[2000] 4 F.C. 350
T-1827-98
BC Tel (Appellant)
v.
Assessor for Seabird Island Indian Band (Respondent)
Indexed as: BC Tel v. Seabird Island Indian Band (T.D.)
Trial Division, Muldoon J.—Vancouver, February 1; Ottawa, May 17, 2000.
Native peoples — Lands — Appeal from Band Board of Review’s decision appellant subject to taxation by Band for use, occupation of reserve lands over which its fibre optic cable hung — Indian Act, s. 83 permitting bands to tax land, interest in land in reserve — For land to be within reserve, must satisfy definition of “reserve” in s. 2(1) — 1956 order in council authorizing taking of certain reserve lands by province — Application of principles of interpretation, special principles relevant when native interests involved — Federal Crown must display plain, clear intention to extinguish Native right — Separate tests for extinguishment, ascertaining nature of interest taken — As to extinguishment, old Highway Act indicating province’s intention to extinguish all interests, transfer to itself fee simple in lands taken for highway purposes — Nothing in 1956 order in council detracting from intention expressed in Highway Act — Use of “take”, “lands”, “right of way”, “administration and control” considered — Reservation of mineral, mining rights, implying absolute transfer of surface rights — Payment of lump sum implying absolute transfer — What province sought to acquire, federal Crown intended to transfer — Province acquired absolute title to surface of land — As not exercising any powers in corridor lands, Band not retaining sufficient interest to tax use thereof.
This was an appeal from a decision of the Seabird Island Indian Band Board of Review that the appellant was subject to taxation by the Band. The Privy Council consented, by way of order in council in 1953, pursuant to Indian Act, section 35 to the granting of an easement through reserve lands to British Columbia Electric Company Limited. Section 35 permitted removal of a piece of land or an interest in it from a reserve. In 1956, the Privy Council consented by order in council to the taking of certain reserve lands by the Province of British Columbia, and to the transfer of the administration and control of these lands to the provincial government. The order in council referred to a “right of way” subject to the above-mentioned “easement” and reserved all mines and minerals. British Columbia paid for the land in accordance with a valuation approved by the Band Council. A highway was constructed within a 100-foot-wide corridor cut through the reserve, and telephone poles were erected near the northern edge thereof. The appellant owns and operates 8.4 kilometres of fibre optic cable strung up on those telephone poles. Indian Act, section 83 permits bands to tax land or interests in land in the reserve. For a piece of land to be within a reserve, it must satisfy the definition of “reserve” or “designated lands” in Indian Act, subsection 2(1). The Board held that the cable lay within the 1953 easement and within the corridor. It found that, if the easement was not part of the corridor, this land would be reserve land and the cable would be subject to taxation by the Band. Alternatively, the Board found that the province did not have a fee simple in the corridor lands, but only a right to use the corridor for road purposes, and if a part of the corridor ceased being used for such purposes it would revert back to being reserve land. It held that the land above which the fibre optic cables were strung was not being used for road purposes, and the appellant was an occupier of land which was in the reserve and was subject to taxation by the Band.
The issue was whether the cable was within the reserve.
Held, the appeal should be allowed.
Under section 35, the Crown, in its federal persona may intend that land be taken out of a reserve. Evidence of this intent will usually be found in orders in council authorizing the taking, letters patent, or other documents, Crown actions or legislation. The federal government may merely intend to allow a province, municipality or corporation to take what it wants, in which case one must look to the intentions of the taker in order to determine whether the federal government consented to an extinguishment. The Crown’s intent is discernible using principles of interpretation for legislative intent and special principles relevant when Native interests are involved. The federal Crown must display a plain and clear intention in favour of extinguishment before anything will be extinguished.
The nature of the interest taken must be ascertained from the language of the statutes, the agreements between the original parties, and the subsequent actions and declarations of the parties. The tests for extinguishment and for determining the nature of the interest taken must be applied separately.
In respect of the test for extinguishment, the most significant signal of provincial intentions is found in the old Highway Act which clearly indicates that the province intended to extinguish all interests and to transfer to itself the fee simple in lands taken for highway purposes. Nothing in the 1956 order in council detracts from that intention. The use of the words “take” or “lands” in the order did not change provincial intentions or promote ambiguity in light of the old Highway Act. The use of the term “right of way” merely pointed to the corridor rather than described the nature of any legal interest transferred, despite the fact that the term was used to describe the nature of a legal interest in land when describing the easement granted to the British Columbia Electric Company Limited. Such use was irrelevant to the term’s definition when used in the context of the corridor lands. The term “right of way” did not, therefore, give rise to any ambiguity. The purpose of the taking, when mentioned in the order in council’s recital was a neutral factor.
The transfer to the province of the corridor’s “administration and control” was likely expressed in light of the indivisibility of the Crown, to indicate a shifting of title from the realm of federal responsibility to that of a province, as held recently by the majority of the British Columbia Court of Appeal in Osoyoos Indian Band v. Oliver (Town). But that judgment could not be accepted as conclusive because the Supreme Court of Canada has granted leave to appeal.
Mineral rights may be severed from surface rights when allowing the latter to be taken, thus implying that the federal government intended to transfer absolute ownership of the surface rights to the province. The lump sum payment from the province to the Band at the time of the taking also implied that absolute ownership was transferred.
It was clear that the provincial Crown intended to acquire the fee simple in the corridor lands, and that the Crown qua federal government consented to such transfer, excepting the mineral and mining rights to the lands in question. Therefore in 1956, the province was given absolute title to the surface of the land.
The Band did not retain a sufficient interest in the lands to enable it to tax the use thereof. It has never exercised, since 1956, its powers in respect of roads, to manage and maintain the corridor’s paved highway or the buffer zone surrounding it. Nor was there evidence that any of the other powers granted to bands under the Indian Act were exercised in the corridor. That the Band approved a valuation of the land and accepted payment therefor implied that it understood from the beginning that it would no longer have the use and benefit of the lands. Because the province has title to the lands, they are not in the reserve.
The Board erred in concluding that the hanging of a fibre optic cable precluded use for road purposes of the land over which it was strung. The 1956 order in council did not make the taking and transfer of the land contingent on its continued use for road purposes. The presence of the phrase “for road purposes” in an instrument’s recital does not render determinable a fee.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 24 (as am. by S.C. 1990, c. 8, s. 6).
Highway Act, R.S.B.C. 1948, c. 144, ss. 2 “land”, 5, 8, 9, 11, 14.
Indian Act, R.S.C. 1952, c. 149, s. 35.
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) “designated lands” (as enacted by R.S.C., 1985 (4th Supp.), c. 17, s. 1), “reserve” (as am. idem), 81(1) (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 15), (b),(f), 83 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 10).
Interpretation Act, R.S.B.C. 1948, c. 1, s. 24(20) “land”.
Interpretation Act, R.S.C., 1985, c. I-21, s. 12.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Pacific Ltd. v. Matsqui Indian Band, [2000] 1 F.C. 325 (1999), 176 D.L.R. (4th) 35; [2000] 1 C.N.L.R. 21; 99 DTC 5564; 243 N.R. 302; 26 R.P.R. (3d) 151 (C.A.); Canadian Pacific Ltd. v. Matsqui Indian Band (1998), 162 D.L.R. (4th) 649; [1999] 1 C.N.L.R. 42; 228 N.R. 378 (F.C.A.), leave to appeal to S.C.C. dismissed, [1998] 1 S.C.R. vii; R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; (1988), 91 N.B.R. (2d) 43; 53 D.L.R. (4th) 487; 232 A.P.R. 43; [1989] 1 C.N.L.R. 47; 89 N.R. 325; 1 R.P.R. (2d) 105.
CONSIDERED:
Osoyoos Indian Band v. Oliver (Town) (1999), 172 D.L.R. (4th) 589; 122 B.C.A.C. 220; 68 B.C.L.R. (3d) 218; [1999] 4 C.N.L.R. 91 (C.A.).
REFERRED TO:
Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119; (1997), 147 D.L.R. (4th) 1; [1997] 7 W.W.R. 253; 90 B.C.A.C. 1; [1998] 1 C.N.L.R. 134; 9 R.P.R. (3d) 115; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; (1990), 71 D.L.R. (4th) 193; [1990] 5 W.W.R. 97; 67 Man. R. (2d) 81; [1990] 3 C.N.L.R. 46; 110 N.R. 241; 3 T.C.T. 5219; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; (1995), 130 D.L.R. (4th) 193; [1996] 2 C.N.L.R. 25; 190 N.R. 89; Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (1997), 148 D.L.R. (4th) 523; [1998] 1 C.N.L.R. 250; 215 N.R. 241 (C.A.).
AUTHORS CITED
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPEAL from a decision of the Seabird Island Indian Band Board of Review that the appellant was subject to taxation by the Band for the use and occupation of reserve lands over which its fibre optic cable hung. Appeal allowed.
APPEARANCES:
Peter D. Feldberg and Anne M. Dobson-Mack for appellant.
Gary S. Snarch and Fiona C. M. Anderson for respondent.
SOLICITORS OF RECORD:
Lawson Lundell Lawson & McIntosh, Vancouver, for appellant.
Snarch & Allen, Vancouver, for respondent.
