Mitchell v. Peguis Indian Band

Mitchell v. Peguis Indian Band
Collection
Supreme Court Judgments
Date
1990-06-21
Report
[1990] 2 SCR 85
Case number
19439
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty
On appeal from
Manitoba
Subjects
Aboriginal law
Notes
SCC Case Information: 19439
Decision Content
Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85
Donald George Mitchell
and Milton Management Ltd. Appellants
v.
Peguis Indian Band, Louis J. Stevenson,
Albert Thompson, Oliver Sutherland,
Ronald Williams and Robert Sutherland,
as the Chief and Councillors,
respectively, of the Band Respondents
indexed as: mitchell v. peguis indian band
File No.: 19439.
1989: February 24; 1990: June 21.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka and Gonthier JJ.
on appeal from the court of appeal for manitoba
Indians -- Personal property on reserve given under an agreement between the band and Her Majesty -- Property not subject to attachment at suit of non-native -- Provincial government agreeing to rebate provincial sales tax to Indian bands -- Action pending for payment of contingency fee by negotiator acting on behalf of bands -- Pre-judgment garnishment order granted -- Whether or not moneys owed by province personal property on reserve ‑‑ Whether or not term "Her Majesty" extending to Crown in right of the province -- Indian Act, R.S.C. 1970, c. I-6, ss. 89(1), 90(1)(b).
Manitoba Hydro invalidly imposed a tax upon the Peguis Indians in respect of the sale of electricity on a reserve. The Government of Manitoba subsequently settled the Indians' claim for the return of the taxes paid. Appellants obtained a prejudgment garnishing order against the settlement to the extent of their fees for representing the Indians in the settlement negotiations. Respondents applied to have the garnishing order set aside because personal property given pursuant to treaty and deemed to be on a reserve is not subject to attachment by a non-Indian. Both the trial judge and the Court of Appeal held that the funds could not be garnisheed. Their conclusion was based on their interpretation of s. 90(1) (b) of the Indian Act .
The courts below held that the garnished moneys were personal property given to a band under an agreement between a band and Her Majesty, and that the words "Her Majesty" in s. 90(1)(b) of the Act include not only the federal Crown but also the provincial Crown. These courts concluded that the moneys in question were "personal property" within the meaning of s. 90(1) (b) and so deemed to be situated on a reserve and, therefore, protected from garnishment by virtue of s. 89(1).
Held: The appeal should be dismissed.
Per La Forest, Sopinka and Gonthier JJ.: Section 90(1) (b) did not serve to protect property held by the province from garnishment. The term "Her Majesty" in the Indian Act refers to the federal Crown when unqualified. The Act defines an area of federal responsibility and the wording of s. 90(1) (a) indicates that "Her Majesty" was to be limited to the federal Crown. No specific terms expand the meaning of the expression in s. 90(1) (b). Similarly, Indian treaties are matters of federal concern and the terms "treaty" and "agreement" in s. 90(1) (b) take colour from one another. Finally, the "given" in s. 90(1) (b) is a distinct and pointed reference to the process of cession of Indian lands.
"Her Majesty" bears a uniform meaning throughout s. 90. The section applies solely to such personal property conferred by the federal Crown in the course of fulfilling its obligations to native peoples, whether pursuant to its treaty commitments or its responsibilities flowing from s. 91(24) of the Constitution Act, 1867 . No other interpretation concords with the tenor of the obligations historically assumed by the Crown vis-à-vis the property of native peoples.
Section 90 must be read in conjunction with ss. 87 and 89. These provisions should not be ascribed an overly broad purpose. They are not intended to confer privileges on Indians in respect of any property they may acquire and possess, wherever situated. Rather, they are to insulate the property interests of Indians in their reserve lands from the intrusions and interference of the larger society so as to ensure that Indians are not dispossessed of their entitlements.
The statutory notional situs of s. 90(1) (b) operates to protect personal property given to Indians by "Her Majesty" pursuant to a "treaty or agreement" in the same manner as property on a reserve regardless of its actual situs. Since the term "Her Majesty" in s. 90(1) (b) is limited to the federal Crown, the exemptions and privileges of ss. 87 and 89 apply solely in respect of such property as the federal Crown gives to Indians in acquitting itself of its responsibilities pursuant to treaties, and their ancillary agreements. This interpretation of s. 90(1) (b) is consistent with the tenor of the obligations that the Crown has always assumed vis-à-vis the protection of native property.
