Executive Summary: Key Legal and Evidentiary Issues

• Scope of s. 13 of the 1886 Indian Act and whether a Métis “head of family” could lawfully withdraw minor children from treaty along with themselves
• Interaction between historic Métis scrip schemes and modern Indian Act registration rules excluding descendants of persons who “received or were allotted” half-breed lands or money scrip
• Proper standard of review of the Registrar’s protest decision, distinguishing pure questions of law (correctness) from factual findings (palpable and overriding error)
• Whether historical correspondence and missing documentation were sufficient to prove that Mr. Cook and his grandfather were victims of scrip fraud
• Dispute over Mr. Cook’s age at key dates (withdrawal, application, issuance, and redemption of scrip) and whether any underage status invalidated his receipt of scrip
• Divergence between majority and dissent on statutory interpretation, including the use of legislative history, related statutes, and presumptions in favour of Indigenous peoples

Background and parties

This case arises from a long-running effort by the late Sharon Bocchini and her mother, Bertha Isbister, to be registered as “Indians” under the Indian Act based on their descent from treaty ancestors in Manitoba. The litigation is now continued by Sharon’s son, Raymond Bocchini, in his capacity as trustee of her estate. The core dispute is not about damages but about legal status: whether the family is entitled to be entered in the Indian Register and thereby gain Indian Act status and associated benefits. The respondent in the Court of Appeal is the Bocchini estate, while the appellant is the Attorney General of Canada, acting through the Registrar responsible for determining entitlement to registration under the Indian Act. The case sits at the intersection of Indigenous law, administrative law, and the historical treatment of Métis communities through both treaty and scrip regimes.

Historical context: Manitoba, Métis land grants, and scrip

The factual and legal background extends back to the late nineteenth century, when the area that would become Manitoba saw an influx of settlers and significant Métis-led resistance. To pacify the conflict and “extinguish the Indian Title” to land, Parliament enacted s. 31 of the Manitoba Act, 1870. This provision promised 1.4 million acres of land for the benefit of the families of Métis residents, to be divided among their children. In practice, the federal government badly underestimated the number of eligible Métis children. Almost one thousand Métis children were left out of the land distribution and, to address that failure, an Order-in-Council in 1885 substituted “scrip” for land. Scrip was a voucher redeemable for money or land—commonly $240 or 240 acres. At the same time, Parliament enacted and then repeatedly amended the Indian Act. Métis, referred to at the time as “half-breeds,” were excluded from the Indian Act’s scope where they had shared in the “distribution of half-breed lands.” That distinction—between those treated as Indians under treaty and those treated as Métis and excluded from Indian status because they or their ancestors had received land or money scrip—has been carried forward into the modern Indian Act. Under both the 1951 and 1985 versions, people whose ancestors received or were allotted half-breed lands or Métis scrip are not entitled to be registered as Indians. The law therefore embeds a historical policy choice: individuals and families who moved from treaty to scrip fell on the “Métis” side of the legal line and were excluded from Indian Act status, along with their descendants.

Treaty withdrawal and Métis scrip

An important development for this case was Parliament’s 1879 amendment to the Indian Act, which allowed Métis who had already adhered to treaty to withdraw from treaty and take scrip instead. The idea was to create a way for people classed as Indians under treaty to convert their position into access to the Métis land or scrip benefits tied to s. 31 of the Manitoba Act. Withdrawal, however, was regulated by s. 13 of the 1886 Indian Act. As it then stood, s. 13 permitted a “half-breed” who had been admitted into treaty to withdraw by signifying in writing his desire to do so, signing in the presence of two witnesses, and having those witnesses certify on oath before an authorized official. In 1888, Parliament amended s. 13 to add express language that such withdrawal “shall include the minor unmarried children of such half-breed.” The legal question at the heart of this appeal is whether, even before that 1888 amendment, a head of family who lawfully withdrew from treaty automatically took minor dependent children out of treaty with them.

The Bocchini family’s applications for Indian Act registration

In modern times, Sharon Bocchini applied for registration as an Indian in 1998, and her mother, Bertha Isbister, applied in 2005. Their applications were assessed together by the Indian Act Registrar because they turned on the same family lineage. The Registrar initially rejected both applications in 2006. Relying on historical materials, he found that Sharon’s grandfather, St. Pierre (St. Peter) Cook, had received Métis scrip. That finding meant that Cook and his descendants fell into the excluded category: persons whose ancestors had received half-breed lands or money scrip and thus could not be registered under the Indian Act. After further exchanges and additional materials, the Registrar reconsidered. He concluded that Cook had been a minor at the relevant time and therefore could not legally have received scrip. That conclusion removed the scrip-based bar. In December 2007, both Sharon Bocchini and her mother were added to the Indian Register and began to receive associated benefits.

