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

Ontario Superior Court of Justice,

Tranmer J.

August 14, 2013

117 O.R. (3d) 64 | 2013 ONSC 4733

Case Summary

Aboriginal people — Property — Band member's certificate of possession for property situated on reserve being subject to seizure or execution in favour of band — Defendant ordered to complete documents required to transfer certificate of possession to plaintiff in order to satisfy his indebtedness to plaintiff.

The defendant band member owed damages and costs to 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, R.S.C. 1985, c. I-5, which provides that "[r]eserve 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".

Held, the motion should be granted.

The intent of the Act, the legislative history and the wording of ss. 29 and 89 clearly indicate Parliament's intention that reserve lands or lands situated in a reserve, the title to which remains vested in Her Majesty for the use and benefit of the respective bands for which they were set apart, are not subject to seizure under legal process by persons who are not Indians or a band. However, an Indian or a band is permitted to seize or execute upon the real and personal property of an Indian or a band situated on a reserve. The "real and personal property of an Indian" is not the same as reserve lands or lands situated in a reserve. A certificate of possession is not reserve lands or lands situated in a reserve, but it is either real or personal property of an Indian. Sections 29 and 89(1) are consistent and not in conflict and fit comfortably together within the scheme of title and possession provided for reserve lands under the Act. The defendant's certificates of possession for the two properties situated on the reserve were subject to seizure or execution in favour of the band. If the defendant failed to comply with the order to complete any documents required to effect the transfer, he was to be deemed to have consented to and authorized the transfer of the certificate of possession.

Derrickson v. Derrickson, 1986 56 (SCC), [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; Mitchell v. Peguis Indian Band, 1990 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, consd [page65 ]

Syrette v. Syrette, [2012] O.J. No. 4823, 2012 ONCA 693, 222 A.C.W.S. (3d) 171, varg [2011] O.J. No. 4551, 2011 ONSC 6108, 82 C.B.R. (5th) 316, 8 R.F.L. (7th) 293, 208 A.C.W.S. (3d) 361 (S.C.J.), distd

Other cases referred to

Seguin v. Pelletier, 2001 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.); Tyendinaga Mohawk (Council) v. Brant, 2008 13368 (ON SC), [2008] O.J. No. 1186, 166 A.C.W.S. (3d) 204 (S.C.J.)

Statutes referred to

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am.]

Family Law Act, R.S.O. 1990, c. F.3 [as am.]

Indian Act, R.S.C. 1985, c. I-5, ss. 18-29, 18(1), 20, 23, 24, 25, (2), 27, 29, 37 [as am.], 42-47, 48-50 [as am.], 53, 81, 87 [as am.], 88, [as am.], 89, (1), 90

Indian Act, S.C. 1850, c. 74, s. 66

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, rules 1.04, 59.06(2)(a), (d)

Authorities referred to

Woodward, Jack, Native Law, looseleaf (Toronto: Carswell, 1989- )

MOTION for an order requiring the defendant to transfer certificates of possession to the band.

Roger J. Horst and R. Szymanski, for plaintiff/ creditor.

Allan Morrison and E. Clemence, for defendant Sir Andrew C. Miracle.

L. Garvin, for Indian land registrar.

TRANMER J.: —

Nature of the Motion

[1] The moving party, the Mohawks of the Bay of Quinte, seek relief against Andrew Clifford Maracle for damages and costs owed by him to it in the nature of the transfer of certificates of possession in his favour for parcels of land located on an Indian reserve to the moving party so as to satisfy the indebtedness.

Preliminary Issue

[2] James McMurter is a member of the Mohawks of the Bay of Quinte. He says he is not represented by the moving party. He is the president of Ohwistha Capital Corporation against whom the action has been previously dismissed.

[3] He made a statement before me that his people have their own justice and their own means of achieving justice. He stated that the courts becoming involved in a dispute such as this violates this tradition of these people. [page66 ]

[4] He stated that the people can do their own justice, and have done so for 400 years. He states that they can handle this issue without the involvement of the courts. He asserts that the traditional practices of his people provide for the proper way for this dispute to be handled, through discussions until a resolution is achieved.

[5] The responding party to this motion supports these submissions.