Any interpretation of s. 90(1) (b) that sees the purpose of that section as extending beyond that of preventing non-natives from interfering with property that enures to Indians as a result of the Crown's obligations under treaties and ancillary agreements, gives a novel and unprecedented extension to the protections that have up to now been conferred by the Crown on the property of Indians. Parliament, if it had intended to cast aside these traditional constraints, would have expressed this intention in the clearest of terms.
Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians but somewhat different considerations apply to treaties than to statutes. The Crown enjoyed a superior bargaining position when it negotiated treaties with native peoples and they must be read as the Indians would have understood them. Statutes relating to Indians, however, are an expression of the will of Parliament and import different considerations. The salutary rule that statutory ambiguities be resolved in favour of the Indians does not imply automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any competing interpretation. It is necessary to reconcile any given interpretation with the policies the Act seeks to promote.
Parliament, in enacting s. 90(1) (b), did not intend that the privileges of ss. 87 and 89 exempt Indian bands from taxation and civil process in respect of all personal property that they may acquire pursuant to all agreements with that level of government, regardless of where that property is located. Since "Her Majesty" in s. 90(1) (b) is limited to the federal Crown, this section has no application to the agreement that was entered into between the Government of Manitoba and the respondents.
Though s. 90(1)(a) does not afford the Indians protection against attachment by garnishment, such attachment is otherwise inconsistent with the operation of the Indian Act . Given the broad purpose of s. 87 (b) to protect Indian property on reserves from taxation, it would be truly anomalous if the province could do this illegally and then authorize the attachment of the tax moneys, a procedure tantamount to allowing provincial law to do indirectly what it cannot do directly, i.e., attach the personal property of Indians on reserves.
Moreover, the words "moneys due or accruing due to persons employed or paid by the government" in s. 3 of the Garnishment Act refer solely to debts of the Government arising pursuant to agreements relating to the provision of work or services.
Per Lamer, Wilson and L'Heureux-Dubé JJ.: The interpretation of s. 90(1)(b) given by La Forest J. and his conclusion that, as between the Government of Manitoba and the Indians, the Indians are entitled to the moneys were agreed with.
Once it is held that the moneys are not in fact situate on the reserve or deemed to be so and that they do constitute a debt, that debt is subject to garnishment at the hands of an innocent third party. The way in which the debt arose does not affect an innocent third party seeking to initiate garnishment proceedings with respect to that debt.
The Garnishment Act does not apply to the Crown so to permit the garnishment by the appellants of moneys owing by the Crown to the Indians under the settlement. The words "moneys due or accruing due to persons employed or paid by the government" in s. 3 of the Garnishment Act refer solely to debts of the Government arising pursuant to agreements relating to the provision of work or services. These words do not extend to lift the Government's immunity in respect of the garnishment proceedings which the appellant sought to initiate.
Per Dickson C.J.: Under the Nowegijick principle, ambiguities in the interpretation of treaties and statutes relating to Indians are to be resolved in favour of the Indians and aboriginal understandings of words and corresponding legal concepts in Indian treaties are to be preferred over more legalistic and technical constructions. This principle is concerned with interpreting a statute or treaty with respect to the persons who are its subjects -- Indians -- and not with interpreting a statute in favour of Indians simply because it is the State that is the other interested party.
The Nowegijick principle applies even if a civil party other than the state will lose out. Canadian society at large must bear the historical burden of the current situation of native peoples. Section 89(1) explicitly provides that a non-Indian cannot attach personal property of an Indian in certain circumstances and contemplates Indians being favoured vis-à-vis non-Indians. Therefore, it would be inconsistent with Nowegijick to interpret s. 90 (which extends s. 89's protection) in a restrictive manner.
A broad interpretation of the Garnishment Act and the particular provision which allows and facilitates the garnishing of government was assumed, without deciding, to be valid for the purposes of this appeal. Without s. 90, the situs of the debt would be the location of the debtor, i.e., off the reserve.
