Court Of Appeal Summaries (July 28 To August 1)

Hi everyone. Here are this week's Court of Appeal summaries. This week's topics include s. 29 and 89(1) of the Indian Act, abuse of process, and interlocutory versus final orders.

Of special note is the first case, Tyendinaga Mohawak Council v Brant, where our very own Blaneys' lawyers Roger Horst and Rafal Szymanski successfully represented the Mohawks of the Bay of Quinte.

Have a safe and relaxing long weekend!

Tyendinaga Mohawk Council v Brant, 2014 ONCA 565

[ Sharpe, LaForme and Tulloch JJ.A.]

Counsel:

A. Morrison and S. Raman, for the appellant

Roger Horst and Rafal Szymanski, for the respondents

L. Marchildon and L. Garvin, for the Attorney General of Canada, on behalf of the Indian Land Registrar

J. Hunter, for the Attorney General of Ontario, on behalf of the Sherriff of the County of Hastings

Keywords: Aboriginal Law, Indian Act, Real Property, Reserves, Transfer and Possession, Family Law

NOTE: The Court uses the term "Indian" instead of "Aboriginal" throughout to remain consistent with the language specifically used in the Indian Act, and the same applies to references to a "band" as opposed to "First Nation".

Facts:

This appeal involves the interpretation and application of two conflicting provisions of the Indian Act, RSC 1985, c I-5, ss. 29 and 89(1). Section 29 provides that reserve lands are not subject to seizure under legal process. Section 89(1) provides that real and personal property of an Indian or a band on reserve land can only be seized by an Indian or a band.

To satisfy the debt from a previous judgment against Andrew Clifford Miracle (the "Appellant") to the Mohawks of the Bay of Quinte First Nation ("MBQ"), the MBQ took out a writ of seizure and sale on properties to which Appellant held Certificates of Possession. The writs were validated and MBQ requested the Sheriff to sell the Appellant's Certificates of Possession. The Sheriff declined, taking the position that s. 29 of the Indian Act prohibited the sale because the Appellant's properties consisted of "reserve lands" and therefore were not subject to seizure. MBQ then brought a motion seeking mandatory order to enforce the Appellant's transfer of Certificates of Possession to MBQ. The motion judge ordered the Appellant to complete the transfer.

Issues:

The Appellant submits that the motion judge erred in deciding this matter, namely:

(1) In finding that the Superior Court of Justice had jurisdiction to order him to execute the transfers of the Certificates of Possession to MBQ.

(2) In concluding that Certificates of Possession are real or personal property of an Indian situated on a reserve pursuant to s. 89(1) of the Indian Act, and therefore subject to seizure by the Band to satisfy a debt.

Holding:

Appeal dismissed.

Reasoning:

(1) The motion judge had the jurisdiction to hear and decide the enforcement motion brought by MBQ and he correctly interpreted and applied the provisions of the Indian Act. Neither of the cases relied on by the Appellant (Derrickson v Derrickson, [1986] 1 SCR 285 and Syrette v Syrette 2012 ONCA 693) oust jurisdiction from the Superior Court to transfer Certificates of Possession pursuant to the Indian Act or equitable principles such as a mandatory order.

The courts in Derrickson and Syrette refused to divide possession of Indian reserve land between family members because the applicable provincial statutes were inoperative to the extent they purported to apply to Indian reserve land, which falls within the exclusive jurisdiction of federal legislation. In this...