[6] The within proceedings were commenced over five years ago. The initial trial decision was released in March of 2008 [2008 13368 (ON SC), [2008] O.J. No. 1186, 166 A.C.W.S. (3d) 204 (S.C.J.)]. There have been several subsequent proceedings arising out of this decision.

[7] I observe that the process of discussion favoured by Mr. McMurter has been available throughout these proceedings. The involvement of the courts has not precluded that process. The process remains available to the parties.

[8] The parties have now put before this court a legal issue which I am told has not been litigated before. In the circumstances, it is the responsibility of this court to adjudicate upon that issue as framed by these parties. At the same time, they are free to pursue the process of discussion urged by McMurter.

The Issue

[9] The issue is whether this court can order the transfers of certificates of possession issued to Mr. Maracle under the Indian Act, R.S.C. 1985, c. I-5 (the "Act") in order to satisfy a debt for money which he owes to the band, the Mohawks of the Bay of Quinte.

[10] The decision on the issue involves the interpretation and reconciliation of s. 29 of the Act"Reserve lands are not subject to seizure under legal process", and s. 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 . . . seizure . . . or execution in favour or at the instance of any person other than an Indian or a band."

[11] The lands in issue are held by the respondent pursuant to certificates of possession as provided for in the Indian Act. They are not the lands that were in issue at the original trial.

[12] It is common ground that the sheriff, a Government of Ontario employee, cannot seize the subject lands because of ss. 29 and 89(1). The sheriff is not an Indian or a band and therefore cannot own lands situated in a reserve, which is the effect of seizing same for sale. I am told by the parties that there is no sheriff who is an Indian or a band.

[13] The motion seeks the assistance of the court to collect a debt. [page67 ]

[14] The title to land in a reserve under the Indian Act remains vested in Her Majesty the Queen. Under the Act, s. 20, the council of the band may allot possession of land in a reserve to an Indian. The second step required by the Act is the approval of the allotment by the minister. If he approves, the minister may issue to the Indian who is lawfully in possession of land in a reserve a certificate of possession as evidence of his right to possess the land.

Position of the Moving Party

[15] The moving party submits that the intent and purpose of the Indian Act is to ensure that only Indians and bands are entitled to possession of reserve lands. Counsel for the moving party relies on s. 89(1) as providing that real property of an Indian situated on a reserve cannot be seized by someone else other than an Indian or a band and provides for a scheme whereby an Indian or a band can enforce legal rights against an Indian. He submits that if s. 29 provides a complete bar to other Indians and the band to seizure of lands situated in a reserve, then s. 89(1) is of no force and effect and there is no method under the Act to enforce debts between Indians or between Indians and the band. He submits that s. 89(1) provides the means for enforcing debts as between Indians and as between Indians and the band.

[16] Counsel for the moving party submits that non-Indians do not have the right to seize lands situated in a reserve, but that the legislation provides an exception for Indians and for the band. He submits that he has found no explanation in the legislative debates or elsewhere for the reasons behind this legislation. He submits the legislative history does not give a determinative answer to the specific intent of the combination of ss. 29 and 89(1) in the legislation.

[17] He says there is no conflict between the sections when they are read together with the intent of the Act in mind. He says, alternatively, if this court finds that there is a conflict between the two sections, then I should look at the implied legislative intent and give it priority, namely that Parliament would not have enacted s. 89(1) if it did not mean that Indians or the band could seize Indian land. He relies on the decision of the Supreme Court of Canada in Mitchell[^1] for the proposition that the purpose of the Act is to protect reserve lands from being transferred to non-Indians. He says it is not an intention of the Act to prevent collection of debts between Indians or between Indians and a band. [page68 ]

Position of the Indian Land Registrar

[18] The registrar takes no position with respect to methods available to satisfy debts and no interest in the outcome of this motion.

[19] It submits that s. 29 is a prohibition of the seizure of lands, the underlying title of which is held by the Crown, by a non-Indian. It submits that s. 89(1) is an express exception to this no seizure rule in favour of an Indian or the band.