The definition of "Her Majesty" in the Interpretation Act includes the provincial Crowns and whether or not both Crowns are included depends on the statutory context. The words "Her Majesty" in a federal statute are not necessarily limited to the Crown in right of Canada: they can refer to the province. The ambiguity here lay in whether they did indeed refer to the province.
"Her Majesty" in s. 90(1) (b) of the Indian Act refers to both the federal and provincial Crowns. An application of the Nowegijick principle supported this conclusion. (Contextual arguments that the term referred only to the federal Crown were inconclusive and therefore an ambiguity arose.) Further, from the aboriginal perspective, any divisions that the Crown has imposed on itself, such as the federal and provincial Crown, are internal to itself and do not alter the basic structure of Sovereign-Indian relations.
The extent to which aboriginal peoples are affected only by decisions and actions of the federal Crown can be over-emphasized. Part and parcel of the division of powers is the incidental effects doctrine: a law in relation to a matter within the competence of one level of government may validly affect a matter within the competence of the other. As long as Indians are not affected qua Indians, a provincial law may affect Indians, and significantly so in terms of everyday life. Section 88 of the Indian Act greatly increases the extent to which the provinces can affect Indians by acknowledging the validity of laws of general application, unless they are supplanted by treaties or federal law. This fluidity of responsibility across lines of jurisdiction accords well with the fact that the newly entrenched s. 35 of the Constitution Act, 1982 , applies to all levels of government in Canada.
The term "personal property" in s. 90(1) (b) includes intangible property such as the right to payment of money. There was no compelling reason why the words "personal property" must be given a common meaning that fits both s. 90(1) (a) and (b). The meaning in s. 90(1) (b) is not limited to tangible or physical property because the meaning in s. 90(1) (a) is so limited.
The personal property in question was a debt, not money per se, and respondents were given the right to be paid money. This right or debt was in existence when the garnishing order was issued. It was not necessary that actual money be paid before s. 90(1) (b) became applicable.
The word "agreement" in s. 90(1) (b) was not to be read ejusdem generis with the word "treaty". Here, there was an agreement with the province to refund the tax in exchange for the execution of releases made by the bands involved. Assuming the applicability of the ejusdem generis rule, there was no reason why it should prevail over the Nowegijick principle of resolving ambiguities in favour of Indians.
Cases Cited
By La Forest J.
Distinguished: Attorney-General for Quebec v. Nipissing Central Railway Co., [1926] A.C. 715; Nickel Rim Mines Ltd. v. Attorney General for Ontario, [1967] S.C.R. 672; referred to: Greyeyes v. The Queen, [1978] 2 F.C. 385 (T.D.); Guerin v. The Queen, [1984] 2 S.C.R. 335; Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; Bryan v. Itasca County, 426 U.S. 373 (1976); Francis v. The Queen, [1956] S.C.R. 618; Leonard v. R. in Right of British Columbia (1984), 52 B.C.L.R. 389, leave to appeal refused, [1984] 2 S.C.R. viii; Leighton v. B.C. (Gov't), [1989] 3 C.N.L.R. 136; Metlakatla Ferry Service Ltd. v. B.C. (Gov't.) (1987), 12 B.C.L.R. (2d) 308 (C.A.); Bank of Nova Scotia v. Blood, [1990] 1 C.N.L.R. 16; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; United States v. Powers, 305 U.S. 527 (1939).
By Wilson J.
Referred to: Canadian National Railway Co. v. Croteau, [1925] S.C.R. 384; The King v. Central Railway Signal Co., [1933] S.C.R. 555; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551.
By Dickson C.J.
Applied: Nowegijick v. The Queen, [1983] 1 S.C.R. 29; considered: Nickel Rim Mines Ltd. v. Attorney General for Ontario, [1967] S.C.R. 672; Attorney-General for Quebec v. Nipissing Central Railway Co., [1926] A.C. 715 (P.C.); Guerin v. The Queen, [1984] 2 S.C.R. 335; referred to: Maritime Bank of Canada (Liquidators of) v. Receiver-General of New Brunswick, [1892] A.C. 437; R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892; Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; Metlakatla Ferry Service Ltd. v. B.C. (Gov't.) (1987), 12 B.C.L.R. 308 (C.A.); Brown v. The Queen in Right of British Columbia, [1979] 3 C.N.L.R. 67 (B.C.C.A.); Kuhn v. Starr, (Ferg J., Man. Q.B., unreported, October 28, 1976); Mintuck v. Valley River Band 63A, [1978] 2 W.W.R. 159 (Man. Q.B.); Greyeyes v. The Queen, [1978] 2 F.C. 385 (T.D.); The Queen v. National Indian Brotherhood, [1979] 1 F.C. 103 (T.D.); Fricke and Seaton Timber Ltd. v. Mitchell (1985), 67 B.C.L.R. 227 (B.C.S.C.); Fayerman Bros. Ltd. v. Peter Ballantyne Indian Band, [1986] 1 C.N.L.R. 6 (Sask. Q.B.); Williams v. Canada, [1989] 1 C.N.L.R. 184 (F.C.T.D.)
