Date: 20050610
Docket: T-383-02
Ottawa, Ontario, June 10, 2005
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
GERALDINE M. WILLISTON
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
AS REPRESENTED BY THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
and
THE CHIPPEWAS OF RAMA INDIAN BAND
(aka THE CHIPPEWAS OF MNJIKANING FIRST NATION)
Defendants
REASONS FOR ORDER AND ORDER
[1] In November of 1993, Mrs. Geraldine Williston purchased a cottage and a leasehold interest in a lot on the east side of Lake Couchiching in the Province of Ontario. Her husband looked after matters associated with the purchase. The cottage was located on Lot 10 of what are known as the Moonlight Bay Lands, which are comprised of 14 lots and a road. The Moonlight Bay Lands are part of the defendant First Nation's reserve. When Mrs. Williston's lease expired in 2002, Mr. Williston could not persuade the defendants to enter into a new lease. Mrs. Williston sued.
BACKGROUND
[2] This action proceeded largely on the basis of an agreed statement of facts. Each party called only one witness at the trial. The facts agreed to by the parties are set out here.
The Parties and Other Involved Persons
1. The Defendant, The Chippewas of Mnjikaning First Nation (formerly known as the Rama Indian Band) (the "First Nation") is a Band as defined under the Indian Act (Canada). Mnjikaning First Nation Indian Reserve No. 32 (as defined under the Indian Act) ("Reserve No. 32"), which is located in Ontario, has been set apart for the use and benefit of the First Nation.
2. The Defendant, Her Majesty in Right of Canada, is well known (the "Crown"). The Minister of Indian Affairs and Northern Development (the "Minister") is responsible for Indian Affairs.
3. The Plaintiff, Geraldine Williston ("Mrs. Williston") is a resident and citizen of Canada and from November 1993 to March 2002 held the leasehold interest in Lot 10, as hereinafter defined.
4. Terrence Williston ("Mr. Williston"), who is not a party to this action, is the husband of Mrs. Williston. Mr. Williston was called to the bar of the Province of Ontario in 1973 and has been engaged in the private practice of law since then, specializing in the area of business law, with an emphasis on estate planning, trusts, tax planning for private business corporations and corporate law.
5. At all material times Mr. Williston acted as agent for Mrs. Williston in connection with her dealings with the Crown and the First Nation.
The Moonlight Bay Lands
6. The Moonlight Bay Lands, which are part of Reserve No. 32, are comprised of 14 lots and a road on Plan of Survey of Record Number 4022, Canada Lands Surveys Records, Ottawa (the "Moonlight Bay Lands").
7. The Province of Ontario entered into an agreement with the Crown known as The Ontario Indian Lands Agreement, 1924.
8. By a Deed of Surrender dated September 21, 1953, (the "Surrender") the First Nation surrendered "otherwise than absolutely" for leasing the Moonlight Bay Lands to the Crown. The Surrender provides as follows:
"...the Rama Band of Indians...do hereby surrender unto Her Majesty the Queen in right of Canada...forever [the Moonlight Bay Lands]
TO HAVE AND TO HOLD the same... forever in trust to lease the same to such person or persons and upon such terms as the Government of Canada may deem most conducive to our Welfare and that of our people.
AND upon the further condition that all moneys received from the lease thereof, shall be credited to the Funds of our Band at Ottawa".
9. By Order in Council dated December 29, 1953, the Governor General in Council accepted the Surrender on behalf of the Crown.
10. The Indian Act was amended in 1988 to define "Designated Lands" to mean:
A tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interest whether before or after the coming into force of this definition.
The Moonlight Bay Lands were surrendered "otherwise than absolutely", are now "designated lands" as defined under the Indian Act and, for some purposes of the Indian Act, now form part of a "reserve" under the Indian Act.
Lot 10 - Moonlight Bay Lands
11. The whole of Lot 10 of the Moonlight Bay Lands ("Lot 10") was first leased from the Crown by Mr. E.A. Heslin on April 1, 1967, for a term of 15 years ending March 31, 1982.
12. On or about March 17, 1982, the Crown and Mr. E.A. Heslin entered into a second lease for Lot 10 for a term of 20 years from April 1, 1982, to March 31, 2002 (the "Lease"). The Lease was signed by an officer of the Crown and registered in the Reserve General and Surrendered Land Leasing Register (the "Register") at Ottawa.
13. At various times after April 1, 1982, the Lease was assigned to various assignees in the normal course. On or about March 31, 1990, the Lease was assigned to Norman Allan Walker and Mary Anne Walker (the "Walkers"). The Assignment was signed by an officer of the Crown and registered in the Register at Ottawa.
Mrs. Williston purchases Leasehold Interest in Lot 10
14. In early September, 1993, Mr. and Mrs. Williston became aware that the Lease and the seasonal recreational dwelling located on Lot 10 were for sale by the Walkers.
15. In that same month, Mr. Williston obtained from the Crown and examined a copy of the Register pertaining to Lot 10.
16. In that same month, Mr. Williston also obtained and read a copy of the Lease under which the Walkers, as assignees, were tenants of Lot 10. Mr. Williston fully understood the terms and provisions of the Lease including the provision for it to terminate as of March 31, 2002 and the absence of any provision for renewal or extension.
17. Mr. Williston cannot recall having examined the Surrender at any time prior to Mrs. Williston assuming the Lease but admits that neither he nor Mrs. Williston relied on its provisions when deciding whether Mrs. Williston would assume the Lease. Mrs. Williston did not examine the Surrender prior to assuming the Lease.
18. Before Mrs. Williston made an offer to purchase an assignment of the Lease and the seasonal recreational dwelling from the Walkers, Mr. Williston personally made inquiries to both the First Nation and to the Crown regarding the Lease and its possible renewal.
19. On September 13, 1993, Mr. Williston made his inquiries of the First Nation during a telephone conversation with Kathryn Simcoe, Lands and Membership Manager of the First Nation ("Ms. Simcoe"). Ms. Simcoe has no independent recollection of or notes from this conversation. Mr. Williston reports that during this conversation Ms. Simcoe advised him that:
(a) the First Nation had no policy with respect to the renewal of the Moonlight Bay leases;
(b) the Lease would not automatically be renewed;
(c) the decision with respect to the renewal of such leases would be made by the First Nation Council at the time for renewal;
(d) the Band was the lessor of the leases;
(e) the decision was a business proposition;
(f) typically the First Nation would enter into a 20 year lease; and
(g) an outside appraisal would be obtained as to value; and
(h) the rental would be based on a 7 months per year occupancy.
20. On September 14, 1993, Mr. Williston made his inquiries of the Crown during a telephone conversation with Ken Brosseau, a Lands Manager with the Department of Indian and Northern Affairs in its Brantford office ("Mr. Brosseau"). Mr. Brosseau has no independent recollection of or notes from this conversation. Mr. Williston reports that during this conversation Mr. Brosseau advised him that:
(a) the Lease was between the Crown, as landlord, and the tenant;
(b) the leases were normally renewed as the Band was in business;
(c) at the time of renewal it was one of the Minister's requirements that an appraisal be obtained by the Minister; and
(d) the maximum rental term permitted by the Crown was 40 years.
