Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), (1995) 190 N.R. 89 (SCC)

JudgeGonthier, Cory, McLachlin and Major, JJ.
CourtSupreme Court (Canada)
Case DateDecember 14, 1995
JurisdictionCanada (Federal)
Citations(1995), 190 N.R. 89 (SCC);102 FTR 160;1995 CanLII 50 (SCC);190 NR 89;[1995] 4 SCR 344;[1995] SCJ No 99 (QL);130 DLR (4th) 193;[1996] 2 CNLR 25

Blueberry River Indian Band v. Can. (1995), 190 N.R. 89 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Joseph Apsassin, Chief of the Blueberry River Indian Band and Jerry Attachie, Chief of the Doig River Indian Band, on behalf of themselves and all other members of the Doig River Indian Band, the Blueberry River Indian Band and all present descendants of the Beaver Band of Indians (appellants) v. Her Majesty The Queen in right of Canada as represented by the Department of Indian Affairs and Northern Development and the Director of the Veterans Land Act (respondent) and the Musqueam Nation and Ermineskin Tribal Council, Chief Abel Bosum et al., Chief Terry Buffalo et al. and the Samson Indian Band and Nation and the Assembly of First Nations (interveners)

(23516)

Indexed As: Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development)

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka,

Gonthier, Cory, McLachlin and Major, JJ.

December 14, 1995.

Summary:

In 1916 reserve lands were set aside in accordance with a treaty between the Crown and the predecessor of the two plaintiff Indian Bands (I.R. 172). In 1940, the pre­decessor Band surrendered the mineral rights under the reserve to the Department of Indian Affairs (DIA) for leasing purposes. In 1945, there was a further surrender of the land to the DIA in trust for sale or lease. In March 1948, the DIA transferred the land to the Veterans Land Act Director, for $70,000. The Director subsequently disposed of parts of the reserve land, including the mineral rights, to individual veterans and others. In the 1970's oil and gas were discovered with the money therefrom going to the veterans who purchased the land. In September 1978, the plaintiff Indian Bands commenced an action against the DIA and the Veterans Lands Act Director raising numerous argu­ments, including that the Crown breached fiduciary duties in its dealings with I.R. 172.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 14 F.T.R. 161, rejected all the arguments, except that the DIA breached a fiduciary duty to the Indians in transferring the reserve land to the Direc­tor for less than the appraised value. The court held, however, that the claim was statute barred by the 30 year limitation period in s. 8 of the British Columbia Limi­tations Act. The court therefore dismissed the Indian Bands' action. The Indian Bands appealed and the Crown cross-appealed.

The Federal Court of Appeal, in a decision reported 151 N.R. 241, dismissed the appeal and cross-appeal. Isaac, C.J., dissenting, would have allowed the appeal and dis­missed the cross-appeal. The Indian Bands appealed. The Crown cross-appealed on the issue of sale undervalue.

