Wewayakum Indian Band v. Wewayakai Indian Band
A-655-95
Isaac C.J. and McDonald J.A.
12/10/99
70 pp.
Appeals, cross-appeal from dismissal of action ((1995), 99 F.T.R. 1) by Campbell River Indian Band (Wewaikum) against Crown, Cape Mudge Indian Band (Wewaikai), counterclaim by Wewaikai against Wewaikum action by Wewaikai against Crown-Both Bands claiming entitlement to Campbell River, Quinsam Indian reserves on Vancouver Island, B.C.-Wewaikum, Wewaikai part of Laich-kwil-tach Indian Nation-In 1870s federal, British Columbia governments establishing Indian Reserve Commission to determine for each Nation number, extent, locality of reserves allowed to it-In response to dispute between family of white settlers in Campbell River area and first Laich-kwil-tach Indian to establish residence there, federal, provincial governments commissioning surveyor, Green, in 1988 to determine extent of boundaries of Indian reserves in Campbell River-Green recommending allocation of Campbell River, Quinsam reserves to Laich-kwil-tach tribe, without mentioning particular band-In 1889 federal, provincial governments approving Official Plan depicting 12 Laich-kwil-tach Indian reserves-No indication of how reserves to be distributed amongst various Bands-Beginning in 1892 Department of Indian Affairs published Schedule of Reserves containing summary of location, size of various reserves in B.C.-Summary not mandated by statute-1901 Schedule first to list tribal subgroups (Bands) to which each reserve allocated-Both 1901, 1902 Schedules indicating Campbell River reserve, Cape Mudge reserve allocated to Wewaikai-Wewaikum alleging such designation in error-in 1907 Wewaikai unanimously passing resolution (1907 Resolution) ceding all rights to Campbell River reserve to Wewaikum, except right to fish Campbell River in common with Wewaikum Band-Handwritten notation on copy of 1902 Schedule, placing name Wewaikum opposite Campbell River reserve-"Ditto mark" opposite Quinsam reserve underneath Campbell River reserve not changed-Now appeared Quinsam reserve allocated to Wewaikum-"Ditto mark error" remaining in reserve schedules annexed to Orders in Council Nos. 911, 1265, 1036, authorizing transfer of Indian reserves in province to federal Crown-In 1943 Department published amended schedule of reserves correcting "ditto mark error"-Amended schedule stating Campbell River reserve belonged to Wewaikum, Quinsam reserve belonging to Wewaikai in accordance with sworn declarations of Bands-In 1970 Department confirming Quinsam reserve belonging to Wewaikai-Appeals dismissed, except with respect to solicitor-client costs award against Wewaikai; cross-appeals by Crown dismissed-Per McDonald J.A. (Linden J.A. concurring): (1) Campbell River, Quinsam reserves not allocated to Wewaikai by Green in 1888-Under terms, conditions of appointment, Green lacked authority to allocate reserves to any particular Band-Authority limited to determination of extent, boundaries of Campbell River, Quinsam reserves-Report, accompanying minutes of decision designating lands allocated to Laich-kwil-tach Indian tribe-(2) 1907 Resolution had legal effect of allocating Campbell River reserve to Wewaikum-Not void ab initio for failure to comply with surrender provisions of Indian Act-Wewaikai arguing ceding of interest in Campbell River reserve constituting alienation of rights under surrender provisions granting supervisory authority to Crown over transfers between Aboriginals, third parties-Requiring reserve lands be surrendered to Crown prior to transfer of interest to third parties to protect Indian Bands from entering into improvident, exploitative transactions with non-Aboriginals-Surrender provisions of Indian Act not intended to restrict capacity of Indians to resolve land disputes among themselves-This interpretation consistent with goal of protecting Aboriginal peoples from exploitation by third parties-Supported by notion Indian interest in reserve lands, as with Aboriginal title lands, held communally by all members of Aboriginal nation-Where two bands belonging to same nation seeking to resolve dispute over usage of lands held by nation as whole, surrender provisions should not apply-Also supported by express language of Indian Act in force at time of resolution-"Person" defined as "individual other than an Indian"-S. 50 providing no release, surrender of any reserve to any person other than Crown valid-Use of "person" in s. 50 indicating surrender provisions only intended to apply to transactions involving parties "other than an Indian"-Finally interpretation supported by 1876 Proclamation exempting all Indian reserves in B.C. from operation of surrender provisions, remaining in force in 1907-Wewaikai arguing Crown breaching fiduciary duty when approved 1907 Resolution by failing to provide full disclosure of interest of International Timber Company in reserve, resulting in exploitative bargain-Fiduciary duty not arising in every facet of Crown-Aboriginal relations; content of fiduciary responsibilities of Crown not identical in every transaction-As not every obligation in fiduciary relationship amounting to fiduciary duty, circumstances of 1907 Resolution examined to determine if fiduciary duty arising-Crown having duty to balance, reconcile interests of both Bands, without favouring interests of one over other-Should act in good faith by affording full disclosure, ensuring comprehension of terms, effect of 1907 Resolution-Finally Crown may also be required to balance interests of Bands with interests of third parties-Evidence establishing Crown providing full disclosure-Primary motivation of 1907 Resolution to resolve continuing confusion regarding entitlement to reserve-Evidence not supporting finding interest of International Lumber Company of more than limited significance in passage of 1907 Resolution-Wewaikai cannot expect, more than 90 years after fact, Crown to establish every element of transaction explained, disclosed to Band-Sufficient if reasonable inference from evidence full disclosure taking place-Nothing suggesting resolution of reserve allocation, fishing issues favouring interest of one Band over other-(3) Reserves not allocated to Wewaikum by Orders in Council 911, 1265, 1036 confirming 1913 Schedule as attachment-Listing of Quinsam reserve as belonging to Wewaikum in 1913 Schedule clerical error-Adoption of McKenna McBride report, as amended by Ditchburn-Clark Commission, including ditto mark error in 1913 Schedule, by Orders in Council 911, 1265 not giving binding legal effect to error-Commission's authority restricted to confirmation of acreage, number of reserves in B.C.