



COURT OF APPEAL FOR ONTARIO

CITATION: Tyendinaga Mohawk Council
v. Brant, 2014 ONCA 565

DATE: 20140730

DOCKET: C57655

Sharpe, LaForme and Tulloch JJ.A.

BETWEEN

R. Donald Maracle, Chief of the Mohawks of the Bay of
    Quinte

on behalf of the Tyendinaga Mohawk Council and

all members of the
    Mohawks of the Bay of Quinte

Respondents (Plaintiffs)

and

Shawn Michael Brant, Ronald Leslie Brant,
Andrew
    Clifford

Maracle (a.k.a Sir Andrew C. Miracle and
    Andrew Clifford

Miracle)
and
    Ohwistha Capital Corporation

Appellant (Respondents)

Allan Morrison and Shruthi Raman, for the appellant,
    Andrew Clifford Maracle

Roger Horst and Rafal Szymanski, for the respondents,
    The Mohawks of the Bay of Quinte

Lynn Marchildon and Leah Garvin, for the Attorney
    General of Canada, on behalf of the Indian Land Registrar

Joshua Hunter, for the Attorney General of Ontario, on
    behalf of the Sheriff of the County of Hastings

Heard: March 28, 2014

On appeal from the order of Justice G.W. Tranmer of the Superior
    Court of Justice, dated August 14, 2013 with reasons reported at, 2013 ONSC
    4733, 117 O.R. (3d) 64.

LaForme J.A.:

1.       INTRODUCTION

[1]

This appeal involves the interpretation and application of various
    provisions of the
Indian Act
, R.S.C. 1985, c. I-5.  At the outset, my
    references to Indian, Chief, band, band council, and band members are all terms
    that have been created by, and defined or described in, the
Indian Act
:
    see, for example, ss. 2 and 74-80. There will be other references to matters
    created, defined or described in the
Indian Act
, which I will explain
    as I proceed through this decision.

[2]

I will use the term Indian throughout these reasons when I would
    otherwise use the term Aboriginal.  While Aboriginal is the more respectful
    and modern reference, because this entire appeal requires an exclusive
    consideration of the
Indian Act
I wanted to avoid any confusion by
    using the language specifically used in the Act.  The same applies to
    references to a band as opposed to the more respectful First Nation.

[3]

The history of this matter involves a 20 plus years dispute over certain
    lands of the Mohawks of the Bay of Quinte First Nation (MBQ) on the
    Tyendinaga Indian Reserve No. 38 (the Lands) and a building on the Lands (the
    Building) located on Tyendinaga Mohawk Territory (the Territory).
[1]
The dispute is between MBQ and individual members of the Band, Shawn Brant and
    his father, Ron Brant (the Brants) and Andrew Clifford Maracle, also known as
    Sir Andrew C. Miracle and Andrew Clifford Miracle (Miracle).

[4]

It is only Miracle who appeals.

2.       BACKGROUND

(1)

The history of the dispute

[5]

In 1992 the Brants made an offer to purchase possession of the Lands
    from MBQ.  The Brants did not proceed with this arrangement and did not
    conclude the purchase or pay for the Lands.  Instead, they borrowed hundreds of
    thousands of dollars to help them construct the Building on the Lands. 
    They then carried on business on the Lands and Building for about a year, but
    by 1995 or 1996 they had vacated both.  These borrowed monies were never
    repaid.

[6]

In 2000 the Brants attempted to pay the purchase price that had been offered
    to MBQ in 1992, saying that in any event, they were going to forcibly re-enter
    the Building the next day.  The Tyendinaga Mohawk Council (the Council)
    refused this last minute offer to purchase for $8,700.  The Brants re-entered
    the Lands and Building on March 6, 2000, and claimed it as their own.

[7]

In 2002 Shawn Brant sold the Lands and Building to Miracle for $100,000
     as the trial judge in this matter, Ratushny J. put it; knowing that he had
    never purchased the Lands, had never received a certificate of possession and
    had never repaid his loan monies:
Maracle v. Brant
, 2008 CanLII 13368
    (ON SC).  The trial judge also found that at the time, Miracle operated
    profitable businesses on the Lands and Building that he claimed as his own over
    the objections of the Council.

[8]

In 2008 R. Donald Maracle, Chief of MBQ, commenced a representative
    action on behalf of the Council and all members of MBQ.  The action was against
    individual MBQ members  the Brants and Miracle.

[9]

MBQs action sought to regain complete control of the Lands and the
    Building located on Tyendinaga Mohawk Territory.  It argued that Miracle
    had trespassed on a parcel of MBQs land and that he had occupied the lands for
    a period of time without a valid Certificate of Possession.

[10]

MBQ
    also sought damages from the Brants and Miracle.  The Brants and Miracle
    counterclaimed arguing that Miracle was the beneficial owner of the Lands and
    Building, and also sought damages.

[11]

On
    March 27, 2008 the trial judge granted MBQ a mandatory injunction restraining
    Miracle and others from occupying the land.  She also ordered the Brants and
    Miracle to pay MBQ $250,000 in general damages and $50,000 in punitive damages.

[12]

On
    July 16, 2009 this court dismissed the substance of the appeal:
Tydendinaga
    Mohawk (Council) v. Brant
,

2009 ONCA 581.  Leave to appeal
    further to the Supreme Court of Canada was refused on January 14, 2010: [2009]
    S.C.C.A. No. 378.  Costs were awarded to MBQ in the amount of $223,000, $33,000
    and $10,000 respectively.

[13]

In
    order to satisfy the judgment, MBQ took out a writ of seizure and sale on three
    properties to which Miracle held Certificates of Possession. To be clear, these
    parcels of land are not the lands that were in issue at the original trial.  Thereafter,
    a series of motions were brought regarding the March 27, 2008 judgment.

