Mathias et al. v. Canada et al., (2001) 207 F.T.R. 1 (TD)

JudgeSimpson, J.
CourtFederal Court (Canada)
Case DateApril 02, 2001
JurisdictionCanada (Federal)
Citations(2001), 207 F.T.R. 1 (TD)

Mathias v. Can. (2001), 207 F.T.R. 1 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. FE.042

Joe Mathias, on his own behalf and on behalf of all other members of the Squamish Indian Band and the Squamish Indian Band (plaintiffs and defendants by counterclaim) v. Her Majesty the Queen (defendant) and Chief Wendy Grant, Joseph R. Becker, Delbert Guerin, Mary Charles, Johnna Crawford, A. George Guerin, Marilyn Point, N. Rose Point, Susan A. Point, Leona M. Sparrow, the Elected Councillors of the Musqueam Indian Band suing on their own behalf and on behalf of all other members of the Musqueam Indian Band (defendants and plaintiffs by counterclaim) and Leonard George as Chief, Matthew Thomas, Carleen Thomas and Gerald D. Thomas as Councillors on their own behalf and on behalf of the members of the Burrard Indian Band, and the said Burrard Indian Band (defendants and plaintiffs by counterclaim)

(T-1636-81)

Leonard George as Chief, Matthew Thomas, Carleen Thomas and Gerald D. Thomas as Councillors on their own behalf and on behalf of the members of the Burrard Indian Band, and the said Burrard Indian Band (plaintiffs) v. Her Majesty the Queen in Right of Canada and Chief Joe Mathias, Chief Philip Joe, Chief Norman Joseph, Sam George, Gwen Harry, Frank Rivers, Gilbert Jacob, Richard Williams, Leslie Harry, Linda George, Byron Joseph, Dennis Joseph, Ann Whonnock, Wilma Guss, James Nahanee, for themselves, and on behalf of all other members of the Squamish Nation or Tribe, and the Squamish Indian Band (defendants)

(T-956-93)

Chief Wendy Grant, Joseph R. Becker, Delbert Guerin, Mary Charles, Johnna Crawford, A. George Guerin, Marilyn Point, N. Rose Point, Susan A. Point, Leona M. Sparrow, the Elected Councillors of the Musqueam Indian Band suing on their own behalf and on behalf of all other members of the Musqueam Indian Band and the said Musqueam Indian Band (plaintiffs) v. Her Majesty the Queen in Right of Canada and Chief Joe Mathias, Chief Philip Joe, Chief Norman Joseph, Sam George, Gwen Harry, Frank Rivers, Gilbert Jacob, Richard

Williams, Leslie Harry, Linda George, Byron Joseph, Dennis Joseph, Ann Whonnock, Wilma Guss, James Nahanee for themselves and on behalf of all other membership of the Squamish Nation or Tribe, and the Squamish Indian Band (defendants)

(T-3150-92)

(2001 FCT 480)

Indexed As: Mathias et al. v. Canada et al.

Federal Court of Canada

Trial Division

Simpson, J.

April 2, 2001.

Summary:

This case concerned competing interests in the False Creek Indian Reserve, originally created in 1869, in the City of Vancouver, British Columbia. The plaintiff Indians and Indian bands alleged that the federal government breached its fiduciary duty to them by, inter alia, improperly allocating the reserve and mismanaging the reserve.

The Federal Court of Canada, Trial Division, dismissed the claims on the merits, finding that there were no breaches of fiduciary duties or mismanagement of the reserve. The court held, in the alternative, that the claims had been statute-barred for many years.

Editor's Note: This trial was held in two phases. At the request of the parties, the court released reasons for Phase I before the Phase II reasons and before judgment. The reasons for Phase I were included as part of the final reasons for the entire case as reported below. (An electronic version of the Phase I reasons may be found at [2000] F.T.R. Uned. 936).

