Tsartlip Indian Band v. Canada ( Minister of Indian Affairs and Northern Development )
T-1737-97
Rouleau J.
2/7/98
18 pp.
Judicial review of Minister's decision to grant lease of part of reserve lands-Applicants seeking declaration Minister breaching fiduciary obligation owing to Tsartlip Indian Band when granted lease to Clydesdale Estate Holdings-Individual named respondents all Band members-Collectively holding certificates of possession for land in question-Also shareholders of Clydesdale Estate Holdings Ltd.-Requested Minister to issue lease in accordance with Indian Act, s. 58(3)-S. 58(3) permitting Minister to lease for benefit of any Indian, on application for that purpose, land of which Indian lawfully in possession without land being designated-During previous several months respondents occupying part of lands, living in manufactured homes on site pursuant to right of occupation-When s. 58(3) request communicated to it, Band Council reiterating opposition expressed at February 1996 meeting to development, requesting removal of existing homes-Band responding to preliminary environmental assessment screening report by restating opposition, requesting removal of homes-Reserve's sewer, water system linked to facilities owned by District of Central Saanich-Band's use of sewage system limited to 375 units-180 units connected-During meeting with respondents, Band Council acknowledging had little power to oppose development-As result of ongoing opposition, manufactured homes already connected to Reserve system disconnected-Situation creating additional delays before execution of lease by Minister who had to be satisfied with environmental assessment as well as other requirements pertaining to new development-In April 1997 Department of Indian Affairs and Northern Development finally granting lease pursuant to s. 58(3)-Application dismissed-No evidence applicants having clear intent to restrict, zone respondents' development before request made for Minister to issue lease-When respondents requested issuance of lease as valid holders of certificates of possession, no by-law even contemplated by Saanich Band Council-Only impediment to mandatory issuance environmental assessment eventually conducted, approved by Minister-Request for lease preceding Band Council's intent to enact zoning by-law by at least seven months-Applicants in effect asking Court to review merits of Minister's decision, determine whether properly weighing evidence before him regarding sewer, water services for development, made right decision in issuing lease-Court should not interfere unless established Minister exercised discretion based on irrelevant factors, in bad faith, failed to consider relevant facts or erred in law-No such error here-Boyer v. R., [1986] 2 F.C. 393 (C.A.) applied-S. 58(3) only governs when request by Indian in lawful possession of land-Nothing in legislation subjugating that right to another right of same type existing simultaneously in Band Council-Allotment of piece of land in reserve shifting right to use, benefit thereof from being collective right of Band to being individual, personalized right of locatee-Crown, when acting under s. 58(3) not under any fiduciary obligation to Band-When lease entered into pursuant to s. 58(3), no alienation contemplated, right to be transferred temporarily right to use belonging to individual Indian in possession, and no interest of Band can be affected-Minister cannot let extraneous consideration enter into exercise of discretion as would happen if considered anything other than benefit of Indian in lawful possession at whose request acting-Minister's duty not toward Band-Minister's decision pursuant to s. 58(3) to grant lease reasonably open to him in light of evidence-Applicants not establishing in doing so Minister committing reviewable error warranting judicial intervention-Indian Act, R.S.C., 1985, c. I-5, s. 58(3) (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 8).