Date: 20000629
Docket: T-1252-99
BETWEEN:
JEANNINE MORIN, personally, and on behalf of a
class of persons having the same interest, which class
is more particularly described in Appendix "A"
of the Statement of Claim
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
HENEGHAN J.
[1] This is a motion seeking a preliminary determination on a question of law. The question of law and the present motion arise from an Order made on April 17, 2000 by Mr. Justice Hugessen. In that Order, Justice Hugessen wrote:
| 1. The following question of law is to be determined pursuant to Rule 220: |
| "Does the Tenant Protection Act, 1997, S.O. 1997 apply to the leases which are the subject matter of this action as defined in the plaintiffs" statement of claim and to which the typical lease applies, as recited in paragraph 1 of the Agreed Statement of Facts filed by the parties?" |
| 2. The said question is to be determined on a case consisting of 1) the agreed statement of facts filed by the parties and 2) the present order. |
[2] Rule 220 of the Federal Court Rules, 1998, referred to in the above Order of Mr. Justice Hugessen, provides:
| 220. (1)A party may bring a motion before trial to request that the Court determine
(2) Where, on a motion under subsection (1), the Court orders that a question be determined, it shall
(3) A determination of a question referred to in subsection (1) is final and conclusive for the purposes of the action, subject to being varied on appeal. |
220. (1) Une partie peut, par voie de requête présentée avant l'instruction, demander à la Cour de statuer sur :
(2) Si la Cour ordonne qu'il soit statué sur l'un des points visés au paragraphe (1), elle:
(3) La décision prise au sujet d'un point visé au paragraphe (1) est définitive aux fins de l'action, sous réserve de toute modification résultant d'un appel. |
Facts
[3] Before addressing the question of law to be determined in this motion, it is first necessary to review the facts which underlie the motion. In this case, certain lands which formed part of a reserve were surrendered conditionally to the Federal Crown for the purpose of leasing.
[4] The Plaintiffs entered into several leases between themselves and the Defendant, Her Majesty the Queen. The leases are for a five year period beginning April 1, 1999 and ending March 31, 2004.
[5] The Agreed Statement of Facts indicates the nature of the leases:
| 1. That the typical lease, as quoted by the defendant in its Book of Authorities dated November 3, 1999, in support of its Motion to Strike, including the recitals therein, represents the correct factual background to the present motion under Rule 220. |
| 2. That, typically and for the purpose of this motion, the plaintiffs lease only the land but have erected dwellings thereon which they own and in which they live permanently or as cottagers. They also have the right to the use of some lands which remain in possession of the defendant and which are set apart for roads and easements to the lakefront which are used by all the lessees in common. |
[6] The leases state, inter alia:
| WHEREAS the lands hereinafter described as part of those lands known as the Nipissing Indian Reserve No. 10 which have been set apart for the use and benefit of the Nipissing Band of Indians; |
| AND WHEREAS the lands hereinafter described were surrendered for leasing purposes by Surrender registered as 1017-1 in the Indian Lands Registry, which surrender was accepted by Order-in-Council P.C. 1962-668- of May 12, 1962; Section 53(1) of the Indian Act. |
[7] Both parties agree that the Crown acts as a fiduciary when it enters into leases of Indian lands. This position is supported by the authorities1.
The Plaintiffs" Argument
[8] Counsel for the moving parties in this motion, Plaintiffs in the main action, submit that the issue in the case does not deal with Indians nor with lands reserved for Indians, but rather relates to a landlord-tenant relationship, specifically, a relationship between Her Majesty the Queen in right of Canada, as landlord, and her tenants, the Plaintiffs. Counsel for the moving parties submits that, pursuant to section 88 of the Indian Act2, the Tenant Protection Act3of Ontario, as a law of general application, applies to the legal relationship of landlord-tenant arising from the leases.
