A-383-79
Cécile Pronovost (Appellant)
v.
Minister of Indian Affairs and Northern Develop
ment (Respondent)
and
John Charles, Linda Gadoua Chenier and
Mohawk Council of Kanawake (Mis -en-cause)
Court of Appeal, Pratte, Marceau and MacGuigan
JJ.—Montreal, November 26 and 29, 1984.
Indians — Disposal of land in reserve by will — Whether
Minister erred in vacating devise pursuant to Act s. 46(1)(d) as
contrary to interest of band or to Indian Act — Nature of
individual Indian's right on reserve land — Extent of Indian
testamentary freedom re reserve land — Indian Act, R.S.C.
1970, c. 1-6, ss. 18, 20, 24, 42, 43, 45(1),(3), 46, 47 (as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 64), 49, 50(2),(3) Canadi-
an Charter of Rights and Freedoms, being Part 1 of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 15.
The appellant's father, an Indian, died while legally in
possession of a lot on the Caughnawaga Indian reserve. By his
will he bequeathed the lot to his two daughters, it being
understood that his wife should have the right of occupancy as
long as she lives. The will was duly approved pursuant to
subsection 45(3) of the Act. Four years later, the Minister of
Indian Affairs and Northern Development vacated that devise
pursuant to paragraph 46(1)(d) of the Act on the grounds that
it was contrary to both the interest of the band and the Act.
This is an appeal from that decision pursuant to section 47.
The respondent maintains that a devise with substitution of a
reserve lot is contrary to the Indian Act because it limits the
testamentary freedom of the institute over the substituted
property, because an Indian's right over a reserve lot is for his
lifetime only and because the existence of a substitution is
inconsistent with the right of the Minister to approve the
transfer of reserve lots.
Held, the appeal should be allowed.
Per Pratte J.: It is doubtful that the relevant clause should be
interpreted as creating a devise with a charge, as proposed by
the appellant. However, it is not necessary to decide this point,
because even if it is a devise with a substitution, as argued by
the respondent, there is nothing in this contrary to the letter or
spirit of the Indian Act. Indians enjoy the same testamentary
rights as others and must therefore be recognized as having the
same right as others to make gifts accompanied by a
substitution.
While the right of an Indian over reserve property is, in a
sense, a life estate, this is not absolutely true since it is to some
extent, under the Act, subject to testamentary transfer. It is
therefore not precluded from being also the subject of a
substitution.
Finally, the devise herein is not inconsistent with the require
ment that such transfers be approved by the Minister. The will
was duly approved or probated. Then, it became incumbent
upon the wife to obtain approval in the form of a Certificate of
Possession and finally, when the substitution began, upon the
two daughters. The existence of a substitution does not contra
vene either subsection 45(3) or section 49.
Per Marceau J.: An Indian's right over reserve land is a sui
generis right which defies any rational classification under our
traditional property law. One thing is certain: it is not a life
estate and the Minister erred when he based his decision on the
assumption that it was.
Secondly, the power conferred on the Minister to reject or
approve a will under section 45 or to declare it void under
section 46 is subject to the rules of "natural justice". While,
technically, the Minister was not prohibited from acting
because the will had been approved four years earlier or
because of the lapse of time, a declaration that the will was
void, in the circumstances and in the manner in which it was
made here, is simply unacceptable.
A reading of the voided clause does not support the conclu
sion that a substitution was made. The wording is not suf
ficiently clear for that. Furthermore, it is equally possible, and
therefore preferable, to interpret it as creating a right in favour
of the wife to live there, placing the daughters under a tacit
obligation to provide accommodation for their mother.
Even if a substitution was created, there is no basis for saying
that it was contrary to the interests of the band or to the
provisions of the Act. The Minister can still protect the band's
interests since he remains free to legitimize the possession both
of the institute and of the substitute. And no provisions of the
Act have been infringed since the creation of substitutions is
not forbidden and since the spirit of the legislation is to place
on the Indian's freedom only the limits formally stated.
