Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746, 2001 SCC 85, 2001 SCC 85 (2001)
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Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746, 2001 SCC 85, 2001 SCC 85 (2001)
Osoyoos Indian Band v. Oliver (Town),
[2001] 3 S.C.R. 746, 2001 SCC 85Osoyoos Indian Band Appellant v.The Town of Oliver and Her Majesty The Queen in Right of the Province of British Columbia Respondents andThe Attorney General of Canada and theSquamish Indian Band IntervenersIndexed as: Osoyoos Indian Band v. Oliver (Town)Neutral citation: 2001 SCC 85.File No.: 27408.2001: June 12; 2001: December 7.Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.on appeal from the court of appeal for british columbiaIndians -- Reserves -- Lands taken for public purposes -- Federal order in council granting province interest in lands occupied by irrigation canal crossing Indian reserve -- Whether lands taken by province are still "in the reserve" such that they are assessable and taxable pursuant to Band by-laws -- Indian Act, R.S.C. 1952, c. 149, s. 35 -- Indian Act, R.S.C. 1985, c. I-5, s. 83(1)(a) -- Water Act, R.S.B.C. 1948, c. 361, s. 21.In 1925 an irrigation canal was constructed on a strip of land that bisects the appellant Indian Band's reserve. In 1957 a federal Order in Council was enacted pursuant to s. 35 of the Indian Act in which the Governor in Council consented "to the taking of the said lands" by the province. In 1961 the canal lands were registered by way of certificate of indefeasible title in the name of the province. The respondent Town currently operates and maintains the canal. In 1994, the Band Council enacted property assessment and property taxation by-laws pursuant to s. 83 of the Indian Act applicable to land in the reserve. In 1995, the Band Council passed a resolution directing the provincial Assessment Authority to assess the canal lands and include them on the Band's 1996 assessment roll. The Town objected to the assessment of the canal lands by the Band. The Band Board of Review stated a case for the British Columbia Supreme Court asking: (1) whether lands taken pursuant to s. 35 of the Indian Act are "land or interests in land" in a reserve within the meaning of s. 83(1)(a) such that those lands are assessable and taxable pursuant to Band by-laws; and (2) if s. 35 of the Indian Act authorizes the removal of lands from reserve status, whether the federal Order in Council removed the lands from reserve status so that they are not assessable and taxable by the Band. The chambers judge answered "No" to the first question and "Yes" to the second one, concluding that the land at issue was outside the reserve and the Band's jurisdiction to tax under s. 83(1)(a). The Court of Appeal upheld that judgment.Held (L'Heureux-Dubé, Gonthier, Major and Bastarache JJ. dissenting): The appeal should be allowed.Per McLachlin C.J. and Iacobucci, Binnie, Arbour and LeBel JJ. : As a general matter the Court should be cautious in taking away interests in land in the absence of a complete evidentiary record. This is especially true when the interest at stake is the aboriginal interest in reserve land. As this appeal comes by way of a stated case, however, the rights of the parties must be determined on the evidence at hand, even though the evidentiary record is demonstrably incomplete in this case.Three implications follow from the sui generis nature of the aboriginal interest in reserve lands. First, it is clear that traditional principles of the common law relating to property may not be helpful in the context of aboriginal interests in land. Second, reserve land does not fit neatly within the traditional rationale that underlies the process of compulsory takings in exchange for compensation in the amount of the market value of the land plus expenses. Third, the aboriginal interest in land will generally have an important cultural component that reflects the relationship between an aboriginal community and the land and the inherent and unique value in the land itself which is enjoyed by the community. Because of these implications and the fact that the Crown owes a fiduciary duty to the band, it follows that a clear and plain intention must be present in order to conclude that land has been removed from a reserve.Section 83(1)(a) of the Indian Act provides Indian bands with the jurisdiction to impose tax on a very broad range of interests in land, and should be given a broad reading. Band councils have the power to tax any interest or use of reserve lands in order to defray their costs as the government of that land. It follows that, unless the entire interest of a band is removed, land remains in the reserve for the purposes of s. 83(1)(a) and both easements and rights to use or occupy land held by non-band members are subject to the taxation jurisdiction.The fiduciary duty of the Crown is not restricted to instances of surrender. Section 35 clearly permits the Governor in Council to allow the use of reserve land for public purposes. Once it has been determined that an expropriation of Indian lands is in the public interest, ho...See the full content of this document
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