[14]

On
    May 10, 2011 a motion for directions on enforcement of writs of seizure and
    sale was heard.  MBQs writs were validated and the Sheriff was directed to
    sell Miracles Certificates of Possession  the estimated value of which is
    $890,000  to satisfy the debt owed to MBQ  estimated to be in excess of
    $850,000.  The order included the condition that the sale was to be in
    accordance with the
Indian Act
, which required the approval of the
    Minister of Indian Affairs.  Costs were against Miracle in the amount of
    $4,500.

[15]

On
    September 6, 2011, MBQ requested the Sheriff to sell the Miracle Certificates
    of Possession in accordance with the motion judges order.  The Sheriff  on
    the advice of the Ministry of the Attorney General, Ontario  declined to do
    so.  The position taken by the Attorney General was that s. 29 of the
Indian
    Act
prohibited such a sale because the Miracle property consisted of
    reserve lands and therefore was not subject to seizure.

[16]

On
    March 27, 2012 a motion to amend the judgment
nunc pro tunc
was allowed,
    and a minor amendment was made, with costs against Miracle in the amount of
    $7,000.  And finally, on May 30, 2012 a motion for directions on the
    interpretation of the judgment was heard.  Costs were against Miracle in the
    amount of $9,665.38.

[17]

Miracle
    has since vacated the Lands and none of the awards in favour of MBQ have been
    satisfied, despite several attempts by MBQ to settle the issue.  This takes me
    to the motion that is the subject of this appeal.

(2)

MBQs motion for compliance by Miracle

[18]

Given
    the position taken by the Sheriff and the Attorney General, Ontario, MBQ
    brought a motion to enforce the transfer of Certificates of Possession Miracle
    has for parcels of land located on the Territory to satisfy the damages and
    costs owed to it by Miracle.  Because of the relief sought on the motion, the
    Attorney General of Canada, on behalf of the Indian Lands Registrar, has
    participated.

[19]

The
    Indian Land Registrar  on behalf of the Minister of Aboriginal Affairs and
    Northern Development  (ANAC)  oversees the examination, registration and
    recording of documents such as leases, allotments, designations and permits
    that grant an interest or licence in First Nation lands.  This includes the
    transfer of possession of reserve lands. The authority and land management
    responsibilities of the ANAC are set out in the
Indian Act
.

[20]

The
    Attorney General of Canada's stated interest in the motion by MBQ is the proper
    interpretation of the
Indian Act
, specifically as it relates to the
    transfer of Certificates of Possession.  Even more specifically, the Attorney
    General of Canada wants to ensure that this court appreciates the discretionary
    approval authority of the Minister of ANAC that runs throughout the Act dealing
    with the property and rights of Indians on a reserve.

[21]

As
    will be seen, a Certificate of Possession is merely evidence of the allotment
    of possession of reserve land by a band council to an Indian band member. 
    However, the term Certificate of Possession is used by the parties and various
    judges as though it were the instrument of conveyance, which it is not.  It
    should be understood that any reference to a transfer or conveyance of a
    Certificate of Possession refers to the transfer of the lawful possession of
    reserve land that has been allocated by the band council and approved of by the
    Minister.  I will say more about this below.

[22]

The
    issue before the motion judge, as he described it at para. 9, was:

[W]hether this court can order the transfers of Certificates of
    Possession issued to [Miracle] under the
Indian Act
in order to satisfy a debt for
    money which he owes to the Band, the Mohawks of the Bay of Quinte.

[23]

The
    answer, he said, involved the interpretation and reconciliation of s. 29 and s.
    89(1) of the
Indian Act
:

29. Reserve lands are not subject to seizure under
    legal process.



89. (1) Subject to this Act, the real and personal
    property of an Indian or a band situated on a reserve is not subject to charge,
    pledge, mortgage, attachment, levy, seizure, distress or execution in favour or
    at the instance of any person other than an Indian or a band.

[24]

The
    motion judge rejected Miracles submission that s. 29 of the
Indian Act
prohibited the seizure of his possessory interest in the parcels for which he
    holds Certificates of Possession.

[25]

After
    reviewing the legislative history of the
Indian Act
, the motion judge
    held that ss. 29 and 89(1) are not in conflict and are consistent with the
    intended purpose of the
Indian Act
.  He identified the intended
    purpose of the
Indian Act
at para. 29 as "to exclude from use or
    possession of lands within a reserve of a band any person who is not a band or
    an Indian member of the band." In his view, the intent is that reserve
    lands or lands situated on a reserve are not subject to seizure, and that real
    and personal property on a reserve is also not subject to seizure by a
    non-Indian, but can be seized or executed upon an Indian or band.  Real and
    personal property, he found, is not the same as reserve lands or lands situated
    on a reserve, and a Certificate of Possession is either real or personal
    property of an Indian.  He declined, however, to specify which because in his
    view it was unnecessary for the purposes of the motion.

[26]

The
    motion judge found that it was within his power to order that Miracle complete
    any documents required to transfer his Certificates of Possession for the
    properties listed and submit them to the Indian Land Registrar within 14 days. 
    However, he found he did not have the authority to bind the Minister, and thus
    could not order the transfer of the Certificates.

[27]

And
    finally, the motion judge concluded that the Ontario Superior Court had
    jurisdiction to grant the requested relief and that the relief sought was both
    lawful and permissible in the circumstances of this case.

[28]

The
    motion judge set aside the previous order directing the Sheriff to execute the
    judgment through the sale of Miracles three Certificates of Possession,
    unopposed by MBQ.  Instead, the motion judge ordered that the Certificates of Possession
    to satisfy the judgment were to be executed as follows:

1.      Miracle
    was ordered to complete any documents required to transfer his Certificates of
    Possession and submit them to the Indian Land Registrar.  If Miracle failed to
    do so, he was deemed to have consented to and authorized the transfer.  Any
    documents required to give effect to the transfers could then be completed by
    the MBQ and submitted to the Indian Land Registrar.

