Date:
20130729
Docket: T-1112-12
T-1120-12
Citation:
2013 FC 825
Ottawa, Ontario,
July 29, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JOE TOM SAYERS
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Applicant
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and
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CHIEF AND COUNCIL OF
BATCHEWANA FIRST NATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The applicant seeks to
set aside two motions passed by the Chief and Council of the Batchewana First
Nation Band regarding housing and community initiatives on one of its reserves.
[2]
The
first motion was passed on September 15, 2011 during a regular band council
meeting:
The Batchewana First Nation Chief and Council hereby
motion to inform members that lots 6, 7, and 8 are reserved for community BFN
initiatives and Lot 9 to 17 are available for housing development. Furthermore
the name of the street will be called Waskonaywigamik Miikun meaning Lighthouse Road.
[3]
The
second motion was passed on December 20, 2011 during a special council meeting:
The Batchewana First Nation Chief and Council hereby
motion to approve the realignment of the entrance to Waskonaywigamik Miikun (Lighthouse Road) as motion by the Capital Projects Coordinator, Ed Dubois.
[4]
The
applicant claims to have an interest in the lots Lighthouse Road passes over.
Additionally, he claims that the construction of homes and a community centre
will affect ancestral burial mounds that he has cared for. Some of the mounds
are on the land in which he claims an interest. He alleges that the decisions
were made without satisfying the requirements of procedural fairness, in that
these decisions were made without notice or regard to his interests, which were
known to Council.
Background
[5]
Batchewana
First Nation has four reserve lands: i) Rankin, ii) Goulais Bay, iii) Whitefish Island and iv) Obadjiwon. This application relates to Obadjiwon, a
community approximately 80 kilometres north of
Sault Ste. Marie on the shore of Lake Superior. While comprising a single
First Nation, the reserves have different characters. Rankin, due to its
proximity to Sault Ste. Marie, is largely urban. Obadjiwon is less populated
and developed. As we will see, however, population growth and development
pressures face Obadjiwon as well, providing some of the context for this
dispute.
[6]
The
applicant is a member of the respondent Band. He served as a member of its
Council from 1988 to 1990 and again from 1999 to 2009. In or around 1994, he
began living in an abandoned lighthouse on a portion of Obadjiwon, at the end
of Corbeil Point Road. He does not have a certificate of possession nor has he
applied for an allotment of land.
[7]
The
applicant states that his uncle, Chief Edward James “Nebenaigoching” Sayers,
occupied the lighthouse in 1972 and marked the land surrounding it. At that time,
the reserve was not yet subdivided into lots; band members simply marked the land
that they would occupy. The applicant states that his uncle gave him the
lighthouse and land in 1994. Since that time, the applicant states that he has
improved the land and used it for cultural and spiritual purposes.
[8]
Cathy
Connor, the Chief Administrative Officer and a member of the Band, disputes
this evidence, saying that the lighthouse had been abandoned from time to time
and that various people have lived in it.
[9]
In
1996, a capital plan was developed for the reserves, including Obadjiwon. The
objective of the plan was to provide for orderly development, the creation of
lots for much needed housing and the designation of land for a future community
centre and other common uses. Consultants and surveyors were engaged to
prepare a plan for subdivision. Around this time, the applicant found rock
mounds near the lighthouse, which appeared to be grave sites. On the
recommendation of the applicant, Council decided that construction of a planned
road would be postponed so that an archaeological study could be conducted.
[10]
At
a public meeting on August 19, 1997, Band members met with the Chief to discuss
the archaeological study and the proposed survey plan. The applicant and seven
others expressed their concern regarding the capital plan and survey, stating
that they had not been consulted. They also advised Council that the
protection of the gravesites was their responsibility, and not that of the Band
administration.
[11]
On
March 26, 2003, the Chief and Council passed a motion, moved by the applicant, “suspending”
the capital plan in order to consult with the reserve residents.
[12]
On
June 4, 2003, Council passed a motion to retain Great Lakes Surveying Ltd. to
proceed with a topographic survey and conceptual plan for the reserve. The
applicant seconded this motion in his capacity as a councillor. On December 3,
2003, the Council met to discuss the rock mounds. The Council decided that
there should be a radar scan to determine if the mounds were authentic burial
sites. The applicant attended and opposed the motion to scan the sites,
asserting that it was his responsibility to care for the graves.