[20] It points out that the real property interest of an Indian or the band is a possessory one, by way of certificate of possession, and that that is what is referred to in s. 89(1) as "the real property . . . of an Indian or a band situated on a reserve". This is the meaning of the distinction of the words "Reserve lands" in s. 29 and "the real property . . . of an Indian or a band situated on reserve lands" in s. 89(1). Section 29 preserves the underlying title to the lands which is held by Her Majesty the Queen.

Position of the Responding Party

[21] Firstly, counsel for Mr. Maracle relies on the Ontario Court of Appeal decision in Syrette[^2] for the proposition that [at para. 4] "neither this court, or the application judge in this case have authority to make an order concerning possession, ownership, or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act, S.C. I-5".

[22] Secondly, he submits that as a matter of statutory interpretation, the phrase "Subject to this Act", at the outset of s. 89(1), means that that section is subordinate to s. 29. Therefore, it is argued that Parliament indicated its clear intention to enshrine in law a prohibition against seizure of reserve lands under legal process to all Indians, bands and all other persons.

Analysis

The intent of the Indian Act

[23] In the Supreme Court of Canada decision in Derrickson v. Derrickson,[^3] the court noted that title to reserve lands is vested in the Crown. Section 18(1) of the Act provides that reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart. "The purpose of the above [page69 ]subsection is to ensure that lands reserved for Indians are and remain used for the use and benefit of the band."

[24] In Mitchell v. Peguis Indian Band,[^4] the Supreme Court of Canada repeated this theme, pointing out that s. 89 "weaves another strand into the protection afforded property of natives by shielding the real and personal property of an Indian or a band situated on a reserve from ordinary civil process" (para. 82). "The historical record leaves no doubt that native peoples acknowledged the ultimate sovereignty of the British Crown, and agreed to cede their traditional homelands on the understanding that the Crown would thereafter protect them in the possession and use of such lands as were reserved to their use . . . The sections of the Indian Act relating to the inalienability of Indian lands seek to give effect to this protection by interposing the Crown between the Indians and the market forces which, if left unchecked, had the potential to erode Indian ownership of these reserve lands. . . " (para. 85). The court points out that the exemptions from taxation and distraint have historically protected the ability of Indians to benefit from this property in two ways. First, they guard against the possibility that one branch of government, through the imposition of taxes, could erode the full measure of the benefits given by that branch of government entrusted with the supervision of Indian affairs. Secondly, the protection against attachment ensures that the enforcement of civil judgments by non-natives will not be allowed to hinder Indians in the untrammelled enjoyment of such advantages as they had retained or might acquire pursuant to the fulfillment by the Crown of its treaty obligations. "In effect, these sections shield Indians from the imposition of the civil liabilities that could lead, albeit through an indirect route, to the alienation of the Indian land base through the medium of foreclosure sales and the like" (para. 86).

[25] "In summary, the historical record makes it clear that ss. 87 and 89 of the Indian Act, the sections to which the deeming provision of s. 90 applies, constitute part of a legislative 'package' which bears the impress of an obligation to native peoples which the Crown has recognized at least since the signing of the Royal Proclamation of 1763. From that time on, the Crown has always acknowledged that it is honour-bound to shield Indians from any efforts by non-natives to dispossess Indians of the property which they hold qua Indians, i.e., their land base and the chattels on that land base" (para. 87). [page70 ]

[26] In para. 92, the court notes that the provisions are not intended to confer privileges on Indians in respect of any property they may acquire and possess, wherever situated. Their purpose is simply 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"to prevent interference with Indian property on a reserve" (para. 92).

[27] In para. 93, the court states"s. 89 is not meant to arm Indians with privileges they can exercise in acquiring and dealing with property in the general marketplace, but, rather, is simply limited in its purpose to preventing non-natives from interfering with the ability of Indians to enjoy such duly acquired property as they hold on their reserve lands. That, of course, is why s. 89 places no constraints on the ability of Indians to charge, pledge, or mortgage property among themselves" (para. 93) (emphasis added).