Reopening of the file and the 2014 protest decision

In 2009, the Registrar reopened the file and launched a more detailed historical investigation. After reviewing archival materials, the Registrar decided that Cook had, in fact, validly received scrip. On that basis, he determined that both Sharon and her mother should be removed from the Indian Register. The family formally protested this removal under s. 14.2 of the Indian Act, 1985. In 2014, the Registrar denied the protest, effectively confirming that they were not entitled to Indian Act registration because of Cook’s receipt of scrip.

Court-ordered reconsideration and the 2021 Registrar decision

The family appealed the Registrar’s 2014 protest decision under s. 14.3 of the Act. In May 2021, a Superior Court judge (Brown J.) made an order on consent, setting aside the existing decisions and sending the matter back to the Registrar for fresh consideration. The Registrar was directed to consider a broad evidentiary record, including the original registration applications, extensive correspondence and documents from the family, an historian’s affidavit, and relevant statutory history. On November 16, 2021, the Registrar released a new decision. He found that Sharon’s great-great-grandfather, Baptiste Spence Sr., had withdrawn from treaty on April 2, 1886, and that the discharge certificate also named his grandson, St. Pierre (Peter) Cook, then 17, as withdrawn. Relying on s. 13 as he understood it in light of the later 1888 amendment, the Registrar concluded that Spence, as head of the family, had lawful authority to withdraw Cook along with himself. The Registrar further found that Cook was then issued scrip in 1888, that the value of the scrip corresponded to the amount eligible Métis children received as a substitute for a s. 31 land grant, and that there was insufficient proof that the issuance or redemption of scrip was fraudulent. He acknowledged letters from Sandy Bay Band members alleging deception by an Indian Agent and a speculator (Mr. Martineau and Mr. Sifton) but emphasized a later letter from a teacher denying fraud and describing Spence as being glad to have taken scrip and become his “own master.” On the totality of the record, the Registrar concluded that Spence and Cook had lawfully withdrawn from treaty and lawfully received scrip. Because the law excludes registration for those whose ancestors received such scrip, the Registrar determined that Sharon and her mother were not entitled to be on the Indian Register.

Superior Court appeal: findings in favour of the Bocchini family

The family again appealed, this time to the Superior Court of Justice. The appeal judge (Akbarali J.) allowed the appeal and set aside the Registrar’s 2021 decision. She made several key findings. First, she held that in 1886, when Cook was said to have been withdrawn, s. 13 of the Indian Act did not yet mention minor unmarried children; that wording only appeared in the 1888 amendment. In her view, the text of the 1886 provision did not permit automatic withdrawal of minors along with the head of family, and the 1888 amendment had to be interpreted as changing the law, not merely restating it. Second, she held that the Registrar had made a palpable and overriding factual error in miscalculating Cook’s age. She determined that Cook was 17 when he applied for scrip, when his application was approved, and when his scrip was sold, and so was never old enough to receive it lawfully. Third, she accepted the family’s allegations of scrip fraud. She criticized the Registrar for treating scrip certificates as essentially unimpeachable and for, in her assessment, virtually disregarding the evidence in the record. After weighing the historical letters and circumstances, she held that it was more likely than not that Spence and Cook were victims of scrip fraud. Having made those legal and factual findings, the appeal judge concluded that Cook would have been entitled to registration under s. 6(1)(a) as a person registered or entitled to be registered immediately before April 17, 1985; that his daughter, Bertha Isbister, would have been entitled under s. 6(1)(a.1) as a woman who lost entitlement by marrying a non-Indian in 1936; and that Sharon, in turn, would be entitled as a direct descendant under s. 6(1)(a.3). The practical result was that the court ordered their statuses recognized under the 1985 Indian Act.

Issues on appeal to the Court of Appeal

Canada appealed to the Ontario Court of Appeal. It conceded that to succeed it had to prevail on three main issues: whether Cook had been lawfully withdrawn from treaty; whether the receipt or allotment of scrip was unlawful because of fraud; and whether Cook’s age invalidated the scrip, on the theory that he was under 18 at critical points in the process. The standard of review framework from Vavilov governed: statutory interpretation and other pure questions of law were to be reviewed for correctness, while factual findings and mixed questions (such as whether the evidence proved fraud or whether any age error affected the outcome) could only be interfered with for palpable and overriding error.

