[1] Guy Peters [Applicant] seeks judicial review of the Peters First Nation [PFN] Band Council’s [Band Council] [together, the Respondents] January 21, 2020 decision refusing his application for membership in PFN [2020 Decision]. PFN, as represented by the Band Council, issued the 2020 Decision by way of Band Council Resolution. The 2020 Decision was made in accordance with the Federal Court of Appeal’s decision in Peters First Nation Band Council v Peters, 2019 FCA 197 [Peters FCA], wherein the Court remitted his initial membership application for redetermination.

[2] The application for judicial review is allowed.

[3] PFN is a band within the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act] governed by one Chief and two Councillors. It is a small First Nation with only 65 members, 42 of whom are entitled to vote [Electors]. At the time the Peters Indian Band Membership Code [Membership Code] came into effect, PFN had only 26 Electors.

[4] This application engages two separate but related schemes concerning the granting of membership in PFN: (1) the Membership Code; and (2) the Indian Act, including its predecessor the Indian Act, SC 1951, c 29 [Pre-1985 Indian Act].

[5] Prior to 1985, The Department of Indian Affairs and Northern Development [DIAND, formerly Indian and Northern Affairs Canada or INAC, now referred to as Indigenous Services Canada or ISC] maintained both the General List of status Indians as well as the Band List of members for each First Nation. After 1985, due to amendments to the Indian Act, Parliament enabled First Nations to adopt their own membership rules on certain conditions. PFN created interim rules in 1985 [Interim Rules] and adopted the Membership Code in 1990. The relevant section of the Membership Code provides:

[6] The Court in Peters FCA set forth the relevant provisions of the Pre-1985 Indian Act:

[7] The Indian Act was the subject of significant amendments by Bill C-31, An Act to Amend the Indian Act, 1^st Sess, 33^rd Parl, 1985 [Bill C-31]. The Bill C-31 amendments came into effect on April 17, 1985.

[8] The Court in Peters FCA set out the relevant statutory scheme for the Indian Act:

[9] In Peters v Peters First Nation Band, 2018 FC 544 [Peters FC], this Court addressed the first denial of the Applicant’s membership application in PFN. The Band Council appealed, resulting in Peters FCA. The Federal Court of Appeal’s overview is useful to reproduce, as it reflects the facts before the Court in this application:

[10] More will be said of former Chief Peters’ request to have the Applicant’s name removed from the “manually maintained” list [Band List] in 1987. Briefly, the Respondents submit that the Applicant should have challenged this decision and, as a result, the Applicant is precluded from seeking judicial review now.

[11] Peters FC involved the Applicant’s first membership application as well as the membership applications of his niece and nephew, Amber Rachel Ragan and Brandon Lee Engstrom. This Court determined that the Band Council’s July 25, 2016 decision refusing their membership applications [2016 Decision] was unreasonable and that the Band Council could not deprive the Applicant of membership, as the Applicant had acquired his right to membership before the Membership Code came into effect (at paras 2, 43). The Court relied on an August 21, 1987 letter from the Acting Registrar of INAC [Registrar] to the Applicant [Registrar’s Letter] confirming that the Applicant was registered as a member pursuant to paragraph 11(1)(a) of the Indian Act, and an October 15, 1987 letter from the Registrar to former Chief Peters confirming that the Applicant’s name appeared on the PFN Band List. By virtue of subsection 10(4) of the Indian Act, the Band Council had no power to deprive the Applicant of his acquired right to membership (at para 43). The Court concluded that the Band Council’s failure to recognize that the Applicant was statutorily entitled to membership in PFN through the operation of Bill C-31 rendered the 2016 Decision unreasonable (at para 44).

[12] As for remedies, the Court found that no useful purpose would be served by remitting the matter to the Band Council for redetermination. Therefore, the Court declared the Applicant to be a member of the PFN (at para 58). As noted above, the Band Council appealed.