[28] The Supreme Court of Canada decision in Derrickson, supra, at paras. 70 to 81, summarizes the land possession scheme under the Act, as set out in ss. 18 through 29 of the Act. The title to reserve lands is held by Her Majesty the Queen for the use and benefit of the bands. Possession of a parcel of land within the reserve by an individual Indian can only come through allotment by the council of the band with the approval of the minister. That parcel within a reserve can only be transferred to the band or to another member of the band and only with the consent of the minister. An Indian who leaves the reserve is to transfer his possessory right to the land to another member of the band. Any transfer or disposition of land within a reserve by which the band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or reserve lands or otherwise exercise any rights on a reserve is void. Reserve lands are not subject to seizure under legal process.

[29] It is clear that the legislative intent of the Act is 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. The Act does not prohibit a band from transferring or dealing with reserve lands with a member of the band or from one member of the band transferring or dealing with reserve lands with another member of the band, subject to the consent of the minister.

The legislative history

[30] In Mitchell, supra, La Forest J. reviews the historical record of the legislation beginning at para. 79 of the case report. [page71 ]The initial legislation was enacted for the protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, S.C. 1850, c. 74. The first Indian Act was passed in 1876. In similar terms to the present-day s. 89, s. 66 of the first Indian Act protected property of natives by shielding the real and personal property of an Indian or a band situated on a reserve from ordinary civil process.

[31] La Forest J. concludes that the historical record makes it clear that the Crown has always acknowledged that it is honour bound to shield Indians from any efforts by non-natives to dispossess Indians of the property which they hold qua Indians, i.e., their land base and the chattels on that land base situated on a reserve (para. 87). He points out, at para. 92, that the purpose of the legislation 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. The learned justice notes that the essence of the matter is that the legislation is intended to prevent interference by non-Indians with Indian property that is situated on a reserve.

[32] Importantly, at para. 93, in finding that the historical record of the legislation confirms that its purpose is to prevent non-Indians from interfering with the ability of Indians to enjoy property that they hold on their reserve lands, La Forest J. states [at para. 93]"[t]hat, of course, is why s. 89 places no constraints on the ability of Indians to charge, pledge, or mortgage, property, among themselves".

[33] I note that the 1927 version of the Act provided for a ticket to be issued granting a location title to an Indian of a parcel of land on a reserve, s. 22. Under s. 23, the conferring of any such location title shall not have the effect of rendering the land covered thereby subject to seizure under legal process, and such title shall be transferable only to an Indian of the same band, and then only with the consent and approval of the superintendent general. Section 105 provided that no person shall take any security or otherwise obtain any lien or charge, whether by mortgage, judgment, or otherwise upon real or personal property of any Indian or non-treaty Indian. Section 108 provided that no presents and no annuities given to Indians shall be liable to be taken, seized, distrained, attached or in any way made the subject of judicial process for any debt, matter or cause whatsoever.

[34] In 1951, the legislation first provided for the certificate of possession whereby an Indian could be in lawful possession [page72 ]of land situated on a reserve if it had been allotted to him by the council of the band and approved by the minister. Section 29 of the Act provided that reserve lands are not subject to seizure under legal process. Section 88 of that Act provided that 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. It is seen that for the first time the legislation provides for one Indian to mortgage, seize, distress, or execute upon the real or personal property of another Indian or band that is situated on a reserve.

[35] As has been seen, the present-day s. 89(1) broadens who may exercise that power to include a band.

The distinction in the wording used

[36] I have already briefly described the scheme for possession by an Indian person of reserve land, which is set out in paras. 20 through 29 of the Act. These sections are headed "POSSESSION OF LANDS IN RESERVES". These sections speak of "land (or lands) in a reserve". The subheading for s. 29 is "Exemption from seizure". Section 29 uses the term "reserve lands".

[37] Section 89 falls in the section headed "LEGAL RIGHTS", under the subheading "Restriction on mortgage, seizure, etc., of property on reserve". It addresses "the real and personal property of an Indian or a band situated on a reserve".

[38] I find that the intent of the Act, the legislative history and the use of the different wording in s. 29 and s. 89 indicate clearly Parliament's intention that reserve lands or lands situated in a reserve, the title to which remains vested in Her Majesty for the use and benefit of the respective bands for which they were set apart, are not subject to seizure under legal process by persons who are not Indians or a band. No non-Indian person, whether a creditor of Her Majesty or of a band or of an Indian, can seize or execute on any form of debt against such lands. However, an Indian or a band is permitted to seize or execute upon the real and personal property of an Indian or a band situated on a reserve. 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.

