COURT OF APPEAL FOR ONTARIO
DOHERTY, CHARRON and O'CONNOR JJ.A.
B E T W E E N : )
) Earl A. Cherniak, Q.C. and
THE CHIPPEWAS OF SARNIA BAND )
) Elizabeth K.P. Grace
) for the appellant
(Plaintiff/
Moving Party) )
)
) Gary N. Penner
- and - ) for the respondent,
) Attorney General of Canada
ATTORNEY GENERAL OF CANADA, )
HER MAJESTY THE QUEEN IN RIGHT OF ) J.T.S. McCabe
ONTARIO; and CANADIAN NATIONAL ) for the respondent,
RAILWAY COMPANY, DOW CHEMICAL ) HMQ in Right of Ontario
CANADA INC., THE CORPORATION OF )
THE CITY OF SARNIA, AMOCO CANADA ) Jeff G. Cowan
RESOURCES LTD., AMOCO CANADA ) for the defendants
PETROLEUM COMPANY LTD., ONTARIO )
HYDRO NETWORKS COMPANY INC., )
UNION GAS LIMITED, INTERPROVINCIAL )
PIPE LINE INC., THE BANK OF )
MONTREAL, THE TORONTO-DOMINION ) Heard: October 20, 1999
BANK, and CANADA TRUSTCO )
MORTGAGE COMPANY )
)
(Defendants/
Respondents) )
)
)
On appeal from the judgment of Mr. Justice Archie Campbell dated
April 30, 1999.
Introduction
1The Chippewas of Sarnia Band (Chippewas) moved to quash an
appeal brought by Her Majesty the Queen in Right of Ontario
(Ontario) and a cross-appeal taken by the Attorney General of
Canada (Canada). The court dismissed both motions at the
conclusion of oral argument with reasons to follows. These are
those reasons.
I
I
2The Chippewas claim that they own 4 square miles of land in
and around the city of Sarnia (the disputed land). They have
sued Canada, Ontario and some 2,000 individuals and corporations
who presently occupy the disputed land. The named defendants,
other than Canada and Ontario, appear in their individual
capacity and as representatives of the class of land owners
affected by the claim (the class representatives).
3The Chippewas contend that they retained ownership of the
disputed land when they surrendered a large tract of land to the
British Crown in 1827. They further contend that the purported
sale of the disputed land to Malcolm Cameron in 1839 by certain
Chippewa Chiefs, orders-in-council approving the sale, and a
Crown patent conveying the land to Cameron were all invalid and
void ab initio. The Chippewas maintain that their aboriginal
title and treaty rights in the disputed lands were never
surrendered or otherwise lawfully extinguished and that the land
remains unsurrendered, treaty-protected, reserved land to which
the Chippewas enjoy existing and continuing common law,
statutory, treaty, aboriginal and constitutional rights.
4In the action, the Chippewas seek a declaration that their
title to the disputed land was never extinguished and that they
have the exclusive right to occupy, enjoy and possess the lands.
The Chippewas also seek damages from Ontario and Canada for
breach of fiduciary duty, breach of treaty obligations and
conversion. The damages claim remains to be resolved regardless
of the outcome of these proceedings.
II
II
5Canada brought a motion for summary judgment dismissing the
portion of the Chippewas’ claim that alleged that the patent was
void ab initio in that the Crown had no authority, right or
jurisdiction to issue the patent to Malcolm Cameron.
6The class representatives also brought a motion for summary
judgment. In that motion, the class representatives sought the
same relief as Canada, and also sought an order dismissing all
claims against members of the representative class.
7The Chippewas responded with a cross-motion for summary
judgment seeking a declaration that the patent issued to Malcolm
Cameron was issued without jurisdiction or proprietary rights and
was null and void ab initio. The Chippewas also sought a
declaration that they were the owners of the disputed land and
that none of their treaty, aboriginal, statutory, common law or
constitutional rights in the land had been extinguished.
