Opetchesaht Indian Band v. Canada

Opetchesaht Indian Band v. Canada
Collection
Supreme Court Judgments
Date
1997-05-22
Report
[1997] 2 SCR 119
Case number
24161
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Aboriginal law
Notes
SCC Case Information: 24161
Decision Content
Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119
The Opetchesaht, an Indian Band, and
Danny Watts, suing on his own behalf
and on behalf of all the members of the
Opetchesaht Appellants
v.
Her Majesty The Queen in right
of Canada and British Columbia Hydro
and Power Authority Respondents
and
Union of British Columbia Indian Chiefs Intervener
and
B.C. Tel, B.C. Gas Utility Ltd. and the Greater Vancouver
Sewerage and Drainage District Interveners
Indexed as: Opetchesaht Indian Band v. Canada
File No.: 24161.
1996: October 28; 1997: May 22.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Indians ‑‑ Reserves ‑‑ Permits to use Indian reserve lands ‑‑ Right‑of‑way ‑‑ Validity of permit granting public utility right‑of‑way for electric power transmission lines across Indian reserve ‑‑ Right‑of‑way granted for such period of time as required for purpose of transmission line ‑‑ Nature and duration of rights granted under permit ‑‑ Whether rights granted within scope of s. 28(2) of Indian Act ‑‑ Whether permit valid ‑‑ Indian Act, R.S.C. 1952, c. 149, ss. 28(2), 37.
In 1959, the Crown, with the consent of the Opetchesaht band council, granted Hydro a right‑of‑way for an electric power transmission line across the band’s reserve “for such period of time as the . . . right-of-way is required for the purpose of” a transmission line. The permit issued to Hydro, under s. 28(2) of the Indian Act , gave Hydro “the right to construct, operate and maintain an electric power transmission line”, and the exclusive right to occupy the portions of the surface of the reserve where poles were erected, and that part of the air space where the wires were strung. The band retained the right to use and occupy the balance of the “right‑of‑way” area subject to specified restrictions. In 1992, the band applied to the Supreme Court of British Columbia under Rule 18A of the B.C. Rules of Court for a declaration that s. 28(2) did not authorize the grant of a right‑of‑way for electric power transmission lines over the reserve for an indefinite period of time. That section provides that “The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.” The court allowed the application but the Court of Appeal set aside the judgment, concluding that s. 28(2) allowed grants of interests for periods having no predetermined termination date.
Held (Cory and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Iacobucci and Major JJ.: The permit granted to Hydro under s. 28(2) of the Indian Act is valid. The interests conveyed by the permit are analogous to an easement over the band’s reserve lands, subject to termination when there is no longer a requirement for the power transmission right‑of‑way. Hydro’s rights in the land are not exclusive. The band shares use of the right‑of‑way but they cannot erect buildings on it or interfere with Hydro’s easement. While the statutory easement was granted for an indeterminate period, this is a period whose end is readily ascertainable. The easement will terminate when it is no longer required for a transmission line. Since the word “required” is used in the permit, the expiry of the permit is not solely dependant on Hydro’s will. Whether the line is required is a justiciable issue.
In view of the overall context of s. 28(2) , a period within the meaning of that section can be measured either by dates or by events. The end point of a permit thus need not be defined in terms of a specific calendar date as long as it is ascertainable and does not constitute a grant in perpetuity. Here, the end point of the permit arises when the easement is no longer required for power transmission. Because the duration of the easement is a bounded and ascertainable event, that duration is a period.