[39] An Indian may only possess a certificate of possession in respect of reserve lands or lands situated in a reserve. A certificate of possession is not reserve lands or lands situated in a reserve, but it is either real or personal property of an Indian. [page73 ]

[40] In Seguin v. Pelletier,[^5] Platana J. dealt with a service station building and a one-half interest in a residential house, both of which were situated on a reserve. Mr. Pelletier, an Indian, had certificates of possession issued to him pursuant to the Indian Act for both properties. The applicant in the case, Ms. Seguin, was also an Indian as defined by the Act. She sought an order declaring that Mr. Pelletier had no interest in the service station building and a one-half interest in a residential house both situated on the reserve and a declaration that his interest in these chattels vested in his trustee in bankruptcy. The learned judge quoted with approval from the text Native Law, looseleaf (Toronto: Carswell, 1989- ), by Jack Woodward: "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 the 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."

[41] Platana J. rejected "completely the argument that the fact that the buildings situate on a reserve property under a Certificate of Possession designates those as chattels" (para. 31). He held that the service station building and a half interest in the residential house were not chattels, but must be considered as part of the land (para. 37).

[42] I do not need to decide for the purposes of this case whether the possessory right of the defendant to the two subject parcels of land situated on the reserve pursuant to certificates of possession is real or personal property of an Indian. It is either one or the other in my view.

[43] Accordingly, I find that the defendant's certificates of possession for the two properties situated on the reserve are subject to seizure or execution in favour of the band.

The Syrette argument

[44] The defendant relies upon the decision of this court in Syrette v. Syrette[^6] and, in particular, the Ontario Court of [page74 ]Appeal's decision on it[^7] for the proposition that "neither this court nor the application judge in this case have authority to make any order concerning possession, ownership, or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act". Syrette, supra, was an application for support and equalization under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3. Both husband and wife were status Indians. Mr. Syrette had been granted a certificate of possession entitling him to occupy and build a house on a lot on the reserve. In the proceedings, the application judge found that the certificate of possession granted possession of the land to Mr. Syrette, but that each party had an equal interest in the home. Koke J. noted [at para. 31] that "[a]ny transfer of land must be to another member of the band or to the band itself and no such transferor or agreement for the transfer of the right of possession of lands on a reserve is effective until it is approved by the Minister". In that case, the husband requested an order for exclusive possession of the matrimonial home. The judge found that the court did not have jurisdiction to grant such an order under the family law legislation. The application judge held that while he did not have jurisdiction to interfere with the interests in the land on which the matrimonial home was located, he was not precluded from taking into consideration the benefit which accrues to the party who continues to reside in the home. He indicated that he intended to do so by making the amount of support payable contingent on who had possession of the land. Paragraph 7 of the judge's order read initially as follows: "Each party has an equal interest in the matrimonial home at 483 Gran Street, Sault Ste. Marie."

[45] The Court of Appeal held that to the extent that that wording, in para. 7, was intended to address ownership or possession of the former matrimonial home, it could not stand. The Court of Appeal amended [at para. 6] para. 7 by adding the following words at the end of the sentence: "for equalization purposes". The court supported the trial judge's decision that, since the court did not have the jurisdiction to interfere with property rights on a reserve, and neither of the parties had the means to purchase the other's interest in the home, he must deal with the issues pertaining to the home by making the amount of support payable contingent on who resided in the home.

[46] I find that this case stands for the proposition that in family law matters, a court cannot make any order concerning [page75 ]possession, ownership or disposition of real property on a reserve. In other contexts, such orders can be for relief such as exclusive possession in favour of one spouse or the other, authorizing the disposition or encumbrance of the matrimonial home if the court finds that a spouse whose consent is required is withholding consent unreasonably, setting aside a transaction disposing of or encumbering an interest in the matrimonial home or the spouse's interest in the matrimonial home. Clearly, under the Act, it is only the council of the band that may allot possession of land in a reserve to an Indian, and such allotment requires the approval of the minister. The court has no jurisdiction in such matters.

