Musqueam Indian Band et al. v. Glass et al., (2000) 261 N.R. 296 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 12, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 261 N.R. 296 (SCC);2000 SCC 52

Musqueam Indian Band v. Glass (2000), 261 N.R. 296 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.R. TBEd. NO.017

Mary Glass et al. [names of other parties omitted] (appellants/respondents on cross-appeal) v. Musqueam Indian Band and Chief Joseph Ralph Becker, Ernie Campbell, Wayne Sparrow, Leona M. Sparrow, Nolan Charles, Mary Charles, Johnna Crawford, Gail Y. Sparrow, Myrtle McKay, Larry Grant (respondents/appellants on cross-appeal) and Her Majesty The Queen (respondent)

(27154; 2000 SCC 52)

Indexed As: Musqueam Indian Band et al. v. Glass et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

November 9, 2000.

Summary:

An Indian Band surrendered reserve land to the Crown in trust for the purpose of leasing the land. The Crown entered into a master agreement with Musqueam Develop­ment Co. (Musqueam), under which Mus­queam serviced and subdivided the land into lots. The Crown then leased the lots to Musqueam. Musqueam assigned the lots to individuals, who built houses on the lots. The Crown eventually transferred manage­ment authority to the Band so that the Band received rent directly. Each lease term was 99 years. Lot rent for the first 30 years was a fixed amount. After the first 30 years the rent would be 6% of the "current land value" (set for 20 year periods). The Band and the tenants could not agree on the meaning of "current land value" and applied for a deter­mination.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 137 F.T.R. 1, determined how the current land value was to be calculated. The Band and the Crown appealed.

The Federal Court of Appeal, in a decision reported at 235 N.R. 164, allowed the appeal in part. The tenants appealed. The Band cross-appealed with respect to deductions for servicing costs.

The Supreme Court of Canada, McLachlin, C.J.C., L'Heureux-Dubé, Iacobucci and Arbour, JJ., dissenting in part, allowed the appeal and dismissed the cross-appeal.

Indians, Inuit and Métis - Topic 5445

Lands - Lease of lands - Rent - Determi­nation of - An Indian Band surrendered reserve land to the Crown in trust for the purpose of leasing the land - Under a master agreement between Musqueam Development Co. and the Crown, Mus­queam serviced and subdivided the land - The Crown leased the lots to Musqueam, who assigned them to individuals - Each lease term was 99 years - Lot rent was fixed for the first 30 years - Thereafter, the rent would be 6% of the "current land value" (set for 20 years) - The Supreme Court of Canada held that the "current land value" was 50% of that of comparable off-reserve lots - Gonthier, J. (Major, Binnie and LeBel, JJ., concurring) held that "cur­rent land value" referred to free­hold as opposed to leasehold value, but that it referred to freehold on the reserve, not off the reserve - See paragraphs 35 to 53 - Bastarache, J., held that "current land value" should be calculated as leasehold land, including its status as reserve land - See paragraphs 59 to 69.

Indians, Inuit and Métis - Topic 5445

Lands - Lease of lands - Rent - Determi­nation of - An Indian Band surrendered reserve land to the Crown in trust for the purpose of leasing the land - Under a master agreement between Musqueam Development Co. and the Crown, Mus­queam serviced and subdivided the land - The Crown leased the lots to Musqueam, who assigned them to individuals - Each lease term was 99 years - Lot rent was fixed for the first 30 years - Thereafter, the rent would be 6% of the "current land value" (set for 20 years) - In determining current land value the parties would assume that the lands were "un­improved lands in the same state as they were on the date of the agreement" - The Supreme Court of Canada held that "un­improved lands" meant "unserviced" lands, not just lands without buildings - The court deducted the cost of servicing the lands in determining the current land value - See paragraphs 1, 54 to 57 and 59.

Landlord and Tenant - Topic 2399

The lease - Renewals - Rental rate - Calcu­lation of - [See first Indians, Inuit and Métis - Topic 5445 ].

Words and Phrases

Current land value - The Supreme Court of Canada discussed the meaning of "cur­rent land value" in a rent renewal provi­sion of long term leases of land on an Indian reserve.

