Wewayakum Indian Band v. Canada and Wewayakai Indian Band, (2002) 297 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 06, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2002), 297 N.R. 1 (SCC);2002 SCC 79

Wewayakum Indian Band v. Can. (2002), 297 N.R. 1 (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. DE.009

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) (appellants) v. Her Majesty the Queen (respondent) and Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu and James D. Wilson, suing on behalf of all other members of the Wewaikai Indian Band (also known as the Cape Mudge Indian Band) (respondents/appellants)

Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu, Godfrey Price, Allen Chickite, and Lloyd Chickite, suing on behalf of all other members of the Wewaikai Indian Band (also known as the Cape Mudge Indian Band) (appellants) v. Her Majesty the Queen (respondent) and The Attorney General for Ontario, the Attorney General of British Columbia, the Gitanmaax Indian Band, the Kispiox Indian Band and the Glen Vowell Indian Band (interveners)

(27641; 2002 SCC 79; 2002 CSC 79)

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

Supreme Court of Canada

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

December 6, 2002.

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, in a decision reported 247 N.R. 350, 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. The Indian Bands appealed again.

The Supreme Court of Canada dismissed the appeals. The court stated that the solution to these appeals depended on the law gov­ern­ing fiduciary duty and the equitable remedies claimed by the appellant bands. The court found that there was no breach of fiduciary duty and held that no equitable relief was available either by way of injunc­tion or equitable compensation. In any event, the court held that all claims raised were barred by the expiry of the applicable limita­tion periods.

Equity - Topic 2067

Equitable defences - Laches - Limitation period - [See third and fourth Indians, Inuit and Métis - Topic 3 and first Indians, Inuit and Métis - Topic 802 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See second Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves, alleging a breach of fiduciary duty by the Crown - The Supreme Court of Canada affirmed the dismissal of the claims - The court held that neither band emerged from the historical reserve-cre­ation process with both reserves - The court rejected the fiduciary duty claim and held that no equitable relief was avail­able either by way of in­junction or equi­table compensation - In any event, the court opined that all claims raised were barred by the expiry of the applicable limitation periods - See para­graphs 1 to 138.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - The Supreme Court of Canada discussed the sui generis fiduciary duty owed by the federal Crown to Indians and in particular the application of fiduciary principles to Indian lands - See paragraphs 72 to 87 - The court affirmed the principle that "not all obligations exist­ing between the parties to a fiduciary relationship are themselves fiduciary in nature ... and that this principle applies to the relationship between the Crown and aboriginal peoples" - See paragraph 83.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves, alleging a breach of fiduciary duty by the Crown - The Supreme Court of Canada held that the bands' submissions respecting the existence and breach of a fiduciary duty could not succeed - The court stated that "1. The content of the Crown's fiduciary duty towards aboriginal peoples varies with the nature and impor­tance of the interest sought to be protected. It does not provide a general indemnity; 2. Prior to reserve creation, the Crown exer­cises a public law function under the Indian Act - which is subject to supervi­sion by the courts exercising public law remedies. At that stage a fiduciary rela­tionship may also arise but, in that respect, the Crown's duty is limited to the basic obligations of loyalty, good faith in the discharge of its mandate, providing full disclosure appropriate to the subject matter, and acting with ordinary prudence with a view to the best interest of the aboriginal beneficiaries; 3. Once a reserve is created the content of the Crown's fiduciary duty expands to include the protection and preservation of the band's quasi-proprietary interest in the reserve from exploitation; 4. In this case, as the appellant bands have rightly been held to lack any beneficial interest in the other band's reserve, equi­table remedies are not available either to dispossess an incumbent band that is entitled to the beneficial interest, or to require the Crown to pay 'equitable' com­pensation for its refusal to bring about such a dispossession; 5. Enforcement of equitable duties by equitable remedies is subject to the usual equitable defences, including laches and acquiescence." - See paragraph 86 - The court thereafter expanded on these propositions - See paragraphs 33, 34 and 87 to 112.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves, alleging breaches of fiduciary duty by the Crown and seeking equitable remedies - The Supreme Court of Canada stated that the bands had manifested on several occasions their acknowledgement that the beneficial interest in Reserve No. 11 resided in the Campbell River Band and the beneficial interest in Reserve No. 12 resided in Cape Mudge - The trial judge therefore rightly held that the bands lacked any beneficial interest in the other band's reserve and equitable remedies were not available either to dispossess an incumbent band that was entitled to the beneficial interest, or to require the Crown to pay equitable compensation for its refusal to bring about such a dispossession - The court stated that in any event, enforcement of equitable duties by equitable remedies was subject to the usual equitable defences, including laches and acquiesence - See paragraphs 105 to 106.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves, claiming breaches of fiduciary duties by the Crown and seeking equitable relief - The Supreme Court of Canada held that "both branches of the doctrine of laches and acquiescence applied in this case, namely: (i) where 'the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver', and (ii) such conduct 'results in circumstances that make the prosecution of the action unreasonable' ... Conduct equivalent to a waiver is found in the declaration, repre­sentations and failure to assert 'rights' in circumstances that required assertion, as previously set out. Unreasonable prosecu­tion arises because, relying on the status quo, each band improved the reserve to which it understood its sister band made no further claim. All of this was done with sufficient knowledge 'of the underlying facts relevant to a possible legal claim'" - See paragraphs 107 to 112.

