Cardinal et al. v. The Queen, [1982] 1 SCR 508

Supreme Court of Canada

Cardinal et al. v. The Queen, [1982] 1 S.C.R. 508

Date: 1982-04-05

Raymond Cardinal, Chief, and Edward Morin, Charles Cowan, Romeo Morin, Alex Peacock and Alphonse Thomas, Counsellors of the Enoch Band of the Stony Plain Indians, for themselves and on behalf of the Indians of the Enoch Band of the Stony Plain Indian Reserve No. 135; and The Enoch Band of the Stony Plain Indians Reserve No. 135 Appellants;

and

Her Majesty The Queen Respondent.

File No.: 16020.

1981: March 31 and April 1; 1982: April 5.

Present: Martland, Ritchie, Dickson, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Interpretation—Indian Act—Degree of assent required for valid surrender of Indian lands—Indian Act, R.S.C. 1906, c. 81, s. 49(1), (2), (3), (4).

Indians—Surrender of Indian lands—Consent required.

In 1908, a meeting was held of the male members of the Enoch Band of Indians to determine whether or not to surrender certain Indian lands. A majority of the male members of the band eligible to vote attended the meeting, and a majority of those present and voting favoured the surrender. The members assenting did not, however, represent a majority of all male members of the band who were eligible to vote. Subsection (1) of s. 49 of the Indian Act provides that: “No surrender of … a portion of a reserve … shall be valid or binding, unless the release or surrender shall be assented to by a majority of the male members of the band of the full age of twenty-one years, at a meeting or council thereof summoned for that purpose ….” Both the Federal Court, Trial Division and the Federal Court of Appeal held that the surrender was valid and in conformity with this provision.

Held: The appeal should be dismissed.

The plain meaning of s. 49(1) as applied to the facts of this appeal is that a majority vote by those present at a meeting attended by a majority of the male members of the band of the full age of twenty-one is sufficient to

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produce a valid consent to the surrender of Indian Lands. The words of s. 49(1) being clear and unambiguous, there is no need to invoke any mechanism of interpretation which might bring about a restrictive or unnatural interpretation. In light of the precautions built into the procedure of the Indian Act dealing with surrender, this natural interpretation cannot be said to expose the membership of the band to the risk of loss of property and other rights contrary to the general pattern and spirit of the Act.

The Mayor, Constables, and Company of Merchants of the Staple of England v. The Governor and Company of the Bank of England (1887), 21 Q.B.D. 160; Glass Bottle Blowers’ Association of the United States and Canada v. Dominion Glass Company Limited, [1943] O.W.N. 652; Itter v. Howe (1896), 23 O.A.R. 256, referred to; St. Ann’s Island Shooting and Fishing Club Limited v. The King, [1950] S.C.R. 211, distinguished.

APPEAL from a judgment of the Federal Court of Appeal, [1980] 2 F.C. 400; (1980), 109 D.L.R. (3d) 366 dismissing an appeal from a judgment of Mahoney J. Appeal dismissed.

B.G. Nemetz, for the appellants.

L.P. Chambers, Q.C., and Duff Friesen, for the respondent.

Ian Scott, Q.C., and Alain Dubuc, for the intervener Federation of Saskatchewan Indians.

The judgment of the Court was delivered by

ESTEY J.—On May 13, 1908 a meeting was held of the male members of the Enoch Band of Indians of Alberta to determine whether or not to surrender certain Indian lands. A majority of those present at the meeting and who voted cast their vote in favour of the surrender but the number so giving their assent did not represent a majority of all male members of the Enoch Band at the time. The immediately relevant part of the Indian Act, R.S.C. 1906, c. 81, is s. 49(1) which provides as follows:

49. Except as in this Part otherwise provided, no release or surrender of a reserve, or a portion of a reserve, held for the use of the Indians of any band, or of

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any individual Indian, shall be valid or binding, unless the release or surrender shall be assented to by a majority of the male members of the band of the full age of twenty-one years, at a meeting or council thereof summoned for that purpose, according to the rules of the band, and held in the presence of the Superintendent General, or of an officer duly authorized to attend such council, by the Governor in Council or by the Superintendent General.