As a general rule under s. 37 of the Indian Act , surrenders are required not only when the Indian band is releasing all its interest in the reserve forever, but also whenever any interest is given up for any duration of time. Section 37 must be read subject to other provisions in the Indian Act relating to land, however, including s. 28 . Not only do these provisions demonstrate that there is a certain overlap between them and s. 37 , but they also overlap each other. The proper question in this case is thus not whether the permit could have been granted under s. 37 , but rather whether it was properly granted under s. 28(2) . While s. 28(2) cannot apply any time a portion of the Indian interest in any portion of reserve land is permanently disposed of, Hydro was accorded limited rights of occupation and use for an indeterminate but determinable and ascertainable period of time. There was no permanent disposition of any Indian interest. Furthermore, the band and Hydro were obligated to share the rights of use and occupation of the land, with the limited exceptions of the area of ground giving support to the poles and the air space occupied by the poles. Consequently, the surrender requirement of s. 37 does not apply to the present permit and more importantly, no rights exceeding those authorized by s. 28(2) were granted. The indeterminate easement granted on the face of this permit is a disposition of a limited interest in land that does not last forever. The grant of limited indeterminate rights in reserve land is permissible under s. 28(2) as a question of law.
It is important that the band’s interest be protected but the autonomy of the band in decision making affecting its land must also be promoted and respected. Depending on the nature of the rights granted, different levels of autonomy and protection are accorded by ss. 37 and 28(2) . Section 37 applies where significant rights are being transferred and demonstrates a high degree of protection, in that the approval of the Governor in Council and the vote of all of the members of the band are required. Under s. 28(2), lesser dispositions are contemplated and the interest transferred must be temporary. The permit in this case did not violate the balance between autonomy and protection struck by the Indian Act . This is not a case where surrender was required. The band council gave its consent to the permit following protracted negotiations. No claim of unfairness or an uneven bargain in this proceeding for summary judgment was advanced by the band.
Per Cory and McLachlin JJ. (dissenting): Section 28(2) of the Indian Act cannot be used to convey a right‑of‑way on reserve land for “such period of time as [it] is required for the purpose of an electric power transmission line”. The easement or right‑of‑way was granted for an indeterminate period and has the potential to continue in perpetuity. An interest in a band reserve land which possesses the potential to continue in perpetuity can only be removed from a band by surrender and alienation with the consent of the entire band membership under s. 37 of the Indian Act or by the formal process of expropriation under s. 35 of the Act.
A court should only be satisfied with the plain meaning of a statute where that meaning is clear and consistent with a purposive reading of the statute as a whole. In interpreting statutes relating to Indians, ambiguities and “doubtful expressions” should be resolved in favour of the Indians. This principle applies equally to cases in which third parties are involved. The phrase “any longer period” in s. 28(2) is ambiguous. Its meaning depends on its context. To resolve this ambiguity, the broader context within which s. 28(2) was enacted, a context which includes the history of the Indian Act , the principles it incorporates, the policy goals it was enacted to achieve, and its function in the overall scheme of the Act, must be considered.
A contextual interpretation of s. 28(2) indicates that the phrase “any longer period” was intended to deal with “things of a temporary nature”, not indefinite alienations which had the potential to extend far into the unforseen future. Section 28 is concerned with the short‑term, temporary use of the reserve by a person other than a band member. The phrase “any longer period” in s. 28(2) , consistent with this interpretation, is best understood as a period defined in relatively short terms of months and years. This phrase relates to the earlier phrase “a period not exceeding one year”, thus suggesting that what Parliament intended by “any longer period” was also a period capable of being expressed in finite calendar terms. An alienation which has the potential to go on as long as anyone can foresee falls outside the scope of s. 28(2) . For purposes of guidance in other cases, commitments longer than the two‑year mandate of band councils should not be transacted through s. 28(2) .
This interpretation of s. 28(2) which confines it to short‑term uses of Indian land fits perfectly with the other sections of the Indian Act relating to land and with the broader theme of inalienability of Indian reserve land that runs through the Act as a whole. It is also consistent with the policy of the Royal Proclamation, 1763 and the principle that the long‑term alienation of interests in Indian lands may only be effected through surrender to the Crown and consent of the band membership as a whole under s. 37 of the Indian Act or by expropriation under s. 35 .
Since s. 28(2) does not permit long‑term, indefinite alienation of interests in reserve land, a declaration that the permit is void should be granted, but the operation of that declaration should be suspended for a period of two years to permit the parties and others in similar situations to renegotiate or make new arrangements.
Cases Cited
By Major J.
