Montana Indian Band v. Canada, 2006 FC 261

• Judge: Hansen, J.
• Court: Federal Court (Canada)
• Case Date: December 11, 2002
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 261;(2006), 287 F.T.R. 159 (FC)

Montana Indian Band v. Can. (2006), 287 F.T.R. 159 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. MR.009

Montana Band, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, suing on their own behalf and on behalf of all other members of the Montana Indian Band, all of whom reside on the Montana Reserve No. 139, in the Province of Alberta (plaintiffs) v. Her Majesty the Queen (defendant) and Samson Band, Chief Terry Buffalo, Clifford Potts, Frank Buffalo, Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback, Larron Northwest, Nancy Yellowbird, Barb Louis, Keith Johnson, Rose Saddleback and Jim Omeasoo, Councillors of the Samson Band, sued on their own behalf and on behalf of the members of the Samson Band of Indians (third parties) and Ermineskin Band, Chief Gerald Robert Ermineskin, and Arthur Morris Littlechild, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Band, sued on their own behalf and on behalf of the Ermineskin Band of Indians (third parties)

(T-617-85)

Chief Florence Buffalo acting on her own behalf and on behalf of all the members of the Samson Cree Nation and Band and the Samson Cree Nation and Indian Band (plaintiffs) v. Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Canada as represented by The Minister of Indian Affairs and Northern Development, Parliament Buildings, Ottawa, Ontario (defendants) and Montana Band, Chief Leo Cattleman, Carl Rabbit, Darrel Frederick Strongman, Coldy Sr. Dick Rabbit, Councillors of the Montana Band, sued on their own behalf and on behalf of the members of the Montana Band of Indians (third parties) and Ermineskin Cree Nation, Chief Gerald Robert Ermineskin, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Councillors of the Ermineskin Band, sued on their own behalf, and on behalf of the members of the Ermineskin Band of Indians (third parties)

(T-782-97)

Ermineskin Cree Nation and Chief Gerald Ermineskin, Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing on their own behalf and on behalf of the Ermineskin Cree Nation (plaintiffs) v. Her Majesty the Queen and the Attorney General of Canada (defendants) and Montana Band, Chief Leo Cattleman, Carl Rabbit, Darrel Frederick Strongman, Coldy Sr. Dick Rabbit, Councillors of the Montana Band, sued on their own behalf and on behalf of the Montana Band of Indians (third parties) and Samson Cree Nation and Indian Band, Chief Lena Cutknife, and Dolphus Buffalo, Florence Buffalo, Kurt Buffalo, Pat Buffalo, Cecile Crier, Patrick Cutknife, Walter Lightning, Barbara B. Lightning, George Montour Sr., Donna Potts Johnson, Rose Saddleback and Marvin Yellowbird, Councillors of the Samson Cree Nation and Indian Band, sued on their own behalf and on behalf of all the members of the Samson Cree Nation and Indian Band (third parties)

(T-2804-85; 2006 FC 261)

Indexed As: Montana Indian Band v. Canada

Federal Court

Hansen, J.

February 28, 2006.

Summary:

In this consolidated action, three sets of plaintiffs (Montana Band, Samson Band and Ermineskin Band) advanced claims to Indian Reserve 139 (IR 139), originally occupied by the Bobtail Band, and challenged the validity of a 1909 surrender involving IR 139. The following issues were severed for determination: (1) up to and including June 12, 1909 which of the plaintiffs, if any, were entitled to the use and benefit of the lands comprising IR 139; (2) was the purported surrender dated June 12, 1909 valid; and (3) which of the plaintiffs, if any, were entitled to the use and benefit of the land comprising IR 139 after the 1909 surrender and related transactions.