[13] In Peters FCA, the Federal Court of Appeal affirmed the unreasonableness of the 2016 Decision. However, the Court took issue with this Court’s remedy and its reasons thereof:

[14] The Federal Court of Appeal found that neither the Band Council nor this Court grappled with two central issues: (1) whether the Applicant is statutorily entitled to membership under the Pre-1985 Indian Act; and, if not, (2) whether the Applicant is entitled to membership under the relevant Membership Code. The Court also noted that the Applicant had not raised these issues in his membership application or with the Band Council (Peters FCA at paras 57, 59).

[15] The Federal Court of Appeal found that the Band Council should address these issues, with the assistance of submissions from the Applicant, before the Courts intervene. The Court referred the application back to the Band Council for redetermination (Peters FCA at paras 61-63).

[16] The exchange of correspondence described below, while framed as between the Applicant and the Band Council, were between the lawyers representing the parties.

[17] On August 22, 2019, the Applicant asked the Band Council to reconsider his membership application in light of Peters FCA. The Applicant provided detailed submissions addressing the two issues identified by the Federal Court of Appeal.

[18] The Applicant sent correspondence to the Band Council on September 23, 2019, November 22, 2019, and December 23, 2019, demanding compliance with the Federal Court of Appeal’s order.

[19] In its 2020 Decision, the Band Council rejected the Applicant’s membership application for the following reasons:

[20] On February 21, 2020, this Court addressed the Band Council’s redetermination of
Mr. Engstrom and Ms. Ragan’s membership application (Engstrom v Peters First Nation Band Council, 2020 FC 286 [Engstrom FC]). The Band Council rejected their applications on redetermination on the basis that they were adults when they applied for membership (at para 3). The Court found that there were no age restrictions in the Membership Code that limited applications in this manner, and that such a limitation would likely be prima facie discriminatory (at paras 10, 14).

[21] The Court described the conduct of the Band Council as unlawful, unfair, and the product of bad faith (at para 17). The Court directed the Band Council to take all the steps necessary to grant full membership to the applicants (at para 18).

[22] In two letters dated March 9, 2020 and March 11, 2020, the Applicant urged the Band Council to reconsider its 2020 Decision in light of Engstrom FC. The Applicant also gave notice of an appeal, requesting that the Band Council convene a general meeting within the 60-day time provided for under the Membership Code [Appeal Vote]. In a letter dated May 5, 2020, the Applicant reiterated his position and proposed a process for the Appeal Vote. Specifically, the Applicant requested that the Band Council adopt a mail-in ballot process to ensure a timely and representative vote in light of COVID-19 restrictions.

[23] In two letters dated March 18, 2020 and May 7, 2020, the Band Council refused to reconsider the 2020 Decision and advised that it was appealing Engstrom FC. However, the Band Council agreed to hold an Appeal Vote. The Band Council declined the Applicant’s mail-in ballot proposal.

[24] On July 30, 2020, the Band Council held an in-person Appeal Vote. Twenty-four (24) Electors attended the meeting, and 23 voted on the question of the Applicant’s membership. Of the 23 votes, 19 voted in favour of admitting the Applicant as a member. On August 14, 2020, the Band Council informed the Applicant that the vote was invalid because the Membership Code required a turnout of 75% of the voting membership (in other words, 33 members). As such, the Band Council would set another date for an Appeal Vote in order to obtain the requisite numbers.

[25] From August 2020 to May 2021, the Applicant wrote to the Band Council requesting a subsequent Appeal Vote. On June 17, 2021, as a result of the Band Council’s inaction, the Applicant filed the present application for judicial review.

[26] On July 21, 2021, the Band Council proposed to hold an Appeal Vote on August 21, 2021. On August 10, 2021, the Band Council informed the Applicant that several members were unavailable on the set date. As such, the Appeal Vote was postponed until December 22, 2021, the same day as the election for Chief and Council [Election], to ensure high voter turnout. The Band Council also advised that the Applicant was permitted to vote in the Election, and that if the membership overturned the 2020 Decision, his vote would be counted.

[27] On December 20, 2021, the Federal Court of Appeal affirmed the unreasonableness of the Band Council’s redetermination decision in Engstrom FC (Peters First Nation v Engstrom, 2021 FCA 243 at paras 15-28 [Engstrom FCA]). The Federal Court of Appeal also held that this Court did not err in ordering the Band Council to grant the respondents’ membership (at para 31).