Referred to: Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; Sevenoaks, Maidstone and Tunbridge Railway Co. v. London, Chatham and Dover Railway Co. (1879), 11 Ch. D. 625; Town of Lunenberg v. Municipality of Lunenberg, [1932] 1 D.L.R. 386; In re Ellenborough Park, [1956] Ch. 131; Canada (Attorney General) v. Canadian Pacific Ltd., [1986] 1 C.N.L.R. 1, aff’d [1986] B.C.J. No. 407 (QL); Canadian Pacific Railway Co. v. Town of Estevan, [1957] S.C.R. 365; The Queen v. Bolton, [1975] F.C. 31; Ouimet v. The Queen, [1978] 1 F.C. 672, aff’d [1979] 1 F.C. 55; Re Bower (1967), 60 W.W.R. 445; Cummins v. Keen (1978), 82 D.L.R. (3d) 443; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Smith v. The Queen, [1983] 1 S.C.R. 554; Guerin v. The Queen, [1984] 2 S.C.R. 335; St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, [1950] S.C.R. 211; The Queen v. Devereux, [1965] S.C.R. 567.
By McLachlin J. (dissenting)
R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Ouimet v. The Queen, [1978] 1 F.C. 672, aff’d [1979] 1 F.C. 55; Re Bower (1967), 60 W.W.R. 445; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721.
Statutes and Regulations Cited
Act to amend the Indian Act, S.C. 1919, c. 56, s. 1.
British Columbia Rules of Court, Rule 18A.
Indian Act, R.S.C. 1906, c. 81, s. 48 [am. 1919, c. 56, s. 1; later partially rep. 1938, c. 31, s. 1].
Indian Act, R.S.C. 1952, c. 149, ss. 24, 28 [am. 1956, c. 40, s. 10], 35, 37, 38, 39(1) [idem, s. 11], 49, 50, 58 [rep. & sub. idem, s. 14].
Indian Act, R.S.C., 1985, c. I‑5 .
Indian Act, S.C. 1951, c. 29, s. 57(c).
Interpretation Act, R.S.C., 1985, c. I‑21, s. 12 .
Royal Proclamation, 1763, R.S.C., 1985, App. II, No. 1.
Authors Cited
Canada. Department of Indians Affairs and Northern Development. Lands and Environment Branch. Lands, Revenues and Trusts. Land Management and Procedures Manual, May 1988.
Canada. House of Commons. Special Committee appointed to consider Bill No. 79, An Act respecting Indians. Minutes of Proceedings and Evidence, Issue No. 3, April 18, 1951, pp. 78, 80.
Canada. House of Commons and Senate. Special Joint Committee of the Senate and the House of Commons appointed to examine and consider the Indian Act . Minutes of Proceedings and Evidence, Issue No. 13, July 16, 1946, pp. 546‑48.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back. Ottawa: The Commission, 1996.
Dictionnaire alphabétique et analogique de la langue française, t. 5. Paris: Le Robert, 1976.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Jackson, Paul. The Law of Easements and Profits. London: Butterworths, 1978.
Oxford English Dictionary, vol. XI, 2nd ed. Oxford: Clarendon Press, 1989, “period”.
Reiter, Robert Alan. The Fundamental Principles of Indian Law, vol. II. Edmonton: First Nations Resource Council, 1990 (loose‑leaf updated January 1994).
Webster’s Third New International Dictionary. Springfield: Merriam‑Webster, 1986, “period”.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 89 B.C.L.R. (2d) 145, 41 B.C.A.C. 241, 66 W.A.C. 241, [1994] 5 W.W.R. 594, [1994] 4 C.N.L.R. 68, allowing the federal Crown’s appeal from a judgment of Lander J., [1994] 1 C.N.L.R. 109, declaring invalid a ministerial permit issued under the Indian Act . Appeal dismissed, Cory and McLachlin JJ. dissenting.
Jack Woodward, Patricia Hutchings, Jane Woodward and Judith Sayers, for the appellants.
Gerald Donegan, Q.C., and Robin S. Whittaker, for the respondent Her Majesty the Queen in right of Canada.
