IN THE SUPREME COURT OF BRITISH COLUMBIA


Citation:

McIvor et al. v. The Registrar, Indian and Northern Affairs Canada et al.,

 

2007 BCSC 26

Date: 20070109

Docket: A941142

Registry: Vancouver


Between:


Sharon Donna McIvor, Charles Jacob Grismer

Plaintiffs

And


The Registrar, Indian and Northern Affairs Canada,

The Attorney General of Canada

Defendants


Before: The Honourable Madam Justice Ross.

Reasons for Judgment


Counsel for the Plaintiffs

Robert W. Grant

Gwen Brodsky

 

Counsel for the Defendants

Sarah P. Pike

Glynis Hart

Brett C. Marleau

 

Date and Place of Trial/Hearing:

October 16 to

November 10, 2006

 

Vancouver, B.C.

INTRODUCTION


[1]                This action involves a challenge to the provisions of the Indian Act, R.S.C. 1985, c. I-5 [the “1985 Act”] concerning registration as an Indian.  The plaintiffs seek relief pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”) and orders entitling them to be registered as Indians pursuant to s. 6 of the 1985 Act.  At the outset, the action combined a statutory appeal from the decision of the Registrar of Indian and Northern Affairs Canada [the “Registrar”], dated February 28, 1989 [the “Decision”], brought pursuant to the 1985 Act with an action seeking remedies under the Charter.  The plaintiffs later discontinued the statutory appeal.


[2]                Shortly before trial, the defendant conceded that the plaintiffs were entitled to the relief that they had been seeking in the statutory appeal.  The plaintiffs then applied, with consent, to reinstate the appeal.


[3]                At the commencement of the trial, on application of the plaintiffs and with the consent of the defendants, I ordered the reinstatement of the plaintiffs’ statutory appeal brought pursuant to s. 14.3 of the 1985 Act and restored the Registrar as a party.  With reasons to follow, I then allowed the appeal varying the Decision and ordered that Sharon Donna McIvor is entitled to be registered as an Indian pursuant to s. 6(1)(c) of the 1985 Act and that Charles Jacob Grismer is entitled to be registered as an Indian pursuant to s. 6(2) of the 1985 Act.  These are those reasons.


FACTS


[4]                Sharon McIvor’s maternal grandmother was Mary Tom.  Ms. Tom was born in 1888.  She fell within the classification of Indian pursuant to the Indian Act in force when she was born, the Indian Act, R.S.C. 1886, c. 43 [the “1886 Act”].  Mary Tom was a member of the Lower Nicola Band.  Sharon McIvor’s maternal grandfather was Jacob Blankinship, who was a man with no First Nations ancestors, and who did not fall within the classification of Indian pursuant to any Indian Act.  Ms. Tom and Mr. Blankinship were never married.  Ms. Tom and Mr. Blankinship were the parents of Susan Blankinship, Sharon McIvor’s mother.


[5]                Susan Blankinship was born on May 28, 1925.  She was the illegitimate child of a female band member, Mary Tom.  There is no evidence that the Registrar ever made a decision prior to April 17, 1985, that Ms. Blankinship was not entitled to be registered as an Indian because of non-Indian paternity.  Ms. Blankinship was never registered as an Indian pursuant to any Indian Act.  Ms. Blankinship died on October 30, 1972.


[6]                Sharon McIvor’s father was Ernest McIvor who was born April 5, 1925.  Mr. McIvor was of First Nations descent, but was not registered as an Indian.  Ernest McIvor’s mother was Cecelia McIvor.  It is now the opinion of the Registrar, based upon newly discovered genealogical documents, that Cecelia McIvor was entitled to have been a member of a band and therefore would have been entitled to be registered as an Indian pursuant to s. 11(b) of the Indian Act, S.C. 1951, c. 29 [the “1951 Act”].  Mr. McIvor’s father was Alexander McIvor, who was not of first Nations ancestry and who was not registered as an Indian pursuant to any Indian Act.  Cecelia McIvor and Alexander McIvor were never married.  Ernest McIvor was therefore the illegitimate child of a female band member.


