Ross River Dena Council Band v. Canada

Ross River Dena Council Band v. Canada
Collection
Supreme Court Judgments
Date
2002-06-20
Neutral citation
2002 SCC 54
Report
[2002] 2 SCR 816
Case number
27762
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Yukon
Subjects
Aboriginal law
Notes
SCC Case Information: 27762
Decision Content
Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816, 2002 SCC 54
Norman Sterriah, on behalf of all members of the
Ross River Dena Council Band, and the
Ross River Dena Development Corporation Appellants
v.
Her Majesty The Queen in Right of Canada
and the Government of Yukon Respondents
and
The Attorney General of British Columbia and the
Coalition of B.C. First Nations Interveners
Indexed as: Ross River Dena Council Band v. Canada
Neutral citation: 2002 SCC 54.
File No.: 27762.
2001: December 11; 2002: June 20.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for the yukon territory
Indians — Reserves — Creation of reserves in non-treaty context — Indian Band occupying lands in Yukon Territory since 1950s — Lands set aside by officials — Legal requirements for establishment of a reserve — Whether lands set aside have reserve status — Indian Act, R.S.C. 1985, c. I-5, s. 2(1) “reserve” — Territorial Lands Act, R.S.C. 1952, c. 263, s. 18(d).
Following a claim for the refund of taxes paid on tobacco sold in an Indian village in the Yukon, a dispute arose concerning the status of the village. If it was a reserve, an exemption from the tax could rightfully be claimed. The respondents maintained that a reserve had never been created there. In the 1950s, members of the appellant Band, which is recognized as a band under the Indian Act , were allowed to settle on the site of what is now their village, there being no treaty governing the lands. Various administrative discussions and actions with respect to the status of the community took place between 1953 and 1965. In 1965, the Chief of the Resources Division in the Department of Northern Affairs and National Resources advised the Indian Affairs Branch of the then Department of Citizenship and Immigration that the village site had been reserved for the Branch. The letter was entered in the Reserve Land Register under the Indian Act . On a motion by the appellants, the chambers judge declared the lands occupied by the Band to be a reserve. The Court of Appeal, in a majority decision, allowed the respondents’ appeal.
Held: The appeal should be dismissed.
Per Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Given the absence of intention to create a reserve on the part of persons having the authority to bind the Crown, no reserve was legally created. In the Yukon Territory, as well as elsewhere in Canada, there appears to be no single procedure for creating reserves, although an Order-in-Council has been the most common and undoubtedly best and clearest procedure used to create reserves. Whatever method is employed, the Crown must have had an intention to create a reserve. This intention must be possessed by Crown agents holding sufficient authority to bind the Crown. For example, this intention may be evidenced either by an exercise of executive authority such as an Order-in-Council, or on the basis of specific statutory provisions creating a particular reserve. Steps must be taken in order to set apart land. The setting apart must occur for the benefit of Indians. The Band concerned must have accepted the setting apart and must have started to make use of the lands so set apart. The statutory framework for reserve creation in the Yukon Territory has limited, but not entirely ousted, the royal prerogative. In any case, whether the authority to create a reserve is derived from the royal prerogative or from statute, the Governor in Council is the holder of the power in both cases.
In this case, land was set aside but there was no intention to create a reserve on the part of persons having the authority to bind the Crown. The facts demonstrate that Crown agents never made representations to the members of the Band that the Crown had decided to create a reserve for them, nor did any person having the authority to bind the Crown ever agree to the setting up of a reserve at the site in question. Those Crown officials who did advocate the creation of a reserve never had the authority to set apart the lands and create a reserve. While lands were set aside for the Band, they do not have the status of a reserve.
