Wewayakum Indian Band v. Canada and Wewayakai Indian Band, (1995) 99 F.T.R. 1 (TD)

JudgeTeitelbaum, J.
CourtFederal Court (Canada)
Case DateSeptember 02, 1994
JurisdictionCanada (Federal)
Citations(1995), 99 F.T.R. 1 (TD)

Wewayakum Indian Band v. Can. (1995), 99 F.T.R. 1 (TD)

MLB headnote and full text

Roy Anthony Roberts, C. Aubrey Roberts and John Henderson, suing on their own behalf and on behalf of all other members of the Wewayakum Indian Band (also known as the Campbell River Indian Band) (plaintiffs) v. Her Majesty the Queen, 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)

(T-2652-85)

Ralph Dick, Daniel Billy, Elmer Dick, Stephen Assu, Godfrey Price, Allan Chickite and Lloyd Chickite suing on their own behalf and on behalf of all members of the Wewaikai Indian Band (also known as the Cape Mudge Indian Band) (plaintiffs) v. Her Majesty the Queen (defendant)

(T-951-89)

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

Federal Court of Canada

Trial Division

Teitelbaum, J.

September 19, 1995.

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, 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.

Courts - Topic 103

Stare decisis - Authority of judicial decisions - American decisions - The Federal Court of Canada, Trial Division, held that American jurisprudence was not relevant in considering the issue of post Confederation Indian reserve creation in British Columbia where "the very unique features of Canadian constitution law are most relevant and applicable" - See paragraph 277.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Damages - Two Indian bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves - Both bands sued the Crown alleging breach of fiduciary duty - The bands sought monetary compensation in an amount equivalent to the present value of the reserves, plus compensation for the potential revenues and actual revenues lost (together with compound interest) from the use of the reserves - The Federal Court of Canada, Trial Division, held that there was no breach of fiduciary duty by the Crown in its dealings with the bands respecting the reserves - The court, however, discussed the assessment of damages for breach of fiduciary duty and provisionally assessed damages - See paragraphs 594 to 647.

Evidence - Topic 3353

Documentary evidence - Judicial proceedings - Pleadings - Admissibility - The plaintiff, Cape Mudge Indian Band, sued the Crown for damages, alleging, inter alia, a breach of fiduciary duty by the Crown in allotting reserve land - The Crown filed a statement of defence - Thereafter Cape Mudge consented to amendment of the statement of defence - At trial, Cape Mudge, argued that the original statement of defence contained an admission on the part of the Crown, and sought to have the pleadings, including the pre-amendment statement of defence tendered as evidence - The Federal Court of Canada, Trial Division, ruled that the pleadings were not admissible - See paragraphs 550 to 582.

Evidence - Topic 4765

Witnesses - Examination - Prior inconsistent statements - Cross-examination - By party producing the witness - The plaintiff, Cape Mudge, sued the Crown for damages - Cape Mudge called a Crown employee as its witness, and then desired to cross-examine him pursuant to British Columbia Rules 40(17) and 40(20) - These rules created an exception to the general rule that a witness called by a party cannot be cross-examined by that party unless the witness is ruled hostile, in situations where the witness who is being called is an adverse party in the litigation or is a director, officer, partner, employee or agent of the adverse party - The Federal Court of Canada, Trial Division, held British Columbia Rule 40 was applicable by virtue of the Canada Evidence Act, s. 40 and Cape Mudge was entitled to cross-examine the witness - See paragraphs 585 to 588.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - Two Indian bands, Cape Mudge and Campbell River, disputed entitlement to two reserves - Both bands alleged that the Crown breached its fiduciary duties respecting allocation of the reserves - The Federal Court of Canada, Trial Division, held that the Crown owed a fiduciary duty to both bands to balance and reconcile their interests and to resolve their conflict respecting the reserves - In resolving the conflict, the Crown's duty was not to favour the interests of one band over the interests of the other - The court examined the Crown's conduct in dealing with the bands' dispute and held that there was no breach of fiduciary duty - See paragraphs 479 to 501 - The court, however, provisionally assessed damages - See paragraphs 590 to 647.

Indians, Inuit and Métis - Topic 5

Interpretation of legislation - [See third Indians, Inuit and Métis - Topic 5461 ].

