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Indigenous - Indian Act. Bocchini Estate v. Canada (Attorney General)
In Bocchini Estate v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this relating to "the respondents’ longstanding attempt to be added to the Indian Register on the basis that they were the direct descendants of an “Indian”" and whether "the decision of the head of a family to withdraw from treaty result in the withdrawal of dependent family members?".
Here the court cites some Metis and Indian Act history, the illustrates specific events and fact-findings of this case:[6] The relevant history is set out in the decision of the Supreme Court in Manitoba Metis Federation Inc. v. Canada, 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 19-39, and is recounted here only in brief.
[7] In the 19th century, the area that is now Manitoba experienced a significant influx of settlers, leading to Métis-led resistance and conflict. In an effort to resolve that conflict and in exchange for “the extinguishment of the Indian Title”, the government granted 1.4 million acres of land to the children of the Métis. This was accomplished through s. 31 of the Manitoba Act, 1870, S.C. 1870, c. 3. Although the 1.4-million-acre allotment was intended to be sufficient to provide for all Métis children, the government underestimated the number entitled to land and, as a result, 993 Métis children were mistakenly deprived of the opportunity to participate in the distribution of land. An Order-in-Council dated April 20, 1885 provided that these Métis would instead be given scrip, redeemable for $240 or 240 acres of land.
[8] The Indian Act was introduced in 1876, six years after the Manitoba Act: The Indian Act, 1876, S.C. 1876, c. 18. Métis, described as “half-breeds”, were not regulated by the Act. In order to exclude them from its scope, the legislation made clear that “no half-breed in Manitoba who ha[d] shared in the distribution of half-breed lands shall be accounted an Indian”: s. 3(3)(e). This basis for differentiating between Métis and Indians has been carried forward to the present day: those whose ancestors “received or [were] allotted half-breed lands or money scrip” are not entitled to be registered as an Indian: The Indian Act, S.C. 1951, c. 29, s.12(1)(a)(ii); Indian Act, 1985, s. 6(1)(a).
[9] Importantly for the purposes of this appeal, by amendment to the Indian Act in 1879, the government allowed Métis who had previously adhered to treaty to change their status by withdrawing from treaty and taking scrip: An Act to amend “The Indian Act, 1876”, S.C. 1879, c. 34, s. 1.
[10] Ms. Bocchini applied for Indian status in 1998 and her mother, Bertha Isbister, applied in 2005. Their applications were considered together by the Registrar.
[11] The Registrar initially denied their applications in 2006 on the basis that Ms. Bocchini’s grandfather, St. Pierre Cook, received scrip. However, following further communications with the parties, the Registrar found that Mr. Cook was a minor at the relevant time, and thus incapable of receiving scrip. As a result, the respondents were added to the Indian Register in December 2007 and received the relevant benefits.
[12] In 2009, the Registrar reopened the investigation into the respondents’ entitlement and determined that the respondents should be removed from the Register because Mr. Cook had validly received scrip. In 2011, the respondents formally protested the Registrar’s decision under s. 14.2 of the Indian Act, 1985. The Registrar denied their protests in 2014.
[13] The respondents appealed the Registrar’s decisions pursuant to s. 14.3 of the Act. On May 4, 2021, Brown J. made an order, on consent, setting aside the decisions and remitting them to the Registrar for reconsideration and further investigation. The Registrar was instructed to consider all documentation available to him, including the respondents’ original applications for registration, all correspondence and documentation provided by the respondents, the affidavit of an historian retained by the respondents, and relevant legislative changes.
The Registrar’s 2021 decision
[14] The Registrar issued a new decision on November 16, 2021. He found that Baptiste Spence Sr. (Ms. Bocchini’s great-great-grandfather) withdrew himself and Mr. Cook from treaty on April 2, 1886. The Registrar concluded that Mr. Spence Sr. had the power to legally withdraw Mr. Cook as he was the head of his family and Mr. Cook was in his care. The Registrar relied on the Indian Act as it existed in 1888. Section 13 of that Act provided, in relevant part:[…] any half-breed who has been admitted into a treaty shall, on obtaining the consent in writing of the Indian Commissioner or in his absence the Assistant Indian Commissioner, be allowed to withdraw therefrom on signifying in writing his desire so to do, — which signification in writing shall be signed by him in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same; and such withdrawal shall include the minor unmarried children of such half-breed. [15] The underlined portion was the product of an amendment in 1888 and is not found in the 1886 Act, which applied at the time of Mr. Cook’s withdrawal: An Act further to amend “The Indian Act”, S.C. 1888, c. 22, s. 1.
