T-639-92

Canadian Pacific Limited and Unitel Communications Inc. (Applicants)

v.

Matsqui Indian Band and Matsqui Indian Band Council (Respondents)

Indexed as: Canadian Pacific Ltd.v. Matsqui Indian Band (T.D.)

Trial Division, Teitelbaum J."Vancouver, January 9; Ottawa, July 25, 1996.

Native peoples " Taxation " Applications for judicial review challenging validity of notices of assessment issued under property assessment, taxation by-laws " Applicants' railway crossing Indian reserves " Indian band entitled to make by-laws for taxation for local purposes "of land, or interests in land, in the reserve" under Indian Act, s. 83 " Parliament intending to grant applicants right-of-way, not easement " Lands not within Indian bands' taxing authority as title vesting with applicants " By-laws discriminatory as between individuals " Act, s. 87 not exempting Band members from own by-laws.

Native peoples " Lands " Respondents sending notices of assessment in respect of lands on which applicants operate railway business " Whether lands "in the reserve" within meaning of Indian Act, s. 83(1)(a) " Lands conveyed to applicants by federal government pursuant to letters patent " Railway right-of-way not easement " Applicants granted lands for specific purpose of operating rail service " Received determinable fee interest in lands.

Railways " Applicants' railway crossing Indian reserves " Lands granted to applicants for building national railway " Parliament intending to grant land to applicants for railway right-of-way " Right-of-way, in railway parlance, not easement " Letters patent, orders in council stating applicants received lands for specific purpose of operating rail service " Indians surrendering lands for railway purposes " Lands no longer under federal jurisdiction as title vesting with applicants.

This was an application for judicial review, heard together with similar applications, challenging the validity of certain notices of assessment issued by Indian bands pursuant to property assessment and taxation by-laws. The applicants are railway companies whose tracks cross through Indian reserves. The lands in question were conveyed to the applicants by the federal government pursuant to letters patent and authorized by the various statutory mechanisms in place, for the purpose of building a national railway to bring the Province of British Columbia into Confederation. Under section 83 of the Indian Act, the council of an Indian band may, with the approval of the Minister of Indian Affairs and Northern Development, make by-laws for the taxation for local purposes "of land, or interests in land, in the reserve". In 1992, 1993 and 1995, a number of property assessment notices were sent to the applicants in respect of the lands on which they operate their respective business. The applicants attacked the validity of these notices on the grounds that the respondents acted beyond their jurisdiction under section 83 of the Indian Act , that they erred in law in making decisions, orders, resolutions and by-laws, or otherwise in attempting to tax the applicants, and that the by-laws are invalid and ultra vires the powers of the respondents because they are discriminatory as among different types of properties and ownership or interest therein. Two issues were to be determined: 1) whether the lands were "in the reserve" within the meaning of paragraph 83(1)(a ) of the Indian Act, and 2) if the by-laws are applicable to any of the parcels of land in question, whether the by-laws are invalid because they are, without lawful authority, discriminatory as between properties and persons.

Held, the application should be allowed.

1) This case was not about Aboriginal rights, Crown obligations or excess of statutory authority; it was a judicial review of band taxation by-laws to determine whether the lands meet the statutory requirements of reserve land in the Indian Act, that is whether title to the lands vest with Her Majesty, so that the Indian band councils would be entitled to tax the lands. The expression "right-of-way", as it is used in the lexicon of railways, does not mean an easement. Parliament never intended to grant an easement; what it intended was to grant the land to the applicants for a railway right-of-way. A common theme that ran through the letters patent, the orders in council and the applicable legislation was that the applicants were granted the lands specifically for railway purposes. The interest in the lands granted to the railway companies was a determinable fee. Consequently, title vested with the applicants and the lands did not fall within Indian bands' taxing authority. If the terminating event is integral to the size of the interest, then a determinable fee is created. If not, a conditional interest is created. In this case the terminating event, that is the lands ceasing to be used for railway purposes, is integral to the size of the interest. Phrases such as "for the purposes of a railway" used by the letters patent and contained in the legislation are more in line with the magic words that create a determinable fee than with the creation of a conditional interest. The Band resolutions showed that the Indians intended to surrender the lands for railway purposes. Since title to the lands vested with the applicants, the lands were no longer under federal jurisdiction.

2) Two issues were raised under the broad subject of discrimination. The first was whether Indian band councils are creatures of statute analogous to municipalities. The Indian band's legislation could be saved by the Court striking the impugning aspects. The by-laws could operate effectively in a truncated form and would have received band council assent had they been presented to council in such a form. Indian band councils are not autonomous creatures of statutes since the Minister must still approve their by-laws. The applicants' argument that the consequence of narrowly construing section 83 was to rule that this provision simply authorizes a flat tax was not only an impractical idea but was also contrary to the jurisprudence. The Indian Act contemplates a measured maturing of self-government. The 1988 amendments to the Act showed that Indian bands no longer need to demonstrate their maturity at least with respect to having the power to tax. This does not mean that Indians have achieved self-government. The by-laws with regard to discriminating among various types of property are valid. However, Parliament never intended to grant powers to the Indian bands to exempt certain individuals from being taxed and certain others from not being taxed. Parts of the by-laws that discriminated as between persons were severed. The second issue was whether section 87 of the Indian Act exempts Band members from their own by-laws. The respondents' argument that it does is contrary to the very aims and objectives of self-government as explained in a recent decision of the Supreme Court of Canada. Section 87 applies to outside authorities and not to the Indian band itself pursuant to section 83. Self-taxation is part and parcel of Indian self-government and it will only serve to strengthen it.

statutes and regulations judicially considered

An Act respecting the Canadian Pacific Railway, S.C. 1881, c. 1, ss. Preamble, 1, 5, Schedule, ss. 7, 10, 12, 22.

An Act to incorporate Canadian National Railway Company and respecting Canadian National Railways, S.C. 1919, c. 13.

British Columbia Terms of Union, R.S.C., 1985, Appendix II, No. 10.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).

Indian Act, R.S.C. 1906, c. 81, s. 49.

Indian Act, R.S.C. 1927, c. 98, s. 48.

Indian Act, R.S.C., 1985, c. I-5, ss. 2 "reserve" (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1), 35, 37 (as am. idem , s. 2), 83 (as am. idem, s. 10), 87.

Land Title Act, R.S.B.C. 1979, c. 219, ss. 23, 25.

Railway Act, R.S.C. 1927, c. 170, ss. 162, 189.

Railway Act, R.S.C. 1952, c. 234, s. 2 "lands".

Railway Act (The), C.S.C. 1859, c. 66.

cases judicially considered

applied:

Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; Gitanmaax Indian Band v. British Columbia Hydro and Power Authority (1991), 84 D.L.R. (4th) 562; [1992] 4 C.N.L.R. 28 (B.C.S.C.).

distinguished:

Attorney General of Canada v. Canadian Pacific Limited and Marathon Realty Company Limited, [1986] 1 C.N.L.R. 1 (B.C.S.C.); affd sub nom. Canada (Attorney General) v. Canadian Pacific Ltd., [1986] B.C.J. No. 407 (C.A.) (QL); Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; (1988), 91 N.B.R. (2d) 43; 53 D.L.R. (4th) 487; 232 A.P.R. 43; [1989] 1 C.N.L.R. 47; 89 N.R. 325; 1 R.P.R. (2d) 105; Otineka Development Corp. v. Canada, [1994] 2 C.N.L.R. 83; [1994] 1 C.T.C. 2424; (1994), 94 DTC 1234 (T.C.C.); Stacey and Montour and The Queen, Re (1981), 63 C.C.C. (2d) 61; [1982] 3 C.N.L.R. 158 (Que. C.A.).

not followed:

Rempel Bros. Concrete Ltd. v. Mission (Dist.) (1989), 40 B.C.L.R. (2d) 393; 47 M.P.L.R. 71 (S.C.); Canada Cement Company Limited and the Town of Port Colborne, Re, [1949] O.R. 75 (H.C.).

considered:

Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1; R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; (1995), 130 D.L.R. (4th) 193; Farah v. Glen Lake Mining Co. (1908), 17 O.L.R. 1 (C.A.).

referred to:

Kruger v. The Queen, [1986] 1 F.C. 3; (1985), 17 D.L.R. (4th) 591; [1985] 3 C.N.L.R. 15; 32 L.C.R. 65; 58 N.R. 241 (C.A.); Point v. Dibblee Construction Co. Ltd., et al., [1934] O.R. 142; Ottawa, City of, v. Town of Eastview, [1941] S.C.R. 448; [1941] 4 D.L.R. 65; Taxation of University of Manitoba Lands, Re, [1940] 1 D.L.R. 579 (Man. C.A.).

authors cited

Dorman, Robert and D. E. Stoltz. A Statutory History of Railways in Canada 1836-1986. Kingston, Ont.: Canadian Institute of Guided Ground Transport, Queen's University, 1987.

Fridman, G. H. L. The Law of Contract in Canada, 2nd ed. Toronto: Carswell, 1986.