2.      Each
    Certificate of Possession was to be dealt with separately and in sequence, and
    each sale was to be for fair market value until the full amount of the judgment
    was satisfied.  The sales were to be in accordance with the Indian Act
    including that of being subject to the approval of the Minister of Aboriginal
    and Northern Affairs.

[29]

Time
    limits for each transaction were set out in the orders.

3.       THE ISSUES

[30]

Miracle
    submits that the motion judge committed two errors in deciding this matter,
    namely:

1.      In
    finding that the Superior Court of Justice had jurisdiction to order Miracle to
    execute the transfers of the Certificates of Possession to MBQ.

2.      In
    concluding that Certificates of Possession are real or personal property of an
    Indian situated on a reserve pursuant to s. 89(1) of the
Indian Act,
and
    therefore subject to seizure by the Band.

[31]

I
    would dismiss the appeal.  First, I find that the motion judge had the
    jurisdiction to hear and decide the enforcement motion brought by MBQ and that
    he correctly interpreted and applied the provisions of the
Indian Act
. 
    Second, as I will explain, the scheme and purpose of the Act, when read as a
    whole together with the intention of Parliament, make it clear that s. 29
    prohibits the Crown's underlying title to reserve land from seizure while s.
    89(1) protects the property interests of an Indian or band from seizure, or
    other enforcement, by a non-Indian; the two sections work in concert.

4.       ANALYSIS

(1)

Jurisdiction

[32]

Relying
    on jurisprudence such as
Derrickson v. Derrickson
, [1986] 1 S.C.R. 285
    and
Syrette v. Syrette
, 2012 ONCA 693, Miracle submits that Provincial
    legislation cannot apply to the right of possession of Indian reserve lands. 
    Such authorities, he says, demonstrate that Superior Courts have historically
    recognized their lack of jurisdiction with respect to the transfer of property
    situated on a reserve.

[33]

The
    essence of Miracles submission is that, pursuant to s. 3 of the
Indian Act
,
    the Minister of ANAC is charged with the responsibility of administering the
    Act and dealing with matters respecting Indians and reserve lands.  The relief
    granted by the motion judge requiring Miracle to transfer his Certificates of Possession
    to MBQ, he notes, is an action which is subject to the approval of the Minister
    under s. 24.  That is, since the transfer of possession of reserve lands is
    subject to the discretion of the Minister, the motion judges decision is moot
    and without force or effect.  I disagree.

[34]

Miracles
    reliance on
Derrickson
and
Syrette
is misplaced.  In
Derrickson
,
    the issue the Supreme Court of Canada considered was whether the provisions of
    the
Family Relations Act
, R.S.B.C. 1979, c. 121 dealing with the division
    of family assets are applicable to lands in a reserve in the possession of an
    Indian.  The Supreme Court held that the provincial legislation was not
    applicable for two reasons.

[35]

First,
    the
Family Relations Act
was provincial legislation that extended beyond
    a matter over which it had jurisdiction and into the exclusive jurisdiction of
    the federal legislative power under s. 91(24) of the
Constitution Act, 1867
.  
    The federal legislature has exclusive jurisdiction over the right of possession
    of Indian reserve lands, and thus provincial legislation cannot apply to it:
Derrickson
,
    at paras. 41-43.

[36]

Second,
    pursuant to s. 88 of the
Indian Act
, the impugned provisions of the
Family
    Relations Act
cannot be referentially incorporated into the
Indian Act
since they are excluded by the application of the federal paramountcy set out
    in the section.  Provisions such as those in the
Family Relations Act
dealing with ownership, right of possession, transfer of title, partition or
    sale of property, severance of joint tenancy are in actual conflict with the
    provisions of the
Indian Act
:
Derrickson
, at para. 77.

[37]

Similarly,
    this court in
Syrette
followed the Supreme Courts decision in
Derrickson
and found that the Court of Appeal and the Superior Court did not have the authority
    to make orders concerning possession, ownership or disposition of property on a
    reserve in a family law context.

[38]

The
    courts in
Derrickson
and
Syrette
refused to divide possession
    of Indian reserve land between family members because the applicable provincial
    statutes were inoperative to the extent they purported to apply to Indian
    reserve land.  Neither
Derrickson
nor
Syrette
oust
    jurisdiction from the Superior Court to transfer Certificates of Possession
    pursuant to the
Indian Act
or equitable principles such as a mandatory
    injunction.

[39]

Further,
    the Superior Courts jurisdiction over the transfer of Certificates of
    Possession was expressly considered in
Batchewana First Nation of Ojibways
    v. Corbiere
(2000), 198 F.T.R 36, in circumstances very similar to this
    case.  The application judge in
Corbiere
held that the Federal Court
    did not have jurisdiction, noting that the dispute regarding the band's right
    to the subject land, over a band member who held a Certificate of Possession,
    was one "properly within the jurisdiction of the courts of Ontario":

at
    para. 37.  I agree with that result.

[40]

Ontario
    Superior Courts have "plenary and inherent jurisdiction to hear and decide
    all cases that come before them, regardless of whether the law applicable to a
    particular case is provincial, federal or constitutional", as long as an
    exception has not been specifically carved out by Parliament:
Ordon Estate
    v. Grail,
[1998] 3 S.C.R. 437, at paras. 44-45. While the
Indian Act
does
    not specify the procedure to effect the relief sought by MBQ, the motion judge
    correctly reasoned that ss. 23, 24, 25, 27, 88, and 89 of the Act
,
when
    read together, would permit the order that he made.  Given that the relief
    sought is permissible under the Act
,
the relief may be granted by the
    Ontario Superior Court.

[41]

A
    Superior Court ordering Miracle to take the necessary steps to transfer his
    Certificates of Possession, evidencing his right of possession of specific
    reserve lands, to MBQ is consistent with the
Indian Act
and provides a
    method for MBQ to enforce a debt owed to it by a band member. This is not
    negated simply because the Ministers approval of the transfer is ultimately
    required. Even in a regime established for colonial purposes and objectives
    such as the
Indian Act
, fairness in law requires that the legal rights
    created for Indian bands and Indians are to be afforded a legal process to
    obtain a remedy.