J. Edward Gouge, Q.C., Peter D. Feldberg and Line Lacasse, for the respondent British Columbia Hydro and Power Authority.
Louise Mandell and Brenda Gaertner, for the intervener the Union of British Columbia Indian Chiefs.
George K. MacIntosh, Q.C., and Robert P. Sloman, for the interveners B.C. Tel et al.
//Major J.//
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Iacobucci and Major JJ. was delivered by
1 Major J. -- This appeal is from an application by Danny Watts on his own behalf and on behalf of all members of the Opetchesaht (the “Band”) for summary judgment under Rule 18A of the British Columbia Rules of Court. The appellants seek a declaration that s. 28(2) of the Indian Act, R.S.C. 1952, c. 149 (hereinafter “Indian Act ” (now R.S.C., 1985, c. I-5 )), did not authorize Her Majesty in right of Canada (the “Crown”), as represented by the Minister of Citizenship and Immigration, to grant in 1959 a right-of-way for power transmission lines over the Indian reserve known as Klehkoot I.R. No. 2 for an indefinite period of time to the British Columbia Power Commission (“Hydro”).
2 The chambers judge of the British Columbia Supreme Court found that s. 28(2) did not authorize the permit because it was for an indefinite period of time: [1994] 1 C.N.L.R. 109. Although the word “period” could denote a period of time defined in relation to events in certain contexts, in that of s. 28(2), it must take its content from the phrase “any longer period” which could only mean a specified period of years.
3 The British Columbia Court of Appeal allowed the appeal, concluding that s. 28(2) allowed grants of interests for periods having no predetermined termination date: (1994), 89 B.C.L.R. (2d) 145, 41 B.C.A.C. 241, 66 W.A.C. 241, [1994] 5 W.W.R. 594, [1994] 4 C.N.L.R. 68. Taylor J.A., for the court, considered and concluded that the 1956 amendments, including those to s. 28(2), significantly changed the pre-existing scheme by giving band councils increased authority to speak and act on behalf of their members. The Court of Appeal found that s. 28(2) created a third method of alienation, over and above the traditional surrender method (s. 37 ) and expropriation (s. 35). The Minister was authorized to grant rights of use and occupation under s. 28 that could also be granted under ss. 35 or 37 provided that grants under s. 28 did not amount to “transfer of title to, or ownership of, the land” (p. 155 B.C.L.R.).
4 This appeal raises two questions. What was the nature and the duration of the rights granted under the permit and were the rights granted by the permit capable of being granted under s. 28(2) of the Indian Act ?
I. Facts
5 In 1958 Hydro finished construction of a hydro-electric generating facility at Sproat Falls, British Columbia. A transmission line was needed to convey electricity from the new generating facility to consumers in Port Alberni, British Columbia, and elsewhere.
6 Between February and July 1958, Hydro negotiated with the Crown and the Band to acquire a right-of-way for the transmission line across the appellant Band’s land, the Klehkoot Indian Reserve No. 2, Alberni district, C.L.S.R. Plan 5074. The negotiations were protracted, with a variety of proposals from each side, including yearly rental payments for a term of 20 years, free electricity for members of the Band, various offers on a per acre value, as well as expropriation under s. 35 of the Indian Act .
7 An agreement was concluded between the Crown and Hydro, with the consent of the Band council, for a right-of-way 150 feet wide over 7.87 acres of the 290 acres of reserve land on July 8, 1959. Total consideration for the right-of-way was $983.75, or $125 per acre. This amount exceeded the $75 per acre paid to the Band’s neighbour, R.B. McLean Lumber Co., whose land was comparable. Other lands on the right-of-way were not comparable for purposes of valuation. There was no evidence that the Band was paid less than fair market value.
