Ross River Dena Council Band et al. v. Canada et al., (2002) 289 N.R. 233 (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 20, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 289 N.R. 233 (SCC);2002 SCC 54;[2002] 3 CNLR 229;289 NR 233;[2002] ACS no 54;[2002] 9 WWR 391;56 DTC 7079;168 BCAC 1;3 BCLR (4th) 201;213 DLR (4th) 193;[2002] 2 SCR 816;[2002] SCJ No 54 (QL)

Ross River Dena Band v. Can. (2002), 289 N.R. 233 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

....................

Temp. Cite: [2002] N.R. TBEd. JN.059

Norman Sterriah, on behalf of all members of the Ross River Dena Council Band, and the Ross River Dena Development Corporation (appellants) v. Her Majesty the Queen in Right of Canada and the Government of Yukon (respondents) and The Attorney General of British Columbia and the Coalition of B.C. First Nations (intervenors)

(27762; 2002 SCC 54; 2002 CSC 54)

Indexed As: Ross River Dena Council Band et al. v. Canada et al.

Supreme Court of Canada

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

June 20, 2002.

Summary:

In 1965, a tract of land in the Yukon (site of the Ross River Band's village) was "set aside" by the Chief of the Resources Divi­sion of the Department of Indian and North­ern Affairs for the Indian Affairs Branch. The Band claimed that the setting aside created a "reserve" as defined in s. 2(1) of the Indian Act. The claim was made to obtain an exemption under s. 87 of the Indian Act from payment of tax on the sale of tobacco under the Tobacco Tax Act.

The Yukon Supreme Court held that a reserve was created and granted a declaration to that effect. The federal Crown appealed.

The Yukon Court of Appeal, Finch, J.A., dissenting, in a judgment reported (1999), 131 B.C.A.C. 219; 214 W.A.C. 219, allowed the appeal. No reserve was created. Although land was set aside, the required intention to create a reserve was not established. The Band appealed.

The Supreme Court of Canada, McLachlin, C.J.C., L'Heureux-Dubé and Bastarache, JJ., concurring in the result, but dissenting on the issue of statutory limits on the royal prerogative, dismissed the appeal. The court affirmed that although land was set aside for the Band, the Crown never intended to establish a reserve within the meaning of the Indian Act.

Crown - Topic 2202

Crown privilege or prerogative - General - Statutory limitations - A majority of the Supreme Court of Canada (Gonthier, Iaco­bucci, Major, Binnie, Arbour and LeBel, JJ.) stated that "the statutory framework ... has limited to some degree but not entirely ousted, the royal prerogative in respect of the creation of reserves within the meaning of the Indian Act in the Yukon. ... If the royal prerogative were completely un-limited by statute, the Crown would essen­tially be able to create reserves, in any manner it wished, including the trans­fer of title by sale, grant or gift to a First Nation or some of its members. However, in the Yukon, so long as the Crown intends to create a reserve as defined by the Indian Act, Parliament has put limits on the scope and effects of the power to create reserves at whim, through the appli­cation of the statutory definition of a reserve in s. 2(1). ... Section 19(d) of the 1952 Territorial Lands Act has similarly placed limits on the royal prerogative with respect to the creation of reserves by estab­lishing a new and different source of au­thority whose exercise may trigger the process of re-serve creation." - A minority of the court (McLachlin, C.J.C., L'Heureux-Dubé and Bastarache, JJ.) disagreed, opin­ing that neither statute limited the royal prerogative to create reserves - See para­graphs 2 to 10, 54 to 66.

Indians, Inuit and Métis - Topic 5502

Lands - Reserves - What constitutes - [See both Indians, Inuit and Métis - Topic 5507 ].

