Wewayakum Indian Band v. Can., (1999) 247 N.R. 350 (FCA)

• Judge: Isaac, C.J., Linden and McDonald, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 12, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 247 N.R. 350 (FCA)

Wewayakum Indian Band v. Can. (1999), 247 N.R. 350 (FCA)

MLB headnote and full text

Temp. Cite: [1999] N.R. TBEd. NO.020

Roy Anthony Roberts, C. Aubrey Roberts and John Henderson, suing on their own behalf and on behalf of all other members of the Wewaykum Indian Band (also known as the Campbell River Indian Band) (plaintiffs/appellants) v. Her Majesty The Queen (defendant/respondent/appellant by cross-appeal) and Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu, and James D. Wilson suing on their own behalf and on behalf of all other members of the Wewayakai Indian Band (also known as the Cape Mudge Indian Band) (defendants/plaintiffs on the counterclaim/respondents/appellants on the counterclaim)

Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu, Godfrey Price, Allen Chickite and Lloyd Chickite, suing on their own behalf and on behalf of all other members of the Wewaikai Indian Band (also known as the Cape Mudge Indian Band) (plaintiffs/appellants) v. Her Majesty The Queen (defendant/respondent/appellant by cross-appeal/appellant by cross-appeal)

(A-655-95)

Indexed As: Wewayakum Indian Band v. Canada and Wewayakai Indian Band

Federal Court of Appeal

Isaac, C.J., Linden and McDonald, JJ.A.

October 12, 1999.

Summary:

Two Indian Bands, the Wewayakum Indian Band (also known as Campbell River Indian Band) and the Wewayakai Indian Band (also known as the Cape Mudge Indian Band) disputed who had the right to have pos­session and exclusive use of two Indian reserves. The reserves in question were the Campbell River Indian Reserve (Reserve No. 11) occupied by the Campbell River Band and the Quinsam Indian Reserve (Reserve No. 12) occupied by the Cape Mudge Band, both located in the Campbell River Area of British Columbia. The Campbell River Indian Band commenced an action (T-2652-85) against the federal Crown and the Cape Mudge Indian Band, seeking declarations resolving the issues of use and possession of the reserves and damages from the Crown for, inter alia, breach of fiduciary duty. The Cape Mudge Indian Band filed a statement of defence and counterclaim. Subsequently, the Cape Mudge Indian Band commenced a separate action against the Crown seeking declaratory and injunctive relief and dam­ages (T-951-89). The actions were joined by court order.

The Federal Court of Canada, Trial Di­vision, in a decision reported 99 F.T.R. 1, dismissed the actions and counterclaim, holding that the claims were statute barred by the British Columbia Limitation Act as incorporated by the Federal Court Act. The court ruled that the Campbell River Indian Band was the beneficial owner of Reserve No. 11 and the Cape Mudge Indian Band was the beneficial owner of Reserve No. 12. The court, notwithstanding that the actions were dismissed, addressed the merits of various issues raised in this matter. The Indian Bands appealed and the Crown cross-appealed.

