T-2330-75
Raymond Cardinal, Chief, and Edward Morin,
Charles Cowan, Romeo Morin, Alex Peacock and
Alphonse Thomas, Counsellors of the Enoch Band
of the Stony Plain Indians, for themselves and on
behalf of the Enoch Band of the Stony Plain
Indians Reserve No. 135 and The Enoch Band of
the Stony Plain Indians Reserve No. 135
(Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, February 5
and 14, 1979.
Indians — Surrender of Indian lands — Majority of votes
cast assenting to surrender, but assenting votes not a majority
of all eligible votes — Band's assent only certified by affidavit
by one chief or principal man — Whether or not Indian Act
requiring assent of majority of those voting or of those eligible
to vote — Whether or not certification of more than one chief
or principal man required — Indian Act, R.S.C. 1906, c. 81,
ss. 49(1),(3).
In an action dealing with the surrender of Indian lands, the
Federal Court of Appeal directed that two questions be tried as
a preliminary issue in the matter. The first question raises the
issue whether subsection 49(1) of the Indian Act required the
assent of a majority of the meeting or of a majority of those
entitled to vote. In May 1908, at the time of the Band's vote
dealing with the surrender, there were between thirty and
thirty-three enfranchised members, with fourteen, of the
twenty-six members who voted, assenting. The second question
raises the issue of whether subsection 49(3) required certifica
tion by more than one of the chiefs or principal men. Only one
chief or principal man certified by affidavit that the release and
surrender had been assented to by the Band.
Held, the action is dismissed. The council or meeting
required by subsection 49(1) to be held was a council or
meeting of the Band. It was not a council or meeting of the
adult males, per se, but a meeting of the Band of which the
adult males were the enfranchised members. At common law,
where an unincorporated body consisted of an indefinite
number of persons, those who actually voted were held to be the
necessary quorum and the act of the majority of those was the
act of the body. The consent required under subsection 49(1)
was the consent of the Band, not the consent of the adult males,
per se. The adult males were the enfranchised members of the
Band and, while they were not numerous in 1908, their number
was indefinite rather than definite in terms of the common law.
A majority of their number attended the meeting or council;
that was clearly a quorum. A majority of the quorum approved
the surrender. The act of the majority was the act of the Band.
The surrender, therefore, was not invalid because, while assent
ed to by a majority of the adult males at the council or meeting,
it was not assented to by a majority of all the adult males of the
Band. The second question, too, must be answered affirmative-
ly. Recourse to the French version disposes entirely of any
question of ambiguity in the statute: the expression "some of
the chiefs or principal men" must be interpreted by the use of
the word "some" as meaning "one or other of a number ... .
ACTION.
COUNSEL:
A. M. Harradence, Q. C. and B. G. Nemetz for
plaintiffs.
L. P. Chambers and P. Barnard for
defendant.
SOLICITORS:
Harradence Moore, Calgary, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: By order, made on consent
November 9, 1978, the Federal Court of Appeal
directed that the following questions be tried as a
preliminary issue in this matter, namely:
1. whether the surrender of the 13th of May 1908 by the
Enoch Band was invalid on the ground, whilst those persons
who in the record of poll are listed as being in favour of the
surrender, constituted a majority of those persons who are
known to have voted, nevertheless they did not constitute a
majority of the male members of the Enoch Band of the full
age of twenty-one years according to subsection 1 of section 49
of the Indian Act, R.S.C. 1906, c. 49.
2. whether the certification in the Affidavit dated May 13,
1908, by one principal man of the Enoch Band that the release
and surrender had been assented to by the Band constituted
sufficient compliance with subsection 3 of section 49 of the
Indian Act, R.S.C. 1906, c. 49.
The reference to "c. 49" in the questions set forth
in the notice of motion would appear to have been
an error. The Indian Act was chapter 81 of the
Revised Statutes of Canada, 1906.
The parties have filed a statement of agreed facts
whereof paragraph 3 is pertinent to those
questions.
3. For the purpose of such trial the parties agree on the
following facts:
(a) As of May 8, 1908, there were between 30 and 33 male
members of the Enoch band of Indians of the full age of 21
years and who were entitled to vote on the surrender of lands
forming part of their reserve, within the meaning of section
49(1) of the Indian Act, R.S.C. 1906, c. 81.
(b) The number of male members of the Enoch band of
Indians of the full age of 21 years who either assented to the
surrender of the subject lands or who were recorded as being
in opposition thereto was 26.