The following are the reasons for order rendered in English by
[1] Muldoon J.: This is an appeal, pursuant to section 24 of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 6] and section 60 of the Seabird Island Indian Assessment By-law, approved September 25, 1992, from a decision by the Seabird Island Indian Band Board of Review dated August 4, 1998 finding that the appellant was subject to taxation pursuant to the Seabird Island Indian Band Taxation By-law, approved September 25, 1992, and the Seabird Island Indian Band Assessment By-law and their amendments.
Facts
[2] The appellant, BC Tel, is a corporation which supplies telephone and telecommunications services to customers throughout the province of British Columbia. It owns and operates 8.4 kilometres of fibre optic cable strung up on telephone poles lying alongside the Lougheed Highway. This highway cuts straight across Seabird Island. A reserve has existed on the whole of this island since 1879 .
[3] By way of Order in Council P.C. 1953-30, dated January 14, 1953, the Privy Council consented, pursuant to section 35 of the Indian Act, R.S.C. 1952, c. 149 (hereinafter old Indian Act), to the granting of an easement through reserve lands to the British Columbia Electric Company Limited.
[4] By Order in Council P.C. 1956-1659, dated November 7, 1956, the Canadian Privy Council consented to the taking of certain reserve lands by the province of British Columbia and to the transfer of the administration and control of these lands to the provincial government. The Order in Council provides:
WHEREAS the Minister of the Department of Highways, Province of British Columbia, has applied for the lands hereinafter described, being a portion of Seabird Island Indian Reserve, in the said Province for road purposes;
AND WHEREAS the sum of $5,282 has been received from the said Province in full payment for the land required in accordance with a valuation approved by the Band Council of the Seabird Island Band of Indians on the 14th of October, 1954, and officials of the Indian Affairs Branch.
THEREFORE, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to section 35 of the Indian Act, is pleased hereby to consent to the taking of the said lands by the Province of British Columbia and to transfer the administration and control thereof to Her Majesty in right of the Province of British Columbia:
Description
The whole of a right-of-way, in Seabird Island Indian Reserve, in the Yale District, in the province [sic] of British Columbia, said right-of-way containing by admeasurement forty-four acres and fifteen hundredths of an acre …
Subject to an easement for a power line right-of-way granted in 1953 to British Columbia Electric Company Limited ….
Reserving all mines and minerals whether solid, liquid or gaseous which may be found to exist within, upon or under such lands…. [Appeal Book, at pp. 021-022.]
As a result of the taking, a 100’-wide swath was cut through the reserve (the corridor). A highway was soon built down the corridor’s middle. The British Columbia Electric Company Limited easement lies on the inside of the corridor’s northern edge.
[5] By ministerial order dated September 5, 1958 a band, to be named the Seabird Island Indian Band, was created from all of the Aboriginals living on Seabird Island. An agreement dated September 26, 1961, allowed for the first telephone poles to be erected on the island. Today, these poles stand near the northern edge of the corridor lands, 25 feet from the highway. No evidence was submitted, however, demonstrating that the poles were actually erected in the easement. However, the right of way is subject to the “easement for a power line”. The fibre optic cable which figures in the dispute is strung from the poles.
[6] In 1997, the Band began taxing the appellant pursuant to its Seabird Island Indian Band Taxation By-law, the Seabird Island Indian Band Assessment By-law and their subsequent amendments. The appellant appealed the 1997 and 1998 tax assessments to the Seabird Island Indian Band Board of Review (the Board).
[7] In a decision dated August 4, 1998, the Board rejected the appellant’s appeal. In support of its decision, the Board found that the cable lay within the 1953 easement and within the corridor. It found that, if the easement in which the cable was erected was not part of the corridor, then this land would be reserve land and the cable on it would be subject to taxation by the band. (Appeal Book, at pages 004-013.)
[8] In the alternative, the Board also found that the Province did not have the fee simple in the corridor lands. Rather, it had a right to use the corridor for road purposes but that, if a part of the corridor were to cease being used for road purposes, this part would revert back to being reserve land. It then found that the land above which the fibre optic cables were strung was not being used for road purposes. As a result, it found that the appellant was an occupier of land which was in the reserve and that the appellant was, as a result, subject to being assessed for tax by the Band for the land it occupied and improvements constructed on it.
Legal Issues
[9] The appellant raises two broad issues. The first issue concerns whether the cable lies within the reserve. Only if it does can the respondent assess tax in respect of it. The second issue concerns whether the Band’s taxation by-laws are discriminatory and, therefore, ultra vires. The appellant, however, assuming that it could not stand up to the wisdom of the Court of Appeal in Canadian Pacific Ltd. v. Matsqui Indian Band, [2000] 1 F.C. 325(hereinafter Canadian Pacific Ltd.), chose to withdraw its submissions in regard this last issue.