21. On or about September 28, 1993, Mrs. Williston submitted to the Walkers an offer to purchase the remaining leasehold interest, as well as the seasonal recreational dwelling, boat, motor and chattels situated on Lot 10, for a total of $59,000. This offer was accepted by the Walkers, thus creating a binding agreement of purchase and sale.
22. According to the terms of the Lease, it could not be assigned without the written consent of the First Nation. Consequently, by letter dated October 19, 1993, Anne Dunn, a clerk at Gowling Strathy & Henderson, on behalf of Mrs. Williston submitted to the First Nation a request for a consent to assignment along with the required $500.00 fee and on or about November 9, 1993, the First Nation Council passed a resolution approving the assignment of the Lease from the Walkers to Mrs. Williston.
23. In the same letter dated October 19, 1993, Anne Dunn, on behalf of Mrs. Williston, wrote to the First Nation seeking to amend the term of the lease to add an additional 12 years. By letter dated November 10, 1993, the First Nation declined.
24. The purchase of the assignment of the Lease and the seasonal recreational dwelling, boat motor and chattels from the Walkers by Mrs. Williston was completed on November 15, 1993. The assignment was signed by an officer of the Crown and registered in the Register at Ottawa.
25. Mrs. Williston held the leasehold interest in Lot 10 from November 1993 until March 31, 2002, when the lease expired. According to paragraph 10 of the Lease, Mrs. Williston was entitled to remove the seasonal recreational dwelling and improvements from Lot 10 within 30 days of the termination of the Lease (that is, on or before April 30, 2002) failing which, title to the seasonal recreational dwelling and improvements would pass to the Crown. Mrs. Williston did not to (sic) do so.
26. The Chief Electoral Officer of the First Nation issued a Notice of Referendum dated May 8, 1992, providing notice to the electors of the Chippewas of Rama of a referendum to be held June 10, 1992, in order to seek the assent of the majority of its electors to the submission of a request for a delegation of land management authority from the Crown to the Chief and Councillors of the First Nation as elected from time to time.
27. The First Nation conducted a referendum on June 10, 1992; however, a quorum was not reached at that time because only 118 of 282 eligible voters cast ballots.
28. Accordingly the Chief Electoral Officer of the First Nation issued a Notice of Second Referendum dated August 25, 1992, providing notice to the electors of the Chippewas of Rama of a referendum to be held September 28, 1992.
29. The second referendum was held on September 28, 1992, an additional 64 eligible voters casting ballots. The necessary majority in favour of the delegation was achieved.
30. By letter dated May 7, 1993, over the signature of Ms. Simcoe, the First Nation notified the Department of Indian Affairs and Northern Development Canada of its Band Council Resolution, made the previous day, seeking delegation of authority with respect to the management of both designated lands and other reserve lands occupied by the First Nation, addressing this correspondence to the attention of Mr. Brosseau, Lands Manager.
31. By letter dated September 15, 1994, the Minister appointed the Chief and Councillors of the First Nation as elected from time to time to manage in accordance with the Indian Act and the terms of the Surrender all present and future designated lands (the "Delegation"), including the Moonlight Bay Lands.
32. The Delegation was made pursuant to the Departmental policy concerning the delegation of authority to manage designated lands to First Nations. The policy which was in effect when the Delegation was authorized by the Band was set out in Chapter 10 of the Departmental 1988 Lands Manual, in effect from 1989 to 1992, entitled "Delegation of Land Management Authority to Bands".
33. On or about November 23, 1994, Mrs. Williston received a letter from Mr. Brosseau on behalf of the Crown stating:
This is to advise that the Chippewas of Rama First Nation has acquired a delegation of land management authority pursuant to sections 53 and 60 of the Indian Act.
Therefore all parties holding existing leases or agreements on the Rama Indian reserve should deal directly with the Chippewa [sic] of Rama concerning all matters relating to their agreements and pay all monies due and payable under the agreement to Chippewas of Rama.
34. Pursuant to the direction from the Crown, from 1995 through 2000, Mrs. Williston made all rent payments directly to the First Nation.
35. Every five years throughout the term of the Lease it was required that there be a rental review in order to capture the then current market rental rates. Accordingly, Mrs. Williston executed an Addendum to Lease #83191 dated as of March 1, 1997 and made between the Crown, as landlord, and Mrs. Williston, as tenant. Under this document the annual rental was increased from $3,800.00 to $4,000.00 per annum for the five year period commencing April 1, 1997 and ending March 31, 2002. This document was signed on behalf of the landlord by Ms. Simcoe, acting as agent for the Crown pursuant to the Delegation. The Addendum was not signed by an officer of the Crown but was registered in the Register at Ottawa.
36. By Band Council Resolution dated April 13, 2000, the First Nation passed a resolution stating that all the existing leases on the Moonlight Bay Lands would not be renewed. The purpose for not renewing the leases was that the First Nation required the lands to "facilitate plans for future development, the need to increase available land base, and possibly lifting of the Surrender".
37. On July 10, 2000, Mr. Williston met with Mr. Daniel J. Shilling, a senior administrator for the First Nation, regarding the First Nation's procedure for renewing the leases for the properties on the Moonlight Bay Lands. Mr. Williston was advised that:
(a) the incoming band council was responsible for that decision and might not renew the leases;
(b) the Band was unlikely to provide any compensation to the tenants;
(c) the First Nation needed more land for housing;
(d) the use for the Moonlight Bay Lands had not yet been decided; and
(e) a planner was being hired by the Band.
38. Although not required by the terms of the Lease, by letter dated August 28th, 2000, Ms. Simcoe advised Mrs. Williston that the Lease would not be renewed.
39. On March 18, 2001, Mrs. Williston delivered her annual rent cheque to the Crown. The Crown forwarded the payment to the First Nation and advised Mrs. Williston that it had done so.
40. At midnight on March 31st, 2002, the Lease expired and was not renewed by the landlord.
41. To date, neither the Crown nor the First Nation has commenced any proceedings to terminate the Surrender.
42. Since April 2002 and to date, neither the Crown nor the First Nation has taken any steps to lease all or any part of the Moonlight Bay Lands.
PRELIMINARY MATTERS
[3] Before turning to the evidence and the issues, there are, for the record, four matters to be noted.
[4] First, the plaintiff, with the consent of both defendants and leave of the court, amended paragraph 1 of the statement of claim (relief sought) to conform to paragraph 106 of the plaintiff's pre-trial memorandum.
[5] Second, the defendants, with the consent of the plaintiff and leave of the court, amended their respective statements of defence. In the case of the defendant Crown, a plea - that sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 and amendments thereto precludes the plaintiff from attacking both the Minister's decision under subsection 53(1) of the Indian Act, R.S.C. 1985, c. I-5 and the decision not to continue leasing the Moonlight Bay Lands - was added. Additionally, a specific statement of the Crown's reliance on section 22 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 was included. For the defendant First Nation, a plea of reliance on sections 18 and 18.1 of the Federal Courts Act was added with respect to any attempt by the plaintiff to quash or set aside the decision not to continue leasing the Moonlight Bay Lands.