Per McLachlin C.J. and L’Heureux-Dubé and Bastarache JJ.: LeBel J.’s conclusion that the Crown never intended to establish a reserve in this case was agreed with. However, the royal prerogative to set aside or apart lands for Aboriginal peoples has not been limited by statute, either expressly or by necessary implication. The Indian Act does not provide any formal mechanism for the creation of reserves. The definition of “reserve” in s. 2(1) of the Act does not limit the Crown’s ability to deal with lands for the use of aboriginal peoples. It simply serves to identify which lands have been set apart as reserves within the meaning of the Act. Nor does s. 18(d) of the 1952 Territorial Lands Act place limits on the Crown’s prerogative with respect to the creation of reserves. This section is not directed at the creation of reserves per se, but rather permits the Governor in Council to protect from disposition those Crown lands for which other use is contemplated. While s. 18(d) provides a mechanism to set apart lands for the creation of a reserve, it is merely one avenue to achieve this result. It has not placed any conditions or limitations on the Crown’s prerogative to create a reserve.
Cases Cited
By LeBel J.
Applied: R. v. Sioui, [1990] 1 S.C.R. 1025; referred to: R. v. Marshall, [1999] 3 S.C.R. 456; Attorney-General v. De Keyser’s Royal Hotel, Ltd., [1920] A.C. 508; Town of Hay River v. The Queen, [1980] 1 F.C. 262; Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; St. Mary’s Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657.
By Bastarache J.
Referred to: R. v. Operation Dismantle Inc., [1983] 1 F.C. 745, aff’d [1985] 1 S.C.R. 441; Attorney-General v. De Keyser’s Royal Hotel, Ltd., [1920] A.C. 508; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015.
Statutes and Regulations Cited
Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42.
Constitution Act, 1867, s. 91(24) .
Constitution Act, 1982, s. 35 .
Dominion Lands Act, R.S.C. 1927, c. 113 [rep. 1950, c. 22, s. 26], s. 74.
Indian Act, R.S.C. 1952, c. 149, s. 21.
Indian Act, R.S.C. 1985, c. I-5, ss. 2(1) “band”, “reserve” [rep. & sub. c. 17 (4th Supp.), s. 1(1) ], “designated lands” [ad. idem, s. 1(2) ], (2), 18(1), (2), 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 58, 60, 87(1).
Indian Act, 1876, S.C. 1876, c. 18, s. 3(6).
Interpretation Act, R.S.C. 1985, c. I-21, s. 17 .
Letters Patent constituting the office of Governor General of Canada (1947). In Canada Gazette, Part I, vol. 81, p. 3014 [reproduced in R.S.C. 1985, App. II, No. 31].
Territorial Lands Act, R.S.C. 1952, c. 263, s. 18 [now R.S.C. 1985, c. T-7, s. 23 ].
Territorial Lands Act, R.S.C. 1985, c. T-7, s. 23 (d) [repl. 1994, c. 26, s. 68].
Tobacco Tax Act, R.S.Y. 1986, c. 170.
Authors Cited
Bartlett, Richard H. Indian Reserves and Aboriginal Lands in Canada: A Homeland — A Study in Law and History. Saskatoon: Native Law Centre, University of Saskatchewan, 1990.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back, and vol. 2, Restructuring the Relationship, Part 2. Ottawa: The Commission, 1996.
Evatt, Herbert Vere. The Royal Prerogative. Sydney, Australia: The Law Book Co., 1987.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell (loose-leaf updated 2001, release 1).
Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Lordon, Paul. Crown Law. Toronto: Butterworths, 1991.
Woodward, Jack. Native Law. Toronto: Carswell (loose-leaf updated 2001, release 2).
APPEAL from a judgment of the Yukon Territory Court of Appeal (1999), 182 D.L.R. (4th) 116, 131 B.C.A.C. 219, 72 B.C.L.R. (3d) 292, [2000] 4 W.W.R. 390, [2000] 2 C.N.L.R. 293, [1999] Y.J. No. 121 (QL), 1999 BCCA 750, setting aside a decision of the Yukon Territory Supreme Court, [1998] 3 C.N.L.R. 284, [1998] Y.J. No. 63 (QL), declaring a tract of land an Indian reserve within the meaning of the Indian Act . Appeal dismissed.
Brian A. Crane, Q.C., and Ritu Gambhir, for the appellants.