[9] Counsel for the moving parties adds that, in the absence of any provision in the Indian Act or any other federal legislation specifically addressing the question of landlord and tenant relationships, the field is left open for the application of the provincial legislation without encroaching upon federal jurisdiction in the matter.
The Defendant"s Arguments
[10] Counsel for the Crown submits that section 88 does not apply in this instance because the lands in question are still Indian lands. The Crown submits that this case is about the applicability of the Ontario legislation, not its validity and argues that the question is whether the provincial legislation infringes on a matter within exclusive federal legislative jurisdiction, thereby giving rise to application of the doctrine of inter-jurisdictional immunity as reviewed by the Supreme Court of Canada in Ordon Estate v. Grail4.
The Relevant Legislation
[11] Section 91(24) of the Constitution Act, 1867 stipulates that the federal parliament has jurisdiction for the making of laws with respect to "Indians, and Lands reserved for the Indians". This section, by the precise language used, confers upon the federal parliament exclusive jurisdiction over not only Indians, but also Lands reserved for the Indians.
[12] In addition, I refer to the Indian Act wherein the Federal parliament has exercised its jurisdiction and legislated numerous provisions with respect to Lands reserved for the Indians. As illustration, pursuant to section 18 of the Indian Act, the Federal Government is entrusted with the management of Indian lands. Section 18 provides:
| 18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band. (2) The Minister may authorize the use of lands in a reserve for the purpose of Indian schools, the administration of Indian affairs, Indian burial grounds, Indian health projects or, with the consent of the co uncil of the band, for any other purpose for the general welfare of the band, and may take any lands in a reserve required for those purposes, but where an individual Indian, immediately prior to the taking, was entitled to the possession of those lands, compensation for that use shall be paid to the Indian, in such amount as may be agreed between the Indian and the Minister, or, failing agreement, as may be determined in such manner as the Minister may direct. |
18. (1) Sous réserve des autres dispositions de la présente loi, Sa Majesté détient des réserves à l'usage et au profit des bandes respectives pour lesquelles elles furent mises de côté; sous réserve des autres dispositions de la présente loi et des stipulations de tout traité ou cession, le gouverneur en conseil peut décider si tout objet, pour lequel des terres dans une réserve sont ou doivent être utilisées, se trouve à l'usage et au profit de la bande. (2) Le ministre peut autoriser l'utilisation de terres dans une réserve aux fins des écoles indiennes, de l'administration d'affaires indiennes, de cimetières indiens, de projets relatifs à la santé des Indiens, ou, avec le consentement du conseil de la bande, pour tout autre objet concernant le bien-être général de la bande, et il peut prendre toutes terres dans une réserve, nécessaires à ces fins, mais lorsque, immédiatement avant cette prise, un Indien particulier avait droit à la possession de ces terres, il doit être versé à cet Indien, pour un semblable usage, une indemnité d'un montant dont peuvent convenir l'Indien et le ministre, ou, à défaut d'accord, qui peut être fixé de la manière que détermine ce dernier. |
[13] Section 28 of the Indian Act stipulates the conditions under which a non-band member may occupy or use reserve land:
| 28. (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written 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. |
28. (1) Sous réserve du paragraphe (2), est nul un acte, bail, contrat, instrument, document ou accord de toute nature, écrit ou oral, par lequel une bande ou un membre d'une bande est censé permettre à une personne, autre qu'un membre de cette bande, d'occuper ou utiliser une réserve ou de résider ou autrement exercer des droits sur une réserve. (2) Le ministre peut, au moyen d'un permis par écrit, autoriser toute personne, pour une période maximale d'un an, ou, avec le consentement du conseil de la bande, pour toute période plus longue, à occuper ou utiliser une réserve, ou à résider ou autrement exercer des droits sur une réserve. |
[14] It is also important to note section 88 of the Indian Act. This section provides that provincial laws of general application are applicable to Indians where such laws are not inconsistent with the Indian Act. This section also provides that such laws of general application are not applicable when the Indian Act has already made provision for a particular matter. Section 88 reads:
| 88. Subject to the terms of any treaty and any other act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this act or any order, rule, regulation or by-law made their under , and except to the extent that such laws make provision for any matter for which provision is made by or under this act. |
88. Sous réserve des dispositions de quelque traité et de quelque autre loi fédérale, toutes les lois d'application générale et en vigueur dans une province sont applicables aux Indiens qui s'y trouvent et à leur égard, sauf dans la mesure où ces lois sont incompatibles avec la présente loi ou quelque arrêté, ordonnance, règle, règlement ou règlement administratif pris sous son régime, et sauf dans la mesure où ces lois contiennent des dispositions sur toute question prévue par la présente loi ou sous son régime. |
Analysis
[15] Section 91(24) of the Constitution Act, 1867 confers upon the federal parliament the exclusive jurisdiction to make laws in relation to Indians and Lands reserved for the Indians. Nevertheless, as a result of section 88 of the Indian Act, provincial laws of general application, which are validly enacted laws in provincial spheres of competence, apply to Indians and Lands reserved for the Indians5.