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Burrard Indian Band claimed that the Crown breached its fiduciary duties by amalgamating the administration of certain Indian reserves in British Columbia in 1923 which had been allocated to the Squamish tribe (incl. the False Creek Reserve) - The Burrard Band had sought an exemption from amalgamation and the Crown agreed - The Federal Court of Canada, Trial Division, held that at the time of amalgamation, the Burrard Band had no interest in the reserves - The court, however, discussed in the alternative the issue of fiduciary duties on amalgamation - The court opined that the Crown did not owe either the Squamish or the Burrard Indians a private law fiduciary duty or a sui generis fiduciary duty in amalgamation - The court stated that in responding to both a request from the Squamish people for amalgamation and to a request from the Burrard people for autonomy, the Crown had a statutory duty not only to balance and protect the interests of both bands, but also a duty to promote and respect their informed choices and their autonomy - See paragraphs 699 to 703.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Federal Court of Canada, Trial Division, discussed whether the Crown owed a fiduciary duty to an Indian band for administration of a reserve prior to surrender - The court concluded that "there is no general all-encompassing private law fiduciary duty or general sui generis fiduciary duty which automatically arises under or is automatically superimposed on the Indian Act; there is the possibility that a sui generis fiduciary duty could be superimposed on the actions of the Crown during reserve administration, but only in special circumstances; there is no possibility that a private law fiduciary duty could arise in connection with the administration of reserves, even in special circumstances. In my opinion, any fiduciary duty found to be owing by the Crown would always be sui generis." - See paragraph 527.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The False Creek Reserve was first created in 1869 in British Columbia, when colonial authorities set aside 37 acres of land for "the use of the Indians respectively residing thereon" - Later, in 1877, six years after British Columbia joined Confederation (1871), the Joint Indian Reserve Commission (JIRC) issued a minute of decision which re-allocated the reserve - It was enlarged to 80 acres and set apart for the "Skwawmish Tribe" - The re-allocation became effective in 1889 - The Musqueam Indian Band claimed that upon British Columbia's entry into Confederation, the Crown owed a fiduciary duty to the Indians residing on the reserve (whom they alleged were, or included, Musqueam Indians) not to divest them of their interest in the reserve without their consent - They said that the fiduciary duty arose from the "trust" language of the British Columbia Terms of Union, from the provisions of the Indian Act and from the historical relationship between the Crown and Indian peoples - The Federal Court of Canada, Trial Division, rejected this argument - See paragraphs 328 to 463.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Burrard Indian Band claimed that the Crown breached its fiduciary duties in the administration of certain Indian reserves in British Columbia which had been allocated to the Squamish tribe (incl. the False Creek Reserve) - In particular the Burrard Band argued that a 1923 amalgamation of the administration of several reserves in the area caused it to lose its interest in the reserves - At the time, the Burrard Band had requested to be exempted from the amalgamation, and the Crown agreed - The Federal Court of Canada, Trial Division, dismissed the Burrard Band's claim - The court examined in detail how the Crown administered the reserves and held that the method of administration was entirely legal and a reasonable exercise of the discretion of the Minister and the Department under the Indian Act - The court held that in the process of amalgamation, the Burrard Band did not forfeit any interest because it had no such interest prior to 1923 - Further, the Band's decision regarding amalgamation was fully informed and not improvident; and therefore, no fault could be found with the Crown's decision to exclude the Burrard from amalgamation - See paragraphs 464 to 704.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Burrard Indian Band claimed that the Crown breached its fiduciary duties by amalgamating the administration of certain Indian reserves in British Columbia in 1923 which had been allocated to the Squamish tribe (incl. False Creek Reserve) - In particular the Burrard Band argued that the amalgamation was void ab initio because the Crown did not take a surrender from the Squamish tribe - The Burrard Band characterized amalgamation as a legal "severance" of both the Squamish and the Burrard people's interests in all 28 reserves which had been allocated to the Squamish - The Burrard Band argued that, when a band or group of Indians gave up its legal interest in a reserve or reserves, the Crown was required to obtain a formal surrender under the Indian Act - The Federal Court of Canada, Trial Division, held that the Burrard Band, at the time of amalgamation, had no interest in the amalgamated reserves - However, the court opined that in any event, the surrender provisions of the Indian Act did not apply where interests were transferred between Indian bands - See paragraphs 656 to 665.