Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119: Indians -- Reserves -- Permits to use Indian reserve lands -- Right-of-way -- Validity of permit granting public utility right-of-way for electric power transmission lines across Indian reserve -- Right-of-way granted for such period of time as required for purpose of transmission line -- Nature and duration of rights granted under permit -- Whether rights granted within scope of Indian Act -- Whether permit valid -- Indian Act,

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Indians -- Reserves -- Permits to use Indian reserve lands -- Right-of-way -- Validity of permit granting public utility right-of-way for electric power transmission lines across Indian reserve -- Right-of-way granted for such period of time as required for purpose of transmission line -- Nature and duration of rights granted under permit -- Whether rights granted within scope of s. 28(2) of Indian Act -- Whether permit valid -- Indian Act, R.S.C. 1952, c. 149, ss. 28(2), 37.

In 1959, the Crown, with the consent of the Opetchesaht band council, granted Hydro a right-of-way for an electric power transmission line across the band's reserve "for such period of time as the . . . right-of-way is required for the purpose of" a transmission line. The permit issued to Hydro, under s. 28(2) of the Indian Act, gave Hydro "the right to construct, operate and maintain an electric power transmission line", and the exclusive right to occupy the portions of the surface of the reserve where poles were erected, and that part of the air space where the wires were strung. The band retained the right to use and occupy the balance of the "right-of-way" area subject to specified restrictions. In 1992, the band applied to the Supreme Court of British Columbia under Rule 18A of the B.C. Rules of Court for a declaration that s. 28(2) did not authorize the grant of a right-of-way for electric power transmission lines over the reserve for an indefinite period of time. That section provides that "The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve." The court allowed the application but the Court of Appeal set aside the judgment, concluding that s. 28(2) allowed grants of interests for periods having no predetermined termination date.

Held (Cory and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Iacobucci and Major JJ.: The permit granted to Hydro under s. 28(2) of the Indian Act is valid. The interests conveyed by the permit are analogous to an easement over the band's reserve lands, subject to termination when there is no longer a requirement for the power transmission right-of-way. Hydro's rights in the land are not exclusive. The band shares use of the right-of-way but they cannot erect buildings on it or interfere with Hydro's easement. While the statutory easement was granted for an indeterminate period, this is a period whose end is readily ascertainable. The easement will terminate when it is no longer required for a transmission line. Since the word "required" is used in the permit, the expiry of the permit is not solely dependant on Hydro's will. Whether the line is required is a justiciable issue.

In view of the overall context of s. 28(2), a period within the meaning of that section can be measured either by dates or by events. The end point of a permit thus need not be defined in terms of a specific calendar date as long as it is ascertainable and does not constitute a grant in perpetuity. Here, the end point of the permit arises when the easement is no longer required for power transmission. Because the duration of the easement is a bounded and ascertainable event, that duration is a period.

As a general rule under s. 37 of the Indian Act, surrenders are required not only when the Indian band is releasing all its interest in the reserve forever, but also whenever any interest is given up for any duration of time. Section 37 must be read subject to other provisions in the Indian Act relating to land, however, including s. 28. Not only do these provisions demonstrate that there is a certain overlap between them and s. 37, but they also overlap each other. The proper question in this case is thus not whether the permit could have been granted under s. 37, but rather whether it was properly granted under s. 28(2). While s. 28(2) cannot apply any time a portion of the Indian interest in any portion of reserve land is permanently disposed of, Hydro was accorded limited rights of occupation and use for an indeterminate but determinable and ascertainable period of time. There was no permanent disposition of any Indian interest. Furthermore, the band and Hydro were obligated to share the rights of use and occupation of the land, with the limited exceptions of the area of ground giving support to the poles and the air space occupied by the poles. Consequently, the surrender requirement of s. 37 does not apply to the present permit and more importantly, no rights exceeding those authorized by s. 28(2) were granted. The indeterminate easement granted on the face of this permit is a disposition of a limited interest in land that does not last forever. The grant of limited indeterminate rights in reserve land is permissible under s. 28(2) as a question of law.

It is important that the band's interest be protected but the autonomy of the band in decision making affecting its land must also be promoted and respected. Depending on the nature of the rights granted, different levels of autonomy and protection are accorded by ss. 37 and 28(2). Section 37 applies where significant rights are being transferred and demonstrates a high degree of protection, in that the approval of the Governor in Council and the vote of all of the members of the band are required. Under s. 28(2), lesser dispositions are contemplated and the interest transferred must be temporary. The permit in this case did not violate the balance between autonomy and protection struck by the Indian Act. This is not a case where surrender was required. The band council gave its consent to the permit following protracted negotiations. No claim of unfairness or an uneven bargain in this proceeding for summary judgment was advanced by the band.

Per Cory and McLachlin JJ. (dissenting): Section 28(2) of the Indian Act cannot be used to convey a right-of-way on reserve land for "such period of time as [it] is required for the purpose of an electric power transmission line". The easement or right-of-way was granted for an indeterminate period and has the potential to continue in perpetuity. An interest in a band reserve land which possesses the potential to continue in perpetuity can only be removed from a band by surrender and alienation with the consent of the entire band membership under s. 37 of the Indian Act or by the formal process of expropriation under s. 35 of the Act.

A court should only be satisfied with the plain meaning of a statute where that meaning is clear and consistent with a purposive reading of the statute as a whole. In interpreting statutes relating to Indians, ambiguities and "doubtful expressions" should be resolved in favour of the Indians. This principle applies equally to cases in which third parties are involved. The phrase "any longer period" in s. 28(2) is ambiguous. Its meaning depends on its context. To resolve this ambiguity, the broader context within which s. 28(2) was enacted, a context which includes the history of the Indian Act, the principles it incorporates, the policy goals it was enacted to achieve, and its function in the overall scheme of the Act, must be considered.

A contextual interpretation of s. 28(2) indicates that the phrase "any longer period" was intended to deal with "things of a temporary nature", not indefinite alienations which had the potential to extend far into the unforseen future. Section 28 is concerned with the short-term, temporary use of the reserve by a person other than a band member. The phrase "any longer period" in s. 28(2), consistent with this interpretation, is best understood as a period defined in relatively short terms of months and years. This phrase relates to the earlier phrase "a period not exceeding one year", thus suggesting that what Parliament intended by "any longer period" was also a period capable of being expressed in finite calendar terms. An alienation which has the potential to go on as long as anyone can foresee falls outside the scope of s. 28(2). For purposes of guidance in other cases, commitments longer than the two-year mandate of band councils should not be transacted through s. 28(2).

This interpretation of s. 28(2) which confines it to short-term uses of Indian land fits perfectly with the other sections of the Indian Act relating to land and with the broader theme of inalienability of Indian reserve land that runs through the Act as a whole. It is also consistent with the policy of the Royal Proclamation, 1763 and the principle that the long-term alienation of interests in Indian lands may only be effected through surrender to the Crown and consent of the band membership as a whole under s. 37 of the Indian Act or by expropriation under s. 35.

Since s. 28(2) does not permit long-term, indefinite alienation of interests in reserve land, a declaration that the permit is void should be granted, but the operation of that declaration should be suspended for a period of two years to permit the parties and others in similar situations to renegotiate or make new arrangements.

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