[42]

This
    ground of appeal is without merit.

(2)

The interpretation of ss. 29 and 89(1) of the
Indian Act

(a)

The standard of review

[43]

For
    over a century the
Indian Act
was the single most prominent reflection
    of the distinctive  although not privileged  place of Indian people within
    the Canadian federation.  The Act is widely recognized for controlling
    virtually everything that touches Indian people: Royal Commission on Aboriginal
    Peoples,
Report of Royal Commission on Aboriginal Peoples
:
Looking
    Forward, Looking Back
. (Ottawa: Canada Communication Group Publishing,
    1996), Vol. 1 p. 256-57.  The
Indian Act
has long been universally
    labeled as paternalistic and a relic of past colonial practices.

[44]

Nevertheless,
    the status of the parties to this appeal is a consequence of
Indian Act
legislation, as is their dispute.  As such, each party finds it necessary to
    rely on provisions of the
Indian Act
to support their claim.  That
    being said, this appeal is not about the appropriateness of
Indian Act
legislation, nor any assertion of its being a mechanism of social control and
    assimilation of Indians.  It is strictly limited to the correct interpretation
    of the relevant provisions of the
Indian Act
.  The standard of review
    on this appeal is, therefore, correctness.

(b)

Position of Miracle

[45]

The
    motion judge found that the Certificates of Possession are "the real and
    personal property of an Indian ... situated on a reserve" under s. 89(1)
    and are not "[r]eserve lands" subject to s. 29.  Miracle submits that
    the motion judge was in error and argues that s. 89(1) of the
Indian Act
is subject to s. 29, which he claims prevents the seizure of his Certificates
    of Possession.  For ease of reference I will repeat the language of these
    sections:

29
. Reserve lands are not subject to seizure under legal
    process.

89. (1) Subject to this Act, the real and personal
    property of an Indian or a band situated on a reserve is not subject to charge,
    pledge, mortgage, attachment, levy, seizure, distress or execution in favour or
    at the instance of any person
other than an Indian or a band
. [Emphasis
    added.]

[46]

Miracles
    arguments for his legal conclusion, briefly stated, are as follows.

[47]

Section
    2(1) of the
Indian Act
defines 
reserve

as

a
    tract of land, the legal title to which is vested in Her Majesty, that has been
    set apart by Her Majesty for the use and benefit of a band.  Miracle accepts
    that this definition means that reserve lands are not owned by either a band or
    an individual member of a band, but are held in trust for the band by Her
    Majesty.  He also accepts that the use and benefit of reserve land vests in
    common in all members of the band.

[48]

However,
    Miracle notes that ss. 20(1) and (2) of the Act

provide
    that an Indian can only be in lawful possession of reserve land if he or she
    has been allotted the land by the band council and the Minister approves it. 
    Further, as evidence of the Indians right to possession of the land, the
    Minister may issue him or her, a Certificate of Possession.

[49]

Miracle
    then relies on commentary of the application judge in the case of
Seguin v.
    Pelletier
(2001), 25 C.B.R. (4th) 90, and suggests that while individual
    possession of reserve land is not equivalent to ownership in fee simple to
    land  off reserve, it is the closest possible comparison.  In
Seguin
,
    at para. 22, the application judge uses a quote from Jack Woodwards
Native
    Law
text, which is still in the present version of his looseleaf:
Native
    Law
, looseleaf (Toronto: Carswell, 2014), at p. 278:

Individual possession of reserve land is a unique form of land
    tenure not equivalent to any other type of land ownership under Canadian law.
It is not precisely the
    same as fee simple ownership off reserve and it is entirely different from the
    Band's interest in the unallocated land of a reserve
... An
    individual Indian has no right of possession over the unallocated lands of the
    reserve, but when an individual Indian is in possession of reserve lands under
    Section 20 of the Indian Act, the rest of the band members lose their
    collective right to occupy that portion of the reserve.
The individual may then occupy and develop lands
    in their possession without interference by the Band Council or the other Band
    members
.  [Emphasis added.]

[50]

Miracle
    says that a Certificate of Possession therefore becomes equivalent to and
    symbolic of reserve lands, falls within the scope of s. 29 of the
Indian
    Act
, and is accordingly exempt from seizure under legal process.  For the
    reasons that follow, I disagree.

(c)

Principles of Statutory Interpretation

[51]

Statutory
    interpretation cannot be founded on the wording of the legislation alone and
    strict construction of statutes has given way to purposive and contextual
    interpretation. Our jurisprudence has adopted the principle pronounced by E. A.
    Driedger: Today there is only one principle or approach, namely, the words of
    an Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament: E. A. Driedger,
Construction of Statutes
,
    2d ed., (Toronto: Butterworths, 1983) at 87.  The Supreme Court of Canada in
R.
    v. Gladue
,
[1999] 1 S.C.R. 688, at para. 25, interpreted
    this principle as follows:

As this Court has frequently stated, the proper construction of
    a statutory provision flows from reading the words of the provision in their
    grammatical and ordinary sense and in their entire context, harmoniously with
    the scheme of the statute as a whole, the purpose of the statute, and the
    intention of Parliament.  The purpose of the statute and the intention of
    Parliament, in particular, are to be determined on the basis of intrinsic and
    admissible extrinsic sources regarding the Acts legislative history and the context
    of its enactment. [Citations omitted.]

[52]

It
    is necessary, therefore, to determine the purpose of the legislation, whether
    as a whole or as expressed in a particular provision.  On this appeal we are
    concerned with the nature of Indian interest in lands situate on a reserve all
    of which is governed by the
Indian Act
.

(d)

The purpose of the
Indian Act
and the intention of Parliament.