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Burrard Indian Band claimed that the Crown breached fiduciary duties by amalgamating the administration of certain Indian reserves in British Columbia in 1923 which had been allocated to the Squamish tribe (incl. False Creek Reserve) - The Burrard Band argued that the Crown had a fiduciary duty to follow procedures analogous to the surrender provisions of the Indian Act - The Federal Court of Canada, Trial Division, held at the time of amalgamation, the Burrard Band had no interest in the reserves - In any event, the court disagreed that the Crown had a fiduciary duty to review and implement amalgamation using procedures analogous to the surrender provisions - The Crown had a statutory duty to ensure that the Burrard Band, when presented with the possibility of amalgamation, understood its interests, the proposal and the consequences of accepting or rejecting it - The Crown also had a statutory duty to balance the interests of those in favour of and those opposed to amalgamation in an effort to achieve, to the extent possible, a fair result - However, there were no procedural steps, statutory or otherwise, which the Crown was bound to follow - See paragraphs 666 to 676.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Burrard Indian Band claimed that the Crown breached its fiduciary duties by amalgamating the administration of certain Indian reserves in British Columbia in 1923 which had been allocated to the Squamish tribe (incl. the False Creek Reserve) - In particular, the Burrard Band argued that the Crown failed to ensure that the Burrard people understood amalgamation - The Federal Court of Canada, Trial Division, held that the Burrard Band had no interest in the amalgamated reserves - The court opined however that, in any event, it was not prepared to conclude that the Burrard Band was confused about amalgamation - See paragraphs 677 to 684.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - In 1992 the Musqueam Indian Band and in 1993 the Burrard Indian Band issued statements of claim, asserting that the federal government breached its fiduciary duty by, inter alia, improperly allocating and mismanaging the False Creek Indian Reserve - The trial judge held that the Musqueam cause of action arose on February 7, 1889, and Burrard's on October 5, 1923 - The Crown argued that the actions were barred by the transitional provisions in s. 14(3) of the 1975 Limitation Act (B.C.) - The Federal Court of Canada, Trial Division, agreed with the Crown that both the Burrard and Musqueam causes of action for breach of fiduciary duty expired and were statute barred on July 1, 1977 in accordance with s. 14(3) - See paragraphs 720 to 730.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - In 1992 the Musqueam Indian Band and in 1993 the Burrard Indian Band issued statements of claim, seeking, inter alia, declarations of trust over certain portions of the False Creek Reserve - The causes of action arose in 1889 (Musqueam) and in 1923 (Burrard) - It was argued that the actions could in part be characterized as actions for possession of land such that s. 16 of the pre-1975 limitations legislation applied to impose a 20 year limitation period the running of which was postponed, pursuant to the common law doctrine of equitable fraud, until at least July 1, 1975, when the Limitation Act 1975 came into force - The Federal Court of Canada, Trial Division, held that the bands' claims were in part actions for possession of land; however, there was no postponement by reason of equitable fraud - Therefore, the causes of action for possession of land expired in 1909 and 1943, and under s. 14(1) of the Limitation Act (1975), they remained barred - In the alternative, the court opined that even if the limitation period was postponed, the six-year limitation period in s. 3(4) of the 1975 Act was applicable and because this limitation period was shorter than the 20-year limitation period applicable under the pre-1975 Legislation, the causes of action for possession of land became subject to the transitional rules in s. 14(3) of the 1975 Act and were statute-barred on July 1, 1977 - See paragraphs 731 to 766.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - In 1993 the Burrard Indian Band issued a statement of claim, alleging that the Crown breached fiduciary duties - The cause of action arose in 1923 - The Federal Court of Canada, Trial Division, held that section 14(3) of the Limitation Act (1975) barred the breach of fiduciary duty action as of July 1, 1977 - The court rejected the Burrard Band's argument that based on the wording of s. 3(4) of the Limitation Act, its cause of action did not arise until 1984, after the Supreme Court of Canada issued the Guerin decision - If this argument had been accepted, then the transitional provisions in s. 14 of the Limitation Act would not have applied - See paragraphs 777 to 782.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - [See Practice - Topic 1830 and all Limitation of Actions - Topic 7604 ].

