Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119 (1997)

Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119

The Opetchesaht, an Indian Band, and

Danny Watts, suing on his own behalf and on behalf of all the members of the

Opetchesaht Appellants v.

Her Majesty The Queen in right of Canada and British Columbia Hydro and Power Authority Respondents and

Union of British Columbia Indian Chiefs Intervener and

B.C. Tel, B.C. Gas Utility Ltd. and the Greater Vancouver

Sewerage and Drainage District Interveners

Indexed as: Opetchesaht Indian Band v. Canada

File No.: 24161.

1996: October 28; 1997: May 22.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Indians -- Reserves -- Permits to use Indian reserve lands -- Right-of-way -- Validity of permit granting public utility right-of-way for electric power transmission lines across Indian reserve -- Right-of-way granted for such period of time as required for purpose of transmission line -- Nature and duration of rights granted under permit -- Whether rights granted within scope of s. 28(2) of Indian Act -- Whether permit valid -- Indian Act, R.S.C. 1952, c. 149, ss. 28(2), 37.

In 1959, the Crown, with the consent of the Opetchesaht band council, granted Hydro a right-of-way for an electric power transmission line across the band's reserve "for such period of time as the . . . right-of-way is required for the purpose of" a transmission line. The permit issued to Hydro, under s. 28(2) of the Indian Act, gave Hydro "the right to construct, operate and maintain an electric power transmission line", and the exclusive right to occupy the portions of the surface of the reserve where poles were erected, and that part of the air space where the wires were strung. The band retained the right to use and occupy the balance of the "right-of-way" area subject to specified restrictions. In 1992, the band applied to the Supreme Court of British Columbia under Rule 18A of the B.C. Rules of Court for a declaration that s. 28(2) did not authorize the grant of a right-of-way for electric power transmission lines over the reserve for an indefinite period of time. That section provides that "The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve." The court allowed the application but the Court of Appeal set aside the judgment, concluding that s. 28(2) allowed grants of interests for periods having no predetermined termination date.

Held (Cory and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Iacobucci and Major JJ.: The permit granted to Hydro under s. 28(2) of the Indian Act is valid. The interests conveyed by the permit are analogous to an easement over the band's reserve lands, subject to termination when there is no longer a requirement for the power transmission right-of-way. Hydro's rights in the land are not exclusive. The band shares use of the right-of-way but they cannot erect buildings on it or interfere with Hydro's easement. While the statutory easement was granted for an indeterminate period, this is a period whose end is readily ascertainable. The easement will terminate when it is no longer required for a transmission line. Since the word "required" is used in the permit, the expiry of the permit is not solely dependant on Hydro's will. Whether the line is required is a justiciable issue.

In view of the overall context of s. 28(2), a period within the meaning of that section can be measured either by dates or by events. The end point of a permit thus need not be defined in terms of a specific calendar date as long as it is ascertainable and does not constitute a grant in perpetuity. Here, the end point of the permit arises when the easement is no longer required for power transmission. Because the duration of the easement is a bounded and ascertainable event, that duration is a period.

As a general rule under s. 37 of the Indian Act, surrenders are required not only when the Indian band is releasing all its interest in the reserve forever, but also whene...

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