In a July 25 decision in Bocchini v. Attorney General of Canada, 2024 ONSC 4181, Justice Jasmine Akbarali of the Ontario Court of Appeal observed that a system that could not determine whether someone is entitled to Indian status under the federal Indian Act until some 26 years have elapsed “is not a working, relevant system”
“I cannot help but express my dismay at a system that kept two women in limbo with respect to their Indian status, and related benefits, until after they both died,” Justice Akbarali wrote.
The judge noted that the appeal was not moot as its result would impact their descendants.
Sharon Bocchini, and her mother, Bertha Isbister, had applied for Indian status in 1998 and 2005, respectively. Their applications were based on the fact that they were descendants of members of Manitoba's Sandy Bay First Nation through Isbister’s father and Bocchini’s grandfather, St. Pierre Cook.
In 2007, both Bocchini and Isbister were registered as Indians under the Act and began receiving benefits that come with Indian status, including health benefits.
However, in April 2009, the registrar deregistered them without notice on the basis that Cook took a “half-breed scrip” in exchange for the extinguishment of his Indian rights in the 1880s, when he was a teenager.
This scrip was offered to Métis individuals in the form of a scrip note or certificate, redeemable for a one-time payment in land or money, in exchange for withdrawing from and extinguishing their treaty rights.
When Bocchini and Isbister were deleted from the register, their benefits were cancelled even though the time to protest and appeal the decision had not yet run out. As a result, they lost the benefits to which registration entitled them, including health-care benefits.
In 2011, Bocchini and Isbister protested the registrar’s decision under s. 14.2 of the Indian Act. Isbister passed away before the registrar issued a decision denying their requests in 2014. Bocchini commenced a statutory appeal.
In addition to the significant delay in the registrar’s decision, Bocchini encountered difficulties in finding a new lawyer when she sought to transfer her file from the original lawyer in Ottawa who had initiated the appeal.
“[T]hey encountered difficulties finding a lawyer who would be willing to act on the matter pro bono,” said Lucas Lung of Lerners LLP, counsel for Raymond Bocchini in his capacity as trustee of the estate of Sharon Bocchini.
Lucas Lung of Lerners LLP
He added that a lack of court resources likely delayed the matter by a year or a year and a half.
In May 2021, the parties consented to an order, directing the matter back to the registrar for reconsideration. The court order specifically directed the registrar to take into account all available documentation, including evidence of scrip fraud and a lengthy affidavit prepared by a historian, Rarihokwats.
Lung noted that the consent order addressed the appellant’s issue of needing to rely on fresh evidence on appeal.
In November 2021, the registrar issued a new protest decision, declining to restore Bocchini’s name to the register.
The registrar found that Cook had always lived with his grandfather, Baptiste Spence Sr., who was issued a scrip in July 1887.
He further found that the Spence Sr. family grouping, including Cook, withdrew from treaty rights on April 2, 1886, as the Indian Act provided that unmarried minors would be withdrawn from treaty rights along with the head of the family.
The registrar also found that Cook was issued a scrip on March 8, 1888, and that the issuance of the scrip to Cook was lawful as he was 18 years old when he completed a scrip declaration.
The appellant challenged the decision, arguing that the registrar erred in concluding that Cook was automatically and lawfully withdrawn from treaty rights along with his grandfather.
The appellant also argued that the Registrar erred in concluding that Cook received a scrip and withdrew from the treaty.
The court observed that cases of scrip fraud were very common and well-known in the case of the Sandy Bay Band.
Justice Akbarali noted that in August 1886, a letter was sent on behalf of Band members petitioning the inspector of Indian agencies for relief following their withdrawal from treaty rights.
“The Band members claimed to have been deceived and misled in order to induce them to make application for scrip and withdraw from treaty. Mr. Cook’s grandfather, Baptiste Spence Sr., was the chief spokesperson for the Band members on this issue,” the judge wrote.
The judge noted that the letter had alleged that the Indian agent for Sandy Bay had told the Band members they should take scrip, and that everyone “who had a drop of white blood” would lose everything, including the reserve and treaty money if they did not leave the treaty.
