A-368-85
Chief Garnet Boyer, on behalf of himself and all
other members of the Batchewana Indian Band
(Appellants)
v.
The Queen in right of Canada and 488619 Ontario
Inc. carrying on business as Alcor Developments
(Respondents)
INDEXED AS: BOYER v. R. (F.C.A.)
Court of Appeal, Heald, Marceau and MacGuigan
JJ.—Toronto, March 4; Ottawa, March 26, 1986.
Native peoples — Lands — Lease of reserve land between
Crown and Ontario corporation pursuant to s. 58(3) Indian Act
— S. 58(3) authorizing Minister to lease reserve land upon
application by Indian lawfully in possession — Minister not
required to secure Band consent before executing s. 58(3) lease
— Lands set apart for use by Band or members — Limitations
on right in allotted land not governing use to which land put
— Allotment shifting right to use and benefit from collective
to individual right — No fiduciary obligation on Crown
toward Band — Interest of Band "suspended" — Right tem
porarily transferred being right to use belonging to individual
Indian in possession — Indian Act, R.S.0 1970, c. 1-6, ss. 2,
20, 25, 28, 29, 37, 58, 81.
Constitutional law — Indians — Whether lease of reserve
land under s. 58(3) Indian Act requiring consent of Band —
Collective right of Band versus individual right of locatee —
Which has precedence — Resort to preamble to Constitution
— Canadian Constitution similar to United Kingdom's where
"right to individual freedom part of constitution" — Where
group rights exceptionnally given priority, Constitution so
stating — Charter fundamental affirmation of rights and
freedoms of individual — Indian Act, R.S.C. 1970, c. 1-6, s. 58
— Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 51 (as am. by Canada Act 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1),
ss. 93, 133 — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 15, 16 to 22, 23, 29.
This is an appeal from a decision of the Trial Division which
dismissed an application for a declaration that a lease of
reserve lands entered into by the Crown as lessor and an
Ontario corporation as lessee, as a result of an application
made under subsection 58(3) of the Indian Act, was null and
void. Subsection 58(3) gives the Minister the power to lease, for
the benefit of any Indian upon his application for that purpose,
the land of which he is lawfully in possession without it being
surrendered. The question is whether the Minister was required
to secure the consent of the Band or of its council before
executing the lease.
Held, the appeal should be dismissed.
The appellants argue that paragraph 58(1)(b), which
requires the consent of the Band when unused or uncultivated
reserve lands are leased, is the applicable provision, and that
subsection 58(3), by negative inference, only applies to devel
oped and used land.
The land in question was clearly unused, the word "use"
implying occupation, utilization or exploitation of some sort.
The lease could only be executed under subsection 58(3). There
was no need to resort to the concept of negative inference to
determine the sphere of application of the two provisions.
Subsection 58(3) applies when there is a request by the Indian
in lawful possession of the land, while paragraph 58(1)(b) is
concerned with situations where the lawful possessor of the land
is indifferent to its use. The lease herein falls within the first
category.
Alternatively, the appellants submit that consent is required
under subsection 58(3) either by necessary implication result
ing from the context or as an effect of the fiduciary obligation
of the Crown toward the Band.
With respect to the first branch of the argument, it is
contended that under the scheme of the Act, the interest of the
locatee in his parcel of reserve land is subordinate to the
communal interest of the Band itself. The right in a piece of
land allocated to the Band member, although in principle
irrevocable, is subject to many formal limitations, such as the
prohibition from disposing of the right to possession or leasing
the land to a non-member. However, those limitations have all
the same goal: to prevent the purpose for which the lands have
been set apart—the use of the Band and its members—from
being defeated. None of those limitations concerns the use to
which the land may be put or the benefit that can be derived
from it. The allotment of a piece of land in a reserve shifts the
right to the use and benefit thereof from being the collective
right of the Band to being the individual and personalized right
of the locatee. The interest of the Band, in the technical and
legal sense, has disappeared or is at least suspended. The
scheme of the Act would be defeated if the words "with the
consent of the Band" were read into subsection 58(3).
