Canadian Pacific Ltd. v. Matsqui Indian Band et al., (1996) 111 F.T.R. 161 (TD)

• Judge: Teitelbaum, J.
• Court: Federal Court (Canada)
• Case Date: January 09, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 111 F.T.R. 161 (TD)

Cdn. Pacific v. Matsqui Indian Band (1996), 111 F.T.R. 161 (TD)

MLB headnote and full text

Canadian Pacific Limited (applicant) v. Matsqui Indian Band and Matsqui Indian Band Council (respondents)

(T-639-92)

Indexed As: Canadian Pacific Ltd. v. Matsqui Indian Band et al.

Federal Court of Canada

Trial Division

Teitelbaum, J.

April 15, 1996.

Summary:

Several British Columbia Indian Bands were authorized to assess and tax real property rights in their reserves and passed by-laws to implement such taxation systems. Under the various bylaws, notices of assessment were sent to Canadian Pacific respecting a strip of land through the reserves over which Canadian Pacific had laid railway tracks. One of the Bands also sent a notice of assessment to Unitel Communications Inc., which had laid fibreoptic cables on the Canadian Pacific land. Canadian Pacific and Unitel Communications Inc. commenced judicial review proceedings to have the assessments set aside. The Bands applied to strike the judicial review proceedings on the ground that the bylaws provided an appeal procedure.

The Federal Court of Canada, Trial Division, in a decision reported 58 F.T.R. 23, allowed the Bands' application to strike, holding that the statutory appeal procedures were an adequate alternative remedy. The court therefore declined to undertake the judicial review. Canadian Pacific and Unitel appealed.

The Federal Court of Appeal, in a decision reported 153 N.R. 307, allowed the appeal, set aside the decision of the Trial Division, and dismissed the Bands' application to strike. The Indian Bands appealed.

The Supreme Court of Canada, Sopinka, L'Heureux-Dubé, Gonthier and Iacobucci, JJ., dissenting, in a decision reported at 177 N.R. 325, dismissed the appeal.

The Federal Court of Canada, Trial Division, allowed the judicial review application. The court found that the railways had been granted a determinable fee simple in the lands and set aside the Indian Band property assessment notices as being outside the taxing jurisdiction of the Indian Bands. Alternatively, the court severed the impugning aspects of the assessment notices which discriminated as between persons.

Contracts - Topic 7430

Interpretation - Ambiguity - Admissibility of extrinsic evidence - Several Indian Bands were authorized to assess and tax real property rights in their reserves and passed bylaws to implement such taxation systems - Under the various bylaws, notices of assessment were sent to railways respecting lands through the reserves over which railway tracks had been laid - The railways argued, inter alia, that the lands did not fall within the Bands' taxing authority under s. 83 of the Indian Act because they were not "lands, in the reserve", the railways having been granted title in fee simple - The railways argued that all documentation except the Letters Patent and Court Certificates of Indefeasible Title were extrinsic evidence and therefore irrelevant - The Federal Court of Canada, Trial Division, admitted orders-in-council and corresponding legislation, official maps, letters and plans, but gave them little weight - See paragraphs 79 to 83.

Indians, Inuit and Métis - Topic 5492

Lands - Taxation by Bands - Assessment - Lands subject to - [See first Real Property - Topic 406 ].

Indians, Inuit and Métis - Topic 5492.1

Lands - Taxation by Bands - Assessment - Powers - Several Indian Bands were authorized to assess and tax real property rights in their reserves and passed bylaws to implement such taxation systems - The Federal Court of Canada, Trial Division, held that Band Councils had the power to discriminate for taxation purposes amongst various types of property, but not between persons - See paragraphs 107, 108 - The court stated that s. 87 of the Indian Act did not exempt Band members from self-taxation - Section 87 applied to outside authorities and not to the Indian Band itself - See paragraphs 109 to 112.

Indians, Inuit and Métis - Topic 5492.2

Lands - Taxation by Bands - Assessment - Persons subject to - [See Indians, Inuit and Métis - Topic 5492.1 ].

Indians, Inuit and Métis - Topic 6221

Government of Indians - Band councils - General - The Federal Court of Canada, Trial Division, rejected an argument that Indian Band Councils were creatures of statute analogous to municipalities - Indian Band Councils were not autonomous creatures of statute - The Minster still had to approve Indian Band bylaws - See paragraphs 100 to 102.