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 (Campbell River) argued that application of the prescription period and s. 39(1) of the Federal Court Act would be contrary to the scheme of the Indian Act because the Indian Act provided an exclusive method of divesting an Indian band of its reserve (i.e., the surrender process) - The Supreme Court of Canada rejected this argument, stating that it was based on a misconstruction of s. 39(1) - See paragraphs 119 and 120.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - Two Indian Bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed possession of two reserves, claiming breaches of fiduciary duties by the Crown - The Supreme Court of Canada discussed when the causes of action arose and the applicable limitation periods - The court held that in any event, the claims asserted in these proceed­ings were all caught by the 30 year ulti­mate limita­tion period in s. 8 of the 1975 Limi­tations Act (B.C.) - The court also rejected the argument that each day that the bands were kept out of possession of the other band's reserve was a continu­ing or fresh breach and therefore a fresh cause of action - To accept this argument would defeat the legislative purpose of limitation periods - See paragraphs 125 to 137.

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 affirmed the deci­sion - The Supreme Court of Canada stated with regard to this issue that the court did not think that "(i) ... resolution of a 'difference of opinion' between sister bands of the same First Nation to which the land had been allocated in the first instance should be characterized as a sur­render, (ii) the land designated as Reserve No. 11 was not an Indian Reserve within the meaning of the Indian Act in 1907; it was still provin­cial Crown property, and (iii) in any event the operation of the surrender provisions of the Indian Act had been suspended (to the extent they were capable of application) by Proclamation of the Privy Council made December 15, 1876 ..." - See paragraphs 35 to 40.

Indians, Inuit and Métis - Topic 5461

Lands - Surrender of lands - General - [See second Indians, Inuit and Métis - Topic 802 and Indians, Inuit and Métis -Topic 2106 ].

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 5507

Lands - Reserves - Creation of - The Supreme Court of Canada reviewed the reserve creation process in British Colum­bia - See paragraphs 14 to 19.

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 - The Supreme Court of Canada stated that in the circumstances it was "unsafe to 'correct' the original schedules" - The solution to the matter lay, not in the law of rectification, but in the law governing fiduciary duty and the equitable remedies sought by the bands - See paragraphs 68 to 71.

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 - Further, Cape Mudge argued that this allocation appeared for a period of time in the Sched­ules of Indian Reserves - 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 affirmed the trial judge's decision - The Supreme Court of Canada did not disturb the trial judge's findings - The court noted, inter alia, that the appearance of the band's name on an Indian Affairs document used for administrative purposes did not create in law a reservation in the band's favour, particularly where the document was based on erroneous information - See paragraphs 25 to 33.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - [See Indians, Inuit and Métis - Topic 2106 ].

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - [See third and fourth Indians, Inuit and Métis - Topic 3 and first Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 581

Equitable limitation periods - Acquies­cence - General - [See third and fourth Indians, Inuit and Métis - Topic 3 and first Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 1904

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

Cases Noticed:

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. 10].

Ross River Dena Council Band et al. v. Canada et al. (2002), 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1 (S.C.C.), refd to. [para. 13].

Ontario Mining Co. v. Seybold, [1903] A.C. 73 (P.C.), refd to. [para. 15].

Dunstan v. Hell's Gate Enterprises Ltd., [1986] 3 C.N.L.R. 47 (B.C.S.C.), refd to. [para. 18].

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. 43].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Develop­ment) et al., [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 43].

St. Catherine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 51].

Ontario Mining Co. v. Seybold (1899), 31 O.R. 386 (H.C.), affd. (1900), 32 O.R. 301 (Div. Ct.), affd. (1901), 32 S.C.R. 1, affd. [1903] A.C. 73 (P.C.), refd to. [para. 51].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 64].

Morishita v. Richmond (Township) (1990), 67 D.L.R.(4th) 609 (B.C.C.A.), refd to. [para. 69].

R. v. Liggetts-Findlay Drug Stores Ltd., [1913] 3 W.W.R. 1025 (Alta. C.A.), refd to. [para. 69].

Cameron v. R., [1927] 2 D.L.R. 382 (B.C.C.A.), refd to. [para. 69].

Morris v. Structural Steel Co. (1917), 35 D.L.R. 739 (B.C.C.A.), refd to. [para. 69].