[28] That same day, the Applicant wrote to the Band Council requesting that it confirm that he would be added to the membership list forthwith and that he would be entitled to vote in the Election. The Applicant also sought to confirm that the December 22, 2021 Appeal Vote was no longer required.

[29] The Appeal Vote proceeded on December 22, 2021, along with the Election for Chief and Council. However, the Appeal Vote was cancelled later that day by the Chief and Electoral Officer, alleging a lack of attendance at an information meeting held earlier that day. According to the Band Council, the Membership Code required 75% of the voting membership to attend this information meeting for the Appeal Vote to proceed.

[30] As the Respondents have noted, the Court in Engstrom FCA made findings directly on point for the present matter. Specifically, the Membership Code does not provide for age restrictions on the determination of membership in PFN. However, the Band Council filed an application for leave to appeal to the Supreme Court of Canada on February 17, 2021. At the time of the hearing of this application, the Applicant had not yet filed its response to the application for leave. The Respondents assert that the fact that the Supreme Court of Canada has not yet dealt with the appeal rendered this application premature.

[31] On October 20, 2022, the Supreme Court of Canada refused the Band Council’s leave to appeal. Engstrom FCA is binding authority for this Court.

[32] After reviewing the parties written submissions and hearing oral argument, the issues are:

[33] The Applicant submits that a band council’s interpretation and application of a custom membership code are reviewed on the standard of reasonableness (Norris v Matsqui First Nation, 2012 FC 1469 at para 50). The Applicant further submits that the standard of correctness applies to questions of procedural fairness (Crawler v Wesley First Nation, 2016 FC 385 at para 19).

[34] The Respondents do not make submissions on the standard of review.

[35] Issues #3 and #4 attract a reasonableness standard of review. The presumption of reasonableness applies to an administrative decision-maker’s interpretation of their enabling statute (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 [Vavilov]). In this case, the Band Council interpreted the Membership Code, an Indigenous law of PFN. Deference is owed to Indigenous decision-makers’ understanding of their own Indigenous laws (Pastion v Dene Tha’ First Nation, 2018 FC 648 at paras 21-23).

[36] A reasonableness review requires the Court to examine the Decision for intelligibility, transparency, and justification. In conducting a reasonableness review, the reviewing court must look to both the outcome of the decision and the justification of the result, particularly as they relate to the relevant factual and legal constraints (Vavilov at paras 87, 99). However, a reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision-maker” (Vavilov at para 125, citing Canada (Canadian Human Rights Commission) v Canada (AG), 2018 SCC 31 at para 55). Where the reasons of the decision-maker allow a reviewing Court to understand why the decision was made and determine whether it falls within a range of acceptable outcomes, the decision will be reasonable (Vavilov at paras 85-86).

[37] I also agree with the Applicant that the standard of review for Issue #5 is akin to correctness. No deference is owed on issues of procedural fairness (Connolly v Canada (National Revenue), 2019 FCA 161 at para 57). However, “[t]he duty of procedural fairness in administrative law is ‘eminently variable’, inherently flexible and context-specific” (Vavilov at para 77). In the context of Indigenous laws, the content of the duty of fairness must be “tailored to the particular circumstances and context of the [appeal body]. This context can and should include judicial respect for relevant custom” (Bruno v Samson Cree Nation, 2006 FCA 249 at para 20; Labelle v Chiniki First Nation, 2022 FC 456 at paras 91-92).

[38] The remaining issues do not attract a standard of review.

[39] Subsequent to the hearing of this matter, the Applicant’s counsel informed the Court by letter that the Supreme Court of Canada refused the Band Council’s application for leave in Engstrom FCA. This commenced an exchange in correspondence where the Court was informed of various positions of counsel. Those submissions are not relevant to the determination of this matter. I will address the matters as they were argued before the Court at the hearing.

[40] The Respondents submit that the Applicant must first exhaust the remedies under the Membership Code before being entitled to the relief sought in this proceeding. They assert that they have held two general meetings and are intending to hold a third as soon as possible, which may render this proceeding moot. This Court should consider judicial economy when determining this issue.