[53]

There
    are two legal principles that underpin the assessment of the purpose of the
Indian
    Act
and the intention of Parliament.  First, early Canadian jurisprudence
    relied on the
Royal Proclamation
(
1763
)
,
R.S.C.,
    1985, App. II, No. 1,
[2]
as the origin of Indian title: see
St. Catharines Milling and Lumber Co. v.
    The Queen
, [
1887
] 13 S.C.R. 577, affirmed (1888),
    14 App. Cas. 46.  It is now clear from more recent authority that Indian
    title existed in Canada independently of the
Royal Proclamation
: see
Calder
    et al. v. Attorney-General of British Columbia
, [1973] S.C.R. 313. 
    Although Indian title was recognized by the Proclamation, it actually arises
    from the prior occupation of Canada by Aboriginal peoples:
Delgamuukw v.
    British Columbia
, [1997] 3 S.C.R. 1010
, at para.
    114. In a very recent decision, the Supreme Court of Canada, relying on Dickson
    J. in
Guerin v. The Queen
, [1984] 2 S.C.R. 335, identifies the
    starting point in characterizing the legal nature of Aboriginal title as
    being [a]t the time of assertion of European sovereignty, which is confirmed
    by the
Royal Proclamation, 1763
:
Tsilhqotin Nation v. British
    Columbia
, 2014 SCC 44, at para. 69.

[54]

Central
    to the
Royal Proclamation
was the
    separation of Indian lands from those forming parts of the North American
    colonies; Indian lands were reserved for their exclusive use and possession. 
    Further, the
Royal Proclamation
implemented
    a process by which Indian lands could be purchased for British settlement and
    development.  Indians could only transfer lands to the British Crown, not to
    European settlers or other colonial officials.

[55]

Legislation
    that followed, dealing with restraints on the alienability of
Indian
lands and the policy that formed the relationship
    between
Indians
and the colonists, are the
    continuation of that which was established by, and at the time of, the
Royal
    Proclamation
:
Mitchell v. Peguis

Indian Band
, [1990] 2
    S.C.R. 85, at p. 130.    Thus, the
Indian Act
must be interpreted with
    these origins in mind.

[56]

Clearly
    then, two intentions and purposes of Indian legislation are: (1) to reflect the
    colonial common law view of Indian interest in land; and (2) to prevent any
    sale or transfer of Indian lands to anyone other than to the British Crown.

[57]

Second,
    the legal principles that govern Indian interest in reserve lands are the same
    as those that govern Aboriginal title:
Guerin
, at 379.  That is to
    say, an Indian bands and an Indians interest in a reserve under the
Indian
    Act
is the same as Aboriginal title in traditional tribal lands:
Delgamuukw
,
at para. 120
.

(i)

The character of Indian title

[58]

The
    character of Indian title in Canada was considered in the seminal case of
St.
    Catharines Milling
.
St. Catherines Milling
and was strongly
    influenced by jurisprudence from the Supreme Court of the United States such as
Johnson v. McIntosh
(1823), 8 Wheaton 543, 21 U.S. 240
.
The
    definition of Indian title in Canada most often referenced is found in the
    decision of the Privy Council at pp. 54-55:

[T]he tenure of the Indians was a personal and usufructuary
    right, dependent upon the good will of the Sovereign.  [T]here has been all
    along vested in the Crown a substantial and paramount estate, underlying the
    Indian title, which became a
plenum dominium
whenever that title was
    surrendered or otherwise extinguished.

[59]

The
    definition of Indian title to land in Canada developed in
St. Catherines
    Milling
began with the British policy from colonial times on the finding
    of indigenous people on newly-discovered lands.  That policy was that on
    discovery, the indigenous people were the rightful occupants of the land but
    with only a legal claim to retain possession and use of it.  [T]heir rights to
    complete sovereignty, as independent nations, were necessarily diminished, and
    their power to dispose of the soil at their own will, to whomsoever they
    pleased, was denied by the original fundamental principle that discovery gave
    exclusive title to those who made it:
Calder
, at 382, citing
Johnson
    v. McIntosh
.

[60]

Dickson
    J. in
Guerin
went on to find at p. 378 that the European claims to
    sovereignty were justified by the principle of discovery.  Although the Court
    in
Tsilhqotin Nation
did not address the doctrine of discovery
    directly, it did provide a more complete statement of the character of
    Aboriginal title at para. 70: the right to the benefits associated with the
    land  to use it, enjoy it and profit from its economic development.

[61]

And
    finally,
Delgamuukw
, at para. 115, makes it clear
    that
Indian title in Canada is held communally.  It cannot be held by
    individual Indians, and decisions with respect to that land are made by the
    community.  The term used in our jurisprudence is that
Indian
    title is
sui generis
, which distinguishes it
    from normal property interests.  It 
cannot be transferred, sold or
    surrendered to anyone other than the Crown and, as a result, is inalienable to
    third parties:
Delgamuukw
, at para. 113. This
    has all been reaffirmed in the

Tsilhqotin
    Nation
case.

[62]

Parenthetically,
    in the past several years the legal principle that discovery by European
    nations in colonial times gave rise to the astounding consequences to indigenous
    peoples found by
Johnson v. McIntosh
and
St. Catharines Milling
,
    has come under criticism for its use as a valid legal principle.
[3]
However, once again, that is not an issue that is before this court nor is it
    one that we have been asked to comment on.

[63]

I
    now propose to review some of the early colonial legislation that reflected the
    Indian policy that was established at the time of the
Royal Proclamation
,
    which deals with restraints on the alienability of
Indian
lands and the policy that formed the relationship between
Indians
and the colonists.

(ii)

Review of Indian legislation

[64]

In
    1850 the Upper Canada legislature enacted
An
    Act for the protection of the Indians in Upper Canada from imposition, and the
    property occupied or engaged by them from trespass and injury
, 13-14
    Vict., cap. 74 (S.C. 1850, c. 74), which among other things stipulated that
    Indian lands could not be alienated without the Crown's consent.  In 1857 it
    passed a further statute that reflected the intention of the Crown to integrate
    Indians into colonial society and allowed that enfranchised Indians
[4]
could convert parcels of reserve land into fee simple lands:
An Act to encourage the Gradual Civilization of
    the Indian Tribes in this Province, and to amend the Laws respecting Indians
,
    20 Vict., cap. 26 (S.C. 1857, c. 26) (the 1857 Act).