2. No Indian shall be entitled to vote or be present at such council, unless he habitually resides on or near, and is interested in the reserve in question.

3. The fact that such release or surrender has been assented to by the band at such council or meeting shall be certified on oath by the Superintendent General, or by the officer authorized by him to attend such council or meeting, and by some of the chiefs or principal men present thereat and entitled to vote, before some judge of a superior, county or district court, stipendiary magistrate or justice of the peace, or, in the case of reserves in the province of Manitoba, Saskatchewan or Alberta, or the Territories, before the Indian commissioner, and in the case of reserves in British Columbia, before the visiting Indian Superintendent for British Columbia, or, in either case, before some other person or officer specially thereunto authorized by the Governor in Council.

4. When such assent has been so certified, as aforesaid, such release or surrender shall be submitted to the Governor in Council for acceptance or refusal.

On motion by the Crown the Federal Court of Appeal, operating presumably under Rule 474 of the Federal Court Rules, directed the determination of a question of law here relating to the meaning of s. 49, supra. Initially, two questions were put forward for disposition by way of a stated case. These questions were answered by Mahoney J. of the trial division but on appeal only the answer with respect to the first question was taken forward to the Federal Court of Appeal. That question is as follows:

1. whether the surrender of the 13th of May 1908 by the Enoch Band was invalid on the ground, whilst those persons who in the record of poll are listed as being in favour of the surrender, constituted a majority of those persons who are known to have voted, nevertheless they did not constitute a majority of the male members of the Enoch Band of the full age of twenty-one years according to subsection 1 of section 49 of the Indian Act, R.S.C. 1906, c. 81.

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Prior to the trial of this issue the parties filed an agreed statement of fact, the essential part of which is as follows:

3. For the purpose of such trial the parties agree on the following facts:

(a) As of May 8, 1908, there were between 30 and 33 male members of the Enoch band of Indians of the full age of 21 years and who were entitled to vote on the surrender of lands forming part of their reserve, within the meaning of section 49(1) of the Indian Act, R.S.C. 1906, c. 81.

(b) The number of male members of the Enoch band of Indians of the full age of 21 years who either assented to the surrender of the subject lands or who were recorded as being in opposition thereto was 26.

(c) The number of male members of the Enoch band of Indians of the full age of 21 years who assented to the said surrender on May 13, 1908 and who were so entitled to vote pursuant to section 49(1) of the Indian Act, R.S.C. 1906, c. 81, were 14 in number.

(d) There was executed subsequent to such vote an affidavit by one principal man of the Enoch band of Indians attesting to the surrender, pursuant to section 49(1) of the Indian Act, R.S.C. 1906, c. 81…

4. The parties are not in agreement that there was in fact a meeting of the male members of the Enoch band of Indians of the full age of 21 years on May 13, 1908, summoned for the purpose of voting on the said surrender, and that such vote was taken thereat, within the meaning of section 49(1) of the Indian Act, R.S.C. 1906, c. 81.

5. However, the parties seek the Court’s determination of the said questions on the assumption that there was such a meeting and that such a vote was taken thereat.

Section 49(1) may be capable of at least five interpretations (assuming always a validly called meeting regularly held).

1. A majority of all eligible voters in the band must attend a meeting and that same absolute majority must assent to the surrender.

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2. A majority of all eligible voters in the band must attend a meeting and a majority of those present must assent to the surrender.

3. A majority of all eligible voters in the band must attend a meeting and a majority of those present and voting must assent to the surrender.