(c) The number of male members of the Enoch Band of
Indians of the full age of 21 years who assented to the said
surrender on May 13, 1908 and who were so entitled to vote
pursuant to section 49(1) of the Indian Act, R.S.C. 1906, c.
81, were 14 in number.
(d) There was executed subsequent to such vote an affidavit
by one principal man of the Enoch band of Indians attesting
to the surrender, pursuant to section 49(1) of the Indian Act,
R.S.C. 1906, c. 81. Hereunto annexed and marked as Exhib
its "A" and "B" are photocopies of the said surrender
instrument and attesting affidavit, respectively.
Paragraph 1 refers to the order of the Federal
Court of Appeal and paragraph 2 establishes com
pliance with a condition of that order. Paragraphs
4 and 5 establish that, although the parties are not
in agreement that the meeting of May 13, 1908,
was, in fact, held or that the vote to surrender the
lands was, in fact, taken at such meeting, the
Court is to assume that there was such a meeting
and vote in its determination of the said questions.
Copies of the instrument of surrender and the
affidavit referred to in the second question are
attached, as Exhibits "A" and "B" respectively, to
the statement of agreed facts. The only other
evidence before the Court is a copy of chapter 18
of the Statutes of Canada, 1876, certified by the
Clerk of the Parliaments in compliance with sec
tion 24 of the Canada Evidence Act.' The latter
document was introduced to establish that certain
punctuation appearing in subsection 49(1) of the
Indian Act, R.S.C. 1906, appeared in the provision
as originally enacted by Parliament: subsection
26(1) of the 1876 Act [c. 18].
' R.S.C. 1970, c. E-10.
Section 49 of the Indian Act, R.S.C. 1906, c. 81,
read:
49. Except as in this Part otherwise provided, no release or
surrender of a reserve, or a portion of a reserve, held for the use
of the Indians of any band, or of any individual Indian, shall be
valid or binding, unless the release or surrender shall be
assented to by a majority of the male members of the band of
the full age of twenty-one years, at a meeting or council thereof
summoned for that purpose, according to the rules of the band,
and held in the presence of the Superintendent General, or of
an officer duly authorized to attend such council, by the
Governor in Council or by the Superintendent General.
2. No Indian shall be entitled to vote or be present at such
council, unless he habitually resides on or near, and is interest
ed in the reserve in question.
3. The fact that such release or surrender has been assented
to by the band at such council or meeting shall be certified on
oath by the Superintendent General, or by the officer author
ized by him to attend such council or meeting, and by some of
the chiefs or principal men present thereat and entitled to vote,
before some judge of a superior, county or district court,
stipendiary magistrate or justice of the peace, or, in the case of
reserves in the province of Manitoba, Saskatchewan or Alberta,
or the Territories, before the Indian commissioner, and in the
case of reserves in British Columbia, before the visiting Indian
Superintendent for British Columbia, or, in either case, before
some other person or officer specially thereunto authorized by
the Governor in Council.
4. When such assent has been so certified, as aforesaid, such
release or surrender shall be submitted to the Governor in
Council for acceptance or refusal.
The emphasis in subsection 49(3) is mine.
The first question raises the issue whether sub
section 49(1) required the assent of a majority of
the meeting or of a majority of those entitled to
vote. The second raises the issue whether subsec
tion 49(3) required certification by more than one
of the chiefs or principal men.
The second question, which depends on the
interpretation of the expression "some of the chiefs
or principal men" in the subsection may more
readily be answered and it is convenient to deal
with it first. The word "some" as used in the
expression is an indefinite pronoun. The Oxford
English Dictionary devotes some 24 column inches
to its various meanings. It is used in both singular
and plural senses. In its pertinent singular use it
means "One or other of a number ...", while in its
plural use it means "An indefinite or unspecified
(but not large) number ...", of persons or animals
or things.
Thus, in the English version of subsection 49(3),
it would appear open to interpret the expression
"some of the chiefs or principal men" as meaning
some one or other of them and also open to
interpret it as meaning a few of them. The result
would be dictated by the appropriate rules of
statutory interpretation.
The French version does not, however, admit of
the same ambiguity.
49....
3. Le fait que la cession ou l'abandon a été consenti par la
bande à ce conseil ou assemblée doit être attesté sous serment,
par le surintendant général ou par le fonctionnaire autorisé par
lui à assister à ce conseil ou assemblée, et par l'un des chefs ou
des anciens qui y a assisté et y a droit de vote, devant un juge
d'une cour supérieure, cour de comté ou de district, ou devant
un magistrat stipendiaire ou un juge de paix, ou, dans le cas de
réserves dans les provinces du Manitoba, de la Saskatchewan
ou d'Alberta ou dans les territoires, devant le commissaire des
sauvages, et dans le cas de réserves dans la Colombie-Britan-
nique, devant le surintendant visiteur des sauvages de la Colom-
bie-Britannique, ou, dans l'un ou dans l'autre cas, devant
quelque autre personne ou employé à ce spécialement autorisé
par le gouverneur en conseil.