[65]

Thus,
    prior to confederation and the first
Indian Act
,

Indian
    legislation intended to prevent "encroachments upon and injury to [Indian]
    lands and "encourage the progress of Civilization":
An Act for
    the better protection of the Lands and Property of the Indians in Lower Canada
,
    13-14 Vict., cap. 42 (S.C. 1850, c. 42); 1857 Act
.
This, as the
    legislation makes clear, affirms the important features that Indian lands were
    not held by the Indians in fee simple and that consent of the Crown was
    required to alienate whatever interest the Indians did have.  This also
    illustrates another intention and purpose of Indian legislation: the
    assimilation of Indians into mainstream non-Indian society.

[66]

After
    Confederation in 1867 and the creation of the Dominion of Canada, negotiated
    purchases of the Indian interest in land in Canada occurred, mostly through
    treaties.  Also, at Confederation, the Canadian government became responsible
    for Indians, and Lands reserved for the Indians pursuant to s. 91(24) of the
Constitution
    Act, 1867
.  The basic principles of the Canadian governments Indian
    policy followed that which had previously been developed by the British and were
    reflected in subsequent Indian legislation, most notably the
Indian Act
.

[67]

The
    Indian Act, 1876
, 37-39 Vict., cap. 18 (S.C. 1876, c. 18), was a
    consolidation of existing Indian legislation.  Shortly after the act was
    passed, the Deputy Superintendent General, in a memorandum to the Indian
    Branch, Department of the Interior dated August 22, 1876 regarding the
    administration of Indian Affairs, had this to say about the status of Indians: "[T]he
    legal status of the Indians of Canada is that of minors, with the Government as
    their guardians": NAC RG 10 Vol. 1995, File 6886.

[68]

In
    furtherance of this, the annual report for the year ended June 30, 1876, of the
    Indian Branch, Department of the Interior, Report of Minister of the Interior
    for the year ended 30th June, 1876 by David Mills in
Sessional Papers
,
    No. 11 (1877), at p. xiv, describes an important purpose and intention of
    Indian legislation:

Our Indian legislation generally rests on the principle that
    the aborigines are to be kept in a condition of tutelage and treated as wards
    or children of the State. ... [the] true interests of the aborigines and of the
    State alike require that every effort should be made to aid the Red man in
    lifting himself out of his condition of tutelage and dependence, and that is
    clearly our wisdom and our duty, through education and every other means, to
    prepare him for a higher civilization by encouraging him to assume the
    privileges and responsibilities of full citizenship.


[69]

The
    1876 Act implies a further intention and purpose, which is to create a status
    of Indians who were legal wards of the state, and who were to be under the
    authority of their guardian, the government of Canada.  This Act also continued
    the principle that Indian land could only be surrendered to the Crown and
    included the consent of the majority of adult male members of the band: ss.
    25-28.  Reserves, however, could be divided into individual lots with location
    tickets being issued for individuals; the ultimate control of the location
    ticket system rested in the Superintendent General: ss. 6-10.

[70]

While
    the general framework of the 1876
Indian Act
has remained largely
    intact, various amendments tended to loosen the protection afforded to reserve
    lands.  These changes reflected the intention that communal reserve lands
    should ultimately be divided into individually held property and that reserve
    land could not interfere with the priorities of the dominant society.

[71]

The
Indian Advancement Act
, for example,

was consolidated as Part
    II of the
Indian Act
in 1906

R.S.C. 1906, c. 81.  The
Indian
    Act
was amended to provide increased incentives to Bands to surrender
    reserve land.  The Act was also amended several times to allow public bodies
    with expropriation powers to take reserve land upon agreement of the
    Governor-in-Council and without a surrender or consent of a band.  By 1911 the
    Act had been further amended to allow any entity with expropriating powers to
    exercise those powers on reserve land with the consent of the
    Governor-in-Council: 1-2 Geo. VI, cap. 14 (S.C. 1911, c. 14).

[72]

The
    1927
Indian Act
, R.S.C. 1927, c. 98, legislates, for the first time,
    the forerunner to the current ss. 29 and 89(1).  That is, the reserve land
    subject of a location ticket, the predecessor of a Certificate of Possession
    that allowed the holder possession of reserve land, could not be subject to
    seizure and could only be transferred to a band member, again, with the consent
    of the Minister: s. 23.  And, real or personal property of an Indian could not
    be used as security or be subject to any lien or charge, whether by mortgage,
    judgment or otherwise: s. 105.  It is clear that the intention and purpose of
    the
Indian Act
has expanded here to specifically include the
    protection of real and personal property of an Indian situate on a reserve.

[73]

In
    1951 the federal government instituted changes to the
Indian Act
which
    repealed entirely the 1927 Act: 15 Geo VI, cap. 29 (S.C. 1951, c. 29).  This
    new
Indian Act
included responsibility for Indians and their lands
    being assigned to the Minister of Indian Affairs rather than the Minister of
    the Interior, with broad discretionary powers over the implementation of the
    Act as well as the daily lives of Indians on reserves.  The Act continued the
    requirement that federal government consent was necessary for the alienation
    and management of reserve lands as well as the power to expropriate Indian
    lands.

[74]

As
    well, the 1951
Indian Act
provided for the Certificate of Possession 
    much like the original location ticket in the 1876 Act  whereby an Indian
    could be in lawful possession of reserve land if it had been allotted to him by
    the Council of the band and approved by the Minister: see s. 20.  And
    importantly, as MBQ observes, ss. 23 and 105 of the 1927 Act were consolidated
    into their current forms, namely, s. 29 and what was then s. 88(1), which
    provided:

29.     Reserve lands are not subject to seizure
    under legal process.



88. (1) Subject to this Act, the real and personal
    property of an Indian or a band situated on a reserve is not subject to charge,
    pledge, mortgage, attachment, levy, seizure, distress or execution in favour or
    at the instance of any person other than an Indian.