Cases Noticed:

Ball v. Gutschenritter, [1925] S.C.R. 68, refd to. [paras. 9, 36].

Revenue Properties Co. v. Victoria Uni­versity (1993), 62 O.A.C. 351; 101 D.L.R.(4th) 172 (Div. Ct.), refd to. [paras. 9, 37, 65].

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. 13].

St. Mary's Indian Band et al. 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. 13].

Golden Acres Ltd. v. Canada (1988), 22 F.T.R. 123 (T.D.), refd to. [para. 16].

Rodgers et al. v. Canada (1993), 74 F.T.R. 164 (T.D.), refd to. [paras. 18, 42, 68].

Devil's Gap Cottages (1982) Ltd. v. Canada, [1991] F.C.J. No. 1142 (T.D.), refd to. [paras. 18, 42, 68].

Steel Brothers Canada Ltd. v. Canada (1986), 1 F.T.R. 22 (T.D.), refd to. [para. 18].

Leighton et al. v. Canada (No. 1) (1987), 13 F.T.R. 198 (T.D.), refd to. [para. 30].

Farlinger Developments Ltd. v. East York (Borough) (1975), 61 D.L.R.(4th) 172 (C.A.), refd to. [para. 37].

Sunlife Assurance Co. of Canada v. Montreal (City), [1950] S.C.R. 220, refd to. [para. 37].

Bullock's Inc. v. Security-First National Bank of Los Angeles (1958), 325 P.2d 185 (Cal. Dist. Ct. App.), refd to. [para. 38].

Burrard Dry Dock Co. v. Canada, [1974] F.C.J. No. 417 (T.D.), refd to. [para. 38].

No. 100 Sail View Ventures Ltd. v. Jan­west Equities Ltd. (1993), 36 B.C.A.C. 290; 58 W.A.C. 290; 84 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 38].

British Gas Corp. v. Universities Superan­nuation Scheme Ltd., [1986] 1 W.L.R. 398 (Ch.D.), refd to. [para. 40].

Guerin et al. v. Canada, [1983] 1 C.N.L.R. 21; 45 N.R. 181 (F.C.A.), refd to. [para. 48].

Planet Parking Ltd. v. Metropolitan Toronto Assessment Commissioner, [1970] 3 O.R. 657 (H.C.), refd to. [para. 56].

Authors and Works Noticed:

Appraisal Institute of Canada, The Apprai­sal of Real Estate (Canadian Ed. 1999), pp. 17 [para. 64]; 269 [para. 14]; 270 [paras. 14, 47].

Friedman on Leases (1974), vol. II, p. 567 [para. 10].

Megarry, R.E., and Wade, W., The Law of Real Property (6th Ed. 2000), para. 14-246 [para. 40].

Counsel:

Jack Giles, Q.C., Kerry-Lynne D. Findlay, Q.C., and Ludmilla B. Herbst, for the appellants/respondents on the cross-appeal;

Darrell W. Roberts, Q.C., Wendy A. Baker, Lewis Harvey and Leonna Spar­row, for the respondents/appellants on the cross-appeal;

Mitchell R. Taylor and Keith J. Phillips, for the Crown.

Solicitors of Record:

Farris, Vaughan, Wills and Murphy, Van­couver, British Columbia, for the appel­lants/respondents on cross-appeal;

Roberts & Baker, Vancouver, British Col­umbia, for the respondents/appellants on cross-appeal;

The Attorney General of Canada, Van­couver, British Columbia, for the Crown.

This appeal was heard on June 12, 2000, by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The judgment of the court was delivered in both official languages on November 9, 2000, and the following opinions were filed:

McLachlin, C.J.C, dissenting in part (L'Heureux-Dubé, Iacobucci and Ar­bour, JJ., concurring) - see para­graphs 1 to 21;

Gonthier, J. (Major, Binnie and LeBel, JJ., concurring) - see paragraphs 22 to 58;

Bastarache, J., concurring in the result - see paragraphs 59 to 69.