[47] That is not the subject matter in issue in this case, which is whether the band can seize or execute upon the real and personal property of an Indian which is situated on a reserve.

[48] As stated by the court in Derrickson, supra [at para. 77]"[p]rovisions such as are made in s. 52 of the Family Relations Act for orders dealing with ownership, right of possession, transfer of title, partition, or sale of property and severance of joint tenancy are, in my view, in 'actual conflict' with the above provisions of the Indian Act", ss. 20 to 29, 37, 42 to 47, 48 to 50, 53, 81 and 89.

[49] In my view, the principle in Syrette, supra, and Derrickson, supra, goes no further than to preclude the court in family law matters from making an order as between spouses for the ownership, right of possession, transfer of title, partition or sale of property, or severance of joint tenancy in regards to lands that are situated on a reserve.

Section 89(1)"Subject to this Act . . ."

[50] The defendant argues that the powers in s. 89(1) by this wording at the outset of the section are limited by s. 29.

[51] As I have already indicated, it is my opinion that s. 29 deals with reserve lands or land or lands situated in a reserve which is distinct from real or personal property of an Indian situated on a reserve. This is because the land itself has title vested in Her Majesty to the benefit and use of the band and its members. Those lands cannot be seized under civil process. This principle maintains Parliament's intended use and beneficiaries of reserve lands.

[52] However, as I have indicated, it is my opinion that the real or personal property of an Indian situated on a reserve can be seized or executed upon by an Indian or by the band. [page76 ]

[53] I find that both, s. 29 and s. 89(1), are consistent and not in conflict and fit comfortably together within the scheme of title and possession provided for reserve lands under the Act.

Remaining Issues

The relief claimed

[54] I have found that the band may seize or execute upon the real or personal property of the defendant that is situated on the reserve to enforce a debt owed by the defendant to the band.

[55] The defendant's property interest in the lands that are the subject of this motion are real or personal property of the defendant situated on the reserve.

[56] The relief claimed by the plaintiff is:

(1) Para. 2 of the draft order: ["]This Court Orders that Andrew Clifford Maracle shall complete any documents required to transfer his certificates of possession to the properties listed at Schedule A to the Plaintiff's draft order and submit those documents to the Indian Land Registrar within 14 days["]; and

(2) Para. 3 of the draft order: ["]This Court Further Orders that if Andrew Clifford Maracle fails to comply with paragraph 2 of this order, he shall be deemed to have consented to and authorized the transfer of the certificates of possession to the properties listed at Schedule A of the Plaintiff's draft Order. Any documents required to give effect to this transfer may thereafter be completed by the Plaintiff on Maracle's behalf and submitted to the Indian Land Registrar.["]

[57] It is the position of the Indian land registrar that the court may direct the defendant Maracle to initiate the process required to transfer his certificates of possession to the plaintiff. The final approval of any such transfer is a matter within the minister's exclusive discretion. The court cannot make an order directing the minister to approve any such transfer. Counsel for the Indian land registrar submits that nothing in the Indian Act prevents the defendant Maracle from being directed by the court to transfer land to the plaintiff in order to settle the private dispute between the parties. The ultimate decision to approve the transfer of lands rests with the minister and cannot be imposed upon the minister by the court. The minister does not oppose any order by this court directed against the individual defendant.

[58] The Act does not specifically provide for the procedure to effect the relief being sought by the plaintiff in this case. Before [page77 ]me, the defendant did not specifically make arguments against the nature of the relief being sought by the plaintiff in paras. 2 and 3 of their draft order. Section 23 of the Act contemplates that an Indian may be lawfully removed from lands in a reserve on which he has made permanent improvements. Section 24 provides that an Indian who is lawfully in possession of lands on a reserve may transfer, to the band or to another member of the band, the right to possession of the land, but no transfer or agreement for transfer of the right to possession of land in a reserve is effective until it is approved by the minister. Section 25 provides that where an Indian who ceases to be entitled to reside on a reserve does not transfer his right to possession of lands in the reserve to the band or another member within six months, the right to possession of the land reverts to the band, subject to payment to the Indian of compensation for permanent improvements. Section 27 empowers the minister with the consent of the holder to cancel any certificate of possession.

