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T-1745-77
Springbank Dehydration Ltd. and Seabird Island Farms Ltd. (Plaintiffs)
v.
Archie Charles, Harold Peters, Allan Peters and all other persons belonging to the Class of Band Members of the Seabird Island Band, Agassiz, of the Vancouver District in the Province of British Columbia and the Queen as represented by the Minister of Indian and Northern Affairs (Defend- ants)
Trial Division, Mahoney J.—Vancouver, May 2 and 3, 1977.
Crown Indian reservation lands Head lease expired Rights of sub-lessee re agreement of land transfer Applica tion for injunction Interest in subject lands necessary for injunction to issue Whether plaintiffs had an interest to support application Indian Act, R.S.C. 1970, c. I-6, s. 28.
The plaintiffs had been sub-lessees of lands belonging to the defendants. An agreement was made between the defendants and the plaintiffs respecting a land transfer between plaintiffs. The defendants subsequently ratified this agreement and applied for ministerial approval. When the head lease was terminated the plaintiff Springbank declined the Minister's offer of a new lease, as per a clause in the sub-lease. Although the Minister recommended the Band's granting a lease for the lands involved in the exchange, the Band then refused to grant the lease and decided to carry on business for themselves. The defendants were about to replace the plaintiffs' crop with a crop of beans.
Held, the application is dismissed. The plaintiffs' claim for injunctive relief is entirely premised on the existence of a subsisting legal interest in the Seabird lands, the Springbank lands and the Consolidated lands. The statement of claim does not disclose such an interest and accordingly the injunction should not be granted. As to the Springbank lands per se, the plaintiff Springbank's interest expired with the head lease on September 30, 1976, the Minister's offer not having been accepted. The interest in the Consolidated lands depends entire ly on the effect of the agreement and the subsequent resolution of the Band Council which agreement is void under section 28(1) of the Indian Act. The interest in Seabird lands depends entirely on the effect of the Minister's recommendation and the Minister's offer vis-à-vis the Seabird lands, being for one year only, might have had some effect by virtue of section 28(2) if it had been a permit.
APPLICATION. COUNSEL:
B. K. Atkinson and P. J. Jones for plaintiffs.
R. E. Eades for defendants, except the Queen.
SOLICITORS:
Jestley Kirstiuk, Vancouver, for plaintiffs.
Volrich, Eades, Wark & Mott, Vancouver, for defendants, except the Queen.
The following are the reasons for order ren dered in English by
MAHONEY J.: The facts alleged in the state ment of claim and in the affidavit supporting the plaintiffs' application for an interim injunction are not disputed by the defendants against whom the injunction is sought, i.e. all except Her Majesty. Her Majesty was not represented at the hearing of the application; the other defendants were.
The plaintiffs were, prior to September 30, 1976, sub-lessees from the same head lessee of certain lands contained in the Seabird Island Indian Reserve near Chilliwack, B.C. The plaintiff Springbank leased about 400 acres and the plain tiff Seabird about 200 acres, respectively hereafter called the Springbank and Seabird lands. The Springbank sub-lease contained a covenant by the Minister of Indian and Northern Affairs that, if the head lease were terminated, a new lease for the balance of the term of the sub-lease would be granted. Seabird and Springbank appear to share common management and, at least some, common ownership.
On June 26, 1976, Springbank and the defend ant Band entered into an agreement in writing whereby it was agreed that approximately 160 acres of the Seabird lands would be transferred to Springbank in exchange for approximately 180 acres of the Springbank lands, the resulting parcel to be leased to Springbank being called the Con solidated lands. The head lessee determined to surrender its lease effective September 30, 1976 and on September 2, in pursuance of his covenant, the Minister made an offer, open to September 29, to lease the original Springbank lands to Spring- bank. On September 28, the Council of the defendant Band, by resolution, ratified, approved and confirmed the said exchange and requested
the Minister to grant a lease of the Consolidated lands to Springbank. Relying on the agreement of June 26 and the resolution of September 28, Springbank did not accept the Minister's offer and, further, expended money on the Consolidated lands.
On March 22, 1977, the Minister advised Sea bird that he would recommend to the Band that a lease of the Seabird lands be granted to it. On April 5, he advised Seabird that the Band had decided not to grant such a lease. It appears that the Minister's consent to the Seabird sub-lease had never been obtained and, accordingly, no covenant like that respecting the Springbank lands existed in respect of the Seabird lands.
The Band has decided to go into business for itself on the lands and to replace the plaintiffs' crops of grass legumes with a crop of beans. On or about April 18, 1977, a contractor engaged by the Band moved onto the lands and commenced activi ties that will undoubtedly destroy the plaintiffs' crops thereon. The plaintiffs commenced an action in the Supreme Court of British Columbia and obtained an ex parte injunction prohibiting those activities which was dissolved May 2 upon that Court determining it had no jurisdiction to enter tain the action. On May 2 an action was com menced in this Court and the application for an injunction was heard.
As I indicated at the close of the hearing, I am satisfied that, if the statement of claim discloses that the plaintiffs now have an interest in any of the lands, the injunction ought to issue in respect thereof.
As to the Springbank lands per se, the plaintiff Springbank's interest would appear to have expired with the head lease on September 30, 1976, the Minister's offer not having been accept ed. The interest in the Consolidated lands depends entirely on the effect of the agreement of June 26, 1976 and the subsequent resolution of the Band Council. The interest in the Seabird lands depends entirely on the effect of the Minister's recommen dation.
The Indian Act' provides:
28. (1) Subject to subsection (2), a deed, lease, contract, instrument, document or agreement of any kind whether writ ten or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
(2) 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 agreement as to the Consolidated lands would appear to be clearly void by virtue of sub section 28(1). That matter has been dealt with too often to be open to any doubt in spite of apparent equities. 2 Likewise, the resolution can have no effect, the agreement being void.
The Minister's offer vis-à-vis the Seabird lands, being for one year only, might have had some effect by virtue of subsection 28(2) if it had been a permit but the offer is clearly expressed: "the Department is prepared to recommend to the Band Council to extend to your company a lease for one year...." That is not, in my view, a permit by any definition.
The plaintiffs' claim for injunctive relief is entirely premised on the existence of a subsisting legal interest in the Seabird lands, the Springbank lands and the Consolidated lands. The statement of claim does not disclose such an interest and accordingly the injunction should not be granted.
' R.S.C. 1970, c. I-6.
2 E.g. The King v. McMaster [1926] Ex.C.R. 68; Easter- brook v. The King [1931] S.C.R. 210 and The King v. Cowi- chan Agricultural Society [1950] Ex.C.R. 448.
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