[41] This argument was raised in Peters FCA, where Justice Woods stated:

[42] As discussed above, the Applicant requested a reconsideration of the 2020 Decision in light of both Engstrom FC and Engstrom FCA. He also gave notice of an appeal pursuant to the Membership Code, but the Appeal Vote ultimately never materialized. Unable to make any progress, the Applicant filed this application.

[43] In asserting that there was a required 75% threshold at the information meeting for the Appeal Vote to proceed, the Band Council relied on the following provisions of the Membership Code:

[44] On a plain reading, the above threshold clearly relates to an appeal of one’s residency on the reserve, not an Appeal Vote concerning membership. According to Vavilov, a decision-maker may have some room to interpret the rules that apply to a matter before it, but that exercise “must be consistent with the text, context and purpose of the provision” (Vavilov at para 120). The Band Council’s interpretation of the above provisions is inconsistent with the text of the provision.

[45] At the hearing, the Respondents advised that an Appeal Vote was scheduled for October 2022. In Peters FCA, the Court determined that the Applicant has sought membership in PFN since at least September 17, 1985, and that given the length of the dispute between the parties, it would serve the interests of justice for this Court to consider the merits of the application for judicial review (at para 42). What was true three years ago is true today. Accordingly, I do not find the application for judicial review premature.

[46] Although the Applicant has not requested an extension of time, either formally or informally, I am of the view that the application for judicial review is not out of time and that it is in the interests of justice to hear the matter.

[47] The Respondents submit that the Applicant is 15 months beyond the 30-day time limit set out in section 18.1(2) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act].

[48] In my view, the Respondents’ submissions fly in the face of their prior prematurity argument. The Applicant has attempted exhaust his remedies under the Membership Code through an Appeal Vote. The record shows that these attempts have been thwarted by the Band Council. The Respondents cannot have it both ways.

[49] The 30-day limit for commencing judicial review applications exists in the public interest. As the Federal Court of Appeal has explained, “[i]t brings finality to administrative decisions so as to ensure their effective implementation without delay and to provide security to those who comply with the decision or who enforce compliance with it” (Canada v Berhad, 2005 FCA 267 at para 60).

[50] Subsection 18.1(2) of the Federal Courts Act provides this Court with a discretionary power to extend the 30-day time limitation. Various factors are relevant in an application to extend time. One such factor requires that an applicant demonstrate a continuing intention to pursue legal remedies in regard to the decision being challenged (Crowchild v Tsuu T’ina Nation, 2017 FC 861 at para 19). However, these factors are not rules that fetter the Court’s discretion, and it is open to a motion judge to determine which factors are to be taken into account based on the facts of a particular case (Jakutavicius v Canada (AG), 2004 FCA 289 at paras 15-17). Ultimately, the overriding consideration is that the interests of justice be served (Thompson v Canada (AG), 2018 FCA 212 at paras 6, 9).

[51] In the present case, the Applicant took all of the necessary steps under the Membership Code to initiate the administrative appeal process in due time. The record shows that the 15 month time period referenced by the Respondents is not a result of the Applicant’s conduct. Rather, the Applicant was very active in pursuing the Appeal Vote. Moreover, by letter dated May 10, 2021, the Applicant informed the Band Council that if an Appeal Vote was not scheduled by the end of May, he would file a court application for the immediate registration of his membership. The Applicant then filed his application for judicial review on June 17, 2021.

[52] The Applicant should not be penalized for attempting to exhaust his remedies in accordance with the Membership Code before filing his application for judicial review. In fact, the constant postponement of the Appeal Vote has already prejudiced the Applicant. If the vote had been held within the 60-day time period required by the Membership Code, the Applicant could have initiated an application for judicial review before this Court as early as June 2020. The Applicant lost a full year in seeking relief before this Court due to the Band Council’s actions.

[53] Despite his absolute right to membership, former Chief Peters wrote to Registrar asking that the Applicant be removed from the Band List (Peters FC at para 14). There is no record of a response from the Registrar. Accordingly, these events have no legal effect on the Applicant’s entitlement to membership.