Maslove, A. M. and C. Dittburner. "The Financing of Aboriginal Self-Government" in Hylton, J. H. (ed.), Aboriginal Self-Government in Canada: Current Trends and Issues . Saskatoon: Purich Publishing, 1994.

Megarry, Sir Robert and M. P. Thompson, eds. Megarry's Manual of the Law of Real Property, 7th ed. London: Sweet & Maxwell, 1993.

APPLICATION for judicial review challenging the validity of certain notices of assessment issued by Indian bands pursuant to property assessment and taxation by-laws. Application allowed.

counsel:

Norman D. Mullins, Q.C. and Scott Macfarlane for applicants Canadian Pacific Ltd., Unitel Communications and Esquimalt & Nanaimo Railway Co.

Patrick G. Foy and Shelley-Mae Mitchell for applicant Canadian National Railway Company.

Arthur Pape for respondent Matsqui Indian Band.

Leslie J. Pinder, Clarine Ostrove and E. Ann Gilmour for respondents Boothroyd Indian Band and Kamloops Indian Band.

Gary S. Snarch and Fiona Anderson for respondent Seabird Island Indian Band.

Harry A. Slade, Robert C. Freedman and Michael C. Akey for respondent Nanaimo Indian Band.

solicitors:

Canadian Pacific Legal Services, Vancouver, for applicants Canadian Pacific Ltd., Unitel Communications Inc. and Esquimalt & Nanaimo Railway Company.

Ladner Downs, Vancouver, for applicant Canadian National Railway.

Pape & Salter, Vancouver, for respondent Matsqui Indian Band.

Mandell, Pinder, Vancouver, for respondents Boothroyd Indian Band and Kamloops Indian Band.

Snarch & Allen, Vancouver, for respondent Seabird Island Indian Band.

Ratcliff & Company, North Vancouver, for respondent Nanaimo Indian Band.

The following are the amended reasons for order rendered in English by

Teitelbaum J.: The above application for judicial review was heard together with the following applications:

T-2790-93 Canadian Pacific Limited v. Seabird Island Indian Band and Seabird Island Indian Band Council;

T-2780-93 Canadian Pacific Limited v. Boothroyd Indian Band and Boothroyd Indian Band Council;

T-2986-93 Esquimalt and Nanaimo Railway Company v. Nanaimo Indian Band and Nanaimo Indian Band Council;

T-269-95 Canadian National Railway Company v. Matsqui Indian Band and Matsqui Indian Band Council;

T-1638-93 Canadian National Railway Company v. Kamloops Indian Band and Kamloops Indian Band Council

These applications are similar in subject-matter although some of the facts may be different.

All of these matters were disposed of by one set of reasons. The reasons in this case, as they apply to all of the above applications, will be placed on the above-mentioned files and will equally apply to each of them.

These are applications for judicial review whereby the applicants, Canadian National Railway (CN), Canadian Pacific Railway (CP), Esquimalt & Nanaimo Railway (E&N) and Unitel Communications Inc. (Unitel) challenge, under section 18 of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 4], the validity of certain notices of assessment issued, pursuant to property assessment and taxation by-laws (the by-laws), by the respondent Indian bands: Matsqui, Boothroyd, Seabird, Nanaimo and Kamloops.

Unitel's involvement in this judicial review results from its fibreoptic cables embedded in the earth alongside the CP railway tracks that run through the Matsqui Indian Band Reserve. E&N's involvement in this judicial review is limited to its use of the land in question in the Nanaimo Indian Band Reserve. CN's involvement in this judicial review results from its tracks crossing through the Kamloops Indian Band Reserve and the Matsqui Indian Band Reserve. Lastly, CP's applications regard the Matsqui, Boothroyd, and Seabird Indian bands. In addressing the railways and the Indian bands in this decision, I will refer to the parties generally as the applicants and the respondents, respectively.

The applications for judicial review are based on the following grounds:¹

1) the respondents acted without jurisdiction or acted beyond their jurisdiction under section 83 of the Indian Act, R.S.C., 1985, c. I-5, as amended in 1988, R.S.C., 1985 (4th Supp.), c. 17 , s. 10, (the Indian Act), in making decisions orders, resolutions and by-laws, or otherwise in attempting to tax the applicants, in relation to lands and property the legal title to which the applicants maintain is vested in CN, CP, Unitel or E&N;

2) the respondents erred in law, under the Indian Act, in making decisions, orders, resolutions and by-laws, or otherwise in attempting to tax the applicants, in relation to lands and property the legal title to which the applicants maintain is vested in CN, CP, Unitel or E&N;

3) the respondents made the decisions, orders, resolutions and by-laws, or otherwise in attempting to tax the applicants, in relation to lands and property the legal title to which the applicants maintain is vested in CN, CP, Unitel or E&N on an erroneous finding of fact, namely that the CP, CN, Unitel or E&N lands in issue are in the respondents' reserves;

4) the by-laws are invalid and ultra vires the powers of the respondents because, without statutory authority,

a) they are discriminatory as to valuation, classification, and rates of taxation as among different types of properties, different uses of properties and different types of ownership of or interest in properties;

b) they are discriminatory as between non-Indian occupiers of reserve lands and the following exempted parties and persons occupying or holding land in the reserve: members of the Band; the Band; and a body corporate owned or controlled by the Band.

The applicants seek the following relief:²

a) declarations that the above-noted Indian band council's resolutions have no application to the lands or property the title of which is vested in either CP, Unitel, CN or E&N;

b) declarations that the above-noted Indian band council's taxation by-laws and assessment by-laws, as amended, have no application to the lands or property the title of which is vested in either CP, Unitel, CN or E&N;

c) alternatively, declarations that if the resolutions, taxation by-laws and assessment by-laws cannot be construed as having no application to lands or property the title to which is vested in CP, Unitel, CN or E&N, the taxation and assessment by-laws are null, void and of no legal effect and operation;

d) declarations that the respondents have no jurisdiction or authority in law to cause 1992 and/or 1993 (whichever are applicable) property assessment and property taxation notices (the notices) to be issued to the applicants in respect of lands or property the title to which is vested in CP, Unitel, CN or E&N, the taxation and assessment by-laws are null, void and of no legal effect and operation;

e) declarations that the taxation by-laws and the assessment by-laws have no force and effect and are invalid because they purport to impose a discriminatory tax, which is not authorized by the enabling legislation;

f) writs of quo warranto requiring the respondents to prove their authority to make the resolutions, taxation by-laws and assessment by-laws in issue, applicable to lands and property the title to which is vested in CP, Unitel, CN or E&N and to cause such property assessment notices to be issued against such lands and property;

g) writs of certiorari to quash the 1992 and/or 1993 property assessment notices;

h) writs of certiorari to quash the resolutions, property taxation by-laws and property assessment by-laws;

i) writs of prohibition to prohibit the respondents from enforcing or attempting to enforce the resolutions, property taxation by-laws, property assessment by-laws or otherwise attempt to tax the applicants in relation to lands and property the title to which is vested in CP, Unitel, CN or E&N; and,

j) interim or interlocutory injunctions and permanent injunctions to restrain the respondents, their assessors, servants or agents from enforcing or attempting to enforce the resolutions, property taxation by-laws and property assessment by-laws or otherwise to assess or tax the applicants in relation to lands and property the title to which is vested in CP, Unitel, CN or E&N.

Under section 83 of the Indian Act the council of an Indian band may, with the approval of the Minister of Indian Affairs and Northern Development (the Minister), make by-laws for the taxation for local purposes "of land, or interests in land, in the reserve" [underlining added]. Section 83 was included in the Indian Act after extensive consultations and negotiations between the federal and provincial governments, and Indian representatives. According to Lamer C.J. in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at page 24, the amendments were to facilitate the development of Indian self-government by allowing bands to exercise the inherently governmental power of taxation on their reserves.

A number of notices of assessment were sent to CP, Unitel, CN and E&N in respect of the lands in question (the lands) on which these companies operate their respective business. The applications relate to the following notices:

1) 1995 property assessment notices received by CN on January 5, 1995, describing the property as follows:

a) New Westminster Land District

CNR Bridges (2 Bridges)

Matsqui Main Indian Reserve No. 2

Parent Folio 313-98000-0121-9

b) New Westminster Land District

CNR R/W"Matsqui Main Indian Reserve   No. 2

Ref. 313-98000-0131-0

c) New Westminster Land District

CNR Trackage (2.052 Km)

Matsqui Main Indian Reserve No. 2

Ref. 313-98000-101-1

2) 1993 property assessment notices received by CN on June 3, 1993, describing the property as follows:

a) Kamloops Div. of Yale Land District

Okanagan/Ashcroft/Clearwater SBD Track   within Kamloops 1

Folio No. 53-24-066-15002.000

b) Kamloops Div. of Yale Land District

Railway R/W Kamloops Junction Kamloops 1 R   No. 1 Kamloops Indian Band

Folio No. 53-24-15003-00

c) Kamloops Div. of Yale Land District, MI   119-128.18

Clearwater SBD Fibre Optic Cable

Folio No. 53-24-066-20001.000

3) 1992 property assessment notices received by CP and Unitel on February 17, 1992 describing the property as follows:

a) CP Land

New Westminster Land District, CPR R/W

Matsqui Indian Reserve No. 1

Sahh-a-cum Parent Folio 313-98000-007-7

Actual S.D. 34

Actual Reg. Dist. 05

b) CP "Buildings"

New Westminster Land District

CPR Trackage (.335 km)

Matsqui Indian Reserve No. 1

Sahh-a-cum Parent Folio 313-98000-0040-9

c) Unitel "Buildings"

New Westminster Land District

Unitel Fibreoptic Cable (.353 km)

Matsqui Indian Reserve No. 1

Sahh-a-cum parent Folio 313-98000-005-0

Actual S.D. 34

Actual Reg. Dist. 05

4) 1993 property assessment notices received by CP on November 3, 1993, describing the property as follows:

a) Yale Div. of Yale District Trackage

Thompson Sub Mileage 111.64 ti [sic] 112.01

Boothroyd Indian Reserve No. 7"   Chukcheestso

Parent Folio 16-32-732-09202.100

b) Yale Div. of Yale Land District Trackage

Thompson Sub Mileage 111.64 ti [sic] 112.01

Boothroyd Indian Reserve No. 7"   Chukcheesto

Parent Folio 16-32-732-09202.101

c) Yale Div. of Yale Land District Right-of-Way

Thompson Sub Mileage 116.43 to 117.96

Boothroyd Indian Reserve No. 3"Speyum

Parent Folio 16-32-732-09202.101

d) Yale Div. of Yale Land District Trackage

Thompson Sub Mileage 116.43 to 117.96

Boothroyd Indian Reserve No. 3"Speyum

Parent Folio 16-32-732-09202.100

5) 1993 property assessment notices received by CP on November 3, 1993, describing the property as follows:

a) Yale Div. of Yale Land District Acreage

Cascade Sub Mileage 51.84 to 57.12

Seabird Island Indian Band

Parent Folio 16-76-310-8000-52100 & 8000-   52300

b) Yale Div. of Yale Land District Trackage

Cascade Sub Mileage 51.84 to 57.12

Seabird Island Indian Band

6) 1993 property assessment notices received by E&N on November 1 and 3, 1993, describing the property as follows:

a) Portion of Stockett-Wellcox Spur

located on Nanaimo Indian Reserve No. 1

(see also Assessment Roll Number 04-250-   19460.049)

b) Portion of Stockett-Wellcox Spur

located on Nanaimo Indian Reserve No. 1

(see also Assessment Roll Number 04-250- 19460.051)

The lands in issue run through the interior of British Columbia along the banks of the Fraser River in the Okanagan region near Kamloops. CN's rail service follows the north bank of the Fraser where the Kamloops Indian Band has its reserve. CP's rail service follows the south bank of the river and it has no impact on the Kamloops Indian Band. The Fraser River cuts its way through the Fraser River Canyon and the two railways follow along the river's path clinging to the cliffs of the canyon. It is here that the Boothroyd Indian Band has land on the south side of the canyon in the vicinity of CP's railway line. CN's tracks are on the north side of the canyon and do not affect the Boothroyd Indian Band. Where the river emerges from the canyon, CP's tracks and CN's tracks have switched sides. On the north side, CP's railway lines run through the municipality of Kent and the Seabird Island Indian Reserve. On the south side, CN's railway tracks travel through the Matsqui Indian Reserve. The two rail services connect up with each other west of Mission B.C. just within the Matsqui Indian Band Reserve near the Vancouver suburb of Westminster. The Nanaimo Indian Band is on Vancouver Island.

The lands were granted to the applicants for the purpose of building a national railway to bring the Province of British Columbia into Confederation as agreed to by the 1871 Terms of Union [British Columbia Terms of Union, R.S.C., 1985, Appendix II, No. 10]. The lands were conveyed to the applicants over the course of this century by the federal government pursuant to letters patent and authorized by the various statutory mechanisms in place at the time of the conveyance.

A table of the letters patent is herein set out containing a reference number for the purpose of this decision, the date on which the letters patent were issued, the dollar amount paid by the applicants to the Crown for the benefit of the Indian bands, and the acreage of the land involved.

Canadian Pacific

Letters Patent

Indian Band

LP No.    Date    Compensation    Acreage                    

Matsqui No. 1    August 25, 1891    $120    2.47                    

Boothroyd No. 1    July 25, 1927    $53.64    26.82                    

Boothroyd No. 2    February 6, 1935    $181.42    90.71                    

Seabird No. 1    April 13, 1928    $652.75    96.42                    

Esquimalt & Nanaimo

Letters Patent

Indian Band

LP No.    Date    Compensation    Acreage                    

Nanaimo No. 1    Sept. 11, 1948    $3,100    2.76                    

Canadian National

Letters Patent

Indian Band

LP No.    Date    Compensation    Acreage                    

Matsqui No. 1    Feb. 13, 1911    $2,428    13.91                    

Matsqui No. 2    October 12, 1911    $68    2.09                    

Matsqui No. 3    May 30, 1963    $715    2.83                    

Matsqui No. 4    Nov. 23, 1973    $500    0.083                    

Matsqui No. 5    Sept. 8, 1981    $9,701    2.29                    

Kamloops No. 1    Nov. 5, 1935    $1    160.83                    

Kamloops No. 2    March 1, 1933    $1,142.50    10.29                    

Kamloops No. 3    June 23, 1927    $94.25    3.93                    

Kamloops No. 4    May 20, 1929    $861.25    6.89                    

Kamloops No. 5    Sept. 10, 1936    $150    1.29                    

Kamloops No. 6    April 6, 1948    $1,580    3.16                    

Kamloops No. 7    March 29, 1984    $4,219,600    164.64                    

ISSUES

The Supreme Court of Canada dealt with the procedural issues in Matsqui (supra). It is left to this Court to deal with the merits of the case. The issues to be determined by this Court are:

1) The definition of "reserve": Are the impugned lands "in the reserve" within the meaning of paragraph 83(1)(a ) of the Indian Act?

2) Discrimination: Alternatively, if the by-laws are applicable to any of the parcels of land in question, are the by-laws invalid because they are discriminatory as between properties and persons without lawful authority?

The second issue was not advanced by CP and Unitel against the Matsqui Indian Band by-laws (T-639-92).

As I stated, the lands in question were granted over the course of this century. During that time the provisions in the relevant statutes changed numbers several times. What was section 48 in the Indian Act, R.S.C. 1927, c. 98 is now section 35. For the sake of simplicity, I will refer to the legislation in question as the applicable Act instead of giving its full citation.

Also, I herein reproduce, in part, four of the seventeen letters patent that are before me. I choose these four documents because each raises a particular issue addressed by either the applicant or the respondent. For example, CP Matsqui No. 1 makes no reference to its source of authority and contains no reversionary clause. It is CP's strongest piece of evidence that it received title to the lands in fee simple. CP Seabird No. 1 states that it was issued pursuant to An Act respecting the Canadian Pacific Railway, S.C. 1881, c. 1, (the CPR Act) and its contract, the letter patent contains the words "right-of-way", and it states that the land it grants is to be used for railway purposes only. It is perhaps the respondents' strongest piece of evidence that the applicants' title is less than fee simple.

The other letters patent are CN Matsqui No. 5 and CN Kamloops No. 7. CN Matsqui No. 5 refers to a public corporation's taking power; it specifically reserves to the Crown mineral rights in the land; and like CP Seabird No. 1, it states that the land it grants is to be used for railway purposes. CN Kamloops No. 7 is important because it states that it was issued pursuant to section 35 of Indian Act. It too specifies that the land it grants is for railway purposes. Notwithstanding a reference to a specific letter patent, the decision of the Court pertains to all the letters patent in issue in the case at bar.

CP Letter Patent Matsqui No. 1 states:

WHEREAS the Lands, hereinafter described are part and parcel of those set apart for the use of the Matsqui Indians. AND WHEREAS We have thought fit to authorize the sale and disposal of the Lands hereinafter mentioned, in order that the proceeds may be applied to the benefit, support and advantage of the said Indians, in such a manner as We shall be pleased to direct from time to time:

The Canadian Pacific Railway Have contracted and agreed to and with our Superintendent-General of Indian Affairs, duly authorized by us in this behalf, for the absolute purchase at and for the price and sum of One Hundred and Twenty Dollars of lawful money of Canada, of the lands and Tenements hereinafter mentioned and described, of which We seized in right of our Crown.

NOW KNOW YE, that in consideration of the sum of One Hundred and Twenty Dollars by them the said The Canadian Pacific Railway Company to Our said Superintendent-General of Indian Affairs in hand well and truly paid to Our use at or before the sealing these Our Letters Patent We, by these Presents, do grant, sell, alien, covey and assure unto the said The Canadian Pacific Railway Company their Successors and assigns for ever; all that Parcel or Tract of Land, situate lying and being in the Matsqui Indian Reserve in the New Westminster District in the Province of British Columbia in Our Dominion of Canada, containing an area of Two acres and Forty-Seven Hundreths of One acre be the same more or less.

Composed of All and singular that Certain strips or portions of land acquired by the Mission Brandi of the Canadian Pacific Railway in the said Matsqui Indian Reserve as shown on Place of Record in the Department of Indian Affairs . . . .

TO HAVE AND TO HOLD the said Parcel or tract of Land, hereby granted, conveyed and assured unto the said The Canadian Pacific Railway Company their Successors and Assigns, for ever; SAVING, EXCEPTING AND RESERVING, NEVERTHELESS, unto Us, Our Heirs and Successors, the free use, passage and enjoyment of, in, over and upon all navigable waters that shall or may be hereafter found on or under, or be flowing through or upon any part of the said Parcel or Tract of Land hereby granted as aforesaid. [Underlining added.]

CP Letter Patent Seabird No. 1 states:

WHEREAS under the provision of the Act of the Parliament of Canada passed in the Forty-fourth year of the Reign of Her late Majesty Queen Victoria, Chapter 1 and entitled "An Act Respecting the Canadian Pacific Railway" and by the terms and conditions of the contract and agreement embodied in the said Act and particularly by the terms and conditions of Section 5 of the said Act and Section 7 of the said contract the Canadian Pacific Railway Company (hereinafter called "the Company") is entitled to have conveyed to it the portions of the said railway constructed by the Government.

AND WHEREAS the lands hereinafter described are lands to a conveyance of which the Company is entitled under the provisions of the said Act and contract.

AND WHEREAS the land hereinafter described are part and parcel of those set apart for the use of the [Seabird] Indians and whereas the Department of Railways and Canada on behalf of and duly authorized by the Government of our Dominion of Canada, in accordance with orders in Council of the 18th January, 1886, and of the 15th March, 1886, has well and truly paid to our Superintendent General of Indian Affairs, duly authorized by Us in this behalf, the sum of Six Hundred and Fifty-Two Dollars and Seventy-Five Cents of lawful money of Canada, being the consideration agreed upon for the taking of said lands for the purposes of the construction, operation and maintenance of the said Railway.

NOW KNOW YE, that in consideration of the premises and in pursuance of the said Act and Act and Contract, we, by these presents do grant, convey and assure unto the company, its successors and assigns forever all that parcel or tract of land situate, lying and being in the Seabird Island . . . .

Composed of the right of way of the main line of the Canadian Pacific Railway Company in and through the said Island . . .

TO HAVE AND TO HOLD the said parcel or tract of land together with said railway, station buildings, water service and other appurtenances unto the Company, its successors and assigns forever; saving and reserving, nevertheless, unto Us, Our Successors and Assigns their free use, passage and enjoyment of, in, over and upon all navigable waters that are now or may be hereafter found on, or under, or flowing through or upon and part of the said Parcel of Tract of Land. [Underlining added.]

CN Letter Patent Matsqui No. 5 states:

WHEREAS the lands hereinafter described are vested in Us in right of Canada.

AND WHEREAS Canadian National Railway, a body corporate incorporated under the laws of Canada, having its head office at the City of Montreal in the Province of Quebec, hereinafter called the grantee, being a corporation empowered by statute to take or use land or any interest therein without the consent of the owner, has applied for a grant of the said lands for railway purposes.

AND WHEREAS under and by virtue of the Indian Act and upon the advice and consent of Our Privy Council for Canada, the said lands or the interest therein that is or may be vested in Us for the uses of Canada have been disposed of to the grantee for so long as the said lands and every part thereof are used for railway purposes at and for the price or sum of NINE THOUSAND SEVEN HUNDRED AND ONE DOLLARS AND EIGHTEEN CENTS

NOW KNOW YE that We do by these Presents grant convey and assure unto the grantee, its successors and assign, ALL AND SINGULAR:

In British Columbia, in the New Westminster District, in Section 7, Township 17, E.C.M. in Matsqui Main Indian Reserve No. 2, an extra right of way according to a plan deposited in the Land Registry Office at New Westminster under No. 514400, a copy of which is recorded in the Canada Lands Surveys Record at Ottawa as 60710; and right of way containing 2.83 acres, more or less.

TO HAVE AND TO HOLD the said lands unto the grantee its successors and assigns for so long as the said lands and every part thereof are used for railway purposes saving, excepting and reserving unto Us, Our Heirs and Successors the free use, passage and enjoyment of, in, over and upon all navigable waters that now are or may be hereafter found on or under or flowing through or upon any part of the said lands; and reserving all mines and minerals both precious and base whether solid, liquid, or gaseous which may be found to exist within, upon or under such lands, together with full power to work the same and for this purpose to enter upon, use and occupy the said lands or so much thereof and to such extent as may be necessary for the effectual working and extracting of the said minerals.

AND the grantee by the acceptance and registration of these Presents covenants with Us that in the event that the grant of the said lands is determined it will acknowledge such determination and forthwith surrender the said lands to Us. [Underlining added.]

CN Letter Patent Kamloops No. 7 states:

WHEREAS the lands hereinafter described are vested in Us in right of Canada for the use and benefit of the Kamloops Band of Indians.

AND WHEREAS the said lands are required by the Canadian National Railway Company for railway purposes and under and by virtue of section 35 of the Indian Act and pursuant to the consent duly granted by Our Governor in Council the said lands or the interest therein that is or may be vested in Us for the use and benefit of the said Indians have been disposed of to Canadian National Railway Company, hereinafter called the grantee, at and for the price or sum of Four Million Two Hundred and Nineteen Thousand and Six Hundred Dollars.

NOW KNOW YE that We do by these Presents, grant, convey and assure unto the grantee, its successors and assigns, ALL AND SINGULAR:-

All those parts of Kamloops Indian Reserve Number 1, Kamloops Division of Yale District, Province of British Columbia, which said parts are shown as Railway Widening Right-of-Way on Plan 68674 deposited in the Canada Lands Survey Records at Ottawa, a copy of which is deposited in the Land Titles Office at Kamloops as Plan M 17625. . . .

TO HAVE AND TO HOLD the said lands unto the grantee, its successors and assigns, for so long as the said lands, and every part thereof, are used for railway purposes; saving, excepting and reserving unto Us, Our Heirs and Successors, the free use, passage and enjoyment of, in, over and upon all navigable waters that now are or may be hereafter found on or under or flowing through or upon any part of the said lands.

AND the grantee by the acceptance and registration of these Letters Patent covenants with us that in the event that the grant of the said lands is determined, it will acknowledge such determination and forthwith surrender the said lands to Us. [Underlining added.]

THE APPLICANTS' POSITION

A. DEFINITION OF RESERVE

The applicants state that the issue before this Court is solely a matter of statutory definition. Accordingly, the applicants' position is that the lands do not fall within the respondents' taxing authority under section 83 of the Indian Act because the lands fall outside the statutory definition of "land, in the reserve".

Subsection 83(1) of the Indian Act states:

83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,

(a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve; [Underlining added.]

The Indian Act defines "reserve" [as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 1] as:

2. (1) . . .

"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, . . . [Underlining added.]

The applicants contend that they, not Her Majesty the Queen (henceforth referred to as the Crown) have title to the lands by virtue of letters patent and evidenced by Certificates of Indefeasible Title issued under provincial authority. The applicants hold that the clear and unambiguous language of the letters patent, specifically the references to "lands" and the use of the phrase, "we by these Presents, do grant, sell, alien, convey and assure unto the said [applicant], and assigns forever; all that Parcel and tract of Land", belie the respondents' contention that the letters patent grant to the applicants an interest in the lands that is anything less than title in fee simple.

The respondents, on the other hand, argue that the letters patent grant only an easement because the letters describe the interest in the land as a "right-of-way". The applicants respond that the word "right-of-way" is a well-understood expression in railway parlance that means the strip of land between any two railway stations upon which railway tracks run.

In addition, the applicants submit that the statutory mechanisms pursuant to which the letters patent were issued grant to them title to the lands in fee simple. The applicants submit that the letters patent followed three procedures for the alienation of reserve land: 1) surrender, 2) authorized taking and 3) expropriation. The first two procedures took place under the applicable Indian Act. The third procedure took place under the applicants' specific enabling legislation, e.g. the CPR Act.

The following is how the procedures work.

1) Surrender

Surrender involves a release of the band's interest in land to the Crown, by a vote of the membership of the Indian band, with the approval of the Governor in Council. The surrender provision can be used generally requiring the consent of the band, which must be given and certified with formalities. Under the surrender mechanism, the entire Indian interest in reserve lands can be extinguished pursuant to an absolute surrender under the Indian Act, such that part of a reserve can be transferred to others, unencumbered by the Indian interest. CN acquired the lands in question from the Matsqui Indians pursuant to a surrender to the Crown in 1911.³ The applicable legislation was the Indian Act, R.S.C. 1906, c. 81, section 49 (now section 37 [as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 2]). Section 49 reads:

49. Except as in this Part otherwise provided, no release or surrender of a reserve, or a portion of a reserve, held for the use of the Indians of any band, or of any individual Indian, shall be valid or binding, unless the release or surrender shall be assented to by a majority of the male members of the band of the full age of twenty-one years, at a meeting of council thereof summoned for that purpose, according to the rules of the band, and held in the presence of the Superintendent General, or of an officer duly authorized to attend such council, by the Governor in Council or by the Superintendent General.

2) Authorized Taking

The applicants submit that the majority of lands granted to CN and E&N were obtained pursuant to an "authorized taking" of the Indian interest. An authorized taking is the exercise of federal expropriation power over reserve land, as permitted by the Indian Act . An authorized taking requires the consent of the Governor in Council and the taking provision may be used only to authorize grants of interest required for the purposes of an entity having its own powers of compulsory taking. The authorized takings were made pursuant to section 48 (now section 35) of the Indian Act, R.S.C. 1927, c. 98. Section 48 reads:

Lands taken for Public Purposes.

48. No portion of any reserve shall be taken for the purpose of any railway, road, public work, or work designed for any public utility without the consent of the Governor in Council, but any company or municipal or local authority having statutory power, either Dominion or provincial, for taking or using lands or any interest in lands without the consent of the owner may, with the consent of the Governor in Council as aforesaid, and subject to the terms and conditions imposed by such consent, exercise such statutory power with respect to any reserve or portion of a reserve.

2. In any such case compensation shall be made therefor to the Indians of the band, and the exercise of such power, and the taking of the lands or interest therein and the determination and payment of the compensation shall, unless otherwise provided by the order in council evidencing the consent of the Governor in Council, be governed by the requirements applicable to the like proceedings by such company, municipal or local authority in ordinary cases. [Underlining added.]

The railway's power of expropriation is contained in section 162 of the Railway Act, R.S.C. 1927, c. 170. This section outlines the steps that need to be taken before an expropriation is effective, e.g. the railway must survey the route along which the line will run and draw up plans showing the parcels of land over which the tracks will cross. The plan, along with a vertical profile of the tracks, must be reviewed by the Railway Commission Board now known as the Canadian Transportation Agency.

E&N submits it acquired Nanaimo No. 1 letter patent pursuant to an "authorized taking". Nanaimo No. 1 letter patent contains no reference to its source of authority, however the June 3, 1948 Order in Council consenting to E&N's taking of the land in question, refers to section 48 of the relevant Indian Act 1927.

The Order in Council reads:

The Committee therefore, on the recommendation of the Acting Minister of Mines and Resources, advised that authority being granted to transfer the lands as hereinafter described to the Esquimalt and Nanaimo Railway Company pursuant to the provisions of Section 48 of the Indian Act, Chapter 98, Revised Statutes 1927. [Underlining added.]

I note that CN's orders in council and a number of CN's letters patent make reference to the authorized taking provision in the applicable Indian Act.

The applicants submit that the effect of an authorized taking on the Aboriginal interest in the land was considered by Urie J. in Kruger v. The Queen, [1986] 1 F.C. 3 (C.A.), at page 42, quoting from Point v. Dibblee Construction Co. Ltd., et al., [1934] O.R. 142 (H.C.), at page 152:

The provisions of sec. 48 [authorized taking] . . . refer, obviously, to the case where land is taken away or withdrawn from the reserve and the title to the land so taken passes from the Crown to the company, municipal or local authority concerned. [Underlining added.]

3) CPR Act and its Annexed Contract

CP submitted that the letters patent for Matsqui, Boothroyd, and Seabird were issued to it pursuant to section 5 of the CPR Act and section 7 of its contract.

CP Seabird No. 1 and CP Boothroyd No. 1 letters patent specifically refer to section 5 of the CPR Act and section 7 of the contract. CP Matsqui No. 1 does not refer to the CPR Act, nor to the contract. However, it is argued that as the Matsqui land is within the railway belt discussed in the CPR Act, and the land is used for railway purposes, therefore, it is argued, the conveyance is pursuant to the CPR Act and its contract. Similarly, Boothroyd No. 2 makes no mention of either the CPR Act or its contract. But, since this land is down the road from Boothroyd No. 1, and it too is within the railway belt and used for railway purposes, it is logical to conclude that its conveyance is pursuant to the CPR Act and its contract. I am in agreement with this conclusion.

CP submits that on the approval of the Governor in Council, section 5 and section 7 transfer the land directly to the railway thereby short cutting the Railway Act's long and involved process of expropriation. CP submits that section 5 and section 7 are used when all parties concerned were agreed to the transfer of the land.

Section 5 reads:

5. Pending the completion of the eastern and central sections of the said railway as described in the said contract, the Government may also transfer to the said Company the possession and right to work and run the several portions of the Canadian Pacific Railway as described in the said Act thirty-seventh Victoria, chapter fourteen, which are already constructed, and as the same shall be hereafter completed; and upon the completion of the said eastern and central sections the Government may convey to the Company, with a suitable number of station buildings, and with water service (but without equipment), those portions of the Canadian Pacific Railway constructed, or agreed by the said contract to be constructed by the Government, which shall then be completed; and upon completion of the remainder of the portion of the said railway to be constructed by the Government, that portion also may be conveyed by the Government to the Company, and the Canadian Pacific Railway defined as aforesaid shall become and be thereafter the absolute property of the Company; the whole, however, upon the terms and conditions, and subject to the restrictions and limitations contained in the said contract. [Underlining added.]

Section 7 of the said contract reads:

7. The railway constructed under the terms hereof shall be the property of the Company: and pending the completion of the Eastern and Central sections, the Government shall transfer to the Company the possession and right to work and run the several portions of the Canadian Pacific Railway already constructed or as the same shall be completed. And upon the completion of the Eastern and Central sections, the Government shall convey to the Company, with a suitable number of station buildings and with water service (but without equipment), those portions of the Canadian Pacific Railway constructed or to be constructed by the Government which shall then be completed; and upon completion of the remainder of the portion of railway to be constructed by the Government, that portion shall also be conveyed to the Company; and the Canadian Pacific Railway shall become and be thereafter the absolute property of the Company. And the Company shall thereafter and forever efficiently maintain, work and run the Canadian Pacific Railway. [Underlining added.]

The applicants submit that section 12 of the CPR Act's contract requires the Dominion government to extinguish Aboriginal interest in land.

Section 12 states:

12. The Government shall extinguish the Indian title affecting the lands herein appropriated, and to be hereafter granted in aid of the railway. [Underlining added.]

In response to the Indian bands' position that The Railway Act, C.S.C. 1859, c. 66 (comprising Acts of a public general nature not consolidated by R.S.C. 1886) and its subsequent revisions restrict what a railway can do with grants of Crown land, the applicants submit that Ottawa, City of, v. Town of Eastview, [1941] S.C.R. 448 stands for the proposition that where there are provisions in a special act and in a general act on the same subject which are inconsistent, the specific act ousts the general act. Consequently, the applicants submit that the CPR Act is said to override the Railway Act.

In the alternative, the applicants propose that should this Court find that the lands are encumbered by the restrictions found in the Railway Act, or that the lands contain a right of reverter to the Crown on condition subsequent, (as in Taxation of University of Manitoba Lands, Re, [1940] 1 D.L.R. 579 (Man. C.A.)) then those restrictions are void and unenforceable because they would: 1) offend the rule against perpetuities; 2) offend the common law rule against alienation; or 3) be estopped. The applicants submit that a right of reverter is a future interest in land, but that a future interest in land tomorrow is no interest in land today (Taxation of University of Manitoba Lands (supra)). Accordingly, for the purpose of this hearing, title to the lands is in their hands.

As good evidence of its title, the applicants hold out to the Court Certificates of Indefeasible Title (CIT) issued to them upon the registration of the letters patent under British Columbia's Land Title Act, R.S.B.C. 1979, c. 219, sections 23 and 25 (the LTA).

The respondents submit that the LTA has no application because Indian lands are the sole purview of the federal government. However, the applicants characterize the pith and substance of the LTA as property and civil rights and since they own the lands there is no constitutional issue to decide because the lands are no longer under federal jurisdiction.

B. DISCRIMINATION

The applicants assert that the bands' by-laws are invalid because they discriminate, in the sense that they make distinctions between different classes of persons and property in a manner not authorized by the Indian Act.

The applicants submit that band councils are analogous to municipalities. Both are creatures of statute that derive their authority solely from their enabling legislation. In the case of a municipality the enabling legislation is the provincial municipality act. In the case of an Indian band council the enabling legislation is the Indian Act. Municipal acts authorize municipalities to enact by-laws which distinguish between different classes of persons and property. But that same authorization is not contained in the Indian Act. Therefore, the applicants conclude that the band by-laws are without lawful authority.

According to the applicants, the by-laws are discriminatory because:

1) some owners of land within the reserve are exempt from taxation;

2) the by-laws impose variable tax rates;

3) different tax rates are prescribed for various classes of property;

4) industrial improvements receive discriminatory treatment from that of other industrial properties; and,

5) a discriminatory and arbitrary valuation and rate of railway properties, liens, and rights-of-way exist for property adjacent to a reserve.

As an example of this "discrimination", section 20 of the Boothroyd Indian Band by-laws exempts from taxation land occupied or held by a member of the Boothroyd Indian Band. In a practical sense this means that only non-Indians occupying reserve lands pay taxes.

THE RESPONDENTS' POSITION

A. DEFINITION OF RESERVE

The respondents make several different, yet interrelated, arguments that ask the Court either to find that the letters patent are invalid, or to read down the interest in the lands granted to the applicants to that of an easement.

The point of departure for the respondents is the overall policy objectives of the Indian Act that the respondents claim are to serve as a backdrop for their submissions. These policy objectives, as proposed by the respondents, are enunciated in Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335.

At page 392 Estey J. states:

The Indian Act . . . the Constitution, the pre-Confederation laws of the colonies in British North America, and the Royal Proclamation of 1763 all reflect a strong sense of awareness of the community interest in protecting the rights of the native population in those lands to which they had a longstanding connection. One common feature in all these enactments is reflected in the present-day provisions in the Indian Act, s. 37, . . . .

These remarks were confirmed in R. v. Sparrow, [1990] 1 S.C.R. 1075 by Dickson C.J., at page 1105:

It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. . . . We are, of course aware that this would, in any event, flow from the Guerin case, supra, but for a proper understanding of the situation, it is essential to remember that the Guerin case was decided after the commencement of the Constitution Act, 1982.

Furthermore, the respondents submit that Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 [hereinafter Apsassin] mandates this Court to construe the documents in this case in a broad and liberal fashion in order to give effect to the true intentions of the parties. In Apsassin at pages 358-359, Gonthier J. stated, in summary, that the principles of common law property were not helpful in the context of that case. He states that when determining the legal effect of dealings between Indians and the Crown relating to reserve lands, the sui generis nature of the Indian title requires courts to go beyond the usual restrictions imposed by the common law, in order to give effect to the true purpose of the dealings.

The respondents' submissions, although much more elaborately presented, I believe, can be grouped under the following headings:

1) Letters Patent

The respondents argue that on their face the letters patent grant to the applicants no more than an easement because the letters patent describe the lands in question as a "right-of-way". The respondents also note that the applicants wrote to officials of the Department of Indian Affairs applying for a "right-of-way".

Alternatively, the respondents submit that the letters patent are ambiguous at best because they use the words "land" and "right-of-way" interchangeably so that an average person looking at the letters patent would be confused as to the nature of the interest granted in the land. As such, the respondents argue that the Court ought to read down the letters patent so that they grant no more than an easement. By doing so, it is submitted, the policy objectives of the Indian Act would be preserved.

Secondly, the respondents submit that the case at bar is on all fours with Attorney General of Canada v. Canadian Pacific Limited and Marathon Realty Company Limited, [1986] 1 C.N.L.R. 1 (B.C.S.C.), affirmed by B.C.C.A. (May 14, 1986, CA003686, unreported) [sub nom. Canada (Attorney General) v. Canadian Pacific Ltd., [1986] B.C.J. No. 407 (C.A.) (QL)].

In Marathon, the impugned lands comprised a strip of the Penticton Indian Reserve that had been appropriated by Canadian Pacific Limited for railway purposes pursuant to section 48 of the Indian Act of 1927. CP had ceased operating on the land and conveyed it to Marathon Realty. The British Columbia Court of Appeal upheld the lower Court's decision ordering CP to restore⁴ the lands to the Crown.

Marathon is easily distinguishable from the applications before me. In the applications before me, the land is still used for railway purposes. It ceased being so used in Marathon.

Additionally, the respondents submit that Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654, stands for the proposition that a railway "right-of-way" means a statutory easement.

In Paul CP's railway track crossed the Woodstock Indian Reserve at three points known as the Eastern, Central, and Western crossings. In 1975 the Indians who resided on the reserve claimed that CP did not have a right to use the right-of-way and they barricaded it to prevent the passage of trains. A lower court granted CP a permanent injunction to enjoin any future trespass. The Crown granted the Central and Western crossings to CP, in fee, pursuant to letters patent in 1912. CP relied on statutory authority for the Eastern crossing. The sole issue was the nature of the interest granted to CP in the Eastern crossing. The S.C.C. upheld the lower Court's injunction finding that CP's interest in the Eastern crossing derived from its original acquisition which was a statutory easement.

The facts in the Paul case are substantially different from those presently before me.

2) Aboriginal Interest

This position is premised on the view that the bands' interest in the reserves derives from their Aboriginal title. That is the interest which is held by the Crown and "reserved" for the use and benefit of the bands. The respondents submit that some of the bands' interests in the reserves continue to be held by the Crown for the use and benefit of the bands either because not all of the respondents' Aboriginal interest in the lands has been extinguished, or because the Crown failed to display the requisite intention to extinguish the respondents' Aboriginal interest in the land.

The respondents submit that Sparrow (supra) stands for the proposition that the Crown's intention to extinguish all of the Aboriginal interest in the land must be clear and plain. The respondents argue, in the case at bar, that the statutory framework by which the letters patent were issued to the applicants do not evince a clear and plain intention to extinguish the Indian interest. It is also argued that Aboriginal interests are sui generis; therefore, some of the Indians' interests in the lands remain. As such, the respondents ask the Court to either invalidate the grant of Crown land or read it down to no more than an easement.

3) Crown Obligation/Excess of Statutory Authority

The respondents submit that should the Court find that the applicants received the fee, then the Crown either exceeded its statutory authority, or breached its fiduciary obligations toward the Indians. The remedy suggested is to either invalidate the Crown land grant or read it down to an easement.

The respondents further submit that the Railway Act, R.S.C. 1927, c. 170 restricts what a railway can do with Crown lands grants. The Railway Act contains, inter alia, the following restrictions:

THE TAKING AND USING

OF LANDS.

Restrictions " Crown Lands.

189. No company shall take possession of, use or occupy any lands vested in Her Majesty, without the consent of the Governor in Council.

2. Any railway company may, with such consent, upon such terms as the Governor in Council prescribes, take and appropriate, for the use of its railway and works, so much of the lands of the Crown lying on the route of the railway which have not been granted or sold, as is necessary for such railway, and also so much of the public beach, or bed of any lake, river or stream, or of the land so vested covered with the waters of any such lake, river or stream as is necessary for making, completing and using its said railway and works.

3. The company may not alienate any such lands so taken, used or occupied.

4. Whenever any such lands are vested in the Crown for any special purpose, or subject to any trust, the compensation money which the company pays therefor shall be held or applied by the Governor in Council for the like purpose of trust.

These restrictions apply to grants of Crown land to the applicants by one of the following methods:

a) The jurisprudence flowing from Apsassin (supra), Sparrow (supra), and Guerin (supra) requires the Court to construe the Railway Act and the CPR Act harmoniously.

b) Section 22 of the CPR Act's contract incorporates the provisions in the Railway Act. The respondents also submit that the provisions in the CPR Act are consistent with the legislation contained in the Railway Act so that the specific Act does not override the general Act.

Section 22 of the CPR Act's contract states:

22. The Railway Act of 1879, in so far as the provisions of the same are applicable to the undertaking referred to in this contract, and in so far as they are not inconsistent herewith or inconsistent with or contrary to the provisions of the Act of incorporation to be granted to the Company, shall apply to the Canadian Pacific Railway.

c) The respondents submit that Marathon (supra) stands for the proposition that statutory restrictions are notices to the world.

At the trial level of Marathon (supra) Meredith J. held, at page 4:

The restraint against alienation is clear. The conveyance to Marathon is thus, as I say, illegal.

And I think, by necessary implication, that as the lands are no longer necessary for the use of the railway, and thus are not used for the purposes of the railway, the lands must be restored to the Crown.

That the land was for the purpose of a railway is clear from the wording of section 48 of the Indian Act. Section 48 did not appear on the letters patent but it was named in the corresponding order in council. The Court opined that it was not necessary for the Governor in Council to attach terms and conditions to the acquisition of the property because those terms and conditions were already contained, and clearly set forth, in the provisions of the Railway Act.

The respondents hold that Marathon turns on the restrictions contained in the documentation and since the factual circumstances in the documentation in the instant case is on all fours with Marathon, therefore what CN, CP, and E&N received was a limited interest in land.

Lastly, the respondents submit that the CIT cannot expand the terms of the original grant. Consequently, the respondents challenge the constitutional validity of the CIT claiming that as a result of the fact that "Indians and Land reserved for the Indians" are the exclusive jurisdiction of Parliament pursuant to subsection 91(24) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], the provisions of the LTA are constitutionally incapable of operating to effect the bands' interest in the reserve.

B. DISCRIMINATION

It is the respondents' position that Indian band councils are not analogous to municipalities because band councils pre-date the Indian Act. Consequently, band councils do not derive their jurisdiction exclusively from the Indian Act.

Additionally, the respondents contend that the applicants' analogy between band councils and municipalities is false. Municipalities are autonomous creatures of statute. But, Indian band councils are not. While band councils are dependent upon the Minister for the approval of band council by-laws as required by the Indian Act, no such requirement is placed on municipalities to have municipal by-laws approved by the respective provincial Minister responsible for municipal affairs.

The respondents assert that the powers encompassed by the taxing provisions of the Indian Act, namely section 83, must be given a broad purposive and functional analysis to keep in step with promoting the interest of Indian self-government as expressed by the spirit of the Supreme Court of Canada's decision in Matsqui (supra). In practical terms, because there are so many Indian bands across Canada, section 83 envisions that each individual band will develop its own detailed taxation scheme with supervision by the Minister of Indian Affairs.

In terms of the specific grounds of discrimination alleged by the applicants, the respondents submit that:

1) the exemptions referred to are authorized by statute and are consistent with exemptions which applied prior to the bands assuming taxation jurisdiction;

2) such a variable tax rate is authorized by statute and applied to lands prior to the bands assuming taxation jurisdiction;

3) the provisions referred to are authorized by statute and are similar to those which would apply should the lands be taxed under the provincial scheme. In any case, issues as to valuation can be appealed pursuant to the by-laws and are not a reason to invalidate the by-laws.

The respondents submit further that it is also Parliament's intention to enable the bands to apply different tax rates and valuation methods to different parcels of land, according to use.

DISCUSSION & CONCLUSION

Before I conclude, I wish to address a number of preliminary issues.

Aboriginal Rights/Extinguishment/Crown Obligation

What is before me is a judicial review of band taxation by-laws to determine whether the lands meet the statutory requirements of reserve land in the Indian Act, i.e., whether title to the lands vest with Her Majesty, so that the Indian band councils would have the statutory authority to tax the impugned lands. This case is not about Aboriginal rights, Crown obligations or excess of statutory authority.

I made it clear to the respondents that it may or may not be that the federal Crown failed in its obligations toward the Indian bands, or that the Crown exceeded or did not exceed its statutory authority and granted to the railways an interest in land that the applicants ought not to have received. I say this without ruling on this issue in that the Crown was not a party to the present proceedings. The facts before me satisfy me that the applicants are bona fide purchasers of land for good value without notice of fraud or deceit. Indeed, the respondents never argued that they had been deceived by the Crown or the applicants. As a matter of fact, I am satisfied that the evidence before me suggests that the Indians were apprised of all negotiations with the railways. The money received by the Crown went toward benefiting the Indian bands as stated in the opening remarks of the letters patent. Accordingly, I do not have to decide these issues and they do not prevent me from reaching my conclusion.

I note in passing that the jurisprudence supports my position that I do not have to deal with the issue of Aboriginal rights. Millward J. rejected the Aboriginal rights characterization of the issues in Gitanmaax Indian Band v. British Columbia Hydro and Power Authority (1991), 84 D.L.R. (4th) 562 (B.C.S.C.), at page 566 [hereinafter Robinson] and his rejection of that characterization did not prevent him from reaching his decision that Indian bands were to be held up to the same interpretive principles governing commercial transactions as everyone else and the land in that case did not revert to the Crown. So too the Court in Paul (supra) was able to dispose of its case without a declaration of the exact nature of the Indian interest in the land. At page 679 the Court states:

. . . can it be said that the New Brunswick legislature's intention to extinguish the Band's interest in the underlying fee remaining in the Crown was "clear and plain"? Fortunately, we do not have to answer this difficult question because it is enough for purposes of this appeal to find that CP has a valid easement or right-of-way over the eastern crossing sufficient to support the award of a permanent injunction.

Additionally, I note that in Farah v. Glen Lake Mining Co. (1908), 17 O.L.R. 1 (C.A.), also a case in which Crown letters patent were in dispute without the Crown being present, the Court indicated that the appropriate remedy would be to take action against the Crown directly.

Extrinsic Evidence

There are three types of evidence before me: 1) the letters patent and CIT; 2) the orders in council and governing legislation; and 3) official correspondences and railway plans and maps of the lands. The applicants maintain that all documentation but the letters patent and CIT are extrinsic evidence and therefore irrelevant for the disposition of this case. G. H. L. Fridman, The Law of Contract in Canada, 2nd ed. (Toronto: Carswell, 1986), at page 433 states:

The fundamental rule is that if the language of the written contract is clear and unambiguous, then no extrinsic parol evidence may be admitted to alter, vary, or interpret in any way the words used in the writing.

However, the applicants submit that should this Court find otherwise, they too have documentary evidence of their own, such as a letter from the Department of Justice, supporting their position.

The respondents say that the orders in council and corresponding legislation must be considered because said documents are the conditions precedent to the letters patent. The official letters, maps and plans should be considered in that they assist in giving effect to what the parties intended.

In Paul (supra), the Court states, at page 665:

In order to define clearly the nature of the railway's interest in the eastern crossing, we must look to the language of the statutes, to any agreements between the original parties and to subsequent actions and declarations of the parties.

The Court in Paul considered the letters patent, the orders in council, and the particular legislation referred to in those documents. Similarly in Robinson (supra) and in Marathon (supra) the Court looked at the letters patent, the order in council, and the particular named legislation.

I will allow the other documents to be submitted as evidence but I give this evidence little weight. I add that even if I were to give this evidence full weight, I do not find it favours the respondents, particularly the band resolutions⁵ that clearly show, contrary to the submissions of the respondents, that the Indian bands intended to surrender the land.

Right-of-Way

I do not find that "right-of-way", as it is used in the lexicon of railways, means an easement. The applicants submit that Parliament states what it intends. It would have been very simple for Parliament to use the word "easement" if that is what it had intended. I note that not once in any of the letters patent, the orders in council, the CIT, nor in any of the so-called extrinsic evidence submitted to me for my inspection does the word easement ever appear. How much simpler could it have been for Parliament to say easement if that is what it had intended? There is only one conclusion that I can draw and that is Parliament never intended to grant an easement. What it intended was to grant the land to the railway applicants for a railway right-of-way and not to grant an easement.

I do not accept the respondents' argument that the inclusion of easement as part of the definition of "lands" in the Railway Act , R.S.C. 1952, c. 234, section 2 means that Parliament made express what was always implied. On the contrary, I am satisfied that it shows prior to 1952, the definition of lands did not mean an easement. And, as for the word, "easement's" use, after 1952, or for that matter the use of the word "right-of-way", one has to understand a word in its context.

The applicants submit for my reading a scholarly text on railways, Dorman/Stoltz, A Statutory History of Railways in Canada 1836-1986, in support of the proposition that right-of-way means the strip of land between any two stations. The definition for a railway right-of-way is found at page xiv.

In Canada the title acquired by a railway company is the freehold itself and not merely an easement or limited right of occupancy.

I am satisfied that there is a common theme that runs through the letters patent, the orders in council and the applicable legislation; and, that theme is the applicants were granted the lands specifically for railway purposes. Therefore, I am satisfied that the interest in the lands granted to the railways was a determinable fee. Consequently, title vests with the applicants and the lands do not fall within the Indian bands' taxing authority.

Sir Robert Megarry and M. P. Thompson, Megarry's Manual of the Law of Real Property, 7th ed. (London: Sweet & Maxwell, 1993) at page 35 defines a determinable fee as:

A determinable fee is a fee simple which will automatically determine on the occurrence of some specified event which may never occur.

I learned from the applicants that because the construction of a national railway was a top priority, the railways were granted land for the specific purpose of realizing that national dream. Thus the CPR Act and An Act to incorporate Canadian National Railway Company and respecting Canadian National Railways, S.C. 1919, c. 13 (The CNR Act) were enacted to facilitate that specific purpose by financially subsidizing the applicants and granting them land. This specific purpose is stated in the Preamble to the CPR Act. The Preamble to the CPR Act states:

WHEREAS by the terms and conditions of the admission of British Columbia into Union with the Dominion of Canada, the Government of the Dominion has assumed the obligation of causing a Railway to be constructed, connecting the seaboard of British Columbia with the Railway system of Canada;

And whereas the Parliament of Canada has repeatedly declared a preference for the construction and operation of such Railway by means of an incorporated Company aided by grants of money and land, . . . .

The letters patent, orders in council, and the statutory mechanism by which the applicants received the lands, also state that the applicants received the lands for the specific purpose of using the lands to operate a rail service. For example, CP letters patent for Seabird No. 1, Nanaimo No. 1 and Boothroyd No. 1 contain the following identical wording:

. . . the taking of said lands for the purposes of the construction, operation and maintenance of the said Railway.

In CN Letter Patent Matsqui No. 3 the Dominion government reserved to itself all interests in mines and minerals. I take this to mean not only that the railway was granted title to the land, but that the Dominion government was granting only that, that was necessary to satisfy the specific underlying purpose of the grant. In Matsqui No. 3 the public purpose of the grant is implied by reference to a provision in the applicable Indian Act. But in Matsqui Nos. 4 and 5 "for railway purposes" appears on the face of the letters patent.

As I stated, I am satisfied that the governing legislation indicates that the applicants received a determinable fee interest in the lands. I add one more provision from the CPR Act's contract to buttress my conclusion. I note that the CNR Act contains similar provisions.

10. In further consideration of the premises, the Government shall also grant to the Company the lands required for the road bed of the railway, and for its stations, station grounds, workshops, dock ground and water frontage at the termini on navigable waters, buildings, yards and other appurtenances required for the convenient and effectual construction and working of the railway, in so far as such land shall be vested in the Government.

Lastly, Megarry, at page 36, outlines the magic words that create determinable fees or conditional interests.

Words such as "while," "during," "as long as," "until" and so on are apt for the creation of a determinable fee, whereas words which form a separate clause of defeasance, such as "provided that," "on condition that," "but if," or "if it happen that," operate as a condition subsequent

I am satisfied that if the terminating event is integral to the size of the interest, then a determinable fee is created. On the other hand, if the terminating event is not integral to that size, then a conditional interest is created. In the instant case the terminating event, i.e., the impugned lands ceasing to be used for railway purposes, is integral to the size of the interest. Phrases such as "for the purposes of a railway" used by the letters patent and contained in the legislation are more in the line of the magic words that create a determinable fee than they are in line with creating a conditional interest.

Counsel for the respondent Matsqui Indian Band submitted documents indicating that CN initially applied for a "right-of-way" by way of an authorized taking but, for technical reasons, the Department of Indian Affairs issued the letters patent pursuant to a surrender. The respondent Matsqui Indian Band argues that because the original request was pursuant to an authorized taking, i.e., pursuant to the applicable railway legislation (and all its restrictions therein), then what was really requested was an easement and the change in the granting procedures did not alter that fact.

I cannot reach that conclusion. The band resolutions clearly show that the Indians intended to surrender the land. What the documents do tell me is that the lands in question were surrendered for railway purposes. Additionally, whether the Matsqui Indian Band Council exceeded its statutory authority in surrendering the land in question, as the respondent Matsqui Indian Band argues, is not at issue in this judicial review. I am satisfied that CN received the lands for railway purposes.

The issues raised by the applicants, such as perpetuities or estoppel, do not arise here because there is no issue of reverter in the context of this case as there was in Marathon (supra). In Marathon CP had ceased using the land for railway purposes. This is not the situation in the case before me. The applicants are all presently operating a rail service on the lands. I add that in Marathon, the Railway Act applied because section 48 of the applicable Indian Act was named in the order in council. I find the general tone of the Railway Act applies to the case before me because it is incorporated by the specific enabling Act or because it is the governing legislation. However, the restrictions on grants of Crown land serve to reinforce my conclusion that the applicant received a determinable fee. The restrictions do not operate to create an easement.

Lastly, the respondents are correct in stating that the LTA is ultra vires if the impugned land remained in the reserve. However, since title to the lands vest with the applicants, the lands are no longer under federal jurisdiction. Hence, there is no constitutional issue. In passing I note that in Marathon, and in Robinson, the applicants in those cases also used the CIT to shield themselves from attack on their title.

B. DISCRIMINATION

Two issues are raised under the broad discussion of whether the Indian band council by-laws are authorized under the Indian Act. The first is whether Indian band councils are analogous to municipalities such that Indian band councils are creatures of statute with no powers of their own except those that are specifically authorized by the enacting legislation. The second is whether section 87 of the Indian Act exempts Indian band members from their own by-laws.

1. Are Indian band councils creatures of statute analogous to municipalities?

The authorities offered by the applicants in support of the argument that Indian band councils are creatures of statute analogous to municipalities, are distinguishable on their facts. Otineka Development Corp. v. Canada, [1994] 2 C.N.L.R. 83 (T.C.C.) is a tax case that turns on the very special circumstances of the respective Indian band. In Otineka the Indian Band was said to be a paradigm of Indian self-government. Stacey and Montour and The Queen, Re (1981), 63 C.C.C. (2d) 61 (Que. C.A.), merely states that judicial jurisdiction does not flow from the administrative jurisdiction that an Indian band council possesses.

I also do not accept the applicants' argument that I cannot save the Indian band's legislation by striking the impugning aspects. Unlike in Rempel Bros. Concrete Ltd. v. Mission (Dist.) (1989), 40 B.C.L.R. (2d) 393 (S.C.), I am of the opinion here that the by-laws can operate effectively in a truncated form. And, unlike in Canada Cement Company Limited and the Town of Port Colborne, Re, [1949] O.R. 75 (H.C.), I am of the opinion here that the by-laws would have received Band Council assent had they been presented to Council in a truncated form; or at least, there is no evidence before me to the contrary.

Secondly, I am not satisfied that the applicants' analogy holds. Indian band councils are not autonomous creatures of statutes . The Minister must still approve Indian band by-laws.

Thirdly, the consequence of narrowly construing section 83, as the applicants suggest, is to rule that what the section authorizes is simply a flat tax. This is not only an impractical idea (It is not for the federal government to tailor the Indian Act to be sensitive to the unique taxation needs of each of the hundreds of Indian band councils across Canada) it is also contrary to the jurisprudence.

In Matsqui (supra) Lamer C. J. with the support of Cory, Sopinka, L'Heureux-Dubé and Gonthier JJ. on this point states, at page 24:

. . . it is important that we not lose sight of Parliament's objective in creating the new Indian taxation powers. The regime which came into force in 1988 is intended to facilitate the development of Aboriginal self-government by allowing bands to exercise the inherently governmental power of taxation on their reserves. Though this Court is not faced with the issue of Aboriginal self-government directly, the underlying purpose and functions of the Indian tax assessment scheme provide considerable guidance in applying the principles of administrative law to the statutory provisions at issue here. I will therefore employ a purposive and functional approach where appropriate in this ruling.

And again, at pages 33 and 34 the Court states:

Here, the evidence indicates that the purpose of the tax assessment scheme is to promote the interests of Aboriginal peoples and to further the aims of self-government. Although the scheme resembles the kind of tax assessment regime we see at the municipal level of government in Canada, it is more ambitious in what it sets out to achieve. The scheme seeks to provide governmental experience to Aboriginal bands, allowing them to develop the skills which they will need for self-government.

The Indian Act contemplates a measured maturing of self-government. The pre-1988 amended version of section 83 of the Indian Act allowed bands that "had reached an advanced stage of development" to raise money by way of assessment and taxation of reserve lands, with approval of the Governor in Council. I am satisfied that the 1988 amendments to the Indian Act mark the next stage in that maturing process. The amendments show that Indian bands no longer need to demonstrate their maturity at least with respect to having the power to tax. This does not mean that Indians have achieved self-government. The Minister must still approve by-laws. But the strings to mother's apron definitely have been loosened. If Indian bands are to be allowed to advance to the next stage of their development, then the power to levy variable taxation policies is a must.

I am satisfied that the by-laws with regard to discriminating amongst various types of property, even though not outlined in the powers given to the band, are valid.

However, it is also my view that Parliament never intended to grant powers to the Indian bands to exempt certain individuals from being taxed and certain others from not being taxed. This can lead to all kinds of abuse. Had it been Parliament's intention to grant such powers it may very well do so. I am not deciding that matter. All I am saying is that Parliament would have clearly stated this if that is what they intended. Therefore, I sever that part from the by-laws that discriminate as between persons.

2. Does section 87 exempt band members from their own by-laws?

The respondents submit that section 87 of the Indian Act exempts Indian band members from self-taxation.

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.

(2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property. [Underlining added.]

The respondents' argument is contrary to the very aims and objectives of self-government that were quoted to me from the Matsqui decision.

The Financing of Aboriginal Self-Government, an article by Allan M. Maslove and Carolyn Dittburner, School of Public Administration at Carleton University in Aboriginal Self-Government in Canada: Current Trends and Issues, edited by John H. Hayton, Purich 1994, Saskatoon, reviewed the historical roots of self-taxation and concluded that self-taxation is a key element in the development of effective systems of Aboriginal self-government. At page 152 Maslove and Dittburner state:

The establishment of self-financing mechanisms would grant Aboriginal governments greater legitimacy in the non-Aboriginal society by demonstrating a commitment to self-government and to Aboriginal Peoples assuming responsibility for themselves. . . .

A certain degree of self-financing would also enhance the legitimacy of the government within its own community. Whereas the Boston Tea party demonstrated that there could be no taxation without representation, self-financing within Aboriginal self-government adheres to the reverse proposition"there can be no effective representation without taxation.

It is my view that section 87 applies to outside authorities and not to the Indian band itself pursuant to section 83. I am in complete agreement with the academic writing. Self-taxation is part and parcel of Indian self-government and it will only serve to strengthen it.

The application is allowed and the aforementioned Indian Band property assessment notices taxing the property of the applicants are set aside as being outside the taxing jurisdiction of the respondent Indian bands.

Alternatively, if I am wrong in allowing the present applications, I sever those impugning aspects of the aforementioned Indian band property assessment notices taxing the property of the applicants that discriminate as between persons.

¹ As found in the application records of the applicants.

² As found in the application records of the applicants.

³ Exhibit E, application record of Canadian National Railway Company and Matsqui Indian Band.

⁴ The applicants submit that in order for the British Columbia Supreme Court to order CP to restore the impugned lands to the Crown, CP had to have had title to the land. The Indian bands replied that this Court should not "pour" any more content into the word "land" than easement. The respondents maintain that what the Court ordered transferred to the Crown was CP's possessory use. I cannot agree with the respondents' interpretation. If the Court in Marathon intended that CP restore the easement to the Crown (assuming this is possible) it would have said so; rather it spoke of land.

⁵ Documents pertaining to Exhibit K of the respondent Matsqui Indian Band's application record regarding Canadian National Railway.