The appellants referred to Guerin et al. v. The Queen et al.,
[1984] 2 S.C.R. 335 as authority for there being a fiduciary
obligation on the Crown. However, the circumstances sur
rounding the grant of a lease under subsection 58(3) are
altogether different from those which gave rise to a fiduciary
duty in Guerin. In that case, the Minister had been entrusted,
as a result of the surrender of unallotted reserve lands to the
Crown, with the interest of the Band and it was that interest he
was dealing with in alienating the lands. In the present
instance, no alienation is contemplated, and the right tem
porarily transferred is the right to use which belongs to the
individual Indian in possession. No interest of the Band is
affected. The duty of the Minister is, under subsection 58(3),
only toward the law, not toward the Band. Given the structure
of the Act and the clear wording of subsection 58(3), it cannot
be said that the Minister is required to secure the consent of the
Band before executing a lease such as that in question. Under
the Act, the individual Band member is given a certain autono
my when it comes to the exercise of his entrepreneurship and
development of his land.
Per MacGuigan J.: The cases relied upon by the appellants
are not determinative of the point in issue. In The Queen v.
Devereux, [1965] S.C.R. 567, subsection 58(3), described as an
"exception" to the generally communal approach, was used to
grant a lease for land cultivated and used, so that it cannot be
considered as a binding precedent. Guerin et al. v. The Queen
et al. (supra) and Kruger v. The Queen, [1986] 1 F.C. 3 (C.A.)
both support the notion of a fiduciary duty but in the context of
preventing exploitation of Indians by third parties.
In the absence of any clear guide from statutes or from
authorities as to whether analogy should be drawn to the
community principle or to the personal principle, resort must be
had to the preamble of the Constitution Act, 1867 whereby
Canada is to have "a Constitution similar in principle to that of
the United Kindgom" where "the right to individual freedom is
part of constitution". The freedom of the individual person in
Canada has precedence over the exigencies of the community.
Where group rights are, exceptionally, given priority, the
Canadian Constitution so provides specifically. The Canadian
Charter of Rights and Freedoms is itself a fundamental affir
mation of the rights and freedoms of the individual. In the
absence of legal provisions to the contrary, the interests of
individual persons will be deemed to have precedence over
collective rights.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335;
(1985), 55 N.R. 161.
CONSIDERED:
The Queen v. Devereux, [1965] S.C.R. 567; Kruger v.
The Queen, [1986] 1 F.C. 3; (1985), 17 D.L.R. (4th) 591
(C.A.); Saumur v. City of Quebec, [1953] 2 S.C.R. 299;
Switzman v. Elbling and Attorney-General of Quebec,
[1957] S.C.R. 285.
REFERRED TO:
R. v. Smith, [1981] 1 F.C. 346 (C.A.).
COUNSEL:
W. B. Henderson for appellants.
W. J. A. Hobson, Q.C. for respondent the
Queen.
T. F. Baxter for respondent 488619 Ontario
Inc.
SOLICITORS:
LaForme, Henderson, Jones, Toronto, for
appellants.
Deputy Attorney General of Canada for
respondent the Queen.
Henry M. Lang, Q.C., Sault Ste. Marie,
Ontario, for respondent 488619 Ontario Inc.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: This appeal arises from a judg
ment of the Trial Division [Cullen J., T-846-84,
March 25, 1985, not yet reported] which dismissed
an application, brought by an Indian Chief and the
other members of his Band, for a declaration that
a lease of reserve land entered into between Her
Majesty and an Ontario corporation, purportedly
under the authority of the Indian Act, R.S.C.
1970, c. I-6, was void and of no effect. Its scope
and difficulty are not immediately apparent since
it presents no real problem as to the facts and
involves the construction of only one short subsec
tion of the Act. It so happens, however, that the
provision contained in that subsection is not only
fundamental from a practical point of view, but it
concerns one of the main features of the legislative
scheme adopted in the Act and quite surprisingly it
has, apparently, never been scrutinized yet by any
judicial authority.
This provision of the Act, on the proper under
standing of which the solution of the whole contro
versy herein depends, is contained in subsection
58(3). It needs to be seen and analysed in relation
with the provisions contained in the remainder of
the section, so I reproduce it in its entirety:
58. (1) Where land in a reserve is uncultivated or unused, the
Minister may, with the consent of the council of the band,
(a) improve or cultivate such land and employ persons
therefor, and authorize and direct the expenditure of so
much of the capital funds of the band as he considers
necessary for such improvement or cultivation including the
purchase of such stock, machinery or material or for the
employment of such labour as the Minister considers
necessary;
(b) where the land is in the lawful possession of any individu
al, grant a lease of such land for agricultural or grazing
purposes or for any purpose that is for the benefit of the
person in possession; and
(c) where the land is not in the lawful possession of any
individual, grant for the benefit of the band a lease of such
land for agricultural or grazing purposes.