The present proceedings are indeed an appeal under section
47 against the decision vacating part of the will. It is an appeal
as of right which can be based on any grounds, eliminating the
notion that the Minister's decision in such cases is purely
administrative and discretionary.
However, the final provision of the Minister's decision,
authorizing the issue of a Certificate of Possession to the wife,
is not a part of the decision regarding the will and cannot be
appealed under section 47.
Per MacGuigan J.: It is well settled in Secretary of State for
Education and Science v. Tameside Metropolitan Borough
Council that even though a legislative provision, such as subsec
tion 46(1) of the Act, is framed in a "subjective" form when
giving someone a discretionary power, it does not automatically
exclude all judicial review. Although the evaluation of facts
belongs to the person given the discretionary power, the courts
must still inquire whether those facts exist and have been taken
into account, whether the decision has been made upon a
proper self-direction as to those facts and whether irrelevant
facts have not been taken into account.
In the present case, the Minister erred as to the facts (the
will) and the law (the principle of substitution). The courts
therefore have a right to intervene.
Furthermore, even before the implementation of section 15 of
the Charter, the courts have a duty to give a strict interpreta
tion to provisions of the Act which deny natives the rights
enjoyed by other Canadians. In the case at bar, justice requires
intervention by the Court.
CASE JUDICIALLY CONSIDERED
APPLIED:
Secretary of State for Education and Science v. Tame-
side Metropolitan Borough Council, [1977] A.C. 1014
(H.L.).
COUNSEL:
Philippe Gélinas, Q.C., for appellant.
Normand Lemyre for respondent.
SOLICITORS:
Philippe Gélinas, Q.C., Montreal, for appel
lant.
Deputy Attorney General of Canada for
respondent.
Gérald E. Sullivan, Q.C., Beaconsfield,
Quebec, for mis -en-cause John Charles.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This is an appeal pursuant to section
47 of the Indian Act [R.S.C. 1970, c. I-6 (as am.
by R.S.C. 1970 (2nd Supp.), c. 10, s. 64)] from a
decision made by the Minister of Indian and
Northern Affairs in accordance with paragraph
46(1)(d) of that Act)
' Paragraph 46(1)(d) reads as follows:
46. (1) The Minister may declare the will of an Indian to
be void in whole or in part if he is satisfied that
(d) the will purports to dispose of land in a reserve in a
manner contrary to the interest of the band or con
trary to this Act;
Under section 47, a decision made by the Minister pursuant
to section 46 may be appealed to this court:
(Continued on next page)
This decision was made on April 4, 1979. It
relates to the will of an Indian, John Charlie, who
died on July 3, 1974 while legally in possession of
lot 371 of the Caughnawaga Indian reserve. By his
will, Charlie bequeathed this real property to his
two daughters on the following terms:
2. I give the property of which I die possessed as follows:
a) To my daughters, namely, Mrs. Cecile Pronovost and
Mrs. Linda Gadoua Chenier, in equal shares, my Village Lot
No. 371 per Plan No 56291, together with improvements
thereon. It being understood that my wife, Margaret Charlie,
shall have the right of occupancy as long as she lives.
The decision a quo vacated the devise made to
the testator's two daughters. It will suffice to cite
two paragraphs from it:
AND WHEREAS the Minister believes that the granting of a
life estate by John Charlie for his wife, with a gift over to his
two daughters, on his death, is an attempt by John Charlie to
extend, by his Will, the interest he acquired in the said land
under the terms of the Indian Act;
AND WHEREAS the Minister, being satisfied that the terms of
the Will purport to dispose of land on a reserve in a manner
contrary to the interest of the Band and contrary to this Act, is
pleased hereby, pursuant to Section 46 of the Indian Act, to
declare the words in Paragraph 2 of the Will of John Charlie,
which give an interest in Village Lot No 371 on Plan No 56291
on the Caughnawaga Reserve to Mrs Cecile Pronovost and Mrs
Linda Gadoua Chenier, to be void;
In support of the appeal, counsel for the appel
lant argued that there was nothing in the clause
cited above from the will of John Charlie which
was contrary to the Indian Act or to the interests
of the band. In the submission of counsel for the
appellant, the testator by that clause simply
bequeathed his lot to his two daughters on condi
tion that they look after their mother. What could
be more legal and more moral!