Brian R. Evernden and Jeffrey A. Hutchinson, for the respondent Her Majesty the Queen in Right of Canada.
Penelope Gawn and Lesley McCullough, for the respondent the Government of Yukon.
Richard J. M. Fyfe, Paul E. Yearwood and Patrick G. Foy, Q.C., for the intervener the Attorney General of British Columbia.
Leslie J. Pinder, for the intervener the Coalition of B.C. First Nations.
The reasons of McLachlin C.J. and L’Heureux-Dubé and Bastarache JJ. were delivered by
1 Bastarache J. – I have had the opportunity to read the reasons of my colleague and I agree that no reserve was created in this case. As noted by my colleague, the essential conditions for the creation of a reserve within the meaning of s. 2(1) of the Indian Act, R.S.C. 1985, c. I-5 , include an act by the Crown to set aside Crown land for the use of an Indian band combined with an intention to create a reserve on the part of persons having authority to bind the Crown. The evidence in this case reveals that the Crown never intended to establish a reserve within the meaning of the Act.
2 Though I agree with the disposition, I respectfully disagree with my colleague’s assertion that the royal prerogative to create reserves has been limited by s. 18(d) of the Territorial Lands Act, R.S.C. 1952, c. 263. In addition, I think it is important to state clearly the interaction between the Crown prerogative and s. 2(1) of the Indian Act . Section 2(1) does not constrain the Crown’s prerogative to deal with lands for the use of Indians, but rather provides a definition of “reserve” for the purposes of the Act. Section 18(d) of the 1952 Territorial Lands Act gives the Governor in Council a discretionary power to protect Crown lands from disposal for a wide range of public purposes, including the welfare of Indians. In my view, neither provision, either expressly or by necessary implication, limits the scope of the Crown’s prerogative to set aside or apart lands for Aboriginal peoples.
3 All of the parties agree that the power to create reserves was originally based on the royal prerogative. The power is thought to be part of the Crown’s prerogative to administer and dispose of public property including Crown lands (see P. Lordon, Q.C., Crown Law (1991), at p. 96). The appellants nonetheless contend that this power has long been regulated by statute, including the successive Indian Acts which date back to Confederation as well as various statutes governing the disposition and management of Crown lands. They assert in particular that the right to establish reserves in the Yukon Territory is found in the Indian Act and the Territorial Lands Act which have replaced the prerogative. My colleague disagrees with the appellants that the prerogative has been displaced, but concedes that it has been limited.
4 There is no doubt that a royal prerogative can be abolished or limited by clear and express statutory provision: see R. v. Operation Dismantle Inc., [1983] 1 F.C. 745, at p. 780, aff’d [1985] 1 S.C.R. 441, at p. 464. It is less certain whether in Canada the prerogative may be abolished or limited by necessary implication. Although this doctrine seems well established in the English courts (see Attorney-General v. De Keyser’s Royal Hotel, Ltd., [1920] A.C. 508 (H.L.)), this Court has questioned its application as an exception to Crown immunity (see R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551, at p. 558; Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015, at pp. 1022-23). Assuming that prerogative powers may be removed or curtailed by necessary implication, what is meant by “necessary implication”? H. V. Evatt explains the doctrine as follows:
Where Parliament provides by statute for powers previously within the Prerogative being exercised subject to conditions and limitations contained in the statute, there is an implied intention on the part of Parliament that those powers can only be exercised in accordance with the statute. “Otherwise,” says Swinfen-Eady M.R., “what use would there be in imposing limitations if the Crown could at its pleasure disregard them and fall back on Prerogative?” [Emphasis added.]
(H. V. Evatt, The Royal Prerogative (1987), at p. 44)
5 In my view, s. 2(1) of the Indian Act , which sets out the definition of “reserve”, does not in any way “provid[e] by statute for powers previously within the Prerogative being exercised subject to conditions and limitations contained in the statute”. It is well established that the Indian Act does not provide any formal mechanism for the creation of reserves. The Act is, and always has been, confined to the management and protection of existing reserves, many of which were established long before the federal government assumed jurisdiction over Indians pursuant to s. 91(24) of the Constitution Act, 1867 (see R. H. Bartlett, Indian Reserves and Aboriginal Lands in Canada: A Homeland – A Study in Law and History (1990), at pp. 24-25).