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 the broad and general provision in s. 39 should not be construed to defeat the express and specific Indian Act provisions making any alienation of a band's interest in a reserve void unless done by surrender - Since the Indian Act provided the only means to dispossess a band of its right to its reserve, provincial limitation periods could not be used to do so - The Federal Court of Canada, Trial Division, rejected the Indian bands' argument - See paragraphs 151 to 153, 175.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Crown argued that two Indian Band claims involving reserve land 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 bands challenged the constitutionality of s. 39, arguing that the incorporation of provincial laws by reference was limited to constitutionally applicable provincial law (i.e., it was unconstitutional to apply the provincial prescriptive period to Indian lands because Indian lands fell solely within federal jurisdiction) - The Federal Court of Canada, Trial Division, rejected the constitutional challenge - The limitation periods prescribed by the B.C. Limitation Act were incorporated by reference as federal law by s. 39 and as such, these limitation periods applied as valid federal law to bar the bands' claims and there was no application of provincial law - See paragraphs 154 to 175.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Cape Mudge Indian Band sought declarations respecting entitlement, use and possession of two reserves - The Crown argued that the Band's claim was statute barred (British Columbia Limitation Act) - The Band argued that the limitation periods did not apply to declarations of existing legal rights - The Federal Court of Canada, Trial Division, held that the Band's claim was statute barred - The court noted that the facts giving rise to the declarations sought were alleged to have occurred around 1907, well outside any applicable limitation period - Further, the balance of convenience would favour preservation of the status quo where granting the declaration would vest undue hardship on the unsuccessful band which would be evicted from their reserve - See paragraphs 177 to 180.

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 - A limitation period issue arose - The bands argued that no limitation period should apply to bar the court from granting declaratory relief - The Federal Court of Canada, Trial Division, rejected the bands' argument, and determined that the bands' claims for declaratory relief were statute barred by the British Columbia limitations legislation - See paragraphs 201 to 206.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - The Cape Mudge Indian Band sued the Crown for damages for breach of fiduciary duty during the settling of reserve land around 1907 - The Crown argued that the Band's claim was statute barred (Federal Court Act, s. 39 and British Columbia Limitation Act) - The Band argued that the limitation periods were inapplicable because the Band's claim against the Crown was "on going" and arose fresh each day that the breach of fiduciary duty remained unrectified - The Federal Court of Canada, Trial Division, held that "no fresh cause of action" had arisen independently of the alleged original breach of fiduciary duty which occurred outside the limitation period and the Band's claim was therefore statute barred - See paragraphs 181 to 188.

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 Federal Court of Canada, Trial Division, determined when the causes of action arose and held that the actions were barred by s. 3 of the B.C. 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 - See paragraphs 192 to 200.

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 Federal Court of Canada, Trial Division, 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 - See paragraphs 207 to 214.

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 occupied by the Campbell River Band but shown on the federal government's Schedule of Reserves around 1900 as belonging to Cape Mudge - In 1907, the Cape Mudge Indians passed a resolution ceding all rights to Reserve No. 11 to the Campbell River Indian Band, reserving fishing rights for Cape Mudge - Thereafter, Cape Mudge argued that the 1907 resolution was void, where because of communication problems between the Indian Agent and the Indians, it was unlikely that the resolution was passed with a full understanding by the Indians of its terms and effects - The Federal Court of Canada, Trial Division, held that the 1907 resolution was unanimously passed with a full understanding of its terms and effect - See paragraphs 387 to 430.

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 Federal Court of Canada, Trial Division, 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 - Alternatively, the surrender provisions were inapplicable to the 1907 resolution because the resolution did not constitute a sale, lease or alienation within the meaning of the Act - See paragraphs 387 to 417 and 431 to 445.

Indians, Inuit and Métis - Topic 5461

Lands - Surrender of lands - General - The Federal Court of Canada, Trial Division, reviewed jurisprudence and legal writing dealing with surrenders - See paragraphs 433 to 445.