(2) Out of the proceeds derived from the improvement or
cultivation of lands pursuant to paragraph (1)(b), a reasonable
rent shall be paid to the individual in lawful possession of the
lands or any part thereof, and the remainder of the proceeds
shall be placed to the credit of the band, but if improvements
are made on the lands occupied by an individual, the Minister
may deduct the value of such improvements from the rent
payable to such individual under this subsection.
(3) The Minister may lease for the benefit of any Indian
upon his application for that purpose, the land of which he is
lawfully in possession without the land being surrendered.
(4) Notwithstanding anything in this Act, the Minister may,
without a surrender
(a) dispose of wild grass or dead or fallen timber, and
(b) with the consent of the council of the band, dispose of
sand, gravel, clay and other non-metallic substances upon or
under lands in a reserve, or, where such consent cannot be
obtained without undue difficulty or delay, may issue tempo
rary permits for the taking of sand, gravel, clay and other
non-metallic substances upon or under lands in a reserve,
renewable only with the consent of the council of the band,
and the proceeds of such transactions shall be credited to band
funds or shall be divided between the band and the individual
Indians in lawful possession of the lands in such shares as the
Minister may determine.
It will be recalled that under the Indian Act a
reserve is "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"
(section 2); that, although the management of the
reserve and moneys arising therefrom is the con
cern of the Minister of Indian Affairs (hereinafter
referred to as "the Minister"), the elected council
of the Band for whose benefit it was set apart, has
broad by-law powers to regulate the use of land
and life within the reserve, in more or less the
same way as a municipal council (section 81); that
only members of the Band are entitled to reside on
the reserve (section 28). It will also be recalled
that in principle "lands in a reserve shall be sold,
alienated, leased or otherwise disposed of until
they have been surrendered to Her Majesty by the
Band for whose use and benefit in common the
reserve was set apart" (section 37); but that an
Indian may be "lawfully in possession of land in a
reserve" if, "with the approval of the Minister,
possession of the land has been allotted to him by
the council of the band" (section 20).
To understand and address the issue to be deter
mined on this appeal, there is no necessity to be
aware of all of the particular circumstances in
which it arose. The case proceeded in the Trial
Division on the basis of an agreed statement of
facts in which detailed information can easily be
found, but I think I can very well limit myself here
to an overall review of the factual context, even if I
have to add some further details later in the course
of dealing which the various submissions of the
parties.
John Corbière is a member of the Batchewana
Indian Band for the benefit of which Rankin Loca
tion Indian Reserve No. 15A was set apart. He has
even been the Chief of the Band for many years
and it is said that under his leadership, conditions
on the reserve have considerably improved. Cor-
bière is in "lawful possession" of a piece of land
located within the reserve. It was allotted to him,
in 1973, by the Band council with the approval of
the Minister, and a certificate of possession was
then issued confirming his rights thereon. At the
time of the allotment, the land was wild and
swampy, but its location alongside the St. Mary's
River was ideal for development. This indeed was
the intention of Corbière from the outset, and, in
1980, he applied to the Band council for permis
sion to lease the land, for purpose of development,
to a corporation in which he and his wife owned all
the outstanding shares. That corporation, the num
bered company respondent herein, had been
formed by him in order to facilitate financing. A
resolution granting permission was adopted at the
time; however, Corbière's project was still vague
and a lot had to be done before it could proceed.
Various feasibility and other studies were required,
financing had to be arranged, decisions had to be
made as to the extent and type of development.
[For the next two years, Corbière worked on his
project, keeping in constant contact with officials
of the Department of Indian Affairs (hereinafter
sometimes referred to as "the Department"), and,
finally, in April 1982, feeling he was at last ready,
he applied to the Minister for a lease of the land to
his company pursuant to subsection 58(3) of the
Act. A lease was drafted and sent to the Band
council for comment. The Band responded by dis
puting the Minister's authority to enter into such a
lease without its formal consent, adding a few
objections regarding some aspects of the develop
ment project. Corbière decided thereupon to
modify his plans by replacing a housing complex
with a full service marina, and in September 1983,
a revised lease giving effect to the new plans was
sent to the Band council, with a request that
further comment, if any, be made before Decem-
ber 1. On November 24, the council passed a
resolution again disputing the Minister's authority
and formally disapproving the lease and then,
through its solicitor, it requested a further exten
sion of time in which to respond. The Department
felt it was not proper to delay any longer and the
lease was executed on December 9, 1983. It was in
April 1984, that the proceedings herein were
commenced.
