Canadian Pacific Ltd. v. Matsqui Indian Band et al., (1998) 228 N.R. 378 (FCA)

• Judge: Stone, Denault and Décary, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: July 02, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 228 N.R. 378 (FCA)

Cdn. Pacific v. Matsqui Indian Band (1998), 228 N.R. 378 (FCA)

MLB headnote and full text

Temp. Cite: [1998] N.R. TBEd. JL.029

Matsqui Indian Band and Matsqui Indian Band Council (appellants/respondents) v. Canadian National Railway Company (respondent/applicant) and Canadian Pacific Limited and AT&T Long Distance Services Company and Indian Taxation Advisory Board and Little Shuswap Indian Band and Little Shuswap Indian Band Council (Intervenors)

(A-391-96)

Kamloops Indian Band and Kamloops Indian Band Council (appellants/respondents) v. Canadian National Railway Company (respondent/applicant) and Canadian Pacific Limited and AT&T Long Distance Services Company and Indian Taxation Advisory Board and Little Shuswap Indian Band and Little Shuswap Indian Band Council (Intervenors)

(A-404-96)

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

Federal Court of Appeal

Stone, Denault and Décary, JJ.A.

July 2, 1998.

Summary:

Several British Columbia 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 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 at 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 at 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, in a decision reported at 111 F.T.R. 161, 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. The Indian Bands appealed. Two of the appeals were heard together, three awaited the out­come of the first two appeals and a sixth was discontinued.

The Federal Court of Appeal dismissed the appeals, holding that the lands were no longer part of the reserve and, thus, they were outside the taxing jurisdiction of the Bands.

Contracts - Topic 7430

Interpretation - Ambiguity - Admissibility of extrinsic evidence - CN argued that it had been granted title in fee simple to certain lands through reserves - The Federal Court of Appeal, in determining CN's interest, gave little weight to Certifi­cates of Indefeasible Title which all described CN as being "absolutely and indefeasibly entitled in fee simple" because they were issued after the fact by pro­vincial authorities - However, the court did give weight to the Letters Patent issued, despite the Bands' submission that Letters Patent could only mirror or reflect the terms of Orders-in-Council and could not add to them - The Letters Patent contained some details which completed the Orders-in-Council and reflected the discussions that went on and the agreements which were reached between the Crown, CN and the Indian Bands - See paragraphs 28 to 29.

Indians, Inuit and Métis - Topic 5463

Lands - Surrender of lands - Status of surrendered lands - [See Contracts - Topic 7430 ].

Indians, Inuit and Métis - Topic 5463

Lands - Surrender of lands - Status of surrendered lands - Indian Bands assessed real property taxes against CN respecting lands through reserves over which railway tracks had been laid - CN argued, inter alia, that it had been granted title in fee simple to the lands - Thus, 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 Federal Court of Appeal refused to apply the common law concepts of fee simple and easement, stating that it inevitably led to technical and endless discussions - Rather, the court was interested "... in finding 'the purpose of the dealing' ... in whatever way that intent might have been eventually expressed" - See paragraph 24.

Indians, Inuit and Métis - Topic 5463

Lands - Surrender of lands - Status of surrendered lands - Indian Bands assessed real property taxes against CN respecting lands through reserves over which railway tracks had been laid - The Federal Court of Appeal held 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 Bands knew, understood and accepted that they would no longer have "the use and benefit" of the lands surrendered or taken away for the construction of the railway, that these lands were no longer part of their reserve, that for all practical purposes they could no longer effectively exercise their local gov­ernment powers over these lands and that they could no longer make bylaws, in­cluding taxation bylaws, applicable to these lands.

Indians, Inuit and Métis - Topic 5492

Lands - Taxation by Bands - Assessment - Lands subject to - [See third Indians, Inuit and Métis - Topic 5463 ].

Statutes - Topic 1604

Interpretation - Extrinsic aids - General - History - [See Contracts - Topic 7430 ].

Statutes - Topic 5515

Operation and effect - Delegated legis­lation - Orders-in-Council - Interpretation -[See Contracts - Topic 7430 ].

Words and Phrases

In the reserve - The Federal Court of Appeal discussed the meaning of the phrase "in the reserve" as found in s. 83(1)(a) of the Indian Act, R.S.C. 1985 (4th Supp.), c. 17.

Cases Noticed:

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Develop­ment), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 16].

St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657; 213 N.R. 290; 92 B.C.A.C. 161; 150 W.A.C. 161, refd to. [para. 19].

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. 25].

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. 25].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; 70 D.L.R.(4th) 385, refd to. [para. 27].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 34].

Statutes Noticed:

Indian Act, R.S.C. 1985 (4th Supp.), c. 17, sect. 2(1), sect. 35, sect. 37, sect. 38, sect. 81(1), sect. 83(1)(a) [para. 5].

Authors and Works Noticed:

Canada, Minister of Indian Affairs and Northern Development, Proposed Amendments to the Indian Act Con­cerning Conditionally Surrendered land and Band Taxation Powers (1987), gen­erally [para. 38].

Counsel:

Leslie Pinder and Anne Gilmour, for the appellants, Kamloops Indian Band and Kamloops Indian Band Council, and for the intervenor, Indian Taxation Advisory Board;

Arthur Pape, for the appellants, Matsqui Indian Band and Matsqui Indian Band Council;

Patrick G. Foy, for the respondent, Canadian National Railway;

J.E. Goudge and M.P. Grace, for the intervenor, Canadian Pacific Ltd.;

Art Grant, for the intervenor, Little Shuswap Indian Band;

W.A. Scott Macfarlane, for the intervenor, AT&T.

Solicitors of Record:

Mandell Pinder, Vancouver, British Columbia, for the appellants, Kamloops Indian Band and Kamloops Indian Band Council, and for the intervenor, Indian Taxation Advisory Board;

Pape & Salter, Vancouver, British Columbia, for the appellants, Matsqui Indian Band and Matsqui Indian Band Council;

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

Lawson Lundell Lawson & McIntosh, Vancouver, British Columbia, for the intervenors, Canadian Pacific Ltd. and AT&T;

Grant Kovacs Norell, Vancouver, British Columbia, for the intervenor, Little Shuswap Indian Band and Little Shuswap Indian Band Council.

These appeals were heard on May 26 to 28, 1998, at Vancouver, British Columbia, by Stone, Denault and Décary, JJ.A., of the Federal Court of Appeal. Décary, J.A., delivered the decision of the court on July 2, 1998.