R.D. 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 v. Brant et al.
[Indexed as: Mohawks of the Bay of Quinte v. Brant]
Ontario Reports
Court of Appeal for Ontario,
Sharpe, LaForme and Tulloch JJ.A.
July 30, 2014
121 O.R. (3d) 561 | 2014 ONCA 565
Case Summary
Aboriginal peoples — Property — Right of possession of reserve land evidenced by certificate of possession being real or personal property of Indian and subject to seizure and execution in favour of Indian band under s. 89 of Indian Act — "Real and personal property of Indian" not equivalent to "reserve lands" under s. 29 of Act — Superior Court of Justice having jurisdiction to order band member to execute transfers of certificates of possession to band in order to satisfy judgment debt — Indian Act, R.S.C. 1985, c. I-5, ss. 29, 89.
The defendant band member was a judgment debtor of the Mohawks of the Bay of Quinte. He held certificates of possession for parcels of land located on an Indian reserve. Seeking to have the defendant satisfy his indebtedness by transferring those certificates of possession to the band, the plaintiff moved for an order requiring him to complete any documents required to effect the transfer and submit them to the Indian land registrar. The defendant relied on s. 29 of the Indian Act, which provides that "Reserve lands are not subject to seizure under legal process"; and s. 89(1), which states, "Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to . . . seizure . . . or execution in favour or at the instance of any person other than an Indian or a band". The motion was granted. The defendant appealed.
Held, the appeal should be dismissed.
Title to reserve lands is vested in the Crown. A certificate of possession is only evidence of the fact that an Indian band member has been allotted possession of reserve land. The right of an Indian to possess reserve lands, as evidenced by a certificate of possession, is either real or personal property of an Indian and is subject to seizure and execution in favour of an Indian or a band under s. 89 of the Act. A seizure through legal process of an Indian's right of possession of reserve land by the band or another Indian cannot amount to seizure of reserve land pursuant to s. 29 of the Act, as the underlying title of the land remains with the Crown. The Superior Court had jurisdiction to order the defendant to execute transfers of his certificates of possession to the band in order to satisfy the judgment debt.
Derrickson v. Derrickson, [1986] 1 S.C.R. 285, [1986] S.C.J. No. 16, 26 D.L.R. (4th) 175, 65 N.R. 278, [1986] 3 W.W.R. 193, J.E. 86-341, 1 B.C.L.R. (2d) 273, [1986] 2 C.N.L.R. 45, 50 R.F.L. (2d) 337, 36 A.C.W.S. (2d) 360; Syrette v. Syrette, [2012] O.J. No. 4823, 2012 ONCA 693, 6 C.B.R. (6th) 324, 222 A.C.W.S. (3d) 171, consd
Other cases referred to
Batchewana First Nation of Ojibways v. Corbiere, 2000 CanLII 16712 (FC), [2000] F.C.J. No. 2036, 198 F.T.R. 36, 102 A.C.W.S. (3d) 3 (T.D.); Calder v. British Columbia (Attorney General), 1973 CanLII 4 (SCC), [1973] S.C.R. 313, [1973] S.C.J. No. 56, 34 D.L.R. (3d) 145, [1973] 4 W.W.R. 1, 7 C.N.L.C. 91; [page562] Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, [1997] S.C.J. No. 108, 153 D.L.R. (4th) 193, 220 N.R. 161, [1999] 10 W.W.R. 34, 99 B.C.A.C. 161, 66 B.C.L.R. (3d) 285, [1998] 1 C.N.L.R. 14, 75 A.C.W.S. (3d) 983; Guerin v. Canada, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45, 13 D.L.R. (4th) 321, 55 N.R. 161, [1984] 6 W.W.R. 481, 59 B.C.L.R. 301, [1985] 1 C.N.L.R. 120, 20 E.T.R. 6, 36 R.P.R. 1; Johnson v. McIntosh, 8 Wheaton 543, 21 U.S. 240 (1823); Maracle v. Brant, [2009] O.J. No. 3078, 2009 ONCA 581, 179 A.C.W.S. (3d) 983, varg [2008] O.J. No. 1186, 2008 CanLII 13368, 166 A.C.W.S. (3d) 204 (S.C.J.) [Leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 378]; Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85, [1990] S.C.J. No. 63, 71 D.L.R. (4th) 193, 110 N.R. 241, [1990] 5 W.W.R. 97, J.E. 90-961, 67 Man. R. (2d) 81, [1990] 3 C.N.L.R. 46, 3 T.C.T. 5219, 21 A.C.W.S. (3d) 1244; Ordon Estate v. Grail (1998), 1998 CanLII 771 (SCC), 40 O.R. (3d) 639, [1998] 3 S.C.R. 