As I indicated at the outset, the relief sought in
the action is a declaration that the lease entered
into, on December 9, 1983, between Her Majesty
the Queen as represented by the duly authorized
representative of the Minister of Indian Affairs
and Northern Development and 488619 Ontario
Inc., a corporation carrying on business as Alcor
Developments, is void and of no effect. The lease
would be so void and of no effect, in the plaintiffs-
appellants' submission, because neither the Band
nor the Band council has consented to it. The
defendants-respondents dispute the contention that
consent was required and in the alternative argue
that such consent was, in any event, given.
It may be appropriate, so as to focus on the real
issue, to dispose immediately of this alternative
position taken by the respondents that consent was
in fact given. It is, of course, the 1980 resolution
passed by the Band council purporting to give
Corbière, then still Chief of the Band, permission
to lease his land to his company, which is invoked
and relied upon. The position, in my view, is
untenable. This 1980 resolution was, at the most,
one of principle which may be taken as a sort of
consent to the land being leased, but obviously not
a consent to a particular lease. If a consent is
required, it can certainly not be one limited to
principle, it must be an informed and particula
rized one. The 1980 resolution cannot be seen as
an approval of the lease executed on December 9,
1983. I have no doubt that the only question that
has to be determined in order to dispose of the case
is whether or not the validity of this lease depend
ed on the consent of the Band or its council.
In support of their contention that consent was
indeed required, the appellants advance two alter
native arguments which must be considered in
turn.
(1) Their first argument is that the only provi
sion of the Act under which a lease such as the 'one
here in question can be executed by the Minister is
that contained in paragraph 58(1)(b), which
makes the consent of the Band a formal and
express requirement. Subsection 58(3) pursuant to
which the Minister purported to be acting in fact
had no application.
For convenience, I reproduce again the relevant
portions of section 58:
58. (1) Where land in a reserve is uncultivated or unused, the
Minister may, with the consent of the council of the band,
(b) where the land is in the lawful possession of any individu
al, grant a lease of such land for agricultural or grazing
purposes or for any purpose that is for the benefit of the
person in possession; and
(3) The Minister may lease for the benefit of any Indian
upon his application for that purpose, the land of which he is
lawfully in possession without the land being surrendered.
Paragraph 58(1)(b) and not subsection 58(3)
would be the operative provision, according to the
argument, because the land to be leased was
unused and subsection 58(3), by a sort of negative
inference, only applies to developed and used land.
I fully agree that the land was unused; I do not
share the view of the learned Trial Judge that the
clearing work done on part of the land and the
feasibility studies conducted thereon constituted
use within the meaning of the section; I under
stand the word "use" therein as implying occupa
tion or utilization or exploitation of some sort.
However, I see no reason here to resort to such an
extraordinary means of interpretation as a
so-called negative inference. There is absolutely no
need to look behind the words to find the respec
tive sphere of application of the two provisions.
Indeed, subsection 58(3) only governs when there
is a request by the Indian who is in lawful posses
sion of the land, while paragraph 58(1)(b) is obvi
ously concerned exclusively with situations where
the lawful possessor of the land is indifferent to its
use, which is why subsection 58(2) on the one
hand contemplates the possibility that improve
ments on the land be made by the Minister himself
and on the other provides that in all cases only
part of the proceeds, to be calculated on the basis
of a reasonable rent, will go to the Indian in lawful
possession. I have no hesitation in saying that
paragraph 58(1)(b) was not applicable here: the
lease could only be executed under subsection
58(3).
(2) The second argument relied on by the appel
lants in the event that subsection 58(3) would be
found to be applicable is twofold: consent is
required under that provision, they say, either by
necessary implication resulting from the context or
as an effect of the fiduciary obligation of the
Crown toward the Band.