The Federal Court determined the issues accordingly. The court held that up to an including June 12, 1909, none of the three sets of plaintiffs were entitled to the use and benefit of the lands comprising IR 139. Because the interest of the Bobtail Band in IR 139 had lapsed by 1909, a surrender of IR 139 by the Bobtail Band was unnecessary, however if it was necessary, the surrender was valid. As to which of the plaintiffs were entitled to the use and benefit of IR 139 at the conclusion of the surrender and related transactions of 1909, the court held that the Montana Band was entitled to the use and benefit of the 10 square miles on IR 139 purportedly set aside for it in the surrender agreement. Neither of the other two plaintiffs (i.e., Ermineskin or Samson Band) were entitled to the use and benefit of the land comprising IR 139.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See first Indians, Inuit and Métis - Topic 2105 , first Indians, Inuit and Métis - Topic 4420.1 and second Indians, Inuit and Métis - Topic 5507.2 ].

Indians, Inuit and Métis - Topic 2105

Nations, tribes and bands - Bands - What constitutes a band for purposes of the Indian Act - In 1885, pursuant to Treaty 6, Indian Reserve 139 (IR 139) was set apart for the Bobtail Indian Band - By 1887, the Bobtail Band members had dispersed - In 1896 approximately 150 Canadian Cree Indians, who were deported from the United States, were permanently settled on the vacant Bobtail Reserve by the Crown - This group became the Montana Band - On June 12, 1909, without consulting the Montana Band and without their knowledge, the Crown obtained a surrender of IR 139 from former members of the Bobtail Band who had become members of the Samson and Ermineskin Bands - Two other agreements involving the Montana, Ermineskin and Samson Bands dated June 14 and 17, 1909, also formed part of the overall surrender transaction - In the 1980s and 1990s, the three bands advanced claims to IR 139 and challenged the validity of the 1909 surrender - The Federal Court, in determining whether the Bobtail Band ceased to exist prior to 1909, considered whether Chief Bobtail and others were validly discharged from Treaty 6 under s. 14 of the Indian Act 1880 (i.e., the "half-breed" provision), whether the Crown owed a fiduciary duty to those so discharged, whether the transfer of the remaining Bobtail members to the pay lists of the Samson and Ermineskin Bands constituted a valid transfer of band membership and the legal effect of a readmission agreement - See paragraphs 460 to 610.

Indians, Inuit and Métis - Topic 2105

Nations, tribes and bands - Bands - What constitutes a band for purposes of the Indian Act - [See first Indians, Inuit and Métis - Topic 5507.2 ].

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership (incl. transfer of membership) - [See first Indians, Inuit and Métis - Topic 2105 and second Indians, Inuit and Métis - Topic 5507.2 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The Federal Court discussed the legal character of Treaty 6 - The court rejected an argument that because the Treaty was entered into by the Plain and Wood Cree Indians and Her Majesty the Queen in Right of the United Kingdom, it was governed solely by British and not Canadian law - The court also rejected the argument that Treaty 6 was a nation-to-nation agreement equivalent to an international treaty which should be interpreted according to the "law of nations" or international treaty law - The court stated that the law in Canada in this respect was clear (i.e., an Indian treaty was unique; it was an agreement sui generis which was neither created nor could be terminated according to the rules of international law) - The court also rejected the argument that because Canada's Dominion Government was not a party to Treaty 6, it was not in a position to end or alter treaty relations without the approval of the Governor General on behalf of the British Crown - See paragraphs 481 to 487.

Indians, Inuit and Métis - Topic 4420.1

Treaties and proclamations - General - Withdrawal from treaty rights (incl. readmission) - In 1885, pursuant to Treaty 6, Indian Reserve 139 (IR 139) was set apart for the Bobtail Indian Band - Chief Bobtail and certain of his followers withdrew as "half-breeds" from Treaty 6 but subsequently changed their minds - Under an August 10, 1887 agreement, Chief Bobtail and his followers were readmitted to the Treaty subject to certain restrictions - Over a hundred years later, in the context of determining the validity of a 1909 surrender of IR 139 by the Bobtail band members, an issue arose over the legal effect of the 1887 readmission agreement (i.e., as to whether the readmitted members received any right or entitlement to IR 139 under the agreement) - The Federal Court held that the agreement was neither unconscionable nor repugnant and rejected an argument that the agreement constituted a contract of slavery or servitude - The court held that the agreement was not treaty-like and therefore was not subject to the principles of treaty interpretation or exempt from the application of contract-law principles; nor was the honour of the Crown necessarily engaged upon its decision to enter an agreement with Bobtail and the other "readmittees" as a collection of individuals free to make their own decisions - The court discussed whether the Crown owed fiduciary obligations to the readmittees - See paragraphs 535 to 610.