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - The Supreme Court of Canada held that a "reserve" as defined by s. 2(1) of the Indian Act was created only where (1) the federal Crown set aside Crown land for use by an Indian band and (2) there was an intention to create a reserve by persons having authority to bind the Crown - The court stated that "in the Yukon Territory as well as elsewhere in Canada, there appears to be no single procedure for creating reserves, although an Order-in-Council has been the most common and undoubtedly best and clearest procedure used to create reserves. ... Whatever method is employed, the Crown must have had an intention to create a reserve. This intention must be possessed by Crown agents holding suffi­cient authority to bind the Crown. ... Steps must be taken to set apart land. The setting apart must occur for the benefit of Indians. And, finally, the band concerned must have started to make use of the lands so set apart. Hence, the process remains fact-sensitive." - See paragraph 67.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - An Indian Band settled a village at the junction of two rivers in the Yukon - Since the 1950's, local agents of the Department of Indian and Northern Affairs and others recommended creation of a reserve - The federal government consistently took the position that no reserve would be created -In 1965, a tract of land was "set aside" by the Chief of the Resources Division of the Department of Indian and Northern Affairs for the Indian Affairs Branch - The Band now claimed that a "reserve" as defined by s. 2(1) of the Indian Act had been created - The Supreme Court of Canada affirmed that no reserve was created where there was no intention to create a reserve by persons having authority to bind the Crown - The land had been set aside for the Indian Affairs Branch, not specifically for the Band - The court stated that "the evi­dence shows that no person having the authority to bind the Crown ever agreed to the setting up of a reserve at Ross River. Every representation made by those Crown officials actually in a position to set apart the lands was to the effect that no reserves existed in the Yukon Territory and that it was contrary to government policy to create reserves there." - See paragraphs 12 to 76.

Cases Noticed:

Operation Dismantle Inc. et al. v. Canada et al., [1983] 1 F.C. 745; 49 N.R. 363 (F.C.A.), affd. [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 4].

Attorney-General v. De Keyser's Royal Hotel Ltd., [1920] A.C. 508, refd to. [para. 4].

R. v. Eldorado Nuclear Ltd.; R. v. Ura­nium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243, refd to. [para. 4].

Sparling v. Quebec, [1988] 2 S.C.R. 1015; 89 N.R. 120; 20 Q.A.C. 174, refd to. [para. 4].

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. 52].

Hay River (Town) v. R. and Sanfrère, [1980] 1 F.C. 262 (F.C.T.D.), refd to. [para. 57].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 64].

Canadian Pacific Ltd. et al. v. Paul, [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 67].

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. 68].

Statutes Noticed:

Indian Act, S.C. 1876, c. 16, sect. 3, sect. 6 [para. 29].

Indian Act, R.S.C. 1985, c. I-5, sect. 2(1), sect. 2(2), sect. 18(1), sect. 21, sect. 87(1) [para. 5].

Territorial Lands Act, R.S.C. 1952, c. 263, sect. 18(d) [para. 5].

Territorial Lands Act, R.S.C. 1985, c. T-7, sect. 23(d) [para. 29].

Authors and Works Noticed:

Bartlett, Richard H., Indian Reserves and Aboriginal Lands in Canada: A Home­land: A Study in Law and History (1990), pp. 24, 25 [para. 5].

Canada, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1, Looking Forward, Looking Back, pp. 463 to 485; vol. 2, Restructuring the Relationship, pp. 479 to 484 [para. 14].

Evatt, Herbert Vere, The Royal Prerogative (1987), p. 44 [para. 4].

Hogg, Peter W., Constitutional Law of Canada (Loose-leaf Ed. 2001) (release 1), vol. 1, p. 1:14 [para. 54].

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), p. 17 [para. 54].

Lordon, Paul, Crown Law (1991), pp. 66, 67 [para. 54]; 96 [para. 3].

Woodward, Jack, Native Law (Loose-leaf Ed. 2001)(release 2), pp. 247, 248 [para. 44].

Counsel:

Brian A. Crane, Q.C., and Ritu Gambhir, for the appellants;

Brian R. Evernden and Jeffery A. Hutch­inson, for the respondent, Her Majesty the Queen in Right of Canada;

Penelope Gawn and Lesley McCullough, for the respondent, the Government of Yukon;

Richard J.M. Fyfe, Paul E. Yearwood and Patrick G. Foy, Q.C., for the intervenor, the Attorney General of British Colum­bia;

Leslie J. Pinder, for the intervenor, the Coalition of B.C. First Nations.

Solicitors of Record:

Gowling Lafleur Henderson, Ottawa, Ontario, for the appellants;

Attorney General of Canada, Ottawa, Ontario, for the respondent, Her Majesty the Queen in Right of Canada;

Minister of Justice of the Yukon Terri­tory, Whitehorse, Yukon Territory, for the respondent, the Government of Yukon;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, the Attorney General of Brit­ish Columbia;

Mandell Pinder, Vancouver, British Columbia, for the intervenor, the Coali­tion of B.C. First Nations.

This appeal was heard on December 11, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Basta­rache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On June 20, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Bastarache, J. (McLachlin, C.J.C., and L'Heureux-Dubé, J., concurring), dis­senting in part - see paragraphs 1 to 10;

LeBel, J. (Gonthier, Iacobucci, Major, Binnie and Arbour, JJ., concurring) - see paragraphs 11 to 79.