(a) In the first branch of this second argument,
the appellants again plead for a construction of the
provision that would disregard the apparent mean-
ing of Parliament's words. There are, it is true, in
the cases, a few examples where a court has taken
upon itself to correct the wording of a provision by
reading into it something missing or deleting some
thing redundant. But these examples are quite rare
and present instances where the drafting mistakes
were quite obvious and the context made it clear
that the words used did not convey accurately or
completely what was intended (see: E. A. Dried-
ger, Construction of Statutes, 2nd ed., pp. 128 et
seq.). There is nothing to suggest that a drafting
mistake may have been made here. If one looks at
the strict context in which the provision was enact
ed, one is certainly not easily led to believe that
failure to refer to the consent of the Band in
subsection 58(3) was due to an oversight. As noted
above, three of the four subsections of section 58
deal with various situations where the Minister is
empowered to enter into agreements affecting
reserve lands, the first, third and fourth, the
second being only an addition to the first, and a
reference to the consent of the Band is made in
two of them: the contrast is so striking that it
could not have passed unnoticed. And if one looks
at the broader context there is, in my view, no
more reason to think that the provision, taken as it
is, does not fit into the scheme of the Act, which
leads me to the appellants' main point.
Under the scheme of the Indian Act, say the
appellants, the interest of a locatee, such as Cor-
bière, in his or her parcel of reserve land, is
subordinate to the communal interest of the Band
itself, and the allocation of possessory rights to
Band members does not suppress the recognized
interest of the Band in the development of allotted
lands; besides, the rule is that non-Indians cannot
have possession of reserve lands unless these lands
have been surrendered by the Band and except for
a few limited purposes set out in the Act, the
Minister is unable to authorize non-Indian use or
occupation of reserve land without consent of the
Band or its council. If, they say, subsection 58(3)
was construed literally and made applicable to any
land developed or undeveloped, those principles
could be disregarded and the scheme of the Act
itself would thereby be defeated, which is precisely
the case here since the lease is made in favour of a
corporation which is a non-Indian entity notwith
standing the status of its shareholders.
I am afraid my understanding of the scheme of
the Indian Act does not correspond totally with
that of the appellants. I have already referred to a
few sections of the Act where the words and
expressions used in subsection 58(3) are defined. It
is in fact in these sections and a few others that the
basic features of the legislation, with respect to
reserve lands, are to be found. I see them as
follows. The Band for whose use and benefit a
"tract of land" has been set apart by Her Majesty
no doubt has an interest in those lands, since it has
the right to occupy and possess them. It is an
interest which belongs to the Band as a collectivi-
ty, and the right to occupy and possess, of which it
is comprised, is a collective right. This interest can
be extinguished by a voluntary surrender by the
Band to the Crown or by expropriation for a public
purpose, but it cannot be alienated. The Band,
however, acting through its council, has the power
to allot, with the approval of the Minister, parcels
of the land in its reserve to Band members. The
right of a Band member in the piece of land which
is allotted to him and of which he has lawful
possession, although in principle irrevocable, is
nevertheless subject to many formal limitations.
The member is not entitled to dispose of his right
to possession or lease his land to a non-member
(section 28), nor can he mortgage it, the land
being immune from seizure under legal process
(section 29), and he may be forced to dispose of
his right, if he ceases to be entitled to reside on the
reserve (section 25). These are all undoubtedly
limitations which make the right of the Indian in
lawful possession very different from that of a
common law owner in fee simple. But it must
nevertheless be carefully noted that all of those
limitations have the same goal: to prevent the
purpose for which the lands have been set apart,
i.e., the use of the Band and its members, from
being defeated. None of them concerns the use to
which the land may be put or the benefit that can
be derived from it. The land being in the reserve,
its use will, of course, always remain subject to
provincial laws of general application and the
zoning by-laws enacted by the Band council, as for
any land in any municipality where zoning by-laws
are in force, but otherwise I do not see how or why
the Indian in lawful possession of a land in a
reserve could be prevented from developing it as he
wishes. There is nothing in the legislation that
could be seen as "subjugating" his right to another
right of the same type existing simultaneously in
the Band council. To me, the "allotment" of a
piece of land in a reserve shifts the right to the use
and benefit thereof from being the collective right
of the Band to being the individual and personal
ized right of the locatee. The interest of the Band,
in the technical and legal sense, has disappeared or
is at least suspended. This being my understanding
of the scheme of the Act, not only do I disagree
with the contention that the principles embodied
therein require that the words "with the consent of
the band" be read into the provision of paragraph
58(3), I think that those principles would be frus
trated by doing so. (On the nature of a locatee's
right to possession and the scheme of land tenure
under the Act, see the comments of both Judson J.
and Cartwright J. in The Queen v. Devereux,
[1965] S.C.R. 567 and also those of Le Damn J. in
R. v. Smith, [1981] 1 F.C. 346 (C.A.), at page
406, a decision reversed in appeal but on very
different grounds.)
