Band council used ‘array of excuses’ to deny membership applications: Federal Court

 

(The Federal Court has ruled Amber Ragan, left, and her brother Brandon Engstrom are entitled to be members of Peters First Nation. Ragan is seen above holding her son Elijah in 2017.) 

A band council in British Columbia acted “unlawfully, unfairly and in bad faith” when it rejected the membership applications of two siblings, the Federal Court ruled last Friday, possibly putting an end to a drawn-out legal battle.

Justice Robert Barnes said Brandon Engstrom, 28, and Amber Ragan, 24, have “clear and unqualified rights to be members” of Peters First Nation because their father is already a member.

Peters’ membership code states any “natural child” of a parent, who is already a member, is entitled to membership – but band council still rejected their applications.

Council claimed children needed to be under 18 to qualify, even though the code doesn’t state that. Council also said the siblings needed approval from both of their parents and they needed to submit the application in person, as several other reasons to reject their applications in the summer of 2016 and again in 2018.

“The inference I draw from the evidence before me is that Council has strayed far beyond its allowed mandate and used unjustified and evolving array of excuses to evade its obligation to Mr. Engstrom and Ms. Ragan,” said Barnes.

When their applications were rejected in 2016 the pair filed for a judicial review and in 2018 Justice Simon Fothergill found council had “concocted” reasons to reject their applications but ultimately sent it back to council to reconsider its decision.

The siblings re-applied and were rejected again and then took their case back to the Federal Court before Barnes.

Council argued if the siblings were made members it feared they would want land and money.

“Indeed, it suggests that the reasons Council gave for denying membership were invalid and that what actually motivated the decision was unwillingness to share band resources,” said Barnes.

Engstrom told APTN News it feels like a “weight has been lifted” off his shoulders.

“This is all surreal,” he said. “I wish it didn’t have to get to court, but it’s all over now.”

It’s unclear if council will seek to appeal the decision. APTN requested comment but didn’t hear back from the three-member council.

Engstrom and Ragan’s father is Dwayne Peters, whose father is Robert Peters, 74, the oldest surviving member of the band.

Robert Peters lives on-reserve and has parcels of land he wants to pass down to his grandchildren but first they needed to become members.

APTN first wrote about the fight within Peters First Nation in 2017 and has been following the case since.

Peters is what’s known as a Section 10 band, meaning it controls its membership based on a code that was approved by the former department of Indian Affairs in 1987.

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There are more than 200 such bands across the country and section 10 of the Indian Act was amended following Bill C-31 that aimed to provide Indian status to women, and their children, who were stripped of their inherent rights for such things as marrying a white man at the time.

But these bands are supposed to follow the code when considering membership applications.

“In my view, this is an appropriate case to direct Council to take all the steps necessary to grant full Band membership to the Applicants. Council has repeatedly shown itself to be unfit to decide these matters and there is no reasonable expectation that fairness and reason will now prevail,” said Barnes.

He said there is no room for some other determination and said remitting to council  would serve no useful purpose.

“A reviewing court should not countenance ‘an endless merry-go-round of judicial reviews and subsequent reconsiderations’. This is particularly the case where the outcome is inevitable,” said Barnes.

(An aerial view of Peters First Nation. File photo)

The membership fight isn’t over for the siblings’ uncle, Guy Peters who just had his membership rejected for a fifth time on Jan. 21 following two Federal Court decisions. The first decision made him a member, which council appealed.

The Federal Court of Appeal said the original judge erred and failed to consider that Guy Peters was a member before 1985 and had the statutory right to be a member, regardless of the membership code.

The band council has again used its interpretation of the child rule, according to the band council resolution (BCR) obtained by APTN. View the BCR here.

Guy Peters, 55, was 19-years-old when he applied for registration on Sept. 17, 1985 with Indian Affairs.

“The Acting Registrar sent a letter on Aug. 21, 1987 confirming that he had been registered in the Indian Registrar in accordance with paragraph 6(1)(a) and as a member of Peers [sic] First Nation in accordance with paragraph 11(1)(a),” council states in the BCR.

“It is our opinion that the Acting Registrar’s conclusion about entitlement to membership pursuant to the Pre-1985 Act was incorrect due the fact that Mr. Peters was 19 years of age at the time of this application and 21 years of age when he was actually registered. In accordance to section 10 of the Pre-1985 Act, Mr. Peters would have to have been a ‘minor child’ to be entitled to be added to the Band List.”

Robert Peters is also Guy Peters’ father and also wants his son to have some of his land on Peters.

It’s unclear what the next steps are for Guy Peters in his fight to be a member of this band.

Peters First Nation is a small reserve of about 11 homes between Hope and Chilliwack along Highway 1 on the Fraser River.