Again, the emphasis is mine.
We are considering here a statute enacted long
before the advent of the Official Languages Act. 2
Then, as now, the French version of an Act of
Parliament went through the same process of
enactment in the Senate and House of Commons
and was given Royal Assent with the English. The
French version is as much the statute of the Parlia
ment of Canada as is the English version and is to
be utilized in the resolution of any latent ambigui
ty in the English version. 3
In this instance, recourse to the French version
disposes entirely of any question of ambiguity in
the statute and it is unnecessary to deal with the
plaintiffs' arguments to the contrary, persuasive as
they might be if the English version stood alone.
The second question must be answered in the
affirmative. The certification by one principal man
2 R.S.C. 1970, c. O-2.
3 The King v. Dubois [1935] S.C.R. 378. Composers,
Authors and Publishers Association of Canada, Limited v.
Western Fair Association [1951] S.C.R. 596.
was sufficient. In light of that answer it is unneces
sary to deal with the further question urged by the
plaintiffs and which the defendant argued was
outside the terms of reference of the order of the
Federal Court of Appeal: namely, whether the
requirement of subsection 49(3) was imperative or
directory.
Returning to the first question, the provision of
subsection 49(1) requiring interpretation, stripped
of extraneous verbiage, is
... no ... surrender of ... a portion of a reserve ... shall be
valid or binding, unless ... assented to by a majority of the
male members of the band of the full age of twenty-one years,
at a meeting or council thereof summoned for that purpose ....
It is the plaintiffs' position that this required the
assent of a majority of the male members of the
Band of the full age of twenty-one years while the
defendant's position is that it required the assent
of a majority of the meeting or council. I will,
sometimes, hereinafter use the term "adult males"
as synonymous with "male members of the band of
the full age of twenty-one years".
The plaintiffs' first argument turns on the
comma that follows the word "years". That is said
to make it clear that the assent required was that
of a majority of the adult males and that the words
following the comma indicate where or under what
circumstances the assent was to be given, that is:
"at a meeting or council thereof summoned for
that purpose". I shall return to the word "thereof".
There appears to be no binding authority on the
question whether regard can be had to punctuation
in the interpretation of a statute. The reason that
it could not, in the interpretation of earlier English
statutes, was stated by Lord Reid in I.R.C. v.
Hinchy. 4
4 [1960] A.C. 748 at 765.
But before 1850 there was no punctuation in the manuscript
copy of an Act which received the Royal Assent, and it does not
appear that the printers had any statutory authority to insert
punctuation thereafter. So even if punctuation in more modern
Acts can be looked at (which is very doubtful), I do not think
that one can have any regard to punctuation in older Acts ....
With the greatest of respect for Lord Reid's
doubts, I find the logic of Lord Jamieson in the
Scottish case Alexander v. Mackenzie to be
compelling. 5
Bills when introduced in Parliament have punctuation, and
without such would be unintelligible to the legislators, who pass
them into law as punctuated. There appears to me no valid
reason why regard should be denied to punctuation in constru
ing a statute so passed....
Punctuation cannot render a single interpretation
so certainly correct as to obviate the need to refer
to the entire enactment in the interpretation of one
of its provisions but it is certainly to be considered.
The Supreme Court of Canada has again, very
recently, emphasized the importance of consider
ing the legislative scheme of which the particular
provision forms part. 6
One of the most important rules to be followed in the
interpretation of a particular provision of a statute was
expressed as follows by Lord Herschell in Colquhoun v. Brooks
((1889), 14 A.C. 493), at p. 506:
It is beyond dispute, too, that we are entitled and indeed
bound when construing the terms of any provision found in a
statute to consider any other parts of the Act which throw
light upon the intention of the legislature and which may
serve to shew that the particular provision ought not to be
construed as it would be if considered alone and apart from
the rest of the Act.
And, in Canada Sugar Refining Company, Limited v. The
Queen ([1898] A.C. 735), Lord Davey said at p. 741:
... Every clause of a statute should be construed with
reference to the context and the other clauses of the Act, so
as, so far as possible, to make a consistent enactment of the
whole statute or series of statutes relating to the
subject-matter.
