Maracle et al. v. Brant et al., 2014 ONCA 565

• Judge: Sharpe, LaForme and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 28, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 565;(2014), 322 O.A.C. 105 (CA)

Maracle v. Brant (2014), 322 O.A.C. 105 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.049

R. Donald Maracle, Chief of the Mohawks of the Bay of Quinte on behalf of the Tyendinaga Mohawk Council and all members of the Mohawks of the Bay of Quinte (respondents/plaintiffs) v. Shawn Michael Brant, Ronald Leslie Brant, Andrew Clifford Maracle (a.k.a Sir Andrew C. Miracle and Andrew Clifford Miracle) and Ohwistha Capital Corporation (appellant/respondents)

(C57655; 2014 ONCA 565)

Indexed As: Maracle et al. v. Brant et al.

Ontario Court of Appeal

Sharpe, LaForme and Tulloch, JJ.A.

July 30, 2014.

Summary:

At issue was whether the court could order the transfers of Certificates of Possession for properties issued to Andrew Clifford Miracle under the Indian Act in order to satisfy a debt for money which he owed to the Mohawks of the Bay of Quinte.

The Ontario Superior Court, in a decision reported [2013] O.T.C. Uned. 4733, held that it was within the court's power to order Miracle to complete any documents required to transfer his Certificates of Possession and submit them to the Indian Land Registrar within 14 days. However, the court found that it did not have the authority to bind the Minister of Indian Affairs, and thus could not order the transfer of the Certificates. Miracle appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 5687

Provincial courts - Jurisdiction or powers - Over Indians - [See first Indians, Inuit and Métis - Topic 5510 ].

Indians, Inuit and Métis - Topic 5506

Lands - Reserves - Nature of Indian interest in - The Ontario Court of Appeal discussed the character of Indian title in land and reviewed the legislation relating to Indian lands from 1850 to present day - See paragraphs 58 to 78.

Indians, Inuit and Métis - Topic 5510

Lands - Reserves - Certificate of possession - The Mohawks of the Bay of Quinte (MBQ) sought to have Miracle's Certificates of Possession respecting reserve land transferred to the MBQ to satisfy a debt - A motions judge held that he had jurisdiction to order Miracle to execute the transfers of the Certificates of Possession to MBQ, although the Minister's approval of the transfer was ultimately required - Miracle appealed - The Ontario Court of Appeal dismissed the appeal - The court held that the motions judge had the jurisdiction to hear and decide the enforcement motion brought by MBQ and that he correctly interpreted and applied the provisions of the Indian Act - See paragraphs 32 to 42 and 88 to 91.

Indians, Inuit and Métis - Topic 5510

Lands - Reserves - Certificate of possession - The Mohawks of the Bay of Quinte (MBQ) sought to have Miracle's Certificates of Possession respecting reserve land transferred to the MBQ to satisfy a debt - A motions judge, relying on ss. 29 and 89(1) of the Indian Act, ordered Miracle to execute the transfers of the Certificates of Possession to MBQ - Miracle appealed, arguing that the motions judge erred in concluding that Certificates of Possession were either real or personal property of an Indian situated on a reserve pursuant to s. 89(1), and therefore subject to seizure by the Band - He claimed that s. 89(1) was subject to s. 29 which prevented the seizure of his certificates - The Ontario Court of Appeal dismissed the appeal - An analysis of ss. 29 and 89(1) in their statutory context and historical evolution revealed that both provisions could stand together to permit the court to order the execution of the transfer of Miracle's possession of reserve lands, evidenced by the Certificates of Possession, to MBQ - When the two sections were read together and within the context of the entire Act, and having regard to the history and purpose of Indian legislation, the inevitable conclusion was that the two sections worked in concert - See paragraphs 43 to 92.

Cases Noticed:

Derrickson v. Derrickson et al., [1986] 1 S.C.R. 285; 65 N.R. 278; 26 D.L.R.(4th) 175, refd to. [para. 32].

Syrette v. Syrette, [2012] O.A.C. Uned. 564; 2012 ONCA 693, refd to. [para. 32].

Batchewana First Nation of Ojibways v. Corbiere et al. (2000), 198 F.T.R. 36 (T.D.), refd to. [para. 39].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 40].

Seguin v. Pelletier (2001), 25 C.B.R.(4th) 90, refd to. [para. 49].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161; 171 D.L.R.(4th) 385, refd to. [para. 51].

St. Catherine's Milling and Lumber Co. v. R. (1887), 13 S.C.R. 577, affd. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 53].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 53].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 53].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 53].

William v. British Columbia et al. (2014), 459 N.R. 287; 2014 SCC 44, refd to. [para. 53].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

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, refd to. [para. 55].

Johnson v. McIntosh (1823), 8 Wheaton 543; 21 U.S. 240 (U.S.S.C.), refd to. [para. 58].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 29, sect. 89(1) [para. 45].

Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1, generally [para. 53].

Authors and Works Noticed:

Anger and Honsberger: Law of Real Property (3rd Ed.) - see Warner LaForest, A., ed., Anger and Honsberger: Law of Real Property (3rd Ed.).

Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples Volume 1: Looking Forward, Looking Back (1996), vol. 1, pp. 256, 257 [para. 43]; 285 [para. 76].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 51].

Department of the Interior, Indian Branch, Annual Report 1876, generally [para. 68].

Mills, David, Sessional Papers, No. 11 (1877), Report of Minister of the Interior for the year ended 30th June, 1876, p. xiv [para. 68].

United Nations Permanent Forum on Indigenous Issues (11th Sess.), The North American Indigenous Peoples' Caucus Statement (May 8, 2012), generally [para. 62, footnote 3].

Warner LaForest, A., ed., Anger and Honsberger: Law of Real Property (3rd Ed.) (Looseleaf 2013), para. 1-4 [para. 81].

Woodward, Jack, Native Law (Looseleaf) (2014), pp. 278 [para. 49]; 279 [para. 82].

Counsel:

Allan Morrison and Shruthi Raman, for the appellant, Andrew Clifford Maracle;

Roger Horst and Rafal Szymanski, for the respondents, The Mohawks of the Bay of Quinte;

Lynn Marchildon and Leah Garvin, for the Attorney General of Canada, on behalf of the Indian Land Registrar;

Joshua Hunter, for the Attorney General of Ontario, on behalf of the Sheriff of the County of Hastings.

This appeal was heard on March 28, 2014, before Sharpe, LaForme and Tulloch, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by LaForme, J.A., on July 30, 2014.