[59] Section 88 provides that laws of general application in force in the province are applicable to and in respect of the Indians in the province except to the extent that those laws are inconsistent with the Act and accepted the extent that those provincial laws make provision for any matter for which provision is made by or under the Act.

[60] I am of the view that the Act authorizes this court to make the order sought by the plaintiff in para. 2 of their draft order. Such an order is consistent with the Act and provides a method for the band to seize or execute the real or personal property of the defendant that is situated on a reserve under s. 89 to enforce a debt owed to it by a band member. Therefore, I order that Andrew Clifford Maracle shall complete any documents required to transfer his certificates of possession to the properties listed at Schedule A of the plaintiff's draft order and submit those documents to the Indian land registrar within 14 days.

[61] With respect to the relief sought in para. 3, I note again that the Act provides no specific authority for such an order. I cannot order a writ of possession to issue for the lands of the defendant. I cannot bind the minister. I can only make an order against the defendant. In view of the history of the litigation between these parties, it is reasonable to conclude that the defendant will not comply with the order that I have made that he transfer the certificates of possession to the band.

[62] Rule 1.04 directs that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 should be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. [page78 ]

[63] Section 25(2) of the Act provides that where there is noncompliance by an Indian, the right to possession of the land reverts to the band. The relief being sought in para. 3 is analogous. Such relief is consistent with the land scheme under the Act, and with the right, as I have held, to the band seizing or executing upon the real or personal property of an Indian situated on the reserve. Accordingly, that order shall issue as well.

The Value of the Properties

[64] The defendant disputes the values attributed to his properties as set out in the draft order. In his affidavit, he swears that the plaintiff's appraisals significantly undervalue the properties. He attaches as an exhibit to his affidavit a review of the appraisal report prepared by Louis Maalouf, which he says shows an estimated value of the two properties that he owns, which far exceeds the appraisal obtained by the plaintiff. This exhibit, in my opinion, is not an expert report in any way. The qualifications of the author are not indicated, and in fact the report is not signed by anyone. It would be inappropriate to rely on the defendant's sale of a piece of property to his son as an indication of fair market value as the report suggests. With respect to the two properties for which estimated market values are given, little basis for the opinions are given other than a broad and general statement"relying on reasonable market rates and standards for replacement cost, capitalizes in rates and comparable valuation". I can place no reliance on this exhibit as indicating an expert opinion on the fair market values of the properties.

[65] The plaintiff asserts that in her order of May 10, 2011, Justice MacLeod-Beliveau accepted the opinion of the plaintiff's appraiser and determined the value of the properties as set out in the schedule to her order which is identical to that attached to the draft order before me. The defendant says that this is not so. In para. 5(b) of her order, Justice MacLeod-Beliveau stated "without express written approval of the Mohawk Creditors, the Sheriff shall not accept the sale of any seized real property where the realized amount would be less than the value for such property as appraised in the report of" the plaintiff's appraiser. The learned justice also signed her initials on the Schedule A. It appears clear to me that the learned justice did, in fact, accept the appraiser's values and I am not in a position to vary or sit on appeal of that decision.

[66] However, it seems reasonable to me that the transfers of the properties by the defendant to the plaintiff should proceed in two stages. Therefore, I order that the above two orders apply first to Parcel 1 of Schedule A. If the band is unable to realize, [page79 ]with best reasonable efforts, upon that property to the full extent of the moneys owing to it, then the above two orders shall apply to the second parcel.

The Amounts Claimed

[67] The plaintiff claims the sum of $12,564.95 for the costs of enforcement of its judgment against the defendant. I would allow the three disbursements claimed in that sum ($1,682.45), but the fees component should be the subject of a proper assessment rather than simply, as stated, the calculation of lawyers' rate and time spent. Therefore, without prejudice to the plaintiff assessing those fees, I do not allow them to be added at this time to the outstanding indebtedness.

[68] Two further sums that are claimed in para. 33 of the plaintiff's affidavit are for the reduction in the sale price of the property of $38,500 because the defendant did not remove his chattels as required by court order, and an estimate as to the cost of environmental testing or monitoring in the amount of $13,724.