Indians, Inuit and Métis - Topic 5461

Lands - Surrender of lands - General - The Federal Court of Canada, Trial Division, stated that "... restraints on the alienability of reserve land contained in the Indian Act were never intended to restrict the resolution of reserve allocation issues among Indians of the same band or tribe. As such the surrender provisions applied only to transactions between natives and non-natives" - See paragraph 434.

Indians, Inuit and Métis - Topic 5461

Lands - Surrender of lands - General - The Indian Act, 1906, s. 48, provided that "... no reserve or portion of a reserve shall be sold, alienated or leased until it has been released or surrendered to the Crown ..." - The Federal Court of Canada, Trial Division, agreed that "by applying the noscitur a sociis doctrine to the words 'sold, alienated or leased', alienated must be interpreted with reference to the meaning of the more specific words 'sold' and 'leased'. Therefore, read in this context, the word 'alienated' must be interpreted narrowly to contemplate a positive act of conveying title in a reserve to a third party" - See paragraph 441.

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 - The Federal Court of Canada, Trial Division, noted that the post Confederation reserve creation process in British Columbia was unique and different from that of the rest of Canada and had a complicated history - The court discussed the constitutional process involved in creation of reserves in British Columbia - The court concluded that at law reserves in British Columbia were created in 1938 with the passage of British Columbia Order in Council 1036 - This was the culmination of a process which began with the Reserve Commissioners defining the lands to be set aside for Indians in British Columbia and ended with the transfer of administration and control as well as the proprietary interest in the reserve lands to Canada - See paragraphs 215 to 277.

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 Federal Court of Canada, Trial Division, 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 - See paragraphs 215 to 277 and 459 to 478.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - In 1875, the British Columbia and Canadian governments appointed Reserve Commissioners to recommend allotments of land for the benefit of the Indians in British Columbia - The Cape Mudge Indian Band argued that during this process, in 1888, Reserve Nos. 11 and 12 were irrevocably allotted to Cape Mudge - The Federal Court of Canada, Trial Division, held that the mandate and the general practice of the Reserve Commissioners was to recommend that reserves be set aside for larger Indian nations or tribal groups, rather than to subgroups of Indians - The court determined that Reserves No. 11 and 12 were originally defined by the Commissioners for the Laichkwiltach Indians, rather than for the subgroup Cape Mudge - There was therefore no irrevocable allotment to Cape Mudge in 1888 - See paragraphs 278 to 386.

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 - See paragraphs 467 to 475.

Indians, Inuit and Métis - Topic 5507.1

Lands - Reserves - Entitlement - Two Indian bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves - Each band claimed entitlement to the reserve occupied by the other band - The Federal Court of Canada, Trial Division, dismissed the bands' claims to each other's reserves, holding, inter alia, that the conduct of the bands since 1912 was inconsistent with their present claims to ownership of the reserves - See paragraphs 502 to 549.

Indians, Inuit and Métis - Topic 5507.1

Lands - Reserves - Entitlement - Two Indian bands, Cape Mudge (which occupied Reserve No. 12) and Campbell River (which occupied Reserve No. 11) disputed entitlement to the two reserves - Both bands sought declarations that each was entitled to the other's reserve and sought injunctions restraining the other band from using the reserve it claimed - The Federal Court of Canada, Trial Division, dismissed the bands' claims as being statute barred - The court opined that even if it was wrong in its determination, this was not a case where the court would exercise its discretion to grant declaratory and injunctive relief - See paragraphs 590 to 593.

Indians, Inuit and Métis - Topic 5507.1

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

Interest - Topic 5008

Interest as damages (prejudgment interest) - Prejudgment interest - Entitlement - Two British Columbia Indian bands, Cape Mudge and Campbell River, disputed entitlement to each other's reserve - Both bands sued the Crown, alleging breach of fiduciary duty respecting reserve allocation in the late 1800's and early 1900's - The Federal Court of Canada, Trial Division, dismissed the bands' action but provisionally assessed damages - The court opined that the bands would only have been entitled to prejudgment interest from February 1, 1992 (the date the Crown Liability and Proceedings Act (Can.) came into force) to the date of judgment in accordance with the British Columbia law relating to prejudgment interest - See paragraphs 648 to 652.

Interest - Topic 5401

Interest as damages (prejudgment interest) - Breach of fiduciary relationships - General - [See Interest - Topic 5008 ].

