The Saskatchewan Court of Appeal dismissed an appeal relating to the possession of surrendered Indian land.

The respondent Hlady and her common law spouse James Sinclair, as joint tenants, subleased three lots from the Kinookimaw Beach Association in 2010. The land at issue was part of the Last Mountain Lake Indian Reserve No. 80A, and had been surrendered to the Crown pursuant to section 38 of the Indian Act. The surrendered tract was leased to the Kinookimaw Beach Association, a corporation owned by seven Indian bands, for a term running from 1973 to 2023 (extended to 2056). Ms. Hlady and Mr. Sinclair built a house at the lots leased to them, located at Regina Beach. Their interests in the land were registered in the Indian Lands Registry.

Prior to Mr. Sinclair’s death in 2012, a family dispute arose. The appellant Kim Sinclair, the daughter of Mr. Sinclair, moved into the property along with other family members, and Ms. Hlady was effectively obliged to leave. Mr. Sinclair made a new will in which he left all of his property to his surviving children and his ex-wife. He died in November 2012. The appellant Sinclair then refused to leave the Regina Beach property, and Ms. Hlady commenced legal proceedings.

Ms. Hlady sought a declaration that she was entitled to the lands as surviving joint tenant, and sought an order that Sinclair vacate. The initial proceeding was limited to one of the three lots, as Ms. Hlady had not yet located the lease documents for the other two.

In a proceeding before the Saskatchewan Court of Queen’s Bench, Sinclair argued that the Court had no jurisdiction to make an order affecting possession to reserve land. In May 2013, the Court made an order declaring Ms. Hlady to be the surviving joint tenant but, due to the jurisdictional issue raised, did not make an order that Sinclair vacate the land. Ms. Hlady then commenced a separate Federal Court proceeding to obtain the necessary order that Sinclair vacate the land. At that point, Sinclair “did an about-face” and argued that any such issues should be decided by the Court of Queen’s Bench. The Federal Court agreed that the proper venue was the Court of Queen’s Bench and called Sinclair’s tactics “duplicitous”. A costs order was made against Sinclair. The matter then returned to the Court of Queen’s Bench, and Allbright J. ordered that Sinclair vacate the land. This order has not been appealed.

Ms. Hlady brought another proceeding in relation to the other two lots. In September 2013, Dovell J. granted an order that Sinclair vacate all three lots. Sinclair’s appeal is related to this order.

Sinclair raised various issues at the appeal. Her argument relating to her father’s will was dismissed, as it is trite law that property vests in the surviving joint tenant regardless of the terms of the deceased joint tenant’s will. The Court of Appeal also dismissed the argument that Ms. Hlady had failed to prove her interest in the land, as the abstract reports from the Indian Lands Registry System were sufficient proof of a lease extending to 2056. Sinclair again raised the jurisdiction issue. Chief Justice Richards acknowledged that the issues relating to the application of provincial laws to Indian reserves is “somewhat complicated”. Due to the litigation tactics of Ms. Sinclair in the courts below, and the need to have this matter resolved, the Court found no need to conduct its own round of research. The issue was decided solely upon the arguments presented by Ms. Sinclair at this appeal.

Chief Justice Richards noted that Indian reserves are not “enclaves” beyond the reach of provincial law. He distinguished the case of Derrickson v. Derrickson (1986), relied upon by Ms. Sinclair, as involving substantially different facts. The lands in this case were surrendered to the Crown pursuant to section 38 of the Indian Act. The lands are still reserve lands, but are “designated land” and subject to distress, seizure and execution under section 89(1.1) of the Act. Further, Ms. Hlady is not claiming an interest in the land pursuant to provincial legislation, but due to her common law right as surviving joint tenant. Chief Justice Richards commented:

Accordingly, I am not prepared to overturn Dovell J.’s order on the basis of what the Supreme Court held in Derrickson v. Derrickson or to find, as Ms. Sinclair submits, that there is no legal remedy for Ms. Hlady’s problem. That said, and while I do not by any means intend to suggest this will necessarily be the case, there might possibly be lines of argument, not advanced here, which this Court will have to consider in some future appeal concerning interests, or the enforcement of interests, in designated lands. My intent here is to do no more than decide Ms. Sinclair’s appeal on the basis of the particular argument and the particular case law presented on her behalf.

The Court of Appeal also rejected arguments that the Minister of Indian Affairs and Northern Development should have been a party of the proceedings. The appeal was dismissed with costs.

http://www.canlii.org/en/sk/skca/doc/2014/2014skca53/2014skca53.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law