4. A simple majority of eligible voters who attend the meeting assent to the surrender.

5. A simple majority of all eligible voters who attend and vote must vote in favour of the surrender.

The foregoing terminology assumes that the reference in the subsection to “assented to” refers to an affirmative vote by the band members on the proposed surrender. It should be noted at the outset that what is now s. 21(1) of the Interpretation Act, R.S.C. 1970, c. I-23, authorizing action by a majority when an act or thing is required to be done by more than two persons, was not in the Interpretation Act in 1906.

The learned trial judge found that the surrender in 1908 was valid stating:

A majority of their number attended the meeting or council of May 13, 1908. That was clearly a quorum; perhaps fewer than a majority would also have been but I do not have to decide that. A majority of that quorum approved the surrender. The act of that majority was the act of the band.

In reaching this conclusion the trial judge applied the common law rule with respect to unincorporated bodies comprising an indefinite number of persons, namely that “those who actually voted were held to be the necessary quorum and the act of the required majority of those was the act of the body”. However, as will be seen from the excerpt above, the effect of the decision of the learned trial judge was that a majority of the eligible voters must attend the meeting as this constitutes a

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quorum and that a majority of that quorum approved the surrender. Mahoney J. expressly refrained from deciding the question as to the effectiveness of a meeting attended by “fewer than a majority”.

The majority of the Court of Appeal dismissed the appeal confirming Mahoney J. in the result and in doing so specified a requirement of only a simple majority of eligible voters who attended the meeting. Urie J. interpreted s. 49(1) as requiring that a majority of all eligible voters be present at a meeting of the band called to consider a surrender of part or all of the reserve. To determine the portion of that majority present at the meeting required to assent to a surrender, he then turned to the common law requirements for unincorporated associates or groups. This led to the adoption of the standard of a majority vote of the eligible voters present at a meeting called for the purpose of assenting to a surrender. No distinction was made by the majority of the Court of Appeal as between a majority of members present or a majority of those voting at a meeting called for these purposes, perhaps because on the facts here it is unnecessary to do so.

Heald J. dissented, holding that the assent of a majority of all male members of the band over twenty-one was required, such assent to be given at a meeting called for that purpose. His Lordship, in construing s. 49 which is found in Part I of the Act, called in aid some provisions found in Part II of the Act dealing with advanced or special bands where somewhat analogous language is found in provisions extending a measure of self-government.

As will be seen from the agreed statement of facts set out above the parties are not in agreement that there was in fact a meeting of eligible voting members of the Enoch Band held on May 13, 1908 for the purpose of voting on a surrender of the lands in question. The courts below were, however, asked in the agreed statement to respond to the

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questions put “on the assumption that there was such a meeting and that such a vote was taken thereat”. On that basis this Court has no alternative but to proceed in the same manner as the trial and appellate divisions of the Federal Court. On the basis of the agreed statement, the vote in approval of the surrender proposed to the meeting was fourteen to twelve and there is no indication that more than twenty-six eligible voters were present at the meeting. It is also clear that twenty-six eligible voters represent a majority of all male members of the Enoch Band of the full age of twenty-one years at the date of the meeting. Attached to the agreed statement and incorporated therein by reference is an affidavit taken before a Justice of the Peace by one J.A. Markle of Gleichen, Alberta, apparently a representative of the Government of Canada and Joseph Hand, a “Principal Man of the said Band of Indians”. The affidavit states in part:

And the said Joseph Hand says:

That the annexed Release or Surrender was assented to by him and a majority of the male members of the said Band of Indians of the full age of twenty-one years then present.

That such assent was given at a meeting or council of the said Band of Indians summoned for that purpose, according to its Rules, and held in the presence of the said

…

Earlier in the affidavit a similar statement is sworn to by J.A. Markle. As will be seen, the statement as to the majority of the male members present is ambiguous. It can be read either as referring to a majority of the male members of the band which majority was present at the meeting, or as meaning a majority of those male members who were in fact present at the meeting. It matters not on the facts here, however, because it is clear a majority of all eligible voters was present and a majority of those present voted in favour of the surrender.