The Federal Court of Appeal dismissed the appeals and cross-appeals, except for setting aside an award of solicitor and client costs issued by the trial judge against the Cape Mudge Indian Band.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Dam­ages - Two Indian Bands disputed entitle­ment to two reserves and sued the Crown for dam­ages for breach of fiduciary duty - The trial judge dismissed the actions but provisionally assessed damages - The Indian Bands appealed - The Crown cross-appealed that portion of the judge's rea­sons in which he included a compound interest award to account for "unrealized investment income" should the Bands have been entitled to damages for loss of use of the disputed lands - The Federal Court of Appeal, per McDonald, J.A. (Linden, J.A., concurring), held that the Crown's cross-appeals on this issue were misconceived - Here the Crown did not seek any different disposition of the case, it only sought to challenge a portion of the trial judge's reasons - This was contrary to Federal Court Rule 341(1)(a) - See paragraphs 144 to 147.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - Cape Mudge and Campbell River Indian Bands disputed entitlement to Reserve No. 11 - In 1907, the Cape Mudge Indians passed a reso­lution ceding all rights to Reserve No. 11 to the Campbell River Band, but reserving fishing rights - Cape Mudge argued that the Crown breached its fiduciary duty when it approved the 1907 resolution by failing to protect Cape Mudge from an improvident transaction - The Federal Court of Appeal per McDonald, J.A. (Linden, J.A., concurring), held that there was no evidence that the Crown was in breach of its fiduciary duty obligations to either band - The resolution was a bona fide and good faith attempt to resolve the outstanding dispute between two Bands - There was no indication of favouritism, concealment of material facts or improvi­dence - See paragraphs 118 to 127.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Crown argued that two Indian Band claims involving possession of reserve land and the Crown's fiduciary duties were statute barred by the Federal Court Act, s. 39, which directed the court to apply provincial limitation periods, here the British Columbia Limitation Act - The Indian Bands argued that s. 39, if properly construed, meant that the relevant legisla­tion to look at in order to discover whether or not a period of prescription existed to defeat their claims was not the British Columbia Limitation Act, but the Indian Act as it stood at the relevant times - The Federal Court of Appeal, per Isaac, C.J. (Linden, J.A., concurring), rejected the Indian Bands' argument, holding that the court was required to apply the British Columbia Limitation Act, not as provincial law, but as federal law - See paragraphs 25 and 28.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Crown argued that two Indian Band claims involving possession of two reserves and the Crown's fiduciary duties were statute barred by the Federal Court Act, s. 39, which directed the court to apply provincial limitation periods, here the British Columbia Limitation Act - One of the Indian Bands argued that there was a surrender or other alienation of reserve land contrary to the provisions of the Indian Act which would render the pro­visions of the Indian Act controlling - The Federal Court of Appeal, per Isaac, C.J. (Linden, J.A., concurring), rejected the Indian Band's argument, affirming that there had been no surrender or other alienation of either reserve - The court stated that it was required to apply the British Columbia Limitation Act, not as provincial law, but as federal law - See paragraphs 27, 28 and 36.