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 1905

Actions - Breach of fiduciary duty - [See fifth Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 1907

Actions - Declaratory relief - [See third and fourth Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 7604

Actions against the Crown - In the Federal Court of Canada - Applicable law - [See 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 Federal Court of Canada, Trial Division, dismissed Campbell River's action without costs where the action was necessary to confirm the band's entitlement to its reserve in light of a clerical error in the legislation creating the reserve - The court dismissed Cape Mudge's action 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 - See paragraphs 653 to 656.

Practice - Topic 7453

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

Statutes - Topic 2612

Interpretation - Words and phrases - Interpretation by context - Noscitur a sociis - [See third Indians, Inuit and Métis - Topic 5461 ].

Statutes - Topic 4608

Operation and effect - Legislation by reference - Effect of incorporation by reference to another statute - [See second Indians, Inuit and Métis - Topic 802 ].

Words and Phrases

Alienated - The Federal Court of Canada, Trial Division, discussed the meaning of this word as it appeared in s. 48 of the Indian Act, R.S.C. 1906, c. 43 - See paragraphs 439 to 445.

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.), folld. [para. 155 et seq.].

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

Canada v. Smith (1981), 34 N.R. 91; 113 D.L.R.(3d) 522 (F.C.A.), dist. [paras. 156, 172].

Derrickson v. Derrickson et al., [1986] 1 S.C.R. 285; 65 N.R. 278, dist. [paras. 156, 172, 173].

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; 53 D.L.R.(4th) 487, dist. [paras. 156, 172, 173, 256, 262].

Delgamuukw et al. v. British Columbia et al. (1993), 30 B.C.A.C. 1; 49 W.A.C. 1; 104 D.L.R.(4th) 470 (C.A.), refd to. [paras. 159, 225].

Meherally et al. v. Minister of National Revenue (1987), 74 N.R. 260; 37 D.L.R.(4th) 609 (F.C.A.), refd to. [para. 162].

Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680; 89 N.R. 81; 89 N.B.R.(2d) 116; 226 A.P.R. 116; 54 D.L.R.(4th) 679, refd to. [para. 163].

Coughlin v. Ontario (Highway Transport Board) (1968), 68 D.L.R.(2d) 384 (S.C.C.), refd to. [para. 163].

Zakrzewski v. Canada, [1944] 4 D.L.R. 281 (Ex. Ct.), refd to. [para. 167].

Parmenter v. Canada, [1956-60] Ex. C.R. 66 (Ex. Ct.), refd to. [para. 167].

Kruger v. Canada (1985), 58 N.R. 241; 17 D.L.R.(4th) 591 (F.C.A.), folld. [para. 168 et seq.].

Gitanmaax Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development), [1989] 3 C.N.L.R. 189; 27 F.T.R. 47 (T.D.), folld. [paras. 169, 171, 178, 202].

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. 169 et seq.].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241; 28 D.L.R.(4th) 641, refd to. [para. 174].

Architectural Institute (British Columbia) v. Lee's Design & Engineering Ltd. (1979), 96 D.L.R.(3d) 385 (B.C.S.C.), dist. [para. 179].

Montana Indian Band et al. v. Canada, [1991] 2 F.C. 30; 120 N.R. 200 (F.C.A.), dist. [para. 179].

Roberts v. Portage la Prairie (City) (1971), 17 D.L.R.(3d) 722 (S.C.C.), dist. [paras. 183, 184].

Toronto General Trust Corp. v. Roman, [1963] 1 O.R. 312 (C.A.), dist. [para. 183].

Laskin v. Bache & Co. Inc., [1972] 1 O.R. 465 (C.A.), dist. [para. 183].

Standard Investments Ltd. et al. v. Canadian Imperial Bank of Commerce (1985), 11 O.A.C. 318; 22 D.L.R.(4th) 410 (C.A.), dist. [para. 183].

National Coal Board v. Galley, [1958] 1 W.L.R. 16 (C.A.), refd to. [para. 185].

Costigan v. Ruzicka (1984), 54 A.R. 385; 13 D.L.R.(4th) 368 (C.A.), refd to. [para. 188].

