The Ontario Court of Appeal affirmed a lower court ruling that allowed an Indian Band to execute a court order against a Band member, through the sale of the Band member’s possession of reserve lands evidenced by Certificates of Possession. The Court of Appeal held that the provincial superior courts have inherent jurisdiction over cases that come before them, and nothing in the Indian Act ousted such jurisdiction in this case. The Court of Appeal also affirmed the order of the motions judge requiring the appellant Band member to complete any documents necessary to transfer his Certificates of Possession to the respondent Band. Section 29 of the Indian Act does not prohibit such an order. Further, section 89(1) of the Act explicitly provides for the ability of Indian bands to seize or execute upon the real or personal property of an Indian situated on reserve.

This proceeding arises from a long-standing dispute between the Mohawks of the Bay of Quinte First Nation (MBQ) and individual members of the MBQ named Shawn Brant, Ron Brant and Andrew Miracle. In 2008, the Ontario Superior Court of Justice granted a mandatory injunction restraining Miracle from occupying certain land on the reserve, and ordered the Brants and Miracle to pay $250,000 in general damages and $50,000 in punitive damages. This order was later affirmed by the Ontario Court of Appeal: 2009 ONCA 581. Costs were awarded to MBQ in the amount of approximately $265,000.

In order to satisfy the judgment, MBQ took out a writ of seizure and sale of three properties on reserve allotted to Miracle, for which he held Certificates of Possession (the “CP Allotted Lands”). The CP Allotted Lands were not involved in the original dispute with the MBQ. The anticipated sale proceeds from selling possession of the CP Allotted Lands were estimated to be $890,000. In May 2011, the Ontario court validated the MBQ’s writs and directed the Sheriff to sell the Certificates of Possession for the CP Allotted Lands. The Order included the condition that the sale was to be in accordance with the Indian Act, and approval of the Minister of Indian Affairs was required.

In September 2011, the Sheriff – on advice from the provincial Ministry of the Attorney General – declined to sell the Certificates of Possession for the CP Allotted Lands in accordance with the court order. The basis for this position was that section 29 of the Indian Act prohibited such a sale because the CP Allotted Lands were “reserve lands” and therefore not subject to seizure. Subsequent court hearings in 2012 amended the original order, and further costs were ordered against Miracle.

MBQ brought a further motion to enforce the transfer of the Certificates of Possession to satisfy the judgment debts and cost awards made against Miracle. The Attorney General of Canada participated in the proceeding on behalf of the Indian Lands Registrar. The motions judge rejected the submission that section 29 of the Indian Act prohibited the seizure of Miracle’s possessory interest in the CP Allotted Lands. The motions judge also held that section 89(1) of the Indian Act allowed an Indian Band such as the MBQ to seize and execute upon “real and personal property on a reserve”. It was also within the Court’s power to order Miracle to complete any documents required to transfer the Certificates of Possession, but there was no authority to bind the federal Minister to approve the transfers. The earlier order from May 2011 directing the Sheriff to execute the judgment was therefore replaced by an Order that Miracle complete any documents necessary for the transfer of the CP Allotted Lands and submit them to the Indian Land Registrar. If Miracle failed to do so, then MBQ could complete them. Any sales of the possessory interests in the CP Allotted Lands would be in accordance with the Indian Act. The August 2013 decision of the motions judge is reported at 2013 ONSC 4733.

Miracle appealed the August 2013 order. The first ground of appeal related to jurisdiction. He relied upon authorities such as Derrickson (1986) and Syrette (2012) for the proposition that provincial legislation cannot apply to the right of possession on Indian reserve lands. The Ontario Court of Appeal dismissed this jurisdiction argument and held that reliance on cases like Derrickson was misplaced. The Derrickson and Syrette cases involved possession of Indian reserve land in the family law context, and the applicable provincial statutes were inoperative. These cases are not authority for the proposition that the jurisdiction of the Superior Court is ousted in regards to the transfer of Certificates of Possession under the Indian Act or equitable principles such as a mandatory injunction. Further, the Federal Court case of Batchewana First Nation of Ojibways v. Corbiere (2000) specifically held that disputes between a Band and a CP holder were properly within the jurisdiction of the Ontario courts. The Superior Court has plenary and inherent jurisdiction to hear and decide all cases that come before it. The motions judge was correct in finding that the provisions of the Indian Act, when read together, permit the order that was made. LaForme J.A. concluded on this point:

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.