[7]                The plaintiff, Sharon McIvor, was born on October 9, 1948.  Prior to 1985, she was not registered as an Indian pursuant to any Indian Act.  Ms. McIvor married Charles Terry Grismer on February 14, 1970.  Mr. Grismer was not of First Nations ancestry and not registered as an Indian pursuant to any Indian Act.  Upon her marriage to someone who was not entitled to be registered under the Indian Act, Ms. McIvor lost her entitlement to registration pursuant to the 1951 Act.


[8]                The plaintiff, Charles Jacob Grismer [“Jacob Grismer”], is the son of Sharon McIvor and Charles Grismer.  He was born June 3, 1971.  He was not registered as an Indian pursuant to the provisions of the Indian Act then in force.


[9]                On September 25, 1985, Sharon McIvor applied on her own behalf and on behalf of her children including Jacob Grismer, to the Registrar, the officer of the Department of Indian Affairs and Northern Development (“DIAND”) who is in charge of the Indian Register and the Band Lists maintained in DIAND, pursuant to the 1985 Act, to be registered as Indians pursuant to s. 6(1) of the 1985 Act.


[10]            By letter dated February 12, 1987, the Registrar advised the Chairman of the Area Council, Nicola Valley Indian Administration, that:


I have the Certificate of Birth of Sharon Donna McIvor indicating that she was born on October 9, 1948, the child of Susan Mary Blankinship and Ernest Dominic McIvor.  I have identified her mother as Susan Mary Blankinship who was entitled to be registered as an Indian with the Lower Nicola Band at the time of the applicant’s birth.  I also have the verification of Death Particulars indicating that she died on October 30, 1972 and that she was born on May 28, 1925, the child of Mary Tom and Jacob Blankinship.  I have identified her mother as Mary Tom who was registered under Band No. 118 at the time of the applicant’s mother’s birth.


Our records indicate that the name of Susan Mary Blankinship was deemed to have been omitted from the Band List for the Lower Nicola Band prior to September 4, 1951 because of non-Indian paternity.  She would have therefore been entitled to have her name entered in the Indian Register under paragraph 6(1)(c) of the Indian Act and in the Lower Nicola Band List under paragraph 11(1)(c) of the Indian Act as she is a person whose name was deemed to have been omitted from the Lower Nicola Band List under a former provision of the Indian Act relating to the same subject matter as subsection 12(2) referred to in said paragraph 6(1)(c), the subject matter which is non-Indian paternity.


As Sharon Donna McIvor is a person one of whose parents is entitled to be registered under subsection 6(1) of the Indian Act, she is entitled to be registered under subsection 6(2) of the Indian Act.  I have therefore added the name of Sharon Donna McIvor to the Indian Registrar.  Her entitlement to membership in the Upper Nicola Band is subject to the provisions of subsection 11(2)(b) of the Indian Act.


[emphasis added]


[11]            By letter of the same date, the Registrar advised Ms. McIvor that:


I refer to your Application for Registration dated September 23, 1985.


I am pleased to confirm that you are now registered as an Indian in the Indian Register maintained in this Department in accordance with paragraph 6(2) of the Indian Act under the name of Sharon Donna McIvor.  Your entitlement to membership in the Lower Nicola Band is subject to the provisions of paragraph 11(2)(b) of the Act.


Unless the band has assumed control of its membership by June 28, 1987, your name will be added to the Lower Nicola Band List on that date.  Should the band assume control of its Band List prior to that date, you will have to apply to the band for membership.


In reference to the registration of your children, there is no provision in the Indian Act for the registration of a person, one of whose parents is entitled to be registered under subsection 6(2) and whose other parent is not entitled to be registered as an Indian.


As you have indicated that the father of your children is a non-Indian, I regret to inform you that your children are not eligible for registration.


[12]            Ms. McIvor protested the decision pursuant to s. 14.2 of the 1985 Act by letter dated May 29, 1987.  In that letter, Ms. McIvor states in part:


I am eligible for registration under section 6(1)(c) and my children are eligible to be registered under section 6(2).  As I explained in my original application dated September 23, 1985 I am the illegitimate daughter, born before 1951, of an Indian woman eligible for status.  My mother, Susan Blankinship also known as Susan Earnshaw and Susan McIvor, was the illegitimate daughter of Mary Tom.  Susan born in 1925 was eligible for registration.  Susan died in 1972 having never married.  She did, however, maintain two common-law relationships during her lifetime.  One of very short duration, in the early 1920’s with George Earnshaw, a member of the Upper Nicola Band, and one from mid 1940’s to her death with my father Ernest McIvor.


