Claxton v. Tsawout First Nation

Claxton v. Tsawout First Nation
Court (s) Database
Federal Court Decisions
Date
2024-10-02
Neutral citation
2024 FC 1546
File numbers
T-1077-23
Decision Content
Date: 20241002
Docket: T-1077-23
Citation: 2024 FC 1546
Ottawa, Ontario, October 2, 2024
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
SHERI CLAXTON
VANESSA CLAXTON
Applicants
and
TSAWOUT FIRST NATION
Respondent
JUDGMENT AND REASONS
[1] The Applicants bring this application for judicial review in respect of a decision by Tsawout First Nation [Tsawout], dated May 31, 2022, to enter an agreement with Allan Claxton and Earl Claxton relating to Lot 47-6, CLSR 81466 on the East Saanich Reserve No. 2 [Lot 47-6]. This agreement provided that Allan Claxton and Earl Claxton would pay all debt related to Lot 47-6 in exchange for an unencumbered possessory interest in that property [Agreement]. The Applicants seek an order of this Court declaring the decision to be void and setting it aside.
Factual Background [2] Sheri Claxton and her daughter Vanessa Claxton, the Applicants, are members of Tsawout, which is an Indian Band as defined in the Indian Act, RSC 1985, c I-5 [Indian Act]. Lot 47-6 is located on East Saanich Reserve No. 2 in British Columbia. Tsawout is the Respondent in this matter.
[3] Allan Claxton is also a member of Tsawout. He is not a party to the judicial review but, as will be described below, he along with his brother Earl Claxton are plaintiffs (and defendants by counterclaim) in related litigation in the British Columbia Supreme Court [BCSC]. Allan Claxton has also filed an affidavit in response to this application for judicial review. Therein he states that he served as Chief of Tsawout for 20 years (the specific time frame is not identified) and that after taking a few years off, he was elected as Councillor in 2021. He states that he served in that position for two years and did not run for re-election in July 2023, but continues to be involved with Tsawout and First Nation land issues generally. As such, Allan Claxton was a sitting Councillor when the Agreement was entered into by Tsawout on May 31, 2023.
[4] It is not in dispute that in 1957, Tsawout granted a Certificate of Possession [CP] for Lot 20 CLSR 58751 [Lot 20] to the Estate of Johnny Claxton. A registration in the Indigenous Services Canada, First Nations Land Registry [Registry] dated August 31, 1971, confirms the grant. In 1958, the Estate of Johnny Claxton transferred Lot 20 to Ernie Earl Claxton [Earl Sr.], Clyde and Louie Claxton, as recorded in the Registry on August 31, 1971. Lot 20 was subsequently subdivided into Lot 47 CLSR 63988 [Lot 47] and Lot 48 CLSR 63988 [Lot 48]. In 1978, Clyde and Louie Claxton transferred their interest in Lot 47 to Earl Sr., as recorded in the Registry on January 24, 1979. In April 1983, Earl Sr. transferred his interest in Lot 47 to his sons, Allan, Earl (Jr.) and Calvin Claxton, pursuant to which each of the brothers held a CP and an undivided 1/3 interest in Lot 47, as recorded in the Registry on May 20, 1983. In 1994, Lot 47 was further subdivided into four lots, including Lot 47-6, as indicated in a Registry entry dated April 12, 1999.
[5] On October 6, 1994, the three brothers, Allan, Earl and Calvin Claxton, each transferred their interest in Lot 47-6 to Tsawout, as indicated in a Registry entry dated April 4, 1999. It is generally agreed that this transfer was to secure a loan sought by Calvin Claxton to fund construction on Lot 47-6.
[6] More specifically, after the three brothers transferred their interest in Lot 47-6 to Tsawout, Calvin Claxton obtained a loan from or guaranteed by Tsawout, to finance construction of a log cabin on the property. Calvin did not finish construction of the log cabin and instead built a house on the property. Calvin lived in the house on the property until about 2002, when he transferred his band membership from Tsawout to Squamish Nation. As will be discussed below, there is no documentation of any sort in the records before me pertaining to that loan, nor any related agreements, demands for payment, or any default actions.
[7] It appears that in or around the early 2000s, Calvin Claxton defaulted on his loan.
[8] Calvin and Sheri Claxton were married. The records before me do not indicate when they married but it appears to be generally agreed that they separated in 1995 and divorced some years later.