Buckland v. Ibbotson (1902), 28 V.L.R. 688 (Vic. S.C.), refd to. [para. 188].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 193].

Pawlett v. Newfoundland and Newfoundland (Ministry of Forestry and Mines) (1984), 48 Nfld. & P.E.I.R. 74; 231 A.P.R. 74; 12 D.L.R.(4th) 755 (Nfld. C.A.), dist. [para. 202].

Martindale v. Canada, [1956-1960] Ex. C.R. 153 (Ex. Ct.), dist. [para. 202].

Ontario Mining Co. v. Seybold, [1903] A.C. 73 (P.C.), dist. [paras. 202, 220, 226, 240, 260].

Canada v. Smith, [1981] 1 F.C. 346; 34 N.R. 91 (F.C.A.), dist. [para. 202].

K.M. v. H.M., [1992] 3 S.C.R. 3; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 208].

Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221 (P.C.), refd to. [para. 208].

St. Ann's Island Shooting & Fishing Club Ltd. v. R., [1950] S.C.R. 211, dist. [paras. 209, 447].

R. v. Cowichan Agricultural Society, [1950] Ex. C.R. 488, dist. [paras. 209, 447].

Easterbrook v. R., [1931] S.C.R. 210, dist. [paras. 209, 447].

British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R. 156 (C.A.), refd to. [para. 215 et seq.].

Dunstan v. Hell's Gate Enterprises et al., [1986] 3 C.N.L.R. 47; 22 D.L.R.(4th) 568 (B.C.S.C.), refd to. [para. 219 et seq.].

St. Catherine's Milling and Lumber Co. v. R., [1889] A.C. 236 (P.C.), refd to. [para. 220].

Bonanza Creek Gold Mining Co. v. R., [1916] 1 A.C. 566 (P.C.), refd to. [para. 223].

Breckenridge Speedway Ltd. v. Alberta, [1970] S.C.R. 175, refd to. [para. 225].

British Columbia (Attorney General) v. Canada (Attorney General) (1889), 14 App. Cas. 295 (P.C.), refd to. [para. 229].

Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.), refd to. [paras. 232, 235, 258].

R. v. Farwell (1887), 14 S.C.R. 392, refd to. [para. 238].

Manitoba (Attorney General) v. Canada (Attorney General), [1904] A.C. 799 (P.C.), refd to. [paras. 239, 259].

British Columbia (Attorney General) v. Canada (Attorney General)(Deadman's Island case), [1906] A.C. 522 (B.C.P.C.), dist. [paras. 256, 268].

Jules v. Harper Ranch Ltd., [1989] 3 C.N.L.R. 67 (B.C.S.C.), dist. [para. 256].

Canada (Attorney General) v. Ontario (Attorney General) (1894), 23 S.C.R. 458, refd to. [para. 269].

Canada (Attorney General) v. Western Higbie, [1945] 3 D.L.R. 1 (S.C.C.), refd to. [paras. 269, 270, 273].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, dist. [paras. 271, 277, 434, 445, 596, 652].

Hay River (Town) v. R., [1979] 2 C.N.L.R. 101 (F.C.T.D.), dist. [paras. 274, 275, 276].

Nishga Tribal Council v. British Columbia (Attorney General), [1973] S.C.R. 313, dist. [para. 277].

Calder - see Nishga Tribal Council v. British Columbia (Attorney General).

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; 56 C.C.C.(3d) 225; 70 D.L.R.(4th) 427, dist. [para. 277].

Murphy v. R. (1917), 39 D.L.R. 370 (S.C.C.), refd to. [para. 344].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194; 14 D.L.R.(4th) 289; 84 C.C.L.C. 14,070; 14 Admin. L.R. 133, dist. [para. 346].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, dist. [para. 346].

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; [1990] 3 C.N.L.R. 46; [1990] 5 W.W.R. 97; 71 D.L.R.(4th) 193, refd to. [para. 434].

R. v. Symonds (1847), [1840-1932] N.C.P.C.C. 387 (N.Z.S.C.), refd to. [para. 436].

Mabo et al. v. Queensland (State) (1992), 107 A.L.R. 1 (Aust. H.C.), refd to. [para. 436].

Moses v. R., [1977] 4 W.W.R. 474 (B.C.S.C.), refd to. [para. 442].