To this counsel for the respondent replied by
suggesting another interpretation of the clause. He
argued that in it the testator indicated two inten
tions: that of leaving lot 371 to his two daughters
and that of leaving the exclusive right to occupy
(Continued from previous page)
47. (1) A decision of the Minister made in the exercise of
the jurisdiction or authority conferred upon him by section
42, 43 or 46 may, within two months from the date thereof,
be appealed by any person affected thereby to the Federal
Court of Canada, if the amount in controversy in the appeal
exceeds five hundred dollars or if the Minister consents to an
appeal.
the lot to his wife as long as she lived. As the only
right which the testator could claim to have over
lot 371 was that of possessing and occupying it, 2 it
is impossible to give effect to these two gifts at the
same time. The only way of giving effect to the
clause, therefore, is to interpret it as constituting a
legacy to the wife with a substitution in favour of
the two daughters. Counsel for the respondent said
that it was because the Minister adopted this
interpretation that he found the clause contrary to
the Indian Act. He maintained that a devise with
substitution of a lot located on an Indian reserve is
contrary to the Indian Act for three reasons:
(1) because the existence of a substitution limits
the testamentary freedom of the institute over the
substituted property;
(2) because the right which an Indian may have
over a lot located on a reserve is for his lifetime
only; and
(3) because the existence of a substitution is
inconsistent with the right which the Act confers
on the Minister to approve the transfer of any lot
located on a reserve.
Counsel for the respondent did not attempt to
justify the finding in the decision a quo that the
disputed clause in the will was contrary to the
interests of the band.
I am not sure that the interpretation of this
clause proposed by the appellant should prevail. I
doubt that it is a devise with a charge. However, it
is not necessary to decide this point, because even
if I adopt the interpretation suggested by the
respondent and assume that this is a devise with a
substitution, I see nothing in this contrary to the
letter or spirit of the Indian Act.
It is true that, in creating a substitution, the
testator deprived his widow of the right to
bequeath the property substituted: but how is this
inconsistent with the Indian Act? Counsel for the
respondent cited in this regard subsection 45(1):
45. (1) Nothing in this Act shall be construed to prevent or
prohibit an Indian from devising or bequeathing his property by
will.
2 Sections 18, 20 et seq of the Indian Act.
It seems to me that precisely because Indians
enjoy the same testamentary freedom as other
individuals they must be recognized as having the
same right as others to make gifts accompanied by
a substitution.
It is also true that the right which an Indian
may claim over real property located on a reserve
is, in a sense, a life estate. However, it can be seen
from reading the Indian Act that this proposition
is not absolutely true, since that Act clearly indi
cates that the fact that this right lasts only for a
lifetime does not prevent its being to some extent
subject to testamentary transfer. This being so, I
see no reason why the fact that the right allegedly
lasts only for a lifetime precludes its being also the
subject of a substitution.
I come to the last reason alleged in support of
the decision a quo, namely that a devise with a
substitution is inconsistent with the provisions of
the Act that any transfer of the right to possession
of a lot located on a reserve must necessarily be
subject to approval by the Minister. I must admit
that I do not understand this proposition. On
Charlie's death, his will was subject under subsec
tion 45(3) to the requirement that "the Minister
has approved the will or a court has granted
probate thereof pursuant to this Act". In the
absence of such approval or probate, the will was
void. Correspondingly, if the will was approved or
probated, as it in fact was, anyone claiming to be
entitled to possession of lot 371 under the will had
under section 49 to obtain the Minister's approval,
which would ordinarily be given in the form of a
Certificate of Possession. Thus, the wife instituted
in the substitution first had to obtain that approv
al; then when the substitution began the two
daughters who were substitutes had to obtain it in
their turn. In my view, the existence of a substitu
tion does not contravene either subsection 45(3) or
section 49.