8The three motions were heard together by Campbell J. over a
two-week period. Ontario did not bring a separate motion but
participated fully in the proceedings before Campbell J. All of
the defendants presented an essentially common front on the
motion before Campbell J. He noted:
The parties moving against and responding to the plaintiff
[the Chippewas] will be called the “defendants” unless it is
necessary to distinguish among them. For the most part they rely
mutually on each other’s positions and arguments. The notable
exception is that the Attorney General for Canada does not seek
to rely on the arguments that the Crown is entitled unilaterally
to extinguish unceded treaty-protected aboriginal title in
reserve land.
9Campbell J. delivered extensive reasons in which he
considered the numerous issues raised in the motions. His
findings included:
The lands surrendered to the Crown by the Chippewas in 1827
did not include the disputed land. The treaty providing for the
surrender of those lands specifically exempted the disputed land
from surrender.
In 1839, Malcolm Cameron purported to purchase the disputed
lands by private sale from three Chiefs of the Chippewas. There
was no formal surrender of the disputed lands. The private sale
of unsurrendered aboriginal land was prohibited by common law and
by the Royal Proclamation of 1763.
There was no evidence that the Chippewas ever surrendered
the disputed lands.
The Cameron transaction was void and illegal ab initio. It
conveyed no interest in the disputed lands.
Lord Elgin had no authority to patent the disputed lands in
- The purported patent to Cameron was void ab initio and of
no force and effect.
The Chippewas’ interest in the disputed lands continues to
this day unless extinguished by some constitutionally applicable
statute, rule of law, or principle of equity.
The pre-confederation limitation statutes did not extinguish
the Chippewas’ interest in the lands and did not apply so as to
bar an action by the Chippewas for recovery of the land.
The doctrines of laches, acquiescence and estoppel by
election do not apply so as to bar the action brought by the
Chippewas.
The defence of good faith purchaser for value without notice
is a fundamental aspect of the applicable real property regime.
The defence may, in appropriate cases, bar an aboriginal claim
against an innocent third party.
Against ordinary property, the good faith purchaser without
notice defence operates immediately upon purchase. Such abrupt
application to Indian lands would ignore the legal priority
accorded to aboriginal rights and would have extinguished the
Chippewas’ title immediately in 1861 without any reasonable
opportunity to recover the aboriginal land.
A 60-year equitable limitation period protects aboriginal
property interests against immediate extinguishment on sale to a
good faith purchaser without notice. The competing interests of
the Chippewas and innocent purchasers without notice are balanced
by allowing the good faith purchaser without notice defence to
operate only after 60 years.
The 60-year equitable limitation to the claim against the
good faith purchasers began on August 26, 1861 and expired on
August 26, 1921. As of that date, no action had been brought
against a good faith purchaser. The defence of good faith
purchaser for value without notice operated to extinguish the
aboriginal and treaty rights of the Chippewas in the disputed
land on August 26, 1921.
The aboriginal and treaty rights that were extinguished as
of August 26, 1921 crystallized into a damage claim against the
Crown.
10Based on his findings, Campbell J. directed that orders
should go in the following terms:
The motion by Canada to dismiss the
Chippewa claim, on the basis that the Cameron
patent was valid because the Chippewas
surrendered or released their interest in the
disputed land, is dismissed.
The motion by the present owners in
respect of the validity of the 1853 Cameron
patent is dismissed.
The Chippewas’ motion in respect of the
validity of the Cameron patent is allowed. A
declaration will go to the effect that the
Letters Patent issued to Malcolm Cameron on
August 13, 1853 which purported to convey the
disputed lands are null and void ab initio
and of no force and effect because no lawful
surrender was made. Neither the Orders-in-
Council of March 19, 1840 and June 18, 1840
which approve the sale nor the Letters Patent
extinguished the Band’s unceded unsurrendered
common law aboriginal interest and title,
guaranteed by Treaty 29, in the disputed
lands.