[13]
On
November 20, 2006, a special working group in Council decided that Obadjiwon should
be resurveyed, and that further research should be conducted regarding historical
uses of the lands as part of a broader social history analysis of the Band.
The surveyors were re-engaged.
[14]
The
minutes of the June 26, 2008 Council meeting are instructive. The issue of
moving forward with housing was on the agenda. After a review of the history
of the prior surveys by the Chief Administrative Officer, the minutes state:
A very lengthy discussion took place between Chief
and Council and all community members in attendance. There is a discrepancy in
the survey dated 1996; several properties shown on this survey are incorrect.
It is felt that this area should be re-surveyed and fix the problems.
[15]
The
minutes continue:
Councillor Shaun Boyer stated that hopefully this
process will resolve the issues. Whatever the outcome, not everyone will be
satisfied with it, however, we will all have to live with the resolution.
Councillor Joe Tom Sayers stated he felt everyone would give the process their best
efforts. He also stated that this is the first time residents / landowners
were given the opportunity to present their concerns.
[16]
On
November 23, 2008, Council met to discuss the report and survey. The applicant
was absent from this meeting though some of his family members attended. The
Council directed that a radar scan be conducted of the burial sites and
undertook to protect those sites. Council also determined that the land
located directly north adjacent to the lighthouse lots (lots 6 and 7) would be
designated for the new community centre. The applicant had notice of the
meeting as it was scheduled at a previous meeting which he attended. The
applicant was also absent from the Council meeting of December 12, 2008, during
which the contract for the radar scan was approved.
[17]
In
June of 2009, a company came to scan the mounds. The applicant considered this
trespass and prevented it from taking place. The next day the company returned
with a Band constable. The scans were eventually conducted with the assistance
of the police, revealing that two of the eleven mounds were likely burial
sites.
[18]
On
September 11, 2009 the Chief wrote to the applicant stating that Council had
decided to protect the burial mounds and that they were the responsibility of
the community, not one person. Council decided that the community would have
access to the area and it would be more formally protected in the future.
Council had also decided to construct a community centre and park on lots 6,
7 and 8. The Chief informed the applicant that he did not have a certificate
of possession or a recognized traditional land holding, but that he could
continue living in the lighthouse on a temporary basis.
[19]
The
opening paragraph of the Chief’s letter to the applicant is significant:
It is unfortunate that you did not attend our
Council meeting dated August 25, 2009 as per your verbal request to our Capital
Projects Coordinator on August 18, 2009 to discuss the burial mound issue.
[20]
Council’s
resolution of September 8, 2009 was confirmed at a meeting on September 22, 2009.
Council declared that part of lot 6, all of lot 7 and all of lot 8 would be
reserved for a playground, park and community centre in direct proximity to the
lighthouse. Council also declared that the applicant had no authority to
occupy the lighthouse.
[21]
The
applicant brought a motion for an interim injunction to prevent further work.
This was dismissed by Order of Justice Sean Harrington on September 12, 2012.
However, at present, the only work that has been done has been to clear brush
from Lighthouse Road and the removal of a fence.
Issues
[22]
A
band council must provide notice and an opportunity to be heard to those whose
rights or interests are directly affected by its decisions: Sparvier v
Cowessess Indian Band No 73, [1994] 1 CNLR 182. Justice Rothstein, then a member of this Court,
wrote:
While I accept the importance of an autonomous
process for electing band governments, in my opinion, minimum standards of
natural justice or procedural fairness must be met. I fully recognize that the
political movement of Aboriginal People taking more control over their lives
should not be quickly interfered with by the courts. However, members of bands
are individuals who, in my opinion, are entitled to due process and procedural
fairness in procedures of tribunals that affect them. To the extent that this
Court has jurisdiction, the principles of natural justice and procedural
fairness are to be applied.
[23]
Therefore,
there are three questions for this judicial review:
a. Whether the applicant
has a right to or interest in the property at issue;
b. If so, whether that
right or interest is directly affected by the motions under review; and
c. If so, whether the
band provided him with procedural fairness.
Discussion
Interest
[24]
The
applicant asserts a traditional right of occupancy, relying on the practices of
band members before the reserve was subdivided. This is contrary to the band’s
land policy, section 2000.14 of which
provides, “No person shall hold any interest in a parcel of land on the
Territories until it has been officially allotted to them by the Council or
they acquire the land by devise or descent.” If there was any traditional
manner of acquiring land, this is superseded by the land use policy, in place
since 1992. In this regard, the applicant’s earliest claim to possession is
in 1994.
[25]
That
said, for the time being, the lighthouse is the applicant’s residence and the
Chief and Council have consented to this in writing, though on a temporary
basis. While he does not have a right to possession and may be evicted on
reasonable notice, for now the community has sanctioned the de facto arrangement.
In my view, the applicant has an interest in his continued occupation of the
lighthouse.
[26]
That
said, the applicant has not demonstrated any legally recognizable interest in
the disputed land. The objective of the Indian Act, (RSC, 1985, c I-5)
and its provisions regarding use and occupation of reserve lands is to preserve
the lands for the benefit of the Band as a collective whole, regardless of the
wishes of any particular band member: The Queen v Devereux, [1965] SCR
567. Under the Indian Act, legal title to reserve land is vested in the
Crown, for the use and benefit the band. No individual may possess reserve
land without an allotment from the band council: Indian Act, s 20. This
principle has been applied frequently, and in diverse settings: Joe v Findlay, [1978] BCJ No 1221 (BCSC). In consequence, the applicant does not have and
cannot obtain rights to the lighthouse by way of adverse possession: Bigstone
Cree Nation v Boskoyous, [1997] 2 CNLR 13 (ABQB). He cannot claim an
entitlement to the property without a certificate of possession. Moreover,
subject to the requirements of procedural fairness, a band may withdraw a
preliminary allotment. A right of occupation does not constitute a guarantee: Parker
v Okanagan Indian Band Council, 2010 FC 1218.
[27]
On
December 5, 2006, Council approved the applicant’s request to be reimbursed $3500.00
for the septic system he installed on the property in 1998. I do not accept
the argument that this payment constitutes de facto or de jure
recognition of the applicant’s interest in the lands. This payment is equally
consistent with Council’s stewardship of its land and encouraging proper water
management.
[28]
Protection
of the burial mounds and the survey are of course, related issues. The Band
could not proceed with a survey for residential lots and community uses until
the number and location of burial mounds were identified. The letter of
September 11, 2009 from Chief Sayers to the applicant reflects this. It also
indicates that the applicant was aware of Council’s intentions. To repeat, the
letter reads, in part:
It is unfortunate that you did not attend our
Council meeting dated August 25, 2009 as per your verbal request to our Capital
Projects Coordinator on August 18, 2009 to discuss the burial mound issue.
[29]
Chief
Sayers’ letter is evidence of two key events: first, that the applicant had a
discussion with the Band official responsible for capital projects on August
18, 2009 and second that he did not attend the Council meeting of August 25,
2009, which he had requested and presumably been granted permission to attend, during
which the survey would be considered.
[30]
The
applicant had been on notice that the land is not his and that the community as
a whole is entitled to it. The applicant claimed that he is the protector of
the burial mounds near the lighthouse and believed he was entitled to exclude
others from the property. The Chief corrected this misunderstanding in a
letter dated September 11, 2009. Council confirmed this in a declaration on
September 22, 2009.
[31]
To
conclude, I find that the applicant does not have a right to or an interest in
the property at issue. Additionally, even if the applicant has a recognizable
interest in the land he has not established that he is adversely affected by
the development. The decisions at issue do not impinge on his residence at the
lighthouse. In fact, one decision moved the road eight metres further from the
lighthouse. The December 20, 2011 motion was to approve a slight realignment
of the road eight metres north, actually taking it further away from the
contested lands.
[32]
The
application fails at these threshold questions. I will, nevertheless, consider
the procedural fairness issue, in the alternative.
Procedural
Fairness
[33]
The
applicant asserts that he did not have notice of the meetings at which the
impugned decisions were made.
[34]
The
motions at issue cannot be divorced from the consultations, investigations and
motions which preceded them. When viewed in context, these are not new
decisions, but minor variations on a plan first proposed in 1997. The
applicant was on Council in 2003 when the decision was made to conduct radar
scans of the burial mounds. The survey which was approved on September 15,
2011 is similar to the draft surveys from 2003 and 2006. The applicant has
been actively involved with the earlier surveys, to the point of engaging the
surveyors and describing to the surveyors the lines of existing uses, including
those lines which he had personally marked. The applicant was involved in
commissioning the survey proposals and had knowledge of the proposed survey
lines around lots 6, 7 and 8 in and around 2004. The applicant himself moved
some of the key motions before Council. He voiced his concerns in June of 2008
at the Council meeting and was aware of the research conducted by Amy Boyer
that year.
[35]
The
applicant was absent during three Council meetings in November and December of 2008
and in January of 2009, where he could have participated in further discussion
about the development.
[36]
Ms.
Connor’s evidence was that each month a newsletter is mailed to every Band
member including the applicant. Council meetings are announced in the
newsletter. Ms. Connor states that minutes of every Council meeting and copies
of the motions are maintained in the office, open to all members. The
applicant states that this book has not been kept updated. This book was not
produced in evidence.
[37]
The
applicant stated that he was suspended from Council in October of 2008 and then
was not re-elected in February 2009. The respondent denies that the applicant
was suspended, and Ms. Connor has given evidence that he was not suspended.
The Minutes note the applicant as absent. The applicant now qualifies his
position by noting that he was effectively suspended because the Band would not
allow his travel from Obadjiwon to Rankin and Goulais River. There is,
however, no evidence of a policy to pay for travel nor of a request and denial
for compensation. I conclude that, as councillor, the applicant had effective
notice of Band business at the meetings of October and November of 2008 and
January 2009, and in particular had notice of the decisions to be taken by
Council.
[38]
As
noted at the outset, the Batchewana First Nation is comprised of various
reserves, separated by some 80 kilometres. This poses challenges to Council in
ensuring continued and meaningful participation in Band affairs. Council seeks
to address this by rotating Council meetings between the communities.
[39]
The
applicant’s evidence is that he did not receive notice of the Council meetings though
the Band administration’s posting of Council meetings or agenda. Notice spread,
at best, by word of mouth. When pressed, the respondent could not identify in
the record an agenda providing notice of the intention to consider the survey
and adopt the plan. The monthly mail-out is a 50-page document and does not
contain any notice of the meetings, let alone of proposed topics to be
determined. Had other individuals been directly affected by the meetings at
issue, I would have concluded that no notice had been provided, and depending
on the nature of their interest, concluded that procedural fairness was
breached. Serious consideration should be given to separating the schedule of Council
meetings and agenda from the more community events focus of the monthly
mail-out. The current practice does not promote effective or reasonable
notice.
[40]
However,
it is clear on the evidence that the applicant was aware of all elements of the
decision making process. He had notice both by reason of his prior role as
councillor and, secondly, by reason of his personal engagement in the issue of
the burial mounds.
[41]
To
conclude, the applicant did not have a recognizable interest in the lands, over
and above his interest as a band member. He had, in any event, actual notice
of the Council meetings where the two motions were passed, and was personally
aware of the plan of survey and of his opportunity to make his views known.
[42]
Therefore,
I do not accept that the applicant did not have notice or an opportunity to be
heard. The motions at issue should not be artificially set apart from the
lengthy discussions and consultations which preceded them. The plans for a
community centre, park and road were not new or unexpected.
Conflict of Interest
[43]
Prior
to being elected Chief, Dean Sayers signed a declaration on August 19, 1997
stating that he occupied some of the same lands at issue. He declared that the
survey had been completed without regard to the original markings. The
applicant states that though the Chief no longer lives in the community or
occupies any of the lands, this declaration places him in a conflict of
interest.
[44]
The
declaration signed by Dean Sayers (now Chief) was prompted by the original 1997
survey plan. It reads:
* The creation of the capital plan and survey for
Batchawana Reserve was conducted without following our input.
* The final plan was never been presented or
willingly shared with us by the administration on Rankin reserve
* The survey was completed and registered without
any of us being approached regarding our original metes and bounds for our
properties. The survey is therefore null and void.
* The protection of the gravesites on the
Batchawana Reserve from any disturbance, including any representative from the
Rankin administration, is entirely our responsibility, and no viewing,
photographing, videorecording, measuring, surveying or other technological
methods of examination shall proceed without the express consensus of the
undersigned. Under no circumstances shall the graves be desecrated by
exhumation or test digs.
[45]
The
applicant notes that Chief Sayers never renounced his interest in the lands.
[46]
The
Band, for its part, observes that the Chief took no interest in the lands for
over twelve years and took no steps to assert an interest in the land. Indeed
the applicant has been operating a business out of a trailer on the lands without
interference by the Band or Chief Sayers.
[47]
Councillor
Dorothy Elie Gingras is said to hold an animosity towards the applicant. In an
email dated July 8, 2007, she stated that she would not participate at an event
because the applicant’s presence created a conflict for her. The applicant has
made complaints to the police that members of her family have driven
erratically on his cul-de-sac and that she and her family have taken
photographs of his property. The applicant states that she opposes him living
on the property because she wants to build a house there.
[48]
However,
the motions at issue affirm that the land over which the applicant claims an
interest is to be held for the benefit of the community, providing Elie Gingras
with no personal benefit. Her alleged ill-will towards the applicant may be
relevant had the motion been to evict him from the lighthouse, but as I have
found, the applicant is not directly affected by the motions, which are general
in nature.
[49]
In
my view, these allegations do not create a reasonable apprehension of bias or
any conflict of interest. The applicant has not demonstrated that the motions
at issue in any way benefit, or could be perceived to benefit, Chief Sayers and
Councillor Elie Gingras.
[50]
The
test for a reasonable apprehension of bias is well established: Committee for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369, at p
394, “… the apprehension of bias must be a reasonable one, held by reasonable
and right-minded persons, applying themselves to the question and obtaining
thereon the required information.”
[51]
I
do not believe that a reasonable person, fully informed of the long history and
appraised of the facts, would conclude that Chief Sayers or Councillor Gingras
were in a conflict of interest. Since 1996 the Band has been moving to address
the problem of housing in a principled and fair manner. This included the
approval of topographic plans, conceptual designs of the reserve (June 4,
2003), the historical survey, the radar scan (November 23, 2008) and surveys (September
22, 2009).
[52]
The
legal terms governing possession of reserve lands are clear, and Chief Sayers
can have no special interest in the absence of a certificate of possession.
There is no conflict of interest.
[53]
It
is important to place the bias allegation in its context. Band council members
may in fact be predisposed to a certain view, whether it be over the pace and
nature of development, band priorities, or a wide range of other issues
associated with running the affairs of the Band. Councillors may be
diametrically opposed to other councillors and may not share the views of some
of the band members. Personal animosity or deeply held but divergent views are
common in all forms of governance, whether Band or municipal councils,
provincial legislatures or Parliament. While not to be encouraged, personal animosity
does not disqualify band council from decision making. In making these
observations, it is important to note that there are important caveats
and exceptions, such as where councillors may play a role in the administration
or adjudication of elections, awarding certificates of possession, in any
dealings they may have with individual issues or individual band members, band
constables, or other appointed officials or other situations which may trigger
the duty of procedural fairness. The language of Justice Rothstein in Sparvier
is unequivocal on the obligation of Council to adhere to the principles of
procedural fairness.
Conclusion
[54]
At
present, there is no specific dispute between the applicant and any other
party, as the applicant has no right to or interest to the land in question.
Council had already decided, as far back as 2003, that the land north of the
lighthouse would be designated for a community centre and had notified him in
2009 that he did not have exclusive possession of the land.
[55]
There
is no evidence that the development will affect the applicant’s residence in
the lighthouse. If the band wishes to end the applicant’s occupation of the
lighthouse in the future, he has an entitlement to notice and full opportunity
to be heard. However, it appears that his interest in the lighthouse is currently
unaffected.
[56]
Even
if the applicant is directly affected by the motions at issue, he has had ample
notice and many opportunities to be heard.
[57]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. The
parties may make submissions on costs within twenty days of the date of this
decision
"Donald J.
Rennie"
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