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I turn then to s. 49 of the Indian Act, supra. Subsection (1) stripped of those parts not directly relevant to the problem at hand provides as follows:

…no surrender of a reserve… shall be valid… unless the… surrender shall be assented to by a majority… of the band…, at a meeting… thereof summoned for that purpose…

The issue turns upon the significance of the comma appearing after the words “twenty-one years” in the full text or after the word “band” in the truncated version above. If the words following the comma are taken to modify “a majority” in the sense that it restricts the operation of the term majority to the members present at the meeting of the band, then the act of surrender is here valid and the question should be answered accordingly. On the other hand, if the words following the comma merely refer to the place where the assent of the majority is to be taken then the subsection requires an absolute majority assenting to the surrender before the surrender is valid in law.

Some help can be gained from a reference to subs. (2) which for convenience I repeat here:

2. No Indian shall be entitled to vote or be present at such council, unless he habitually resides on or near, and is interested in the reserve in question.

The effect of this subsection is to remove from the list of members otherwise eligible to assent to a surrender those Indians who do not habitually reside on or near the reserve. Nevertheless such a member remains a member of the band because only by the procedure set out in s. 13 of the Act shall an Indian “cease to be a member of the band”. It is to be assumed that the “majority” referred to in subs. (1) means a majority of those members who remain eligible to vote after giving effect to the restrictions of subs. (2). If such is not the case, then a member who does not vote for any reason, including non-compliance with subs. (2), would be given a negative vote for the purposes of determining whether a majority vote had been obtained under subs. (1). However, subs. (1) taken by itself is worded very broadly and refers only to “a majority of the male members of the band of the full age of twenty-one years”. That certainly would include members of the band who do not

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reside on or near the reserve. If the minority in the Court of Appeal is correct then the absentee member, disentitled to vote under s. 49(2) but still a member as he has not been removed under s. 13, is given a negative vote in the sense that he is included in the absolute number of male members of the band, the majority of whom must assent to the proposed surrender. The problem raised by subs. (2) places in my mind considerable doubt as to the intention of the legislator to place such significance in the comma and thereby to condition the required assent upon the attainment of an absolute majority. On the facts of this case subs. (2) has no application and the reference here to the subsection is for interpretative purposes only.

If the critical words of s. 49(1) appeared in the reverse order so that it read “unless assented to at a meeting of members summoned for that purpose by a majority of the male members of the band”, the result would be clear. In that case the key to the subsection would be found in the reference to the majority of all members of the band. In the subsection as it is written, however, the prescribed requirement of a majority would appear more logically to refer to the quorum which must be present to give validity to the assent given at the meeting. That portion of the subsection after the comma then is given a full and sensible meaning, in my view, as being merely an assignment or a prescription of a requirement that the assent be taken at a meeting. Thus when read together the requirement is that there be a meeting of eligible members of the band and that in attendance at that meeting there must be a majority of male members of the full age of twenty-one. As already said, we do not, on the facts in this appeal, need to determine whether such majority need be computed with reference to s. 49(2).

There only remains to determine the requirement for the expression of assent in the sense of that term in s. 49(1) at the meeting attended by the prescribed majority. In the common law, and indeed in general usage of the language, a group of persons may, unless specially organized, express

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their view only by an agreement by the majority. A refinement arises where all members of a defined group present at a meeting do not express a view. In that case, as we shall see, the common law expresses again the ordinary sense of our language that the group viewpoint is that which is expressed by the majority of those declaring or voting on the issue in question. Thus, by this rather simple line of reasoning, the section is construed as meaning that an assent, to be valid, must be given by a majority of a majority of eligible band members in attendance at a meeting called for the purpose of giving or withholding assent.