[6] Third, on the consent of all parties, the issue of "compensation" was bifurcated from the other issues in the action, on specified terms, the details of which do not bear on the matters with which these reasons are concerned.
[7] Fourth, the constitutional question that the plaintiff, by notice of constitutional question dated April 22, 2005, delineated - that subsection 53(1) of the Indian Act is ultra vires the Parliament of Canada - was withdrawn.
ISSUES
[8] Mrs. Williston identifies two underlying foundations upon which her action is based. There is the "equitable" claim - proprietary estoppel - which her counsel suggests is better characterized as the "private" claim. There is also a "legal" claim, which counsel submits is more aptly described as the "public" claim. The defendants contend that the plaintiff's portrayal of the issues ignores reality and the existence of the lease between Mrs. Williston and the Crown. The lease, they say, is determinative.
[9] I am satisfied that the submissions and arguments of all parties can be subsumed under the two questions delineated below. Subsidiary issues arising out of these questions will be identified and discussed as required.
1.) Can the plaintiff succeed on the basis of proprietary estoppel?
2.) Can the plaintiff succeed as a public interest litigant to enforce compliance with the provisions of the Indian Act, specifically subsection 18(1)?
PROPRIETARY ESTOPPEL
[10] Mrs. Williston claims that, before purchasing the cottage and the leasehold interest in Lot 10, her husband ascertained that Lot 10 had been surrendered to Her Majesty. He then made inquiries of both the First Nation and the Minister and was informed in the case of the First Nation, by Ms. Simcoe, as set out in paragraph 19 of the agreed statement of facts and in the case of the Minister, by Mr. Brosseau, as set out in paragraph 20 of the agreed statement of facts. (The representations of Ms. Simcoe and Mr. Brosseau will be referred to in detail later in these reasons). As a result of her husband's conversations, Mrs. Williston was satisfied that she was protected. Mr. Williston had concluded that the only viable use of the lands that had been surrendered would be continued leasing. Since leaving lands vacant, in Mr. Williston's view, is not a good business use and since Mrs. Williston was prepared to pay rent based on appraisals, good business use would dictate a term long enough to justify the cost of maintaining and improving the leased lots. It is for these reasons that Mrs. Williston claims that she had a reasonable expectation and belief that the lease would be renewed on a long-term basis when it expired in 2002.
[11] Mrs. Williston claims not only to have relied on Ms. Simcoe's and Mr. Brosseau's representations, she further asserts that they knew of that reliance in relation to her acquisition of the cottage and the leasehold interest in Lot 10. Because Mr. Brosseau neglected to advise Mr. Williston that the Minister was in the process of delegating all supervisory functions over the Moonlight Bay Lands to the First Nation, thereby requiring Mrs. Williston to negotiate directly with the First Nation rather than the Crown, Mrs. Williston was unaware that she would no longer have any assurance that rents would be based on appraisals or that the First Nation might convert Lot 10 to a use which disregarded its status as surrendered land. The representations provided by Mr. Brosseau and Ms. Simcoe, according to Mrs. Williston, provided passive encouragement to her to proceed with her purchase of the leasehold interest and the cottage.
[12] It is Mrs. Williston's contention that the requisite elements for proprietary estoppel are met and she asks that the court order or declare that the "Crown and the First Nation are required to renew the Lease for a further period of not less than twenty years in accordance with the representations made to the Plaintiff and Mr. Williston in September, 1993". Alternatively, she seeks compensation.
[13] There is no debate as to the law regarding proprietary estoppel. It is set out in Eberts v. Carleton Condominium Corp. No. 396 (2000), 36 R.P.R. (3d) 104 (Ont. C.A.). The court states, at paragraph 23, that proprietary estoppel is a form of promissory estoppel and while it is commonly supposed that estoppel cannot give rise to a cause of action, proprietary estoppel appears to be an exception to that rule. The essential elements to establish a claim of proprietary estoppel are set out in paragraph 23 as follows:
Without attempting to provide a precise or comprehensive definition,
it is possible to summarize the essential elements of proprietary
estoppel as follows:
(i) An equity arises where:
(a) the owner of land (O) induces, encourages or allows the
claimant (C) to believe that he has or will enjoy some right
or benefit over O's property;
(b) in reliance upon this belief, C acts to his detriment to the knowledge
of O; and
(c) O then seeks to take unconscionable advantage of C by denying him
the right or benefit which he expected to receive.
[14] In Depew v. Wilkes (2002), 60 O.R. (3d) 499 (Ont. C.A.), proprietary estoppel is described by Mr. Justice Rosenberg, writing for a unanimous court, as an equitable jurisdiction by which a court may interfere in cases where the assertion of strict legal rights is found to be unconscionable.
[15] In Revell v. Litwin Construction (1973) Ltd. (1991), 86 D.L.R. (4th) 169 (B.C.C.A.), the court concluded that there is no requirement that the conduct, relied upon by the person who seeks to raise an estoppel, was intentionally designed to induce the reliance. Nor is it essential that there be any positive acts upon which the reliance may reasonably be said to have arisen. It may, in fact, be a failure to act in circumstances which give rise to an inference upon which the reliance is founded. The perspective from which the application of the doctrine must be viewed is that of the person who seeks to rely on it and the issue is whether the conduct, when viewed through the eyes of the party raising the doctrine, was such as would reasonably lead that person to rely upon it. The underlying concept is that of unfairness or injustice.
[16] Guided by these principles, I am unable to conclude, on the facts, that Mrs. Williston can succeed on the basis of proprietary estoppel. There is no evidence regarding the Willistons' discussions with the vendors or with the real estate agent. The only thing that is being relied upon to found the proprietary estoppel claim is Mr. Williston's telephone conversations with Ms. Simcoe and Mr. Brosseau. Mrs. Williston attaches great significance to Ms. Simcoe's comments that the decision to renew the lease was a business proposition and to Mr. Brosseau's comments that the band was in business. It is necessary to consider the context in which the comments were made.
[17] The evidence discloses that Mr. Williston was more than pleasantly surprised at the price of the cottage. He delegated the conveyancing aspects of the purchase to the staff in his office.
[18] He reviewed the Walker lease. He ascertained that it was based on 7 months occupancy, terminated on March 31, 2002, was subject to a rent adjustment every 5 years (there would be one rent adjustment before expiration), contained a building size restriction and a provision requiring tenants to remove improvements within 30 days of expiration of the lease. Mr. Williston testified that he had two primary concerns. The first was renewal of the lease and the second was the rent to be paid.
[19] Neither Ms. Simcoe nor Mr. Brosseau had any independent recollection of the telephone conversations with Mr. Williston, which occurred more than 10 years ago. Both witnesses agreed that the notes taken by Mr. Williston contained statements that were consistent with answers they would have provided to the questions that Mr. Williston said that he asked.