[9] Sheri Claxton claims that she has lived in the house on Lot 47-6 continuously since 2005 and that Vanessa Claxton has lived in the house continuously since 1995 except for the period 2012-2014 when she was away at school.
[10] On March 13, 2015, Calvin Claxton signed an “Absolute Disclaimer of Possessory Interest in Reserve Land (for use by a non-band member inheriting an interest in reserve land)” [Absolute Disclaimer] by which he refused to accept any interest in land located on a reserve of Tsawout that was a gift of the estate of Earl Sr. The Absolute Disclaimer was registered with respect to Lot 47-6 in the Registry on December 18, 2015, and Allan and Earl Claxton are recorded as each holding a ½ undivided interest in Lot 47-6.
[11] On May 14, 2018, Tsawout wrote to Sheri Claxton stating that, as she had been advised by letter dated October 30, 2017, neither she nor her ex-husband Calvin had any legal right to the property, and demanding that she cease and desist interfering with people entering on the property to complete studies necessary for its development. Further, based on Tsawout’s records, she had not been paying rent on the family home located on Lot 47-6 and that Tsawout had continued to pay the mortgage on the property. The letter states that it served as formal notice that Sheri was required to vacate within 30 days and that failure to do so could lead to Tsawout taking eviction proceedings. Based on the records before me, Tsawout did not pursue eviction.
[12] On May 31, 2022, the Agreement was signed. This provides that, in exchange for an amount of $109,000 – which would satisfy any and all debt owed by Allan and Earl Claxton to Tsawout –, the two brothers would receive a clear possessory interest in Lot 47-6.
[13] On July 26, 2022, Allan and Earl Claxton delivered an eviction notice to the Applicants, which requested them to leave Lot 47-6 by August 31, 2022, advised them that the property was jointly owned by Allan and Earl and that there was no rental agreement in place that would permit the Applicants’ continued occupation. The Applicants did not vacate.
[14] On August 31, 2022, Vanessa Claxton requested to speak with the Tsawout Chief and Council about the property dispute. By email dated September 7, 2022, the Tsawout Band Manager denied the request on the basis that the matter was deemed to be private in nature and not involving Tsawout band administration or Chief and Council.
[15] On September 1, 2022, Allan and Earl Claxton delivered a final eviction notice to the Applicants requiring them to leave Lot 47-6 by September 5, 2022, failing which Allan and Earl would file a claim against the Applicants. The Applicants did not vacate.
[16] On September 12, 2022, Allan and Earl Claxton filed a Notice of Civil Claim [Civil Claim] at the BCSC seeking, inter alia, a declaration that the Applicants are trespassing on Lot 47-6; an order for vacant possession of Lot 47-6; payment of sums owed to them, including rent; and, damages (Claxton v Claxton, 2023 BCSC 665 at para 7 [Claxton #1]).
[17] On September 15, 2022, Allan and Earl Claxton filed a Notice of Application seeking to have a portion of their Civil Claim determined summarily and an order for vacant possession, or, in the alternative, an interlocutory injunction requiring the Applicants to provide vacant possession pending trial (Claxton v Claxton, 2023 BCSC 2417 at para 14 [Claxton #2]).
[18] By letter dated November 5, 2022, Vanessa Claxton requested the Tsawout Chief and Council’s permission to continue to occupy Lot 47-6. She claims that she did not receive a response to this request and there is no evidence in the records before me that she did.
[19] On November 8, 2022, the Tsawout Band Manager wrote a letter “To Whom it may Concern” which states that the action before the BCSC was a private dispute between individuals and that Tsawout did not have a direct interest in the matter. In her letter, the Band Manager also confirmed that Allan and Earl Claxton each held a CP for an undivided ½ interest in Lot 47-6. Further, that Tsawout had guaranteed a loan obtained by Calvin Claxton to finance construction of a log cabin on Lot 47-6 and her understanding was that, at that time, the three brothers each held and undivided 1/3 interest in the property. The Band Manager also wrote that as security for the loan, Tsawout required that the brothers’ interest in the property be transferred to it for the duration of the loan and that Calvin Claxton subsequently defaulted on the loan and forfeited his interest in the property. She concluded her letter by stating that Allan and Earl Claxton had since paid off Calvin’s debt and, as a result, Lot 47-6 was unencumbered.