Indians, Inuit and Métis - Topic 5503

Lands - Reserves - Duties of Crown re - Fiduciary duties - [See all Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5503.1

Lands - Reserves - Amalgamation of administration of - [See first, fourth, fifth, sixth and seventh Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of (incl. allocation of) - The False Creek Reserve was first created in 1869, in what was then the Crown Colony of British Columbia, when colonial authorities set aside 37 acres of land for "the use of the Indians respectively residing thereon" - Later, in 1877, six years after British Columbia joined Confederation, the Joint Indian Reserve Commission issued a minute of decision which re-allocated the reserve - It was enlarged to 80 acres and set apart for the "Skwawmish Tribe" - The Musqueam Indian Band raised issues regarding the allocation of the reserve in 1869; namely whether Musqueam Indians were resident on the False Creek Site when it became a reserve in 1869 and when it was reallocated in 1877 and what was the meaning to be given to the phrase "Indians ... residing thereon" - The Federal Court of Canada, Trial Division, held that there was no basis for a Musqueam entitlement to any interest in the False Creek Reserve - The court found that by 1869, the False Creek Reserve was a permanent community populated overwhelmingly by Indians who were Squamish by ancestry or repute - The evidence did not disclose the presence of any Musqueam people on the reserve at the time it was first allocated in 1869 or when it was reallocated in 1877 - See paragraphs 90 to 327.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of (incl. allocation of) - The False Creek Reserve was first created in 1869, in what was then the Crown Colony of British Columbia, when colonial authorities set aside 37 acres of land for "the use of the Indians respectively residing thereon" - Later, in 1877, six years after British Columbia joined Confederation (1871), the Joint Indian Reserve Commission (JIRC) issued a minute of decision which re-allocated the reserve - It was enlarged to 80 acres and set apart for the "Skwawmish Tribe" - The re-allocation became effective in 1889 - The Federal Court of Canada, Trial Division, discussed the impact of Confederation on the reserve - See paragraphs 336 to 344.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of (incl. allocation of) - The False Creek Reserve was first created in 1869 in British Columbia, when colonial authorities set aside 37 acres of land for "the use of the Indians respectively residing thereon" - Later, in 1877, six years after British Columbia joined Confederation (1871), the Joint Indian Reserve Commission (JIRC) issued a minute of decision which re-allocated the reserve - It was enlarged to 80 acres and set apart for the "Skwawmish Tribe" - The re-allocation became effective in 1889 - The Musqueam Indian Band challenged the work of the JIRC, claiming that the allocation was a mistake and that the JIRC intended to allocate the reserve to the Musqueam people - Even if the allocation was not a mistake, the Musqueam Indian Band challenged the authority of the JIRC to make the allocation - The Federal Court of Canada, Trial Division, rejected these arguments - See paragraphs 329 to 401.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - [See Indians, Inuit and Métis - Topic 6012 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - The Federal Court of Canada, Trial Division, discussed the use of oral history evidence in a case involving aboriginal claims - See paragraphs 29 to 40.