[20] Mr. Williston spoke first with Ms. Simcoe. In response to questions asked by Mr. Williston, Ms. Simcoe informed him that the First Nation had no policy with respect to the renewal of the leases, that they would not automatically be renewed and that the decision regarding renewal would be made by the First Nation Council at the time for renewal. She also told him that the band was the lessor and that the decision was a business proposition. Typically, leases were for a 20 year term. Rental was based on 7 months per year occupancy and an outside appraisal would be obtained as to value.
[21] Mr. Williston was concerned about Ms. Simcoe's comment that the band was the lessor. He was of the impression that the Crown was the lessor. He says that he was not confident that the band would ask for fair market rent. He was particularly concerned that if he and his wife were dealing with the band, they would not have the protection of the overview or oversight of the Crown. Therefore, the day after his discussion with Ms. Simcoe, he telephoned Mr. Brosseau.
[22] Mr. Brosseau testified that in the geographic area for which he is responsible, there are 25 First Nations and 30 reserves. There are approximately 4000 leases in existence with respect to those First Nations. Telephone calls from people inquiring about cottage leases are not uncommon and during the spring and fall, the volume is quite high. Mr. Brosseau's recollection of his conversation with Mr. Williston is that it was brief, no more than 15 minutes.
[23] In response to Mr. Williston's questions, Mr. Brosseau confirmed that the lease was between the Crown and the tenant and that the band was "in business". He said that normally a band renewed the leases. Rent was determined after an appraisal, which was a requirement of the Minister. Mr. Williston asked how "long a term a tenant could get" to which Mr. Brosseau responded that the maximum term permitted by the Minister was 40 years. Mr. Brosseau informed Mr. Williston about the existence of the register and told him that although the original was kept in Ottawa, a copy was available in Brantford and that Mr. Williston could get a copy of the register for Lot 10.
[24] Mr. Williston obtained and examined a copy of the register pertaining to Lot 10. That document (Exhibit J-1, tab 3) is entitled "Reserve General Register Lot 10 Rama #32, Ont.". The section subtitled "General Remarks" states "Surrender #2162 dated Sept. 12, 1953 and O.C.P.C. 1953-1988 dated Dec. 29, 1953 - Lots 1 to 14, in S ½ of Lot 16, Plan 4022 (Formerly Lot 17, Indian Subd.)". The rest of the document provides details of the lease to E.Q. Heslin on November 1, 1967, and subsequent assignments and addenda. The first lease, in November of 1967, was for a term of 15 years and the second, in March of 1982, was for a term of 20 years. Mrs. Williston was contemplating the purchase of the remainder of the second lease.
[25] Mr. Williston did nothing more than examine the lease and register and speak to Ms. Simcoe and Mr. Brosseau. Mrs. Williston purchased the cottage and the leasehold interest in Lot 10. Mr. Williston did not review the surrender nor did he make any inquiries in this regard. He claims that he was unaware at the time of the "nuances" of surrenders. He conducted no further investigation other than to drive through the reserve and notice that "[i]t didn't appear to be a wealthy band, very modest housing, that kind of thing". He concluded that, in his view, there was a 95% chance of renewal. He acknowledged that he was aware that there was a risk involved.
[26] On cross-examination by counsel for the First Nation, the following exchange occurred.
Q. ....They told you it was a business proposition and the band was in business. Correct?
A. Yes, correct.
Q. You, based on your own analysis of what it means to have surrendered land, concluded that the options available to them were to lease the land or to let it lie fallow. Correct?
A. Yes, those are the pragmatic options.
Q. And you came to a determination that the only option of those two that was consistent with what had been told to you about it being a business proposition was that the land be leased?
A. Yes.
Q. You came to that conclusion through your own thought process and analysis. Correct?
A. Yes.
Q. You didn't consult Ms. Simcoe or anybody at the band to ask whether that analysis was accurate. Correct?
A. No.
Q. You didn't talk to Mr. Brosseau or anyone at the government to see if that analysis was correct. Did you?
A. No.
Q. You didn't consult anybody who is a specialist or experienced in aboriginal law to make sure that is a correct analysis, did you?
A. No, I didn't.
Q. You didn't read the surrender in question, did you?
A. No, I didn't.
[27] Mrs. Williston points to the correspondence, dated November 10, 1993, from the Chippewas of Rama to Mr. Williston's law firm, regarding the assignment of the lease. Specifically, she refers to the sentence that states "[t]he process to initiate a new lease would not be undertaken until the year 2001". It is said that this is indicative of an intention, by the First Nation, to renew. This submission is without merit for two reasons. First, the correspondence was in response to a letter from a real estate law clerk in Mr. Williston's office that enclosed the assignment of lease (from Walker to Williston), the Williston proof of insurance and the assignment fee. The correspondence requested the approval of the transaction by the band council and also requested that the term of the lease be amended from March 31, 2002 to March 31, 2014. The responsive correspondence (to which Mrs. Williston refers) attached a copy of the Band Council Resolution (presumably approving the assignment) and stated that the First Nation Council did not wish to amend the term of the existing lease. That statement was then followed by the sentence referred to by Mrs. Williston. Placed in its proper context, the sentence does not evince an intention to renew. Secondly, Mrs. Williston, by that point, had already executed the agreement of purchase and sale. Consequently, she cannot suggest that she relied upon this statement in relation to her decision to purchase.
[28] Strictly speaking, we are not dealing with the continuation of an existing right. It is common ground that the lease expired on March 31, 2002. Therefore, the question is whether any right to enter a new lease has been created by way of proprietary estoppel. Counsel, for convenience, have referred to this as a "right to renewal of the lease" and I am content to do likewise.
[29] Mrs. Williston completely relied on her husband with respect to this purchase. Mr. Williston is not unsophisticated. When his wife purchased the cottage and the leasehold interest in Lot 10, he had been 20 years at the bar. To reiterate, he had reviewed the lease, he understood its terms and he knew that it expired in March of 2002. Neither Ms. Simcoe nor Mr. Brosseau told him that the lease would be renewed and, indeed, Mr. Williston acknowledged that was the case. Nor did either of them tell him that the land would continue to be used to generate income. Mr. Williston built that caveat (continued leasing) into his understanding of a business proposition and, on cross-examination, he admitted that was so. He assumed that the lease would not only be renewed, but that it would be renewed to Mrs. Williston.
[30] In Mr. Williston's words, "good business use would dictate a term long enough to justify the cost of maintaining and improving the leased lots". The result of this reasoning requires the First Nation or the Crown (as a good business use) to lease to Mrs. Williston for a term long enough to justify her costs of maintaining and improving the lot. That logic makes no sense to me. Neither the First Nation nor the Crown was a party to the agreement of purchase and sale, which was between the Walkers and Mrs. Williston.
[31] Mr. Williston did not research the term "surrender" and his perception was that "it [Lot 10] really wasn't part of the main reserve anymore". He did not look at the Indian Act. Had he done so, he would have known that the 1988 amendments (commonly known as the Kamloops amendments) clarified the fundamental differences between an absolute surrender and a surrender that is less than absolute. He did not consult counsel knowledgeable in this area of the law. Rather, he contacted the First Nation and the Crown and asked their respective representatives some questions.
