Completed Inquiries – Reports Released

01/03/1998

Friends of the Michel Society [1958 Enfranchisement Claim] – March 1998

The fundamental question before the Commission in this inquiry was whether the "enfranchised" descendants and former members of the Michel Band were entitled to be recognized as a band under the Indian Act. Enfranchisement is the process by which Indians or bands lose their registered Indian status and band membership in return for the full rights of Canadian citizenship — for example, the right to vote. Voluntary enfranchisement first received legislative expression in the Gradual Civilization Act of 1857, which contemplated that, if an Indian could function in mainstream society, he should be able, and indeed encouraged, to do so, since the government's ultimate aim was full absorption of Indian people into Canadian society. However, given that voluntary enfranchisement had proven unpopular among Indians, the Indian Act of 1876 and subsequent amendments added new measures to hasten the assimilation process. Any Indian who became a doctor, lawyer, or clergyman, or who obtained a university degree, for instance, or any Indian woman who married a non-Indian, and any children of the marriage, would lose Indian status. These policies remained reflected in the Indian Act until 1985.

After the Michel Band entered into Treaty 6 in 1878, a reserve (IR 132)of 40 square miles was surveyed in 1880 near St Albert, Alberta, northwest of Edmonton. Over the years, a number of individual members of the Band were voluntarily or involuntarily enfranchised. Finally, in 1958, further to the recommendations of a Committee of Inquiry appointed under section 112 of the 1952 Indian Act, the entire Band was enfranchised. By 1962, all reserve lands and assets of the Michel Band had been distributed to its enfranchised members. In 1985, the discriminatory enfranchisement provisions were removed from the Indian Act by means of the Bill C-31 amendments, which reinstated Indian status, and in some cases band membership, to most people who were enfranchised. As a result of these amendments, some 660 individuals who are former members or descendants of the Michel Band — primarily people who were enfranchised before 1958 — have regained Indian status and are currently listed on the Indian Register.

The Society claimed that the 1958 enfranchisement of the Michel Band was invalid, and that various land surrenders prior to the band enfranchisement were improper. Before the merits of these claims can be considered by the Commission, however, it was necessary as a preliminary matter to determine whether the Bill C-31 amendments created an obligation on Canada to recognize the former members and descendants of the Michel Band as a "band" within the meaning of the Indian Act and the Specific Claims policy. Canada took the position that the Band ceased to exist as a result of the 1958 enfranchisement, that the Society is not entitled to be recognized as a band under the Indian Act, and that it therefore has no standing to bring a claim.

For the purposes of the inquiry, the parties and the Commission assumed, on a "without prejudice" basis, that the Michel Band ceased to exist as a band under the Indian Act in 1958 as a result of the band enfranchisement. Notwithstanding this assumption, the Society argued that Canada is statutorily required to maintain a band list for each band and to record additions and deletions to the list, even if all the names have been deleted from it. Canada responded that a band list is only to be maintained where a band exists. The Commission concluded that, although Canada's argument is inconsistent with the purpose of Bill C-31 to reinstate Indian status and, in some cases, band membership, the language of the statute does not support the Society's position where a band no longer exists. A list of deleted names of members of a band that no longer exists ceases to be a band list. Since the Michel Band ceased to exist in 1958, there is no longer any obligation on Canada to maintain a band list for the Michel Band.

Although band enfranchisement grew out of the same assimilationist and colonial policy as individual enfranchisement, the 1985 amendments to the Indian Act do not include band enfranchisees among those entitled to regain Indian status. Moreover, although the 1985 amendments provide that certain individuals reinstated to Indian status are entitled to have their names added to a band list maintained by Indian Affairs, there is no band list on which to reinstate former members and descendants of the former Michel Band. The act of creating or reconstituting bands or band lists is governed by specific sections of the Indian Act, and does not result from the operation of the 1985 amendments. If parliament had intended such a result, it could have stated that intention in clear and simple language. Although the Commission can go beyond the written words of a statute to render explicit that which is implicit, it is not possible for the Commission to interpret a statute so as to usurp parliament's legislative role.

Contending that its members constitute a band because they are a "body of Indians" who had reserve lands set aside for them at one time, the Society argued that the Michel Band did not cease to exist simply because it was without reserve land. Alternatively, if its claim ultimately proves successful, the Society suggested that its members would meet the definition of "band" by virtue of Canada holding moneys and lands in trust for them. The Commission concluded that a band is a body of Indians which has had land set aside and continues to hold those lands. The Commission declined to find that a band exists on the basis of the possibility that the claim regarding moneys in trust would prove successful.

Because the Commission concluded that Canada has no obligation to recognize the former members and descendants of the Michel Band as a band, the Society is ineligible to bring a claim under the Specific Claims policy. The policy does not afford individuals or groups of individuals redress unless they are a "band" within the meaning of the policy. It was outside the agreed scope of the inquiry to determine whether the Society constitutes a band at common law.

However, the Commission felt constrained to exercise its discretion to make a supplementary recommendation to the Minister of Indian Affairs where "the policy was implemented correctly but the outcome is nonetheless unfair." Although Canada has no legal obligation to reconstitute the Michel Band, and the Society has no standing to bring a claim, the Society's lack of recourse would result in manifest unfairness if the Society is correct in its assertions that certain surrenders of land by the Michel Band in the early 1900s were improper and invalid. Although the Commission is not prepared to make findings on the merits of the Society's claims, its lack of recourse means that Canada might be able to ignore its obligations and not have to account for damages suffered by the Band and its descendants even if those claims are legitimate. The Commission concluded that it would be inappropriate for Canada to stand on a technical legal advantage derived from the combination of band enfranchisement, the strictures of the Specific Claims policy, and a possible gap in the Bill   C-31 amendments. Canada should deal with the claims of the Michel Society on their merits. Failure to do so would be inconsistent with the Specific Claims policy, the Crown's fiduciary relationship with aboriginal peoples, and the spirit of the Bill C-31 amendments.

Response: In October 2002, government rejected recommendation made in March 1998 report, stating: "Canada has declined to accept the ISCC’s recommendation to grant the Friends of the Michel Society special standing to advance specific claims."

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