The following definitions contained in the Act
are pertinent:
2. In this Act, unless the context otherwise requires,-
5 [1947] J.C. 155 at 166.
6 The Queen v. Compagnie Immobilière BCN Limitée [1979]
1 S.C.R. 865 at p. 872.
(d) `band' means any tribe, band or body of Indians who
own or are interested in a reserve or in Indian lands in
common, of which the legal title is vested in the Crown, or
who share alike in the distribution of any annuities or
interest moneys for which the Government of Canada is
responsible; and, when action is being taken by the band as
such, means the band in council;
(/) `Indian' means
(i) any male person of Indian blood reputed to belong to a
particular band,
(ii) any child of such person,
(iii) any woman who is or was lawfully married to such
person;
(i) `reserve' means any tract or tracts of land set apart by
treaty or otherwise for the use or benefit of or granted to a
particular band of Indians, of which the legal title is in the
Crown, and which remains so set apart and has not been
surrendered to the Crown, and includes all the trees, wood,
timber, soil, stone, minerals, metals and other valuables
thereon or therein;
We are not concerned here with "Indian lands"
nor "annuities or interest moneys" but only with a
reserve.
By definition, an Indian was a male reputed to
belong to a band. By definition, that Indian's wife
or widow and his children were also Indians. By
definition, a band was a body of Indians, not only
adult male Indians, who owned or were interested
in a reserve. By definition, a reserve was land set
apart for the band, not just some of the band.
Subject to section 24, which contemplated land
in possession of an Indian prior to its selection as
part of a reserve, the only way an individual Indian
could claim lawful possession of land in a reserve
was under section 21. He had to be "located for
the same by the band, or council of the band, with
the approval of the Superintendent General" or he
had to get a certificate of occupancy from the
Indian commissioner. The certificate of occupancy
was intended as evidence of entitlement to posses
sion pending location. Location resulted in a title
that could be transferred or devolve subject to the
provisions of the Act. Sections 26 and 27 contem
plated minor children and widows acquiring, by
devolution, interests in locations.
The Act is replete with references to "reserve
for Indians" and "reserves for Indians". Nowhere
is there a reference to a reserve or reserves for
male Indians of the full age of twenty-one years.
The scheme of the Act would appear to be that,
aside from reserve lands in the possession of an
individual Indian, lands in a reserve were held for
the benefit of the entire band, that is to say: all of
its members including women and children and not
just for its adult male members. That being so, the
underlying proposition that subsection 49(1) was
particularly framed to assure a majority of those
having an interest in the property approving of its
alienation is not supported by the legislative
scheme taken as a whole.
The Act did not invest bands with a great deal
of control over their own affairs but there are a
number of provisions calling for band consent.
Section 12 called for "the consent of the band" to
an illegitimate child's membership. Section 17
required "a majority vote of a band, or the council
of a band" for the admission to membership of a
member of another band. Section 90 provided that
the Governor in Council might, "with the consent
of a band" authorize certain capital expenditures.
Sections 97 and 98 authorized the "chief or chiefs
of any band in council" to make rules and regula
tions on a number of matters ranging from the
religious denomination of the resident school
teacher to the repression of noxious weeds. I will
simply note sections 122 and 123, which had no
application to bands in Alberta but which did call
for the "consent of the band" and for a "band, at a
council" to decide. I do not think that particular
provisions of Part II of the Act are helpful in
seeking to ascertain whether the council or meet
ing required by subsection 49(1) was a council or
meeting of the adult males, per se, or of the band,
the adult males being its only enfranchised
members.
Sections 166 and 167 provided:
166. At the election of a chief or chiefs, or at the granting of
any ordinary consent required of a band under this Part, those
entitled to vote at the council or meeting thereof shall be the
male members of the band, of the full age of twenty-one years;
and the vote of a majority of such members, at a council or
meeting of the band summoned according to its rules, and held
in the presence of the Superintendent General, or of an agent
acting under his instructions, shall be sufficient to determine
such election or grant such consent.
167. If any band has a council of chiefs or councillors, any
ordinary consent required of the band may be granted by a vote
of a majority of such chiefs or councillors, at a council sum
moned according to its rules, and held in the presence of the
Superintendent General or his agent.