Statutes and Regulations Cited
An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, S.C. 1850, c. 74, s. 4.
Constitution Act, 1867, s. 91(24) .
Constitution Act, 1982, s. 35 .
Garnishment Act, R.S.M. 1970, c. G20, C.C.S.M., c. G20, s. 3.
Indian Act, R.S.C. 1970, c. I-6, ss. 4(3), 15, 16(2), (3), 18, 31(3), 32, 34(2), 35(1), 36, 37, 38, 39, 40, 41, 48(8), 53(3), 59(a), 67, 72, 87(a), (b), 88, 89(1),(2), 90(1)(a), (b), (2), (3), 91, 92, 93, 103(3), 104(1), 114(1).
Indian Act, 1876, S.C. 1876, c. 18, ss. 25 et seq., 64, 65, 66, 69.
Indian Act, S.C. 1951, c. 29, s. 90.
Interpretation Act, R.S.C. 1952, c. 158.
Interpretation Act, R.S.C. 1970, c. I-23, ss. 16, 28.
Order-in-Council No. 253 (Manitoba), March 9, 1983.
Proceedings Against the Crown Act, R.S.M. 1987, c. P140, s. 16(6).
Railway Act, 1919, S.C. 1919, c. 68, s. 189.
Royal Proclamation of 1763, R.S.C. 1970, App. II, No. 1.
Supreme Court Act, R.S.C. 1952, c. 259, s. 105.
Authors Cited
Bartlett, Richard Hamilton. Indians and Taxation in Canada, 2nd ed. Saskatoon: University of Saskatchewan, Native Law Centre, 1987.
British Columbia. Law Reform Commission. Report on Attachment of Debts Act. Victoria: 1978.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: Carswells, 1989.
New Brunswick. Law Reform Division of the New Brunswick Department of Justice. Third Report of the Consumer Protection Project, vol. II. Legal Remedies of the Unsecured Creditor After Judgment. Fredericton: 1976.
Ontario. Law Reform Commission. Report on the Enforcement of Judgment Debts And Related Matters. Toronto: 1981.
Ontario. Law Reform Commission. Report on the Liability of the Crown. Toronto: 1989.
Slattery, Brian. "Understanding Aboriginal Rights" (1987), 66 Can. Bar Rev. 727.
APPEAL from a judgment of the Manitoba Court of Appeal (1983), 39 Man. R. (2d) 180, [1986] 2 W.W.R. 477, [1985] 2 C.N.L.R. 90, dismissing an appeal from a judgment of Morse J. (1983), 22 Man. R. (2d) 286, [1983] 5 W.W.R. 117, [1983] 4 C.N.L.R. 50, finding moneys not subject to garnishing order granted by Referee Richardson. Appeal dismissed.
Paul R. Anderson and Kenneth G. Houston, Q.C., for the appellants.
Paul B. Forsyth, for the respondents.
//The Chief Justice//
The following are the reasons delivered by
THE CHIEF JUSTICE -- The broad issue in this appeal is whether certain moneys agreed to be paid by the Government of Manitoba to 54 Indian bands, and garnished before judgment by the appellants, Mr. Mitchell and Milton Management Ltd., can be considered "personal property of . . . a band situated on a reserve" within the meaning of s. 89(1) of the Indian Act, R.S.C. 1970, c. I‑6 (the Act), and therefore not subject to attachment. Section 89(1) reads:
89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian.