Majority reasons: lawful withdrawal and no reviewable error on fraud or age

The majority (Huscroft and Coroza JJ.A.) allowed the appeal and restored the Registrar’s 2021 decision. On the legal issue of statutory interpretation, they held that s. 13 of the 1886 Indian Act, properly read in its text, context, and purpose, already allowed minor children to be automatically withdrawn from treaty when the head of their family withdrew. They emphasized several contextual features. First, the legislative scheme around s. 31 of the Manitoba Act and the related “exclusion provision” in s. 13 treated families as units, speaking of “heads of family” and the distribution of land “for the benefit of the families of half-breed residents.” Second, administrative practice under Orders-in-Council had already evolved so that minors could apply for and receive s. 31 land grants independent of age restrictions. Third, the policy goals of the withdrawal provision—facilitating access to s. 31 benefits for Métis and reducing treaty annuity liabilities for the Crown—would be undermined if children could not be withdrawn with their parents and thus could neither participate fully in land/scrip schemes nor be removed from the Indian annuity rolls. Against that backdrop, the majority regarded the 1888 amendment explicitly adding “minor unmarried children” as clarifying or formalizing what Parliament had already intended, not as changing the law. They rejected the appeal judge’s reliance on the “presumption against tautology” across different versions of the statute, and they underscored that amendments do not, by themselves, imply a substantive legal change. On the factual issues of fraud and age, the majority held that the appeal judge had gone too far in substituting her own assessment for the Registrar’s. On fraud, they reviewed the letters and the surrounding history and concluded that it was open to the Registrar to find that the evidence did not establish fraud. The missing signature page of Cook’s scrip declaration was not, in their view, a “badge of fraud” given the age of the records, and the fact that scrip was redeemed by a speculator (Sifton) did not in itself prove wrongdoing because such sales, even at impoverishing prices, were historically common and legally permitted. The Registrar’s decision to credit the later letter denying deception and describing Spence as content with scrip, rather than the earlier complaints, was a permissible factual finding. On Cook’s age, the majority accepted that the Registrar miscalculated his age and misstated the issuance date of the scrip notes, but they found those errors non-overriding. The critical legal concept was the “receipt” of scrip, which they tied to the date of issuance of the scrip notes, not the earlier application or approval or the later redemption date. The documentary record showed that two money scrip notes totaling $240 were issued to Cook on February 9, 1888, several months after his 18th birthday. In their view, in the absence of proven fraud, the official scrip notes and the related receipt had to be taken at face value. Any earlier underage status at the application or approval stage did not invalidate his legal receipt of scrip once he was an adult. The majority therefore held that Cook was validly withdrawn from treaty, validly received scrip, and fell within the historic exclusion of persons whose ancestors had received Métis scrip. Modern registration was barred for his descendants, and the Registrar’s decision to remove Sharon and her mother from the Register had to be upheld. Because Canada had not sought costs, the majority ordered no costs of the appeal.

Dissenting reasons: flawed interpretation and protection of minors’ treaty rights

Justice George dissented. He agreed with the majority that the appeal judge had overstepped on the factual issues of scrip fraud and Cook’s age, and that there was no basis to interfere with the Registrar on those points. However, he fundamentally disagreed with the majority’s interpretation of s. 13 and its effect on minors. In his view, the 1886 withdrawal provision contemplated individual withdrawal by a person with sufficient legal capacity to meet the formalities: signing a written declaration in the presence of two witnesses and having those witnesses swear an oath before an authorized person. He read those formalities as embodying a capacity threshold and as inconsistent with the notion of a minor being unilaterally withdrawn by a head of family without personal compliance with the statutory steps. He also placed weight on the highly paternalistic character of the Indian Act generally, which restricted Indigenous people’s ability to alienate land or use property as security and which required adult status for other major legal steps such as enfranchisement and participation in certain band decisions. Against that statutory backdrop, he found it unlikely that Parliament intended minors’ treaty rights—rights which carried benefits and protections—to be extinguished simply because a family head chose to withdraw. Justice George rejected Canada’s heavy reliance on the Manitoba Act as a “related statute,” noting that the historical debates showed shifting, sometimes conflicting motives for the withdrawal provision: reducing public expenditures, encouraging “enterprise” among those seen as self-supporting, and preventing speculative “double dipping,” rather than directly implementing the Manitoba Act’s promise. He concluded that the 1888 amendment, expressly extending withdrawal to “minor unmarried children,” was best understood as a substantive change and that the 1886 text did not authorize automatic withdrawal of minors. He also invoked interpretive presumptions favouring Indigenous peoples, holding that any ambiguity in a rights-limiting provision like the withdrawal clause should be resolved in favour of preserving treaty entitlements. On that basis, he would have held that Cook was never lawfully withdrawn from treaty as a minor and that the Registrar’s decision to treat him as having withdrawn and taken scrip was legally incorrect. Justice George would have dismissed Canada’s appeal and upheld the Superior Court’s order restoring Sharon’s and her mother’s Indian Act status.

Outcome and relief

In the final result, the majority judgment prevails. The Ontario Court of Appeal allows the appeal, sets aside the Superior Court’s decision, and reinstates the Registrar’s November 16, 2021 decision. That means the Attorney General of Canada, on behalf of the Registrar, is the successful party. The legal consequence is that Sharon Bocchini and her mother, Bertha Isbister, are not entitled to be registered as Indians under the Indian Act because their ancestor, St. Pierre Cook, was found to have lawfully withdrawn from treaty with the head of his family and to have lawfully received Métis scrip, triggering the statutory exclusion that flows down to his descendants. The Court of Appeal does not award any damages, compensation, or other monetary relief, and because Canada expressly did not seek costs, no costs are ordered. As a result, there is no monetary award or quantified costs figure in favour of the successful party, and no specific amount can be identified as granted in this decision.