Date: 20050303
Docket: T-797-04
Citation: 2005 FC 314
BETWEEN:
JOYCE W. BEATTIE
Appellant
and
SQUAMISH INDIAN BAND and
SQUAMISH INDIAN BAND ASSESSOR
Respondent
Introduction
[1] This is an appeal from a Squamish Indian Band Board of Review in respect of an assessment for 2003 issued by the Band of a "manufactured home" occupied by the appellant, and the land upon which it is situated, which is located on the Capilano Reserve, the reserve of the Squamish Indian Band, in Vancouver. It is agreed that a determination of this appeal will also determine an appeal of the appellant's 2004 assessment.
[2] The Board of Review was created by the Squamish Indian Band Property Assessment By-law, which by-law is authorized by subsection 83(3) of the Indian Act, R.S.C. 1985, c. I-5. Section 55 of the by-law provides for an appeal from the Board of Review to the "Federal Court of Canada - Trial Division".
[3] At the opening of the hearing, I raised a question as to the statutory basis for such an appeal. All parties agreed that there was such a right of appeal validly created by the by-law. Counsel for the respondent Band relied on the decision of the Supreme Court in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. At paragraphs 47-53 of that decision, the Supreme Court held that such a Band by-law, as required of it by subsection 83(3) of the Indian Act to provide an "appeal process" in respect of assessments, properly also created a right of appeal to the Federal Court - Trial Division. In doing so, it relied principally on subsection 24(1) of the Federal Court Act, R.S.C. 1985, c. F-7. That subsection provided that except as otherwise provided in an Act of Parliament, the Trial Division had exclusive original jurisdiction to hear and determine all appeals that "under any Act of Parliament may be taken to the Court". It was held that such a Band by-law was made "under an Act of Parliament", and therefore gave the Trial Division exclusive original jurisdiction. Since the decision in Matsqui, subsection 24(1) has been repealed by the Courts Administration Service Act, S.C. 2002, c. 8. It appears that this was done because subsection 24(1) was thought to be no longer necessary because other federal legislation was amended to provide specifically, in each case, for an appeal to the successor of the Federal Court - Trial Division, namely the Federal Court. I believe, nevertheless, that the principle of the Matsqui case should still apply and that as an appeal to the Federal Court is authorized by delegated legislation pursuant to an Act of Parliament, the Court should still have that jurisdiction. It may also be noted that by subsection 183(2) of the Courts Administration Service Act, the expression "Federal Court - Trial Division" was replaced by the expression "Federal Court" in any regulation, and an Indian Band by-law is such a regulation (see Matsqui case, supra, para. 51). Further, section 186 of the Courts Administration Services Act provides:
|
186. Any jurisdiction of the Federal Court of Appeal or the Federal Court created by this Act shall be exercised in respect to matters arising before or after becoming into force of section 1 of this Act.
|
186. Toute compétence conférée par la présente loi à la Cour d'appel fédérale ou à la Cour fédérale doit être exercée relativement aux questions soulevées soit avant soit après l'entrée en vigueur de l'article 1 de la présente loi. |
That Act came into force on July 2, 2003. I am therefore of the view that consistently with the Matsqui case, there is still a right of appeal to this Court from such a Board of Review where, as here, it was authorized by Band by-law.
The Facts
[4] The parties submitted an Agreed Statement of Facts to the Board of Review, which included the following facts. The appellant is a registered Indian under Treaty No. 11, but is not a member of the Squamish Indian Band which occupies the Capilano reserve. She resides in a "manufactured home" which has been situated in the Capilano Mobile Park on the same lot since 1986. The Capilano Mobile Park is operated by a partnership which has a permit from the Band to use the property and grants licenses to those occupying homes situated on lots within the mobile park. The mobile park has paved roads, hydro and telephone, underground sewer and water, street lighting, etc. The appellant and her husband have occupied the home in question on the same site since at least 2001. The home is a double trailer fastened together, having an overall dimension of 32 by 24 feet. It is attached by cables and hooks to a concrete pad which underlies it. Attached to it is a carport and another addition is also attached to the concrete pad. There is no evidence of a trailer hitch or wheels. There are underground connections to electrical, water and sewage facilities. It is also connected to a source of gas.