6 In the past, the Crown exercised its prerogative to create reserves in a number of ways. Although some lands set apart for Indian bands constitute “reserves” within the meaning of the Indian Act , other lands have been set apart or aside for the use of Indian bands, yet are not recognized as “reserves” under the Act. For example, in this case, the Crown exercised its prerogative to “reserve” or set aside lands for the use of the Ross River Band, but did not manifest an intention to create a “reserve” within the meaning of s. 2(1) of the Indian Act . In my view, the definition of “reserve” in s. 2(1) serves to identify which lands have been set apart as “reserves” within the meaning of the Act; the definition does not limit the Crown’s ability to deal with lands for the use of aboriginal peoples. A “reserve” is defined as “a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band”. The legislation does not indicate precisely when land will be considered to have been “set apart” for the use and benefit of a band, nor does it indicate the steps necessary for a “setting apart” of land to have occurred. This is, essentially, the issue that is before us here. As I stated earlier, we have determined that for land to have been “set apart” within the meaning of the Act, there must, at the very least, exist an act by the Crown to set apart land for the use of the band combined with an intention to create a reserve on the part of persons having authority to bind the Crown.
7 My colleague asserts that the definition of “reserve” in s. 2(1) limits the royal prerogative to create reserves in that it precludes the possibility of transferring the title to the land from the Crown to the First Nation (since the definition provides that legal title is “vested in Her Majesty”). I agree with him that if a tract of land meets the definition of “reserve” under the Indian Act , the title must remain in the Crown and the land must be dealt with subject to the Act. However, I do not see how the definition otherwise limits the royal prerogative to set aside or apart land for Aboriginal peoples. In other words, it merely defines with greater specificity which of these lands will be considered “reserves” for the purposes of the Act. In my opinion, the Crown is still free to deal with its land in any other manner it wishes, including, as noted by my colleague, the transfer of title by sale, grant or gift to a First Nation or some of its members, though that land would not then constitute an Indian Act “reserve”.
8 Nor do I agree that s. 18(d) of the 1952 Territorial Lands Act has placed limits on the Crown’s prerogative with respect to the creation of reserves. Section 18 (the predecessor to the current s. 23 (d)) finds its origin in the Dominion Lands Act, R.S.C. 1927, c. 113. That Act allowed for entry onto vacant Crown lands for agricultural purposes. Section 74 of the Dominion Lands Act authorized the Governor in Council to keep lands reserved for Indians outside of the scheme of the Act so that the lands would be protected from disposition. The provision also permitted the Governor in Council to protect lands from entry for various other public purposes, including “places of public worship, burial grounds, schools and benevolent institutions”. Section 18 of the 1952 Territorial Lands Act consolidates and continues the Dominion Lands Act powers. Similar to the Dominion Lands Act, it authorizes the Governor in Council to set apart areas of land for the welfare of Indians, and also permits the Crown to protect Crown lands from disposal for a wide range of public purposes.
9 It seems clear from the above that s. 18 of the 1952 Territorial Lands Act is not directed at the creation of reserves per se but rather permits the Governor in Council to protect from disposition those Crown lands for which other use is contemplated. As my colleague points out, the setting apart of Crown lands which might otherwise be disposed of pursuant to s. 18 of the Act does not in and of itself imply that a “reserve” within the meaning of the Indian Act has been created since the Crown must also manifest an intent to make the land a reserve under the Act. Where, however, evidence of this intention is present, the setting apart of land under s. 18(d) of the 1952 Territorial Lands Act would certainly suffice as the formal act by which the Crown sets apart land for the use and benefit of an Indian band.