The Supreme Court of Canada allowed the appeal and set aside the judgments below. The Bands were entitled to damages for breach of fiduciary duty respecting mineral rights conveyed by agreement for sale by the Crown after August 9, 1949. The court remitted the matter to the Federal Court of Canada, Trial Division, for assessment of damages. The court also allowed the cross-appeal, holding that there was no breach of duty respecting the alleged sale for under­value.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - In 1945, an Indian Band sur­rendered reserve land to the Department of Indian Affairs (DIA) - In 1948, the DIA transferred the land to the Veterans Land Act Director (VLAD) - In 1978, the Band's successors commenced an action, alleging breaches of fiduciary duties by the Crown - The Crown raised the 30 year limitation period (British Columbia Limi­tation Act, s. 8) - The Supreme Court of Canada held that there was no breach of fiduciary duty respecting the sale of the surface rights by the Crown - The court stated however, that if there had been a breach of fiduciary duty respecting the sale of surface rights, it would have been stat­ute barred, because the sale to the VLAD took place in March 1948, 30 years and six months prior to the filing of the Bands' claim in September 1978 - See paragraphs 1, 20 to 24, 108.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - In 1945, an Indian Band sur­rendered reserve land to the Department of Indian Affairs (DIA) - In 1948, the DIA transferred the land to the Veterans Land Act Director (VLAD) - In 1978, the Band's successors commenced an action, alleging breaches of fiduciary duties - The Crown raised the 30 year limitation period (British Columbia Limitation Act, s. 8) - The Supreme Court of Canada held that the DIA breached its fiduciary duty in 1948 by inadvertently transferring mineral rights to the VLAD - The Crown also committed a second breach of fiduciary duty on August 9, 1949, when upon learn­ing of the error, it failed to meet its ongoing obligation to revoke erroneous transfers (Indian Act, 1927, s. 64) - The Bands' claim was filed on September 18, 1978, therefore, any losses after August 9, 1949, were permissible under the s. 8 general limitation - See paragraphs 1, 20 to 24, 106 to 122.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - In 1945, an Indian Band sur­rendered reserve land to the Department of Indian Affairs (DIA) - In 1948, the DIA transferred the land to the Veterans Land Act Director (VLAD) - In 1978, the Band's successors commenced an action, alleging breaches of fiduciary duties - The Crown raised the 30 year limitation period (British Columbia Limitation Act, s. 8) - The Supreme Court of Canada held that there was a breach of fiduciary duty by the Crown in August 1949 and, therefore, certain of the claims survived the 30 year limitation period - The claims which survived were not barred by the six year limitation period in s. 3(4) of the Limita­tion Act because of the discoverability rules in s. 6(3) of the Act - Here the Band became aware of the true facts only in 1977, placing the writ well within the applicable limitation period of six years - See paragraphs 1, 20 to 24, 120, 121.

Indians, Inuit and Métis - Topic 5402

Lands - Disposition of Indian lands - In 1945, an Indian Band surrendered reserve land to the Department of Indian Affairs (DIA) - In 1948, the DIA transferred the land to the Veterans Land Act Director for $70,000 - The Band's successors argued that the Crown breached its fiduciary duties respecting the surface rights follow­ing the surrender by failing to consider leasing rather than selling the land, selling the land undervalue, and not restoring the reserve to the predecessor Band after surrender in view of the Band's im­poverished situation - The Supreme Court of Canada held that the Bands failed to establish a breach of fiduciary duty with respect to the sale of the surface rights - See paragraphs 1, 24, 45 to 60.

Indians, Inuit and Métis - Topic 5402

Lands - Disposition of Indian lands - In 1940, an Indian Band surrendered reserve mineral rights to the Department of Indian Affairs (DIA) for leasing - In 1945 the reserve land (I.R. 172) was surrendered to the DIA "in trust to sell or lease" - In 1948 the DIA transferred both the surface and mineral rights to the Veterans Land Act Director (VLAD) - The Supreme Court of Canada per Gonthier, La Forest, L'Heureux-Dubé and Sopinka, JJ., held that by taking on the obligations of a trustee respecting I.R. 172, the DIA was under a fiduciary duty to deal with the land (both mineral and surface rights) in the best interests of the Band members - When the DIA transferred the land to the VLAD, the DIA was under a fiduciary duty to reserve the mineral rights for the Band and breached its fiduciary duty by not doing so - See paragraphs 16 to 19.

Indians, Inuit and Métis - Topic 5402

Lands - Disposition of Indian lands - In 1945, an Indian Band surrendered reserve land to the Department of Indian Affairs (DIA) - In 1948, the DIA transferred the land to the Veterans Land Act Director for $70,000 - The trial judge held that the Crown breached its fiduciary duty to the Indians in transferring the land to the Director for less than fair value - The Supreme Court of Canada held that the trial judge erred in concluding that the Crown breached its fiduciary duty by selling the land for $70,000 - The court noted that the Crown adduced evidence showing that the sale price was within a range established by the appraisals - This raised a prima facie case that the sale price was reasonable - The onus then shifted to the Band to show that the price was un­reasonable, which it did not - See para­graphs 1, 24, 52 to 56.