[13]            It is interesting to note that Ms. McIvor’s protest is based upon the very analysis now adopted by the defendants in supporting the application to allow the appeal.


[14]            The Registrar confirmed his decisions by letter dated February 28, 1989, stating in part:


I have a copy of your Certificate of Birth indicating that you were born on October 9, 1948, the child of Susan Mary Blankinship and Ernest Dominic McIvor.  I also have the verification of Death Particulars of your mother, Susan Mary Blankinship, indicating that she died on October 30, 1972 and that she was born on May 28, 1925, the child of Mary Tom and Jacob Blankinship.  I have identified her mother as Mary Tom who was registered under Band No. 118 at the time of your mother’s birth.


Our records indicate that the name of your mother, the late Susan Mary Blankinship, was deemed to have been omitted from the Band List for the Lower Nicola Band prior to September 4, 1951 because of non-Indian paternity.  She would have therefore been entitled to have her name entered in the Indian Register under paragraph 6(1)(c) of the Indian Act and in the Lower Nicola Band List under paragraph 11(1)(c) of the Indian Act as she is a person whose name was deemed to have been omitted from the Lower Nicola Band List under a former provision of the Indian Act relating to the same subject matter as subsection 12(2) referred to in said paragraph 6(1)(c), the subject matter which is non-Indian paternity.


Your mother was not entitled to be registered at the time of her birth because of non-Indian paternity.  She only became deemed to be entitled to be registered as a result of the amendments to the Indian Act on April 17, 1985.  The only way we could upgrade your entitlement from subsection 6(2) would be if your father, the late Ernest Dominic McIvor, had an entitlement to be registered as an Indian in his own right.


You are therefore entitled to be registered as an Indian in the Indian Register pursuant to the provisions of subsection 6(2) of the Indian Act and as a member of the Lower Nicola Band pursuant to the provisions of paragraph 11(2)(b) of the Act.


Your protest is not upheld and I hereby declare your children, Alexis Jordana Grismer, Alice Maxine Jamie Grismer and Charles Jacob Grismer, not entitled to be registered as Indians.


[15]            The plaintiffs then appealed pursuant to s. 14.3 of the 1985 Act by writ of summons dated July 28, 1989.  Ms. McIvor sought an order that she be registered under s. 6(1)(c) of the 1985 Act; Mr. Grismer sought an order that he be registered under s. 6(2) of the 1985 Act.  The plaintiffs filed notices of constitutional question dated January 28, 2003, and January 3, 2006.


[16]            At the outset of the action, the defendants objected to combining the statutory appeal and Charter action in a single proceeding.  Then, in early 2006, the defendants advised the plaintiffs that they were no longer taking this position, but were prepared for the matters to be heard together.


[17]            The plaintiffs elected to discontinue the statutory appeal.  On January 18, 2006, on application of the plaintiffs, this court made an order discontinuing the statutory appeal and all claims against the Registrar.


[18]            The defendant then, on the basis of genealogical records, admitted that the statutory appeal ought to have succeeded.  The further amended statement of defence dated July 26, 2006, contains the following admission:


The Defendant admits that Sharon McIvor is entitled to be registered under s. 6(1)(c) of the 1985 Indian Act and that Charles Jacob Grismer is entitled to be registered under s. 6(2) of the 1985 Indian Act, as set out further in paragraphs 34A-34B above.  However, this entitlement cannot lead to an order in this action reflecting this admission, unless the Plaintiffs amend their Statement of Claim to re-include their respective Statutory Appeals, to which amendment the Defendant will consent.


[19]            The plaintiffs then applied to reinstate the appeal and for an order allowing the appeal.  The defendants consented to the relief and in fact made the submissions in support of the appeal on the merits.


THE LEGISLATION


[20]            The persons entitled to be registered as Indian pursuant to the 1951 Act were defined pursuant to ss. 2(l)(j) 11 and 12, which provided in part:


2(1)(j)  In this Act, “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;


...


11        Subject to section twelve, a person is entitled to be registered if that person


...


(b)        is a member of a band


(i)         for whose use and benefit, in common, lands have been set apart or since the twenty-sixth day of May, eighteen hundred and seventy-four have been agreed by treaty to be set apart, or


(ii)        that has been declared by the Governor in Council to be a band for the purposes of this Act,


...