10 Though I agree that the setting apart of land under s. 18(d) of the 1952 Territorial Lands Act would be sufficient to establish an Indian Act reserve if the necessary intention on the part of the Crown to do so were present, I cannot see how s. 18 (d) has placed any conditions or limitations on the Crown prerogative to create reserves. Historically, a wide array of formal and informal instruments has been used to set apart lands as Indian Act reserves. In my view, any one of these instruments may be sufficient to constitute the action by which the land is set apart so long as intention on the part of the Crown to create a reserve under the Indian Act is also present. I think that there is a danger in saying that s. 18(d) of the 1952 Territorial Lands Act has somehow limited the Crown’s prerogative to create reserves since this implies that only an application under the Act will suffice as the formal action to set apart the lands as a reserve. While s. 18(d) provides one mechanism to set apart lands for the creation of a reserve, it is not the only mechanism available to the Crown for this purpose and I would not wish to imply this as a necessary condition for the creation of a reserve. If the setting apart of land under s. 18 (d) is not a necessary condition for the creation of a reserve but merely one avenue to achieve this result, then I cannot see how the authority to set apart lands for a reserve under s. 18 (d) limits the Crown’s prerogative to create a reserve.
The judgment of Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
LeBel J. —
I. Introduction
11 This appeal raises the issue of how Indian Act reserves were created in the Yukon Territory, in a non-treaty context. The appellants claim that the Government of Canada created a reserve by setting aside land for the Ross River Band. The federal government answers that, although land was set aside, no reserve was ever created; no intention to create it has been established on the evidence. For the reasons which follow, I conclude that no reserve was created and that the appeal should fail.
II. Background of the Litigation
12 This case arose out of a claim for a refund of tobacco tax from a store in a small village in the Yukon. According to the appellants, this village is a reserve; hence, an exemption was claimed. The respondents disputed this claim, saying that a reserve had never been created in this place. What began as a tax problem has become a question of aboriginal law which, in turn, requires a survey of the historical background to the procedure governing the creation of reserves in the Yukon Territory. The particular facts of the long history of the dealings of the Ross River Band with the Department of Indian Affairs must also be reviewed.
13 The Ross River Dena Council Band (the “Band”) is recognized as a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5 . It is now located at Ross River, in the Yukon, on lands which it claims are a reserve. Norman Sterriah is the chief of the Band. In 1982, the Band incorporated the appellant, Ross River Dena Development Corporation. The Corporation was set up to provide services for the benefit of Band members and to carry on business as their agent. Despite the dispute about the legal status of the community, it is at least agreed that there is a village at Ross River and that Band members have been living there for a number of years.
14 After a long history of being shifted or pushed from place to place since the predecessors of the Department of Indian Affairs and Northern Development (“DIAND”) took them under its wing, in the 1950s, at long last, the members of the Ross River First Nation were allowed to settle down on the site of what is now their village, located at the junction of the Pelly and Ross Rivers. The lands in dispute in this case are not governed by treaty, as the Yukon Territory belongs to those regions of Canada where the treaty-making process with First Nations had very little practical impact, particularly in respect of the creation of reserves. (See Report of the Royal Commission on Aboriginal Peoples (1996), vol. 2, Restructuring the Relationship, Part 2, at pp. 479-84.)
15 Despite the absence of a treaty, the agents of the Department in the 1950s knew that the Band was living on the shores of the Ross River. The acknowledgement of this fact triggered a process of administrative discussion and action which led or not to the creation of a reserve on this site. By letter dated October 21, 1953, the Superintendent of the Yukon Agency sought the permission of the Indian Commissioner for British Columbia to establish an Indian reserve for the use of the Ross River Indians. By letter dated November 10, 1953, the Indian Commissioner for British Columbia supported the recommendation. On April 1, 1954, the Superintendent of the Yukon Agency wrote to the Dominion Lands Agent in Whitehorse to advise that tentative arrangements had been made to apply for a tract of land for an Indian reserve at Ross River; Ottawa did not act on the request.