The following section of the Act contains a "deeming" provision crucial in deciding the issue presented by this appeal:
90. (1) For the purposes of sections 87 and 89, personal property that was
(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, or
(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,
shall be deemed always to be situated on a reserve.
Can the garnished moneys be said to be "personal property that was . . . given to . . . a band under . . . [an] agreement between a band and Her Majesty"? This gives rise to the further question whether the words "Her Majesty" in s. 90(1)(b) of the Act can include the provincial Crown or are referable only to the federal Crown. If the moneys in question are found to be "personal property" within the meaning of s. 90(1)(b), they would be deemed to be situated on a reserve and, therefore, protected from garnishment under s. 89(1).
I The Facts
The appellants issued a statement of claim in which it was alleged that (i) the First Nations Confederacy Inc., as representative of its member bands, retained Mr. Mitchell to act on its behalf in negotiating a rebate from the Government of Manitoba of sales tax paid by the bands over several years to Manitoba Hydro; (ii) it was a term of the agreement that Mr. Mitchell would be paid fees equivalent to 20 percent of sales tax recovered, assessable to each band on a prorated basis, less such funds as might be received against fees from the Federal Department of Indian Affairs; (iii) Mr. Mitchell, through Milton Management Ltd., negotiated Hydro sales tax rebates with the Government of Manitoba and in the Fall of 1982, the Government of Manitoba agreed to pay the Indian bands sales tax rebates in the amount of $953,432, entitling Mr. Mitchell to a fee of $190,668. The Federal Department of Indian Affairs contributed $5,493 to Mr. Mitchell's fees, leaving a claim against the bands of $185,175.
The respondent bands, in their statement of defence, deny the retainer. They allege that the Government of Manitoba, on its own initiative, and not as a result of the appellants' efforts, decided to refund to the Indian bands in Manitoba certain taxes which had been improperly collected from them. They say that the fee is so oppressive and excessive as to be unconscionable and, finally, that Mr. Mitchell is a member of the Institute of Chartered Accountants of Manitoba and as such is precluded from charging a fee contingent on the results of professional services.
On March 9, 1983, the Lieutenant Governor in Council of Manitoba passed Order‑in‑Council No. 253, on the submission of the Minister of Finance, which reads in part:
AND WHEREAS the Minister has received advice from a legal officer of the government advising him that taxes paid under The Revenue Act 1964 by Indians and Indian Bands were improperly collected since Section 87 of the Indian Act prohibited provinces from taxing electricity provided to Indians and Indian Bands which electricity was consumed by them on an Indian reservation;
AND WHEREAS it has been determined by the staff of his department and agreed to by representatives of those Indians and Indian Bands that a settlement amount of money for the period December 1, 1964, the date of the inception of The Revenue Act 1964 Part I which imposed the tax on electricity, up to and including March 20, 1980, at which time Manitoba Hydro exempted from tax those accounts of Indians and Indian Bands for which no tax is exigible under this Act, including interest totals $994,840.00.
AND WHEREAS it is deemed advisable to establish a trust for the settlement of the claims of Indian Bands in respect of tax paid on electricity and provide for the administration of the trust;
. . . the Minister recommends:
THAT the amount of $994,840. be transferred in the books of the government from appropriation (VII) (Finance) (4) (Taxation Division) (c) (Mining & Use Taxes Branch) (3) (Refunds) to a trust account to be held by the Minister of Finance on behalf of those Indians and Indian Bands as described on Schedule "A" attached, and paid out by him upon being satisfied that each Indian Band provides the Minister with satisfactory releases and assignments of their claims to their respective organizations;
THAT the Minister retain a holdback of 3% of the amount shown as payable in Schedule "A" from any payment made as provided above for a period of six years from March 9, 1983 to satisfy, if any, further claims made by Indians or Indian Bands for indemnification related to the payment of taxes on electricity for the above described period of time;
The appellants' claim has not yet come to trial. Rather, the substance of the current appeal, as I have indicated, stems from garnishment proceedings prior to judgment. After agreeing to allow an original garnishing order (obtained on January 10, 1983) to lapse because it was tying up the flow of important funds designated for social purposes, the appellants (on March 10, 1983, the day after the Order‑in‑Council established the trust fund) obtained a second pre‑judgment garnishing order against the tax rebate funds held in trust by the government to the amount of the fee claimed by the appellants, that is, $185,175. In accordance with the garnishing order, the garnishee Government paid the garnished amount into court. The respondents applied to have the garnishing order set aside, and the moneys paid out of court, on the basis that such an order was inconsistent with ss. 89(1) and 90(1) (b) of the Indian Act . The respondents' contention was that s. 3 of the Manitoba Garnishment Act, R.S.M. 1970, c. G20, C.C.S.M., c. G20, permitting garnishment of the government of Manitoba, was not a provincial law applicable to Indians within the terms of s. 88 of the Indian Act . Section 88 of the Indian Act reads as follows:
88. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by‑law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.
