The Supreme Court of Canada dismissed a leave application filed by the appellant Maracle in regards to the 2014 order of the Ontario Court of Appeal (2012 ONCA 565).

The Ontario Court of Appeal decision was summarized in our e-Newsletter of 20 August 2014. The Court 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.

A summary of the case found on the Court’s website was as follows:

Aboriginal law — Indian reserves — Certificates of possession — “Reserve lands” — “Lands situated in a reserve” — Courts — Jurisdiction — Whether a Certificate of Possession, as defined in s. 20(2) of the Indian Act  constitutes “reserve lands” or “lands situated in a reserve” and is therefore not subject to seizure under legal process — Whether ss. 29 and 89 of the Indian Act in conflict — If so, whether s. 89 of the Indian Act should be read “subject to” s. 29 — Whether the Ontario Superior Court of Justice has jurisdiction to order Mr. Maracle to transfer his Certificates of Possession to the Mohawks of the Bay of Quinte, or otherwise make any order as to the ownership, possession or disposition of reserve lands or land situated in a reserve?

Mr. Maracle and another party were ordered to pay the Mohawks of the Bay of Quinte First Nation $250,000 in general damages and $50,000 in punitive damages. To satisfy the judgment and several subsequent costs awards, the First Nation took out a writ of seizure and sale on three properties to which Mr. Maracle held Certificates of Possession — not the lands that were in issue in the original trial. The writs were validated and the Sheriff was directed to sell the Certificates of Possession in accordance with the Indian Act, R.S.C. 1985, c. I-5 to satisfy the debt owed to the First Nation. The sales required the approval of the Minister of Indian Affairs. Costs were again awarded against Mr. Maracle. When the First Nation requested that the Sheriff proceed with the sale in accordance with the motions judge’s order, the Sheriff declined on the advice of the Attorney General on the grounds that the lands were “reserve lands” and were therefore not subject to seizure. The First Nation then brought a motion to enforce the transfer. The motions judge granted the motion and set a method for selling the Certificates of Possession to satisfy the debt. The Court of Appeal dismissed an appeal.

The Supreme Court of Canada dismissed the leave application with costs.


Scott Kerwin


Aboriginal Law