I do not see how the clause of the will of John
Charlie vacated by the decision a quo contravenes
the Indian Act. The opposite conclusion arrived at
by the Minister therefore appears to me to be
based on a misinterpretation of that Act. This
being so, his decision must be reversed.
I would allow the appeal and set aside the
decision a quo in so far as it vacated the aforemen
tioned clause of John Charlie's will.
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: I concur in the opinion of Pratte
J. that this appeal must succeed, and I do not
question the sufficiency of the ground on which he
based his conclusion. If counsel for the respondent
had not indicated that this case was regarded by
the Minister as an important test case on a ques
tion of principle, I would perhaps have done no
more than concur. However, I must observe that
the ground on which Pratte J. based his judgment
appears to me to be much less crucial and funda
mental than certain other factors, and the idea
that the decision might carry a certain weight
made me think it might be better for me to discuss
my view of the matter, even though in the limited
time available I cannot do full justice to the sub
ject. To facilitate my task, I have chosen to
arrange my observations under five headings, deal
ing with five different points.
1. The exact legal nature of the most complete
right which an Indian may hold over land located
on a reserve is extremely difficult, if not impos
sible, to determine precisely, for the obvious reason
that it is a right which has never been defined or
described in terms of the usual concepts of the
ordinary law, especially not those of the civil law.
At most one may speak of an analogy with the
traditional institutions of the Quebec Code, and
even then, one should be extremely careful to
avoid any doctrinal construct. The Act speaks of a
right of "possession" which may be proven by a
Certificate of Possession, taking the place of a real
estate title: it speaks of a right which does not
derive from that of an owner but which may
nonetheless be transferred as such, both inter vivos
and mortis causa, although such a transfer can
only be fully effective after it has been approved
by the Minister; and this hybrid right, which is
both patrimonial and personal, is applied formally
to the land by the Act without specifying what
becomes of buildings or improvements on the land.
It has been called a sui generis right: that is
undoubtedly true, but what I wish to emphasize
here is that this sui generis right defies any ration
al classification under our traditional property law.
Reasoning as if this were not so, by applying
general rules framed in terms of institutions devel
oped in a totally different context, is extremely
dangerous.
In any case one thing is certain, and it is that
the right of an Indian over both the land of which
he has legal and legitimate possession and the
buildings which he or his predecessors may have
erected on it is not a life estate, that is a right
which is extinguished and disappears on his death:
and the Minister was clearly in error when he
suggested that it was, which deprives the reasons
given in support of his decision of the legal basis he
suggested for them.
2. The exact meaning and proper legal effect of
the ministerial approval which the Act requires for
all acquisitions by an Indian of a permanent right
of possession over land located on reserves—
whether of first holders (section 20), persons
acquiring inter vivos (section 24) or legatees (sec-
tion 49)—is also difficult to analyse. It must be
borne in mind that this authorization is necessary
to create initially, in favour of the first holder, and
to renew thereafter in favour of persons acquiring,
a "legitimate or legal" right of possession applying
to the land, but it is not necessary otherwise,
whether to create or maintain a right other than
possession (such as occupying as a tenant or cul
tivating as a farmer) or to validate deeds affecting
property other than the land (for example, a dwell
ing on the land which can be removed from it);
and it should not be forgotten that even where it is
necessary to validate the right of a person acquir
ing, the Minister's refusal to grant it cannot be
regarded as preventing the transfer of any right,
since such a refusal will be grounds for compensa
tion (subsections 50(2) and (3)). The least that
can be said is that fitting all this into the frame
work of our traditional institutions and concepts is
singularly difficult.