The second ground of appeal concerned whether the motions judge erred in finding that Certificates of Possession are “real or personal property of an Indian situated on a reserve” within the meaning of section 89(1) of the Indian Act, and therefore subject to seizure by the Band. Miracle argued that section 29 of the Act prohibited the enforcement of the court judgment against the CP Allotted Lands. Section 29 of the Indian Act states that reserve lands are “not subject to seizure under legal process”. Section 89(1) of the Act provides that the real and personal property of an Indian on a reserve is not subject to seizure or execution at the instance of any person “other than an Indian or a band”. The appellant Miracle argued that possession of reserve land pursuant to a Certificate of Possession is the closest equivalent to fee simple ownership for Indians. The individual may occupy and develop the lands without interference from other Band members. In consequence, lands held pursuant to a Certificate of Possession become equivalent to “reserve lands”, and therefore exempt from seizure pursuant to section 29 of the Indian Act.

The Court of Appeal rejected this ground of appeal, based upon the wording of the Indian Act and an application of the principles of statutory interpretation. With regards to this ground of appeal, LaForme J.A. performed a comprehensive review of the history and purpose of the Indian Act and, in particular, the provisions relating to the inalienability of reserve land.

LaForme J.A. began this narrative by commenting that the Indian Act has been the “single most prominent reflection of the distinctive – although not privileged – place of Indian people within the Canadian federation”. The Act controls virtually everything that touches Indian people, and has “long been universally labelled as paternalistic and a relic of past colonial practices”. LaForme J.A. commented that this appeal turns on the proper interpretation of the statute, and does not involve the question of the “appropriateness” of the legislation or any assertion of the Act being a mechanism of “social control and assimilation of Indians”.

LaForme J.A. held that two legal principles underpin an analysis of the purpose of the Indian Act and the intention of Parliament. The first principle arises from early Canadian jurisprudence, such as the St. Catharine’s Milling decision, on the Royal Proclamation of 1763 as being the origin of Indian title. He noted that such authorities have now been overtaken by Calder, Guerin, Delgamuukw and Tsilhqot’in. Central to the Royal Proclamation was the concept of the separation of Indian lands from those forming part of the colonies. Indian lands were reserved for the exclusive use and possession of Indians, and there was a process for the purchase of such lands by the British Crown. Subsequent legislation continued this policy of the inalienability of Indian lands (other than to the Crown). LaForme J.A. held:

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.

The second legal principle informing the purpose of the Indian Act and the intention of Parliament is that the Indian interest in reserve lands is the same as those that govern Aboriginal title. Early decisions such as St. Catharines Milling, which were strongly influenced by decisions of Chief Justice Marshall in the United States, characterized rights arising from “Indian title” as usufructuary, and providing the Indians with only a legal claim to retain possession and use. The doctrine of discovery gave exclusive title and sovereignty to the Crown. LaForme J.A. noted that the Supreme Court of Canada in Guerin held that European claims to sovereignty were “justified by the principle of discovery”, whereas the more recent Tsilhqot’in decision did not directly address the issue. The Supreme Court of Canada in Tsilhqot’in provided a more complete statement of the character of Aboriginal title: “the right to the benefits associated with the land – to use it, enjoy it and profit from economic development”. The Delgamuukw court made clear that Indian title is to be held communally. (LaForme J.A. then “parenthetically” noted that the doctrine of discovery, and the “astounding consequences to indigenous peoples” that arise from the doctrine, has come under criticism as a valid legal principle. He referred to a recommendation made to the United Nations by the international indigenous community to declare that the doctrine is illegal. However, this is “not an issue that is before this court nor is it one that we have been asked to comment on”).

LaForme J.A. reviewed early colonial legislation from Upper Canada that continued the policy on the inalienability of Indian lands. He noted the concurrent policy of assimilation: pursuant to a statute passed in 1857, “enfranchised Indians” could convert parcels of reserve land into fee simple lands. LaForme J.A. stated:

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.