[32] For Mrs. Williston to succeed, she must point to some act or omission by the defendants that could reasonably be expected to lead her to believe, upon expiration of the lease, that the First Nation or the Crown would renew. The comments of Mr. Brosseau that the band was "in business" and that normally the band will renew fall far short of establishing such an expectation, even when viewed from Mrs. Williston's perspective.
[33] As for Ms. Simcoe, Mr. Williston's notes do not indicate that she stated that the band would normally renew. Her response that "typically the First Nation would enter into a 20-year lease" related to a question as to the typical length of the term. Ms. Simcoe informed Mr. Williston that there was no policy regarding renewal, that the lease would not automatically be renewed and that the decision with respect to renewal would be made by the First Nation Council at the time for renewal (which at that point was nearly nine years hence). Mr. Williston chose to ignore these statements notwithstanding his professed awareness that the Crown acted only after consideration of the recommendations of the First Nation. There is no basis, from Ms. Simcoe's comments, upon which to establish a reasonable expectation of renewal of the lease.
[34] Yet, that does not resolve the matter for Mrs. Williston contends that, by being passive and silent and doing nothing to correct Mr. Williston's mistaken belief, the defendants allowed Mrs. Williston to believe that she would be able to negotiate a new lease. Implicit in that allegation is some knowledge by the defendants, or one of them, that Mr. Williston held or could have held such a belief. Is that the case?
[35] On the evidence, the telephone calls to the First Nation and the Crown, taken at their highest level, constitute a general inquiry by an individual interested in a cottage situate on Lot 10. There was no follow-up inquiry by either Mr. or Mrs. Williston. There is not a scintilla of evidence that either of the defendants was aware of further (or any) negotiation or contact between Mrs. Williston and the Walkers. The First Nation's notification of the Williston transaction was contained in the correspondence, from Mr. Williston's law firm in October of 1993, requesting approval of the assignment of the lease. The Crown would have learned of the assignment at a later date. Moreover, as noted earlier, when the request for the First Nation's approval of the assignment was made, there was also a request for an extension of the term of the lease, which was refused. That request, in my view, is a strong indication that Mrs. Williston did not harbour an expectation that a renewal would be granted down the road.
[36] Mrs. Williston also takes issue with Mr. Brosseau's failure to inform Mr. Williston that the Minister was in the process of delegating the supervisory functions over the Moonlight Bay Lands to the First Nation pursuant to sections 53 and 60 of the Indian Act. I agree with the defendants that there is no merit to this allegation. It is correct that the First Nation applied to the Minister, in May of 1993, for a "53/60" delegation. No such delegation was made until September, 1994. Ms. Simcoe's evidence at the trial establishes that a referendum was required after the First Nation's request was received despite the fact that there had been two previous referenda. As stated earlier, Mr. Williston's inquiry was a general one. He asked some questions regarding the lease. He did not ask any questions regarding the management of the lands. He asked who signed as lessor. Mr. Brosseau responded that it was the Crown. The delegation does not change that. At the time of the inquiry, the delegation had not occurred. It was not made until a year later. There was no obligation on Mr. Brosseau to inform Mr. Williston that the First Nation had submitted an application for a delegation.
[37] In sum, while the matter of proprietary estoppel and the circumstances alleged to give rise to the application of the doctrine must be viewed from the perspective of the person asserting the estoppel, the perspective must be reasonable. Based on the evidence, I find that Mrs. Williston did have a reasonable expectation that her lease may be renewed, but she did not have a reasonable expectation that it would be renewed.
[38] Additionally, I entertain doubt that Mrs. Williston has established "detriment". Mr. Williston did not dwell on this requirement in his evidence. It appears that, because Mrs. Williston paid $59,000 to the Walkers and Mr. Williston built a deck, a storage shed and a dock, I am to assume that there is detriment. With the exception of some immovable sections from the deck and dock, all of these items can be (and most were) removed by the Willistons. The cottage remains on Lot 10, but that is a matter of choice. Mr. and Mrs. Williston were certainly free to remove it.
[39] Mr. Williston agreed that this cottage was purchased at a fraction of the price of a freehold purchase. In exchange for the purchase price, Mrs. Williston obtained the cottage and among other things, nearly all of its furnishings and a boat along with a leasehold interest for eight years. The insurance document (Exhibit DC-1, tab 4) indicates that Mr. and Mrs. Williston insured the cottage structure for $55,000 and its contents for $25,000. The description of the improvements is not inconsistent with use of a cottage over a period of eight years and it was Mr. Williston's evidence that he enjoyed doing the work associated with the improvements. He estimated the cost of the materials at $5,000. I am not at all satisfied that the amount expended was such that it demonstrates detriment to Mrs. Williston who spent eight years on what, from all descriptions, is an exquisite property. The cottage was hers to take. Mr. Williston claims that they removed everything from it, that they "cleaned it".
[40] The claim based on proprietary estoppel fails. I find that there was not a reasonable expectation that the lease would be renewed on a long term basis when it expired in March of 2002. The lease is determinative of Mrs. Williston's rights and she is bound by its provisions. There is nothing unconscionable, unjust or unfair about requiring her to comply with the provisions of the contract that she entered. Having so concluded, I need not address the defendants' various arguments regarding the nature of the relief claimed. The issue of compensation is moot since Mrs. Williston concedes that, even if she is successful on the second part of her claim, she achieves no private remedy.
THE PUBLIC CLAIM
[41] Mrs. Williston asserts this claim as a public interest litigant and relies on Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 and Harris v. Canada, [2000] 4 F.C. 37 (C.A.) to establish standing. She seeks various orders or declarations and concedes that no private redress is available to her under this part of her action.
[42] The defendants take no issue with Mrs. Williston's standing, per se, but maintain that this is not a public interest matter. They characterize the plaintiff's "public claim" as a backdoor attempt to attack the decision of the First Nation's Chief and Councillors under the guise of public interest. They jointly submit that the heart of the matter is the decision not to lease the Moonlight Bay Lands. A Band Council Resolution dated April 13, 2000, states that the leases on the Moonlight Bay Lands will not be renewed. By correspondence dated August 28, 2000, Mrs. Williston was advised of the Band Council Resolution and was informed that her lease would not be renewed. If she wished to impugn that decision, her recourse, say the defendants, was to apply for judicial review.
[43] Mrs. Williston's submissions in support of her claim evolved during the course of the argument on summation and were necessarily modified in some respects to accommodate her withdrawal of the constitutional question. In the end, as I understand it in its most simplistic form, the claim is founded on the proposition that the Crown is under a positive obligation to lease the Moonlight Bay Lands for the benefit of the First Nation defendant. This is said to be so because of subsection 18(1) of the Indian Act. That subsection states:
| Indian Act, R.S.C., 1985, c. I-5 18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.
