NATIVE PEOPLES |
Lands |
Soowahlie Indian Band v. Canada (Attorney General)
A-656-01
2001 FCA 387, Rothstein J.A.
11/12/01
7 pp.
Appeal from dismissal of motion for interlocutory injunction enjoining Government of Canada from transferring portion of Canadian Forces base at Chilliwack to Canada Lands Company, non-agent Crown corporation devoted to developing, disposing of federal lands, on ground appellant not establishing irreparable harm--Appeal dismissed-- Appellants claiming irreparable harm based on historical connection to land, which will be lost if land disposed of-- Under Indian Act, s. 35, Crown empowered to expropriate Indian reserve land--That land reserve land not sufficient to preclude expropriation--Issue only one of proper compensation--Even if Crown wrongly disposing of reserve land, claim for breach of fiduciary duty and remedy damages--Remedy herein damages--Appellants demonstrating no special circumstances relating to land--Say require land to sustain themselves, but alleged historical connection unrelated to anticipated use--No evidence as to why particular land required having regard to anticipated use--Appellants not establishing irreparable harm--If disposition of land breach of fiduciary duty, Court may order damages, or other suitable remedy--Balance of convenience favouring respondent--Appellants alleging disposition will upset neighbourly relationship with citizens of Chilliwack, but City of Chilliwack opposing injunction application--Alleging disposition would undermine integrity of judicial review application as would render decision moot, but no steps taken to expedite proceedings--Saying disposition should await Supreme Court of Canada decision in unrelated case, but uncertain when, whether S.C.C. would resolve matter-- Process, outcome, bearing of land claims negotiations on present litigation unclear--Considerations weighing in favour of respondent including important public uses for land, including school, library, residential construction which would increase City's tax base--Also City would receive payment for development of off-site services, land would be integrated into community--Also relevant that appellants not providing undertaking as to damages--Indian Act, R.S.C., 1985, c. I-5, s. 35.