Rennie's Car Sales and Hicks v. Union Acceptance Corp., [1955] 4 D.L.R. 822 (Alta. C.A.), refd to. [para. 69].

St. Catherine's Milling and Lumber Co. v. R. (1887), 13 S.C.R. 577, refd to. [para. 73].

St. Ann's Island Shooting and Fishing Club Ltd. v. R., [1950] S.C.R. 211, refd to. [para. 73].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 75].

Johnson v. M'Intosh (1823), 21 U.S. (8 Wheat.) 543, refd to. [para. 75].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 75].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 78].

Quebec (Attorney General) v. Canada (National Energy Board) - see Québec (Procureur général) v. Office national de l'énergie.

Québec (Procureur général) v. Office na­tional de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 78].

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. 79].

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. 80].

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. 80].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 80].

R. v. Taylor (1981), 34 O.R.(2d) 360 (C.A.), leave to appeal refused [1981] 2 S.C.R. xi; 37 N.R. 84, refd to. [para. 80].

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

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.), refd to. [para. 82].

Southeast Child & Family Services v. Canada (Attorney General) - see Child and Family Services of Southeast Mani­toba et al. v. Canada (Attorney General).

Child and Family Services of Southeast Manitoba et al. v. Canada (Attorney General), [1997] 9 W.W.R. 236; 120 Man.R.(2d) 114 (Q.B.), refd to. [para. 82].

British Columbia Native Women's Society et al. v. Canada, [1999] F.T.R. Uned. 607; [2000] 1 F.C. 304 (T.D.), refd to. [para. 82].

Paul v. Kingsclear Indian Band et al. (1997), 137 F.T.R. 275 (T.D.), refd to. [para. 82].

Mentuck v. Canada, [1986] 3 F.C. 249 (T.D.), refd to. [para. 82].

Deer and Rainey v. Kahnawake Indian Band (Mohawk Council), [1991] 2 F.C. 18; 41 F.T.R. 306 (T.D.), refd to. [para. 82].

Chippewas of the Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) et al. (1996), 116 F.T.R. 37 (T.D.), affd. (1999), 251 N.R. 220 (F.C.A.), refd to. [para. 82].

Montana Band of Indians v. Canada (Min­ister of Indian Affairs and Northern Development), [1989] 1 F.C. 143; 18 F.T.R. 15 (T.D.), refd to. [para. 82].

Timiskaming Indian Band v. Canada (Min­ister of Indian and Northern Affairs) (1997), 132 F.T.R. 106 (T.D.), refd to. [para. 82].

Ominayak and Lubicon Lake Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1987] 3 F.C. 174; 11 F.T.R. 75 (T.D.), refd to. [para. 82].

Tuplin v. Registrar of Indian and Northern Affairs (2001), 207 Nfld. & P.E.I.R. 292; 620 A.P.R. 292 (P.E.I.T.D.), refd to. [para. 82].

A.P.G. and M.L.G. v. K.H.A. and R.F.T. (1994), 164 A.R. 47; 120 D.L.R.(4th) 511 (Q.B.), refd to. [para. 82].

Lac La Ronge Indian Band et al. v. Canada and Saskatchewan (2001), 213 Sask.R. 1; 260 W.A.C. 1; 206 D.L.R.(4th) 638 (C.A.), refd to. [para. 84].

Cree Regional Authority v. Robinson et al., [1991] 4 C.N.L.R. 84; 46 F.T.R. 193 (T.D.), refd to. [para. 84].

Tsawwassen Indian Band v. Canada (Min­ister of Finance) et al. (1998), 145 F.T.R. 1 (T.D.), refd to. [para. 84].

Westbank First Nation et al. v. British Columbia (Minister of Forests) et al., [2000] B.C.T.C. 575; 191 D.L.R.(4th) 180 (S.C.), refd to. [para. 84].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 92].

R. v. Neil (D.L.) (2002), 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73 (S.C.C.), refd to. [para. 92].

Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302; 11 N.R. 487, refd to. [para. 94].

Samson Indian Nation and Band v. Canada - see Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Develop­ment) et al.

Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Develop­ment) et al., [1995] 2 F.C. 762; 184 N.R. 139 (F.C.A.), refd to. [para. 96].

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. 98].

Kruger v. Canada, [1986] 1 F.C. 3; 58 N.R. 241 (F.C.A.), refd to. [para. 98].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1, refd to. [para. 99].

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. 99].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 107].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2) (2002), 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201 (S.C.C.), refd to. [para. 107].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 109].

Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, refd to. [para. 109].

Harris v. Lindeborg, [1931] S.C.R. 235, refd to. [para. 109].

Canada Permanent Trust Co. v. Lloyd, [1968] S.C.R. 300, refd to. [para. 109].

Blundon et al. v. Storm, [1972] S.C.R. 135; 1 N.S.R. 1965-69 310, refd to. [para. 109].

L'Hirondelle v. R. (1916), 16 Ex. C.R. 193, refd to. [para. 110].

Ontario (Attorney General) v. Bear Island Foundation et al. (1984), 49 O.R.(2d) 353 (H.C.), affd. (1989), 32 O.A.C. 66; 68 O.R.(2d) 394 (C.A.), affd. [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396, refd to. [para. 110].

Chippewas of Sarnia Band v. Canada (Attorney General) et al. (2000), 139 O.A.C. 201; 51 O.R.(3d) 641 (C.A.), refd to. [para. 110].

R. v. Smith - see Canada v. Smith and Ontario (Attorney General) et al.

Canada v. Smith and Ontario (Attorney General) et al., [1983] 1 S.C.R. 554; 47 N.R. 132, refd to. [para. 110].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 115].

Coughlin v. Highway Transport Board (Ont.), [1968] S.C.R. 569, refd to. [para. 116].

Ontario (Attorney General) v. Scott, [1956] S.C.R. 137, refd to. [para. 116].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 121].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 121].

Zakrzewski v. R., [1944] 4 D.L.R. 281 (Ex. Ct.), refd to. [para. 126].

Parmenter v. R., [1956-60] Ex. C.R. 66, refd to. [para. 126].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 131].

Squamish Indian Band v. Canada - see Mathias et al. v. Canada et al.

Mathias et al. v. Canada et al. (2001), 207 F.T.R. 1 (T.D.), refd to. [para. 131].

Semiahmoo Indian Band et al. v. Canada, [1998] 1 F.C. 3; 215 N.R. 241 (F.C.A.), refd to. [para. 137].

Costigan v. Ruzicka (1984), 54 A.R. 385; 13 D.L.R.(4th) 368 (C.A.), refd to. [para. 137].

Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48; 156 F.T.R. 1 (T.D.), refd to. [para. 137].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 15].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 39(1) [para. 114].

Federal Real Property Act, S.C. 1991, c. 50, sect. 13, sect. 14 [para. 117].

Limitations Act, S.B.C. 1975, c. 37, sect. 3(4) [para. 131]; sect. 8 [para. 132]; sect. 14(3) [para. 131].

Limitation Act, R.S.B.C. 1979, c. 236, sect. 2 [para. 108]; sect. 14(1) [para. 125].

Terms of Union (B.C.), R.S.C. 1985, App. II, No. 10 [para. 14].

Authors and Works Noticed:

La Forest, Gerald V., Natural Resources and Public Property under the Canadian Constitution (1969), p. 132 [para. 18].

Maxwell on the Interpretation of Statutes (4th Ed. 1905), p. 344 [para. 69].

McMurtry, William R., and Pratt, Alan, Indians and the Fiduciary Concept, Self-Government and the Constitution: Guerin in Perspective, [1986] 3 C.N.L.R. 19, p. 31 [para. 79].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, p. 753 [para. 79].

Sullivan, Ruth, Statutory Interpretation (1997), pp. 164, 165, 166 [para. 69].

Waters, D.M.W., Law of Trusts in Canada (2nd Ed. 1984), pp. 32, 33 [para. 94].

Counsel:

Michael P. Carroll, Q.C., Malcolm Maclean, Emmet J. Duncan, Monika B. Gehlen and Marvin R.V. Storrow, Q.C., for the appellants, Roy Anthony Roberts et al.;

John D. McAlpine, Q.C., and Allan Donovan, for the respondents/appellants, Ralph Dick et al.;

J. Raymond Pollard, Mitchell R. Taylor and Georg Daniel Reuter, for the respon­dent, Her Majesty the Queen;

E. Ria Tzimas and J.T.S. McCabe, Q.C., for the intervener, the Attorney General for Ontario;

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

Peter R. Grant and David Schulze, for the interveners, the Gitanmaax Indian Band, the Kispiox Indian Band and the Glen Vowell Indian Band.

Solicitors of Record:

Davis & Company, Vancouver, British Columbia, for the appellant, Roy Anthony Roberts et al.;

McAlpine & Associates, Vancouver, Brit­ish Columbia, for the respon­dents/appellants, Ralph Dick et al.;

Richards Buell Sutton, Vancouver, British Columbia, for the respondent, Her Majesty the Queen;

The Office of the Attorney General for Ontario, Toronto, Ontario, for the intervener, the Attorney General for Ontario;

Borden Ladner Gervais, Vancouver, British Columbia, for the intervener, the Attor­ney General of British Columbia;

Hutchins, Soroka & Grant, Vancouver, British Columbia, for the interveners, the Gitanmaax Indian Band, the Kispiox Indian Band and the Glen Vowell Indian Band.

These appeals were heard on December 6, 2001, by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Basta­rache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following decision of the court was delivered in both official languages on December 6, 2002, by Binnie, J.