(b) In the second branch of their argument that
consent of the Band was required for a lease under
subsection 58(3), the appellants speak of "an inci
dent of the Crown's fiduciary obligations arising
out of the inherent nature of Indian title", and
they quote the Supreme Court decision in Guerin
et al. v. The Queen et al., [1984] 2 S.C.R. 335 as
their authority.
I will say first that I have some difficulty in
understanding how that submission can have a real
role to play in the context of the action as institut
ed. The relief sought is not damages but a declara
tion that the lease is null and of no effect. I fail to
see how the breach of a fiduciary duty on the part
of the Minister in entering into a contract could
have the effect of nullifying the contract itself
when all legal requirements for its execution have
been complied with. But in any event, I simply do
not think that the Crown, when acting under
subsection 58(3), is under any fiduciary obligation
to the Band. The Guerin case was concerned with
unallotted reserve lands which had been surren
dered to the Crown for the purpose of a long term
lease or a sale under favourable conditions to the
Band, and as I read the judgment it is because of
all of these circumstances that a duty, in the
nature of a fiduciary duty, could be said to have
arisen: indeed, it was the very interest of the Band
with which the Minister had been entrusted as a
result of the surrender and it was that interest he
was dealing with in alienating the lands. When a
lease is entered into pursuant to subsection 58(3),
the circumstances are different altogether: no
alienation is contemplated, the right to be trans
ferred temporarily is the right to use which
belongs to the individual Indian in possession and
no interest of the Band can be affected (I repeat
that of course I am talking about interest in a
technical and legal sense; it is obvious that morally
speaking the Band may always be concerned by
the behaviour and attitude of its members). In my
view, when he acts under subsection 58(3), the
duty of the Minister is, so to speak, only toward
the law: he cannot go beyond the power granted to
him, which he would do if, under the guise of a
lease, he was to proceed to what would be, for all
practical purposes, an alienation of the land (cer-
tainly not the case here, the lease being for a term
of 21 years with no special renewal clause); and he
cannot let extraneous consideration enter into the
exercise of his discretion, which would be the case
if he was to take into account anything other than
the benefit of the Indian in lawful possession of the
land and at whose request he is acting. The duty of
the Minister is simply not toward the Band.
The conclusion to me is clear. Bearing in mind
the structure of the Indian Act and the clear
wording of subsection 58(3) thereof, there is no
basis for thinking that the Minister is required to
secure the consent of the Band or the Band council
before executing a lease such as the one here in
question. It seems that the Act which has been so
much criticized for its paternalistic spirit has
nevertheless seen fit to give the individual member
of a Band a certain autonomy, a relative indepen
dence from the dicta of his Band council, when it
comes to the exercise of his entrepreneurship and
the development of his land.
This appeal has, in my view, no merit and
should be dismissed with costs.
HEALD J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: I agree with the disposition of
this appeal proposed by my colleague, Mr. Justice
Marceau, and also with his reasons for that dispo
sition. My comments are therefore of a supplemen
tary nature.
This case embodies a new version of the age-old
problem of the person and the state, as particula
rized in the microcosm of an Indian community
under the Indian Act ("the Act").
The appellants challenge the validity of a lease
entered into between the Crown as lessor and a
numbered Ontario corporation as lessee, made for
the benefit of the Indian lawfully in possession of
the land in question ("the locatee") and upon his
application under subsection 58(3) of the Act.
Although the sole shareholders of the numbered
corporation are the locatee and his wife, the case
was argued on the basis that subsection 58(3) of
the Act allows the Minister to grant a lease to a
non-Indian. The challenge to the lease was based
solely on whether the Crown was entitled to grant
such a lease without the consent of the Indian
Band, which had not been obtained here.
The locatee received a notice of entitlement to
the lands in 1973 and since that time had them
cleared and surveyed, and also arranged for feasi
bility studies for the development of a full service
marina. Ministry officials having suggested that a
corporate lease was the most appropriate vehicle
for his development purposes, he made an applica
tion for a 21-year lease on April 6, 1982, which
was approved by the Minister on December 9,
1983.