For the moment, however, these analytical dif
ficulties do not matter: they certainly should not
stand in the way of the, in my view, fundamental
conclusion that the power conferred on the Minis
ter to agree or refuse to "legitimize possession" or
"confirm a transfer" is of a very different order
from his power to reject or approve as a will a
written document signed by an Indian (section 45)
or his power to invalidate for certain specific
causes a testamentary disposition included in the
will of an Indian (section 46). I have no hesitation
in thinking that the Minister's power to refuse to
"legitimize" possession of real estate is an
administrative and not a quasi judicial power—
although in my opinion, like any power of this
kind, it must not be diverted from its proper
purpose of protecting the higher interests of the
band for whose use or benefit the territory of the
reserve was set aside, and in addition, its exercise
may well be regarded as requiring observance of
the minimum procedural requirements contained
in the new concept of "fairness". However, I am
not persuaded that the power of refusing to
approve a document as a will and that of vacating
a disposition mortis causa contained in that will
are powers of the same type. In view of their very
nature and application, I am not prepared to
believe that Parliament intended to make them
purely discretionary powers in the exercise of
which the Minister could dispense with the proce
dural safeguards known as the rules of "natural
justice" which our legal tradition has made appli
cable to any decisions made pursuant to an
adjudicative power affecting individual rights. It
may well be said that approval of a will under
section 45 does not prevent its being subsequently
declared void under section 46, since they are two
quite different powers, and no strict time limits
have been specified for either. Technically, there
fore, the Minister was not prohibited from acting
either by the approval of the will given by his
predecessor four years earlier, or simply by the
lapse of time. However, a declaration that it was
void, made in the circumstances and in the manner
in which it was made here, appears simply
unacceptable.
3. If apart from that, leaving aside the objec
tions made thus far on the basis of general princi
ple, one examines the validity of the interpretation
placed on the testamentary disposition which was
declared to be void, in my opinion the only possible
conclusion is that the Minister's position is unrea
sonable. It is of the very essence of a substitution
that the disposition, made in favour of two
beneficiaries called upon to take not jointly but
alternatively or successively, must relate to the
same right over the same property, and I would
think that, in order to be able to ascribe to an
individual an intent to make a substitution in a
testamentary disposition, it is necessary for the
words used by him to indicate that he in fact had
such an intent. Now, the formula used here sug
gests exactly the opposite. The testator described
in completely different words what he intended to
bequeath to his daughters and the provision he
made for his wife, and he did so in terms which are
manifestly not on the same logical level of think
ing, one being subordinated to the other. Though it
could technically be said in law that a "right of
occupancy" is a right of possession (which seems
far from certain to me, since all dictionaries treat a
tenant as an "occupant" and yet the tenant is not
in possession, and since the Act itself at times
clearly distinguishes the right to possess from the
right to occupy—as in section 20), what matters is
what the testator could have thought, since the
question is one of intent, and it seems clear that to
him the "right of occupancy" was not of the same
order and did not exclude the transcendent and
complete right which was his own and which he
bequeathed to his daughters.
Furthermore, even though it was possible to
interpret the clause at issue as creating a substitu
tion, it was undoubtedly equally possible (not to
say more reasonable) to interpret it as creating a
right in favour of the wife simply to live there,
placing the daughters under a tacit obligation to
provide accommodation for their mother—hence
the expression "it being understood". Now again,
it is a fundamental rule in interpreting a will, and
one of simple common sense, that when a choice
has to be made the Court should prefer an inter
pretation which gives effect to an obscure clause of
the document rather than one which will oblige it
to find that the clause is simply void.