Indians, Inuit and Métis - Topic 4420.1

Treaties and proclamations - General - Withdrawal from treaty rights (incl. readmission) - [See first Indians, Inuit and Métis - Topic 2105 ].

Indians, Inuit and Métis - Topic 5465

Lands - Surrender of lands - Validity of - In 1885, pursuant to Treaty 6, Indian Reserve 139 (IR 139) was set apart for the Bobtail Indian Band - By 1887, the Bobtail Band members had dispersed - In 1896 approximately 150 Canadian Cree Indians, who had been deported from the United States, were permanently settled on the vacant Bobtail Reserve by the Crown - This group became the Montana Band - On June 12, 1909, without consulting the Montana Band and without their knowledge, the Crown obtained a surrender of IR 139 from former members of the Bobtail Band who had become members of the Samson and Ermineskin Bands - Two other agreements involving the Montana, Ermineskin and Samson Bands dated June 14 and 17, 1909, also formed part of the overall surrender transaction - In the 1980s and 1990s, the Montana, Ermineskin and Samson bands (the plaintiff bands) advanced claims to IR 139 and challenged the validity of the 1909 surrender - The Federal Court held that up to and including June 12, 1909, none of the plaintiff bands were entitled to the use and benefit of the lands comprising IR 139 - Because the Bobtail Band had ceased to exist prior to 1909 causing the Band's interest in IR 139 to lapse, a surrender of IR 139 was unnecessary, however if it was necessary, it was valid - Following the surrender transactions, the Montana Band was entitled to the use and benefit of 10 square miles on IR 139 purportedly set aside for it in the surrender agreement - Neither of the other two plaintiffs were entitled to the use and benefit of the land comprising IR 139 - See paragraphs 314 to 677.

Indians, Inuit and Métis - Topic 5507.2

Lands - Reserves - Status of reserve land where band ceases to exist - The Federal Court discussed the meaning of the word "band" as used in s. 3.1 of the Indian Act, S.C. 1876, c. 18 - See paragraphs 315 to 363 and 428 to 454 - The court also discussed when an Indian Act Band ceased to be a band and what happened to that band's reserve interest - See paragraphs 364 to 381 and 455 to 459 - The court concluded that if a band ceased to exist, then the reserve interest lapsed and the Crown was left with the fee simple estate - See paragraph 459.

Indians, Inuit and Métis - Topic 5507.2

Lands - Reserves - Status of reserve land where band ceases to exist - In 1887 several remaining members of the Bobtail Indian Band from Indian Reserve 139 (IR 139), the "Bobtail remnants", were transferred to the pay lists of the Samson and Ermineskin Indian Bands - A hundred years later, in the context of determining the validity of a 1909 surrender of IR 139 by the Bobtail remnants, an issue arose over the validity and legal effect of the 1887 transfers of band membership - The Federal Court discussed the transfer policies and requirements as of 1887 - The court determined that the band membership transfers were valid, however, the individuals who transferred between bands did not take with them any interest in their former band or its reserve - Individuals could not hold dual membership and could not hold interests in the reserves belonging to more than one band at the same time - Finally, any fiduciary duties owed by the Crown to the Bobtail remnants ended when they joined other bands, at which time they entered into a similar but distinct fiduciary relationship with the Crown as members of those bands - Thus after 1887, there being no more Bobtail Band members (other than those on the pay lists of other bands), the Band ceased to exist and the interest of the Band in IR 139 lapsed - See paragraphs 500 to 610.

Words and Phrases

Band - The Federal Court discussed the meaning of the word "band" as used in s. 3.1 of the Indian Act, S.C. 1876, c. 18 - See paragraphs 315 to 363.

