BC Tel v. Seabird Island Indian Band, (2000) 192 F.T.R. 55 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: February 01, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 192 F.T.R. 55 (TD)

BC Tel v. Seabird Island Indian Band (2000), 192 F.T.R. 55 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. JN.024

BC Tel (appellant) v. Assessor for Seabird Island Indian Band (respondent)

(T-1827-98)

Indexed As: BC Tel v. Seabird Island Indian Band

Federal Court of Canada

Trial Division

Muldoon, J.

May 17, 2000.

Summary:

The Seabird Island Indian Band Board of Review held that BC Tel was subject to taxation regarding a fibre optic cable strung up on telephone poles lying alongside a highway, which cut straight across reserve land. BC Tel appealed. At issue was whether the cable laid on reserve land.

The Federal Court of Canada, Trial Division, allowed the appeal.

Indians, Inuit and Métis - Topic 5423

Lands - Transfer of lands - Status of transferred lands - [See Indians, Inuit and Métis - Topic 5492 ].

Indians, Inuit and Métis - Topic 5423

Lands - Transfer of lands - Status of transferred lands - The Federal Court of Canada, Trial Division, discussed the federal and provincial governments' extinguishment of bands' interests in lands, stating that "[f]or lands taken to make a highway, there can be no ambiguity with regard to the meaning of the word 'land' [old Highway Act, s. 8(1)]. It is the absolute or fee simple interest in the land. No other interpretation can be reasonably sustained, even by interpreting section 5, 8 and 9 [old Highway Act] as narrowly as possible. ... Linked with the other provisions, section 11 makes plain and clear the province's intention to extinguish all interests and to transfer to itself the fee simple in lands taken for highway purposes." - See paragraphs 23 and 24.

Indians, Inuit and Métis - Topic 5423

Lands - Transfer of lands - Status of transferred lands - The Federal Court of Canada, Trial Division, stated "[t]he respondent implied in oral arguments that, when looking at extinguishment under section 35 of the old Indian Act, the intentions of the Sovereign in right of a province were moot and that one needs only to concern oneself with the intentions of the Sovereign qua federal government. A reading of section 35, however, reveals that this is not always the case. ... looking at the intent of, for instance, the Crown qua province will often be the first place to look, because, without a plain and clear intent to extinguish at this level, there is little need to look at the federal government's intent. ... the federal government will often merely acquiesce to whatever intent is shown by a province. It is ... up to the Crown acting in its federal capacity to decide ultimately whether a native right will be extinguished." - See paragraphs 14 to 16.

Indians, Inuit and Métis - Topic 5492

Lands - Taxation by Bands - Assessment - Lands subject to - In 1956, British Columbia took reserve lands (corridor) and built a major highway on it - The Indian Band's Board of Review held that B.C. Tel was subject to taxation regarding a fibre optics cable strung up on telephone poles lying alongside the highway inside the corridor because the cable laid in the reserve - BC Tel appealed - At issue was whether the cable laid in the reserve - The Federal Court of Canada, Trial Division, allowed the appeal, holding that the cable was not on reserve land - It was plain and clear that the British Columbia intended to acquire the fee simple in the corridor lands - Nothing less than a fee simple interest allowed a province to build and maintain a major highway in 1956.

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - Extinguishment - [See third Indians, Inuit and Métis - Topic 5423 ].

Cases Noticed:

Canadian Pacific Ltd. v. Matsqui Indian Band et al. (1999), 243 N.R. 302; 176 D.L.R.(4th) 35 (F.C.A.), refd to. [para. 9].

Opetchesaht Indian Band et al. v. Canada et al., [1997] 2 S.C.R. 119; 211 N.R. 241; 90 B.C.A.C. 1; 147 W.A.C. 1, refd to. [para. 13].

Canadian Pacific Ltd. v. Matsqui Indian Band et al. (1998), 228 N.R. 378; 1 C.N.L.R. 42 (F.C.A.), leave to appeal dismissed (1999), 237 N.R. 400 (S.C.C.), refd to. [para. 13].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 24l; 56 C.C.C.(3d) 263; 70 D.L.R.(4th) 385, refd to. [para. 14].

Osoyoos Indian Band v. Oliver (Town) et al. (1999), 122 B.C.A.C. 220; 200 W.A.C. 220; 172 D.L.R.(4th) 589 (C.A.), refd to. [para. 18].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81; [1990] 3 C.N.L.R. 46; [1990] 5 W.W.R. 97; 71 D.L.R.(4th) 193; 3 T.C.T. 5219, refd to. [para. 18].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 19].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 343; 190 N.R. 89; 130 D.L.R.(4th) 193, refd to. [para. 28].

Semiahmoo Indian Band et al. v. Canada, [1998] 1 F.C. 3; 215 N.R. 241 (F.C.A.), refd to. [para. 30].

Statutes Noticed:

Indian Act, R.S.C. 1952, c. 149, sect. 5, sect. 9 [par. 23]; sect. 8(1) [para. 21]; sect. 11 [para. 24]; sect. 35 [para. 13].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), pp. 163 to 168 [para. 26].

Counsel:

Peter D. Feldberg and Anne Dobson-Mack, for the appellant;

Gary Snarch and Fiona Anderson, for the respondent.

Solicitors of Record:

Lawson Lundell Lawson & McIntosh, Vancouver, British Columbia, for the appellant;

Snarch & Allen, Vancouver, British Columbia, for the respondent.

This appeal was heard in Vancouver, British Columbia, on February 1, 2000, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 17, 2000, in Ottawa, Ontario.