[5] The appellant objects to the 2003 property assessment issued to her as "lessee/occupier" of the property. It assessed separately the land and building with a total assessed value of $143,700. This assessment was issued pursuant to the Squamish Indian Band Property Assessment By-law and the Squamish Indian Band Property Taxation By-law, both of which have been approved by the Minister of Indian Affairs and Northern Development.
[6] Before the Board of Review, the appellant contended that she could not be taxed in respect of the site, because by virtue of the Indian Act, she has not and could not have any legal interest in the land by virtue of various provisions in the Indian Act. She relied on subsection 20(1), which provides that no Indian is lawfully in possession of land in the reserve unless that land has been allotted to him by the Council of the Band, with the approval of the Minister. No allotment has been made to her. By subsection 28(1), no deed, lease or other agreement can be made by a Band to permit a person other than a member of the Band to occupy or use the reserve. As noted, the appellant is not a member of this Band. Further, she argued that by subsection 37(1), lands in the reserve cannot be sold until they have been absolutely surrendered to Her Majesty, and no such surrender had happened in this case in respect of the mobile home park.
[7] The appellant further argued before the Board that the home was personal property because it would be so regarded under a provincial law, the Manufactured Home Act, R.S.B.C. 1966, c. 280. By paragraph 87(1)(b) of the Indian Act, the personal property of an Indian situated on the reserve is exempt from taxation.
[8] In respect of the first argument, the Board of Review found that the Band was authorized by the Indian Act to make a by-law assessing and taxing persons who use land on a reserve. Paragraph 83(1)(a) of the Indian Act authorizes the Band Council to make by-laws for:
... taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve.
The breadth of this power was confirmed by the Supreme of Canada in Osoyoos Indian Band v. Oliver (2001), 206 D.L.R. (4th) 385 at paragraphs 40-49. The Squamish Assessment By-law, adopted in the exercise of this power, assesses occupiers of land, whom it defines as including anyone "who simply occupies the land". The Board had little difficulty in finding that the appellant occupied this land.
[9] With respect to the second point, the Board of Review concluded that the home here was a fixture. It applied common law principles, citing the case of La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd. (1969), 4 D.L.R. (3d) 549 (B.C.C.A.). It considered that there was such degree of annexation of the home to the site that it should be regarded as a fixture and is, therefore, not personal property. It considered that the Manufactured Home Act did not, by its terms, apply to this home which had been in place since 1988. The Board did not consider it necessary to decide whether that provincial Act applied on Indian reserves.
[10] The appellant appeals from that decision, making essentially the same arguments, but adding thereto a further elaboration based on her contention that the home is a chattel. She argued that the home cannot be taxed as real property, unless there is "unity of title" in the land and the home. There cannot be such unity of title, since a conveyance of the land would not legally convey the home in this case. She again relied in part on her interpretation of the provincial Manufactured Home Act, which she said treated it as a chattel, thus preventing it from becoming part of the property to which it is affixed.
Analysis
[11] I am satisfied that the appellant has been properly assessed and taxed as one who uses or occupies land on an Indian reserve. That is the basic issue before the Court.
[12] As this is an appeal, the standard of review is that appropriate to appeals. In this case, the essential issues involved are questions of law and I believe that the proper standard is that of correctness. I am satisfied, however, that the Board of Review decided such questions correctly.
[13] What we are concerned with here is the validity of measures taken under the authority of Parliament's jurisdiction over "Indians, and Lands reserved for the Indians ...", as provided in subsection 91(24) of the Constitution Act, 1967. The property in question here is a lot within the Indian reserve with a home securely attached to that lot for the last 17 years. As noted earlier, paragraph 83(1)(a) of the Indian Act authorizes the Council of a Band to "make by-laws for ... taxation for local purposes of land, or interests in land in the reserve, including rights to occupy, possess or use land in the reserve ..." (Emphasis added). I have little doubt that this provision is well within Parliament's jurisdiction to legislate in respect of Indians and lands reserved for the Indians, providing as it does for the raising of money for the purposes of the Band by taxation on those who use reserve land.