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Loi sur les Indiens, L.R.C. (1985), ch. I-5
18. (1) Sous réserve des autres dispositions de la présente loi, Sa Majesté détient des réserves à l'usage et au profit des bandes respectives pour lesquelles elles furent mises de côté; sous réserve des autres dispositions de la présente loi et des stipulations de tout traité ou cession, le gouverneur en conseil peut décider si tout objet, pour lequel des terres dans une réserve sont ou doivent être utilisées, se trouve à l'usage et au profit de la bande.
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[44] In a nutshell, the argument is that Her Majesty holds the Moonlight Bay Lands (which are part of the reserve) for the defendant First Nation's use and benefit, but they are held subject to the terms of the 1953 surrender, which states that the lands are surrendered "forever in trust to lease". Because "forever" means exactly what it says, it is not open to the Crown not to lease the lands. By acquiescing in the First Nation's decision not to lease, the Crown is in breach of the fiduciary duty owed to the band.
[45] Although there are a number of subsidiary issues, I do not believe that it will be necessary to address all of them. In terms of the relief requested in paragraph 1 of the statement of claim, subparagraphs (a) to (f) relate to the "equitable" claim - proprietary estoppel - and I have disposed of it. Subparagraphs (g) through (r) relate to the "legal" claim - the "public interest" claim. Subparagraphs (l) and (m) have been withdrawn because they are tied to the constitutional question. The remaining subparagraphs, as set out in the statement of claim, are as follows:
The Legal Claim
(g) an order or declaration that the 1953 Surrender has not been terminated and continues in full force and effect;
(h) an order or declaration that the terms of the Surrender are binding on both the Federal Crown and the First Nation;
(i) an order or declaration that the discretion of the Federal Crown to determine the purposes for which the Moonlight Bay Lands may be used has been pre-empted by the terms of the 1953 Surrender;
(j) an order or declaration that the Minister and its validly appointed agents, in consultation with the First Nation, is required by ss. 18(1) of the Indian Act and the 1953 Surrender to lease, or endeavour to lease, the Moonlight Bay Lands to such person or persons and upon such terms as the Government of Canada may deem most conducive to the First Nation's Welfare in order to raise revenues for the First Nation forever.
(k) an order or declaration that First Nation has released its rights to use or occupy the Moonlight Bay Lands for so long as the 1953 Surrender continues and that it is contrary to the terms of section 18(1) of the Indian Act and of the 1953 Surrender for the First Nation or its members to, directly or indirectly, use, occupy or take possession of the Moonlight Bay Lands;
[...]
(n) an order or declaration that the appointment of the First Nation or any member of the First Nation under ss. 53(1) of the Indian Act is a breach of that section;
(o) an order or declaration that the appointment of the Chief and Councillors of the First Nation under ss. 53(1) of the Indian Act should be terminated for failing to give effect to the terms of the 1953 Surrender;
(p) an order or declaration that the appointment of the Chief and Councillors of the First Nation from time to time, or a majority of them, under ss. 53(1) of the First Nation constitutes an appointment of the First Nation under that subsection;
(q) an order or declaration that, pursuant to ss. 53(3) of the Indian Act, the Chief and Councillors of the First Nation from time to time and the band of which they are members is prohibited from using, occupying or taking possession of all or any part of the Moonlight Bay Lands; and
(r) an order or declaration that the Federal Crown has breached its obligations under the 1924 Agreement, ss. 18(1) of the Indian Act and the 1953 Surrender by failing to fulfill its statutory obligations under these documents.
[46] The most recent pronouncement from the Federal Court of Appeal on the issue of the remedies provided by sections 17 and 18 of the Federal Courts Act is found in Canada v. Tremblay, [2004] 4 F.C.R. 165 (C.A.). That case, in the first instance, involved a motion to strike the respondent's action. A Prothonotary dismissed the motion and the Federal Court dismissed an appeal from that decision. The respondent's action was brought pursuant to the Federal Courts Act (section 17) three years after he retired from the Canadian Forces in accordance with the mandatory retirement age provision in the Queen's Regulation and Orders for the Canadian Forces (QRO). In his action, he asked that the articles of the QRO prescribing the mandatory retirement age, paragraph 15(1)(b) of the Canadian Human Rights Act (CHRA) (under which the QRO were adopted) as well as paragraph 15(1)(c) be declared inoperative because of inconsistency with sections 3 and 7 of the CHRA and the Canadian Charter of Rights and Freedoms. He also sought reinstatement in the Canadian Forces and damages. One of the issues, on appeal, was whether the respondent could proceed by action or whether he should have proceeded by way of judicial review.
[47] Madam Justice Desjardins, writing for a unanimous court in Tremblay, supra, discusses the nature of sections 17 and 18 of the Federal Courts Act. She explains that section 18 deals with discretionary remedies which formerly fell under prerogative writs, to which were added injunctions and declarations, having their roots in equity. They are considered to be "extraordinary" because they are generally not allowed if other remedies are also available. The section confers exclusive original jurisdiction on the Federal Court to exercise judicial review remedies against any federal board, commission or other tribunal. Justice Desjardins describes the section as the cornerstone of the Act (adopted in 1971) whereby Parliament ensured that federal boards, commissions or other tribunals, whose activities are spread across Canada, would not be subjected to potentially contradictory decisions from one province to the next.
[48] She then notes that the definition of a "federal board, commission or other tribunal" in subsection 2(1) of the Federal Courts Act has not always been so broad. It was only after amendments, which came into effect on February 1, 1992, that an order made pursuant to a prerogative of the Crown became open to judicial review. Continuing, Justice Desjardins states that while a declaration of invalidity can be obtained through the application of sections 17 and 18 of the Federal Courts Act, it does not necessarily follow that the respondent had the choice of proceeding with either one or the other of these two sections. To determine the appropriate remedy on which he could base his claims, it is necessary to examine the relief sought in the statement of claim.
[49] In the end, Madam Justice Desjardins determines that what was at the heart of the claim in Tremblay was the decision bearing on the respondent's retirement. The relief sought depended on its alleged invalidity. The respondent could only obtain reinstatement if the decision were declared invalid and damages could only be claimed once reinstatement was ordered. The retirement involved a decision made by a "federal board, commission or other tribunal" within the meaning of section 18 and subsection 2(1) of the Federal Courts Act. The only way to challenge it was by way of judicial review. The excerpts from paragraphs 16, 17 and 18 [citations omitted] of the reasons for judgment set out below are instructive.
[...] Section 18 of the Act provides that extraordinary measures cannot be treated
and proceeded with as an action, except when the Federal Court considers it
appropriate (subsection 18.4(2) of the Act). The Act does not provide that an
action may be treated and proceeded with as a judicial review.
In this case, the respondent totally disregarded section 18 et seq. of the Act. He
brought an action against the Federal Crown pursuant to subsection 17(1) of the
Act, which, as stated earlier confers jurisdiction to the Federal Court in cases in
which relief is claimed against the Crown. The respondent relies on the word
"relief" in subsection 2(1) of the Act to support him, in that "relief" includes a
"declaration". [...]