[20] On November 18, 2022, Vanessa Claxton submitted a Notice of Dispute, on her own behalf and on behalf of her mother [Notice of Dispute], with Tsawout’s Lands Manager pursuant to Part 8 of the Tsawout First Nation Land Code, 2007 [Land Code].
[21] On December 13, 2022, the Applicants submitted an Addendum to the Notice of Dispute [Addendum] to the Lands Manager. The grounds cited in the Notice are that the July 2022 decision of Tsawout to transfer its interest in Lot 47-6 to Allan and Earl Jr. was inconsistent with (a) the Conflict of Interest provisions in Part 5 of the Land Code; (b) Sheri Claxton’s rights to possess, reside in, use and otherwise occupy the matrimonial home with her daughter Vanessa, as provided for in Part 7 of the STAUTW First Nation SMELI (Matrimonial) Real Property Law No. 01-2012 [Matrimonial Property Law] and the Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20 [FHRMIRA]; and (c) CELANEN, defined at Section 2.1 of the Matrimonial Property Law as “the body of WSANEC laws, customs and traditions, and includes the traditions and laws of individual families.” The Applicants wrote in the Addendum that they were seeking recognition of Sheri Claxton’s right to possess, reside in, use and otherwise occupy the SMELI (Matrimonial) Home at Lot 47-6 with her daughter Vanessa Claxton, in accordance with CELANEN and the Dispute Resolution Procedures established under Part 8 of the Land Code.
[22] By letter dated January 12, 2023, the Tsawout Band Manager informed the Applicants that the Notice of Dispute would not be sent to the Dispute Resolution Panel [January 12 Letter]. The Band Manager stated that this was because the dispute resolution procedures of the Land Code were not engaged as title to Lot 47-6 was not in dispute and, even if it were, the Applicants had responded to the BCSC action which would preclude use of the Land Code dispute mechanism unless the court proceedings were complete or with the consent of the parties. According to Tsawout’s Band Manager, the Matrimonial Property Law and the FHRMIRA [collectively, the Matrimonial Property Laws] did not apply because they require that the property at issue be owned by one of the spouses, but Calvin Claxton had surrendered his interest in Lot 47-6 and, in any event, the Applicants were out of time to make such a claim which, in any case, would have had to have been brought against Calvin. Further, the Dispute Resolution Panel would not have jurisdiction to grant the relief sought as the Land Code provides that dispute resolution does not apply to any dispute to which a spousal property law applies. The letter states that the Matrimonial Property Laws are clear that the BCSC is the venue where the claim would need to be pursued.
[23] On April 26, 2023, Justice Saunders of the BCSC found that an entitlement to an order of possession was not an appropriate issue for summary determination (Claxton #1 at para 29). However, with respect to the injunctive relief sought by Allan and Earl Claxton, Justice Saunders found that Sheri and Vanessa Claxton had not proven that they had a legal right, pursuant to s 20(1) of the Indian Act, to possession of Lot 47-6 as of the hearing of the application, i.e., November 18, 2022. Accordingly, and as will be further discussed below, the interlocutory injunction requested by Allan and Earl Claxton was granted and the Applicants were ordered to vacate Lot 47-6 within 45 days of the Order, pending the trial of the civil claim (Claxton #1 at paras 32-33). The Applicants did not vacate Lot 47-6.
[24] The Applicants subsequently filed a response to the Civil Claim as well as a counter claim in the BCSC action (Claxton #2 at para 17). A copy of that pleading has not been provided to this Court.
[25] On May 23, 2023, the Applicants filed a notice of application in the BCSC seeking an order staying the execution of Justice Saunders’ Order, more particularly the injunction, pending the trial of that action (Claxton #2 at para 18).
[26] Also on May 23, 2023, the Applicants filed their Notice of Application in this Court seeking, among other relief, (a) a declaration that the decision of Tsawout to allocate an interest in Lot 47-6 to Allan and Earl Claxton is void on the basis that Tsawout failed to observe procedural fairness and that a reasonable apprehension of bias exists; (b) a declaration the decision be set aside on the basis that it relied on an erroneous assumption that Tsawout had properly allocated the interest in the property; and (c) an order setting aside the decision to enter into the Agreement and remitting it back for reconsideration.