[14] Further, I believe that the Taxation By-law and the Assessment By-law adopted by this Band are within the powers delegated to the Band Council by the Indian Act, since the Taxation By-law provides for the assessment and taxation of every "interest holder", as this term is defined in subsection 1(1) of the Assessment By-law as a person who "has an interest in, or is an occupier of, land or improvements, or both ...". Subsection 2(1.1) of the Taxation By-law provides that, for the purposes of both by-laws, a manufactured home is deemed to be an "improvement". The Assessment By-law, at paragraphs 1(b) and (c), defines an "occupier" as a person in possession of land "who simply occupies the land". By any test of common sense, it is clear that the appellant uses or occupies the land to which her home is affixed, and has done so since at least 2001. It is difficult to conceive that it is beyond the power of Parliament to delegate, or for a Band Council to exercise, the power to raise revenue for the Band from such use of reserve lands.
[15] Notwithstanding the arguments of the appellant, her taxability in relation to the use and occupation of the land and her home cannot be determined on the basis that her home is inherently and permanently a chattel. The Board of Review found that "because of the degree of annexation" of the home to the land, it is a fixture and, therefore, forms part of the land. There is ample authority for the proposition that structures attached to land normally are fixtures while so attached, and are taxable as part of the land, even if the owner of the structure has the right to remove the structure at any time or at a time when its purpose for being there is completed or the arrangement by which it is allowed to be placed on the land is terminated (See, for example, London County Council v. Wilkins, [1956] 3 All E.R. 38 (H.ofL.); Shell Canada Ltd. v. Winnipeg (1976), 67 D.L.R. (3d) 747 (Man.C.A.); The Queen v. Robson Motor Inn, [1989] 2 F.C. 52 at para. 10 (C.A.). I am satisfied that the Board of Review was correct in finding as it did that the appellant's home was a fixture in the circumstances which existed in the years in question.
[16] The appellant puts much reliance on the provincial Manufactured Home Act. She relies on provisions to the effect that if a person moves a manufactured home to a manufactured home park, or purchases a manufactured home that has never been occupied and that is located in a manufactured home park, the manufactured home is not part of the land unless there is a written agreement to that effect entered into by the owner of the manufactured home. I am not at all sure that even on its face, this Act applies to the appellant's home, regardless of its location. The version of the Act which was in force at the time of the assessment and at the time of the decision of the Board of Review was the Manufactured Home Act, R.S.B.C. 1996, c. 280. That Act applied the above provision, separating ownership of the home from ownership of the lot upon which it is placed, only to those manufactured homes moved after September 11, 1992, or those acquired after that date which were never occupied until purchased by the registered owner. In this case, the home was placed on reserve land in 1988, and the appellant who asserts separate ownership of the home did not acquire it as a home that had never been occupied, as required by section 13 of the 1996 Act. Indeed, in her original memorandum to this Court, she accepted that section 13 did not apply to her home, thus agreeing with the finding of the Board of Review. Before me, however, she argued in reply that section 13 had now been replaced by section 23 of the new Manufactured Home Act, R.S.B.C. 2003, c. 75. That provision does not have the previous time limitation which made it apply only to homes moved or acquired after September 11, 1992. In my view, however, it appears that the new provision speaks to the future, as it reads "that if a person moves ... or purchases a manufactured home that has never been occupied, and that is located in a manufactured home park ...", then it does not become part of the land unless such is agreed to in writing. This statute came into effect on December 8, 2003, three days after the decision of the Board of Review in the present case. Even if its application is not limited to the future (and I believe it is, there being no words to make it retroactive), it could not have affected the decision of the Board of Review.