16 On May 4, 1955, the federal Cabinet issued a procedural directive entitled Circular No. 27 which set out an internal government procedure for reserving lands in the territories for the use of a government department or agency. In 1957, the federal government decided to dismiss the recommendation to establish 10 reserves. On November 27, 1962, the Superintendent of the Yukon Agency applied to the Indian Affairs Branch (then in the Department of Citizenship and Immigration) to reserve approximately 66 acres of land under s. 18 of the Territorial Lands Act, R.S.C. 1952, c. 263, to be used for the Ross River Indian Band Village site. Correspondence was then exchanged over the following three years with respect to the proposed size and location of the site. On January 26, 1965, the Chief of the Resources Division in the Department of Northern Affairs and National Resources advised the Indian Affairs Branch that the site had been reserved for the Indian Affairs Branch. The letter was entered in the Reserve Land Register pursuant to s. 21 of the Indian Act, R.S.C. 1952, c. 149. It was also recorded in the Yukon Territory Land Registry of the Lands Division of the former Department of Northern Affairs and National Resources.
17 The Band takes the view that this administrative process, combined with the actual setting aside of land for its benefit, created a reserve within the meaning of the Indian Act . It appears that this opinion was not shared either by the Yukon territorial government or the Indian Affairs Branch. The dispute may have remained dormant for a while. It broke into the open and reached the courts on the occasion of a problem concerning the applicability of tobacco taxes.
18 The respondent Government of Yukon had imposed taxes on the Band under the Tobacco Tax Act, R.S.Y. 1986, c. 170. The Band claimed an exemption and asked for a refund of taxes already paid on tobacco sold in the village. It asserted that the Government of Yukon was taxing personal property of an Indian or of a band on a reserve, which was exempt pursuant to s. 87(1) of the Indian Act . The Government of Yukon refused to make the refund because it did not recognize that the Band occupied a reserve. According to the Yukon government, the Band was merely located on lands which had been “set aside” for its benefit by the Crown in right of Canada. The federal government gave full support to this position and subsequently fought the claim of the appellants as to the existence of a reserve.
19 In the meantime, negotiations were taking place in the Yukon with respect to the land claims and rights of First Nations. An agreement known as the “Umbrella Final Agreement” was entered into by the Council for Yukon Indians, the Government of Yukon and the Government of Canada in 1993. It is a framework agreement which provides for its terms to be incorporated into subsequent agreements with individual First Nations. According to the Yukon government, seven of these agreements are now in force, dealing, among other topics, with land “set aside” and not part of a reserve. The Band chose to remain outside this process of treaty negotiation pending a decision from the courts regarding whether a reserve was created pursuant to the Indian Act .
III. Judicial History
A. Yukon Territory Supreme Court, [1998] 3 C.N.L.R. 284
20 The appellants filed a motion in the Yukon Territory Supreme Court asking for a declaration that the lands the Band occupied at the Ross River site constitute a reserve within the meaning of the Indian Act . The federal government replied that the land had only been set aside for the Indian Affairs Branch on behalf of the Band. There had been no intent to create a reserve. Moreover, the creation of a reserve in the Yukon required an Order-in-Council, under the royal prerogative. This step had never been taken in the case of the Ross River Band.
21 Maddison J. declared the tract of land in question “to be an Indian Reserve within the meaning of the Indian Act ” (para. 33). Maddison J. held that the definition of “reserve” in s. 2 of the Indian Act does not require any particular form of proclamation, conveyance, notification, transfer, order or grant; rather, the statutory definition emphasizes the act of “setting apart”. He recognized that there was no Order-in-Council or other such official instrument creating or recognizing the Ross River lands as an Indian reserve, but he found that such formal recognition was not necessary to bring the lands within the definition of “reserve” in the Indian Act . Maddison J. found, at para. 29, that:
The area reserved on January 26, 1965, was a tract of land that was (and is) vested in her Majesty. It had been applied for, for the use and benefit of a band: the Ross River Band. It was applied for, for a permanent use: a village site. That constitutes “use and benefit of a band” as in the Indian Act definition of “reserve”. The active words of the document reserving the land are as close to the wording of the statute as all but one of the four admitted Yukon Reserves for which the Court has been provided the wording. The public servants who put the setting-aside in process were Her Majesty’s agents.