[27] On September 29, 2023, having applied the legal test for a stay and based on the evidence before him, Justice Gaul of the BCSC found that the Applicants had no evident legal right that superseded Allan and Earl Claxton’s CP and that he was satisfied that Allan and Earl had a legal right to the property which right was being infringed by the ongoing conduct of the Applicants (Claxton #2 at paras 50, 70). As such, he dismissed the Applicants’ application to stay the execution of Justice Saunders’ injunction order but underscored that this was not the final determination of Allan and Earl Claxton’s claim against the Applicants or of the latter’s counterclaim, which would both be decided later (Claxton #2 at paras 72-74).
[28] On September 22, 2023, the Applicants filed an Amended Notice of Application.
[29] Before this Court, the Applicants assert that Sheri Claxton acquired a legal interest in the family home and Lot 47-6 over the course of her marriage to Calvin and as a result of payments made to Tsawout with respect to the property. Sheri attaches as an exhibit to her supporting affidavit a receipt on Tsawout letterhead in the amount of $515.20 dated February 27, 2012, and a Tsawout paycode history between September 2006 and March 2012 listing payments totaling $23,321.09. Sheri asserts these were payments for the occupancy of the home and repayment of the mortgage. The October 13, 2023, affidavit of Vanessa Claxton, filed in support of this judicial review, states “I have made payments to Tsawout for Lot 47-6” but provides no detail or documentation in support of this statement.
[30] On this point, an affidavit of Mr. Greg Diemer, the chief financial officer [CFO] of Tsawout, dated November 9, 2023 [Diemer Affidavit] filed by Tsawout in support of its response to the application for judicial review, states that he reviewed Tsawout’s financial records and did not locate any records of payments received from the Applicants. The May 14, 2018, letter from the Band Manager notifying the Applicants that they were to vacate the property also states that, according to Tsawout’s records, the Applicants had not paid rent to Tsawout.
Decision Under Review [31] The Notice of Application indicates that the decision under review is Tsawout’s decision to enter into the Agreement with Allan and Earl Claxton on May 31, 2022 (although the Notice of Application refers to a July 2022 decision, this would appear to be in error) with respect to Lot 47-6.
[32] However, in their written submissions, the Applicants assert that they are also challenging Tsawout’s “related decision,” being the January 12 Letter declining to refer the Notice of Dispute to the Dispute Resolution Panel as contemplated by the Land Code.
[33] This will be addressed below as a preliminary issue.
Issues and Standard of Review [34] Tsawout raises the following three preliminary issues. In their written submissions, the Applicants identified and addressed the third of these issues:
Are the Applicants improperly challenging two distinct decisions?
Is the application within the jurisdiction of the Federal Court?
Is the application time-barred?
[35] The issues on the merits are:
Issue 1: Did Tsawout owe the Applicants a duty of procedural fairness with respect to its decision to negotiate and sign the Agreement and/or in refusing to refer the Notice of Dispute to the Dispute Resolution Panel? If so, did Tsawout breach this duty?
Issue 2: Was there a reasonable apprehension of bias respecting the involvement of Allan Claxton?
[36] The parties submit and I agree that questions of procedural fairness are reviewed on a correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). The court, owing no deference to the decision-maker, must ask “whether the procedure was fair having regard to all of the circumstances” (Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 56). If the court is satisfied that the procedure was not fair, then the application should be allowed.
Preliminary Comments i. Representation by counsel [37] Up until moments before the hearing, the Applicants were jointly represented by counsel. However, just prior to the hearing, Vanessa Claxton advised counsel that she would be representing herself at the hearing and discharged him. In the result, counsel presented the application on behalf of Sheri Claxton and I permitted Vanessa to represent herself and present her case, to the extent not already covered by counsel for her mother.
ii. Certified tribunal record and affidavit evidence [38] The original and Amended Notices of Application included a request (as permitted by Rule 317 of the Federal Courts Rules, SOR/98-106 [Rules]) by the Applicants that Tsawout provide them with the minutes and any other records regarding the allocation of interests in Lot 47-6 in 2022. The CTR filed by Tsawout contains only a certified copy of the Agreement. Tsawout did not file any supporting background affidavits of any members of Tsawout, e.g., Chief, Counsel or any representatives of Tsawout Chief and Counsel, other than the brief affidavit of the CFO speaking to his role in the negotiation of the Agreement. Tsawout did file an affidavit of Allan Claxton.