[17] In any event, I am satisfied that the provincial Act cannot be given effect so as to alter the system of taxation adopted by an Indian Band exercising the powers conferred on it by section 83 of the Indian Act. I am satisfied that Parliament, authorizing the Council to pass by-laws for the "taxation for local purposes of land, or interest in land, in the reserve, including rights to occupy, possess or use land in the reserve ...", was exercising its jurisdiction over Indians, and lands reserved for the Indians. To extend the power of taxation, which the Band here has exercised, to impose taxation on the use of land, including the fixtures on the land, is not a colourable exercise of Parliament's power. It is well established in the jurisprudence that fixtures to land, whatever rights there may be to their future disposition, may be legitimately taxed as part of the land, as long as they remain on the land.
[18] As noted earlier, the appellant has argued vigorously that she has no legal interest in the land and, therefore, cannot be taxed in respect to it. She stresses that by the Indian Act, she has no lawful interest because none has been allocated to her and, moreover, as a non-member of the Squamish Band, the Band could not give her a lease or contract for the occupation or use of part of the reserve, subsection 28(1) of the Indian Act providing that such an agreement would be void. Thus, she says she cannot be the holder of "land or interests in land ..." in respect to which subsection 83(1) confers on the Band the power of taxation. I am not persuaded that the power of the Band to impose taxation on land "including rights to occupy, possess or use land in the reserve ...", as specified in paragraph 83(1)(a) of the Indian Act is confined to those with enforceable leases to the land. The appellant is in fact in possession of the site. She is there by the consent of the Band which has granted the permit to the operators of the Capilano Mobile Park, who have in turn granted the appellant a license to use that site. She can no doubt exclude those who have no such permission from the Band Council. It may well be that her use of the property is subject to revocation by the Capilano Mobile Park partnership or by the Band Council, because no agreement giving her possession would be enforceable as against the Park or the Band. But as long as she occupies and uses the land with some colour of right exercisable against all except those with a better title, she is a person with a right to occupy, possess or use as contemplated by subsection 83(1) of the Indian Act. The British Columbia Court of Appeal dealt with a somewhat similar problem in Sanmartino v. A.G. of B.C., (1972) W.W.R. 24 at 35-36. There, a non-Indian occupied two lots on an Indian reserve. His lease did not comply with the Indian Act. He was taxed as an occupier of land under the provisions of the provincial Taxation Act. That Act defined "occupier" as "the person in possession of land ... held by him under any ... lease, license, agreement for sale ... or which is simply occupied". The Court held that the appellant in that case came within the definition of occupier, because he "simply occupied" the land within the definition of "occupier". The Court found him to be in possession of the land, even though without a legally enforceable lease. It stated:
No doubt, proper authority could remove him at any time, but while in actual use and possession given in fact by a person who had some right to possession, he could maintain his possession against all others than those who would have a right to have him ejected. (p. 36)
[19] In the present case, it may be noted that the Property Assessment By-law, subsection 1(1), defines "occupier" as "a person in possession of land within the reserve ... under a lease, license, agreement ... or who simply occupies the land ...". I believe that the appellant "simply occupies the land" by being in possession (a possession for which she pays a significant amount to the Capilano Mobile Park), subject only to being evicted by someone with a better title.
[20] I therefore believe that the Board of Review correctly confirmed the assessment.
Disposition
[21] The appeal will therefore be dismissed with costs to the respondents.
"B. Strayer"
D.J.
OTTAWA, Ontario
March 3, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-797-04
STYLE OF CAUSE: JOYCE W. BEATTIE
- and -
SQUAMISH INDIAN BAND and
SQUAMISH INDIAN BAND ASSESSOR
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 24, 2005
REASONS FOR ORDER
AND ORDER OF: STRAYER D.J.
DATED: March 3, 2005
APPEARANCES:
Ms. Joyce Beattie ON HER OWN BEHALF
Mr. James P. Tate FOR RESPONDENT, Squamish Indian Band
Mr. Guy Holeksa FOR RESPONDENT, Squamish Indian Band Assessor
SOLICITORS OF RECORD:
Ratcliff & Company FOR RESPONDENT, Squamish Indian Band
Vancouver, B.C.
Mr. Guy Holeksa FOR RESPONDENT, Squamish Indian Band
Barrister and Solicitor Assessor