[54] Further, subsection 10(8) of the Indian Act provides that bands who assume control over its membership may only modify the Band List in accordance with the membership rules established by the band. Neither the protest provisions under the Indian Act nor the Membership Code were followed in seeking to remove the Applicant from the Band List.

[55] Given the Band Council’s persistent refusal to recognize the Applicant as a member, the Applicant was forced to formally request membership on the basis of his acquired rights. However, neither former Chief Peters nor the subsequent Band Councils had the authority to unilaterally remove him from Band List. If the Band Council wanted to challenge the decision of the Registrar to add him to the Band List, it ought to have complied with the protest provisions under the Indian Act.

[56] PFN had control of its membership as of June 25, 1987. The Applicant did not become a status Indian until August 21, 1987, at which time he was 21 years old. Therefore, prior to that time, he could not be affiliated with any First Nation by INAC, much less be included on any First Nation’s membership list.

[57] Those on the PFN membership list as of June 25, 1987 automatically became members of PFN and subject to the Membership Code. The Applicant was not one of those individuals. The Registrar placed the Applicant on the Band List some time between September 18, 1987 and October 15, 1987. This did not provide the Applicant with membership in PFN, as by then any additions were at the discretion of the Band Council and, failing that, the appeal provisions of the Membership Code. Accordingly, the Band Council was entitled to reject the Applicant’s membership when it did so in 1987 for the reasons set out in the 2020 Decision. Further, the Applicant had not sought judicial review of these events.

[58] This issue was addressed in Peters FC, where Justice Fothergill stated as follows:

[59] The Respondents’ submission that the Applicant failed to seek judicial review of former Chief Peters’ November 12, 1987 request to remove him from the Band List is without merit. The Band List was maintained by INAC and has never been in the hands of the Band Council, as illustrated by the following passage of the Registrar’s Letter:

[60] I agree with the Applicant that there is no indication in the record that the Registrar ever complied with former Chief Peters’ request to remove the Applicant from the Band List. For these reasons, Chief Peters’ request does not preclude the Applicant from seeking judicial review.

[61] The Band Council’s reasoning that the Applicant would have to be a minor child to be added to the Band List is incorrect. The Registrar, who specifically acknowledged the Applicant’s date of birth, stated that he was entitled to be registered under paragraph 11(c) of the Pre-1985 Indian Act and entitled to membership in his father’s band. In confirming his membership registration, the Registrar wrote:

[62] Paragraph 11(c) of the Pre-1985 Indian Act reads:

[63] The Registrar correctly recognized that the Applicant is a male person and a direct descendant of Robert Peters, a member of PFN. Paragraph 11(c) of the Pre-1985 Indian Act was grandfathered into the Indian Act under section 6(1)(a) (Landry c Canada (PG), 2017 QCCS 433 at paras 20-21). Therefore, any person entitled to membership under the Pre-1985 Indian Act acquired those rights under the Indian Act pursuant to paragraph 11(1)(a). Under the Pre-1985 Indian Act, band membership followed registration (Ranville et al and Attorney-General of Canada (1979), 1979 CanLII 1686 (ON SC), 26 OR (2d) 721, 103 DLR (3d) 760).

[64] When the Registrar added the Applicant to the Band List as a person entitled to be entered under the Pre-1985 Indian Act, he was informed that he was registered under paragraph 11(1)(a) of the Indian Act. Pursuant to section 6 of the Pre-1985 Indian Act, “[t]he name of every person who is a member of a band and is entitled to be registered shall be entered in the Band List for that band…”

[65] Although the 1985 amendments to the Indian Act recognized the right of bands to determine their own membership codes, that right is subject to conditions set out in section 10 of the Indian Act. Under subsection 10(4), band membership rules may not deprive a person of membership “who had the right” to have their name entered in the band list for that band immediately prior to the time the rules were established. Put another way, membership rules must provide for the continuation of subsection 11(1) of the Indian Act.

[66] The Interim Rules provided for a continuation of subsection 11(1) of the Indian Act. Therefore, since the Applicant is entitled to membership under subsection 11(1)(a) of the Indian Act, the Band Council is obligated to recognize his membership under both the Indian Act and its own Membership Code.