Cases Noticed:

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [2001] 4 F.C. 451; 274 N.R. 304; 201 D.L.R.(4th) 35 (F.C.A.), refd to. [para. 319].

Chief Chipeewayan Indian Band v. Canada (2002), 291 N.R. 314; 2002 FCA 221, refd to. [para. 319].

Kingfisher v. Canada - see Chief Chipeewayan Indian Band v. Canada.

Squamish et al. v. Canada et al. (2001), 207 F.T.R. 1; 2001 FCT 480, refd to. [para. 323].

R. v. Goulis (1981), 33 O.R.(2d) 55 (C.A.), refd to. [para. 331].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 337].

Osoyoos Indian Band v. Oliver (Town) et al., [2001] 3 S.C.R. 746; 278 N.R. 201; 160 B.C.A.C. 171; 261 W.A.C. 171, refd to. [para. 337].

Isaac et al. v. Davey et al., [1977] 2 S.C.R. 897; 16 N.R. 29, refd to. [para. 344].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 355].

Papachase Indian Band No. 136 v. Canada (Attorney General), [2004] 4 C.N.L.R. 110 (Atla. Q.B.), refd to. [para. 367].

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. 376].

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; [1990] 4 W.W.R. 410, refd to. [para. 399].

Ross River Dena Council Band et al. v. Canada et al., [2002] 2 S.C.R. 816; 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1, refd to. [para. 421].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345, refd to. [para. 441].

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. 449].

R. v. Howson (1894), 1 Terr. L.R. 492, refd to. [para. 463].

R. v. Thomas (1891), 2 Ex. C.R. 246, refd to. [para. 463].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 477].

Attorney General of Canada v. Attorney General of Ontario, [1937] A.C. 326, refd to. [para. 482].

Radio Communication in Canada (Regulation and Control of), Re, [1932] A.C. 304 (P.C.), refd to. [para. 482].

R. v. Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Albert and others, [1982] 2 All E.R. 118 (C.A.), refd to. [para. 482].

Minister of National Revenue v. Ochapowace Ski Resort Inc., [2002] 4 C.N.L.R. 76, refd to. [para. 482].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 485].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 485].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1, refd to. [para. 495].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 509].

Moretta (Joe) Investments Ltd. v. Ontario (Minister of Housing) et al. (1992), 54 O.A.C. 258; 8 O.R.(3d) 129 (C.A.), refd to. [para. 509].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [para. 517].

Morrison v. Coast Finance Ltd. et al. (1965), 55 D.L.R.(2d) 710 (B.C.C.A.), refd to. [para. 546].

Harry v. Kreutziger (1978), 95 D.L.R.(3d) 231 (B.C.C.A.), refd to. [para. 546].

Lloyd's Bank v. Bundy, [1974] 2 All E.R. 757 (C.A.), refd to. [para. 546].

Moore v. Federal Business Development Bank et al. (1981), 30 Nfld. & P.E.I.R. 91; 84 A.P.R. 91 (P.E.I.S.C.), refd to. [para. 548].

Stephenson v. Hilti (Canada) Ltd. (1989), 93 N.S.R.(2d) 366; 242 A.P.R. 366; 63 D.L.R.(4th) 573 (T.D.), refd to. [para. 549].

Woods v. Hubley (1995), 146 N.S.R.(2d) 97; 422 A.P.R. 97; 130 D.L.R.(4th) 119 (C.A.), refd to. [para. 549].

Brown Bros. Motor Lease Canada Ltd. v. Ganapathi (1982), 139 D.L.R.(3d) 227, refd to. [para. 553].

274099 Alberta Ltd. v. Development Appeal Board (Sturgeon No. 90 Municipal District) (1990), 112 A.R. 122; 75 D.L.R.(4th) 326 (C.A.), refd to. [para. 558].

Yellowknife v. Yellowknife Development Appeal Board, [1994] N.W.T.J. No. 92 (S.C.), refd to. [para. 558].