[75]

Also,
    for the first time s. 87 provided that where a provincial law dealt with a
    subject matter not covered under the
Indian Act
,
    such as child welfare matters, Parliament would allow that provincial law to
    apply to Indians on reserves.  Thus, an additional purpose of the Act was to make
    Indians on reserves bound by certain provincial legislation.

[76]

There
    have been further amendments to the
Indian Act
since 1951.  For
    example, the 1985 revision granted bands the right to determine their own
    membership.  In 1988, the Act was amended to allow bands greater powers to tax
    land interests on their reserves, as well as permitting individuals to mortgage
    these leaseholds on reserves.  The 1988 amendments also changed s. 88(1) of the
    Act to s. 89(1) and the words "or a band" were added permitting bands
    to seize or execute upon real or personal property situated on a reserve.  This
    demonstrates a further intention of the legislation and purpose of Parliament:
    that real and personal property be protected from the general public, but not
    another Indian or band. However, meaningful management of reserve lands
    remained within the jurisdiction of the Department of Indian Affairs and
    outside of the power of Indians, bands and band councils.  The
Report of
    Royal Commission,
Vol. 1, p. 285 describes the status this way:

By the time of the 1951
Indian Act
revision, bands and
    band councils were no longer in a position to exercise any real control over
    their reserve lands beyond refusing to consent to land surrenders for sale or
    attaching conditions to such surrenders.  This situation has continued almost
    unchanged to the present day.

[77]

It
    is clear from the history of Indian legislation, both pre and post
    confederation, that the motion judge was only partly correct when, at para. 29,
    he held that the legislative intent of the
Indian Act
is that the use
    and possession of reserve lands of an Indian band are for the use of the band
    or a member of the band to the exclusion of all other persons.  In fact, there have
    always been and continue to be several fundamental purposes and intentions of
    Indian legislation.  The purpose of the
Indian Act
and the intention
    of the Parliament of Canada, in summary form and as it relates to this appeal,
    include the recognition and affirmation that:

·

Title to Indian lands is always with the Crown, which owns the
    underlying fee simple that vested in the Crown upon discovery of the lands
    which today are Canada.  Because the legal title to reserve land is vested in
    the Crown it is not subject to seizure under legal process.

·

Indian interest in lands in Canada is only the right to use and
    occupy them; it is not ownership in fee simple.  The land rights are communal,
    but can be divided into individually held parcels of possession and evidenced
    by Certificates of Possession.  The right of
Indian possession
    of reserve land
cannot be transferred, sold or surrendered to anyone
    other than to an Indian band or an Indian, provided always that it is with the
    consent of the government of Canada.  As reserve land is Crown land, it is
    inalienable to third parties except with the consent of the Crown.

·

Indians are defined as legal wards of the state and under the
    authority of their guardian, the government of Canada.  In furtherance of this,
    the government of Canada is vested with virtually full control and management
    of Indians and reserve lands.  In this role, the government of Canada has
    prohibited encroachments upon Indian reserve lands and ensured that the real
    and personal property of an Indian or a band is not subject to charge, pledge,
    mortgage, attachment, levy, seizure, distress or execution in favour or at the
    instance of any person other than an Indian or a band.

[78]

While
    not specifically necessary for this appeal, but for purposes of completeness, I
    would note that the
Indian Act
also intends that Indians on reserves
    can be bound by certain provincial legislation.  Also, the enfranchisement
    provisions  ss. 108-113  were repealed in 1985 and discontinued Parliaments
    purpose of assimilating Indians into mainstream Canada directly through the
Indian
    Act
.

(e)

Application of the Indian Act to this case

[79]

Under
    the version of the
Indian Act
that is applicable to this appeal, the
    intentions and the purposes of Parliament reflected through all the past Indian
    legislation and in the jurisprudence around it are conveyed in the following
    way:

·

reserve lands are Crown lands that have been set apart by the
    Crown for the use and benefit of a band  s. 2(1);

·

the affirmation that title to reserve land continues to be with
    the Crown  s.2(1) and 18(1);

·

reserve land is communal and possession of it may only be
    allotted to an Indian band or to its members, and only for them to use and for
    their benefit  s. 20(1);

·

possession of reserve lands cannot be allotted to an Indian
    unless consent is given by the Minister who may evidence the right of
    possession be issuing a Certificate of Possession  s. 20(1)-(2); and,

·

reserve lands cannot be sold or title to them conveyed, nor can
    they be leased or any interest in them granted, unless they have been
    surrendered by the band to the Crown  ss. 37-38.

[80]

The
    right of an Indian to possess reserve lands is a separate and distinct interest
    from ownership of the reserve land to which it relates.  This is reflected in
    the
Indian Act
provisions that dictate the terms of possession: s.
    18(1) gives the Governor in Council authority to determine whether a proposed
    use of reserve lands is for the use and benefit of the members of the band, and
    ss. 20-29 set out the regime governing the possession of reserve lands and
    provide generally that such lands may only be held by an Indian with the
    approval of the Minister.

[81]

As
    I mentioned above, a Certificate of Possession is only evidence of the fact
    that an Indian band member has been allotted possession of reserve land.  The
    band member then has control of the land for his or her use and benefit within
    the limitations provided for under the
Indian Act
.  Anne Warner La
    Forest,
Anger & Honsberger Law of Real Property
, 3d ed., looseleaf
    (Toronto: Canada Law Book, 2013), describes it this way, at 1-4:

While band members may be allotted plots of land for their own
    use,
this does not
    denote any individual interest in the reserve land other than the privilege of
    occupying their land to the exclusion of other band members
. 
    An individual Indian is not permitted to alienate any portion of reserve land.
    [Citations omitted, emphasis added.]

