Afton Band of Indians and Perro v. Nova Scotia,

• Jurisdiction: Nova Scotia
• Judge: Jones, J.
• Citation: (1978), 29 N.S.R.(2d) 226 (TD)
• Court: Supreme Court of Nova Scotia (Canada)
• Date: 22 February 1978

Afton Indian Band v. N.S. (1978), 29 N.S.R.(2d) 226 (TD);

    45 A.P.R. 226

MLB headnote and full text

Afton Band of Indians and Perro v. Province of Nova Scotia

Indexed As: Afton Band of Indians and Perro v. Nova Scotia

Nova Scotia Supreme Court

Trial Division

Jones, J.

February 22, 1978.

Summary:

This case arose out of the application by an Indian band for a certificate of title to certain land under the Quieting Titles Act. The land was occupied by members of the band for over 100 years in various ways, including church and burial purposes, fishing and cutting trees and for residential purposes. The band applied for a certificate of title with no one opposing the claim.

The Nova Scotia Supreme Court, Trial Division, dismissed the application. The Trial Division held that, although the acts of possession by the band over the years were sufficient to acquire title, the band was not a legal entity and could not bring an application under the Quieting Titles Act and had no power to own land.

Practice - Topic 209

Persons who can sue and be sued - Individuals - Class or representative actions - General principles - The Nova Scotia Supreme Court, Trial Division, held that a representative action was appropriate where all the members of a class have a common interest and a common grievance and the relief claimed is in its nature beneficial to them all - The Trial Division held that the members of an Indian band were entitled to bring a representative action, where a claim to land was made by the band - See paragraphs 14 to 22.

Practice - Topic 264

Persons who can sue and be sued - Legal personality - Indian band - The Nova Scotia Supreme Court, Trial Division, held that an Indian band was not a legal entity and could not bring an action under the Quieting Titles Act, R.S.N.S. 1967, c. 259, for a certificate of title to land - The Trial Division held that an Indian band could not own land, because it was not a legal entity and was not given the power to hold lands under the Indian Act, R.S.C. 1970, c. I-6 - See paragraphs 23 to 25, 29 to 35.

Real Property - Topic 5631

Title - Extinguishment of title - Limitation of actions and adverse possession - Acts constituting possession - The church and burial ground of an Indian band was occupied land for over 100 years - Various members of the band over the years lived on the land and the band in common used the land for fishing, farming, cutting pulp wood, fire wood and Christmas trees, berry picking and religious purposes - The Nova Scotia Supreme Court, Trial Division, held that the acts of possession were sufficient for the acquisition of title to the land - See paragraphs 26 to 29.

Cases Noticed:

Mintuck v. Valley River Band No. 63A et al., [1977] 2 W.W.R. 309, folld. [para. 19].

Smith and Others v. Cardiff Corporation, [1953] 2 All E.R. 1373, appld. [para. 21].

Perry v. Clissold, [1907] A.C. 73, appld. [para. 28].

Nesbitt v. Delamar's Nevada Gold Min. Co., 52 P. 609; 53 P. 178; 24 Nev. 273; 77 Am. S.R. 807, dist. [para. 30].

Gribble et al. v. Call., 123 S.W. 2d 711, dist. [para. 30].

Salem Church of United Brethren v. Munsen, 4 A.L.R.(2d) 117, consd. [para. 32].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 5.09(1) [para. 20].

Indian Act, R.S.C. 1970, c. I-6, sect. 18(1) [para. 23].

Interpretation Act, R.S.N.S. 1967, c. 151, sect. 6(1)(s) [para. 17].

Quieting Titles Act, R.S.N.S. 1967, c. 259, sect. 1(b), sect. 2(1) [para. 15]; sect. 11(1), sect. 12 [para. 16].

Authors and Works Noticed:

Canadian Encyclopedic Digest (Ont.) (2nd Ed.), pp. 20-23 [para. 26].

Halsbury's Laws of England (3rd Ed.), vol. 24, pp. 255 [para. 27]; 260 [para. 25].

Holmestead and Gale, Ontario Judicature Act and Rules of Practice, vol. 1, pp. 706-7 [para. 20].

Williams on Real Property (24th Ed.), pp. 350-351 [para. 24].

Counsel:

John Charles Clifford, Stephen J. Aronson, for the plaintiffs;

Alexander G. MacDonald, for the defendant.

This case was heard on January 26, 1978, at Antigonish, Nova Scotia, before JONES, J., of the Nova Scotia Supreme Court, Trial Division.

On February 22, 1978, JONES, J., delivered the following judgment: