Boots v. Mohawk Council of Akwesasne, docket T-1455-95

        

Date: 19990215

Docket: T-1455-95

BETWEEN:

     JONAS BOOTS and RONNIE BOOTS

     Plaintiffs

     - and -

     MOHAWK COUNCIL OF AKWESASNE

     Defendant

     REASONS FOR ORDER

LUTFY J.:

[1]          The parties dispute the width and location of a road allowance, running along the eastern boundary of lot 89-2 on the Cornwall Island Indian Reserve No. 59. Both seek declaratory and injunctive relief in relation to the disputed road allowance. The gravel portion of the road allowance is known as McCumber Road.

The disputed property

[2]          In the statement of claim, the plaintiffs describe the disputed property as follows:

4.      By a Certificate of Possession under Section 20 of the Indian Act, dated August 31, 1970 the Department of Indian Affairs and Northern Development certified that Mike Boots was entitled to possession of Lot 89-2 as described below:

ALL AND SINGULAR that certain parcel or tract of land being the whole of Lot 89-2, Cornwall Island Indian Reserve No. 59, in the Province of Ontario, shown on Plan of Record No. 52729, Canada Lands Surveys Records, Ottawa.

5.      The Defendant claims that a 20 foot strip of Lot 89-2 (hereinafter referred to as "Disputed Property") on the most eastern border was transferred to it and the Defendant proposes to construct a road on this property.

6.      The Plaintiffs deny that the Disputed Property was transferred to the Defendant and states [sic] as the fact is [sic] that no part of Lot 89-2 was ever transferred to the Defendant.

     ...

17.      The Plaintiffs claim:

         ...

b)      a declaration that the Plaintiffs are entitled to possession of the whole of the said Lot 89-2; ...

[3]          In its statement of defence and counterclaim, the defendant describes the disputed property in somewhat different terms:

36.      With respect to paragraphs 5 and 6 of the Statement of Claim, the defendant denies that it claims that a 20-foot strip of Lot 89-2 was transferred to it or that it proposes to build a road on any part of Lot 89-2, and puts the plaintiffs to the strict proof thereof. In particular, Lot 89-2 was created several years following the expropriation in 1957 by the St. Regis Band Council and the Department of Citizenship and Immigration of an additional 40-foot right-of-way to be added to the pre-existing 20-foot right-of-way running through Lot 89. Having been created out of the remainder of Lot 89 following such expropriation, Lot 89-2 thus excludes, by definition, the existing 60-foot road allowance running along the eastern boundary of Lot 89-2.

     ...

60.      The defendant therefore claims:

(a)      an Order declaring that full title and interest in and to the sixty-foot road allowance known as McCumber Road running south from Cornwall Island Road East along the east boundary of Lot 89-2 is and resides in the defendant on behalf of the whole of the community of Akwesasne as a public reserve road; ...

[4]          On the basis of the pleadings, therefore, the plaintiffs assert their rights in accordance with the Certificate of Possession of August 31, 1970, issued as proof of entitlement to possession of lot 89-2 as shown on plan 52729, which was confirmed by the Surveyor General in 1965 and registered with Canada Lands Surveys Records.¹ This plan sets out the road allowance at a width of approximately forty feet.

[5]      The defendant claims that the original road allowance of twenty feet, in accordance with an earlier plan 2950E, confirmed and registered in 1943, was extended by the taking of an additional forty feet, pursuant to subsection 18(2) of the Indian Act, in a transaction negotiated during 1958 and 1959. In effect, the defendant is asserting that plan 52729 and the subsequent plan 69967, registered in 1985, do not accurately reflect the eastern boundary of lot 89-2, Cornwall Island Indian Reserve No. 59.

The proceedings and the disposition of the main action

[6]      The plaintiff Ronnie Boots is the son of the plaintiff Jonas Boots. The latter died subsequent to the commencement of this action. Neither party sought to appoint a person to represent the Estate of the late Jonas Boots in this proceeding.

[7]      On June 17, 1998, the Acting Associate Chief Justice fixed the trial date in this proceeding for November 9, 1998.

    

[8]      On September 10, 1998, an order issued authorizing the removal of the plaintiffs" solicitors from the record.

[9]      On October 8, 1998, the plaintiff Ronnie Boots was ordered to pay $15,000 in the form of cash or a surety bond as security for costs. The plaintiff has yet to furnish the requisite security for costs.

[10]      On November 9, 1998, the plaintiff Ronnie Boots attended at the commencement of the trial, unrepresented by a solicitor. Both his request to be represented by Mr. Stewart Myiow, who described himself as a representative of the Mohawk Traditional Council, and his request for an adjournment of the trial were refused. However, Mr. Boots was allowed to consult with Mr. Myiow in making his own representations.

[11]      Mr. Boots then filed in open court a document which stated substantially:

In an exercise of the Silver Covenant Chain, under the Two Row Wampum Peace Treaty,

The Mohawk Traditional Council of the Five Nations Confederacy representing Mr. Ronnie Boots, motions of this court;

THAT;          In the spirit of the Two Row Wampum within the purpose and functions therein, the court subdue the Akwesasne band council, subordinate of the Crown under the indian act [sic] system, in its covert attempt to falsely appropriate lands belonging to that of the Mohawk Nation of the Five Nations Confederacy.

             The said land referred to in this case as, Lot No. 89, 89-1, 89-2.

THAT;          The court notify the Akwesasne band council, in no uncertain terms, to cease and desist its illegal attempt to falsely appropriate the said lands for an indefinite period of time.

THAT;          In the spirit of the Two Row Wampum, in the interest of preserving the peace therein constituted, the court expressly forbid its subordinate, the Akwesasne band council, from pursuing any such illegal action in the future.

This document can at best be described as an attempt to alter the basis of the main action. The relief sought by Mr. Boots in this document was denied on a number of procedural grounds, including his failure to furnish the security for costs.

[12]      Immediately thereafter, Mr. Boots declared that he would not be participating in the proceeding and left the hearing room. Throughout his participation on November 9, 1998, Mr. Boots did not attempt to introduce evidence. An employee of the defendant later testified that Mr. Boots renounced his membership in the Akwesasne Band on November 5, 1998.

                

[13]      In the absence of any evidence to support the allegations in the statement of claim, the main action will be dismissed.

[14]      The Court then received the evidence presented by the defendant in support of its counterclaim. Again, no one appeared for the plaintiffs during this portion of the trial.

The evidence of the defendant as plaintiff by counterclaim²

(i)      The Estate of the late John Boots and lot 89

[15]      John Boots died on January 17, 1954. The heirs of the Estate of the late John Boots were his four children, including his son Mike Boots.

[16]      On February 1, 1954, the defendant"s predecessor, the St. Regis Band Council, recognized posthumously John Boots as owner of lots 64, 89 and 91, as shown on plan 2950E. According to the plan, lot 89 was divided by a public lane which appears to be approximately twenty feet in width.

[17]      On April 16, 1957, the heirs of John Boots agreed to divide lot 89 into four parts. The agreement stated that Mike Boots was entitled to obtain possession of the western part of lot 89 (that part of lot 89 west of the roadway: "with the western part belonging to Mike Boots where the road is located"). The remaining section of lot 89 (on the eastern side of the road) was to be divided into three parts and distributed among the other heirs. Further, the heirs agreed to restrict the sale of their interest in the property to one another.

[18]      In November 1965, plan 52729 was confirmed by the Surveyor General and registered with the Canada Lands Surveys Records. The plan subdivided lot 89 into three parcels. Lots 89-1 and 89-2 corresponded to the land set aside for Mike Boots by the heirs on April 16, 1957. Lot 89-3 was divided among the other heirs. Lots 89-1 and 89-2 are located immediately west of the disputed road allowance. Lot 89-3 is immediately to the east of the road allowance.

[19]      On June 12, 1970, the heirs to the Estate of the late John Boots signed a document affirming the agreement of April 16, 1957. This later agreement confirmed Mike Boots" right to possess lots 89-1 and 89-2 and gave each of his three siblings a parcel of lot 89-3 lettered A, B and C.

[20]      On June 25, 1970, the administrator of the Estate of the late John Boots transferred all the interest of the deceased in parcels 89-1 and 89-2 of lot 89 to Mike Boots. The Transfer of Land by Administrator refers to the Band Council resolution of February 1, 1954, the agreement among the heirs of June 12, 1970, and a sketch of lot 89 divided into lots 89-1, 89-2 and 89-3, the latter being divided into parcels A, B and C.

[21]      On August 31, 1970, Certificates of Possession were issued to Mike Boots in which his right to possess lot 89-1 and lot 89-2, as shown on plan 52729, is given ministerial approval.

    

[22]      In August 1985, plan 69967 was confirmed by the Surveyor General and registered with the Canada Lands Surveys Records. This plan subdivided lot 89-3 into lots 89-3-1, 89-3-2 and 89-3-3. Lot 89-3-1 is situated immediately east of the road allowance. No change was made to the boundaries of lots 89-1 and 89-2.

(ii)      The Minister"s taking of land to widen the road allowance

[23]      On April 1, 1957, the Band Council adopted a resolution granting "permission for the rental at the rate of $225.00 per acre for a two-year period the right-of-way leading to the fill area from the existing public road and to serve future owners who would be residing in that area as authorized by section 18, subsection (2) of the Indian Act ...". The lessee of the right-of-way was the St. Lawrence Seaway Authority. As a condition of the lease, the Seaway was responsible for the planning and construction of the proposed public road.

[24]      On April 5, 1957, the Superintendent or Indian agent for the St. Regis Band wrote:

You will note that the rate agreed upon is Two hundred and twenty-five dollars ($225.00) per acre for a two-year period ($112.50 per acre for one-year) for a 40 foot strip of land which together with the 20 foot lane already existing makes the said right-of-way 60 feet wide as submitted by the Seaway Authority to the Band Council shown on the survey affecting the said right-of-way.

[25]      On October 6, 1958, a departmental official wrote to the Superintendent in these terms:

The Director, in his submission to the Deputy Minister, mentioned that it was the definite intention of the Branch that the acquisition of the additional 40 feet of land required to widen the existing 20 foot laneway to a width of 60 feet would be carried out under Section 18(2) of the Indian Act with the consent of the Band Council.

     ...

In view of the fact that the right-of-way had been widened to 60 feet, the road having been re-built, the powerline having been constructed and the road being used by a Seaway contractor, the Director recommended to the Deputy Minister that there seemed to be no alternative but to act on the Branch"s understanding of the intent of the Resolution of April 1, 1957. The Director recommended that the taking of the land required to widen the right-of-way be authorized for the purpose of providing a public Reserve road, and that the compensation to be paid to the Locatees be set at $225.00 per acre. The Deputy Minister has approved the recommendation.

[26]      On April 6, 1959, after some two years of negotiations concerning the compensation for the right-of-way, Mike Boots and the other heirs of the Estate of the late John Boots accepted $2,000 "as full and final Compensation for the payment of the 60-foot existing right-of-way, across lots 89 and 91 known as the portion of the east end access road, Cornwall Island East". On the same day, the St. Regis Band Council passed a resolution confirming the $2,000 payment to the Estate "for full and final compensation for their share in the right of way from the Island road to the south shore along Lots No. 89 and No. 91, Cornwall Island". At one point during the negotiations, Mike Boots and his co-heirs barricaded the road to express their displeasure with the St. Lawrence Seaway Authority proceeding with its work before negotiations concerning the compensation and other conditions had been concluded.

[27]      On April 19, 1959, the four heirs signed an agreement dividing equally the compensation of $2,000, "which was paid to the Estate for our interest in a 60-foot right-of-way across lots 89 and 91, Cornwall Island". On May 11, 1959, Mike Boots acknowledged receipt of $500 "as my share of compensation due for the access road, across lots 89 and 91, Cornwall Island East. I now affirm that I have no further claim to the access road, and I now recognize it as a Reserve road."

[28]      On April 28, 1959, after the compensation to the Estate of the late John Boots for the widened road allowance was increased to $2,000, a departmental official informed the Superintendent that: "The Deputy Minister has approved the payment of $2,000.00 to the Estate of John Boots for the land taken from lots 89 and 91 for road purposes."³

[29]      There is no evidence that the occupants of lot 89-2 publicly challenged the existing road allowance from 1959 until the early 1990's.

(iii)      The purported transfer from Mike Boots to Jonas Boots of one acre from lot 89

[30]          On October 9, 1957, Mike Boots purported to give his nephew, Jonas Boots, one acre of lot 89, "bounded on the east by north-south branch road passing through lot 89". The handwritten document signed by Mike Boots stated:

I, Mike Boots, being the owner of a portion of Lot 89 Cornwall Island, St. Regis Reserve, hereby give to my nephew Jonas Boots, his heirs and assigns, one acre of said portion of Lot 89. This acre is located at the Northwest corner of lot 89 and is bounded on the east by north-south branch road passing through lot 89, on the north by the Cornwall Island public road, on the west by the property of Mitchell Hopps, and on the south by the remainder of my portion of the lot.

[31]      An undated quit claim of rights, purportedly signed by Mike Boots between 1959 and 1965, provided a more detailed description of the acre of land from lot 89 which was being transferred to Jonas Boots:

A 1 acre parcel in the northwest corner of Lot 89, Cornwall Island East now particularly described as follows:

Starting at the northwest corner post of Lot 89 and proceeding south in an easterly direction along the boundary line between Lot[s] 89 and 99 for a distance of 360', thence east in a northerly direction for a distance of 175 feet to the access road, thence north in a westerly direction along the western boundary of the access road for a distance of 360', to the main Cornwall Island Road, thence west in a southerly direction along the main Cornwall Island road for a distance of 68.7 ft. to the starting point.

The defendant submits that the description of the boundaries of the property transferred to Jonas Boots represents 43,866 square feet or within 1% of the square footage of an acre.

[32]      The defendant also relies on the reference "for a distance of 68.7 ft." from the access road to the north-west corner post of lot 89 ("the starting point") to prove that Mike Boots understood that there was an existing road allowance which was sixty feet wide. However, on plan 52729 and plan 69967, the distance between the north-west post and the road allowance is 97.3 feet. There is thus a thirty-foot difference between the length of the northern boundary line of the one acre lot that Mike Boots purported to transfer to Jonas Boots and the current boundary of lot 89-2 as set out on plan 52729 and on plan 69967.⁴ Expressed differently, if one accepted as significant the reference "for a distance of 68.7 ft." and positioned the eastern boundary of lot 89-2 some twenty feet in a westerly direction, as suggested by the defendant, there would remain an unexplained ten-foot strip of land according to the measurements on the two official plans.

[33]      This one-acre parcel of land is situated within the boundaries of what is now designated as lot 89-2.

    

(iv)      The actual possession of lot 89-2 and the events precipitating this litigation

[34]      The Certificate of Possession, evidencing the right to possess lot 89-2, is still registered to Mike Boots. There are three houses on lot 89-2. One of the houses is occupied by Ronnie Boots. Another, built between 1991 and 1994 by the late Jonas Boots, is occupied by his widow and Ronnie Boots" mother, Pauline Boots. The third house is the original homestead which is now abandoned. There is a fourth structure on lot 89-2 which serves as a shop and garage.

[35]      The evidence discloses that since about 1990, obstructions have been placed on or near the road allowance, along the eastern boundary of lot 89-2. These obstructions included items such as broken appliances, railway ties and cars. The defendant claims that these objects have prevented it from properly maintaining the road surface and from widening the intersection of McCumber Road and Cornwall Island Road.

[36]      A witness who frequently drove along McCumber Road from 1991 to 1996 observed Pauline Boots "watering" the road. She believed that Mrs. Boots did so to worsen the condition of the road surface.

[37]      In November 1994 and April and May 1995, a number of letters were written to Jonas Boots by the defendant to assert its rights over the sixty-foot road allowance. To support the defendant"s position, this correspondence referred to the events in 1957 to 1959. In his letter of April 6, 1995, the Grand Chief stated: "By error, the easterly portion of your home has been constructed on the 60' wide strip." He repeated this point in his letter of May 11, 1995: "... there is no question that your new home encroaches on community property, namely the McCumber Road right of way." Both statements assume that the most western twenty feet of the sixty-foot road allowance are situated on lot 89-2. Apart from its reliance on the reference "for a distance of 68.7 ft.", supra paragraphs 31-32, the defendant presented no evidence to support this assumption.

[38]      In July 1995, after lengthy but unsuccessful negotiations, this action was commenced. In August 1995, the defendant filed its statement of defence and counterclaim and sought an interim injunction against the plaintiffs which was granted by my colleague Justice Nadon on September 8, 1995, as follows:

1.      THIS COURT ORDERS, for the purposes of this Order, that the Plaintiffs forthwith remove all physical obstacles or obstructions of any nature whatsoever, if any, placed or permitted to be placed by them on any part of the McCumber Rd. road allowance ten feet west from the edge of gravel shown on the Plan of Survey attached as Exhibit "A" to the Affidavit of Mr. Macaulay sworn August 31, 1995 and attached hereto.

2.      THIS COURT ORDERS that the Plaintiffs, their relations and agents be and the same are hereby restrained from obstructing, trespassing on or otherwise interfering with the use, as a public road, of any part of the McCumber Rd. road allowance as referred to in paragraph 1 above, and more particularly, that the Plaintiffs, their relations and agents be and the same are hereby restrained from:

(a)      placing, or permitting to be placed, any physical obstacles of any nature whatsoever on the McCumber Rd. road allowance as referred to in paragraph 1 above;

(b)      parking or leaving any vehicles on the McCumber Rd. road allowance as referred to in paragraph 1 above;

(c)      permitting any natural obstacles such as detached tree limbs to accumulate on the McCumber Rd. road allowance as referred to in paragraph 1 above;

(d)      interfering with any safety signage, hazard lights, temporary traffic signals or other warning devices or indicators erected on any portion of the McCumber Rd. road allowance as referred to in paragraph 1 above;

3.      THIS COURT ORDERS that the Order set out in paragraph 2 herein shall be effective for a period of ten days following the signing of this Order.

[39]      The spirit of this ten-day interim injunction appears to have been generally adhered to until November 1998. On November 6, 1998, and continuing during the hearing through the week of November 9, 1998, a concrete foundation was erected along the eastern edge of lot 89-2. There is no evidence identifying the persons who constructed this foundation. A witness, who visited the site on November 11, 1998, testified that the foundation was intended for a garage to be attached to the house occupied by Pauline Boots. The witness added that the foundation extended beyond a utility pole, apparently the same one shown by an Ontario Land Surveyor within the forty-foot road allowance on his unofficial plan of survey prepared for the defendant in 1995. His mandate was to measure the distances between the structures on lot 89-2 and its eastern boundary. His survey is based on plan 69967, the only material provided for this mandate. On visiting the site, he was able to locate the monuments set out in plan 69967. He located a utility pole just inside the forty-foot road allowance.

Analysis

[40]      In the absence of any proof in support of the main action, it is not necessary to consider the plaintiffs" legal rights, if any, with respect to the possession of lot 89-2.

[41]          It is useful to repeat the declaratory relief sought by the defendant in its counterclaim with respect to the sixty-foot road allowance:

60.      The defendant therefore claims:

(a)      an Order declaring that full title and interest in and to the sixty-foot road allowance known as McCumber Road running south from Cornwall Island Road East along the east boundary of Lot 89-2 is and resides in the defendant on behalf of the whole of the community of Akwesasne as a public reserve road; ...

In a draft order submitted for the Court"s consideration, the defendant suggests: "The said sixty-foot road allowance shall be measured by sixty-feet (18.288 metres) [in a westerly direction] from the eastern solid line dividing the said road and Lot 89-3-1" as shown on plan 69967.

[42]          The evidence discloses an intention by departmental officials, in the late 1950's, to widen the existing twenty-foot road allowance to sixty feet, supra paragraphs 24 and 25. Further, some of the documents indicate that the heirs understood, when they were negotiating with the Band Council and the Department, that a sixty-foot road allowance was intended. However, the evidence of this understanding is somewhat more equivocal, supra paragraphs 26 and 27. Neither of the three Band Council resolutions concerning this issue mentions the width of the road allowance.

[43]          None of the evidence situates the precise location of the proposed sixty-foot road allowance in relation to the twenty-foot lane shown on plan 2950E registered in 1943. Further, there is little, if any, evidence as to whether the departmental officials or the heirs focussed on the location of the additional forty feet required to widen the existing twenty-foot lane. In light of this gap in the evidence, the following questions arise: (a) was the additional forty feet to be taken in equal portions from either side of the existing twenty-foot lane; (b) was the sixty feet to extend in a westerly direction from the western boundary line of what is now lot 89-3-1, as suggested by the defendant"s counsel, supra paragraph 41; or (c) was a different scenario contemplated by the parties? The documents in evidence do not provide an answer to these questions. ⁵

[44]          The defendant"s best proof, relating to the location of the intended sixty-foot road allowance, is the wording of the second quit claim purportedly signed by Mike Boots sometime between 1959 and 1965. The text of this quit claim states that the northern boundary begins at the access road and continues "west in a southerly direction ... for a distance of 68.7 ft." to the north-west corner of lot 89, supra paragraph 32. (This is also shown on a sketch attached to the quit claim, as introduced in evidence.) This results in an unexplained ten-foot corridor of land within lot 89-2. It is unlikely that Mike Boots would voluntarily cede an extra ten feet of land, after two years of arguing with departmental and Seaway officials for increased compensation for the land taken for the road allowance. Moreover, the declaratory relief sought by the defendant is inconsistent with the forty-foot width shown on official plans 52729 and 69967.

[45]          The evidence in this proceeding falls short of that required to locate the exact position of the sixty-foot road allowance. Absent an updated survey or plan from a Canada Lands Surveyor based on a specific mandate to locate the sixty-foot road allowance in view of all available information, no finding can be made in this action on this issue.

[46]          In summary, on the basis of the events which occurred between 1957 through 1959, supra paragraphs 23-28, I find that there was a taking of land, pursuant to subsection 18(2) of the Indian Act,⁶ for the purposes of widening the then existing twenty-foot road allowance (plan 2950E). On the evidence before me and on the balance of probabilities, I find that the parties intended to widen the road allowance from twenty feet to sixty feet. Although none of the Band Council resolutions refers to the width of the new road allowance, the acknowledgment of compensation documents signed by the heirs of the late John Boots and the contemporary departmental correspondence refer to a new sixty-foot road allowance. Accordingly, I find that the Minister took, and paid compensation for, an additional forty feet of land to widen the existing twenty-foot lane, for the purpose of creating a new sixty-foot road allowance.

[47]          The other factual issues are more problematic.

[48]          The evidence discloses no official survey or plan setting out the expanded sixty-foot road allowance.⁷ A Certificate of Possession was issued to Mike Boots in August 1970, supra paragraph 21, under the authority of the Minister, with reference to an official plan showing a forty-foot road allowance. The most recent survey, plan 69967 registered in 1985, also shows a forty-foot road allowance. The defendant argues that these plans are in error. However, there is no evidence disclosing from where the additional twenty feet were taken. No reliable evidence was disclosed to support the position taken by the defendant in its 1994-95 correspondence, supra paragraph 37. I make no finding concerning the location of the additional twenty feet.

[49]          Therefore, declaratory relief shall be granted to the defendant in accordance with plan 69967, the best evidence introduced in this action concerning the location of the road allowance, even though the width shown therein is less than the land that was taken.⁸ The defendant is not precluded from seeking further declaratory relief in the event that the boundaries of lot 89-2, as they are set out on plans 52729 and 69967, are changed by a future plan of record confirmed by the Surveyor General of Canada in accordance with the Canada Lands Surveys Act. In its counterclaim, the defendant seeks declaratory relief only with respect to lot 89-2.

    

[50]          The defendant seeks injunctive relief only against the plaintiff Ronnie Boots and his agents.⁹ There is no evidence disclosing who constructed the foundation adjacent to the residence of Pauline Boots, supra paragraph 39. She has not been made a party to the counterclaim, either in her personal capacity or as an heir of the late Jonas Boots. The oral evidence of the lay witness that the foundation extended beyond the utility pole, apparently the same one shown on the unofficial plan of the Ontario Land Surveyor, may well be sufficient to establish that the foundation encroaches on the forty-foot road allowance shown on plan 69967. However, in this proceeding, the location of the foundation is only relevant in the context of the injunctive relief sought by the defendant. In the absence of evidence that Ronnie Boots constructed the foundation and because Pauline Boots is not a party to the action, no injunctive relief could issue concerning the foundation, even if the question of its encroachment on the road allowance were crystal clear. Accordingly, I choose to make no finding on this question of fact. The permanent injunction which will issue against Ronnie Boots will be in accordance with official plan 69967 and the terms of the interim order of Nadon J. of September 8, 1995. The defendant is not precluded from seeking, in another proceeding, further injunctive relief on the basis of better evidence.

[51]          The defendant has not impleaded the Estate of the late Mike Boots nor sought to have a person appointed to represent the Estate of the late Jonas Boots. The defendant seeks damages only against the plaintiff Ronnie Boots. As there has not been proof of monetary loss sustained by the defendant, there will be no award for general or special damages against Ronnie Boots. Nor will there be any award for punitive, exemplary or aggravated damages.

[52]          If necessary, the parties may speak to the issue of costs by conference call, to be arranged through the registry within the next seven days.

            

    

     Judge

Ottawa, Ontario

February 15, 1999

__________________

¹      Canada Lands Surveys Act, R.S.C. 1985, c. L-6, ss. 29 and 30.

²      The defendant"s documentary evidence was served on the plaintiff Ronnie Boots,pursuant to section 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The documents included minutes of St. Regis Band Council meetings, agreements entered into by the heirs of John Boots and letters or reports written by employees of the Department responsible for Indian Affairs in the late 1950's. The defendant also presented the hearsay evidence of a legal adviser with the Akwesasne Justice Department concerning many of these documents. See: R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B. (K.G.), [1993] 1 S.C.R. 740. In Apsassin v. Canada (Department of Indian Affairs and Northern Development), [1988] 3 F.C. 3 (T.D.) at 8, Addy J. found that documents made: "... in the ordinary course of duty contemporaneously with the facts stated and without any possible motive to misrepresent them" containing statements of fact and not opinion are prima facie reliable. In particular, the reliability of a document is enhanced where censure would result from an inaccuracy therein.

³      The statutory authority for the taking of lands in a reserve resides in the Minister,pursuant to the version of subsection 18(2) of the Indian Act which has been in force since August 14, 1956, see S.C. 1956, c. 40, s. 8. That authority may be delegated to the Deputy-Minister or the chief officer of the branch relating to Indian affairs, pursuant to section 3(2) of the Act. In my view, that delegation need not be proved but can be implied. See Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 at 563 as adopted by the Supreme Court of Canada in [1977] 1 S.C.R. 238">R. v. Harrison, [1977] 1 S.C.R. 238. See also subsection 24(2) of the Interpretation Act, R.S.C. 1985, c. I-21.

⁴      Plans 52729 and 69967 are consistent for the purposes of this litigation. The distances on plan 69967 are, however, measured in metres while the distances on plan 52729 are measured in feet.

⁵      In May 1957, explanatory plan 4545 was prepared for the St. Lawrence SeawayAuthority to show the intended sixty-foot road allowance. The explanatory plan lacks in detail and is not helpful in situating the precise location of the proposed sixty-foot road allowance. In any event, the plan was not prepared by a Canada Lands Surveyor and can have no legal value concerning Crown lands.

⁶      Supra note 3.

⁷ See supra note 5, where I placed little reliance on plan 4545 for the purposes of this action.

⁸ The conditions precedent for the issuance of declaratory relief are set out by the Court ofAppeal in Montana Band of Indians v. Canada, [1991] 2 F.C. 30 (C.A.). The Court of Appeal applied the test articulated by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Limited, [1921] 2 A.C. 438: "[t]he question must be a real and not theoretical question, the person raising it must have a real interest to raise it, he must be able to secure a proper contradictor, that is to say someone presently existing who has a true interest to oppose the declaration sought." This test was adopted by the Supreme Court of Canada in [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821. In this action, the issues raised by the parties are real and not theoretical. The defendant has a real and vital interest in determining the location and width of the road allowance. Finally, in view of his status as plaintiff and defendant-by-counterclaim, and as one of the occupants of lot 89-2 obstructing McCumber Road, Ronnie Boots is a proper contradictor in this matter, even though the Estate of the late Mike Boots or his heirs have not been made a party to this action.

⁹      In his oral representations, counsel for the defendant stated that he was not seeking apermanent injunction against "the relations" or family members of Ronnie Boots. These persons were not parties to this proceeding.