B. Yukon Territory Court of Appeal (1999), 182 D.L.R. (4th) 116
22 The respondents then appealed to the Yukon Territory Court of Appeal. A majority of the court allowed the appeal, with Finch J.A. in dissent.
(1) Richard J.A.
23 Richard J.A., for the majority, held that the decision of the Yukon Territory Supreme Court should be overturned. He found that the lands occupied by the Band and its members were “lands set aside” but not a “reserve” under the Indian Act . He noted that the distinction between “lands set aside” and “reserves” was well established in the history of the Yukon, although the terminology may have varied over time.
24 Richard J.A. found that it was the prerogative of the Crown to establish a reserve which was usually formally evidenced by an Order-in-Council. He found that there was no evidence that in 1965 the Crown ever intended to create a reserve for the Band, either directly or by express or implied delegation. He held that there was in fact a deliberate decision not to create a reserve. He added that there was also no evidence that the Head of the Resources Division had authority to create a reserve and the letter did not purport to be an act of the Governor in Council or an exercise of the royal prerogative. A generous or liberal reading of the definition of “reserve” in the Indian Act would not have provided any assistance, because the land was not set apart for the use and benefit of a “band”. Richard J.A. commented that the question at issue was whether a reserve had in fact been created and not whether a reserve should have been created.
(2) Hudson J.A. (concurring)
25 Hudson J.A. held that the chambers judge’s suggestion that some Crown officers had conspired to impose the policy of integrating Aboriginal peoples into the dominant society was not supported by the evidence. He stated that the evidence indicated that the public servants complained about the policy adopted by the government and, in fact, expressly favoured the goal of cultural preservation through the reservation of land for the benefit of Aboriginal peoples.
(3) Finch J.A. (dissenting)
26 Finch J.A. noted that neither the Indian Act nor the Territorial Lands Act provided any formal mechanism for the creation of an “Indian reserve” as defined in the Indian Act . He determined that the definition of a reserve must be read against the background of the Crown’s relationship with Aboriginal peoples to whom the Crown owed a fiduciary duty.
27 Finch J.A. found that the correspondence and conduct of officials from the federal government responsible for Indian Affairs created a reserve in 1965, despite the absence of any Order-in-Council or other official instrument reflecting an exercise of the Crown’s prerogative. In his opinion, the statutory powers conferred in the Territorial Lands Act displaced the Crown’s prerogative and allowed the Department of Northern Affairs and National Resources to create reserves in the course of exercising statutory powers delegated to them by the Governor in Council. Finch J.A. further found that the Cabinet directive contained in Circular No. 27 was a delegation of statutory authority sufficient to authorize public officials to create a “reserve” as defined in the Indian Act .
28 Finch J.A. found that the definition of “reserve” in the Indian Act required only an intention to allocate an area of Crown land for the use and benefit of a band, and an act by a public official with the authority to give effect to that intent. Finch J.A. decided that the appropriate government official had set apart certain land intending it to be reserved for the use and benefit of the Band. To hold otherwise would be inconsistent with the Crown’s fiduciary obligations.
IV. Relevant Statutory Provisions
29 Indian Act, 1876, S.C. 1876, c. 18
3. The following terms contained in this Act shall be held to have the meaning hereinafter assigned to them, unless such meaning be repugnant to the subject or inconsistent with the context: —
. . .
6. The term “reserve” means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, minerals, metals, or other valuables thereon or therein.
Indian Act, R.S.C. 1985, c. I-5
2. (1) In this Act,
“band” means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purpose of this Act;
. . .
“reserve”
(a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and
(b) except in subsection 18(2), sections 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 58 and 60 and the regulations made under any of those provisions, includes designated lands;
. . .
(2) The expression “band”, with reference to a reserve or surrendered lands, means the band for whose use and benefit the reserve or the surrendered lands were set apart.
. . .
18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.
21. There shall be kept in the Department a register, to be known as the Reserve Land Register, in which shall be entered particulars relating to Certificates of Possession and Certificates of Occupation and other transactions respecting lands in a reserve.
