J.T.S. McCabe

An Indigenous band appealed from a summary judgment disposition concerning reserve lands sold in the 19th century without a lawful formal surrender.

The Court of Appeal held that there had been no surrender and that the claim was not barred by statutory limitation periods, but concluded that declaratory and possessory relief should nevertheless be refused.

The court applied public law discretion and equitable doctrines, emphasizing the band's historical acquiescence, the extraordinary delay in asserting the land claim, and the reliance of innocent third-party landowners who had held and developed the properties for generations.

The band was left to pursue its damages claims against the Crown.

In a complex Indigenous land claim involving multiple summary judgment motions and overlapping appeals, the moving party sought to quash an appeal by one Crown respondent and a cross-appeal by another.

The court held that, because the motions below were heard together on a single record and the issues were interrelated, the provincial Crown had standing to appeal despite not bringing its own motion below.

The court also held that the federal Crown had standing to cross-appeal and that any complaint that it was advancing a new argument went to the merits, not to the validity of the cross-appeal.

Both motions to quash were dismissed with costs.