In further support of their application to set aside the garnishing order, the respondents contend that the money disposed of in the Order‑in‑Council is a debt owing to the respondents and, as such, constitutes, within the meaning of s. 90(1) (b) of the Indian Act , "personal property that was . . . given to Indians or to a band under a treaty or agreement between a band and Her Majesty". As a result, it is said, that debt is deemed by s. 90(1) (b) to be situated on a reserve and, therefore, by s. 89(1) , cannot be the subject of attachment at the instance of a non‑Indian. The respondents succeeded in their application before Morse J. ([1983] 5 W.W.R. 117 (Man. Q.B.)) The appellants now appeal from a decision of the Manitoba Court of Appeal ([1986] 2 W.W.R. 477), which upheld the judgment of Morse J.
II Judgments
Manitoba Queen's Bench -- Morse J.
The trial judge, Morse J., first determined that s. 3 of the Garnishment Act applies to the money owing to the bands as "moneys due . . . to persons . . . paid by the government." He then went on to find that, were it not for the deeming provision, s. 90(1) (b), the debt owing to the respondents would be susceptible to garnishment, as the situs of the debt was off the reserve due to the fact that the place of the debtor was off the reserve. Relying on s. 90(1) (b), Morse J. held that the debt could be deemed situated on the reserve and, therefore, was not subject to attachment.
Morse J. interpreted s. 90(1) (b) by breaking down the phrase "personal property . . . given to Indians or to a band under a treaty or agreement between a band and Her Majesty" into its constituent parts. Morse J. first rejected the argument that "personal property" in s. 90 had to be given a uniform meaning for both of its subsections. Therefore, for purposes of s. 90(1) (b), the words could encompass intangible property such as a money debt even if the words had to be given a more restricted meaning for purposes of s. 90(1) (a). Second, he found that the word "agreement" does not have to be read ejusdem generis with the word "treaty", also found in s. 90(1) (b); nor did he accept that between the respondents and the Government of Manitoba there was merely an appropriation of money, rather than an agreement. Third, he held that the words "Her Majesty" should be interpreted to refer not only to Her Majesty in right of Canada, but also to Her Majesty in right of the province of Manitoba. Finally, Morse J. found that the use of the past tense in the phrase "was given" did not require that the money had to have been given to the respondents; rather, since the personal property in question was the right to be paid money, not money itself, the respondents had been given that right prior to the garnishment.
Having found that the debt owing to the respondents was not susceptible to garnishment, Morse J. extended the garnishing order for thirty days to allow the appellants to find funds not protected by the Indian Act which could be garnished, after which period the order was to be set aside.
Manitoba Court of Appeal -- Matas, O'Sullivan and Philp JJ.A.
Writing for the court, O'Sullivan J.A. upheld the trial judge. The Court of Appeal appeared to see the only real issue as being whether the provincial Crown was "Her Majesty" within the terms of s. 90(1) (b). The court held that since there is only one Sovereign in the sense of only one Queen, the Sovereign or Crown in Canada is indivisible and, therefore, the reference to "Her Majesty" had to include both the Crown in right of Canada and the Crown in right of Manitoba.
III The Applicable Interpretive Principles
I should say at the outset that I find the reasons and reasoning of Morse J. persuasive. In particular, he was correct in resorting to the principle enunciated by this Court in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36, when he found it necessary to resolve interpretive difficulties. In Nowegijick, the Court had the following to say:
It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. If the statute contains language which can reasonably be construed to confer tax exemption that construction, in my view, is to be favoured over a more technical construction which might be available to deny exemption. In Jones v. Meehan, 175 U.S. 1 (1899), it was held that Indian treaties "must . . . be construed, not according to the technical meaning of [their] words . . . but in the sense in which they would naturally be understood by the Indians".
Two elements of liberal interpretation can be found in this passage: (1) ambiguities in the interpretation of treaties and statutes relating to Indians are to be resolved in favour of the Indians, and (2) aboriginal understandings of words and corresponding legal concepts in Indian treaties are to be preferred over more legalistic and technical constructions. In some cases, the two elements are indistinguishable, but in other cases the interpreter will only be able to perceive that there is an ambiguity by first invoking the second element.
The appellants maintain that the Nowegijick principle should not govern the present appeal. Rather, it is asserted that the normal principle that derogations from the civil rights of a creditor should be strictly construed, is applicable. The appellants attempt to distinguish Nowegijick in part by saying that the case was concerned with trying to resolve a conflict between the State and an Indian, in which case it was appropriate to resolve any ambiguity against the author of the doubt. The appellants are in effect arguing that Nowegijick is not applicable when it is a private citizen or other civil party, and not the State (the author of the doubt or ambiguity) who will lose out if the Act is interpreted in favour of aboriginal litigants.
I cannot accept that the comments in Nowegijick were implicitly limited in this way. The Nowegijick principles must be understood in the context of this Court's sensitivity to the historical and continuing status of aboriginal peoples in Canadian society. The above‑quoted statement is clearly concerned with interpreting a statute or treaty with respect to the persons who are its subjects -- Indians -- not with interpreting a statute in favour of Indians simply because it is the State that is the other interested party. It is Canadian society at large which bears the historical burden of the current situation of native peoples and, as a result, the liberal interpretive approach applies to any statute relating to Indians, even if the relationship thereby affected is a private one. Underlying Nowegijick is an appreciation of societal responsibility and a concern with remedying disadvantage, if only in the somewhat marginal context of treaty and statutory interpretation.
In oral argument, the appellants also sought to distinguish Nowegijick on the basis that the case dealt only with laws touching upon the particular status or qualities of Indians, thus providing a policy basis for the interpretive principle. Nowegijick dealt with tax exemptions under s. 87 of the Act, while this case deals with exemptions from garnishment ("attachment") under s. 89. Both provisions reflect the policy of the Act that Indians should be protected from the operation of laws which otherwise might allow Indians to be dispossessed of their property. In Nowegijick, the Court was concerned with whether a provincial law was applicable to Indians as a law of general application (Indian Act, s. 88 ). The only limitation to the principle articulated in Nowegijick was that the treaties or statutes must "relat[e] to Indians" for the liberal interpretive principle to apply. The Indian Act is the quintessential Act relating to Indians and the interpretation of any provision in it is, therefore, subject to the Nowegijick principle.
I would finally note that the appellants' argument to the effect that as against a private party the Court should not create privileges where Parliament has not explicitly done so, even if accepted, would not avail them in this case. Section 89(1) provides that a non‑Indian cannot attach personal property of an Indian in certain circumstances. It clearly contemplates that Indians will be favoured vis‑à‑vis non‑Indians. Therefore, it would be inconsistent with Nowegijick to interpret s. 90, which extends s. 89's protection, in a restrictive manner.
IV First Preliminary Issue: Applicability of the Garnishment Act
As a preliminary matter, it is necessary to determine whether s. 3 of the Garnishment Act is available to the appellants. The section reads:
3 The Government of Manitoba may be garnished under any Act of the Legislature, the same as ordinary persons, with regard to moneys due or accruing due to persons employed or paid by the government.
Morse J. adopted a broad interpretation which would best suit the purpose of the Garnishment Act and this particular provision -- to allow and facilitate the garnishing of government. The respondents have not argued against Morse J.'s interpretation and I shall thus assume, without deciding, its validity for the purposes of this appeal.
V Second Preliminary Issue: The Situs of a Debt
It appears to have been conceded by all parties that, without s. 90, the respondents would fail, because the situs of a debt is the location of the debtor, which, in this case, is off the reserve: see the authorities cited by Morse J., supra, at p. 122. As no argument has been addressed on the point this rule will be assumed to be valid for purposes of this appeal.
