Canadian Pacific Ltd. v. Matsqui Indian Band
A-391-96
Décary J.A.
2/7/98
31 pp.
Appeals from order setting aside property tax assessments as outside taxing jurisdiction of respective Indian Bands ([1996] 3 F.C. 373)-CN holding provincial certificates of indefeasible title to lands based on letters patent issued by Crown in right of Canada-Letters patent issued after Governor in Council approving surrenders of lands or authorizing compulsory takings of lands by orders under Indian Act-Band Council's approval sought, obtained in each compulsory taking-Indian Act, s. 83(1)(a) permitting band councils to make by-laws for taxation of land in the reserve-Railway companies challenging validity of property tax assessment notices issued on behalf of various Indian Bands in respect of lands held by companies comprising railway roadbed, station grounds, other lands-Whether land at issue "in the reserve"-Emphasis on what it was, in context of dealings taken as whole, Bands, Crown truly intending to achieve at time-Concepts of fee simple and easement rejected-Court interested in "purpose of the dealing"-Where surrender at issue, Court must determine whether nature of surrender, context in which made, make it clear Band's true intention to part with impugned lands on absolute basis-Where compulsory taking, Court must satisfy itself Crown's intention to extinguish Indian interest in portion clear and plain-When Band's approval sought, obtained prior to taking, Court must be satisfied extent of extinguishment agreed to properly understood by Band-Little weight given to certificates of indefeasible title as evidence of intention at time of takings because issued after fact by provincial authorities-Letters patent given weight because containing some details (such as price paid) completing orders in council and reflecting discussions carried on, agreements reached-To determine nature, extent of railway company's interest in reserve lands, resort had to language of statutes, agreements between original parties, subsequent actions, declarations of parties-As result of 1988 amendments to s. 83(1)(a), surrendered lands remained in reserve where surrender akin to lease or "other limited forms of surrenders, such as right of way", and remained beyond reserve where surrender akin to sale or "other forms of permanent surrenders such as exchange or gift"-1988 amendments dealing only with surrenders made under ss. 37, 38-Not dealing with compulsory takings made pursuant to s. 35-No reference anywhere to possible taxation by Indian bands of railway lands taken by Crown, held by railway companies-Main concern to ensure local government powers of band councils extended to "leased lands"-As Indian bands may not for all practical purposes "effectively govern" tracts of land taken, used by railway companies, had not contemplated in 1988 possibility of exercising with respect to these lands local government powers, including power of taxation-Clear and plain Indian bands not truly expecting new tax regime to allow them to tax railway lands-As to surrendered lands, "true intention" of parties clearly to surrender lands to Crown for purposes of sale to CN-Words used, price paid, permanent nature of railway for construction of which surrender made, evidencing intention to part with railway lands on absolute basis-Although CN applied for right of way, expression "right of way" in context in which used, merely described land taken, not qualifying interest in land surrendered-Expression used to define precisely what land taken; not to describe what right in land intended to be given up by Band-Used in context of outright sale of land-Indian Act, s. 35 also supporting finding what was being considered by Crown, Band, CN more in nature of sale-Different status must be accorded in law to "rights of way" requiring exclusive right to use, occupy reserve lands, such as railways, and to "rights of way" where exclusive use of lands not required, such as utilities-Right of way herein clearly in former category-In surrendering lands, Band fully understood would no longer use, occupy that portion of reserve-Even though lands compulsorily taken rather than surrendered, no doubt, when one looks at statutory instruments, documentary evidence, end result understood by all parties to be same as that of surrenders-Bands knew, understood, accepted would no longer have "use and benefit" of lands surrendered or taken away for construction of railway; that these lands no longer part of reserve; that for all practical purposes could no longer effectively exercise local government powers over lands and that they could no longer make by-laws, including taxation, applicable to these lands-Appeals dismissed-Indian Act, R.S.C., 1985, c. I-5, ss. 35, 37 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 2), 38 (as am. idem), 83(1)(a) (as am. idem, s. 10).