R. v. McMaster, [1926] Ex. C.R. 68 (Ex. Ct.), dist. [para. 447].

R. v. Eaton, [1973] 4 W.W.R. 101 (B.C.S.C.), refd to. [para. 477].

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, refd to. [para. 494].

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; 69 O.R.(2d) 287; 35 E.T.R. 1; 44 B.L.R. 1, refd to. [paras. 498, 501].

Girardet v. Crease & Co. (1987), 11 B.C.L.R.(2d) 361 (S.C.), refd to. [paras. 498, 501].

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; 85 D.L.R.(4th) 129; [1992] 1 W.W.R. 245; 61 B.C.L.R.(2d) 1, refd to. [paras. 498, 596].

Ontario (Attorney General) v. Bear Island Foundation (1984), 15 D.L.R.(4th) 321 (H.C.), refd to. [para. 521].

Caviglia v. Tenorio (1992), 71 B.C.L.R.(2d) 255 (S.C.), dist. [paras. 563, 567, 580].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590, refd to. [para. 563].

Donison v. Donison and Uncle Bill Foundation Inc. (1983), 27 Sask.R. 121 (Q.B.); affd. 35 Sask.R. 183 (C.A.), refd to. [para. 563].

Taft v. Fiske (1885), 140 Mass. 250; 5 N.E. 621, refd to. [para. 564].

Buchman v. Smelker (1937), 50 Ariz. 18; 68 P.2d 946, refd to. [para. 565].

Warner v. Sampson, [1959] 1 Q.B. 297 (C.A.), refd to. [para. 572].

Donison v. Donison and Uncle Bill Foundation Inc. (1983), 27 Sask.R. 121 (Q.B.), refd to. [para. 573].

O'Kelly v. Downie (1914), 6 W.W.R. 911 (Man. C.A.), refd to. [para. 577].

Farmer Construction Ltd. v. R. (1983), 48 N.R. 315 (F.C.A.), refd to. [para. 586].

Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 (P.C.), refd to. [para. 593].

Guerin v. R., [1982] 2 F.C. 385; 10 E.T.R. 61 (T.D.), refd to. [paras. 600, 652].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 600].

Tabata v. Argau (1984), 57 B.C.L.R. 273 (C.A.), refd to. [para. 650].

Statutes Noticed:

British North America Act - see Constitution Act, 1867.

British Columbia Indian Lands Settlement Act, S.C. 1920, c. 51, sect. 2, sect. 3 [para. 244].

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 40 [para. 586].

Constitution Act, 1867, sect. 91 [paras. 156, 269]; sect. 91(24) [para. 220]; sect. 92(5) [para. 221]; sect. 92(13) [paras. 163, 221]; sect. 92(14) [para. 163]; sect. 109 [paras. 221, 269]; sect. 117 [para. 221]; Terms of Union, Term 11 [para. 229]; Term 13 [para. 228].

Constitution Act, 1930, sect. 1 [para. 251].

Court Order Interest Act, R.S.B.C. 1979, c. 76, sect. 1(1), sect. 2, sect. 6 [para. 650].

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 31(1), sect. 31(6) [para. 649].

Evidence Act (Can.) - see Canada Evidence Act.

Federal Court Act, R.S.C. 1985, c. F-7, sect. 36 [para. 651]; sect. 39(1) [para. 151 et seq.].

Indian Act, R.S.C. 1906, c. 43, sect. 48, sect. 49 [para. 439]; sect. 50 [para. 435].

Indian Act, R.S.C. 1927, c. 81, sect. 50 [para. 453].

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 175].

Indian Act, S.C. 1876, c. 18, sect. 3 [para. 292]; sect. 97 [paras. 26, 332, 457].

Indian Act, S.C. 1951, c. 29, sect. 37, sect. 39 [para. 452].

Indian Affairs Settlement Act, S.B.C. 1919, c. 32, sect. 2, sect. 3 [para. 243].

Land Act, S.B.C. 1875, c. 5, sect. 60 [para. 234].

Land Act, S.B.C. 1884, c. 16, sect. 56 [para. 234 et seq.].

Limitation Act, R.S.B.C. 1979, c. 236, sect. 3 [paras. 15, 192]; sect. 3(1) [para. 192]; sect. 3(2) [para. 193]; sect. 3(4) [para. 195]; sect. 6(5), sect. 7(9) [para. 198]; sect. 8 [paras. 15, 157 et seq.]; sect. 8(1) [para. 198]; sect. 9 [para. 158 et seq.]; sect. 14(1), sect. 14(5) [para. 203].

Order-in-Council, P.C. No. 1318G (May 29, 1888), generally [para. 50].

Order-in-Council, P.C. No. 911 (July 26, 1923), generally [para. 115].

Order-in-Council, P.C. No. 1036 (July 29, 1938), generally [para. 118].

Order-in-Council, P.C. No. 1265 (July 19, 1924), generally [para. 114].

Order-in-Council, P.C. No. 1088, (November 10, 1875), generally [para. 23].

Proclamation of December 1876, generally [paras. 26, 32].

Railway Belt and Peace River Block Act, S.C. 1930, c. 37, generally [para. 251].

Railway Belt Re-transfer Agreement Act, S.B.C. 1930, c. 60, sect. 13 [para. 250].

Rules of Court (B.C.), Supreme Court Rules, rule 40(17), rule 40(18), rule 40(20) [para. 587].

Authors and Works Noticed:

British Columbia, Law Reform Commission, Report on the Ultimate Limitation Period: Limitation Act, s. 8 (1990), p. 17 [para. 190].

Canada Gazette (December 30, 1876), generally [paras. 26, 332, 457].

Cross on Evidence (3rd Aust. Ed. 1986), generally [para. 563].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), pp. 128, 129 [para. 476].

Handbook of North American Indians, vol. 7, p. 441 [para. 283].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 1-2, 1-13 [para. 231]; 28-5 [para. 222].

LaForest, Natural Resources and Public Property Under the Canadian Constitution (1969), pp. 114 [para. 222]; 131 [para. 215]; 132 [para. 219].

Lorden, Paul, Crown Law (1991), p. 11 [para. 225].

McCormick, Handbook on the Law of Evidence (3rd Ed. 1984), generally [para. 563].

McKenna-McBride Commission Report, (June 30, 1916), generally [para. 104].

Meagher, Gummow and Lehane, Equity Doctrines and Remedies (2nd Ed. 1984), generally [para. 208].

O'Reilly, Report to Superintendent General of Indian Affairs (October 30, 1886), generally [para. 36].

Slattery, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, pp. 742, 763 [para. 434].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (4th Ed. 1992), p. 528 [para. 589].

Wigmore, John Henry, Evidence in Trials at Common Law (1972), vol. 4, pp. 88 [para. 564]; 90 [para. 566]; 91 [para. 570].

Counsel (T-2652-85):

Michael P. Carroll and Malcolm O. Mclean, for the plaintiffs;

Raymond Pollard and Georg Reuter, for the defendant, Her Majesty the Queen;

John J. McAlpine, for the defendants, Cape Mudge.

Counsel (T-951-89):

John J. McAlpine and Allan C. Donovan, for the plaintiffs;

Raymond Pollard and Georg Reuter, for the defendant, Her Majesty the Queen.

Solicitors of Record (T-2652-85):

Davis & Co., Vancouver, British Columbia, for the plaintiffs;

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

McAlpine & Associates, Vancouver, British Columbia, for the defendants, Cape Mudge.

Solicitors of Record (T-951-89):

McAlpine & Associates, Vancouver, British Columbia, for the plaintiffs;

Richards, Buell, Sutton, Vancouver, British Columbia, for the defendant, Her Majesty the Queen.

This case was heard in Vancouver, British Columbia, on April 13-16, 20-22, 27-30, May 4-7, 11, 12, 25-28, 31, June 4, 9, 10, 15-18, 22-25, 28, 29, September 7-10, October 12-15, 18-21, 26-29, November 2-5, 9, 10, 12, 16-19, 1993, January 17, March 16, 18, April 14, August 23-26, August 29 to September 2, 1994, January 9-12 and February 7, 1995, before Teitelbaum, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on September 19, 1995.

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23 cases
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    • April 2, 2001
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