Johnson v. Canada (Registrar, Indian Register)

2020 BCSC 1955 Johnson v. Canada (Registrar, Indian Register)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Johnson v. Canada (Registrar, Indian Register), 2020 BCSC 1955 Date: 20201209 Docket: 200379 Registry: Victoria Between: Richard Francis Johnson Appellant And Registrar of the Indian Register and Attorney General of Canada Respondents Corrected Judgment: The text of the judgment was corrected on the front page to add counsel's name, where changes were made on December 15, 2020 Before: The Honourable Mr. Justice Punnett Reasons for Judgment Counsel for the Appellant: J. Gailus Counsel for the Respondents: R. Schipizky A. Zhao Place and Date of Hearing: Victoria, B.C. September 10, 2020 Place and Date of Judgment: Victoria, B.C. December 9, 2020 Introduction [1] The appellant, Richard Francis Johnson, has appealed a decision of the Registrar of the Indian Register (the "Registrar"). The respondent applicant submits this Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act, R.S.C., 1985, c. I-5 (the "Act") have yet to be met. Specifically, that the nature of the "decision" made by the Registrar is not a "decision" by the Registrar capable of being appealed until it is "protested" and the statutory proceeding is concluded. Background [2] The appellant is a status Indian and member of Sechelt Indian Band ("Sechelt"), a band within the meaning of the Act. On October 4, 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band ("Semiahmoo"). [3] This set in motion events that lead to this appeal and this application. The chronology follows:

DATE

EVENT Oct. 4, 2017 Appellant requests to be transferred. April 27, 2018 and May 23, 2018 The Indian Registrar requires evidence of Semiahmoo consent before considering the band transfer request (the "May 2018 "Decision""). June 25, 2018 Appellant files a Federal Court judicial review of the above May 2018 "Decision". Oct. 2, 2018 The judicial review is discontinued. Jan. 21, 2019 Appellant files what is purported to be a "protest" of the May 2018 "Decision" (the "January 2019 "Protest""). March 6, 2019 Registrar rejects the "protest" as a valid protest and reiterates the need for evidence of Semiahmoo consent before considering the band transfer request (the "March 2019 "Decision""). April 30, 2019 Appellant files an appeal to this Court of the March 2019 "Decision" (the "First Appeal"). Sept. 18, 2019 The parties agree to hold the First Appeal in abeyance pending a determination by the Registrar of the appellant's entitlement to Semiahmoo membership. Dec 19, 2019 The Registrar decides the appellant is not entitled to Semiahmoo membership (the "December 2019 Decision"). Jan 29, 2020 Appellant does not file a letter of protest but instead files this appeal of the December 2019 Decision March 4, 2020 - May 6, 2020 Appellant declines the respondent's proposal he file a protest of the December 2019 Decision. [4] I turn to this chronology and its context in more detail. [5] The

Department of Indigenous Services (the "Department") maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. [6] Section 11 of the Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents. [7] On April 27, 2018, the Registrar responded to the appellant's transfer request, stating that the request could not be processed without receiving a Band Council Resolution ("BCR") from the Semiahmoo Band Council (the "April 2018 Letter"). A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band's membership. Counsel for the appellant argued that a BCR from Semiahmoo was not required under s. 11 of the Act and that s. 12(b), which requires band council consent to adding a band member, had no application. [8] On May 23, 2018, the Registrar advised the appellant's counsel that the Department's position was that s.12 applied to all band transfers. The appellant sought judicial review in the Federal Court. However, that was discontinued as it is the British Columbia Supreme Court that has the necessary jurisdiction. [9] The discontinuance occurred

after counsel for the appellant and the respondent had exchanged emails: a) on September 19, 2018 counsel for the appellant advised counsel for the respondent that the appellant would discontinue the Federal Court matter and pursue a protest under s. 14.2 of the Act with a decision to be rendered within 90 days; b) on September 27, 2018 counsel for the respondent responded that the Registrar would consent to a 90-day investigation period once all necessary documents were filed; c) on September 28, 2018 counsel for the appellant agreed and asked where to send their notice of protest, and on the same day counsel for the Registrar provided a computer linked address; and d) on January 21, 2019 the appellant filed the January 2019 "Protest". [10] Section 14.2 of the Act allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. [11] On March 6, 2019, the Registrar informed the appellant that she was unable to accept the January 2019 "Protest" as a valid protest. She stated the Registrar's original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the protest was out of time. Further, as the May 2018 "Decision" did not constitute a "decision" but was a request

for evidence, it could not be protested. She also confirmed the Department's position was that Semiahmoo consent was required for all band transfers. The Registrar also stated: I note that in an E-mail dated September 26, 2018 from Randall Hanes, former protest unit manager, it was indicated that the Registrar was prepared to consent to a 90 day investigation period provided that all relevant documents are included in the filing of the protest and the investigating officer does not have to request additional documents and information. As more than three years have passed from the Registrar's original decision rendered prior to September 4, 1951, I am unable to accept your letter of January 23, 2019 as a valid protest. However, I am prepared to consider your client's request for a band transfer within a 90 day time frame provided that all of the supporting documentation is submitted with the request. Before any further consideration may be given to your client's request for a band transfer the Office of the Indian Registrar requires an original Band Council Resolution from Semiahmoo Band accepting Robert Francis Johnson into their membership. There can be no exception to this requirement pursuant to the provision of paragraph 12(b) of the Indian Act. [Emphasis added.] [12] The appellant filed the First Appeal of that March 2019 "Decision" in this Court. After the record and factums were filed, counsel for the Registrar sought the appellant's consent to have the First Appeal placed in abeyance to allow the Registrar to decide on the appellant's entitlement under s.

11. Counsel agreed to place the First Appeal in abeyance. [13] The parties initially continued to disagree as to whether Semiahmoo's consent to accepting the appellant into the band was required before the Indian Registrar considered the request. In September 2019, the parties resolved that dispute and counsel for the parties agreed the Registrar would decide on the appellant's entitlement under s. 11 of the Act without first requiring evidence of Semiahmoo's consent. [14] In a letter dated December 19, 2019, the Registrar rendered the December 2019 Decision, denying the requested transfer under s. 11 of the Act. The Registrar noted the appellant could file a protest under s. 14.2 of the Act. The respondent submits this was the first determination by the Registrar of the merits of the s. 11 request and, as such, a protest was required before the present appeal could proceed. [15] However, the appellant filed a notice of appeal in this Court respecting the December 2019 Decision. The notice of appeal asserts the December 2019 Decision determined in error that the January 2019 "Protest" submitted by the appellant was not a valid protest. [16] I note the December 2019 Decision does not include such a determination. [17] The Registrar argues this appeal is premature and that the appellant must file a protest because the earlier "decisions" of the Registrar were not decisions under

the Act. Law [18] The statutory framework for these events is found in the Act: s. 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. s. 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. s. 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. s. 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. s. 11(2) Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.1, where a band does not have control of its Band List under this Act, a person is entitled to have his name entered in a Band List maintained in the Department for the band (a) if that person is entitled to be registered under paragraph 6(1)(d) or (e) and ceased to be a member of that band by reason of the circumstances set out in that paragraph; or (b) if that

person is entitled to be registered under paragraph 6(1)(f) or subsection 6(2) and a parent referred to in that provision is entitled to have his name entered in the Band List or, if no longer living, was at the time of death entitled to have his name entered in the Band List. 12 Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act, introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.1, any person who (a) is entitled to be registered under section 6, but is not entitled to have his name entered in the Band List maintained in the Department under section 11, or (b) is a member of another band, is entitled to have his name entered in the Band List maintained in the Department for a band if the council of the admitting band consents. (Emphasis added) Protests 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. Protest in respect of Band List (2) A protest may be made under this section in

respect of the Band List of a band by the council of the band, any member of the band or the person in respect of whose name the protest is made or that person's representative. Protest in respect of Indian Register (3) A protest may be made under this section in respect of the Indian Register by the person in respect of whose name the protest is made or that person's representative. Onus of Proof (4) The onus of establishing the grounds of a protest under this section lies on the person making the protest. Register to cause investigation (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. Evidence (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. Decision Final (7) Subject to section 14.3, the decision of the Registrar under subsection (5) is final and conclusive. Appeal 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 protest was made, or the person in respect of whose name the protest was made or that person's representative,

or (b) in the case of a protest in respect of the Indian Register, the person in respect of whose name the protest was made or that person's representative, may, by notice in writing, appeal the decision to a court referred to in subsection (5) Copy of notice of appeal to the Registrar. (2) Where an appeal is taken under this section, the person who takes the appeal shall forthwith provide the Registrar with a copy of the notice of appeal. (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. (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. Position of the Respondent/Applicants [19] The applicants submit the question before the Court on this application is whether the Court has jurisdiction to hear the appeal at this time. They submit the Act sets out the statutory framework that applies to a dispute of a "first-level" Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to

protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier. [20] The applicants submit that the December 2019 Decision was a first-level decision in which no valid protest of it has been filed. Hence, no investigation by the Registrar has occurred, nor has a final decision been rendered. The statutory process has not been completed and the appeal is premature. [21] They argue the appeal should be dismissed or stayed as the Court does not yet have jurisdiction to hear the appeal. Position of the Appellant/Respondent [22] The respondent appellant submits the Registrar has made three decisions denying the appellant's request to transfer his membership. Specifically, that after the transfer request was rejected by the May 2018 "Decision", counsel agreed to discontinue the judicial review application in Federal Court on the understanding the appellant would pursue a protest under s. 14.2 of the Act, and that the Registrar would investigate and decide within the required 90 days. The appellant submits that the appellant then filed the January 2019 "Protest" which was an extensive protest containing documentary evidence and legal argument. [23] The appellant notes as a result of the March 2019 "Decision", the Registrar

denied the January 2019 "Protest" in part because it was out of time and because the consent of Semiahmoo was required. That decision also stated the Registrar would consider the appellant's request for a band transfer within a 90-day period. Instead, given the appellant's position the March 2019 "Decision" was a decision rendered after a protest, he filed the First Appeal. [24] The appellant also notes that, at the request of counsel for the Registrar, the First Appeal was placed in abeyance so the Registrar could reconsider the March 2019 "Decision" and the appellant's entitlement under s. 11, to which counsel agreed. This resulted in the December 2019 Decision and led to this appeal. [25] The appellant argues the purpose of placing the First Appeal in abeyance was for the Registrar to reconsider the January 2019 "Protest", not to consider the matter afresh and then, after denying the relief sought for a second time, seek another protest. [26] He further submits the investigation required under the Act has been completed by the Registrar. Given a protest has been filed and been twice rejected, the statutory requirements of s. 14.2 have been met and no protest is necessary. Therefore, the question to be answered on the appeal is purely one of statutory interpretation. Discussion [27] A first-level decision of entitlement to be on a band list is that of a Registrar acting under

s. 9(3) of the Act to add to or delete from a departmentally maintained band list any person who is entitled or not entitled to be on a band list. [28] The appellant made his request on October 4, 2017. Ms. Lau, Manager of the Indian Registration and Band Lists Program, responded with the April 2018 Letter, stating: Unfortunately, our office is unable to fulfill the request without receiving the original Band Council Resolution (BCR) signed by the quorum of the elected Band Council of Semiahmoo accepting you into the band. [Emphasis in original.] [29] Counsel for the appellant replied by letter dated May 10, 2018, that a BCR was not required when an application was made under s. 11(1)(a) of the Act. On May 23, 2018 Ms. Lau re-confirmed that it was required under s. 12 of the Act. [30] On June 25, 2018 the application referred to earlier appealing the May 2018 "Decision" was filed in Federal Court. As noted, that action was voluntarily discontinued as that court lacked jurisdiction. [31] On January 21, 2019, the appellant filed a protest of the April 2018 Letter. On March 6, 2019, the Registrar stated she could not accept the January 2019 "Protest" as a valid protest, noting that the May 2018 "Decision" was not a decision or a denial of the application but merely a request for evidence including the Semiahmoo BCR. This resulted in the First Appeal which, as noted, was put in abeyance to allow the Registrar to decide on the appellant's entitlement under s. 11 of the Act. The Registrar did, and on December 19, 2019 he declined the appellant's transfer requests on the basis he did not consider that the appellant fit the categories described in s.

11. Since the appellant did not have the statutory right to membership pursuant to s. 11, the Registrar noted that the decision must adhere to s. 12, which requires consent from Semiahmoo. Indeed, the Registrar, in making his decision that the appellant was not statutorily entitled to membership pursuant to s. 11, did so without requiring evidence of Semiahmoo's consent. [32] The Registrar submits this was the first decision regarding the appellant's entitlement to Semiahmoo membership under s.

11. Also, the December 2019 Decision informed the appellant of his right to protest this decision. [33] However, the appellant continued to assert Semiahmoo does not have an interest in the matter. The respondents clarified that, in their view, the focus of the dispute was the appellant's statutory entitlement, hence a protest was required to the December 2019 Decision which they say was a first-level decision. [34] The appellant disagrees with the need to protest the December 2019 Decision and has chosen not to do so. [35] Resolution of the jurisdiction issue turns on the nature of the December 2019 Decision and whether it is a first-level decision that must be protested first or is a final decision that can be appealed. [36] The Act provides a process to determine band status. An individual applies and the Registrar makes a decision under s.

9. If the applicant disagrees, they protest under s. 14.2 and the Registrar then makes a final decision. Only then does the right of appeal arise. [37] In Callihoo v. Canada (Minister of Indian Affairs and Northern Development), 2004 FC 1312 (affirmed 2008 FCA 368), the plaintiff sought a declaration she was a status Indian and that portions of the Indian Act were invalid. The action was commenced after she was advised by the Registrar of his intention to delete her name from the register because of information that had come to his attention. No protest was ever filed. The Registrar applied summarily to strike the claim. [38] The court stated: 11 In my view, Sections 14.2 and 14.3 of the Indian Act contain a complete code for the determination of questions of Indian status in a case such as this. It provides for a protest from the Registrar's decision. That protest is made to the Registrar who is then instructed to conduct an enquiry. Upon the Registrar deciding that protest there has created a Right of Appeal to the Provincial Superior Courts. That Right of Appeal is of critical importance. [39] The Federal court found it lacked jurisdiction to entertain the action given the right of appeal was to the Provincial Superior Courts and dismissed it summarily. [40] As a complete code, the Act must be complied with before it can be appealed. In Baptiste v. Canada (Registrar of

Indian & Northern Affairs), 2000 SKQB 296, the court noted the statutory criteria must be followed. The court stated: [12] In Bay v. Canada, [1974] 1 F.C. 523, the Federal Court, Appeal Division, when dealing with s. 7(1) of the previous Indian Act, held that the authority granted to the Registrar pursuant to that section cannot result in a "decision" in law. It is not until a protest is filed under s. 9 (now s. 14.2) that a decision in law can be made. The court has no jurisdiction to review a s. 7(1) [now s. 5(3)] decision. The current s. 5(3) of the Act contains essentially the same empowering words that were used in the old s. 7(1). Landry v. Canada (1996), 118 F.T.R. 184 (F.C.T.D.) holds that no greater power was conferred on the Registrar by s. 5(3) than was contained in s. 7(1). Had Parliament intended to extend the authority of the Registrar it could have done so when the Act was amended in 1985. [41] Also, in Landry v. Procureur general du Canada (Registraire du registre des Indiens), 2017 QCCS 433, the court considered the standard of review in an appeal under s. 14.3 of the Act, and in doing so reviewed the jurisdiction of the Registrar and the right of appeal: 125 The provisions outlining the Registrar's jurisdiction and setting out the right of appeal from an unfavourable decision further to a protest are in ss. 2, 5, and 14.1 to 14.3 of the Act, which are

reproduced in a schedule to this judgment. 126 Section 2 of the Act defines the Registrar as "the officer in the Department who is in charge of the Indian Register and the Band Lists maintained in the Department", while s. 2 of the 1951 Act stated that the term meant "the officer of the Department who is in charge of the Register". The Registrar is not an administrative tribunal, but an officer of the state. 127 Section 5(3) of the Act provides that the Registrar may add or delete the name of any person who, in accordance with the Act, is entitled or not entitled, as the case may be, to have his or her name included in the Indian Register. Section 5(5) specifies that the name of a person who is entitled to be registered is not required to be entered in the Register unless an application for registration is made to the Registrar. 128 According to s. 14.1, on inquiry from any person who believes that he or she or any person he or she represents is entitled to have his or her name included in the Register, the Registrar indicates to the person making the inquiry whether or not that name is included therein. 129 Section 14.2(1) provides that a protest may be made by notice in writing to the Registrar, containing a brief statement of the grounds therefor. Such a protest must be made within three years after the inclusion or addition, or the omission or deletion. 130 Under ss.

14.2(2) and (3), when it concerns the Register, as opposed to a Band List, a protest may be made by the person in respect of whose name the protest is made or that person's representative. 131 Section 14.2(4) states that the onus of establishing the grounds of a protest lies on the person making the protest, yet subsection (5) specifies that the Registrar "shall cause an investigation to be made into the matter" and render a decision. Section 14.2(6) states that the Registrar may receive any evidence "on oath, on affidavit or in any other manner" as the Registrar sees fit or deems just, whether or not this evidence is admissible in a court of law. Finally, s. 14.2(7) provides that the Registrar's decision on a protest is "final and conclusive" or "définitif et sans appel" subject to an appeal under s. 14.3. 132 The Court notes here that the final and conclusive nature of the Registrar's decision on a protest is subject only to the right of appeal under s. 14.3, and not the Registrar's power to add or delete a person's name under s. 5(3) of the Act. 133 The decision of the Registrar that the Appellants seek to vacate does not give rise to judicial or quasi-judicial proceedings. [42] In McArthur v. Canada (Registrar of Indian Affairs and Northern Development), 1992 Canlii 8090 (SKQB), appeals were filed by the appellants after a decision of the Registrar and protests were filed.

In describing the role of the Registrar, the court stated: [27] The respondents do not deny that a duty of procedural fairness was imposed on the Registrar in investigating, and determining, the validity of the protests. However, the application of the principles of natural justice and the requirement of fairness will vary according to the circumstances of each case: Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; 30 N.R. 119; 50 C.C.C.(2d) 353; 106 D.L.R.(3d) 385. [28] The extent of the duty of an administrative agency with no judicial functions and concerned primarily with a duty to investigate complaints and to form an opinion, was considered in Nicholson v. Haldiman-Norfolk Regional Police Commission, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671. At page 327, Laskin, C.J., referred to the decision of Lord Denning in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 13, where he had concluded, at p. 19: "... In all these cases it has been held that the investigating body is under a duty to act fairly: but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely

affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure " [43] The Registrar then is the "master of its own procedure" and can solicit information as they see fit in conducting the investigation. [44] The appellant however takes a very different view of what has transpired, arguing that the December 2019 Decision is the 4th time his application has been considered and there is nothing to investigate. He submits the May 2018 "Decision" shows the Registrar considered whether he meets the requirements of s. 11 and rejected his initial request. As such, a decision was made and protested before the December 2019 Decision. [45] He refers to her letter of May 23, 2018 which stated: Regarding the transfer request, you had mentioned that Mr. Johnson's request to transfer to Semiahmoo was under Section 11(1)(a) of the Indian Act, as he was entitled to have his name entered in that band list immediately prior to April 17, 1985. Further, you asserted that this entitlement allows him to now be transferred to Semiahmoo without consent from the Band. Departmental records show Mr. Johnson was a member of Sechelt immediately prior to April 17, 1985. There is no information to indicate he has been a member of Semiahmoo at any time. All band

transfers are governed by Section 12 of the Indian Act and require the consent of the council of the admitting band. As such, your client's request to transfer from Sechelt to Semiahmoo can only be considered further once Semiahmoo informs the Department in writing of their consent via an original Band Council Resolution. [46] He describes the earlier "decisions": a) The initial decision, or the May 2018 "Decision", was the May 23, 2018 letter from the Registrar where the Registrar said s. 12 applied to all band transfers. The appellant submits it was a decision that shows the Registrar considered and rejected his initial request under s.

11. By agreement of counsel, he could file a protest under s. 14.2 with the Registrar to decide within 90 days. The January 2019 "Protest" was filed, resulting in the March 2019 "Decision". b) The second decision, or the March 2019 "Decision", is where the Registrar determined the appellant was out of time, given the original decision was made in 1951 and, in any event, needed the consent of Semiahmoo. In addition, the Registrar said the May 2018 "Decision" was not a decision or a denial but rather a request for evidence. The appellant submits the March 2019 "Decision" was a final decision responding to the January 2019 "Protest". c) The third decision, or the December 2019 Decision, is where the Registrar made a decision respecting s. 11 and the appellant's entitlement to Semiahmoo band membership. However, no protest was filed. Instead, this appeal was brought. The appellant submits they did file a protest respecting the March 2019 "Decision". Therefore, the statutory requirements have been met and the Court has jurisdiction to hear the appeal. [47] The appellant addresses the "decision" issue: The Federal Courts have distinguished preliminary determinations regarding whether to add or delete names from the Indian Register pursuant to section 7 of the Indian Act from final decisions made by Registrars "in the event of a protest". While decisions under section 7 do not

constitute "decisions" as a matter of law, "there is a decision once there has been a protest, an investigation and a further determination." That is exactly what has occurred in these circumstances. The Registrar's decision on a protest is reviewable as a "decision" because it has some legal effect or is finally determinative of a substantive right. [48] In support he relies on Bay v. Canada, [1974] 1 F.C. 523 (F.C.A.). There, the applicant asked the Registrar under the Act to add his name to a band list. The Registrar refused concluding the applicant was not entitled to be registered. The applicant sought judicial review of that "decision". The application was quashed given the Registrar decided under then s. 7 of the Act (now s. 9). The decision was not one made under protest under then s. 9 of the Act (now s. 14). The court held that s. 7 was simply the exercise of the Registrar's power to add or delete a name and such was not a decision. However, under s. 9, it was a decision as it was an exercise of his decision-making power which has legal effect and his power is spent. [49] In Moses v. Canada, 2002 FCT 1088, the court explained Bay, noting at para. 9 "[t]hat the Registrar makes no decision when merely adding or deleting a name to the Register and that there is a decision once there has been a protest, an investigation and a further determination " [50] The appellant's

assertion that this is "exactly what occurred in these circumstances" assumes that the earlier letters of the Registrar were in fact decisions. This ignores the fact they were not made under s. 11 of the Act. The fact the appellant referred to a submission as a protest does not make it so if it was not a protest of a decision. The letters referred to were not decisions after protest, hence were not of legal effect. [51] The appellant also relies on I.A.F.F., Local 2130 v. St. Albert (City), [1990] Alta. L.R.B.R. 410 (C.A.) for the principal that the Registrar has a duty to answer the questions put before him. In I.A.F.F., the court stated: H. Jurisdictional Error 41 Jurisdictional error is a ground to quash on judicial review whether or not it is unreasonable: Re Syndicat des Employés de Production du Québec, [1984] 2 S.C.R. 412, 420-21, 439, 443, 14 D.L.R. (4th) 457; Alta. v. Pub. Service Emp. Rel. Bd. (1989) 100 A.R. 81. 42 It is well settled that if a tribunal answers the wrong question which is not before it instead of answering the right question which is before it, that is jurisdictional error (sometimes called declining jurisdiction). Such a decision must be quashed: Simply missing a relevant necessary issue and failing to consider it is such jurisdictional error: Lakeland College (Bd.) v. Lakeland College Faculty Assn. (1990) digested 71 Alta. L.R. (2d) 438 (C.A.).

Indeed, failure to discuss an issue in extended reasons for judgment is good evidence that the issue was overlooked: ibid. [citations omitted] [52] The appellant also relies on Landry at para. 119: The decisions at issue here have considerable impact on the persons concerned because of the undeniable connection they have with the identity of these persons and the consequences they have on their rights under the Act. The decisions also have repercussions on the rights of the descendants of the persons concerned. The process followed to make such decisions must comply with the rules of procedural fairness. [53] These authorities do not assist the appellant as a final decision has not been made in this instance. I am satisfied that the earlier Registrar's letters are not "decisions" as described by the appellant. The letter of May 23, 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter of March 6, 2019 make a decision under s. 14.2 of the Act. Given the expiration of time from the 1951 decision, and that the May 2018 "Decision" was neither a decision nor a denial but rather a request for information, the January 2019 "Protest" of that letter was not a valid protest. [54] Under s. 14.2(1) of the Act 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." That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List. In other words, a determination has been made. In this instance that did not occur until December 19, 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s. 11 of the Act. As a result, the right to protest arises. The appellant was advised of that right in the December 2019 Decision but has chosen not to do so. [55] The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed. "The Honourable Mr. Justice Punnett"