8 The permit between Hydro and the Crown dated July 8, 1959 provides in part:
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the sum of Nine Hundred and Eighty-three Dollars and Seventy-five Cents ($983.75) paid to the Minister by the Permittee [Hydro] (receipt whereof is hereby acknowledged), the Minister under authority of Section 28(2) of the Indian Act , Chapter 149, Revised Statutes of Canada, 1952, as amended, doth hereby grant the Permittee, its successors and assigns, the right to construct, operate and maintain an electric power transmission line on the said lands being in the Klehkoot Indian Reserve number two, in the Province of British Columbia, and more particularly described as follows:
[description of the right-of-way covering 7.87 acres]
IT IS AGREED AND UNDERSTOOD that the aforesaid permission is subject to the following stipulations, provisos and conditions, that is to say:
1. That the rights hereby granted may be exercised by the Permittee for such period of time as the said right-of-way is required for the purpose of an electric power transmission line.
2. That the Permittee shall pay all charges, taxes, rates and assessments whatsoever which shall during the continuance of the rights hereby granted be due and payable or be expressed to be due and payable in respect of the said electric power transmission line or the use by the Permittee of the said lands.
3. That the Permittee shall not assign the right hereby granted without the written consent of the Minister.
4. That it shall be lawful for the Minister or any person thereunto authorized by him at all reasonable times to enter upon the said lands for the purpose of examining the condition thereof.
5. That the said lands shall be used for the purpose aforesaid and for no other purpose.
6. That the Permittee, its servants, employees, and workmen shall have and enjoy the right to unload and store material on the said lands for the erection, operation and maintenance of the said electric power transmission line and to roll and unroll wires thereon, and to do all such other acts and things as may be necessary or requisite for the purpose of properly erecting, operating, maintaining and patrolling the said electric power transmission line.
7. That the Permittee will not fence the said lands or any part thereof and Her Majesty is to be allowed free access to and use of the said lands except for building purposes and except insofar as it may be necessary for the Permittee to use the same for the purpose of constructing, operating, maintaining and patrolling the electric power transmission line.
8. That the Permittee will at all times hereafter indemnify and keep Her Majesty indemnified against all actions, claims and demands that may be lawfully brought or made against Her Majesty by reason of any act or omission by the Permittee in the exercise or purported exercise of the rights hereby granted.
9. That the Permittee may cut down any trees standing outside the said lands which in its opinion might in falling or otherwise endanger the conductors, wires, structures, equipment or other plant of the Commission, paying to the Minister reasonable compensation for the value of any trees so cut down.
IN WITNESS WHEREOF the Acting Director, Indian Affairs, on behalf of the Minister, has hereunto set his hand and the Permittee has caused these presents to be executed and its corporate seal to be affixed hereto by its proper officers duly authorized in that behalf.
9 The permit gave Hydro “the right to construct, operate and maintain an electric power transmission line”, and the exclusive right to occupy the portions of the surface of the reserve where poles were erected, and that part of the air space where the wires were strung. The Band retained the right to use and occupy the balance of the “right-of-way” area subject to specified restrictions related to the erection, operation, maintenance and patrol of the structures installed by Hydro. Hydro was allowed to use the lands as necessary for the purpose of constructing, operating, maintaining and patrolling the electric power transmission line. The right-of-way conferred by the permit was “for such period of time as the said right-of-way is required for the purpose of an electric power transmission line”. The rights granted in the permit were not assignable without the written consent of the Crown.
10 The record discloses that rights-of-way such as the one constituted in the present permit are commonplace. The permit in this appeal is typical of over a thousand similar arrangements made between native bands and utility and commercial entities across the country.
11 Some time prior to 1990, the Band decided that development of the reserve was required. It planned to build a private Band road, a reservoir access road and drainage ditch within the respondent Hydro’s right-of-way. On March 6, 1990, the respondent Hydro, by letter, offered to consent to the construction provided, in part, that the Band agree to taking responsibility for any lost generation of power to third parties, that it submit to safety and construction concerns of the respondent Hydro and that the Band not interfere with the respondent Hydro’s use of the right-of-way.
12 The appellants commenced an action against the respondents on March 13, 1992, seeking a declaration that the permit was void and of no force and effect, an order for possession of the lands subject to the permit and damages for trespass.