Archer v. Society of the Sacred Heart of Jesus (1905), 9 O.L.R. 474 (C.A.), refd to. [para. 560].

Thomson (William E.) and Associates Inc. v. Carpenter (1989), 34 O.A.C. 365; 61 D.L.R. (4th) 1 (C.A.), refd to. [para. 564].

Amoco Australia Pty. Ltd. v. Rocca Bros. Motor Engr.Co. Pty., [1975] A.C. 561, refd to. [para. 588].

R. v. Taylor (1981), 34 O.R.(2d) 360 (C.A.), refd to. [para. 591].

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. 591].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 595].

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. 596].

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. 596].

Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 597].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 629].

Jeddore v. Minister of National Revenue (2003), 310 N.R. 305; 231 D.L.R.(4th) 234 (F.C.A.), refd to. [para. 641].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 649].

Statutes Noticed:

Indian Act, R.S.C. 1886, c. 43, sect. 140 [para. 508].

Indian Act, R.S.C. 1985, c. I-5, sect. 2(1) [para. 433].

Indian Act, S.C. 1876, c. 18, sect. 3.1 [para. 320].

Indian Act, S.C. 1880, c. 28, sect. 14 [para. 463].

Authors and Works Noticed:

Chitty on Contracts (27th Ed. 1994), vol. 1, p. 1194, para. 25-026 [para. 563].

Cohen, Felix S., Handbook of Federal Indian Law (1982), p. 475 [para. 368].

Craies, William Feilden, Statute Law (7th Ed. 1971), p. 395 to 403 [para. 412].

Crawford, James R., The Creation of States in International Law (1979), p. 10 to 26 [para. 483].

Fridman, Gerald Henry Louis, The Law of Agency (7th Ed. 1996), pp. 11, 13, 21 [para. 581].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), pp. 343 [para. 548]; 442, 443, 444 [para. 588].

Halsbury's Laws of England (1983) (4th Ed. - Reissue), vol. 42, p. 240 to 241, paras. 406, 410 [para. 563].

McNair, The Law of Treaties (1961), pp. 52, 53 [para. 484].

Shepherd, J.C., The Law of Fiduciaries (1981), p. 48 [para. 596].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 34 [para. 441]; 36 [para. 442]; 37 [para. 441]; 154 [para. 517]; 155 [para. 518]; 168 [para. 516]; 173 [para. 331]; 201 [para. 412]; 281 [para. 509]; 409 to 419 [para. 590]; 413 [para. 591]; 554 [para. 509].

Waters, Donovan W.M., The Law of Trusts in Canada (2nd Ed. 1984), p. 91 to 128 [para. 369].

Woodward, Jack, Native Law (1994) (Looseleaf), p. 18 [para. 328].

Ziff, Bruce H., Principles of Property Law (2nd Ed. 1996), p. 204 [para. 370].

Counsel:

Michael J. Bailey and Michael Aasen, as agent for Montana;

Sylvie Molgat, for the plaintiff, Montana;

James McFadyen, David Rolf, Priscilla Kennedy, Erin Lafuente, Lynn Angotti, for the plaintiff, Samson;

Marvin Storrow, Barbara Fisher, Tina Dion and Roy Millen, for the plaintiff, Ermineskin;

Wayne Schafer, Doug Titosky, Sheila Read, Krista Epton, Paul Henderson and Maria Mendola-Dow, for the defendant, Her Majesty the Queen.

Solicitors of Record:

Dubuc Osland, for the plaintiff, Montana;

Miller Thomson,  as  agent  for the  plaintiff, Montana;

Parlee McLaws, for the plaintiff, Samson;

Blake Cassels & Graydon LLP, for the plaintiff, Ermineskin;

Department of Justice, for the defendant, for Her Majesty the Queen.

This case was heard in Edmonton, Alberta, on various dates between September 23 and December 11, 2002, January 6 and June 25, 2003 and October 14 and November 27, 2003, before Hansen, J., of the Federal Court, who delivered the following decision on February 28, 2006.