Limitation of Actions - Topic 1905

Actions - General - Breach of fiduciary duty - [See first and third Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 1905

Actions - General - Breach of fiduciary duty - Section 14(3) of the 1975 Limitation Act (B.C.) provided that "if, with respect to a cause of action that arose before this Act comes into force, the limitation period provided by this Act is shorter than that which formerly governed the cause of action, and will expire on or before July 1, 1977, the limitation period governing the cause of action shall be the shorter of: (a) 2 years from July 1, 1975; or (b) the limitation period that formerly governed the cause of action." - The Federal Court of Canada, Trial Division, held that s. 14(3) applied to situations in which no limitation period was prescribed by the pre-1975 legislation - Therefore, since the limitation period which formerly governed or "applied to" the cause of action for breach of fiduciary duty was an unlimited period, and since the six-year limitation period provided by the 1975 Limitation Act was a shorter period, s. 14(3) applied to bar actions for breach of fiduciary duty at the expiry of the grace period on July 1, 1977 - See paragraphs 720 to 730.

Limitation of Actions - Topic 4108

Recovery of land - Interruption or stopping of limitation period - Fraud or concealed fraud - [See second Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 4141

Recovery of land - Application of limitation period - General - [See second Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 7604

Actions against the Crown - In the Federal Court of Canada - Applicable law - In 1992 the Musqueam Indian Band and in 1993 the Burrard Indian Band issued statements of claim, seeking possession of reserve land and alleging that the Crown breached fiduciary duties - The causes of action arose in 1889 (Musqueam) and 1923 (Burrard) - The Federal Court of Canada, Trial Division, held that the causes of action were barred by the British Columbia Limitation Act - The court rejected the Indian bands' argument that s. 39(1) of the Federal Court Act could not incorporate the British Columbia Limitation Act because it was provincial legislation which was constitutionally inapplicable to Indians and lands reserved for Indians under s. 91(24) of the Constitution Act - The court stated that it was clear that s. 39(1) was enacted in part to cure the constitutional inapplicability of the Limitation Act which, but for s. 39(1), would not apply to claims dealing with lands reserved for Indians - See paragraphs 783 to 794.

Limitation of Actions - Topic 7604

Actions against the Crown - In the Federal Court of Canada - Applicable law - Section 39(1) of the Federal Court Act provided that the provincial laws regarding limitation of actions applied to proceedings in Federal Court respecting any cause of action arising in that province - An Indian band argued that s. 39(1) did not evince the "clear and plain intention" required to extinguish an Indian band's reserve interest on expiry of the applicable limitation period - The Federal Court of Canada, Trial Division, held that: (1) the law was not settled regarding whether, in situations such as this case that did not involve s. 35 of the Charter or a treaty, a federal limitation law must express a clear and plain intention to extinguish an Indian reserve interest; (2) if such an expression was required, the law was also unsettled about how it should be expressed; however, in cases of this kind, that expression could be by necessary implication from the context and did not require language which actually mentioned "reserve interests" and "extinguishment", or actual proof that those matters were considered by the Crown in 1877 when s. 39(1) was first enacted; and (3) s. 39(1) expressed a clear and plain intention to extinguish reserve interests, even though the words "reserve interest" and "extinguishment" were not used, because it was valid limitation legislation which applied to causes of action dealing with Indian lands - See paragraphs 795 to 816.

Limitation of Actions - Topic 7604

Actions against the Crown - In the Federal Court of Canada - Applicable law - Section 39(1) of the Federal Court Act provided that the provincial laws regarding limitation of actions applied to proceedings in Federal Court respecting any cause of action arising in that province - An Indian band argued that court decisions interpreting s. 39(1) had created a legislative anomaly and this should be solved by reading s. 39(1) as if it applied to Indians, but not to Indian lands - The Federal Court of Canada, Trial Division, stated "... this would amount to a misreading of the section because it clearly applies the Limitation Act to all proceedings in the Federal Court, and those proceedings include actions which involve Indian lands ... a legislative amendment, rather than a misreading of s. 39(1), is the proper solution." - See paragraphs 817 to 821.

Practice - Topic 1830

Pleadings - Counterclaim and set-off - Counterclaim - Limitation periods - In 1992 the Musqueam Indian Band and in 1993 the Burrard Indian Band commenced proceedings, seeking possession of reserve land and alleging that the Crown breached fiduciary duties - The causes of action arose in 1889 (Musqueam) and 1923 (Burrard) - The Federal Court of Canada, Trial Division, held that section 14(3) of the Limitation Act (1975) barred the breach of fiduciary duty actions as of July 1, 1977 - Further, under the pre-1975 legislation, the actions for possession of land were barred as of 1909 (Musqueam) and 1943 (Burrard) and remained statute-barred under s. 14(1) of the Limitation Act - The court rejected an argument that s. 14 was inapplicable where some of the bands' claims were raised via counterclaims, and under s. 4(1)(a) of the Limitation Act, a lapse of time was not a bar to proceedings by counterclaim - See paragraphs 768 to 776.

Practice - Topic 7109

Costs - Party and party costs - Special orders - Discretion to exceed scale of costs (incl. power to award percentage of actual costs) - Following lengthy and costly litigation over interests in an Indian reserve, one of the successful parties (the Squamish Indian Band) asked the court to award legal costs as a percentage (i.e., 50%) of actual costs - The Federal Court of Canada, Trial Division, refused this request - The court stated that "the costs rules, which include Tariff B, are intended to provide parties with a fairly reliable indication of the costs which may be awarded against them if they are unsuccessful at trial. Granting the order sought by the Squamish would involve a wholesale abandonment of Tariff B and would defeat this objective. As well, it is my view that the Squamish have not justified their request based on the 1995 Explanatory Note. I have concluded that they have missed its true meaning. It says that the philosophy that party and party costs should bear a reasonable relationship to the actual costs of litigation is already reflected in the revisions to Tariff B. Accordingly, it is my opinion that the 1995 Explanatory Note means that a successful party's recovery of party and party costs under Column III of Tariff B remains the normal rule." - See paragraphs 827 to 836.

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - Following lengthy and costly litigation over interests in an Indian reserve, one of the successful parties (the Squamish Indian Band) sought an increase in the scale of costs - The Federal Court of Canada, Trial Division, agreed that for some items, increased costs were justified - The court reviewed the items claimed and determined where increases were justified - The court granted full reimbursement for all reasonable disbursements - The court also awarded 50% of the reasonable fees charged by experts and researchers for their advisory work when not in court and 100% of their reasonable fees when serving as advisors in court - See paragraphs 837 to 877.

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - [See Practice - Topic 7110 ].

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - Following lengthy and costly litigation over alleged breaches of fiduciary duty by the Crown in the management of an Indian reserve, the action was dismissed - The Crown claimed disbursements against the two unsuccessful Indian bands - The Federal Court of Canada, Trial Division, awarded the Crown 50% of its reasonable costs for a reasonable number of researchers and support staff and 50% of a part-time research director - The court also directed the Assessor to assess the reasonable costs of the four expert advisors hired by the Crown and award the Crown 50% of those costs - The court otherwise awarded the Crown 100% of its reasonable disbursements, including computers and office space, excluding those expenses which in the Assessor's opinion should have been included in overhead - See paragraphs 878 to 888.

Statutes - Topic 4606

Operation and effect - Legislation by reference - What constitutes legislation or incorporation by reference - [See first Limitation of Actions - Topic 7604 ].

Cases Noticed:

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. 29].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 29].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 30].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 33].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 33].

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. 73].

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

Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48; 156 F.T.R. 1 (T.D.), refd to. [para. 73].

Fairford Indian Band v. Canada - see Fairford First Nation v. Canada (Attorney General).

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41; 144 D.L.R.(3d) 193, refd to. [para. 148].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (T.D.), varied (1999), 247 N.R. 350 (F.C.A.), refd to. [paras. 338, 436].

British Columbia (Attorney General) v. Andrew and Mount Currie Indian Band (1991), 54 B.C.L.R.(2d) 156 (C.A.), refd to. [para. 413].

Attorney General v. De Keyser's Royal Hotel Ltd., [1920] A.C. 508 (H.L.), refd to. [para. 426].

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. 427].

An Act Respecting the Vancouver Island Railway, Re - see British Columbia (Attorney General) v. Canada (Attorney General).