[16] The Registrar found that, once withdrawn, Mr. Cook was issued scrip on March 8, 1888. He calculated Mr. Cook’s age as 17 on the date of withdrawal and 18 when the scrip declaration was completed.[1]
[17] The Registrar considered evidence that the respondents alleged was indicative of scrip fraud. This included a petition by several members of the Sandy Bay Band who had withdrawn from treaty and taken scrip. Mr. Spence Sr. and his family were members of the band and Mr. Spence Sr. was a signatory to the petition. The petition requested that those who had withdrawn be given the opportunity to return to treaty.
[18] As part of his review, the Registrar also considered two letters, sent after the petition, which explained the basis for the request. In one letter, members of the band complained about an Indian Agent, Mr. Martineau, and a speculator, Mr. Sifton, alleging that these men had lied to the band members and induced them to withdraw from treaty. The second letter, sent by a school teacher, Mr. Twedell, who was also implicated in the first letter, asserted that none of the band members were deceived, and that Mr. Spence Sr., in particular, was “glad” to have taken scrip because he was his “own master now” and could go where he liked. Mr. Twedell asserted that the petition was an attempt by the band members to get the benefit of both scrip and treaty annuities. The Registrar called this second letter a “clarification” to the first.
[19] In 1891, the petition was granted, on the condition that the value of scrip the petitioners had received would be deducted from the treaty annuities that they would receive if they chose to re-enter treaty. Most members of the band elected to repay their scrip and return to treaty, but Mr. Spence Sr. and his family did not. The Registrar considered this history and concluded that it did not establish that the issuance of scrip to Mr. Spence Sr. and his family was fraudulent. He concluded that “it is evident that following receipt of scrip, the Sandy Bay Indians had wished to remain on the reserve and return to treaty” but that, merely on the correspondence between the band members and the government, it “cannot be determined whether the issuance of scrip [to Mr. Cook] was fraudulent”.
[20] Accordingly, the Registrar concluded that the respondents’ ancestors lawfully withdrew from treaty and took scrip. As a result, the respondents were not entitled to be added to the Register. The balance of the case [paras 21-85, and a dissent paras 86-141] is an useful exploration of rare Metis law and history.
For some background see: Metis scrip.
. Bogue v. Miracle
In Bogue v. Miracle (Ont CA, 2024) the Ontario Court of Appeal allows some funds sought on a 'security for judgment' motion:[31] Finally, Mr. Bogue asks for security for judgment in the amount of $1.5 million as a “top-up” to the sum that SLF is currently holding. This would effectively ensure that the entire amount that Mr. Bogue says is owing to him is sitting with both SLF Inc. and the court. He says that this is the “only way” in which he will “ever collect the full amount of the judgment” and get the funds off of the reserve.
[32] Security for judgment is an “extraordinary remedy”: Wiseau Studio, LLC. v. Harper, 2021 ONCA 31, at para. 24, motion to review allowed in part, 2021 ONCA 396, leave to appeal refused, [2021] S.C.C.A. No. 464. Such an order should be reserved for the most exceptional circumstances.
[33] Mr. Bogue acknowledges that this is about trying to get money secured into the court that may otherwise be money that rests on reserve. To me, this comes very close, if not crosses over the line into what this court has earlier said cannot be done by virtue of s. 89 of the Indian Act. It is best that all of these issues are sorted out in the normal course and through proper litigation with a proper and complete evidentiary record.
[34] Accordingly, Mr. Miracle shall pay into court security for costs in the total amount of $115,026.90 within 30 days. . Hiawatha First Nation v. Cowie
In Hiawatha First Nation v. Cowie (Ont CA, 2023) the Court of Appeal considered, and allowed, an appeal against a permanent injunction obtained by a native band council against further development of a gas station - pending completion of a 'Land Code and Comprehensive Community Plan'.
In these quotes the court considers the different legal effects of an Indian Act band 'by-law' as opposed to a 'resolution':[7] On July 17, 2019, Hiawatha First Nation passed BCR 21/19. As the application judge explained, the Resolution imposed “a moratorium on the creation of all new businesses without council’s approval (to be given in extraordinary circumstances only), to allow [Hiawatha First Nation] to complete its Land Code and Comprehensive Community Plan.”