The respondent cannot, however, proceed by way of an action since subsection
18(3) of the Act provides exclusively for relief by way of judicial review when
impugning a decision by a federal board, commission or other tribunal.
[50] The result is unequivocal. A litigant cannot opt between two procedures. To determine which procedure is applicable, one must look to the core of the claim.
[51] This portion of Mrs. Williston's action (the "legal" or "public" claim), in my view, constitutes nothing other than an endeavour to circumvent the requirement to challenge the decision of the Chief and Councillors of the defendant First Nation not to lease Lot 10. To hold otherwise would be to elevate form over substance.
[52] Although couched in terminology that purports to find fault, for the most part with the defendant Crown, the crux of the complaint is that the Moonlight Bay Lands are not leased. Mrs. Williston skilfully weaves her way through various (and some indisputable) legal propositions and seeks to achieve indirectly what she chooses not to confront directly by casting her action as one of public interest. I turn now to examine the specific paragraphs of the requested relief although not in the order in which Mrs. Williston presents them.
[53] I begin with subparagraph (n) which requests an order that the appointment of the First Nation or any member of the First Nation under subsection 53(1) of the Indian Act is a breach of that section. This request relates to the decision of the Minister dated September 15, 1994, appointing the Chief and Councillors of the defendant First Nation, as elected from time to time, to manage all present and future designated lands.
[54] This is clearly a decision falling within the purview of section 18 and subsection 2(1) of the Federal Courts Act. In accordance with the reasoning in Tremblay, supra, it can be challenged only by way of judicial review. Mrs. Williston's counsel, while not conceding the point, acknowledged the difficulty confronting Mrs. Williston in this respect. The hurdle appears to me to be insurmountable for, having failed to bring an application for judicial review of the decision, her conduct after being notified of the delegation precludes satisfaction of the conditions required to obtain an extension of time within which to apply for judicial review.
[55] On November 23rd of 1994, Mr. Brosseau, on behalf of the Crown, notified Mrs. Williston of the delegation and advised that all parties holding existing leases should deal directly with the First Nation concerning all matters relating to their agreements and should pay all monies owing under the agreements to the First Nation. Mrs. Williston apparently did not take issue with the delegation at that time for she made all rent payments directly to the First Nation from 1995 through 2000. It was only after she received notification, in August of 2000, that the lease would not be renewed that she delivered her annual rent cheque to the Crown.
[56] The relief requested in subparagraphs (o) and (p) flows from that requested in subparagraph (n). The same thing applies to subparagraph (q), but even if that were not so, there is no evidence that the First Nation is using, occupying or taking possession of all or any part of the Moonlight Bay Lands at this time. In fact, the evidence is to the contrary. Thus, even if I were to determine (and I do not) that this subparagraph constitutes an appropriate request, there is no evidentiary basis upon which I could grant it.
[57] The remaining requests for relief culminate in subparagraph (j), which contains a request for an order or declaration that, in short, the Moonlight Bay Lands be leased "forever". This is indeed, in my view, an indirect or backdoor attempt to attack the Band Council Resolution not to lease. That decision (of the Chief and Councillors) is a decision made by a "federal board, commission or other tribunal" within the meaning of section 18 and subsection 2(1) of the Federal Courts Act. Mrs. Williston cannot, by framing her requested relief in terms that camouflage its nature, convert her complaint regarding the decision into a request to enforce a positive obligation. Moreover, subparagraph (j) is a request in the nature of mandamus. To obtain such relief, the prerequisites delineated in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) must be met. Mrs. Williston not only failed to meet those prerequisites, she failed to address them.
[58] Subparagraph (k) is interrelated with subparagraph (j). To the extent that it is not, the reasoning in relation to subparagraph (q) applies to subparagraph (k) regarding the lack of an evidentiary basis.
[59] Subparagraphs (g), (h) and (i) are not free-standing in and of themselves. They are the planks upon which subparagraph (j) rests. I do not understand the defendants to dispute the factual statements in subparagraphs (g) and (h). In any event, they could not, even if granted, constitute declarations of right. Rather, they reflect steps in the process to arrive at subparagraph (j), of which I have already spoken.
[60] This exhausts the requested relief and I return to where I began. The heart of this claim is the decision of the First Nation Chief and Councillors not to lease the Moonlight Bay Lands. The recourse available to impugn that decision is by way of judicial review.
[61] Mrs. Williston urges me to have regard to earlier decisions of the court, regarding sections 17 and 18 of the Federal Courts Act, that were rendered during the transitional period of the 1992 amendments. Those decisions were thoroughly canvassed by Madam Justice Desjardins in Tremblay, supra, and there is nothing to be added to her analysis, which speaks for itself and is binding on me.
[62] Additionally, I am asked to utilize Rule 57 of the Federal Courts Rules to convert this portion of Mrs. Williston's action into a judicial review proceeding. Rule 57 provides that an originating document shall not be set aside only on the ground that a different originating document should have been used. My reading of the rule leads me to conclude that it is available when the substance of the claim is clear, but is contained in the wrong document. The rule is designed to alleviate prejudice arising out of the use of an improper document. It does not provide a vehicle to circumvent the provisions of the Federal Courts Act as they are described in Tremblay, supra.
[63] Finally, Mrs. Williston requests that I fashion a remedy or consider a method to enable the matter to be dealt with on its merits rather than "eliminate consideration altogether on a procedural basis". While I entertain significant doubt that the frailties in this claim can be categorized as "procedural", in the event that I am wrong that Mrs. Williston ought to have sought judicial review, for the reasons that follow, I would dismiss the claim in any event.
[64] Mrs. Williston, in the "public" interest, seeks declarations that define or circumscribe the actions of the defendant Crown, the Minister and the defendant First Nation in relation to the First Nation's reserve lands. In other words, she seeks declarations with respect to the relationship (and the obligations flowing from it) between the two defendants.
[65] In the hallmark case Guerin v. Canada, [1984] 2 S.C.R. 335, the Supreme Court of Canada states at page 385 that the Crown's obligation to the Indians with respect to the Indians' interest in land is not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty.
[66] I reject the submission that it is open to Mrs. Williston to assert a "public" interest claim, allegedly to force the Crown to comply with subsection 18(1) of the Indian Act, when that subsection has repeatedly been held to constitute a statutory acknowledgement of the Crown's fiduciary obligation to Indian bands with respect to the uses to which reserve land may be put. It is not in the nature of a public law duty. Moreover, there is no conflict between the defendant Crown and the defendant First Nation in this matter.
[67] I also reject the basic premise of Mrs. Williston's claim, namely, that the Crown has a positive obligation to lease the Moonlight Bay Lands forever. Her counsel concedes that if I do not accept that proposition, the claim fails.
[68] As noted earlier, Mrs. Williston arrives at this destination by the route of subsection 18(1) of the Indian Act. The submission is that the discretion afforded the Governor in Council - to determine whether any purpose, for which reserve lands are used or to be used, is for the use and benefit of the band - is expressly subject to the terms of the Act and to the terms of any surrender. Because the 1953 surrender (the pertinent portions of which are for ease of reference repeated below) "surrendered the Moonlight Bay Lands to Her Majesty forever to lease", Mrs. Williston maintains that there is no alternative to leasing. In her view, the Crown, by acquiescing in the defendant First Nation's decision not to lease, is in breach of its fiduciary duty to the defendant First Nation.