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Crown argued that two Indian Band claims involving possession of reserve land and the Crown's fiduciary duties were statute barred by the Federal Court Act, s. 39, which directed the court to apply provincial limitation periods, here the British Columbia Limitation Act - The Indian Bands argued that s. 39 lacked the requisite plain and clear intention required to extinguish or limit their rights and that any interpretation of s. 39 that would extinguish any of their claims would be contrary to their aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982 - The Federal Court of Appeal, per Isaac, C.J. (Linden, J.A., concurring), held that s. 35 was inapplicable because the Bands' claims were not rooted in any aboriginal or treaty right - Similarly the "clear and plain intention test" to deter­mine whether aboriginal rights were ad­versely affected by legislation had no application -See paragraph 29.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Crown argued that two Indian Band claims involving possession of reserve land and the Crown's fiduciary duties were statute barred by the Federal Court Act, s. 39, which directed the court to apply provincial limitation periods, here the British Columbia Limitation Act - The Indian Bands argued that s. 39 was a direc­tion to the Federal Court to apply only those provincial limitation provisions which were constitutionally valid - The Federal Court of Appeal, per Isaac, C.J. (Linden, J.A., concurring), assuming with­out deciding that s. 39 should be so inter­preted, held that the British Columbia Limitation Act was constitutionally valid - In any event, the British Columbia Limita­tion Act, whether viewed as a provincial law of general application or as a federal law incorporated by reference in s. 39(1) may apply to Indians and lands reserved for Indians - See paragraph 34.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Crown argued that two Indian Band claims involving possession of reserve land and the Crown's fiduciary duties were statute barred by the Federal Court Act, s. 39, which directed the court to apply provincial limitation periods, here the British Columbia Limitation Act - The Indian Bands argued that a provincial court in British Columbia trying an Indian land claim action could not properly apply the British Columbia Limitation Act - The Federal Court of Appeal, Isaac, C.J. (Linden, J.A., concurring), declined to deal with this argument because the issue was not before the court and, except for excep­tional circumstances, courts should refrain from pronouncing on questions of law which do not directly arise from the case before them and are therefore not integral to their proper disposition - The court stated that this is especially so in a consti­tutional case - See paragraph 35.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - Two Indian Bands disputed pos­session of two reserves - The Bands sued the federal Crown alleging breach of fiduciary duty, breach of trust, negligence and breach of statutory duty - The trial judge determined when the causes of action arose and held that the actions were barred by s. 3 of the British Columbia Limitation Act - Further, even if the limi­ta­tion periods were postponed from running under the Act, the claims were barred by the 30 year ultimate limitation period in s. 8 of the Act - The Federal Court of Appeal, per Isaac, C.J. (Linden, J.A., concurring), affirmed that the actions were statute barred by s. 8 of the Act - See paragraphs 39 to 45.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - Two Indian Bands claimed against each other for declaratory relief respecting entitlement, use and possession of two reserves - The Bands also sued the federal Crown alleging breach of fiduciary duty, breach of trust, negligence and breach of statutory duty - The Crown argued that the Bands were barred from seeking equitable relief because of laches and acquiescence - The trial judge agreed that the equitable defence of laches and acquiescence applied to bar any claim for relief which was not otherwise barred by the applicable limitations statute - The court noted that there was unreasonable delay by the Bands (i.e., almost a century) in commencement of the actions - The Federal Court of Appeal affirmed the decision - See paragraphs 50 and 51.