[67] By letter dated October 15, 1987, the Registrar provided PFN with a copy of its Band List, which included the Applicant as a subsection 11(1) member. The Band Council had no discretion to remove the Applicant. The Applicant must only request to be added to the membership list (L’Hirondelle v Canada, 2004 FCA 16 at para 35).

[68] In its 2020 Decision, the Band Council acknowledged that the Applicant was registered under section 11(1) of the Indian Act, and thus they were precluded from refusing him membership. However, the Band Council then took the position that the Registrar erred in registering him because he was 19 years old when he applied for registration. The Band Council interprets the Pre-1985 Indian Act as excluding persons from band membership if they apply for registration as adults.

[69] Under paragraph 11(c) of the Pre-1985 Indian Act, “a male person who is a direct descendant in the male line of a male person” who is the member of a band is entitled to membership irrespective of the date of their application. There is no dispute that the Applicant is the son of a male member of PFN and that, as a result, his entitlement to registration in PFN was automatic. The Band Council’s reliance on the Applicant’s age to claim power to vitiate the Registrar’s decision was illegal and incompatible with the Indian Act. This is made clear by the following passage of the Indian Registration Administrator Training Manual:

[70] It was not open to the Band Council to challenge the Registrar’s decision, as that is now res judicata. To do so violates the doctrine of finality (Danyluk v Ainsworth Technologies, 2001 SCC 44 at para 20 [Danyluk]) and engages issue estoppel (Danyluk at paras 18-20), abuse of process (Behn v Moulton Contracting Ltd, 2013 SCC 26 at paras 37-42), and collateral attack (Canada (AG) v TeleZone Inc, 2010 SCC 62 at paras 60-61). If the Band Council believed that the Registrar was incorrect in its assessment of the Applicant’s membership, it was required to apply, at that time, under the relevant protest provisions of the Indian Act.

[71] The Applicant always has been entitled to membership under the Membership Code because he is the child of a parent who is a PFN member.

[72] The Band Council’s imposition of an age restriction offends the express binding provisions of the Membership Code. In any event, such a restriction, if it existed in the Membership Code, would likely violate the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[73] Engstrom FCA is binding precedent on this Court. In that case, the Federal Court of Appeal rejected the same position the Respondents are advancing in this proceeding.

[74] I find that the Decision is not internally coherent, does not include a rational chain of analysis, and is not justified based on the facts and law (Vavilov at para 85). The Band Council not only failed to engage with the Applicant’s submissions and the provisions of the Membership Code, but also failed to abide by the guidance of the Federal Court of Appeal in Peters FCA (at paras 57-62).

[75] I agree with the Applicant that the Band Council had no authority to find that the Registrar’s conclusion about his entitlement to membership pursuant to the Pre-1985 Indian Act was incorrect.

[76] As I explained briefly at paragraph 17 above, the Applicant’s submissions to the Band Council addressed his statutory entitlement to membership and his entitled to membership under the Membership Code as instructed by the Federal Court of Appeal in Peters FCA (at paras 57, 62). The Federal Court of Appeal required that the Band Council consider whether the Applicant had acquired a statutory right to membership under the Pre-1985 Indian Act in the event that he was not found to be entitled to membership under the Membership Code (at para 64).

[77] The 2020 Decision confirms that the Band Council was aware of its obligation to consider these two issues. However, the 2020 Decision centres around the alleged age restriction, asserting that the Registrar’s position on the Applicant’s membership was incorrect because the Applicant was an adult when he was first added to the Band List. Instead, the Applicant would have had to be a minor child to be added to the Band List in accordance with section 10 of the Pre-1985 Indian Act. Similarly, the Applicant was not entitled to membership because he was an adult when he applied for membership in March 2016. The Band Council went even further by stating that granting membership to the Applicant would not “promote harmony and the common good” as he has not been an active member of the community. I will address this statement further below.