After Confederation, the basic principles of colonial Indian policy were reflected in federal legislation, most notably the Indian Act. With regards to the passage of the Indian Act in 1876, LaForme J.A. referred to an internal memorandum from the Deputy Superintendent General that the legal status of Indians “is that of minors, with the Government as their guardians”. A similar comment was made in the annual report of the Department of the Interior. LaForme J.A. stated:

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 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.

Various amendments to the Indian Act over the years loosened the protection to reserve lands, and reflected the intention that communal reserve lands should ultimately be divided into individually-held property. Amendments in 1906 provided increased incentives to Bands to surrender reserve land. The Act was amended several times to allow public bodies with expropriation powers to take reserve land without a surrender or consent. The 1927 version of the Indian Act contains the forerunners to the modern sections 29 and 89(1). Reserve land that was the subject of a “location ticket” could not be subject to seizure, and could only be transferred to a band member (with the consent of the Minister). Real or personal property of an Indian could not be used as security or be subject to any lien or charge. The Court held:

It is clear that the intention and purpose of the Indian Act has expanded here to specifically include the protection of real and personal property of an Indian situate on a reserve.

The 1951 version of the Indian Act repealed the 1927 Act in its entirety, and assigned to the Minister of Indian Affairs “broad discretionary powers over the implementation of the Act as well as the daily lives of Indians on reserves”. The 1951 Act continued the requirement that consent of the federal government was necessary for the alienation and management of reserve lands. The 1951 Act also provided for the “Certificate of Possession” whereby an Indian could be in lawful possession of reserve land if it had been allotted to him by the Band Council, and approved by the Minister. LaForme J.A. emphasized that a Certificate of Possession is merely evidence of the allotment, and not the instrument of conveyance. The 1951 Act also introduced the current section 88, making certain provincial laws applicable to reserves.

Post-1951 amendments to the Indian Act included giving Bands greater powers to tax land interests, and permitted individuals to mortgage leaseholds on reserves. Amendments in 1988 to what is now section 89(1) added the words “or a band”, thereby permitting Bands to seize or execute upon real or personal property situated on a reserve. LaForme J.A. held:

This demonstrates a further intention of the legislation and purpose 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.

The Court concluded that there have always been and continue to be “several fundamental purposes and intentions of Indian legislation”. LaForme J.A. then summarized the purpose of the Indian Act and the intention of Parliament as including recognition and affirmation of the following:

  • 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 is vested with virtually full control and management of Indians and reserve lands. In this role, the government of Canada has 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.

LaForme J.A. also commented that the repeal of the enfranchisement provisions in 1985 discontinued Parliament’s purpose of assimilating Indians into mainstream Canada “directly through the Indian Act”.

The Court then turned to the application of these principles to the dispute at hand. LaForme J.A. again provided a summary in point form:

  • 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)-(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. 37-38.

The right of an Indian to possess reserve lands under a Certificate of Possession is separate and distinct from ownership of the reserve lands. A band member cannot be allotted title to the land itself, because that it always with the Crown. Unless there is a surrender, an Indian or band can only ever retain a possessory right to use the land for his benefit.  Any seizure through legal process of an Indian’s right of possession of reserve land “cannot amount to seizure of reserve land pursuant to s. 29”.

The purpose of section 89 is to insulate the property interests of Indians in their reserve lands from the intrusions and interferences of the larger society. However, it places no constraints on the ability of Indians to charge, pledge or mortgage property among themselves. For the purposes of this appeal, it is not necessary to determine whether the Certificates of Possession held by Miracle constitute “real” or “personal” property. The motions judge correctly found that it was subject to seizure in favour of the MBQ pursuant to section 89. The wording of the Indian Act makes clear that “real or personal property of an Indian” is not the same as “reserve lands”.

The appeal was therefore dismissed, with costs of $25,000 payable to the MBQ, to be added to the debt owing by Miracle and satisfied through the sale of Miracle’s possession of the CP Allotted Lands.

http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html

http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.pdf

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law