The Chippewas’ motion for a declaration
that the Chippewas of Sarnia Band enjoy
continuing and unextinguished common law,
aboriginal, treaty and constitutional rights
in the disputed land is dismissed as is the
alternative motion in respect of a proposed
modern surrender.
The Chippewa action for damages against
the Crown will continue.
The motion by the present owners in
respect of the relief sought against them is
allowed and the plaintiffs’ claim is
dismissed against them on the grounds that
the defence of good faith purchaser for value
protects their title and that the application
of an equitable limitation period of sixty
years extinguished all Chippewa right and
title in the disputed lands on August 26,
- The present owners hold their title
free and clear from any cloud of aboriginal
title or treaty rights and a declaration will
go to that effect.
III
III
11None of the parties were entirely satisfied with the
decision rendered by Campbell J. Six appeals have been launched.
Four are not challenged on this motion to quash.
12The Chippewas appeal from the orders allowing the class
representatives’ motion for summary judgment in part and
dismissing in part the Chippewas’ cross-motion for summary
judgment. The Chippewas seek an order declaring that they enjoy
continuing and unextinguished common law, statutory, aboriginal,
treaty and constitutional rights in the disputed lands. The
Chippewas also seek further relief which need not be
particularized in these reasons. Canada, Ontario and the class
representatives are all respondents to this appeal.
13Canada appeals from the order dismissing its motion for
summary judgment, the order dismissing in part the class
representatives’ motion for summary judgment and the order
allowing in part the Chippewas’ motion. Canada seeks an order
dismissing the portion of the claim that pleads that the Crown
had no authority, right or jurisdiction to issue the patent to
Malcolm Cameron and an order dismissing that part of the claim
which alleges that the patent was void ab initio and
unenforceable at law.
14The class representatives cross-appeal in the Chippewas
appeal and ask for:
an order declaring that the patent is valid and effective to
create an interest in the land;
a declaration that the effect of the patent was to
extinguish any aboriginal title or treaty rights in the disputed
lands; and
a declaration that any right of action the Chippewas may
have had for recovery or enforcement of any interest in the
disputed land was barred by the operation of limitation statutes
or by the operation of various equitable doctrines.
15Ontario cross-appeals in the Chippewas’ appeal and seeks an
order granting the class representatives’ motion for summary
judgment and an order dismissing the Chippewas’ cross-motion.
Ontario contends that the patent was valid and conveyed the land
to Cameron free of any interest of the Chippewas. Ontario
further claims that the doctrine of good faith purchaser for
value without notice extinguished any claim the Chippewas had
from the time of the purchase rather than 60 years after the
purchase.
16A comparison of the many grounds of appeal raised in the
four unchallenged appeals with the findings made by Campbell J.
suggests that virtually every one of those findings is challenged
directly or indirectly in at least one of these appeals.
IV
IV
17In addition to the cross-appeal in the Chippewas’ appeal,
which the Chippewas do not seek to quash, Ontario has appealed
the order dismissing Canada’s motion for summary judgment and
dismissing in part the class representatives’ motion for summary
judgment. The Chippewas moved to quash this appeal arguing that
Ontario has no standing to bring this appeal.
18Canada, in addition to the appeal brought in its own motion,
cross-appeals in the appeal brought by the Chippewas. It seeks a
variation in the order of Campbell J. such that the patent be
declared voidable and not void ab initio, or alternatively, that
the court, in the exercise of its discretion, uphold the validity
of the patent. The Chippewas submit that Canada has no standing
to cross-appeal and that the cross-appeal amounts to an abuse of
the process of the court in that Canada seeks to advance a
position it expressly declined to take before Campbell J.