St. Catharine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 433].

Dunstan v. Hell's Gate Enterprises Ltd. (1985), 22 D.L.R.(4th) 568 (B.C.S.C.), revd. (1987), 20 B.C.L.R.(2d) 29 (C.A.), refd to. [para. 438, footnote 58].

Calder v. British Columbia (Attorney General) (1973), 34 D.L.R.(3d) 145 (S.C.C.), refd to. [para. 448, footnote 60].

Jules v. Harper Ranch Ltd., [1989] 3 C.N.L.R. 67 (B.C.S.C.), refd to. [para. 450, footnote 62].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 468].

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, refd to. [para. 470, footnote 68].

Kruger v. Canada, [1986] 1 F.C. 3; 58 N.R. 241 (F.C.A.), leave to appeal refused [1985] 2 S.C.R. viii; 62 N.R. 103, refd to. [para. 472, footnote 69].

Semiahmoo Indian Band et al. v. Canada (1995), 101 F.T.R. 198 (T.D.), revd. [1998] 1 F.C. 3; 215 N.R. 241 (F.C.A.), refd to. [para. 474].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 491].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 495].

Tsartlip Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2000] 2 F.C. 314; 250 N.R. 75 (F.C.A.), refd to. [para. 516].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 516].

Boyer v. Canada, [1986] 2 F.C. 393; 65 N.R. 305 (F.C.A.), refd to. [para. 518].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 520].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 520].

Hay River (Town) v. R. et al. (1979), 101 D.L.R.(3d) 184 (F.C.T.D.), refd to. [para. 562, footnote 82].

R. v. Easterbrook, [1931] 1 D.L.R. 628 (S.C.C.), refd to. [para. 660].

R. v. St. Ann's Island Shooting & Fishing Club Ltd., [1950] 2 D.L.R. 225 (S.C.C.), refd to. [para. 660].

R. v. Cowichan Agricultural Society, [1950] Ex. Cr. 448, refd to. [para. 660].

Lower Kootenay Indian Band v. Canada (1991), 42 F.T.R. 241 (T.D.), refd to. [para. 660].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1997] 1 F.C. 689; 206 N.R. 85 (F.C.A.), varied. [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 700, footnote 103].

Batchewana Indian Band (Non-resident members) v. Batchewana Indian Band - see Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al.

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. 701, footnote 104].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 730].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 730].

Leonard v. Gottfriedson (1980), 21 B.C.L.R. 326 (S.C.), refd to. [para. 760].

McRae et al. v. McRae Estate et al. (1994), 44 B.C.A.C. 143; 71 W.A.C. 143; 90 B.C.L.R.(2d) 132 (C.A.), refd to. [para. 765].

Lui v. West Granville Manor Ltd. (1987), 11 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 774].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 780].

Bank of Montreal v. Kim (1990), 68 D.L.R.(4th) 738 (B.C.C.A.), refd to. [para. 781].

Stoney Creek Indian Band v. British Columbia et al., [1998] B.C.T.C. Uned. E96; 61 B.C.L.R.(3d) 131 (S.C.), revd. (1999), 129 B.C.A.C. 106; 210 W.A.C. 106; 173 D.L.R.(4th) 679 (C.A.), leave to appeal refused (2000), 259 N.R. 400; 147 B.C.A.C. 75; 241 W.A.C. 75 (S.C.C.), refd to. [para. 788, footnote 113].

Chippewas of Sarnia Band v. Canada (Attorney General) et al. (1999), 101 O.T.C. 1 (Sup. Ct.), varied (2000), 139 O.A.C. 201 (C.A.), refd to. [para. 797, footnote 115].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1993] 3 F.C. 28; 151 N.R. 241 (F.C.A.), refd to. [para. 817].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 822].

Sanmammas Compania Maritima S.A. et al. v. Ship Netuno et al. (1995), 102 F.T.R. 181 (T.D.), refd to. [para. 832].