[10] With respect to the first issue, the appellant submits that both the federal and provincial governments displayed, in a plain and clear fashion, an intention wholly to extinguish the Band’s interest in the corridor lands. In support of this stand, it relies on the 1956 order, the 1953 order, B.C.’s old Highway Act, R.S.B.C. 1948, c. 144 and section 83 of the Indian Act, R.S.C., 1985, c. I-5 [as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 10]. In the alternative, the appellant submits that neither the governments nor the Aboriginal people of Seabird Island, at the time at which the 1956 order was promulgated, were intent on allowing the latter to have the use and benefit of the corridor. The respondent points to the wide ambit of section 35 of the old Indian Act, the definition of “land” in the old Highway Act [section 2] and subsection 24(20) of B.C.’s old Interpretation Act, R.S.B.C. 1948, c. 1 in support of its submission that the intentions of the federal government, as expressed in the 1956 Order in Council, are not plain and clear. In the alternative, it argues that the land under the fibre optic cable is not being used for road purposes and should, therefore, revert back to the Band.
[11] A band’s power to tax springs from paragraph 83(1)(a) of the Indian Act. This paragraph allows bands to make by-laws in order to tax land or interests located in its reserve:
83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,
(a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve;
[12] For a piece of land to be within a reserve, it must satisfy the definition of the term “reserve” [as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1] or “designated lands” [as enacted idem] as laid out in subsection 2(1) of the Indian Act. Subsection 2(1) provides:
2. (1) In this Act,
…
“designated lands” means a tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interests, whether before or after the coming into force of this definition;
…
“reserve”
(a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and
(b) except in subsection 18(2), sections 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 58 and 60 and the regulations made under any of those provisions, includes designated lands;
[13] Under section 35 of the old Indian Act, it is possible to remove a piece of land or an interest in it from a reserve. Subsection 35(1), as it read in 1956, provided:
35. (1) Where by an Act of the Parliament of Canada or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.
The appellant, in its written submissions, pointed to the Supreme Court’s decision in Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119 to suggest that a taking is no different from an expropriation and, therefore, that it automatically extinguishes a band’s entire interest in a piece of land. Both parties eventually agreed, however, that whether a piece of land or a band’s interest in it is wholly taken out of a reserve depends on the clarity of the Crown’s intentions to do so. As Mr. Justice Décary wrote in Canadian Pacific Ltd. v. Matsqui Indian Band (1998), 162 D.L.R. (4th) 649 (F.C.A.); leave to appeal dismissed [1998] 1 S.C.R. vii (hereinafter CP), at paragraph 27 [page 661]:
Where a compulsory taking of part of a reserve is at issue, the Court must satisfy itself that the intention of the Crown to extinguish the Indian interest in the portion taken was “clear and plain” (see R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1099).
[14] The passage in R. v. Sparrow, [1990] 1 S.C.R. 1075 on which Mr. Justice Décary relied, reads [at pages 1098-1099]:
In the context of aboriginal rights, it could be argued that, before 1982, an aboriginal right was automatically extinguished to the extent that it was inconsistent with a statute.…
That in Judson J.’s view was what had occurred in Calder, supra, where, as he saw it, a series of statutes evinced a unity of intention to exercise a sovereignty inconsistent with any conflicting interest, including aboriginal title. But Hall J. in that case stated (at p. 404) that “the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent and that intention must be ‘clear and plain’”. (Emphasis added.) The test of extinguishment to be adopted, in our opinion, is that the Sovereign’s intention must be clear and plain if it is to extinguish an aboriginal right.
The respondent implied in oral arguments that, when looking at extinguishment under section 35 of the old Indian Act, the intentions of the Sovereign in right of a province were moot and that one needs only to concern oneself with the intentions of the Sovereign qua federal government. A reading of section 35, however, reveals that this is not always the case.
[15] Under section 35 of the old Indian Act, the Sovereign or Crown, in its federal persona, may intend that land be taken out of a reserve. As counsel points out, in fact, it is the only government which can carry out such intentions. Evidence of this intent will, if it exists, usually be found in orders in council authorizing the taking, letters patent, or other documents, Crown actions or legislation. For instance, the Crown, in an order in council, may reserve certain rights to a band, such as those in respect of minerals, and in so doing evince an intent to allow for the extinguishment of all other Native rights attaching to the land. Alternatively, an order in council or letters patent may evince an intent to avoid consenting to extinguishment by subjecting the taking to certain terms and conditions. What happens, however, if the federal government is merely intent on allowing a province, municipality or corporation to take what it wants? In this case, one must look to the intentions of the taker in order to determine whether the federal government consented to an extinguishment or not.