13 On October 16 and 17, 1992, the appellants applied to the Supreme Court of British Columbia for summary judgment under Rule 18A of the British Columbia Rules of Court for a declaration that s. 28(2) of the Indian Act does not authorize the Minister to grant a right-of-way for power transmission lines over the reserve for an indefinite period of time. On January 27, 1993, Lander J. of the Supreme Court allowed the application, declaring that the permit purporting to grant a right-of-way to Hydro for as long as “said right-of-way is required for the purpose of an electric power transmission line” was not authorized by s. 28(2) of the Indian Act . On March 21, 1994, the Court of Appeal for British Columbia allowed the respondents’ appeal.
II. Relevant Statutory Provisions
14 Indian Act, R.S.C. 1952, c. 149
28. (1) Subject to subsection (2), a deed, lease, contract, instrument, document or agreement of any kind whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
37. Except where this Act otherwise provides, lands in a reserve shall not be sold, alienated, leased or otherwise disposed of until they have been surrendered to Her Majesty by the band for whose use and benefit in common the reserve was set apart.
38. (1) A band may surrender to Her Majesty any right or interest of the band and its members in a reserve.
(2) A surrender may be absolute or qualified, conditional or unconditional.
58. (1) Where land in a reserve is uncultivated or unused, the Minister may, with the consent of the council of the band,
. . .
(b) where the land is in the lawful possession of any individual, grant a lease of such land for agricultural or grazing purposes or for any purpose that is for the benefit of the person in possession,
. . .
(3) The Minister may lease for the benefit of any Indian upon his application for that purpose, the land of which he is lawfully in possession without the land being surrendered.
(4) Notwithstanding anything in this Act, the Minister may, without a surrender
(a) dispose of wild grass or dead or fallen timber, and
(b) with the consent of the council of the band, dispose of sand, gravel, clay and other non‑metallic substances upon or under lands in a reserve, or, where such consent cannot be obtained without undue difficulty or delay, may issue temporary permits for the taking of sand, gravel, clay and other non‑metallic substances upon or under lands in a reserve, renewable only with the consent of the council of the band,
and the proceeds of such transactions shall be credited to band funds or shall be divided between the band and the individual Indians in lawful possession of the lands in such shares as the Minister may determine.
III. Analysis
15 Section 28(2) reads:
28. . . .
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
16 The appellants’ submission is that because Hydro might require the right-of-way forever the permit granting the right-of-way is not for a “period”. I disagree. A period within the meaning of s. 28(2) can be measured either by dates or events. In this appeal the right-of-way is only for the period it is required by Hydro for that purpose alone. It is not certain how long that period will be. However, when Hydro’s need for the right-of-way comes to an end, that fact will be ascertainable. Because the duration of the right-of-way is a bounded and ascertainable event, that duration is a period.
17 In determining whether s. 28(2) authorized the permit granted, three issues are raised. First, it is necessary to identify the nature and scope of the rights granted by the permit; second, whether the termination of the permit is defined by the happening of a reasonably ascertainable event; and finally, whether the permit constitutes a “sale, alienation, lease, or other disposition” under s. 37 of the Indian Act rather than a grant of rights under s. 28(2) .
A. Nature of Rights Granted by the Permit
18 The respondent Hydro was granted “the right to construct, operate and maintain an electric power transmission line”. This included the right of support by the land surrounding the base of the power poles, occupation of air space where the poles and wires were found and permission to inspect, maintain or repair the pole line for as long as the requirement for the line existed.
19 Hydro characterizes the right-of-way as a right to cross the appellants’ land for a specified purpose. Included in that right is the ability to erect towers and to prevent the Band from obstructing the right-of-way by any constructions on it.
20 The interests granted by the permit are analogous to an easement over the appellant Band’s reserve lands, subject to termination when there is no longer a requirement for the power transmission right-of-way. See Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654.
21 The rights created by the permit are statutory in origin and as such, they may be unknown to the common law: see Sevenoaks, Maidstone and Tunbridge Railway Co. v. London, Chatham and Dover Railway Co. (1879), 11 Ch. D. 625, per Jessel, M.R., cited in Town of Lunenberg v. Municipality of Lunenberg, [1932] 1 D.L.R. 386 (N.S.S.C.), at p. 390.