The appellants admitted in argument that there
are two plausible interpretations of subsection
58(3): the first, for which they contended on the
basis of the overall context of the statute, is that,
since subsection 58(1), which requires the consent
of the Band council, deals with reserve land that is
uncultivated or unused, the powers of the Minister
in the absence of consultation under subsection
58(3) must needs be limited to reserve land that is
cultivated or used; the second, which was adopted
by Cullen J. at trial, is that subsection 58(3) has
application in any situation where the locatee
makes application as opposed to the ministerially
initiated situations covered by subsection 58(1).
In my view, the appellants are entirely right in
contending that the words of section 58 cannot be
interpreted outside of the context of the Act as a
whole. Turning to the scheme of the Act, then, as
the appellants view it, we encounter the fundamen
tal principle that a reserve must be preserved
intact for the whole Band, regardless of the wishes
of any individual Indian as to the disposition of the
allotment of which he is a locatee. The Crown has
a fiduciary duty with respect to the whole Band,
which could not be fulfilled if the effect of subsec
tion 58(3) were to allow the Crown and the locatee
to by-pass the Band council in all circumstances.
Such an unlimited power would fail to protect the
Indian collectivity. The appellants also argued
that, increasingly, it is accepted that the spirit of
native culture is a communal rather than an
individualistic one, and that the Act should be
interpreted to this effect as fully as possible.
The limitations on individual Indians, in favour
of the collectivity, are well set out by Judson J. for
the majority in The Queen v. Devereux, [1965]
S.C.R. 567, at page 572 a decision on which the
appellants rely:
The scheme of the Indian Act is to maintain intact for bands
of Indians, reserves set apart for them regardless of the wishes
of any individual Indian to alienate for his own benefit any
portion of the reserve of which he may be a locatee. This is
provided for by s. 28(1) of the Act. If s. 31 were restricted as to
lands of which there is a locatee to actions brought at the
instance of the locatee, agreements void under s. 28(1) by a
locatee with a non-Indian in the alienation of reserve land
would be effective and the whole scheme of the Act would be
frustrated.
Reserve lands are set apart for and inalienable by the band
and its members apart from express statutory provisions even
when allocated to individual Indians. By definition (s. 2(1) (o))
"reserve" 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.
By s. 2(1) (a), "band" means a body of Indians
(i) for whose use and benefit in common, lands, the legal
title to which is vested in Her Majesty, have been set
apart...
By s. 18, reserves are to be held for the use and benefit of
Indians. They are not subject to seizure under legal process (s.
29). By s. 37, they cannot be sold, alienated, leased or otherwise
disposed of, except where the Act specially provides, until they
have been surrendered to the Crown by the band for whose use
and benefit in common the reserve was set apart. There is no
right to possession and occupation acquired by devise or descent
in a person who is not entitled to reside on the reserve (s. 50,
subs. (1)).
One of the exceptions is that the Minister may lease for the
benefit of any Indian upon his application for that purpose, the
land of which he is lawfully in possession without the land
being surrendered (s. 58(3)). It was under this section that the
Minister had the power to make the ten-year lease to the
defendant which expired on November 30, 1960. [Emphasis
added.]
However, even in the course of this analysis,
which might otherwise support the appellants'
case, Judson J. describes the subsection in question
here, 58(3), as an "exception" to the generally
communal approach. Admittedly, it was used in
the Devereux case to grant a lease for land that
had been cultivated and used, so that the conclu
sion, which I take to be a judgment on fact and
law together, is not a binding precedent; but its
reasoning is nevertheless not helpful to the appel
lants in the final analysis, nor is the scheme of the
statute itself in any way decisive in the appellants'
favour.
Moreover, the other cases cited by the appel
lants are not determinative of the point in issue.
Guerin et al. v. The Queen et al., [1984] 2 S.C.R.
335; (1985), 55 N.R. 161 and Kruger v. The
Queen, [1986] 1 F.C. 3; (1985), 17 D.L.R. (4th)
591 (C.A.) both support the notion of an equitable
or fiduciary duty in the Crown to deal with Indian
lands for the benefit of Indians. But, as words of
Dickson J. (as he then was) in the Guerin case
supra, at pages 383 S.C.R.; 174-175 N.R., make
clear, this is in the context of preventing exploita
tion of Indians by others:
The purpose of this surrender [in section 37] is clearly to
interpose the Crown between the Indians and prospective pur
chasers or lessees of their land, so as to prevent the Indians
from being exploited.