[16] In fact, looking at the intent of, for instance, the Crown qua province will often be the first place to look, because, without a plain and clear intent to extinguish at this level, there is little need to look at the federal government’s intent. In Canada, provinces take land for highways. Without this preliminary or subsidiary intent to extinguish through a taking, in essence, there is little chance that the later consent under section 35 will include an intent to extinguish. Rather, as noted above, the federal government will often merely acquiesce to whatever intent is shown by a province. It is, however, as the respondent submits, up to the Crown acting in its federal capacity to decide ultimately whether a Native right will be extinguished.
[17] Looking first to the intentions of the Crown qua province also makes sense in that it begins the analysis by looking at what the taker wants before looking at what the federal government has consented to in its order in council and letters patent. To look at the federal Crown’s intentions first, in effect, is to address the federal answer without considering what the provincial question was. This is particularly hazardous where, as in the case under review, no letters patent exist to amplify the substance, or highlight the intent behind the federal answer.
[18] Whatever the Crown’s intent, as expressed by both the federal and provincial governments, it will be discernible using principles of interpretation for legislative intent and special principles relevant when Native interests are involved. Two of these latter principles, cited in Osoyoos Indian Band v. Oliver (Town) (1999), 172 D.L.R. (4th) 589 (B.C.C.A.), were promoted by counsel. The first states that, where two interpretations can be reasonably sustained, the one which impairs Native rights least is to be preferred. The second holds that any ambiguous words must be construed in a way favourable to Native interests. A third principle relied on by counsel recognizes a need to interpret narrowly provisions aimed at limiting or abrogating Native rights: Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. As a final guidepost, counsel submits that a liberal interpretation be given to the terms of the Indian Act and the old Indian Act, as required by section 12 of the Interpretation Act, R.S.C., 1985, c. I-21, in order to ensure the attainment of its objects.
[19] If the federal Crown does not display a plain and clear intention in favour of extinguishment then nothing has been extinguished. In this case, one must ascertain the nature of the interest taken through the three factors enumerated in Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654 (hereinafter Paul). As Décary J.A. wrote in CP, supra [at paragraph 32, page 662]:
In order to determine the nature and extent of a railway company’s interest in reserve lands-and, by the same token, the nature and extent of what was taken away from a band-resort must be had “to the language of the statutes, to any agreements between the original parties and to subsequent actions and declarations of the parties” (Canadian Pacific Ltd. v. Paul, supra, para. 25 … at 665).
[20] Both parties, in their submissions, infused into one analysis the test for extinguishment and certain parts of the test used in Paul. It is clear, however, that the two tests are to be applied separately, in two distinct circumstances. The only exception to this rule, as noted by Décary J.A. in CP, applies when a band is involved in the negotiations to take land, that which both parties were at pains to point out, did not happen in this case.
[21] In respect of the test for extinguishment, the most significant signal of provincial intentions can be found in the old Highway Act. Subsection 8(1) sets out the appropriate provincial Minister’s power to take lands:
8. (1) It shall be lawful for the Minister in his absolute discretion to make public highways … and to take, either at the time the highway is first made or declared or at any subsequent time, additional land beyond the width of the highway so established where necessary for the use or purpose of the Department of Public Works … and for such purpose … to enter upon, set out, ascertain, and take possession of any private roads and any lands … and also in the like discretion to enter upon any land ….
[22] The respondent submits that the word “land”, as used in subsection 8(1) of the old Highway Act, could include many interests in land short of the fee simple. It submits, therefore, that the exact nature of the interest intended to be taken in the present case cannot be plain and clear. The respondent, for this position, relies on the definition of land as found in section 2 of the old Highway Act and subsection 24(20) of B.C.’s old Interpretation Act. These provisions read, respectively:
2. In this Act, unless the context otherwise requires:—
“Land” includes all lands of every tenure and description whatsoever, including foreshore and lands covered with water, within the Province, and including lands granted by the Dominion to any person:
24. In every Act of the Legislature, unless the context otherwise requires: —
…
(20) “Land” includes all messuages, tenements, and hereditaments, houses and buildings of any tenure, unless where there are words to exclude houses and buildings, or to restrict the meaning to tenements of some particular tenure:
[23] Though the respondent is correct that, standing alone, subsection 8(1) does not clearly indicate the interest at stake, sections 5 and 9 of the old Highway Act specify what is to be lost by those owning or occupying taken lands and what is to be gained or vested in the province on taking:
5. Unless otherwise provided for, the soil and freehold of every public highway shall be vested in His Majesty, his heirs and successors.