[16] However, there are a number of exceptions to that general rule as outlined by Peter W. Hogg in Constitutional Law of Canada6. For instance, provincial laws of general applicability will not apply to Indians and Lands reserved for the Indians when such laws affect "Indianness". Secondly, provincial laws will not apply when the doctrine of federal paramountcy applies in that a federal law is inconsistent with a provincial law.
[17] It is accepted by both parties that the Ontario legislation in question is a law of general application. The question then becomes whether the Tenant Protection Act of Ontario falls within one of the exceptions noted above or is otherwise inapplicable.
[18] In light of Justice Beetz"s decision in Four B Manufacturing v. United Garment Workers of America7, the primary question which must be asked in the present motion, is whether the power to regulate the lands in issue "...forms an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians"8. The second question pursuant to the decision in Four B, supra, which must be considered "...is whether Parliament has occupied the field by the provisions..." of the Tenant Protection Act9.
[19] In my opinion, both these question must be answered in the affirmative. First, the lease in question is a lease which deals with lands that are Indians lands. The jurisdiction to regulate the lease of the Indians Lands, in my opinion, forms an integral part of primary federal jurisdiction. The status of these lands as "Indian Lands" is not changed simply by virtue of the execution of these leases.
[20] In Delgamuukw v. British Columbia10, Chief Justice Lamer wrote:
| Second, as I mentioned earlier, s. 91(24) protects a core of federal jurisdiction even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity. That core has been described as matters touching on "Indianness" or the "core of Indianness" (Dick, supra, at pp. 326 and 315; also see Four B, supra, at p. 1047 and Francis, supra, at pp. 1028-29). The core of Indianness at the heart of s. 91(24) has been defined in both negative and positive terms. Negatively, it has been held to not include labour relations (Four B) and the driving of motor vehicles (Francis). The only positive formulation of Indianness was offered in Dick. Speaking for the Court, Beetz J. assumed, but did not decide, that a provincial hunting law did not apply proprio vigore to the members of an Indian band to hunt and because those activities were "at the centre of what they do and what they are" (at p. 320). But in Van der Peet, I described and defined the aboriginal rights that are recognized and affirmed by s. 35(1) in a similar fashion, as protecting the occupation of land and the activities which are integral to the distinctive aboriginal culture of the group claiming the right. It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24). Prior to 1982, as a result, they could not be extinguished by provincial laws of general application. |
| (4) Section 88 of the Indian Act |
| Provincial laws which would otherwise not apply to Indians proprio vigore, however, are allowed to do so by s. 88 of the Indian Act, which incorporates by reference provincial laws of general application: Dick, supra, at pp. 326-27; Derrickson v. Derrickson, [1986] 1 S.C.R. 285, at p. 297; Francis, supra, at pp. 1030-31. However, it is important to note, in Professor Hogg's words, that s. 88 does not "invigorate" provincial laws which are invalid because they are in relation to Indians and Indian lands (Constitutional Law of Canada (3rd ed. 1992), at p. 676; also see Dick, supra, at p. 322). What this means is that s. 88 extends the effect of provincial laws of general application which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24). For example, a provincial law which regulated hunting may very well touch on this core. Although such a law would not apply to aboriginal people proprio vigore, it would still apply through s. 88 of the Indian Act, being a law of general application. Such laws are enacted to conserve game and for the safety of all. 11 |
[21] "Indianness", in my opinion, is not limited to individuals but can also apply to describe Indian lands, and accordingly, I am of the view that lands reserved for Indians are at the core of federal jurisdiction.