Is there such a danger of exploitation of Indians in
a lease for Indian lands, for the benefit and at the
request of an Indian locatee, to a corporation with
exclusively Indian shareholders that the Crown
alone, as opposed to the Crown with the consent of
the Band council, cannot adequately safeguard
against it?
The appellants' analysis of the scheme of the
Act can just as easily be turned around. The
limitation on alienation by locatees of allotted
lands is itself limited to alienation strictly under
stood. It does not extend to one-year permits to
non-Indians "to occupy or use a reserve or to
reside or otherwise exercise rights on a reserve"
(subsection 28(2)). It is also common ground that
it does not extend to longer leases under subsection
58(3) where the land is cultivated and used. The
most that can be said for the appellants' argument
is that the limitation on individual alienation
might be extended by analogy. But so might the
absence of limitation in the opposite instances. In
plain matter of fact, neither the scheme of the Act
nor the case law is decisive.
Should analogy then be drawn to the community
principle or to the personal principle? In the
absence of any clear guide from statute or prece
dent, a court must I believe look for guidance to
the words in the preamble of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1)] that Canada is to have "a
Constitution similar in Principle to that of the
United Kingdom".
Rand J. made bold to say in Saumur v. City of
Quebec, [1953] 2 S.C.R. 299, at page 329 that:
Strictly speaking, civil rights arise from positive law; but
freedom of speech, religion and the inviolability of the person,
are original freedoms which are at once the necessary attributes
and modes of self-expression of human beings and the primary
conditions of their community life within a legal order. It is in
the circumscription of these liberties by the creation of civil
rights in persons who may be injured by their exercise, and by
the sanctions of public law, that the positive law operates.
What we realize is the residue inside that periphery.
Abbott J. went further in obiter dicta in Switzman
v. Elbling and Attorney-General of Quebec,
[1957] S.C.R. 285, at page 328:
Although it is not necessary, of course, to determine this
question for purposes of the present appeal, the Canadian
constitution being declared to be similar in principle to that of
the United Kingdom, I am also of opinion that as our constitu
tional Act now stands, Parliament itself could not abrogate this
right of discussion and debate.
This is similar in approach to the Western tradi
tion succinctly expressed by the French philoso
pher Jacques Maritain, in Man and the State,
Chicago, the University of Chicago Press, 1951, at
page 13, "man is by no means for the State. The
State is for man."
However, even the more traditional and much
more limited view of liberty espoused by A. V.
Dicey would in this instance lead to the same
result. Although for Dicey the extent of liberty
depends upon what is left permissible by law, what
is characteristic of the English Constitution is the
way in which the courts maintain the traditional
sphere of freedom, Introduction to the Study of
the Law of the Constitution, 10th ed., 1959 (E. C.
S. Wade), page 201:
Where ... [as in England] the right to individual freedom is
part of the constitution because it is inherent in the ordinary
law of the land, the right is one which can hardly be destroyed
without a thorough revolution in the institutions and manners
of the nation.
Even on this interpretation, the freedom of the
individual person in Canada, with a Constitution
similar in principle to that of the United Kingdom,
is prior to the exigencies of the community.
In fact, where group rights are, exceptionally,
given priority, the Canadian Constitution so pro
vides specifically. Education rights possessed by
"any Class of Persons ... in the Province at the
Union" are maintained by section 93 of the Con
stitution Act, 1867 and by section 29 of the Con
stitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)]. Language rights are
protected by section 133 of the 1867 Act and
under sections 16-22 of the 1982 Act. In the latter
Act affirmative action programs are protected by
section 15 and minority language education rights
by section 23. The Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)] is itself a fundamental affirmation of
the rights and freedoms of the individual person.
In sum, in the absence of legal provisions to the
contrary, the interests of individual persons will be
deemed to have precedence over collective rights.
In the absence of law to the contrary, this must be
as true of Indian Canadians as of others.
The appellants' final argument was that the
Indian Act must be interpreted in the light of the
preference of Indian culture for group rights.
Unfortunately for this contention, there is no evi
dence in the record to establish it or indeed with
respect to Indian culture at all, and it is not a
matter of which a court could simply take judicial
notice.
Finally, it is highly material that the valid con
cerns of the Indian community against adverse
land use are well protected by its powers under
paragraph 81(g). The fact that the Band council
did not choose to exercise its zoning powers and
probably cannot now do so retroactively is no
reason to create a broader alternative right.
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.