Assessor for Seabird Island Indian Band v. BC Tel, 2002 FCA 288 (2002)

Extract

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Assessor for Seabird Island Indian Band v. BC Tel, 2002 FCA 288 (2002)

Federal Court Reports

BC Tel v. Seabird Island Indian Band (C.A.) [2003] 1 F.C. 475

Date: 20020709

Docket: A-391-00

Neutral citation: 2002 FCA 288

CORAM: DESJARDINS J.A.

LINDEN J.A

NOËL J.A

BETWEEN:

ASSESSOR FOR SEABIRD ISLAND INDIAN BAND

Appellant

and

BC TEL

Respondent

Heard at Vancouver, British Columbia, on May 29, 2002.

Judgment delivered at Ottawa, Ontario, on July 9, 2002.

REASONS FOR JUDGMENT BY: LINDEN J.A.

CONCURRED IN BY: DESJARDINS J.A.

DISSENTING REASONS BY: NOËL J.A.

Date: 20020709

Docket: A-391-00

Neutral citation: 2002 FCA 288

CORAM: DESJARDINS J.A.

LINDEN J.A

NOËL J.A

BETWEEN:

ASSESSOR FOR SEABIRD ISLAND INDIAN BAND

Appellant

and

BC TEL

Respondent

REASONS FOR JUDGMENT

LINDEN J.A.

I. INTRODUCTION

[1] What is involved in this appeal is whether a decision of the Federal Court Trial Division, acting under section 24 of the Federal Court Act , R.S.C. 1985, c. F-7, and section 60 of the Seabird Island Indian Assessment By-Law , dated September 25, 1992, rendered prior to the decision of the Supreme Court of Canada in Osoyoos Indian Band v. Oliver (Town) , [2001] S.C.J. No. 82, can stand in the light of the Supreme Court's decision. In my view, it cannot.

[2] This appeal stems from taxation assessments related to a fibre optic cable system, which is owned by Telus Communications ("Telus" or the "respondent", formerly, B.C. Tel) and runs across the Seabird Island Indian Reserve (the "Reserve"). The Assessor for Seabird Island Indian Band (the "appellant") assessed the cable system in 1997 and 1998, pursuant to the bylaws of the Seabird Island Indian Band (the "Band"). The respondent appealed the assessments to the Seabird Island Indian Band Board of Review (the "Board"), arguing that the cable system was not on land, "in the reserve" within the meaning of s. 83(1)(a) of the Indian Act , R.S.C. 1985, c. I-5. The Board held that the land and the cable system were "in the reserve" and, therefore, were properly assessed by the appellant. The respondent appealed to the Federal Court Trial Division. In a decision now reported as B.C. Tel v. Seabird Island Indian Band , [2000] 4 F.C. 350, the Appeal Judge, a Trial Division Judge of this Court, who did not have the benefit of the Supreme Court's recent teachings in Osoyoos, supra , allowed the appeal, holding that the property was not "in the reserve" and, therefore, it was not taxable by the Band.

[3] Whether the fibre optic cable system is "in the reserve" depends mainly on the interpretation of the 1956 Order in Council, P.C. 1956-1659 (the "Order" or "Seabird Order"), whereby the Governor General in Council authorized the province of British Columbia to take land, which now contains the cable system, from the Reserve for road purposes.

II. FACTS

[4] I should say at the outset that many of the facts in this case are remarkably similar to those in Osoyoos, supra . Unfortunately, however, as in Osoyoos , the factual background is somewhat opaque. Perhaps this is attributable to the strange fact that the province of British Columbia is not a party to the litigation. It seems rather curious that the province has left the respondent, a private concern, to advocate what seem to be, in some measure, the interests of the province and its municipal institutions. Nevertheless, the salient facts of this matter will now be outlined.

[5] The Reserve was set aside in 1879 for the Hope, Ohamil, Peters, Popkum, Skawahlook, Union Bar and Yale Bands of Indians in common. It covers the whole of Seabird Island, which spans four thousand five hundred and eleven and one half acres, except perhaps for the one hundred foot wide corridor of land at issue in this appeal, which measures forty-four and fifteen hundredths acres. As indicated, whether that land now forms part of the Reserve is the very question before this Court.

[6] On February 18, 1958 the Committee of the Privy Council formally created the Seabird Island Indian Band by consolidating the existing bands o...

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