Apotex Inc. v. Syntex Pharmaceuticals International Ltd. et al. (1999), 176 F.T.R. 142; 2 C.P.R.(4th) 368 (T.D.), refd to. [para. 833].

Wellcome Foundation Ltd. et al. v. Apotex Inc., [2001] F.T.R. Uned. 108 (T.D.), refd to. [para. 836].

Baker Lake (Hamlet) v. Canada (Minister of Indian Affairs and Northern Development), [1980] 1 F.C. 518 (T.D.), refd to. [para. 840].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [paras. 336, 454, 783].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 39(1) [paras. 714, 783, 787].

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 789].

Indian Act, 1868, sect. 6 [para. 452].

Indian Act, 1876, sect. 4 [para. 452].

Indian Act, 1886, sect. 2(d), sect. 2(e), sect. 2(f) [para. 565]; sect. 2(k) [para. 560]; sect. 4, sect. 14 [para. 559]; sect. 39(a) [para. 565]; sect. 70 [para. 568].

Indian Act, 1906, sect. 48, sect. 49(4), sect. 50 [para. 658].

Indian Act, 1952, sect. 18(1) [para. 471].

Limitation Act, S.B.C. 1975, c. 37, sect. 3(3) [para. 759]; sect. 3(4) [paras. 721, 778]; sect. 4, sect. 4(1)(a) [para. 770]; sect. 14(1), sect. 14(3) [para. 720].

Statute of Limitations, R.S.B.C. 1897, c. 123, sect. 3(3)(a) [para. 760]; sect. 16 [para. 735].

Terms of Union, 1871, art. 13 [para. 452].

Authors and Works Noticed:

British Columbia Government Gazette (November 27, 1869), vol. 8, p. 1 [para. 89, footnote 9].

British Columbia, McKenna-McBride Federal-Provincial Royal Commission on Indian Affairs, Interim Report No. 82 (1916), generally [para. 56].

Canada, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1, p. 33 [para. 30, footnote 3].

Kennedy, Dorothy, A Reference Guide to the Establishment of Indian Reserves in British Columbia, 1849-1911 (1994), pp. 48 to 56 [para. 450, footnote 63].

Papers Relating to the Indian Land Question, 1850-1875 (1877), generally [para. 450, footnotes 62, 63].

Salmond and Heuston, The Law of Torts, p. 46 [para. 761].

Venne, Sharon Helen, Indian Acts and Amendments 1868-1975 An Indexed Collection (1981), pp. 65, 66, 67 [para. 17, footnote 2].

Counsel:

Gregory J. McDade, Q.C., Harry A. Slade, Q.C., John R. Rich, Charles G. Stein, Robert C. Freedman, R. Brent Lehmann and F. Matthew Kirchner, for Mathias et al. (Squamish Indian Band);

Marvin R.V. Storrow, Q.C., Malcolm O. Maclean, Heather M. Caswell and Candice S. Metallic, for Grant et al. (Musqueam Indian Band);

Stan H. Ashcroft, Myriam M.V. Brulot, Sophia M. Nishimoto and Christine H.W. Sweet, for George et al. (Burrard Indian Band);

Karl F. Burdak, Robin S. Whittaker, Heather A. Frankson and Tanya L. Jorgenson, for Her Majesty the Queen;

D. Geoffrey G. Cowper, Q.C., William S. Berardino, Q.C., and Brook Greenberg, as Agent for Her Majesty the Queen.

Solicitors of Record:

Ratcliff and Company, North Vancouver, British Columbia, for Mathias et al. (Squamish Indian Band);

Blake, Cassels and Graydon, Vancouver, British Columbia, for Grant et al. (Musqueam Indian Band);

Ganapathi, Ashcroft & Company, Vancouver, British Columbia, for George et al. (Burrard Indian Band);

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for Her Majesty the Queen;

Fasken Martineau DuMoulin LLP, Vancouver, British Columbia, as Agent for Her Majesty the Queen.

This case was heard before Simpson, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 2, 2001, at Vancouver, British Columbia.

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