[69] In my view, both these sums require further formal proof and I am not prepared to add them to the present outstanding judgment on the basis of the information before me.

[70] The defendant also seeks an offset in the sum of $200,000, which he says is the sum that the band received upon its sale of the property that was in issue before Justice Ratushny. In view of the findings of the learned justice, including that the defendant always knew that his possession of the lands and buildings was unlawful and that he acted with full knowledge of the risks, and her order restraining the defendant from occupying the lands, declaring that the defendant had no interest in the lands, declaring that the plaintiff had the ultimate beneficial interest in the property, declaring that the defendant has no claim against the plaintiff on account of his occupation of the land, I find that the defendant is not entitled to such offset as he claims.

Variation of the Order of Justice Macleod-Beliveau

[71] The plaintiff seeks an order that para. 5 of Her Honour's order of May 10, 2011, insofar as it directs the sheriff to proceed with seizure and sale of the defendant's properties situated on the reserve lands be set aside. The defendant does not oppose me making such an order. I find that rule 59.06(2)(a) or (d) provide authority for such an order and therefore I make that order.

Summary of Decision

[72] Therefore, for the foregoing reasons, I make the following order: [page80 ]

(1) Andrew Clifford Maracle shall complete any documents required to transfer his certificate of possession to Parcel 1 as listed on the plaintiff's draft order and submit those documents to the Indian land registrar within 14 days;

(2) if Andrew Clifford Maracle fails to comply with para. 1 of this order, he shall be deemed to have consented to and authorized the transfer of the certificate of possession to Parcel 1 to the band. Any documents required to give effect to this transfer may thereafter be completed by the plaintiff on Mr. Maracle's behalf and submitted to the Indian land registrar;

(3) if the band is unable to realize, with best reasonable efforts, upon Parcel 1 to the full extent of the moneys owing to it, then Andrew Clifford Maracle shall complete any documents required to transfer his certificate of possession to Parcel 7 as listed on Schedule A of the plaintiff's draft order and submit those documents to the Indian land registrar within 14 days;

(4) if Andrew Clifford Maracle fails to comply with para. 3 of this order, he shall be deemed to have consented to and authorized the transfer of the certificate of possession to Parcel 7 to the band. Any documents required to give effect to this transfer may thereafter be completed by the plaintiff on Mr. Maracle's behalf and submitted to the Indian land registrar;

(5) the plaintiff shall have judgment against the defendant for the sum of $1,682.45 on account of disbursements incurred in enforcement; and

(6) paragraph 5 of the order dated May 10, 2011 of Justice MacLeod-Beliveau, insofar as it directs the sheriff to proceed with seizure and sale of the defendant's property situated on the reserve lands, shall be set aside.

[73] The finding by Justice MacLeod-Beliveau that the value of the properties listed at Schedule A of the plaintiff's draft order were established by the report dated December 7, 2010 of F.G. Myatt Appraisal Services remains in full force and effect and need not be the subject of a further finding and order by me.

[74] If the parties are unable to agree on the costs of this motion, then, upon proof of reasonable and bona fide efforts made to reach agreement on the costs, written submissions may be made by the plaintiff within five days of receipt of these reasons and by the defendant within four days thereafter, and limited to three pages plus a costs outline.

Motion granted.

Notes

[^1]: Mitchell v. Peguis Indian Band, 1990 117 (SCC), [1990] 2 S.C.R. 85, [1990] S.C.J. No. 63.

[^2]: Syrette v. Syrette, [2012] O.J. No. 4823, 2012 ONCA 693, 222 A.C.W.S. (3d) 171.

[^3]: Derrickson v. Derrickson, 1986 56 (SCC), [1986] 1 S.C.R. 285, [1986] S.C.J. No. 16, para. 27.

[^4]: Mitchell v. Peguis Indian Band, supra.

[^5]: Seguin v. Pelletier, 2001 28419 (ON SC), [2001] O.J. No. 1678, [2001] 3 C.N.L.R. 321 (S.C.J.).

[^6]: Syrette v. Syrette, [2011] O.J. No. 4551, 2011 ONSC 6108 (S.C.J.).

[^7]: Syrette v. Syrette, supra (C.A.).

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