Indians, Inuit and Métis - Topic 2106

Nations, tribes and bands - Bands - Reso­lutions - [See Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 2106

Nations, tribes and bands - Bands - Reso­lutions - Cape Mudge and Campbell River Indian Bands disputed entitlement to Reserve No. 11 - In 1907, the Cape Mudge Indians passed a resolution ceding all rights to Reserve No. 11 to the Campbell River Band, but reserving fish­ing rights - Thereafter, Cape Mudge argued that the 1907 resolution was void for noncom­pliance with the surrender pro­visions in the Indian Act, 1906 - The trial judge held that the surrender provisions of the Indian Act did not apply to transac­tions between Indians of the same group or tribe, such as these Bands, in order to solve a dispute - The Federal Court of Appeal per McDonald, J.A. (Linden, J.A., concurring), affirmed the decision - See paragraphs 103 to 117.

Indians, Inuit and Métis - Topic 5461

Lands - Surrender of lands - General - [See second Indians, Inuit and Métis - Topic 2106 ].

Indians, Inuit and Métis - Topic 5503

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

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves - Cape Mudge argued that the reserves were created in 1888 when they were both surveyed and allotted to Cape Mudge by a Reserve Commission surveyor - The trial judge ruled that the surveyor lacked au­thority to allot reserves - His authority was limited to determining the extent and boundaries of the reserves - The Federal Court of Appeal, per McDonald, J.A. (Linden, J.A., concurring), affirmed the trial judge's decision that Reserve Nos. 10 and 11 were not created at law in 1888 and were not allocated to either band by the Commission surveyor - See paragraphs 96 to 102.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - In 1912, the federal and British Columbia govern­ments established the McKenna McBride Commission - The Federal Court of Canada, Trial Division, held that the func­tion of the Commission was to resolve the ongoing issues between the two levels of government respecting the size and number of Indian reserves in British Columbia - The Commission had the authority to confirm the acreage and allocation of individual reserves but had no authority to re-allocate reserves - The court held that although the Commission was aware of an error in the Schedule of Reserves respect­ing allocation of Reserve No. 12, the Com­mission lacked authority to readjust the allocation - The Federal Court of Appeal, per McDonald, J.A. (Linden, J.A., concur­ring), affirmed the decision - See para­graphs 127 to 140.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - Cape Mudge and Campbell River Indian Bands disputed entitlement to Reserve No. 11 - The 1902 Schedule of Reserves showed Cape Mudge as owning both reserves - In 1907, the Cape Mudge Indians passed a resolution ceding all rights to Reserve No. 11 to the Campbell River Band, but re­serv­ing fishing rights - The 1913 Schedule of Reserves contained a clerical error indicat­ing that both reserves belonged to Campbell River - The error was allegedly corrected in 1943 - Campbell River argued that the confirmation of the sched­ules as attachment to orders-in-council had the legal effect of confirming that both reserves belonged to Campbell River - The trial judge rejected Campbell River's argu­ment and held that he had jurisdiction to correct the clerical error in the Schedule of Reserves - The Federal Court of Appeal, per McDonald, J.A. (Linden, J.A., con­curring), affirmed the decision - See para­graphs 127 to 140.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves - Cape Mudge argued that the reserves were created in 1888 when they were both surveyed and allotted to Cape Mudge by a Reserve Commission surveyor - Campbell River argued that the reserves were created in 1938 with the passage of British Columbia Order in Council 1036 which allegedly confirmed allotment of both reserves to Campbell River - The trial judge held that the reserves were created in 1938 but that there was a clerical error in the Schedule of Reserves incorporated into the Order in Council which incorrectly designated Reserve No. 12 as a Campbell River reserve - The court exercised its jurisdiction to correct the clerical error, thus preserving the status quo respecting reserve entitlement - The Federal Court of Appeal affirmed the trial judge's disposi­tion.

Indians, Inuit and Métis - Topic 5507.1

Lands - Reserves - Entitlement - [See fourth Indians, Inuit and Métis - Topic 5507 ].

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - [See seventh Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 581

Equitable limitation periods - Acquies­cence - General - [See seventh Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 1904

Actions - Ultimate limitation period - [See sixth Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 7604

Actions against the Crown - In the Federal Court of Canada - Applicable law - [See first and second Indians, Inuit and Métis - Topic 802 ].

Practice - Topic 7029

Costs - Party and party costs - Entitle­ment - Successful party - Exceptions - Novel or important point - Two Indian Bands, Cape Mudge and Campbell River, disputed entitlement to each other's reserves - Campbell River sued Cape Mudge seeking declaratory relief and sued the Crown for damages for breach of fiduciary duty - Cape Mudge filed a defence and counter­claim but thereafter commenced a separate action against the Crown - The trial judge dismissed Cape Mudge's action against the Crown with costs on a solicitor client basis where, inter alia, the trial was unduly extended because of the very weak nature of the band's claim and the unduly lengthy presentation of evidence and submissions - The Federal Court of Appeal, per McDonald, J.A. (Linden, J.A., concurring), held that the costs award against Cape Mudge was inappropriate - See paragraphs 141 to 143.

Practice - Topic 7453

Costs - Solicitor and client costs - En­title­ment - Where proceedings unduly pro­longed - [See Practice - Topic 7029 ].

Practice - Topic 9162

Appeals - Cross appeals, notices of con­ten­tion and notices to vary - Scope of (incl. when permitted or available) - [See Equity - Topic 3655 ].

Cases Noticed:

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Develop­ment) et al., [1993] 3 F.C. 28; 151 N.R. 241 (F.C.A.), revsd. [1995] 3 S.C.R. 3; 190 N.R. 89; 130 D.L.R.(4th) 193, refd to. [paras. 16, 124, footnotes 9, 58].

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

Gitanmaax Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) (1989), 27 F.T.R. 47 (T.D.), refd to. [para. 16, footnote 9].

Sterritt et al. v. The Queen - see Gitanmaax Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development).

Lower Kootenay Indian Band v. Canada (1991), 42 F.T.R. 241 (T.D.), refd to. [para. 16, footnote 9].

Luke v. Canada - see Lower Kootenay Indian Band v. Canada.