[39] Sheri Claxton filed an affidavit in support of this application for judicial review which includes two attached exhibits. Vanessa Claxton has also filed an affidavit in support of this application. However, the Application Record contains, among other things, affidavits filed in the BCSC matter which are not exhibits to or referred to in either supporting affidavit filed in this Court, including an unsigned affidavit of Vanessa Claxton, to which the Applicants refer in their written submissions. I decline to consider the latter.
[40] None of the affiants were cross-examined on their affidavits.
[41] As will be discussed below, the limited evidence before me raises, but does not resolve, many questions that are relevant to my determination of this matter.
iii. The BCSC decisions [42] The parties’ positions ultimately concern the status of the Applicants’ interests, if any, in Lot 47-6.
[43] In that regard, Tsawout relies on the BCSC decisions to support its view that the Applicants have no legal interest in Lot 47-6. This view is the basis for Tsawout’s position that it is was not required to provide notice to or consult with Sheri and Vanessa Claxton about entering into the Agreement. More specifically, Tsawout argues that the Agreement is private, not public, in nature and therefore does not engage procedural fairness requirements with respect to the Applicants and, in any event, that Tsawout was not required to consult with or give notice to the Applicants because they do not have legal interest in Lot 47-6.
[44] Conversely, the Applicants argue that while they do not hold a CP to Lot 47-6, they do have a legal interest in the property based on the Land Code, the FHRMIRA, the Matrimonial Property Law, their long time occupation of the house and improvements made to it, and, in particular and as stressed when appearing before me, the payments made to and accepted by Tsawout with respect to the property. According to the Applicants, the Land Code required Tsawout to consider their interests but Tsawout failed to do so and failed to afford them procedural fairness with respect to the entering into the Agreement, which was further compounded by the January 12 Letter.
[45] Given this, it is perhaps helpful to set out here what the BCSC actually held, why and in what context.
i. Claxton #1 [46] Claxton #1 was an application of the plaintiffs therein (Allan and Earl Claxton), brought under a summary trial rule, seeking summary judgment on the issues of the defendants’ (Sheri and Vanessa Claxton) trespass and the plaintiffs’ right to an order for vacant possession; or, alternatively, an interlocutory injunction requiring the defendants to give up vacant possession of the premises pending trial. Justice Saunders set out the underlying facts in that matter which are substantially the same as those before me. He concluded that he was unable to find the necessary facts, and that it would be unjust to decide, the issue of entitlement to an order for possession in the application then before him. This was because the plaintiffs sought to sever the issue of their entitlement to an order of possession from all other relief sought and, therefore, it would be inefficient to proceed summarily. Further, Justice Saunders found that:
[27] Second, while Sheri and Vanessa have never held a certificate of possession, it appears that they continued to inhabit the House on the Premises to the knowledge of [Tsawout], and that [Tsawout] accepted mortgage or rent payments from Sheri for a period of several years. Under s. 25(2) of the [Indian Act], the right of possession of the Premises would appear to have reverted to [Tsawout] when Calvin transferred his band membership and failed to transfer his interest under s. 25(1). [Tsawout]’s subsequent acceptance of Sheri’s payments would appear possibly to give rise to an equitable interest. That issue cannot be determined.
[28] Further, while the plaintiffs relied upon Calvin’s Disclaimer to have [Tsawout] transfer the right of possession to them, it is not at all clear that the Disclaimer had the legal effect contended by the plaintiffs. The Disclaimer was limited to the acceptance of gifts from Earl Sr.’s estate. However, Earl Sr. had already granted possessory rights to Calvin, and the plaintiffs, in 1983. I cannot find on the evidence that the estate had anything to give in respect of Lot 47-6; the effectiveness of the Disclaimer as an instrument entitling the plaintiffs to sole possession is therefore uncertain, on the evidence.
[47] However, with respect to the interlocutory application, in applying the RJR-MacDonald v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald] tripartite test for a stay, Justice Saunders found that, in trespass cases, if there is no arguable case against a plaintiff’s right of possession, an injunction will normally lie against a trespasser without consideration of the second and third parts of the test. In that regard, when the evidence clearly establishes a plaintiff’s rights, the onus shifts to the defendant to establish that their continuing possession of the property is as of right. In this context, the claim to possession “as of right” must be established as of the date of the application. Justice Saunders found that:
[32] Under s. 20(1) of the [Indian Act], no member of a First Nation is in lawful possession of reserve land unless possession of the land has been allotted to them by the band council, with the Minister’s approval. The defendants have not established that they meet that requirement. They have never held certificates of possession or a registered interest in the Premises. Under the [Indian Act], their possession is unlawful. They have not proven that they had a legal right to possession of the Premises as of the hearing of the application.