…
9. The entry by the Minister, his agents, servants, or workmen, as in the last preceding section mentioned [section 8], for the purpose of taking possession of any roads or lands shall operate as a complete extinguishment of every title and claim to the roads or lands so entered upon and taken possession of.
For lands taken in order to make a highway, there can be no ambiguity with regard to the meaning of the word “land”. It is the absolute or fee simple interest in the land. No other interpretation can be reasonably sustained, even by interpreting sections 5, 8 and 9 as narrowly as possible.
[24] Section 11 of the old Highway Act, by not providing for any restrictions on the alienation of taken lands, also helps to strip away any ambiguity vis-à-vis what section 8 empowers the provincial government to take. Section 11 provides:
11. The Minister may at any time, by notice published in the Gazette, … discontinue and close in whole or in part any highway…. The land comprised in any highway which has been discontinued and closed may, under the authority of the Lieutenant-Governor in Council, be transferred to, and shall thereafter become the property of, the owner of the land of which it originally formed part, or the owner of the land adjoining the land so transferred, or may be leased by the Minister to either of those owners, or may be sold, leased, or disposed of by public auction or by tender under the authority of the Lieutenant-Governor in Council, or may, under the authority of the Lieutenant-Governor in Council, be leased or transferred to the Dominion Government.
Linked with the other provisions, section 11 makes plain and clear the province’s intention to extinguish all interests and to transfer to itself the fee simple in lands taken for highway purposes.
[25] Turning to the 1956 order in council we may begin ascertaining the intentions of the federal Crown. The respondent submits that nothing in it conclusively points to the exact interest transferred by the federal government. In light of the clarity with which the old Highway Act highlights the intentions of the province to transfer the fee simple, however, the relevant question is whether the order contains anything to detract from this clarity. As the appellant submits, there is nothing.
[26] Neither the use of the words “take” nor “lands” in the order can serve to cast a cloud on provincial intentions. Nor does their use promote ambiguity in light of the old Highway Act. In addition, the expression of the term “right of way” is meant merely to point to the corridor rather than to describe the nature of any legal interest transferred; CP, supra, at paragraph 46 [pages 667-668] and Canadian Pacific Ltd., supra, at paragraph 22 [pages 351-352]. This is so despite the fact that the term “right of way” is used once in the order to describe the nature of a legal interest in land. The context for this use of the term was to describe the easement granted to the British Columbia Electric Company Limited and is irrelevant to the term’s definition when the term is used in the context of the corridor lands; (Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at pages 163-168). The term “right of way” does not, therefore, give rise to any ambiguity. Nor is the purpose of the taking, when mentioned in the order in council’s recital, anything other than a neutral factor; CP, at paragraph 18 [page 659].
[27] Another ingredient in the 1956 order which bears on the intentions of the federal government is the transfer to the province of the corridor’s “administration and control”. The respondent did not dispute the appellant’s use of Madam Justice Newbury’s analysis, in Osoyoos, at paragraph 105 [pages 635-636], in support of its contention that the presence of the phrase indicates a transfer of title. In the Osoyoos decision of the British Columbia Court of Appeal, Justices Newbury and Prowse are reported at pages 635 et seq. as holding:
… the answer to this question is clear: the Order in Council did not grant only a right of way to the Province; it granted exclusive rights of enjoyment and possession that are inconsistent with the lands continuing to be held by Her Majesty in right of Canada “for the use and benefit of [the] Band”. The Order referred to “the taking of the said lands”, not simply the right to use or pass over the said lands; there was no indication the Province was acquiring anything other than exclusive rights (whether in fee simple or until the lands cease to be used for irrigation purposes need not be decided); and the Order transferred “administration and control” of the lands to the Province—wording that is surely inconsistent with lands continuing to be held “for the benefit of” the Band. As the Chambers judge noted, the phraseology of “administration and control” is customarily used in place of a conveyance of title between the Crown Provincial and the Crown Federal, because of the indivisibility of the Crown. He cites Paul Lordon, who in Crown Law (1991) states:
“A transfer of property between the federal government and a province is not done by ordinary conveyance, because of the principle of indivisibility of the Crown. Her Majesty is the owner of the property whether in right of Canada or the province and cannot grant to Herself. Only administrative control of the property passes. The transfer is, therefore, made by reciprocal Orders in Council and is confirmed by statute where third party rights are involved.” [At 283, para. 4.6.1, cited by the Chambers judge at para. 4 of his reasons.]
