viewed as having been obtained by fraud. [page174] (2) Does an "entitlement" to registration under s. 6(1)(a) exist if the Order-in-Council is viewed as having been fraudulently obtained? (a) The proper reading of entitlement in s. 6(1)(a)

[33] The respondents also argue that it was open to the Registrar and therefore to the Superior Court on appeal to find that Laura Flood was "entitled" to be registered under s. 6(1) (a) if they concluded that Laura Flood had established that the Order-in-Council was obtained by fraud. In other words, the term "entitled" is sufficiently broad such that if the Registrar is satisfied that the Order-in-Council was obtained by fraud, the Registrar could conclude that an "entitlement" had been made out.

[34] In my view, the fact that Laura Flood may be able to prove that the Order-in-Council was obtained by fraud does not create an "entitlement" to registration under s. 6(1)(a). Reading the section as a whole and in context, it is clear to me that the entitlement contemplated in s. 6(1)(a) is a right (the French version of the statute uses the term "droit") based on the status of the applicant when the Registrar is called upon to make a determination. At that point, Laura Flood was a person whose name had been "omitted or deleted from the Indian Register . . . under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985". As at April 16, 1985, s. 12(1)(a)(iii) of the Act provided that a person who is enfranchised is "not entitled to be registered". Until the Order-in-Council is set aside, therefore, Laura Flood is not a person "entitled to be registered immediately prior to April 17, 1985". (b) The impact of ss. 4(2) and 4(2.1) of the Indian Act

[35] The respondents further argue that ss. 4(2) and 4(2.1) of the Act show that Parliament intended that the Registrar was to have exclusive jurisdiction to determine Indian status and that a separate process to review decisions of the Governor-in- Council affecting registration would be contrary to the letter and spirit of the legislation and the intent of Parliament.

[36] Prior to the 1985 amendments to the Indian Act, the Governor-in-Council could exempt any Indians or Bands from any part of the Indian Act, including the registration provisions. The 1985 amendments, however, removed from the Governor-in- Council the authority to exempt Indians from the registration sections of the Indian Act and this, in the respondents' view, lends support to the conclusion that it was intended that [page175] the Registrar have exclusive jurisdiction over the determination of status.

[37] In addition, s. 4(2.1) of the Act deems certain prior enfranchisement exemption decisions by the Governor-in-Council to be still valid. The purpose of this section was to preserve the interim orders exempting Bands from the mandatory involuntary enfranchisement provisions. These interim orders had been made in order to rectify the effect of the discriminatory provisions of the old Indian Act in the period before the Act could be amended. The respondents argue that because the 1985 amendments explicitly preserved the validity of some prior orders but were silent respecting voluntary Orders-in-Council, this suggests that Parliament intended that full jurisdiction over the determination of registration was now vested in the Registrar and not in the Governor-in-Council. Prior proclamations of the Governor-in-Council (except those specifically addressed in s. 4(2.1)) would, therefore, not be binding on the Registrar. Pursuant to the 1985 amendments, the Registrar had become the final arbiter of registration and the Governor-in-Council had been removed from the process. I disagree.

[38] In my view, these provisions are of no assistance in addressing whether the Registrar has the discretion to ignore or overturn Orders-in-Council. While it is true that s. 4(2.1) makes specific reference to the Governor-in-Council being deemed to have had the power to make orders exempting Bands from the mandatory involuntary enfranchisement provisions of the Act as it read prior to 1985, it does not follow, in my view, that all other orders of the Governor-in-Council made prior to 1985 are voided or are to be taken as having been made without authority. If that were so, none of the enfranchisement orders made before 1985 would be subsisting and ss. 6(1)(c) and 6(1)(d) would serve no purpose.

[39] Further, I do not interpret these sections as transferring the jurisdiction of the Governor-in-Council regarding Orders-in-Council to the Registrar. The fact that the 1985 amendments removed the Governor-in-Council's power to enfranchise persons does not, by implication, mean that the power to reverse enfranchisement decisions has been conferred on the Registrar. The Act specifically provides how the Registrar is to deal with applications by enfranchised persons. There is no statutory provision that, explicitly or implicitly, gives the Registrar authority to set aside or ignore Orders-in- Council.