22 In Paul, supra, the dispute was over a parcel of land in the Woodstock Indian Reserve used by Canadian Pacific Ltd. (“CP”) under a 990-year lease. In 1975, the Indians who resided on the reserve disputed CP’s claim to the use of the right‑of‑way and barricaded it to prevent the passage of trains. CP sought a permanent injunction to prevent future trespass. The band counterclaimed respecting title to the right-of-way. The trial judge granted the injunction on the basis that the railroad had acquired the “fee simple” to reserve land comprising a railway corridor. This Court upheld the injunction but found that CP did not have a fee simple title but a statutory right-of-way, i.e., an easement. See also P. Jackson, The Law of Easements and Profits (1978), at p. 189; In re Ellenborough Park, [1956] Ch. 131 (C.A.), at p. 163, per Lord Evershed, M.R., cited in Paul, supra, at p. 671.
23 It is of interest that Hydro’s rights in the land here are not exclusive. The permit allows Hydro a right of support by the earth surrounding the base of the power poles and their anchors but the language of the permit in two ways demonstrates that the grant is of non-exclusive rights. The respondent Hydro can only use the land for the power transmission line and related maintenance purposes and the appellant Band retains the right to use the right-of-way. The Band’s ability to use the land is restricted only in that they cannot erect buildings on it or interfere with the respondent Hydro’s easement. Both Hydro and the Band share use of the right-of-way.
B. The Termination of the Interest Conveyed
24 The respondent Hydro submits that the permit on its face sets its duration or temporal boundary as the happening of an event. That is the future date when the power easement is no longer required.
25 The appellants take a contrary position and claim that the rights granted to the respondent Hydro by the easement are indeterminate and potentially in perpetuity.
26 In my opinion, as previously stated, the statutory easement was granted for an indeterminate period. It was not known in 1959 nor is it now known exactly when the rights will terminate but clearly, the easement will terminate when it is no longer required for a transmission line. This is a period whose end is readily ascertainable.
27 The permit provides that the respondent Hydro is entitled to use the reserve lands in question for as long as it requires a transmission pole line to pass through the portion of the reserve over which it is currently constructed. It is not difficult to imagine a number of circumstances in which this requirement would expire. While all are speculative, there is the possibility that the generating station at Sproat Falls might be abandoned, that demographic changes in the area might affect the location, size and requirement of the transmission poles. More remote is the possibility of electricity being replaced by another energy source. It is obvious that technology has affected the way we live in ways that were earlier unimaginable. The example of the Canadian experience with the railways is apposite. Even 50 years ago, this country’s railroads appeared to be a permanent fact of Canadian travel and transportation. Today, we have seen many railway lines abandoned in favour of airlines and highways.
28 Nor can the permit be characterized as perpetual because its duration is purely under the control of the respondent Hydro. In Canada (Attorney General) v. Canadian Pacific Ltd., [1986] 1 C.N.L.R. 1 (B.C.S.C.), aff’d [1986] B.C.J. No. 407 (C.A.), it was held that a grant of an interest in reserve land for so long as required for railway purposes was not an interest determinable at the sole will of the railroad. The Court of Appeal found that the reserve land was no longer required for railway purposes, and that therefore, the transfer of the land from CP to its subsidiary, Marathon Realty Corporation, was void.
29 The duration of the easement in the instant case is similarly qualified. It endures only so long as the right-of-way is required for the purpose of an electric transmission line. The respondent Hydro has some discretion as to the decisions it makes with respect to the placement and utility of transmission lines. However, since the word “required” is used, it would be wrong to conclude that the expiry of the permit is solely dependant upon the will of the respondent Hydro. Whether the line is required is a justiciable issue: Canadian Pacific Railway Co. v. Town of Estevan, [1957] S.C.R. 365; Canada (Attorney General) v. Canadian Pacific Ltd., supra. See also The Queen v. Bolton, [1975] F.C. 31 (T.D.), at p. 35.
C. Does a “Period” in Section 28(2) Include an Indeterminate Length of Time?
30 Prior to the amendment under which the impugned permit was granted, s. 28 allowed the Minister to grant permits of no longer than one year:
28. . . .