87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely,
(a) the interest of an Indian or a band in reserve lands or surrendered lands; and
(b) the personal property of an Indian or a band situated on a reserve.
Territorial Lands Act, R.S.C. 1952, c. 263
18. The Governor in Council may
. . .
(d) set apart and appropriate such areas or lands as may be necessary to enable the Government of Canada to fulfil its obligations under treaties with the Indians and to make free grants or leases for such purposes, and for any other purpose that he may consider to be conducive to the welfare of the Indians;
Territorial Lands Act, R.S.C. 1985, c. T-7
23. The Governor in Council may
. . .
(d) set apart and appropriate such areas or lands as may be necessary
(i) to enable the Government of Canada to fulfil its obligations under treaties with the Indians and to make free grants or leases for that purpose, or
(ii) for any other purpose that the Governor in Council may consider to be conducive to the welfare of the Indians;
V. Analysis
A. The Issues
30 This appeal raises two well-defined issues about the creation of reserves. The first one is the nature of the legal requirements which must be met for the establishment of a reserve as defined in the Indian Act . The second issue concerns whether, given these requirements, the lands set aside for the Ross River Band have the status of a reserve.
B. The Position of the Parties
(1) Appellants
31 The appellants submit that reserves have been created in a number of ways. In their view, while the power to create reserves may originally have been exercised under the royal prerogative, this was displaced beginning in 1868 with the passage of An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42. The royal prerogative has been further displaced by the combination of the definition of “reserve” in s. 2(1) of the Indian Act and s. 18(d) of the 1952 Territorial Lands Act (now s. 23 (d)). The exercise of this statutory authority thus requires no formal instrument signifying the exercise of the royal prerogative such as an Order-in-Council or letters patent.
32 The appellants submit that reserves can be created by treaty or otherwise, including by being set aside by survey. The lack of an Order-in-Council setting lands aside has not been determinative of the creation of a reserve. Indeed, the courts should continue to take a flexible approach to the Crown’s actions in its relations with First Nations. The appellants adopt the view of Finch J.A. that two conditions are required to create a reserve: (1) an intention to create a de facto reserve, and (2) an act by a public official with authority to give effect to the intention. The appellants have also stated the criteria for creating a reserve as follows: (1) the Crown, as a matter of fact, has set apart a specific tract of land; (2) the specific tract has been set apart for the permanent use and benefit of a band of Indians; and (3) the underlying title to these lands remains in the Crown.
33 The appellants submit that the village site inhabited by the Band meets the test for the creation of a reserve. They claim that a specific tract of land was set apart for their use in 1965. The lands have been used by the Band ever since. Government officials as early as 1953 expressed an intention to create a reserve for the Band, and continued to take this view in spite of Ottawa’s intransigence. However, since the lands were set aside under the Territorial Lands Act according to the appellants, a reserve was created. The Crown had a clear purpose in setting aside the lands: to establish a settled community where the Band would be able to live in permanent dwellings. Further, DIAND adopted a policy in 1971 which recognized the Band’s beneficial interest in the land and required the Department to consult and compensate the Band if a right-of-way should be needed over its lands.
(2) Respondents
(i) Government of Canada
34 The Government of Canada submits that the power to create reserves in the Yukon Territory continues to be an exercise of the royal prerogative. The Crown in this case never intended to create a reserve, and never by a duly authorized official or body exercised the royal prerogative to do so. Intention to create a reserve is key, and the evidence accepted in the courts below was that no such intention ever existed. The Government of Canada submits that, as the Band is not the signatory of any treaty, reserve-creation principles based on treaty-created reserves are inapplicable. Further, the Territorial Lands Act does not grant authority to create reserves; even if it did, the authority to do so would reside in the Governor in Council who has not exercised that power to create a reserve for the Band.
35 The Government of Canada submits that the power to create reserves is part of the royal prerogative because of the special nature of the relationship of First Nations to the Crown. By convention and long-standing practice, only the Governor in Council is able to exercise this power; its exercise cannot be delegated to ministers