COURT OF APPEAL FOR ONTARIO

DATE: 20000127

DOCKET: M24443/M24616/M24617/C32170

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.

DOHERTY J.A.:

[1] The 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

[2] The 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).

[3] The 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.

[4] In 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

[5] Canada 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.

[6] The 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.

[7] The 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.

[8] The 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.

[9] Campbell 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

• 1853. 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.

[10] Based 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,

1921. 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

[11] None 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.

[12] The 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.

[13] Canada 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.

[14] The 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.

[15] Ontario 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.

[16] A 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

[17] In 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.

[18] Canada, 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.

[19] Mr. 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.

[20] The 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.

[21] The 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.

[22] I 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.

[23] Ontario 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.

[24] Canada, 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.

[25] The 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.

[26] Both 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