[33] Accordingly, the interlocutory injunction is granted. Within 45 days of the date of this Order, the defendants will provide vacant possession of the Premises, pending the trial of this civil claim.
[34] Should the defendants wish to contest the plaintiffs’ claim, I further order that within 14 days of this Order, the defendants file a response to civil claim. If the defendants do not do so, the plaintiffs will be at liberty to pursue the remedies sought in the notice of civil claim, in default of pleading. Further, if the defendants oppose the plaintiffs’ claim on the grounds of the defendants’ opposition to decisions made or actions taken by [Tsawout], I order that they take all steps necessary to initiate legal proceedings to challenge decisions of [Tsawout], or to compel action by [Tsawout], as the case may be, within 45 days.
ii. Claxton #2 [48] In Claxton #2, Sheri and Vanessa Claxton, who had not vacated the property, sought a stay of the injunction until the underlying action was adjudicated. Justice Gaul, applying the serious issue branch of the RJR-MacDonald test, noted that relying upon the common law, including W̱SÁNEĆ customary law and the FHRMIRA, the defendants, i.e., Sheri and Vanessa Claxton in that matter, maintained that Sheri has a legal interest in the house and premises as the former spouse of Calvin Claxton, and that this interest has never been extinguished. The defendants also pointed to the fact that they have occupied the house for an extended period of time and have made mortgage or rental payments in relation to the premises that have been accepted by the Tsawout. Further, Justice Gaul noted that they had initiated proceedings in Federal Court challenging the Tsawout’s decision to allocate an interest in the premises, on the basis that the decision breached the rules of natural justice and procedural fairness, and that there was no consultation with either of them before approving the allocation.
[49] Justice Gaul found:
[28] With respect to the FHRMIRA, the plaintiffs submit that the provisions of this legislation have no applicability to the circumstances before the court and cannot be relied upon by the defendants as it was enacted in 2013, with associated Regulations promulgated in 2014. As these legislative provisions cannot be applied retroactively, they cannot, say the plaintiffs, apply to Sheri Claxton's situation, given she separated from Calvin Claxton in or around 1995. I find this argument persuasive. I also accept that if the provisions of the FHRMIRA and its Regulations did apply to Sheri Claxton's situation, they would only found a claim against her former spouse, Calvin, and not the plaintiffs.
[29] The plaintiffs advance a similarly persuasive argument with respect to the defendants’ attempt to rely upon the common law and W̱SÁNEĆ customary law as bases for their claims. I agree with counsel for the plaintiffs that any claim Sheri Claxton may have based on these potential legal avenues would be as against Calvin Claxton and not the plaintiffs.
[30] The defendants maintain that case authorities confirm that traditional use and occupation of land gives rise to lawful possession, even in the absence of a certificate of possession. In my respectful view the defendants are misinterpreting the jurisprudence they cite.
[31] In George v. George, 1996 CanLII 8396 (BC CA), [1997] 2 C.N.L.R. 62 (B.C.C.A.), Madam Justice Rowles concluded, on behalf of a unanimous court, that the specific facts of the case permitted the trial judge to find that the appellant was in lawful possession of the land in dispute, regardless of the fact that they had not obtained a certificate of possession under the Indian Act. However, the evidence in George satisfied the court that the band council had allotted the land in question to the appellant and that the Minister had consented to it pursuant to the Indian Act. These facts do not exist in the present case, as [Tsawout] has not allotted the Premises to the defendants, nor has the Minister consented to such an allotment. In this respect, I agree with the submissions of counsel for the plaintiffs that George is not authority for the proposition that traditional use and occupation gives rise to lawful possession.
[32] In my view, the same can be said with respect to the legal principles that can be derived from Nicola Band v. Trans-Canada Displays Ltd., 2000 BCSC 1209 and Penticton Indian Band v. Jack, 2013 BCSC 2587.