19Mr. Cherniak, for the Chippewas, submits that the four
appeals, which are not challenged by the Chippewas, are
sufficiently broad to put in issue all contested matters. He
submits that the purpose of these motions to quash is not to
eliminate any issue from consideration on the appeals, but to
ensure that the issues are advanced by the proper parties and in
the proper order. He expressed concern that the Chippewas would
be prejudiced by the proliferation of appeals and cross-appeals
brought by the parties who are opposed in interest to the
Chippewas.
20The issues raised in the various appeals overlap. Steps
will have to be taken to ensure that the arguments of the appeals
are ordered so as to avoid unfairness and maximize the effective
use of the time allotted for the hearing of these appeals. I am
confident that counsel of the calibre involved in these appeals,
with the assistance of Justice Goudge, the case management judge,
can agree on an appropriate “line-up” for the argument of these
appeals. Failing agreement, the court will determine the order.
I am fully satisfied that the hearing of the appeals can be
structured to avoid prejudice to any party.
21The Chippewas claim that Ontario has no standing to appeal
the orders made in relation to the motion for summary judgment
brought by Canada and the class representatives. It is argued
that Ontario chose to limit its role in the proceedings before
Campbell J. to that of respondent in the Chippewas’ motion for
summary judgment. Consequently, it is submitted that Ontario may
appeal or cross-appeal only in relation to the orders arising out
of the Chippewas motion.
22I do not accept this characterization of Ontario’s role in
the proceedings before Campbell J. Ontario was a respondent in
all three motions. The motions were heard together on the basis
of a single motion record. The issues raised in the motions
were, in some cases, identical and, in all cases, interrelated.
Ontario participated fully in the argument of these issues,
supporting the positions advanced by the other defendants. It
would be impractical, artificial, and contrary to the due
administration of justice to treat these motions as three
discrete proceedings for the purposes of determining rights of
appeal. The futility of trying to make the distinction urged by
the Chippewas is evident when one tries to determine which of the
arguments advanced by Ontario in its appeal could not be put
forward by Ontario either as part of its cross-appeal on the
Chippewas’ appeal or in response to the appeal advanced by the
Chippewas. It seems to me that all of the arguments advanced by
Ontario in its Notice of Appeal would be open to Ontario in its
cross-appeal or in response to the Chippewas’ appeal. This may
make Ontario’s appeal redundant. However, redundancy alone is
not a basis upon which to quash an otherwise proper appeal.
23Ontario is bound by the findings made by Campbell J. on the
motions unless and until those findings are varied or vacated on
appeal. As a party to the action and a respondent whose
interests are affected by the orders made on the motions, Ontario
is entitled to challenge those findings by way of an appeal from
the orders made by Campbell J.
24Canada, like Ontario, was a full participant in the motions
before Campbell J. It is a named respondent in the Chippewas’
appeal. There can be no doubt about its standing to cross-appeal
in that appeal. Its entitlement to the relief claimed on the
cross-appeal should be addressed as part of the merits of the
cross-appeal.
25The Chippewas’ submission that Canada seeks to advance a
position on its cross-appeal that it specifically declined to
take before Campbell J. relates to the claim made by Canada on
the cross-appeal that the patent was voidable rather than void ab
initio. Assuming that the Chippewas’ contention is accurate,
this is not a case in which an appellant seeks a different
outcome than that urged by the appellant in the proceedings
below. Rather, it is a case where an appellant advances a
different argument in support of the same ultimate position. If
Canada is advancing an argument on its cross-appeal that it chose
not to make before Campbell J., Canada may have a difficult
appeal. While appellate courts are reluctant to give effect to
arguments not made in the proceedings below, there is no absolute
rule prohibiting the making of such arguments on appeal. The
Chippewas’ claim that Canada seeks to advance a new argument on
the cross-appeal is properly made in its response to Canada’s
cross-appeal. It is not a basis upon which to quash the cross-
appeal.
26Both motions to quash are dismissed. Canada, Ontario and
the class representatives are entitled to their costs on the
motions on a party-and-party basis.
Released: January 27, 2000