[40] It is not for this court to decide the manner in which the Order-in-Council may be set aside. [page176] (3) Does the challenge to the Order-in-Council have to be brought in Federal Court? (a) The Callihoo decision

[41] The respondents also argue that Callihoo v. Canada (Minister of Indian Affairs and Northern Development), supra, affd 2008 FCA 368, stands for the proposition that, by providing that an appeal from a Registrar's order is to a provincial superior court, the Federal Court no longer has jurisdiction to deal with questions relating to Indian status. As a result, the jurisdiction of the Registrar and of the provincial superior court should be taken to extend to declaring invalid or at a minimum looking behind Orders-in-Council that impact on a person's Indian status. I disagree.

[42] Callihoo simply stands for the proposition that an appeal from a Registrar's decision is to the provincial superior court and that a Registrar's decision cannot be circumvented by going to the Federal Court. In Callihoo, the applicant sought a declaration in Federal Court that she was entitled to registration. In effect, what she was doing was trying to reverse the Registrar's previous refusal to register her. The court properly concluded that pursuant to the statute, any attempt to overturn the Registrar's decision has to be brought in the provincial superior court. The case before us is quite different. Here the respondents are trying to circumvent an existing Order-in-Council, not a decision of the Registrar. In my view, therefore, Callihoo has no application. (b) Does the Superior Court have the jurisdiction to deem the Order-in-Council invalid?

[43] I have concluded that the Registrar could not look behind or set aside the Order-in-Council nor, in exercising authority conferred by statute, could the Registrar register Laura Flood under a section of the Act as if the Order-in- Council did not exist or was not binding. As the Superior Court is sitting on appeal from the Registrar's decision, the Superior Court's authority is that of the Registrar. Because the Registrar is bound by the Order-in-Council, so is the Superior Court.

[44] The present case is different from the recent decision of this court in four matters heard together relating to the Superior Court's jurisdiction over civil claims arising from administrative decisions of federal boards, commissions or other tribunals: see TeleZone Inc. v. (Canada) Attorney General (2008), 2008 ONCA 892, 94 O.R.(3d) 19, [2008] O.J. No. 5291. Those claims invoked, in part, the inherent jurisdiction of provincial superior courts to hear claims properly [page177] brought before it. Our court concluded that, by granting the Federal Court exclusive jurisdiction over judicial review of decisions by federal boards, commissions or other tribunals, Parliament had not clearly and explicitly removed the Superior Court's power to decide civil disputes arising from those administrative decisions.

[45] In the present case, the Superior Court draws its authority from the statute itself. The proceeding is a statutory appeal of the Registrar's decision. There is no distinct civil claim being advanced, no independent cause of action alleged, nor is the inherent jurisdiction of the court being brought into play as in the TeleZone case. As a result, the court's jurisdiction is, in effect, the same as the jurisdiction of the Registrar. V. Conclusion

[46] In order to achieve the results sought, Laura Flood must first succeed in setting aside the Order-in-Council. She would then be in a position to seek registration pursuant to s. 6(1) (a) and her descendants could then also seek registration pursuant to that section.

[47] For these reasons, I would allow the appeal, set aside the judgment below and restore the decision of the Registrar. As neither party was seeking costs, I would make no order as to costs.

Appeal allowed.

Notes

Note 1: Although on appeal this decision was set aside on jurisdictional grounds, no negative comments were made concerning the description on the Registrar's role: see Canada (Registrar, Indian Register, Indian and Northern Affairs) v. Sinclair, 2003 FCA 265, [2003] F.C.J. No. 1967, [2004] 2 C.N.L.R. 19 (C.A.).

Note 2: Article 545 of the Civil Code of Quebec, S.Q. 1991, c. 64, states: "No person of full age may be adopted except by the persons who stood in loco parentis towards him when he was a minor. The court, however, may dispense with this requirement in the interest of the person to be adopted."