The Federal Court found that the Membership Clerk of the Fort McMurray First Nation had properly placed a membership application on hold pending confirmation of the applicant’s actual registration under the Indian Act, even though the applicants were likely “entitled to be registered”. Respectfully, I see two problems with this decision:
Firstly, it appears to be pushing the boundaries of judicial deference. The case did not turn on the weight of any facts, but could be decided entirely on the wording of the Indian Act, read together with the Band Membership Code. It is a pure case of statutory interpretation because the Membership Clerk is not in any better position than the Federal Court to interpret these enactments.
Secondly, the Federal Court did not afford any substance to the words “entitled to be registered” found in the definition of “Indian” in section 2(1) of the Indian Act. Parliament said that there are two types of people who are considered to be an “Indian” — those who are actually registered, and those who are “entitled” to be registered. In this case the Federal Court does not appear to have given any meaning to the words “entitled to be registered”.
I have digested this case in my text Native Law with these comments, and I welcome any reader feedback if I have misunderstood the case: firstname.lastname@example.org.