437, [1998] S.C.J. No. 84, 166 D.L.R. (4th) 193, 232 N.R. 201, J.E. 98-2410, 115 O.A.C. 1, REJB 1998-09407, 83 A.C.W.S. (3d) 897; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402; Seguin v. Pelletier, 2001 CanLII 28460 (ON SC), [2001] O.J. No. 1678, [2001] O.T.C. 333, 25 C.B.R. (4th) 90, [2001] 3 C.N.L.R. 321, 41 R.P.R. (3d) 311, 104 A.C.W.S. (3d) 1002 (S.C.J.); St. Catharines Milling and Lumber Co. v. Ontario (Attorney General), 1888 CanLII 209 (UK JCPC), [1888] J.C.J. No. 1, 14 App. Cas. 46, 10 C.R.A.C. 13, 4 Cart. 107 (P.C.), affg (1887), 1887 CanLII 3 (SCC), 13 S.C.R. 577, [1887] S.C.J. No. 3; Tsilhqot'in Nation v. British Columbia, [2014] S.C.J. No. 44, 2014 SCC 44, 2014EXP-2030, J.E. 2014-1148, [2014] 7 W.W.R. 633, 58 B.C.L.R. (5th) 1, [2014] 3 C.N.L.R. 362, 374 D.L.R. (4th) 1, 459 N.R. 287, 43 R.P.R. (5th) 1, 241 A.C.W.S. (3d) 2
Statutes referred to
An Act for the better protection of the Lands and Property of Indians in Lower Canada, 13-14 Vict., cap. 42 (S.C. 1850, c. 42)
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)
An Act to Amend the Indian Act, 1-2 Geo. VI, cap. 14 (S.C. 1911, c. 14)
An Act to encourage the Gradual Civilization of the Indian Tribes in this Province, and to amend the Law's respecting Indians, 20 Vict., cap. 26 (S.C. 1857, c. 26)
Constitution Act, 1867, s. 91(24)
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 25(a)
Family Relations Act, R.S.B.C. 1979, c. 121
Indian Act, 1876, 37-39 Vict., cap. 18 (S.C. 1876, c. 18), ss. 6-10, 25-28
Indian Act, R.S.C. 1906, c. 81, Part II
Indian Act, R.S.C. 1927, c. 98, ss. 23, 105
Indian Act, R.S.C. 1985, c. I-5 [as am.], ss. 2 [as am.], (1) [as am.], 3, 18(1), 20-29, 20(1), (2), 23, 24, 25, (2), 27, 29, 37 [as am.], 38 [as am.], 74-80 [as am.], 88 [as am.], 89, (1)
Indian Act, 15 Geo VI, cap. 29 (S.C. 1951, c. 29), ss. 20, 87, 88(1), 108-113
Indian Advancement Act, 1884
Authorities referred to
Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
Mills, David, "Report of Minister of the Interior for the year ended 30th June, 1876" in Sessional Papers, No. 11 (1877)
Royal Commission on Aboriginal Peoples, Report of Royal Commission on Aboriginal Peoples, Volume 1: Looking Forward, Looking Back (Ottawa: Canada Communication Group — Publishing, 1996)
United Nations Permanent Forum on Indigenous Issues, 11th sess., The North American Indigenous Peoples' Caucus Statement, May 8, 2012 [page563]
Warner La Forest, Anne, Anger & Honsberger Law of Real Property, 3rd ed., looseleaf (Toronto: Canada Law Book, 2013)
Woodward, Jack, Native Law, looseleaf (Toronto: Carswell, 2014)
APPEAL from the order of Tranmer J. (2013), 117 O.R. (3d) 64, [2013] O.J. No. 3767, 2013 ONSC 4733 (S.C.J.).
Allan Morrison and Shruthi Raman, for appellant Andrew Clifford Maracle.
Roger Horst and Rafal Szymanski, for respondents the Mohawks of the Bay of Quinte.
Lynn Marchildon and Leah Garvin, for Attorney General of Canada, on behalf of the Indian land registrar.
Joshua Hunter, for Attorney General of Ontario, on behalf of the sheriff of the County of Hastings.
The judgment of the court was delivered by
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 (the "Indian Act"). 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, [page564] 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 moneys 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 [at para. 36], "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] O.J. No. 1186, 2008 CanLII 13368 (S.C.J.). 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] MBQ's 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 MBQ's 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. [page565]
[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] O.J. No. 3078, 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. MBQ's writs were validated and the sheriff was directed to sell Miracle's 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 judge's 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. [page566]
(2) MBQ's 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 ss. 29 and 89(1) of the Indian Act:
- Reserve lands are not subject to seizure under legal process.