[22] Nevertheless, Chief Justice Lamer indicated in Delagamuukw, supra, that section 88 of the Indian Act extends the effect of provincial laws of general application which, in themselves, would not apply to Indians and to Indians lands because they touch on Indianness at the core of s. 91(24). In light of this, it must now be determined whether the Tenant Protection Act, despite legislating in a matter which relates to the core of section 91(24) jurisdiction, namely, Indian lands, applies by virtue of section 88.
[23] Section 88 does not specifically mention Lands reserved for the Indians. At first blush, this significant omission would seem to indicate that section 88 does not expressly permit application of provincial laws of general application to Lands reserved for the Indians. However, even if section 88 does apply to permit the application of provincial laws of general application to Lands reserved for the Indians, the section explicitly states that such laws are applicable "except to the extent that such laws are inconsistent with this Act " and "except to the extent that such laws make provision for any matter for which provision is made by or under the Act". Through this wording, section 88 limits the application of provincial laws of general application to subjects which have not been addressed by the Indian Act .
[24] There are provisions in the Indian Act which determine how reserve land is to be used. There are also provisions in the Indian Act which govern the lease of Indian land to a non-band member. In addition, the Indian Act deals specifically with the surrender of Indian lands for the purpose of leasing. The Indian lands in question were surrendered by the band to Her Majesty the Queen in right of Canada for the purpose of leasing. Having regard to the foregoing and the facts in this case as well as to the status of the Crown in its role as a fiduciary for the owners of those lands, that is the Nippissing Indian Band, I am of the opinion that this provincial law of general application does not apply.
[25] In conclusion, I am of the opinion that the Tenant Protection Act of Ontario, while a law of general application validly enacted by the legislature of Ontario, does not apply to the leases which are the subject matter of this action, namely, the leases of Indian lands between the Plaintiffs and Her Majesty the Queen.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
June 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1252-99 |
| STYLE OF CAUSE: JEANNINE MORIN, personally, and on behalf of a class of persons having the same interest, which classis more particularly described in Appendix "A"of the Statement of Claim |
- and -
HER MAJESTY THE QUEEN
| DATE OF HEARING: MONDAY, MAY 8, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT: HENEGHAN J. |
| DATED: THURSDAY, JUNE 29, 2000 |
| APPEARANCES BY: Mr. Hubert E. Mantha |
| For the Plaintiffs |
| Mr. Gary N. Penner |
| For the Defendant |
| SOLICITORS OF RECORD: Mr. Hubert E. Mantha |
Barrister & Solicitor
215 College Street
Suite 216
Toronto, Ontario
M5T 1R1
| For the Plaintiffs |
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 20000629
Docket: T-1252-99
BETWEEN:
| JEANNINE MORIN, personally, and on behalf of a class of persons having the same interest, which class is more particularly described in Appendix "A" |
of the Statement of Claim
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
| REASONS FOR JUDGMENT |
__________________
1Guerin v. The Queen, [1984] 2 S.C.R. 335.
5 See: R. v. Hill (1907), 15 O.L.R. 406 (C.A.) and Four B Manufacturing v. United Garment Workers, [1980] 1 S.C.R. 1031.