Kruger v. Canada (1985), 58 N.R. 241; 17 D.L.R.(4th) 591 (F.C.A.), refd to. [paras. 16, 121, footnotes 9, 54].

Ontario (Attorney General) v. Scott, [1956] S.C.R. 137, refd to. [para. 28, footnote 10].

Coughlin v. Ontario (Highway Transport Board), [1968] S.C.R. 569, refd to. [para. 28, footnote 10].

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. [paras. 32, 107, footnotes 15, 45].

Four B Manufacturing Ltd. v. United Gar­ment Workers of America and Labour Relation Board (Ont.) and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 34, footnote 17].

R. v. Francis, [1988] 1 S.C.R. 1025; 85 N.R. 3; 85 N.B.R.(2d) 243; 217 A.P.R. 243, refd to. [para. 35, footnote 18].

Glassco and Quebec (Attorney General) v. Cumming, [1978] 2 S.C.R. 605; 22 N.R. 271, refd to. [para. 35, footnote 18].

Berra v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 43, footnote 20].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 107, footnote 44].

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; 71 D.L.R.(4th) 193, refd to. [para. 108, footnote 46].

Semiahmoo Indian Band et al. v. Canada, [1998] 1 F.C. 3; 215 N.R. 241; 148 D.L.R.(4th) 523 (F.C.A.), refd to. [paras. 48, 119, footnote 50].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14, refd to. [para. 120, foot­note 52].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Develop­ment), [1988] 3 F.C. 20; 10 F.T.R. 122 (T.D.), refd to. [para. 124, footnote 57].

Dunstan v. Hell's Gate Enterprises Ltd., [1986] 3 C.N.L.R. 47 (B.C.S.C.), refd to. [para. 139, footnote 69].

R. v. Eaton, [1973] 4 W.W.R. 101 (B.C.S.C.), refd to. [para. 139, footnote 69].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 142, footnote 71].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 32].

Constitution Act, 1867, sect. 91(24) [para. 29].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 39(1) [para. 18].

Federal Court Rules (1998), rule 341(1)(a) [para. 147].

Indian Act, R.S.C. 1906, c. 43, sect. 2, sect. 48, sect. 49 [para. 111]; sect. 50 [para. 112]; sect. 67 [para. 114].

Limitation Act, R.S.B.C. 1979, c. 236, sect. 3(1)(a), sect. 3(1)(b), sect. 3(3), sect. 3(4), sect. 6(3)(a), sect. 6(3)(b), sect. 6(2), sect. 8 [para. 19].

Order-In-Council, P.C. 1401 (1913), gen­erally [para. 133].

Royal Proclamation of 1763, generally [para. 105].

Authors and Works Noticed:

Driedger, E.A., The Construction of Stat­utes (2nd Ed. 1983), pp. 128, 129 [para. 139, footnote 69].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, p. 742 [para. 108, footnote 45].

Counsel:

John D. McAlpine, Q.C., and Allan Donovan, for the appellants;

Michael C. Carroll, Q.C., and Malcolm MacLean, for the respondents;

J. Raymond Pollard and George D. Reuter, for the respondents;

Patrick G. Foy, Q.C., for the intervenor.

Solicitors of Record:

McAlpine & Associates and Donovan & Company, Vancouver, British Columbia, for the appellants;

Davis & Company and Richard Buell Sutton, Vancouver, British Columbia, for the respondents;

Ladner Downs, Vancouver, British Columbia, for the intervenor.

This appeal was heard on December 7 to 11, 1998, in Vancouver, British Columbia, before Isaac, C.J., Linden and McDonald, JJ.A., of the Federal Court of Appeal. The following decision was delivered by the court on October 12, 1999, including the following opinions:

Isaac, C.J. (Linden, J.A., concurring) - see paragraphs 1 to 53;

Linden, J.A. - see paragraphs 54 and 156;

McDonald, J.A. (Linden, J.A., con­curring) - see paragraphs 55 to 155.