Although the majority of that Court of Appeal in Osoyoos wrote with apparent self-assurance, the judgment cannot be accepted as being definitive. On April 20, 2000, the Supreme Court of Canada without reasons (as is usual) granted leave to appeal. The result is not yet known. This Court notes the D.L.R. Osoyoos Indian Band v. Oliver (Town) case supra, paragraph 18 (at page 635) and agrees that, in the circumstances, the phrase is expressed likely in light of the indivisibility of the Crown, to indicate a shifting of title from the realm of federal responsibility to that of a province, but a conclusive answer will undoubtedly be promulgated by the Supreme Court in due course.
[28] The reservation of mining and mineral rights contained in the order is another significant factor to consider. One may sever, as the Department of Indian Affairs did for many years, mineral rights from surface rights when allowing the latter to be taken; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344. Such a severing implies, as in CP, supra, that the federal government intended to transfer absolute ownership of the surface rights to the province. Of lesser consequence is the lump sum payment made by the province to the Band at the time of the taking, though, even this implies, albeit not so very weakly, that absolute ownership was transferred.
[29] On consideration of all the relevant factors, it is plain and clear that the Crown in right of B.C. intended to acquire the fee simple in the corridor lands. More importantly, however, it is plain and clear, from a reading of the 1956 order, that what the province sought to acquire the Crown qua federal government consented to transfer, excepting the mineral and mining rights to the lands in question. In 1956, therefore, the province was given no less than absolute title to the surface of the land. The board’s conclusion to the contrary must be seen as an error. As the land also cannot be considered to have been set aside for the use and benefit of the Band, an issue which is discussed below, the land cannot be considered in the reserve. This is despite the most generous ambit which one might possibly give to the term “reserve” as defined in the Indian Act.
[30] The respondent submits that the fee simple in the corridor lands was not required by the province and, therefore, one cannot assume that the federal Crown, as a fiduciary of natives, would have allowed B.C. to take it. This follows the oft-repeated principle of minimal impairment for which counsel relied on Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (C.A.). The Court is not convinced, however, that anything less than a fee simple interest, in 1956, could allow a province to build and maintain one of its major highways.
[31] Supposing that the provincial government merely received some sort of statutory easement to, and not the fee simple in, the corridor lands, did the Band retain an interest in the lands sufficient to enable it to tax the lands’ use? One needs only to consider, pursuant to the test in Paul, supra, the actions of the Band since the taking in addition to those factors mentioned above, in order to conclude that the Band did not retain such a sufficient interest.
[32] As the appellant asserts and the respondent admits, the Band has never exercised, since 1956, its powers in respect of roads, conferred on it by paragraphs 81(1)(b) and (f) of the Indian Act, to manage and maintain not only the corridor’s paved highway but the buffer zone surrounding it (transcript: pages 114 and 117 respectively). Nor was there evidence adduced to show that any of the other powers granted to bands under the Indian Act have been exercised in the corridor. Added to the fact that the Band approved a valuation of the land and accepted $5,282 in payment for it, this lack of governance implies that the Band has understood from the very beginning that it would not have the use and benefit of the lands in question. Because the province has title to the lands, one cannot, therefore, consider them to be in the reserve.
[33] This is not a case of powerful, unscrupulous Euro-Canadians employing slick language to take unconscionable advantage of Aboriginals. One must make sure that the Aboriginal parties quite understand what was happening to their interests in the transaction, and in the land, of course. Now, the year is 2000 and Aboriginals and Euros (inter alia) have been dealing with each other for over two centuries. Here the dealings appear to have been on a government-to-government basis, as revealed by the November 1956, Order in Council, P.C. 1956-1659; Appeal Book, at page 021:
WHEREAS the Minister of the Department of Highways, Province of British Columbia, has applied for the lands hereinafter described, being a portion of Seabird Island Indian Reserve, in the said Province for road purposes;
AND WHEREAS the sum of $5,282 has been received from the said Province in full payment for the land required in accordance with a valuation approved by the Band Council of the Seabird Island Band of Indians on the 14th of October, 1954, and officials of the Indian Affairs Branch.
THEREFORE, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to section 35 of the Indian Act, is pleased hereby to consent to the taking of the said lands by the Province of British Columbia and to transfer the administration and control thereof to Her Majesty in right of the Province of British Columbia: [Emphasis added.]
This Court would not wish to seem to be a slick trickster, in pointing out that the expressions “full payment”, “approved by the Band Council”, “pursuant to section 35”, “consent to the taking of the said lands”, and “to transfer the administration and control thereof” all point to clear extinguishment of Aboriginal rights in the province’s favour. It is impossible to believe that the Aboriginal parties were in any way deceived or misled, or that anyone attempted to do that.