. . . . . [page567]
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 Miracle's 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 Miracle's 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; [page568]
(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 CanLII 56 (SCC), [1986] 1 S.C.R. 285, [1986] S.C.J. No. 16 and Syrette v. Syrette, [2012] O.J. No. 4823, 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. [page569]
[33] The essence of Miracle's 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 judge's decision is "moot and without force or effect". I disagree.
[34] Miracle's 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 Court's 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. [page570]
[39] Further, the Superior Court's jurisdiction over the transfer of certificates of possession was expressly considered in Batchewana First Nation of Ojibways v. Corbiere, 2000 CanLII 16712 (FC), [2000] F.C.J. No. 2036, 198 F.T.R. 36 (T.D.), 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), 1998 CanLII 771 (SCC), 40 O.R. (3d) 639, [1998] 3 S.C.R. 437, [1998] S.C.J. No. 84, 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 minister's 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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.html) and [89(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.html) of the [Indian Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.html)
(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, Volume 1: Looking Forward, Looking Back (Ottawa: Canada [page571] Communication Group -- Publishing, 1996) ("Report of Royal Commission"), pp. 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 [at para. 10] 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:
- 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] Miracle's 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 s. 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 [page572] the Indian's 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 CanLII 28460 (ON SC), [2001] O.J. No. 1678, 25 C.B.R. (4th) 90 (S.C.J.), 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 Woodward's 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, 2nd ed. (Toronto: Butterworths, 1983), at 87. The Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 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 [page573] Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act's 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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.html) 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 of 1763, R.S.C. 1985, App. II, No. 1[^2] as the origin of Indian title: see St. Catharines Milling and Lumber Co. v. Ontario (Attorney General) (1887), 1887 CanLII 3 (SCC), 13 S.C.R. 577, [1887] S.C.J. No. 3, affd (1888), 1888 CanLII 209 (UK JCPC), 14 App. Cas. 46, [1888] J.C.J. No. 1 (P.C.). It is now clear from more recent authority that Indian title existed in Canada independently of the Royal Proclamation: see Calder v. British Columbia (Attorney General), 1973 CanLII 4 (SCC), [1973] S.C.R. 313, [1973] S.C.J. No. 56. 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 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, [1997] S.C.J. No. 108, at para. 114. In a very recent decision, the Supreme Court of Canada, relying on Dickson J. in Guerin v. Canada, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45, 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 of 1763: Tsilhqot'in Nation v. British Columbia, [2014] S.C.J. No. 44, 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. [page574]
[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 CanLII 117 (SCC), [1990] 2 S.C.R. 85, [1990] S.C.J. No. 63, at p. 130 S.C.R. 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 S.C.R. That is to say, an Indian band's and an Indian's 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. Catharines Milling and was strongly influenced by jurisprudence from the Supreme Court of the United States such as Johnson v. McIntosh, 8 Wheaton 543, 21 U.S. 240 (1823). The definition of Indian title in Canada most often referenced is found in the decision of the Privy Council in St. Catharines, at pp. 54-55 App. Cas.:
[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. Catharines 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 S.C.R., citing Johnson v. McIntosh.
[60] Dickson J. in Guerin went on to find, at p. 378 S.C.R., that the European claims to sovereignty were justified by the [page575] principle of discovery. Although the court in Tsilhqot'in 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 Tsilhqot'in 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] [page576] 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 Law's 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 government's 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) (the "1876 Act") 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: [page577]
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 1876 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 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, 1884, for example, was consolidated as Part II of the Indian Act, R.S.C. 1906, c. 81 (the "1906 Act"). The 1906 Act was amended to provide increased incentives to bands to surrender reserve land. The 1906 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 1906 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: An Act to Amend the Indian Act, 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 [page578] 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: Indian Act, 15 Geo VI, cap. 29 (S.C. 1951, c. 29) (the "1951 Indian Act"). 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 [of the 1951 Indian Act]. 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:
- 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 [of the 1951 Indian Act] 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 [page579] 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 has [page580] 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 [of the 1951 Indian Act] -- were repealed in 1985 and discontinued Parliament's 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) and (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 and 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 [page581] 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, 3rd 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 Indian's 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 p. 133 S.C.R. Furthermore, s. 89 "places no constraints on the ability of Indians to charge, pledge, or mortgage property among themselves": Mitchell, at p. 134 S.C.R. It follows that [page582] 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 judge's order as to the manner in which Miracle's 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 court's 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. [page583] 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 Miracle's 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 Miracle's possession of lands evidenced by the certificates of possession, which was the subject of the motion judge's order.
Appeal dismissed.
Notes
[^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.
End of Document