[82]

I
    would also point out that Jack Woodward in his text,
Native Law
, at p.
    279, adds to the passage relied on by Miracle  and set out above  with the
    following: [a]n individual Indian in possession of reserve land has all
    incidents of ownership in the allotted part of the reserve, with the exception
    of legal title to the land itself, which remains with the Crown.

[83]

The
    band member cannot be allotted title to the land itself because that is always
    with the Crown.  Thus, unless reserve land is surrendered to the Crown pursuant
    to the
Indian Act
and is no longer reserve land, an Indian or band can
    only ever retain a possessory right to use the land for his benefit.

[84]

The
    possession of reserve land can be transferred to a band or another band member 
    s. 24  or revert to the band if the certificate holder has ceased to reside on
    the reserve and has not properly dealt with the certificate  s. 25(2).  While
    possession of the land  evidenced by the Certificate of Possession  may
    change, the underlying title of the land to which the certificate relates
    remains with the Crown.  Any seizure through legal process of an Indians right
    of possession of reserve land by the band or another Indian cannot amount to
    seizure of reserve land pursuant to s. 29.

[85]

On
    the other hand, the purpose of s. 89 is "to insulate the property interests
    of Indians in their reserve lands from the intrusions and interference of the
    larger society so as to ensure that Indians are not dispossessed of their
    entitlements":
Mitchell
, at 133.  Furthermore, s. 89 places no
    constraints on the ability of Indians to charge, pledge, or mortgage property
    among themselves":
Mitchell
, at 134.  It follows that there must
    also be the ability to rely on the other forms of legal rights listed in s.
    89(1), including the right to seizure.

[86]

The
    motion judge correctly found that the right of possession of reserve land,
    which is evidenced by a Certificate of Possession, is either real or personal
    property of an Indian, and therefore subject to seizure and execution in favour
    of MBQ under s. 89 of the
Indian Act
.  Moreover, at para. 38, he
    correctly concluded that the "wording of the Act makes it clear that the
    'real and personal property of an Indian' is not the same as reserve lands or
    lands situated in a reserve."

[87]

I
    agree that a Certificate of Possession evidencing the right to use, occupy and
    benefit from reserve land is either real or personal property of the Indian who
    has such possession.  And, I agree that it is unnecessary for purposes of this
    appeal to decide which it is.  Furthermore, I would not interfere with the
    motion judges order as to the manner in which Miracles possession of reserve
    lands are to be sold.

5.       CONCLUSION

[88]

Here
    I want to repeat what I said earlier in these reasons; both Miracle and MBQ
    were required to rely on the
Indian Act
to support their claims in
    court. Thus, it was necessary for this court to decide the correct
    interpretation of the relevant provisions of the Act.  There was no challenge
    by either party to the appropriateness of
Indian Act
legislation or
    the regime and authority over Indians and Indian lands created by such
    legislation.  This courts decision is limited to the purpose of the
Indian
    Act
and the intention of Parliament in enacting it as it relates to this
    appeal.  In this regard, I conclude the following.

[89]

Ontario
    Superior Courts have inherent jurisdiction over cases that come before them,
    regardless of whether the applicable law is provincial or federal. Nothing in
    the
Indian Act
ousts this jurisdiction, including, in this case, the
    requirement that the Minister ultimately approve a transfer of Certificates of
    Possession. The Superior Court can order Miracle to complete any documents
    necessary to transfer his Certificates of Possession to MBQ  this is
    consistent with the scheme of the
Indian Act
, and properly provides
    MBQ a method to collect the debt owed to it.

[90]

Sections
    29 and 89(1) work in concert with the rest of the
Indian Act
to ensure
    reserve lands, being the property of the Crown, are not appropriated by
    non-Indians.  This is done by ensuring that title remains with the Crown while
    the right to possess and use the land is with the band or its members.  And, as
    the legislation makes clear, consent of the Crown is always required to
    alienate whatever interest the Indians do have.

[91]

An
    analysis of ss. 29 and 89(1) in their statutory context and historical
    evolution reveals that both provisions can stand together to permit the court
    to order the execution of the transfer of Miracles possession of reserve lands
     evidenced by the Certificates of Possession  to MBQ.  When the two sections
    are read together and within the context of the entire Act, and having regard
    to the history and purpose of Indian legislation, the inevitable conclusion is
    that the two sections work in concert.

6.       DISPOSITION

[92]

For
    the reasons set out herein, I would dismiss the appeal.  I would award costs of
    this appeal to MBQ fixed in the amount of $25,000 inclusive of disbursements
    and HST.  I would order that the costs award be added to the debt owed by Miracle
    to MBQ and satisfied through the sale of Miracles possession of lands
    evidenced by the Certificates of Possession, which was the subject of the
    motion judges order.

Released: HL July 30, 2014

H. LaForme J.A.

I agree. R.J. Sharpe
    J.A.

I agree. M. Tulloch
    J.A.





[1]
See reserve as defined in s. 2 of the
Indian Act
.



[2]
The
Constitution Act, 1982
, specifically recognizes the continuing
    existence and significance of the
Royal Proclamation
and its principles
    in s. 25(a).



[3]

The
    international indigenous community has recommended to the United Nations to
    declare that the doctrine of discovery is illegal and cannot be relied upon by
    state governments in law making, policy development or in litigation: United Nations
    Permanent Forum on Indigenous Issues, 11th Sess.,
The North American
    Indigenous Peoples Caucus Statement,
May 8, 2012.



[4]

The
    Act spelled out a process of enfranchisement whereby Indians could acquire full
    Canadian citizenship by relinquishing ties to their community. This involved
    giving up culture
and traditions, and any rights to land. It
    was not until the 1960s that this policy changed and Indians were granted the
    right to vote in federal elections. This was the first time that the government
    acknowledged citizenship for Aboriginal peoples without the condition of the
    assimilation into the Canadian white society.