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D. THE APPLICATION JUDGE’S REASONS
[15] The application judge rejected the appellants’ argument that BCR 21/19, which provides for a moratorium on the creation of all new businesses, did not have the force of law. The appellants argued that Hiawatha First Nation’s zoning authority under s. 81(1)(g) of the Indian Act may only be exercised by passing a by-law, and not by passing a resolution. The application judge found that Hiawatha First Nation Band Council had the power under s. 81(1)(g) of the Act to regulate the carrying on of businesses on the reserve and that BCR 21/19 was passed in accordance with s. 2(3)(b) of the Act by a majority of the councillors. He held that the BCR could be considered a by-law enforceable under s. 81(3). He found that the distinction argued by the respondent between resolution and by-law was “too rigid”. In his view, to “hold otherwise would be to allow form to triumph over substance.”
[16] The application judge found that the only basis on which the appellants were not entitled to proceed with the project was BCR 21/19. He noted that the purpose of the resolution was to temporarily freeze development pending finalization of the Hiawatha First Nation Land Code – which has now been completed and is in effect. He said: “As the Land Code has since been finalized and is now in effect, the proponents should be entitled to proceed with their project, provided that they comply with the Code and relevant by-laws”, assuming they were capable of doing so.
[17] In view of the state of the project and the prospect that it could be completed, the application judge declined to require the appellants to “remove the tanks and the added fill and restore the property to its original condition.” He thought “they should be given a reasonable opportunity to establish their entitlement to proceed.”
[18] The application judge ordered that the appellants be restrained from continuing work on the gas station for as long as the moratorium imposed by BCR 21/19 remains in effect and thereafter until they comply with all applicable law. He dismissed Hiawatha’s cross-application.
E. ANALYSIS
[19] It is common ground that s. 81(1) of the Indian Act authorizes Hiawatha First Nation Band Council to enact by-laws governing certain subject matters. The relevant excerpts are these:81 (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,
(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone;
(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band; [20] The appellants argue, as noted, that BCR 21/19 was only a resolution, not a by-law. As such it was no more than “simply the expression of the will of a First Nation’s council” as Grammond J. stated in Knibb Developments Ltd. v. Siksika Nation, 2021 FC 1214, at para. 10.
[21] The appellants submit that a band council’s authority under s. 81 of the Indian Act can only be exercised by passing a by-law. Accordingly, the application judge was not correct in stating that BCR 21/19 could be construed as a by-law. They assert that because the resolution is not a by-law under the Indian Act, there was no authority by which the application judge could have continued the injunction. They add that success on this ground would have implications for the application judge’s costs decision.
[22] The respondent argues that BCR 21/19 was the functional equivalent of a by-law and eligible to be enforced as such.
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[60] A band council’s passage of a by-law is an act of law-making within carefully defined areas of jurisdiction, and a by-law has the force of law on the reserve under the Indian Act. As Grammond J. noted in Knibb Developments: “a by-law is an act of a governmental body that creates rules binding on all persons or a category of persons under the jurisdiction of that body.” It is plainly intended to elevate the exercise of law-making authority.
[61] By contrast, the passage of a resolution by a band council is an expression of the band council’s will that cannot create rights and duties for band members or others, and does not have the force of a by-law.
[62] It must also be noted that this case involves potential legal interference with rights, i.e., proprietary rights. The distinction between a by-law and a resolution is all the more consistent with maintaining a high standard for substantiating such a legal interference. A band council resolution can bind the band council itself. A by‑law can bind others.
[63] The contrast between a band council resolution, a by-law under the Indian Act, and a First Nation’s law under its Land Code discloses scaling requirements for exercising governance powers. This illustrates that the evolution towards self-government carries with it an emphasis on legality and its necessary concomitants – careful attention to formality and process.
[64] The fact that a band council might have publicized a resolution as it would a by-law does not have the effect of converting a resolution into a by-law, even if the subject matter of the resolution might have been properly embodied in a by-law. The presence of only some badges of a by-law is insufficient. Hiawatha First Nation Band Council was well familiar with both by-laws and resolutions, as was noted in argument, having passed both. That it chose not to enforce the moratorium by means of a by-law must itself be respected as its own governance choice, as was the case in Gambin.
[65] To conclude, a First Nation band council’s passage of a by-law under the Indian Act is a serious act of law-making and must follow the rules of law-making in the Act in order to secure the legal weight of enforcement. Hiawatha First Nation Council Resolution 21/19 was not a by-law under the Indian Act either in form or in substance. Consequently, the application judge erred in enforcing it by continuing the injunction. At paras 30-50 the court considers the history of resolutions and bylaws, and their distinct difference.
. Bogue v. Miracle
In Bogue v. Miracle (Ont CA, 2022) the Court of Appeal considers the interaction between provisions of the Indian Act that prohibit seizure of native assets and a receivership order made under CJA 101.
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