Indians, Inuit and Métis - Topic 5465

Lands - Surrender - Validity of - In 1940, an Indian Band surrendered reserve mineral rights to the Department of Indian Affairs (DIA) "in trust for lease" - In 1945 the land was surrendered to the DIA "in trust to sell or lease" - An issue subsequently arose respecting the effect of the 1945 surrender on the 1940 surrender of mineral rights - The Supreme Court of Canada, per Gonthier, La Forest, L'Heureux-Dubé and Sopinka, JJ., held that both the surface and mineral rights in I.R. 172 were surrendered as part of the 1945 agreement to the Crown in trust "to sell or lease" - The court held that prin­ciples of common law property were not determinative, rather, the legal character of the 1945 surrender and its impact on the 1940 surrender were determined by reference to the Band's intention - See paragraphs 2 to 15.

Indians, Inuit and Métis - Topic 5465

Lands - Surrender - Validity of - Two Indian Bands challenged the validity of a 1945 surrender of reserve land, arguing that the Crown was under a fiduciary obligation prior to the surrender to ensure that the Indians did not enter into the surrender improvidently - The Supreme Court of Canada, per McLachlin, Cory and Major, JJ., opined that absent exploitation, the Indian Act did not impose a duty on the Crown to block the surrender of the reserve, nor did the circumstances of the case give rise to a fiduciary duty on the Crown prior to the surrender of the reserve - See paragraphs 32 to 40.

Indians, Inuit and Métis - Topic 5465

Lands - Surrender - Validity of - The Indian Act (1927) provided that where an Indian Band assented to a land surrender, this fact "shall" be certified on oath by certain persons (s. 51(3)) and submitted to the Governor-in-Council for acceptance or refusal (s. 51(4)) - The Supreme Court of Canada, per McLachlin, Cory and Major, JJ., opined that the word "shall" in s. 51 was not mandatory - See paragraphs 41 to 43.

Indians, Inuit and Métis - Topic 5466

Lands - Surrender - Effect of - [See first Indians, Inuit and Métis - Topic 5465 ].

Indians, Inuit and Métis - Topic 5473

Lands - Surrender - Mineral rights - [See second Indians, Inuit and Métis - Topic 5402 and first Indians, Inuit and Métis - Topic 5465 ].

Indians, Inuit and Métis - Topic 5475

Lands - Surrender - Duties of Crown re - [See first and second Indians, Inuit and Métis - Topic 5402 and first and second Indians, Inuit and Métis - Topic 5465 ].

Indians, Inuit and Métis - Topic 5501

Lands - Reserves - General - The Supreme Court of Canada, per Gonthier, La Forest, L'Heureux-Dubé and Sopinka, JJ., stated that "... when determining the legal effect of dealings between aboriginal peoples and the Crown relating to reserve lands, the sui generis nature of aboriginal title requires courts to go beyond the usual restrictions imposed by the common law, in order to give effect to the true purpose of the dealings" - See paragraph 7.

Indians, Inuit and Métis - Topic 5503

Lands - Reserves - Duties of Crown re - [See all Indians, Inuit and Métis - Topic 5402 and first and second Indians, Inuit and Métis - Topic 5465 ].

Limitation of Actions - Topic 1904

Actions - Ultimate limitation period - [See all three Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 1905

Actions - Breach of fiduciary duty - [See all three Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - [See third Indians, Inuit and Métis - Topic 802 ].

Statutes - Topic 5164

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Directory acts - What constitute - [See third Indians, Inuit and Métis - Topic 5465 ].

Cases Noticed:

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; [1985] 1 C.N.L.R. 120, refd to. [paras. 13, 33].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84; 42 D.L.R.(4th) 81, refd to. [para. 38].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449; [1992] 4 W.W.R. 577, refd to. [para. 38].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1; [1994] 9 W.W.R. 609; 22 C.C.L.T.(2d) 1, refd to. [para. 38].

Montreal Street Railway Co. v. Nor­mandin, [1917] A.C. 170 (P.C.), refd to. [para. 42].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 42].

St. Ann's Island Shooting and Fishing Club Ltd. v. R., [1950] S.C.R. 211, refd to. [para. 67].

Berkheiser v. Berkheiser, [1957] S.C.R. 387, refd to. [para. 71].

British Columbia (Attorney General) v. Canada (Attorney General) (1889), 14 App. Cas. 295 (P.C.), refd to. [para. 93].

Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302; 11 N.R. 487, refd to. [para. 104].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 121].

Statutes Noticed:

Disposal of Petroleum and Natural Gas Rights on Indian Reserves, Regulations Re - see Indian Act Regulations (Can.).

Dominion Lands Act, R.S.C. 1927, c. 113, generally [para. 100].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 38(1) [para. 107].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 39(1) [para. 107].

Indian Act, R.S.C. 1927, c. 98, sect. 2(e), sect. 2(j) [paras. 2, 67]; sect. 50 [para. 67]; sect. 51 [paras. 14, 67]; sect. 51(1), sect. 51(3), sect. 51(4) [para. 41]; sect. 53 [para. 67]; sect. 54 [paras. 2, 46, 61, 67]; sect. 64 [paras. 20, 112]; sect. 93(3) [para. 49].

Indian Act, An Act to Amend, S.C. 1938, c. 31, sect. 1 [para. 73].

Indian Act Regulations (Can.), Disposal of Petroleum and Gas on the Indian Reserves in the provinces of Alberta and Saskatchewan and the Northwest Terri­tories (May 17, 1910), Order-in-Council P.C. 987, generally [para. 73].

Indian Act Regulations (Can.), Disposal of Petroleum and Natural Gas Rights on Indian Reserves (1938), 72 Can. Gaz. 725, sect. 1(a) [para. 74].

Land Act, R.S.B.C. 1924, c. 131, sect. 119, sect. 120 [para. 100].

Limitation Act, R.S.B.C. 1979, c. 236, sect. 3(2), sect. 3(4) [para. 107]; sect. 6(3)(e), sect. 6(3)(i), sect. 6(3)(j) [para. 121]; sect. 8 [para. 107].

Soldier Settlement Act, S.C. 1919, c. 71, generally [para. 100].

Veterans' Land Act, S.C. 1942, c. 33, generally [para. 27].

Authors and Works Noticed:

Chambers English Dictionary (7th Ed. 1988) [para. 68 Eng.].

Concise Oxford Dictionary (8th Ed. 1990) [para. 68 Eng.].

Nouveau Petit Robert, Le (1994) [para. 68 Fr.].

Oosterhoff, A.H., Text, Cases and Com­mentary on the Law of Trusts (4th 1992), generally [para. 53].

Petit Larousse illustré, Le (1994) [para. 68 Fr.].

Shepherd, J.C., The Law of Fiduciaries (1981), pp. 157, 158, 159 [para. 53].

Counsel:

Thomas R. Berger, Q.C., Leslie J. Pinder, Arthur Pape and Gary A. Nelson, for the appellants;

I.G. Whitehall, Q.C., John R. Haig, Q.C., and Mitchell R. Taylor, for the respon­dent;

Marvin R.V. Storrow, Q.C., and Maria Morellato, for the interveners, the Mus­queam Indian Nation and Ermineskin Tribal Council;

James O'Reilly, Edward H. Molstad, Q.C., and Chantal Chatelain, for the interveners, Chief Abel Bosum et al.;

James O'Reilly, Edward H. Molstad, Q.C., and L. Douglas Rae, for the interveners, Chief Terry Buffalo et al.;

Peter K. Doody and John E.S. Briggs, for the intervener, the Assembly of First Nations.

Solicitors of Record:

Mandell, Pinder, Vancouver, British Columbia, for the appellants;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent;

Blake, Cassells & Graydon, Vancouver, British Columbia, for the interveners, the Musqueam Indian Nation and Ermineskin Tribal Council;

O'Reilly & Associés, Montreal, Quebec, for the interveners, Chief Abel Bosum et al. and Chief Terry Buffalo et al.;

Scott & Aylen, Ottawa, Ontario, for the intervener, the Assembly of First Nations.

This case was heard on June 13 and 14, 1995, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Major, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered in both official languages on December 14, 1995, including the following opinions:

Gonthier, J. (La Forest, L'Heureux-Dubé and Sopinka, JJ., concurring) - see paragraphs 1 to 24;

McLachlin, J. (Cory and Major, JJ., concurring) - see paragraphs 25 to 123.

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