4. Assuming (taking the reasoning to the ulti
mate point of impossibility) that the disposition
may reasonably be interpreted as creating a substi
tution in the traditional sense, I too cannot see any
basis for saying that a testamentary disposition of
this kind is contrary to the interests of the band for
which the reserve exists or to the provisions of the
Indian Act. So far as the band's interests are
concerned, they can still be protected by the Min
ister, who remains free to refuse to "legitimize"
the possession both of the institute, who is now
claiming the right to ask for it under the will
(section 49), and of the substitute, who will claim
it later. I do not see where any provisions of the
Act have been infringed; clearly there is also no
provision expressly authorizing substitution, but
surely the spirit of the legislation as a whole is to
place on the Indian's freedom only the limits for
mally stated, which are regarded as necessary in
order to accomplish the aims sought when the
legislation was adopted.
5. Finally, it should be noted that the decision of
the Minister at issue in the proceedings before the
Court is only the one made pursuant to section 46,
vacating part of the will. It is indeed an appeal
under section 47, which creates a right of appeal
against any decisions made by the Minister in the
exercise of the jurisdiction or authority conferred
on him by sectioj, 42, 43 and 46 over "matters
and causes testamentary, with respect to ... Indi-
ans"; and it is an appeal as of right which can be
based on any grounds, which incidentally in my
opinion eliminates any notion that the Minister's
decision in such cases is purely administrative and
discretionary.
However, the final provision of this document
issued by the Minister, entitled "Declaration and
Order", against which the appeal was brought, is
not a part of the decision regarding the will and
cannot be appealed under section 47. It is a provi
sion authorizing a Certificate of Possession to be
issued to the wife. This authorization does not
really seem to be based on any provision of the
Act, and certainly does not result from vacating
the legacy made to the daughters, as under the will
the wife could never claim to more than the right
to occupy during her lifetime. In fact, however, the
certificate issued on the basis of this authorization
seems to be meaningless since it appears that the
wife was already dead at the time, and in any case
if there is a Certificate of Possession in effect, it
cannot be challenged or invalidated through the
proceedings at bar. It is therefore possible and
even probable that allowing this appeal will only
constitute a first step in seeking to remedy the
situation, but it will be up to the appellant to
exercise her rights recognized by the Court as she
may be authorized to do by the Act.
* * *
The following is the English version of the
reasons for judgment rendered by
MACGIJIGAN J.: I agree with the conclusions of
my two brother judges, but I would add a few
words as to the subjective nature of the Minister's
discretion under subsection 46(1) of the Indian
Act: "The Minister may declare the will of an
Indian to be void in whole or in part if he is
satisfied that ..." [Emphasis added.]
The law on this point was settled by the House
of Lords in Secretary of State for Education and
Science v. Tameside Metropolitan Borough Coun
cil, [1977] A.C. 1014, at page 1047 (per Lord
Wilberforce):
(2) The section is framed in a "subjective" form—if the
Secretary of State "is satisfied." This form of section is quite
well known, and at first sight might seem to exclude judicial
review. Sections in this form may, no doubt, exclude judicial
review on what is or has become a matter of pure judgment.
But I do not think that they go further than that. If a judgment
requires, before it can be made, the existence of some facts,
then, although the evaluation of those facts is for the Secretary
of State alone, the court must inquire whether those facts exist,
and have been taken into account, whether the judgment has
been made upon a proper self-direction as to those facts,
whether the judgment has not been made upon other facts
which ought not to have been taken into account. If these
requirements are not met, then the exercise of judgment,
however bona fide it may be, becomes capable of challenge: ...
In the case at bar I am persuaded that, in light
of the reasons of my two brother judges, the
Minister erred as to the facts (the will) and the
law (the principle of substitution). In the circum
stances, the courts have a right to intervene.
Even before implementation of section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] regarding
equality, the courts have a duty to be especially
vigilant in interpreting the Indian Act to give a
strict interpretation to its provisions which deny
natives the rights enjoyed by other Canadians. In
the case at bar, justice requires intervention by this
Court.
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.