Date: 20060926
Dockets: A-396-05/A-411-05
Citation: 2006 FCA
316
CORAM: LINDEN J.A.
NADON
J.A.
SEXTON
J.A.
BETWEEN:
GERALDINE M. WILLISTON
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
AS REPRESENTED BY THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
and
THE CHIPPEWAS OF RAMA INDIAN BAND
(aka THE CHIPPEWAS OF MNJIKANING FIRST
NATION)
Respondents
Heard at Toronto, Ontario, on September
26, 2006.
Judgment delivered from the
Bench at Toronto,
Ontario, on September
26, 2006.
REASONS FOR JUDGMENT OF THE COURT BY:
SEXTON J.A.
Date: 20060926
Dockets: A-396-05/A-411-05
Citation: 2006 FCA 316
CORAM: LINDEN J.A.
NADON J.A.
SEXTON
J.A.
BETWEEN:
GERALDINE M.
WILLISTON
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
AS REPRESENTED BY THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
and
THE CHIPPEWAS OF RAMA INDIAN BAND
(aka THE CHIPPEWAS OF MNJIKANING FIRST
NATION)
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on September 26,
2006)
SEXTON J.A.
[1]
This
is an appeal from the decision of Layden-Stevenson J. of the Federal Court in Williston
v. Canada (Minister of
Indian Affairs and Northern Development), 2005 FC 829.
Layden-Stevenson J. dismissed an action by Geraldine M. Williston (the
“Appellant”), in which she sought a declaration that Her Majesty the Queen (the
“Crown”) and the Chippewas of Rama Indian Band (the “Band”) were required to
renew her lease.
[2]
The
Appellant held a leasehold interest in a portion of the Band’s reserve lands (the
“Moonlight Bay Lands”) that had been surrendered otherwise than absolutely for
the purpose of being leased out by the Crown. The lease expired on March 31,
2002. Before Layden-Stevenson J., the Appellant raised two sets of claims.
First, she claimed proprietary estoppel and an order or declaration that her
lease be renewed for not less than twenty years. Secondly, she asserted a claim
as a public interest litigant seeking various orders and declarations intended
to set aside the decision of the Chief and Councillors of the Band not to renew
the leases of the Moonlight Bay Lands.
[3]
In
dismissing the action, Layden-Stevenson J. held that the elements of
proprietary estoppel were not met, that the Appellant’s claim as a public
interest litigant should have been brought by way of an application for
judicial review, and that even if brought in the proper form, the public
interest claim would have been dismissed.
[4]
In
this court, the Appellant argues that Layden-Stevenson J. failed to properly
apply the test for proprietary estoppel and that pursuant to subsection 53(3)
of the Indian Act, R.S.C. 1985, c. I-5 she is entitled to a declaration
that the Chief and Councillors and the Band of which they are members are
prohibited from using, occupying and taking possession of the lands. The
Appellant does not seek to overturn the decision of the Ministry to delegate
the power to manage the lands.
[5]
With
respect to the issue of proprietary estoppel, we are of the view that Layden-Stevenson
J. identified the correct test for proprietary estoppel and she made no error
in applying that test to the facts. The Appellant’s husband, who acted as agent
for the Appellant, was told prior to his wife’s purchase of the lands that the
lease would not automatically be renewed and that the decision as to the
renewal of a lease was a business proposition. Further, at the time of entry
into the lease, the Appellant requested an extension of the lease for 12 years
beyond its term. This request was refused.
[6]
It
appears to us that the Band and the Crown were simply preserving their options
as to what decision would be taken at the expiry of the Appellant’s lease as to
whether the lands would be leased and to whom. There does not appear to be any
evidence that the Respondents misled the Appellant in any way or resiled from
any position previously taken. The Appellant’s husband, a lawyer, was told
that for the Band, leasing was a business proposition. It was not reasonable for
the Appellant to conclude that the only reasonable business proposition for the
Band was to renew the Appellant’s lease, nor can it be said that the conduct of
the Respondents would lead to a reasonable belief on the part of Appellant that
her lease would be renewed.
[7]
Without
a reasonable belief that the lease would be renewed, the Appellant could not
succeed on a claim for proprietary estoppel. We can find no palpable and
overriding error in the conclusion of Layden-Stevenson J. that the Appellant
neither held a reasonable belief nor was induced to hold such a belief by the Band
or the Crown.
Section 53 Indian
Act, R.S.C. 1985, c I-5
Transactions re
surrendered and designated lands
|
53. (1) The Minister
or a person appointed by the Minister for the purpose may, in accordance
with this Act and the terms of the absolute surrender or designation, as
the case may be,
(a) manage or sell absolutely
surrendered lands; or
(b) manage, lease or carry out any
other transaction affecting designated lands.
|
Grant where original purchaser dead
|
(2) Where the original
purchaser of surrendered lands is dead and the heir, assignee or devisee of
the original purchaser applies for a grant of the lands, the Minister may,
on receipt of proof in such manner as he directs and requires in support of
any claim for the grant and on being satisfied that the claim has been
equitably and justly established, allow the claim and authorize a grant to
issue accordingly.
|
Departmental employees
|
(3) No person who is
appointed pursuant to subsection (1) or who is an officer or a servant of
Her Majesty employed in the Department may, except with the approval of the
Governor in Council, acquire directly or indirectly any interest in
absolutely surrendered or designated lands.
R.S., 1985, c. I-5, s. 53; R.S., 1985, c.
17 (4th Supp.), s. 5.
|
|
Opérations concernant les terres cédées ou désignées
|
53. (1) Le ministre ou son délégué peut, conformément à la présente loi
et aux conditions de la cession à titre absolu ou de la désignation :
a) administrer ou vendre les terres cédées à titre absolu;
b) effectuer toute opération à l’égard des terres désignées et
notamment les administrer et les donner à bail.
|
Concession lorsque l’acquéreur initial est
décédé
|
(2) Lorsque
l’acquéreur initial de terres cédées est mort et que l’héritier,
cessionnaire ou légataire de l’acquéreur initial demande une concession des
terres, le ministre peut, sur réception d’une preuve d’après la manière
qu’il ordonne et exige à l’appui de toute demande visant cette concession
et lorsqu’il est convaincu que la demande a été établie de façon juste et
équitable, agréer la demande et autoriser la délivrance d’une concession en
conséquence.
|
Fonctionnaires du ministère
|
(3) La personne qui
est nommée à titre de délégué conformément au paragraphe (1), ou qui est un
fonctionnaire ou préposé de Sa Majesté à l’emploi du ministère, ne peut,
sauf approbation du gouverneur en conseil, acquérir directement ou
indirectement d’intérêts dans des terres cédées à titre absolu ou
désignées.
L.R. (1985), ch. I-5, art. 53; L.R. (1985),
ch. 17 (4e suppl.), art. 5.
|
|
[8]
With
respect to the claim by the Appellant for a declaration pursuant to Section
53(3) of the Indian Act, the trial judge found that there was no
evidence that the Band was using, occupying or taking possession of any of the
lands in question. We can find no palpable and overriding error in this conclusion.
The Appellant has not shown to us convincing evidence that there is a firm intention
of the Band to use the lands. These conclusions alone are sufficient to dispose
of this argument.
[9]
We
should point out, however, that the delegation itself, while it delegates to
the Chief and Councillors the right to manage the lands, prohibits the Chief
and Councillors from acquiring directly or indirectly any interest in the
lands. This is in conformity with subsection 53(3).
[10]
Furthermore, the purpose of subsection 53(3) of the Indian Act is to
protect Aboriginal peoples. It seeks to ensure that those appointed by the
Crown do not take advantage of their position for personal gain at the expense
of the relevant Indian Band. Subsection 53(3) cannot be used to preclude Indian
Bands from using, occupying or taking possession of their own lands.
[11]
In conclusion, we find no basis for interfering
with Layden-Stevenson J.’s decision. The appeal is dismissed with costs to the
Respondents.
“J. Edgar Sexton”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-396-05/A-411-05
(APPEAL FROM A DECISION OF MADAM JUSTICE
LAYDEN-STEVENSON, FEDERAL COURT DATED JUNE 10, 2005 IN FILE T-383-02)
STYLE OF CAUSE: GERALDINE
M. WILLISTON v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 26, 2006
REASONS FOR JUDGMENT OF THE COURT BY: (LINDEN, NADON,
SEXTON
JJ.A.)
DELIVERED FROM THE BENCH BY: SEXTON J.A.
APPEARANCES:
Ross Earnshaw
|
FOR THE APPELLANT
|
Shelley
Quinn
Awanish
Sinha
|
FOR THE RESPONDENT
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Gowling Lafleur
Henderson LLP
Kitchener, Ontario.
|
FOR THE
APPELLANT
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
McCarthy Tétrault
LLP
Toronto, Ontario
|
FOR THE
RESPONDENT
FOR THE RESPONDENT
|