By the terms of section 166, the election of a chief
or chiefs and, by the terms of subsection 49(1), an
assent to surrender of reserve lands were not "ordi-
nary consents" to be given by a council of chiefs,
rather than the band, under section 167. The
expression "council or meeting thereof" appeared
in both section 166 and subsection 49(1). In sec
tion 166, the word "thereof' plainly referred to
"band" and not to "male members of the band of
the full age of twenty-one years" since it occurred
after "band" but before the latter expression. If
subsection 49(1) had stood alone, "thereof' might
be found to have referred either to the band or to
the adult males; however, subsection 49(3) con
tained the expression "assented to by the band at
such council or meeting", referring to the council
or meeting required by subsection 49(1).
For all the foregoing reasons, I conclude that
the council or meeting required by subsection
49(1) to be held was a council or meeting of the
band. It was not a council or meeting of the adult
males, per se, but a meeting of the band of which
the adult males were the enfranchised members.
Although forewarned that the assumption may be
challenged in later proceedings, I am obliged to
assume that that meeting was duly called and held.
What is now section 21 of the Interpretation
Act' was not in force in 1908. There is a body of
common law on the question of quorums and
majorities.
With reference to corporations whose charters
contained no particular provision to the contrary,
the common law distinguished between those com
posed of a definite number of persons and those
composed of an indefinite number of persons.
Where the number was definite, as in a church
corporation composed of a dean and twelve
canons, a majority of that number constituted a
quorum to act and the act of a majority of that
quorum was the act of the corporation. 8 However,
where the number of members was indefinite, as in
the case of a municipal corporation consisting of a
mayor, twelve aldermen and an indefinite number
of burgesses, those assembled even though they did
not constitute a majority of all the burgesses,
aldermen and the mayor, constituted a quorum to
act and the act of a majority of those assembled
was the act of the corporation. 8 In the case of
unincorporated bodies, where a public duty was
delegated to certain named persons, all had to join
in trying to reach the decision but the act of the
majority was the act of the body. i° However,
where the unincorporated body consisted of an
indefinite number of persons, as the general con
ference of a church, those who actually voted were
held to be the necessary quorum and the act of the
required majority of those was the act of the
body. " In the result, the common law treated
abstainers as neither favouring nor opposing and
precluded them, by their mere abstention, from
frustrating the will of the body, corporate or other
wise, as expressed by a majority of those who
cared enough, one way or another, to take part in
the process.
' R.S.C. 1970, c. I-23.
8 Dr. Hascard v. Dr. Somany (1663) 89 E.R. 380.
9 R. v. Varlo, Mayor of Portsmouth (1775) 98 E.R. 1068.
10 Grindley v. Barker (1798) 126 E.R. 875.
" Itter v. Howe (1897) 23 Ont.App. 256.
In one class of case, the common law may
require that the quorum of an unincorporated
body of an indefinite number of persons be a
majority of that number rather than only those
who actually voted. That is in the area of collective
bargaining where the will of "a majority of the
employees" is required to be ascertained. 12
I have given very careful consideration to the
underlying policy to secure Indians in the posses
sion of their lands. That policy is evident in The
Royal Proclamation of 1763. 13 It is evident in the
various Indian Acts that have been adopted by
Parliament. The plaintiffs argue that, in view of
that policy, the preferred interpretation of subsec
tion 49(1) ought to be that which would render
alienation by the Indians most difficult. The fact is
that the policy did contemplate that possession of
their lands could pass from the Indians; The Royal
Proclamation made provision for that and so have
successive Indian Acts. Nothing in the policy
impels me to the conclusion that section 49 is to be
construed differently than it otherwise would be by
application to it of the accepted rules of construc
tion which I have applied as I understand them to
be.
The consent required under subsection 49(1)
was the consent of the Enoch Band, not the con
sent of the adult males, per se. The adult males
were the enfranchised members of the Band and,
while they were not numerous in 1908, their
number was indefinite rather than definite in
terms of the common law. A majority of their
number attended the meeting or council of May
13, 1908. That was clearly a quorum; perhaps
fewer than a majority would also have been but I
do not have to decide that. A majority of that
quorum approved the surrender. The act of that
majority was the act of the Band. The, first ques
tion, being posed in the negative, must be
answered in the negative. The surrender was not
invalid because, while assented to by a majority of
the adult males at the council or meeting, it was
12 Glass Bottle Blowers' Association v. Dominion Glass Co.
Ltd. [1943] O.W.N. 652.
13 R.S.C. 1970, Appendix II, No. 1.
not assented to by a majority of all the adult males
of the Enoch Band.
Both parties asked for costs; however, no argu
ment was directed to what an appropriate order
might be in the circumstances. In the result, the
defendant is entitled to costs and may, within
thirty days, move under Rules 324 and 344 for an
order as to costs,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.