[33] In Nicola Band, Madam Justice Smith concluded:
[151] The recognition of traditional or customary use of land cannot create a legal interest in the land that would defeat or conflict with the provisions of the Act. Such an approach to governance by a band council would be adverse to its fiduciary duty to manage reserve lands in the best interests of all band members. As stated by Rae J. at page 330 in Leonard v. Gottfriedson, supra:
It should be apparent that the chief and councillors of a band are in a position of trust relative to the interests of the band generally, the band’s assets and the members of the band.
…
[162] The above findings may be summarized as follows:
…
4. Ownership of lands based on traditional or customary use of the land does not exist independent of interests created by the Act. Recognition of an individual’s traditional occupation of reserve lands does not create a legal interest or entitlement to those lands unless and until the requirements of the Act are met.
…
[34] While Justice Saunders was, quite understandably in my view, not prepared to discount the possibility that the defendants held some form of equitable interest in the Premises based upon payments they have made to [Tsawout] relating to the property, that possibility was not sufficient to convince him that the injunction sought by the plaintiffs ought not to be granted. I come to the same conclusion on the present application. In my opinion, even if the defendants have some form of equitable claim, it does not prevail over or trump the clear requirements of the Indian Act, and in particular s. 20. Support for this conclusion can be found in Squamish Indian Band v. Findlay, 1981 CanLII 401 (BC CA), 26 B.C.L.R. 376 (C.A.) and Leonard v. Gottfriedson, 1980 CanLII 585 (BC SC), 21 B.C.L.R. 326 (S.C.).
[35] The defendants also argue that their Federal Court challenge to the [Tsawout]’s allocation of the Premises provides a basis for a finding that there is a triable issue in the present case. I do not find that argument persuasive. The allocation in question, based on the evidence before me, was made in 1979 when [Tsawout] granted a certificate of possession for the Premises to the plaintiffs and Calvin Claxton's father, Earl Claxton Senior. In 1983, right to possess the Premises was granted to the plaintiffs and Calvin Claxton.
[36] In my opinion, what the defendants are actually challenging is not the decision of [Tsawout] to allocate an interest in the Premises. Rather, it is the private agreement between [Tsawout] and the plaintiffs in which the plaintiffs agreed to pay the debt that their brother Calvin had incurred and secured against the Premises, in return for which they would obtain a clear possessory interest in the Premises.
[37] I am not convinced that this challenge to [Tsawout]’s conduct constitutes a viable ground upon which I can find that there is a serious issue to be tried in the present case.
[38] The dispute is between the plaintiffs, who hold a certificate of possession, issued in accordance with the provisions of the prevailing legislation, over the Premises, and the defendants, who claim an interest in the Premises, based upon a historical relationship with Calvin Claxton and an assertion of traditional use and occupation of the Premises.
[50] Justice Gaul found that although the threshold for this branch of the RJR-MacDonald test is low, the defendants had not convinced him that there was a serious issue to be tried. He stated that the various bases upon which they relied for their claim to the premises were unsustainable and that included the one involving an alleged equitable interest. Further, in his opinion, once a CP has been granted, all of the incidents of ownership of the property in question are vested in the band member who possesses the CP, including the right and ability to have trespassers removed from the property. He accepted the submissions of plaintiffs’ counsel that the claims being advanced by the defendants were not supported by the facts or applicable law and, consequently, they were, using counsel’s words, “doomed to fail.”
[51] When considering irreparable harm branch of the test, Justice Gaul repeated that the plaintiffs have a CP, and consequently they have the exclusive right to possess the premises. The defendants had no evident legal right that superseded the plaintiffs’ CP. He stated that there was also no evidence before him that the house or premises are particularly unique or special, or that the defendants have invested any significant effort into making improvements to them. He found that if the stay was denied and the house was razed and the premises redeveloped, the defendants would still be able to pursue their counterclaim for damages against the Plaintiffs.
[52] Justice Gaul concluded that the plaintiffs had a legal right to the premises and that the right was being infringed by the ongoing conduct of the defendants. However, he underscored that he made his decision based on the evidence presented to him, as well as the submissions of counsel and the state of the law as he understood it. But that this was not a final determination of the plaintiffs’ claim against the defendants or the defendants’ counterclaim against the plaintiffs. That would have to be decided later.