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
31 It was noted in Parliamentary Committee, and I agree, that under the above wording
. . . the minister, if he so desired or so chose, could grant permission for one year, and then at the end of that year, strictly in accordance with the wording of the subsection, he could grant permission for another year; because there is no statement in subsection (2) to the effect that at the end of the first year he would have to obtain permission before granting a permit for a further year.
(House of Commons, Minutes of Proceedings and Evidence, Issue No. 3, of the Special Committee appointed to consider Bill No. 79, An Act respecting Indians, April 18, 1951, at p. 80.)
The amendment which was in force in 1959 (S.C. 1956, c. 40, s. 10), when the permit was issued, reads:
28. . . .
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
This amendment limited the Minister’s power to indefinitely renew permits beyond a period of one year and expanded the ability of the Band council to grant rights of occupation and use of reserve lands for periods longer than one year to third parties without a surrender.
32 The question is whether “any longer period” necessarily denotes a fixed number of years. There is nothing in s. 28(2) that limits it to granting only those rights that are expressed for a fixed period.
33 “Period” can be defined in a number of different ways depending on its context, as the case law aptly demonstrates. It could mean a fixed number of years or months: Ouimet v. The Queen, [1978] 1 F.C. 672 (T.D.), at p. 684, aff’d [1979] 1 F.C. 55 (C.A.); Re Bower (1967), 60 W.W.R. 445 (B.C.S.C.), at p. 447. However, “period” also denotes a length of time bounded by the happening of a certain event, capable of being ascertained: Oxford English Dictionary (2nd ed. 1989), vol. XI, at p. 558; Webster’s Third New International Dictionary (1986), at p. 1680; Dictionnaire alphabétique et analogique de la langue française (1976), t. 5, at p. 122; Cummins v. Keen (1978), 82 D.L.R. (3d) 443 (Sask. Q.B.), at p. 445. As the end point of the permit is a justiciable issue, it is only necessary to decide whether a period can, in addition to a fixed period, encompass a length of time that endures until certain other circumstances occur. In my opinion and in view of the overall context of s. 28(2) , a period can be measured either by dates or events.
34 The end point of a permit need not be defined in terms of a specific calendar date as long as it is ascertainable. The only requirement is that the end of the period be capable of ascertainment so that it does not constitute a grant in perpetuity. In the instant case, the end point of the permit arises when the easement is no longer required for power transmission.
35 It is possible that a grant for perpetual duration might be disguised under the appearance of a defined period. A right-of-way to last as long as the sun shall shine and the rivers flow would obviously be a suspicious attempt to create a perpetual period under the guise of an ascertainable event. There could be a grant where the terminable event is so remote and uncertain that the period is, in fact, perpetual. That would be a matter of fact in the particular case.
D. Interaction of Section 37 and Section 28(2)
36 The appellant Band submits that this right-of-way with its potentially lengthy duration should have been effected by way of surrender to the Crown pursuant to s. 37 of the Indian Act which states:
37. Except where this Act otherwise provides, lands in a reserve shall not be sold, alienated, leased or otherwise disposed of until they have been surrendered to Her Majesty by the band for whose use and benefit in common the reserve was set apart.
37 This appeal concerns reserve lands as distinguished from lands in which “traditional” or aboriginal title is claimed. In Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344, McLachlin J. described Indian title in a reserve as being an incorporeal, personal right of perpetual usufruct. See also St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), at p. 54, per Lord Watson; Smith v. The Queen, [1983] 1 S.C.R. 554. It specifically does not include either the beneficial or legal fee simple:
The Bands do not have the fee in the lands; their interest is a limited one. But it is an interest which cannot be derogated from or interfered with by the Crown’s utilization of the land for purposes incompatible with the Indian title unless, of course, the Indians agree.
(Guerin v. The Queen, [1984] 2 S.C.R. 335, at p. 349, per Wilson J.)
Dickson J. (as he then was) described in Guerin (at p. 382) the Indians’ interest as
a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature