T-1745-77
Springbank Dehydration Ltd. and Seabird Island
Farms Ltd. (Plaintiffs)
v.
Archie Charles, Harold Peters, Allan Peters and
all other persons belonging to the Class of Band
Members of the Seabird Island Band, Agassiz, of
the Vancouver District in the Province of British
Columbia and the Queen as represented by the
Minister of Indian and Northern Affairs (Defend-
ants)
Trial Division, Mahoney J.—Vancouver, May 2
and 3, 1977.
Crown — Indian reservation lands — Head lease expired —
Rights of sub-lessee re agreement of land transfer — Applica
tion for injunction — Interest in subject lands necessary for
injunction to issue — Whether plaintiffs had an interest to
support application — Indian Act, R.S.C. 1970, c. I-6, s. 28.
The plaintiffs had been sub-lessees of lands belonging to the
defendants. An agreement was made between the defendants
and the plaintiffs respecting a land transfer between plaintiffs.
The defendants subsequently ratified this agreement and
applied for ministerial approval. When the head lease was
terminated the plaintiff Springbank declined the Minister's
offer of a new lease, as per a clause in the sub-lease. Although
the Minister recommended the Band's granting a lease for the
lands involved in the exchange, the Band then refused to grant
the lease and decided to carry on business for themselves. The
defendants were about to replace the plaintiffs' crop with a
crop of beans.
Held, the application is dismissed. The plaintiffs' claim for
injunctive relief is entirely premised on the existence of a
subsisting legal interest in the Seabird lands, the Springbank
lands and the Consolidated lands. The statement of claim does
not disclose such an interest and accordingly the injunction
should not be granted. As to the Springbank lands per se, the
plaintiff Springbank's interest expired with the head lease on
September 30, 1976, the Minister's offer not having been
accepted. The interest in the Consolidated lands depends entire
ly on the effect of the agreement and the subsequent resolution
of the Band Council which agreement is void under section
28(1) of the Indian Act. The interest in Seabird lands depends
entirely on the effect of the Minister's recommendation and the
Minister's offer vis-à-vis the Seabird lands, being for one year
only, might have had some effect by virtue of section 28(2) if it
had been a permit.
APPLICATION.
COUNSEL:
B. K. Atkinson and P. J. Jones for plaintiffs.
R. E. Eades for defendants, except the Queen.
SOLICITORS:
Jestley Kirstiuk, Vancouver, for plaintiffs.
Volrich, Eades, Wark & Mott, Vancouver,
for defendants, except the Queen.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The facts alleged in the state
ment of claim and in the affidavit supporting the
plaintiffs' application for an interim injunction are
not disputed by the defendants against whom the
injunction is sought, i.e. all except Her Majesty.
Her Majesty was not represented at the hearing of
the application; the other defendants were.
The plaintiffs were, prior to September 30,
1976, sub-lessees from the same head lessee of
certain lands contained in the Seabird Island
Indian Reserve near Chilliwack, B.C. The plaintiff
Springbank leased about 400 acres and the plain
tiff Seabird about 200 acres, respectively hereafter
called the Springbank and Seabird lands. The
Springbank sub-lease contained a covenant by the
Minister of Indian and Northern Affairs that, if
the head lease were terminated, a new lease for the
balance of the term of the sub-lease would be
granted. Seabird and Springbank appear to share
common management and, at least some, common
ownership.
On June 26, 1976, Springbank and the defend
ant Band entered into an agreement in writing
whereby it was agreed that approximately 160
acres of the Seabird lands would be transferred to
Springbank in exchange for approximately 180
acres of the Springbank lands, the resulting parcel
to be leased to Springbank being called the Con
solidated lands. The head lessee determined to
surrender its lease effective September 30, 1976
and on September 2, in pursuance of his covenant,
the Minister made an offer, open to September 29,
to lease the original Springbank lands to Spring-
bank. On September 28, the Council of the
defendant Band, by resolution, ratified, approved
and confirmed the said exchange and requested
the Minister to grant a lease of the Consolidated
lands to Springbank. Relying on the agreement of
June 26 and the resolution of September 28,
Springbank did not accept the Minister's offer
and, further, expended money on the Consolidated
lands.
On March 22, 1977, the Minister advised Sea
bird that he would recommend to the Band that a
lease of the Seabird lands be granted to it. On
April 5, he advised Seabird that the Band had
decided not to grant such a lease. It appears that
the Minister's consent to the Seabird sub-lease had
never been obtained and, accordingly, no covenant
like that respecting the Springbank lands existed
in respect of the Seabird lands.
The Band has decided to go into business for
itself on the lands and to replace the plaintiffs'
crops of grass legumes with a crop of beans. On or
about April 18, 1977, a contractor engaged by the
Band moved onto the lands and commenced activi
ties that will undoubtedly destroy the plaintiffs'
crops thereon. The plaintiffs commenced an action
in the Supreme Court of British Columbia and
obtained an ex parte injunction prohibiting those
activities which was dissolved May 2 upon that
Court determining it had no jurisdiction to enter
tain the action. On May 2 an action was com
menced in this Court and the application for an
injunction was heard.
As I indicated at the close of the hearing, I am
satisfied that, if the statement of claim discloses
that the plaintiffs now have an interest in any of
the lands, the injunction ought to issue in respect
thereof.
As to the Springbank lands per se, the plaintiff
Springbank's interest would appear to have
expired with the head lease on September 30,
1976, the Minister's offer not having been accept
ed. The interest in the Consolidated lands depends
entirely on the effect of the agreement of June 26,
1976 and the subsequent resolution of the Band
Council. The interest in the Seabird lands depends
entirely on the effect of the Minister's recommen
dation.
The Indian Act' provides:
28. (1) Subject to subsection (2), a deed, lease, contract,
instrument, document or agreement of any kind whether writ
ten or oral, by which a band or a member of a band purports to
permit a person other than a member of that band to occupy or
use a reserve or to reside or otherwise exercise any rights on a
reserve is void.
(2) The Minister may by permit in writing authorize any
person for a period not exceeding one year, or with the consent
of the council of the band for any longer period, to occupy or
use a reserve or to reside or otherwise exercise rights on a
reserve.
The agreement as to the Consolidated lands
would appear to be clearly void by virtue of sub
section 28(1). That matter has been dealt with too
often to be open to any doubt in spite of apparent
equities. 2 Likewise, the resolution can have no
effect, the agreement being void.
The Minister's offer vis-à-vis the Seabird lands,
being for one year only, might have had some
effect by virtue of subsection 28(2) if it had been a
permit but the offer is clearly expressed: "the
Department is prepared to recommend to the Band
Council to extend to your company a lease for one
year...." That is not, in my view, a permit by any
definition.
The plaintiffs' claim for injunctive relief is
entirely premised on the existence of a subsisting
legal interest in the Seabird lands, the Springbank
lands and the Consolidated lands. The statement
of claim does not disclose such an interest and
accordingly the injunction should not be granted.
' R.S.C. 1970, c. I-6.
2 E.g. The King v. McMaster [1926] Ex.C.R. 68; Easter-
brook v. The King [1931] S.C.R. 210 and The King v. Cowi-
chan Agricultural Society [1950] Ex.C.R. 448.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.