KNOW ALL MEN BY THESE PRESENTS THAT WE, the undersigned
Chief and Councillors of the Rama Band of Indians...Do hereby surrender
unto Her Majesty the Queen in Right of Canada, her Heirs and Successors
forever, ALL AND SINGULAR, that certain parcel or tract of land and
premises, situate, lying and being in Rama Indian Reserve in the Province
of Ontario containing by admeasurement.
[...]
TO HAVE AND TO HOLD the same unto Her said Majesty the Queen, her
Heirs and Successors forever in trust to lease the same to such person
or persons, and upon such terms as the Government of Canada may deem
most conducive to our Welfare and that of our people.
AND UPON the further condition that all monies received from the leases
thereof, shall be credited to the Funds of our Band at Ottawa.
[69] I take the phrase "may deem most conducive to our Welfare and that of our people" to be synonymous with the concept the "general welfare of the band".
[70] It is common ground that the surrender is to be interpreted according to the intention of the parties at the time of surrender. There is a paucity of evidence as to the intentions of the parties to the 1953 surrender. Ms. Simcoe confirms that she has not seen any minutes or records, in relation to the surrender, other than the surrender document itself and the Order in Council accepting it.
[71] Mrs. Williston's contention is that because the word "forever" is used, it is to be given its ordinary meaning and "forever" means "forever". I need not comment on the debate between Mrs. Williston and the defendants regarding the administrative procedures in place for the revocation of surrender of designated lands because, for purposes of my reasoning, nothing turns on it. I do note, however, the words of Madam Justice McLachlin, as she then was, in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 (Blueberry - also commonly cited as Apsassin) at paragraph 78 where the learned justice (writing for the minority) states, "[t]his does not mean, however, that an Indian band is bound forever by the terms of the initial surrender and is incapable of varying the terms of a surrender".
[72] Mrs. Williston's submission goes beyond the ordinary meaning of the word "forever". She combines the word "forever" with the purpose of the surrender - to lease - and imports a positive obligation on the Crown to lease the lands in perpetuity and without interruption. At its highest, her argument raises the question of ambiguity, not to mention the fact that her reasoning excludes consideration of the discretion provided to the Crown in the surrender document. Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119, at paragraph 42, instructs that the surrender provisions of the Indian Act operate in conjunction with and subject to the other provisions of the Act. As to interpretation, the following comment of Madam Justice McLachlin, as she then was, (in dissent but not on this point) appears at para. 80:
... [D]ictionary or "plain" meanings suffice only where they are clear and consistent
with a purposive reading of the statute as a whole. Each statute must be given
such fair, large and liberal construction as best ensures the attainment of its
objects. Nowhere is this more important than in statutes dealing with the rights
of Indian peoples. When read in the context of the purpose of the Act, what
seems at first blush to be a "plain meaning" may be revealed as not so plain at
all. Ambiguities may appear bringing into play subsidiary rules like the
Nowegijick principle.
[73] The Nowegijick principle referred to in the quoted statement refers to the principle that in interpreting statutes relating to Indians, ambiguities and doubtful expressions should be resolved in favour of the Indians: R. v. Nowegijick, [1983] 1 S.C.R. 29. The principle has been affirmed repeatedly in subsequent cases.
[74] If necessary, a court may employ the concept of implied rights to support the meaningful exercise of express rights granted in circumstances where no such implication might necessarily have been made about the sui generis nature of the Crown's relationship to aboriginal people:
R. v. Marshall, [1999] 3 S.C.R. 456 at para. 44. Although it appears self evident to me that the terms of the surrender do not require the Crown to lease the lands in perpetuity and without interruption, I am prepared to conclude that the authority to lease implies the authority not to lease when such a determination accords with the general welfare of the band. All the more so when the determination is in accordance with the band's expressed wish. The concept "general welfare of the band" incorporates a reference to the present-day needs of aboriginal communities: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 121.
[75] I regard Mrs. Williston's submission as to the distinction between the "reversionary" and "residual" interests in designated lands as one that flies in the face of the well-entrenched principle that the sui generis nature of aboriginal interest in land precludes the application of traditional real property rules to elucidate the content of that interest: Blueberry, supra; St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 678.
[76] Finally, I note the passage referred to by Mrs. Williston, from Guerin, supra, where (at p. 352) it is stated that if the band surrenders its beneficial interest in reserve lands for a specific purpose, then the Governor in Council's authority under the section to decide whether the purpose is for the use and benefit of the band is pre-empted for the band itself has agreed to the purpose and the Crown may rely upon that agreement. I have already referred to the fact that the surrender document itself, here, reserves a discretion to the Crown. I also note that later in the reasons in Guerin, Mr. Justice Dickson, as he then was, states (at p. 387) that the discretion, which is the hallmark of any fiduciary relationship, is capable of being narrowed in a particular case. A failure to adhere to the imposed conditions will simply itself be a prima facie breach of the obligation.
[77] The fiduciary duty accrues to the band. The defendant First Nation alleges no prima facie, or any, breach of fiduciary obligation. Mrs. Williston suggests that her interpretation of the surrender prevails. That is not so. Her "legal" or "public" claim fails.
[78] The defendants have been successful and both have requested costs. Each of the parties will have until June 17, 2005, to file written submissions regarding costs (not to exceed three pages, double-spaced). Replies to those submissions may be filed by each of the parties on or before June 24, 2005, and shall not exceed two pages, double-spaced.
ORDER
THIS COURT ORDERS THAT the action is dismissed with an order as to costs to follow.
"Carolyn A. Layden-Stevenson"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-383-02
STYLE OF CAUSE: GERALDINE M. WILLISTON
v.
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
AS REPRESENTED BY THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT and
THE CHIPPEWAS OF RAMA INDIAN BAND
(aka THE CHIPPEWAS OF MNJIKANING FIRST NATION)
PLACE OF HEARING: Toronto, Ontario
DATES OF HEARING: May 24 to 27, 2005 and June 2, 2005
Teleconference June 6, 2005.
REASONS FOR ORDER
AND ORDER BY: Layden-Stevenson J.
DATED: June 10, 2005
APPEARANCES BY:
Ross Earnshaw FOR THE PLAINTIFF
Shelley C. Quinn FOR THE DEFENDANT
Laurent Bartleman HER MAJESTY THE QUEEN
Awanish Sinha FOR THE DEFENDANT
THE CHIPPEWAS OF RAMA
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP
Kitchener, Ontario FOR THE PLAINTIFF
Page :
John H. Sims, Q.C. FOR THE DEFENDANT
Deputy Attorney General of Canada HER MAJESTY THE QUEEN
McCarthy Tétrault FOR THE DEFENDANT
Toronto, Ontario THE CHIPPEWAS OF RAMA