[34] Though neither party raised the point, the above conclusion is supported indirectly by Décary J.A., in CP, at paragraphs 40 to 52 [pages 666-669], who found that lands being used for railway purposes could not be considered to be for the use and benefit of the Matsqui Band. Three paragraphs of the learned Justice’s reasons in particular are of interest here [paragraphs 48, 51-52, pages 668-669]:
The fact that the Crown relied on s. 35 of the Indian Act (“lands taken for public purposes”) rather than s. 28 (“possession of lands in reserve” through the issuance of a permit to occupy or use) [was used] also supports a finding that what was being considered by the Crown, by the Band and by CN was much more in the nature of a sale than in the nature of an easement. The recent decision of the Supreme Court of Canada in Opetchesaht Indian Band, (supra, para. 25) provides a useful analysis of the different purposes of sections 35 and 28.
…
The ruling in Opetchesaht Indian Band is a clear illustration, in my view, of the different status that must be recognized in law to “rights of way” which require the exclusive right to use and occupy reserve lands, such as railways, and to “rights of way” where the exclusive use of the lands is not required, such as utilities. In the instant case, the right of way is clearly of the first category.
I am therefore satisfied that the Matsqui Band, in surrendering Parcel 1, fully understood that it would no longer use and occupy that portion of its Reserve.
This Court is of the opinion that statutory easements granted under section 35 of the old Indian Act for the purposes of a provincial highway require the exclusive right to use and occupy both the land over which the highway is paved and the surrounding buffer zone. As such, it cannot now be held that the Aboriginal peoples of Seabird Island Reserve expected to be able to use and benefit from the corridor once taken.
[35] Counsel for the respondent argued at the hearing that, if the province took anything less than an absolute interest in the corridor lands, then they could be considered designated lands. Being designated lands, he concluded, they would be in the reserve and, therefore, liable to taxation. As Robertson J.A. wrote, however, in Canadian Pacific Ltd., at paragraph 95 [pages 375-376]:
Second, the term “otherwise than absolutely” in the definition of “designated lands” applies only where there has been a surrender of reserve lands.
The present appeal involving a taking of land, and not a surrender, this Court will not enter into a discussion on the issue of designated lands.
[36] The respondent submits that, if the corridor were removed from the reserve, then it should revert back to the Band on ceasing to be used for road purposes. There are two problems with this submission. First, as counsel for the respondent allowed, the Lougheed Highway continues to be used as a highway. Nor is there evidence that the part of the corridor which is bare of asphalt, gravel, signage or drainage is not being used for road purposes. After all, the open ground extending 18’ from each drainage ditch to the edges of the corridor is a buffer, providing space for branches at the edge of the corridor to fall other than on the road. This is only one of the road purposes, however, for which the land in question may be used. It also allows for greater visibility of other drivers and space for maintenance and police vehicles to station themselves and their equipment. In addition, the space would be required were the highway ever widened. The submission is speculative and moot.
[37] Neither is it clear to this Court how the hanging of a 3cm diameter fibre optic cable precludes the land over which it is strung from being used for any of the road purposes noted above. That today’s director of highways in B.C. will approve the installation of cables, in fact, is clear evidence to the contrary. That such installations were compatible with road purposes back in 1956 is supported by a reading of section 14 of the old Highway Act, which provides:
14. Where any structure, that is to say, any ditch, flume, pipe, pole-line, wire, cable, … exists or is constructed, erected, or maintained across, along, or through any highway in unorganized territory … and where the Minister is of the opinion that the structure is unsafe and that it is necessary or advisable for the protection of the highway or the safety of persons using the highway that the structure be repaired, … then, notwithstanding the provisions of any public or private Act … the Minister, … may cause the structure to be so repaired ….
In light of these findings, this Court considers the Board’s conclusion that the corridor lands are not being used for road purposes as an error.
[38] The second reason why the respondent’s submission must fail is that it is premised on the assumption that the province’s title will revert back to the Band if ever the corridor ceases to be used for road purposes. The 1956 order in council, however, does not make the taking and transfer of the land contingent on its continued use for road purposes. As Mr. Justice Décary wrote in CP, at paragraph 18 [page 659] and as Mr. Justice Robertson wrote in Canadian Pacific Ltd., at paragraph 99 [page 377], the presence of the phrase “for road purposes” in an instrument’s recital does not render determinable a fee. The Board erred in making a finding to the contrary.
Conclusion
[39] The lands in and around the Lougheed Highway cannot be considered as being set aside for the use and benefit of the Seabird Island Band. Coupled with the fact that title in these lands resides in the Government of B.C., it leads ineluctably to the conclusion that they are not in the reserve. As such, the fibre optic cable, which is strung up on telephone poles located within the highway corridor, cannot be taxed by the Band.
[40] The appeal will be allowed with costs. The decision of the Seabird Island Indian Band Board of Review, dated August 4, 1998, is to be set aside, and quashed.