VI The Main Issue -- The Meaning of "Her Majesty"
The main issue, as I have noted, is whether the criteria in s. 90(1) (b), have been met so as to deem the debt situated on the reserves of the respondents and therefore immune from attachment under s. 89(1) . I shall proceed in the same fashion as Morse J. and break down the subsection into its component parts. By far the most contentious element, and that which occupied almost the entirety of each factum, is the question of whether "Her Majesty" in s. 90(1) (b) is limited to the federal Crown or also comprises the provincial Crowns, with Manitoba being thereby included.
Morse J., at p. 127, prefaced his observations on the point with these words:
Apart from the fact that the Indian Act is a federal statute, I can see no compelling reason why these words should be taken to refer only to Her Majesty in right of Canada. In my view, there is no constitutional or other impediment which would prevent the federal Parliament from providing that personal property given to an Indian or to a band under an agreement between a band and a provincial government should be deemed to be situated on a reserve.
The Court of Appeal relied on the idea that the Crown was indivisible to hold that "Her Majesty" had to apply to both levels of government. With respect, I cannot adopt that approach. The Court of Appeal's interpretation seems grounded in the belief that there cannot be "two Queens". As Professor Hogg succinctly notes in Constitutional Law of Canada, 2nd ed., at p. 216, divisibility of the Crown in Canada does not mean that there are eleven Queens or eleven Sovereigns but, rather, it expresses the notion (at p. 217) of ". . . a single Queen recognized by many separate jurisdictions." Divisibility of the Crown recognizes the fact of a division of legislative power and a parallel division of executive power. If a principle so basic needed the confirmation of high judicial authority, it can be found as far back as the Privy Council decision in Maritime Bank of Canada (Liquidators of) v. Receiver-General of New Brunswick, [1892] A.C. 437, in which Lord Watson said, at pp. 441‑42:
The object of the [British North America] Act [1867] was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. That object was accomplished by distributing, between the Dominion and the provinces, all powers executive and legislative, and all public property and revenues which had previously belonged to the provinces; . . .
See also the extensive discussions of the divisibility of the Crown, both within the Commonwealth and within Canada, by Lord Denning, M.R., May L.J. and Kerr L.J. in the recent R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892; and Hogg, op. cit., at pp. 215‑17.
The divisibility of the Crown in the sense just noted does not determine the interpretation to be given to the words "Her Majesty". Even if the Court of Appeal had been correct as a matter of constitutional law regarding indivisibility of the Crown, this would not necessarily have determined the correct statutory interpretation of "Her Majesty" in s. 90(1) (b): see, for example, Nickel Rim Mines Ltd. v. Attorney General for Ontario, [1967] S.C.R. 672, in which Spence J. (in Chambers) interpreted "Her Majesty" in s. 105 of the Supreme Court Act, R.S.C. 1952, c. 259, as including both the federal and provincial Crowns despite his constitutional premise that "[t]here is only one Crown although there are two separate statutory purses" (at p. 674). Instead, Morse J.'s approach commends itself in all material respects (at pp. 127‑28):
In the Interpretation Act of Canada (s. 28) it is provided that "`Her Majesty', `His Majesty', `the Queen', `the King', or `the Crown' means the Sovereign of the United Kingdom, Canada, and Her other Realms and Territories, and Head of the Commonwealth". In A.G. Que. v. Nipissing Central Ry. Co., [1926] A.C. 715 . . . , it was held by the Privy Council that s. 189 of the Railway Act, 1919 (Can.), c. 68, which empowered any railway company, with the consent of the Governor General, to take Crown lands for the use of the railway, applied to provincial Crown lands as well as to Dominion Crown lands. It was also held that the enactment was constitutionally valid by reason of the exclusive power to legislate in respect of inter‑provincial railways reserved to the Dominion Parliament by ss. 91(29) and 92(10) of the B.N.A. Act, 1867 (now the Constitution Act, 1867 ).
Giving a liberal construction to the words "Her Majesty" and resolving any doubt in favour of the defendants, I think that the words include Her Majesty in right of the province of Manitoba.
In my view, the trial judge adopted the correct approach. "Her Majesty" can refer to the province; the question is whether it does so refer.
First, Morse J. was correct in finding that the words "Her Majesty" in a federal statute are not necessarily limited to the Crown in right of Canada. "Her Majesty" is not defined an