[78] It is clear from Peters FCA that entitlement to status under paragraph 11(c) of the Pre-1985 Indian Act was relevant in deciding the Applicant’s membership in PFN. The Federal Court of Appeal recited the Registrar’s explanation that the Applicant is a male person who is a direct descendant in the male line of Robert Wilmer Peters and that he was entitled to be registered as an Indian and PFN member under the Indian Act on the basis of his entitlement to registration under the Pre-1985 Indian Act (at para 22). However, the 2020 Decision does not engage with the Pre-1985 Indian Act provision. In my view, the Band Council was required to consider section 11(c) of the Pre-1985 Indian Act, which addresses entitlement to registration. Instead, the Band Council considered an alleged age restriction.

[79] Furthermore, the Band Council has failed to provide any explanation as to how the language of section 10 of the Pre-1985 Indian Act would limit the scope of the Applicant’s acquired right to membership under paragraph 11(c) of the Pre-1985 Indian Act. A plain reading of section 10 indicates that its only purpose was to have the status of a male person’s wife and minor children mirror that of the male. The Applicant fits within this circumstance.

[80] The Band Council breached its duty of procedural fairness by interpreting the Membership Code in a way that does not reflect the language of the provisions. Specifically, the Band Council breached procedural fairness by:

[81] The Respondents made no submissions on whether the Applicant’s right to procedural fairness was breached.

[82] I agree with the Applicant that the Band Council breached his right to procedural fairness. As confirmed by this Court and the Federal Court of Appeal in Engstrom FC and Engstrom FCA, the Membership Code does not provide for an age restriction. In any event, if the Band Council intended to rely on an authority for the application of such a restriction, which Engstrom FCA confirms is non-existent, it had a responsibility to notify the Applicant. The Band Council did not do so. This is particularly significant given the consequences of the application of such purported authority for the Applicant. This alone is sufficient to illustrate the breach of the Applicant’s right to procedural fairness.

[83] The Band Council has refused to recognize the Applicant’s membership for over 35 years, despite his multiple formal and informal requests. As a result, the Applicant has been denied critical financial and cultural benefits that come with band membership. The 2020 Decision was made in bad faith.

[84] The Respondents do not make submissions on bad faith.

[85] Having reviewed the record, I agree with the Applicant that the Band Council has demonstrated bad faith by attempting to impose a non-existent age restriction. The Band Council’s conduct in relying on such an age restriction in light of both Engstrom FC and Engstrom FCA is one such example of bad faith. Despite those decisions directly addressing the Band Council’s position, it has refused reconsider its 2020 Decision even after the Applicant’s repeated requests to do so.

[86] I also find that the Band Council’s additional criteria of whether the Applicant’s membership would promote “harmony and the common good” has no basis in the Membership Code. Even if such discretion was provided for in the Membership Code, it would be impossible for anyone to determine whether the Applicant’s membership would promote harmony and the common good. The Applicant has been unable to participate in community initiatives in any way due to the imposition of arbitrary criteria throughout his various applications.

[87] Lastly, as set out above, the Band Council has taken extraordinary steps to avoid holding an Appeal Vote for one reason or another by, for example, importing the voting threshold for residency issues. The Band Council’s conduct necessitated this judicial review application at an emotional and financial cost to the Applicant and his family.

[88] In summary, the Band Council acted in bad faith by constantly moving the yardstick in determining the simple and straightforward matter of membership pursuant to the Membership Code. Similar findings were made in Engstrom FC (at para 17) and in Engstrom FCA (at para 34). The Band Council’s conduct has not changed in spite of these two decisions.

[89] The Applicant seeks an order that the 2020 Decision be quashed and a declaration that the Band Council register him as a member of PFN. The Applicant also seeks special costs in the amount of $75,000.

[90] The Respondents seek an order dismissing the application and an order for costs in their favour, with the parties being granted leave to speak to the magnitude of the costs following judgment being rendered.

[91] Having considered the Applicant’s extensive efforts to seek redress through a straightforward administrative process and to have legal certainty about his status within PFN, and what I have found to be bad faith on the part of the Band Council, I order PFN and the Band Council to take all necessary steps to grant full membership to the Applicant (Engstrom FCA at para 33). The record leaves no room for any other determination (Engstrom FC at para 18).

[92] Further, in light of the complicated history and the guidance provided by Engstrom FC, and Engstrom FCA, the Court will require additional submissions on costs from the parties.