(e)        is the illegitimate child of a female person described in paragraph (a), (b) or (d), unless the Registrar is satisfied that the father of the child was not an Indian and the Registrar has declared that the child is not entitled to be registered


...


12(1)    The following persons are not entitled to be registered, namely,


...


(b)        a woman who is married to a person who is not an Indian.


...


[21]            The registration provisions were then amended in s. 6 of the 1985 Act, which now provides in part:


6.(1)         Subject to section 7, a person is entitled to be registered if


...


(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;


...


      (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).


...


ANALYSIS


[22]            Mary Tom, Sharon McIvor’s maternal grandmother, was a member of the Lower Nicola Indian Band.  Susan Blankinship, Ms. McIvor’s mother, was the illegitimate daughter of a female band member.  The defendants concede that she was therefore entitled to be registered pursuant to s. 11(e) of the 1951 Act unless the Registrar declared that the child was not entitled to be registered because of non-Indian parentage.  There is no evidence that the Registrar made such a declaration.  Accordingly, Ms. Blankinship was entitled to be registered pursuant to s. 11(e) of the 1951 Act.


[23]            The defendants concede further that Ms. Blankinship was entitled to have been a member of the Lower Nicola Indian Band.  The defendants concede that she was therefore, pursuant to s. (2)(1)(j) of the 1951 Act, a member of a band.  It follows that Ms. McIvor is the illegitimate child of a female band member.  She was also therefore, the defendants concede, entitled to registration pursuant to s. 11(e) of the 1951 Act unless the Registrar declared that the child was not entitled to be registered because of non-Indian parentage.  As was the case with Ms. Blankinship, there is no evidence that the Registrar made such a declaration in relation to Sharon McIvor.  Accordingly, Sharon McIvor was entitled to be registered as an Indian pursuant to s. 11(e) of the 1951 Act.


[24]            Ms. McIvor then lost her entitlement to registration under s. 12 (1)(b) of the 1951 Act when she married Mr. Grismer, who was not an Indian.  The Crown now concedes that Ms. McIvor was therefore a person whose name was omitted or deleted from the Indian Register pursuant to s. 12(1)(b) of a former provision of the Act and, that she is therefore entitled to registration pursuant to s. 6(1)(c) of the 1985 Act.  It follows that Jacob Grismer as the child, one of whose parents is entitled to registration under s. 6(1), is entitled to registration under s. 6(2) of the 1985 Act.


[25]            The same result is also obtained from a different route.  The defendants concede that Ernest McIvor’s mother, Cecelia McIvor, was entitled to have been a member of a band and therefore would have been entitled to be registered as an Indian under the provisions of 11(b) of the 1951 Act.  Ernest McIvor was the illegitimate son of a female band member and therefore also qualified to be a band member and to be registered pursuant to s. 11(e) of the 1951 Act unless the Registrar declared that the father of the child was not an Indian.  There is no evidence that the Registrar made such a declaration.  Accordingly, Ernest McIvor was entitled to be registered as an Indian and to be a member of the band under the 1951 Act.


[26]            The defendants concede that because of her father’s entitlement to be a band member, Ms. McIvor would have been entitled to membership in her father’s band and registration as someone entitled to be a member of a band pursuant to s. 11(b) of the 1951 Act.  She then lost her entitlement to registration pursuant to s. 12(1)(b) of the 1951 Act upon her marriage in 1970 to someone who was not entitled to be registered.


[27]            The Crown now concedes that Ms. McIvor was, on this basis as well, a person whose name was omitted or deleted from the Indian Register pursuant to s. 12(1)(b) of a former provision of the Act, and that she is therefore entitled to registration pursuant to s. 6(1)(c) of the 1985 Act.  It follows that Jacob Grismer, as the child, one of whose parents is entitled to registration under s. 6(1), is entitled to registration under s. 6(2) of the 1985 Act.


DISPOSITION


[28]            In the result, the appeal is allowed.  The Decision is varied such that the plaintiff, Sharon Donna McIvor, is entitled to be registered as an Indian pursuant to s. 6(1)(c) of the 1985 Act and the plaintiff, Charles Jacob Grismer, is entitled to be registered as an Indian pursuant to s. 6(2) of the 1985 Act.


“C. Ross, J.”

The Honourable Madam Justice C. Ross