Real Property - Topic 406

Estates in fee simple - General - Determinable interest v. interest on condition - The Federal Court of Canada, Trial Division, held that Letters Patent granted to railways, granted land on reserves specifically for railway purposes and the interest granted was a determinable fee - Title vested with the railways, the lands fell outside the definition of "lands, in the reserve" and therefore the lands did not fall within the taxing authority of Indian Bands under s. 83 of the Indian Act - See paragraphs 84 to 98.

Real Property - Topic 406

Estates in fee simple - General - Determinable interest v. interest on condition - The Federal Court of Canada, Trial Division, stated that "... if the terminating event is integral to the size of the interest, then a determinable fee is created. On the other hand, if the determinable event is not integral to that size, then a conditional interest is created." - See paragraph 94.

Words and Phrases :

Right of way - The Federal Court of Canada, Trial Division, found that "right of way", as it was used in the lexicon of railways, did not mean an easement - See paragraph 84.

Cases Noticed:

Kruger v. Canada, [1985] 3 C.N.L.R. 15; 58 N.R. 241 (F.C.A.), refd to. [para. 30].

Point v. Dibblee Construction Co., [1934] O.R. 142 (H.C.), refd to. [para. 30].

Ottawa (City) v. Eastview (Town), [1941] S.C.R. 448, refd to. [para. 38].

Taxation of University of Manitoba Lands, Re, [1940] 1 D.L.R. 579 (Man. C.A.), refd to. [para. 39].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 47].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [paras. 49, 61].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (1995), 190 N.R. 89 (S.C.C.), refd to. [para. 50].

Apsassin v. Canada - see Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development).

Canada (Attorney General) v. Canadian Pacific Ltd. and Marathon Realty Co., [1986] 1 C.N.L.R. 1 (B.C.S.C.), dist. [para. 54 et seq.].

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, dist. [para. 57 et seq.].

Robinson et al. v. British Columbia Hydro and Power Authority (1991), 84 D.L.R.(4th) 562 (B.C.S.C.), refd to. [paras. 77, 82, 98].

Farah et al. v. Glen Lake Mining Co. et al. (1909), 17 O.L.R. 1 (Ont. C.A.), refd to. [para. 78].

Otineka Development Corp. v. Canada, [1994] 2 C.N.L.R. 83 (Tax C.C.), dist. [para. 100].

Stacey v. R. (1981), 63 C.C.C.(2d) 61 (Que. C.A.), dist. [para. 100].

Rempel Brothers Concrete Ltd. v. Mission (District) (1989), 40 B.C.L.R.(2d) 393 (S.C.), dist. [para. 101].

Canada Cement Co. v. Port Colborne (Town), [1949] O.R. 75 (H.C.), dist. [para. 101].

Statutes Noticed:

Indian Act, R.S.C. 1985 (4th Supp.), c. 17, sect. 2(1)(a) [para. 19]; sect. 83(1), sect. 83(1)(a) [para. 18]; sect. 87 [para. 109].

Authors and Works Noticed:

Dorman/Stoltz, A Statutory History of Railways in Canada 1836-1936, p. xiv [para. 86].

Fridman, G.H.L., The Law of Contract in Canada (2nd Ed. 1986), p. 433 [para. 79].

Maslove, Allan M., and Dittburner, Carolyn, The Financing of Aboriginal Self-Government, Aboriginal Self-Government in Canada: Current Trends and Issues (1994), p. 152 [para. 111].

Megarry, Robert, and Thompson, M.P., Megarry's Manual of the Law of Real Property (1993), pp. 35 [para. 88]; 77 [para. 93].

Counsel:

Norman Mullins, Q.C., and Scott Macfarlane, for the applicant, Canadian Pacific Ltd.;

Patrick Foy and Shelley-Mae Mitchell, for the applicant, Canadian National Railway;

Arthur Pape, for the respondent, Matsqui Indian Band;

Leslie Pinder, Clarine Ostrove and Ann Gilmour, for the respondents, Boothroyd Indian Band and Kamloops Indian Band;

Gary Snarch and Fiona Anderson, for the respondent, Seabird Island Indian Band;

Harry Slade, Robert Freedman and Michael Akey, for the respondent, Nanaimo Indian Band.

Solicitors of Record:

C.P. Legal Department, Vancouver, British Columbia, for the applicant, Canadian Pacific Ltd.;

Ladner Downs, Vancouver, British Columbia, for the applicant, Canadian National Railway;

Pape & Salter, Vancouver, British Columbia, for the respondent, Matsqui Indian Band;

Mandell, Pinder, Vancouver, British Columbia, for the respondents, Boothroyd Indian Band and Kamloops Indian Band.

This application was heard on January 9, 1996, at Vancouver, British Columbia, by Teitelbaum, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on April 15, 1996.