-Set up to resolve dispute between federal, provincial governments over amount of land to be transferred to federal Crown for use, benefit of Indians as required under Terms of Union of B.C.-Commission neither attempting to determine correct allocation of reserves nor to address any errors-Empowered to finalize amount of land to be transferred to federal Crown-Additional information included in Commission's final report, but Commission's recommendations only addressed issue of amounts of land to be transferred from provincial to federal Crown-Commission noting "ditto mark error", but not having jurisdiction to correct it-Evidence demonstrating allocation of Quinsam reserve to Wewaikum according neither with understanding nor intention of Wewaikai, Wewaikum-Trial Judge having jurisdiction to correct clerical error contained in schedule of reserves appended to Orders in Council 911, 1265, 1036-While legislature, Parliament presumed not to make mistakes, Court having jurisdiction to correct typographical, other clerical errors where error obvious, context clear, effect of error not what intended by drafters-Allotment of Quinsam reserve to Wewaikum result of obvious clerical error-(4) Award of costs against Wewaikai on solicitor-client basis unjustified-Costs on solicitor-client basis generally awarded only where reprehensible, scandalous or outrageous conduct on part of one of parties-That one party's claim having little merit or "very weak" no basis for awarding solicitor-client costs-Costs award made by Trial Judge not appropriate-(5) Cross-appeal on issue of compound interest to account for unrealized investment income misconceived-Federal Court Rules, 1998, r. 341(1)(b) providing cross-appeal indicated where respondent seeking different disposition from judgment from which appeal taken-Cross-appeal not seeking disposition different from Trial Judge's judgment that appeals should be dismissed, only challenging portion of reasons of Trial Judge, Isaac C.J. contrary to r. 341(1)(b)-Per Isaac C.J.: Trial Judge dismissing actions because statute barred by British Columbia Limitation Act as incorporated by Federal Court Act, s. 39(1), and equitable doctrines of laches, acquiescence-Holding since claims grounded in events occurring in 1907, both actions outside 30-year limitation period prescribed in British Columbia Limitation Act, s. 8; inequitable for either Band to enforce claim against other and equitable defence of laches, acquiesence applied to bar any claim for relief not barred by statute-Federal Court Act, s. 39(1) engaged whenever defence of prescriptions pleaded in actions respecting Indian lands wholly situated within province-S. 39(1) directing application of British Columbia Limitation Act-When Parliament incorporating law of another legislative jurisdiction by reference in its own legislation, law so incorporated becoming federal law, and to be applied as such, provided all conditions precedent to incorporation satisfied-Court required to apply British Columbia Limitation Act, not as provincial law, but as federal law-As to objections based on constitutional grounds, Constitution Act, 1982, s. 35 recognizing, affirming existing and treaty rights of Aboriginal people of Canada-Since appellants not alleging claims rooted in any Aboriginal, treaty right, s. 35 not applicable-As to argument provincial Order in Council 1036 cannot extinguish Indian title in reserve land as would have dismembering effect on area of exclusive federal jurisdiction, Court refraining from deciding issue since evidentiary foundation complete-Assuming s. 39 directing Court to apply constitutionally valid provincial limitation provisions, British Columbia Limitation Act, whether viewed as provincial law of general application or as federal law incorporated by reference in s. 39(1) may apply to Indians, lands reserved for Indians-Bands alleging breaches by Crown of statutory duty-British Columbia Limitation Act, s. 3(1)(a) prescribing 2-year limitation period for breach of statutory duty-Claim not falling within ambit of specific limitation periods set out in s. 3(1), (2) or (5)-S. 8(1) providing no action to which Act applies may be brought after expiration of 30 years from date on which right to do so arose-Earliest statement of claim filed in 1985 thus precluding any action from which event giving rise to right to bring cause of action occurring prior to 1955-Appellants' actions grounded in events occurring around 1907-Actions statute-barred-Issue whether limitation periods may bar declarations of existing usufructuary rights not arising for determination herein-Reference in s. 3(4) to "any other action" clearly bar-Neither breach of fiduciary duty nor continuing breach which would extend time for commencement of limitation period-No intervening breaches-Trial Judge correctly applying equitable defences of acquiesence, laches-British Columbia Limitation Act, R.S.B.C. 1979, c. 236, ss. 3, 6, 8-Federal Court Act, R.S.C., 1985, c. F-7, s. 39-Federal Court Rules, 1998, SOR/98-106, r. 341(1)(b)-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35-Indian Act, R.S.C. 1906, c. 236, ss. 2, 50.