Preliminary Issues Preliminary issue 1: Are the Applicants challenging two distinct decisions? Tsawout’s position [53] Tsawout submits that in their Amended Notice of Application, the Applicants challenge Tsawout’s decision “to allocate an interest in the Family Home on Lot 47-6 on the East Saanich Reserve No. 2 […] to Allan Claxton and Earl Claxton in July 2022.” This decision was to enter into the Agreement. However, in their Memorandum of Fact and Law, the Applicants seek to broaden the scope of the decision being challenged by characterizing the January 12 Letter as another aspect of Tsawout’s decision to “relinquish the Band’s interest” in Lot 47-6 to Allan and Earl. Tsawout submits that any issues respecting the January 12 Letter are not properly before the Court and should not be considered as Rule 302 of the Rules requires two separate applications for the two decisions, or leave of the Court to pursue them together. Tsawout argues that an exemption to Rule 302 is not warranted in this case.
[54] Further, that the Applicants’ complaint was fully answered by Justice Saunders’ decision (Claxton #1 at para 23) and, even if the dispute resolution provisions of the Land Code applied, the Applicants attorned to the jurisdiction of the BCSC to have their dispute decided by that court.
[55] In any case, Tsawout asserts that it is unclear to what extent, if any, the January 12 Letter relates to the relief sought. Rather, it appears that the purpose of challenging the January 12 Letter is to assist the Applicants in overcoming the 30-day limitation period.
Applicants’ position [56] When appearing before me the Applicants submitted that the substantive issue before the Court is Tsawout’s decision to relinquish its interest in Lot 47-6 by entering into the Agreement. However, that there are “related decisions” being (a) the September 7, 2022, refusal to allow the Applicants to raise the dispute with Chief and Council; (b) the lack of response by Chief and Council to the November 5, 2022, request by the Applicants that they be permitted to remain on the land; and (c) the January 12 Letter. The Applicants submit that if the January 12 Letter is a distinct decision then, together, these decisions or actions can be seen as a continuing course of conduct and Rule 302 can be applied as they are all are directly connected to the relinquishment of Tsawout’s interest in Lot 47-6. Further, that the factors set out in David Suzuki Foundation v Canada (Health), 2018 FC 380 [Suzuki] favour this outcome.
Analysis [57] Rule 302 states that unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.
[58] The Amended Application for Judicial Review identifies the decision challenged as the decision to allocate an interest in the “Family Home” on Lot 47-6 to the Respondents “in July 2022 (the Decision)” (presumably meaning May 31, 2022). The relief sought is a declaration that the July 2022 decision is void on the basis that Tsawout failed to observe procedural fairness and because a reasonable apprehension of bias exists. The Applicants also seek an order setting aside Tsawout’s decision to allocate an interest in Lot 47-6 to the Allan and Earl Claxton and remitting the decision back to Tsawout for reconsideration with a direction to consider the Applicants’ rights and interests.
[59] The Amended Notice of Application does not explicitly mention the January 12 Letter as a decision under review. However, Part 3: Grounds and legal basis for the relief sought of the Amended Notice of Application states:
29. As a result of Tsawout’s breach of procedural fairness, the purported transfer of Tsawout’s interest in Minister’s decision to issue a Certificate of Possession for Lot 47-6 to Allan and Earl in 2022, and to enter the certificate and particulars in the Reserve Land Register, was void, made in error and without regard to Sheri’s and Vanessa’s rights at common law and under the Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20 and the STAUTW Matrimonial Property Law. This breach was compounded by Tsawout’s decision in January 2023 to deny Sheri and Vanessa’s application for Dispute Resolution, as provided for in the Land Code.
(amendments by underline and strikeout are original)
[60] The Amended Notice of Application also included new grounds and legal basis for the relief sought, namely the First Nations Land Management Act, SC 1999, c 24 [FNLMA] and the Matrimonial Property Law.
[61] When appearing before me, counsel for Sheri Claxton submitted that the Agreement is the substantive decision under review but that there were related procedural decisions, intimately connected to the Agreement, which comprise a continuing course of conduct, specifically, the breaching of the duty of procedural fairness. These were the September 7, 2022, refusal to allow the Applicants to raise the dispute with Chief and Council, the lack of response by Chief and Council to the November 5, 2022, request that the Applicants be permitted to remain on the property and the January 12 Letter. In my view, this displays a continuing course of conduct,