The letter alleged that the Indian agent and an individual named William Sifton coerced Band members to withdraw from the treaty and sell their scrips to Sifton, who bought a large number of scrips from the Sandy Bay Indians, as they were then known, for a fraction of their value.
The court noted that the agent’s actions were referenced in the debates in the House of Commons in April 1888, and the question of his behaviour had prompted then-prime minister John A. Macdonald to promise to inquire into the matter three times during the debate.
Band members, including Spence Sr., signed a petition asking to get back to the reserve as it was and re-enter the treaty.
In 1891, the dominion government made the decision to allow Sandy Bay Indians to return to treaty if they agreed to the repayment of the scrip from their annuities. The majority of those who left treaty in 1886 re-entered treaty.
The court noted that there was evidence that Spence Sr. had died by the time the decision to allow the Sandy Bay Indians to re-enter treaty was made and that Cook had moved about 100 km away from the reserve.
The court also found that there was no evidence that Cook had actual knowledge of the opportunity to re-enter treaty.
Justice Akbarali observed that the protest research record indicated the Indian Act was amended in 1886 to provide that unmarried minor children would also be withdrawn from the treaty when a Métis head of a family withdrew from it.
The court noted that this was an error as the wording that stipulated that a withdrawal would include minor unmarried children was actually introduced in 1888, two years after Spence Sr. had withdrawn from treaty.
The respondent, Attorney General of Canada, agreed that there was an error in the protest research record but argued that the registrar had made his determination in accordance with the 1886 provision.
The court rejected this argument, finding that it was not until 1888 that the words “minor unmarried children” were added to s. 13.
The court also rejected arguments that the 1888 amendments codified the existing state of law, in which an adult head of household could make legal decisions on behalf of their children.
Justice Akbarali noted that in the debates dealing with the 1888 amendments, then-prime minister Macdonald was recorded as stating that the amendments included a provision that withdrawal under s. 13 of the Act would include minor or unmarried children.
“At the very least, the amendment and the contemporaneous debates in the House of Commons indicate that the 1888 Parliament was of the view that the 1886 provision did not permit the automatic removal of a minor,” the judge wrote.
The court held that under a correct interpretation of the Indian Act (1886), Cook was not lawfully withdrawn from treaty in 1886.
With respect to the registrar’s conclusion that Cook lawfully received scrip, the court observed that the previous registrar had already determined that Cook was not legally capable of receiving scrip because he was a minor at the time.
The court held that Cook was 17 years old when he applied for scrip and when the application was approved.
Justice Akbarali further noted that the scrip was paid out when Cook was 18, but it was paid out to Sifton, who was identified by the Sandy Bay Indians as someone who participated in misleading them and purchased a large number of scrip.
“He was too young to lawfully receive scrip. Moreover, more likely than not, he and Baptiste Spence Sr. were victims of scrip fraud,” the court held.
The court reversed the removal of Bocchini and Isbister from the Indian Register.
The court also ordered Canada to pay the appellant’s costs in the amount of $19,946, even though the appellant’s counsel worked pro bono.
“This appeal was complex factually, and moderately complex legally. The effort put in by counsel was substantial and is reflected in the high quality of the work done. The amount of costs sought is reasonable in the circumstances,” the judge wrote.
Decisions in such status cases impact the ability of the affected individuals to access the non-insured health benefits program for First Nations and Inuit and the Post-Secondary Student Support Program, said David Schulze of Dionne Schulze LLP.
Schulze, who specializes in Aboriginal law, also noted that Indigenous Services Canada only provides funding for programs and services on reserve for individuals who have Indian status.
“The registrar has long-standing problems dealing with complex cases efficiently, in any kind of reasonable time, and dealing with them correctly,” he added, noting that when a status issue goes to court, the registrar’s position is usually rejected.
Indigenous Services Canada did not immediately respond to a request for comment
Counsel for the appellant were Lucas Lung of Lerner’s LLP and Miranda Brar of Schofield Macchia & Associates.
Counsel for the respondent was Madeline Torrie of Justice Canada.
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