It may be helpful to analogize the first requirement of the majority to that of a prescription of quorum and it may be helpful to refer to the second requirement that the assent be given at a meeting as simply a prescribed mechanical method of determining the will of the meeting on the issue of assent. In adverting to the common law principle, supra, I had in mind The Mayor, Constables, and Company of Merchants of the Staple of England v. The Governor and Company of the Bank of England (1887), 21 Q.B.D. 160 at p. 165 where it was stated by Wills J. in reference to the acts of a corporation being those of the major part of the corporators corporately assembled:

This means that, in the absence of special custom, the major part must be present at the meeting, and that of that major part there must be a majority in favour of the act or resolution.

In more recent times and to the same effect, see: Gillanders J.A., in Glass Bottle Blowers’ Association of the United States and Canada v. Dominion Glass Company Limited, [1943] O.W.N. 652 (Labour Court); and ltter v. Howe (1896), 23 O.A.R. 256. To require otherwise, that is to say more than a mere majority of the prescribed quorum of eligible band members present to assent to the proposition, would put an undue power in the hands of those members who, while eligible, do not trouble themselves to attend, or if in attendance, to vote; or as it was put by Gillanders J.A. in

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Glass Bottle Blowers’, supra, at p. 656, it would “give undue effect to the indifference of a small minority”.

Of the five possibilities of meaning which may be attributed to the wording of s. 49(1), supra, we are not required to make a distinction for those present and not voting, because on the facts before the Court in this appeal there were no members present and eligible to vote who did not vote.

It is said that such a construction of s. 49(1) is in effect to replace the comma by the word ‘present’. This is so in my view only if the plain meaning is not attributed to the words “assented to by a majority… of the band…, at a meeting… summoned for that purpose”. Indeed, if the comma were removed the sense of the paragraph would be altered to diminish the requirement because then all that would be required would be a meeting at which members eligible to vote attended and at which a majority expressed their assent to the proposed surrender. At the most, the effect of the comma, in my view, is to bring about the requirements that a quorum be in attendance and that a majority of that quorum vote in favor for the further protection of the operations of the band, both of which requirements were undoubtedly met here since a majority of the eligible members were in attendance and a majority of those in attendance gave their assent.

It has also been argued that the interpretation which is now being considered is one which exposes the membership of the band to a risk of loss of property and other rights contrary to the general pattern and spirit of the Indian Act. It is perhaps well to observe in this connection that there are precautions built into the procedures of Part I of the Act dealing with surrender. Firstly, the meeting must be called to consider the question of surrender explicitly. It may not be attended to at a regular meeting or one in respect of which express notice has not been given to the band. Secondly, the meeting must be called in accordance with the rules of the band. Thirdly, the chief or principal men must certify on oath the vote and

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that the meeting was properly constituted. Fourthly, only residents of the reserve can vote by reason of the exclusionary provisions of s. 49(2). Fifthly, the meeting must be held in the presence of an officer of the Crown. And sixthly, even if the vote is in the affirmative, the surrender may be accepted or refused by the Governor in Council. It is against this background of precautionary measures that one must examine the manner in which the assent of eligible members of the band is to be ascertained under s. 49.

Reference has been made to other provisions in the Indian Act dealing with advanced bands and voting provisions in connection with modified self-government in respect thereof. I do not believe these provisions are of direct assistance in construing the surrender provisions as they are found in ss. 47 to 51. However, support can be found in wording adopted by Parliament in s. 166 which is also found in Part I and relates to the method prescribed for the election of chiefs and for the granting of ordinary consents in the name of the band. Section 166 provides as follows:

166. At the election of a chief or chiefs, or at the granting of any ordinary consent required of a band under this Part, those entitled to vote at the council or meeting thereof shall be the male members of the band, of the full age of twenty-one years; and the vote of a majority of such members, at a council or meeting of the band summoned according to its rules, and held in the presence of the Superintendent General, or of an agent acting under his instructions, shall be sufficient to determine such election or grant such consent.

It is to be observed that the voting members referred to in ss. 49(1) and 166 are identical. The language is almost precisely the same and the comma appears in the same position in the two sections. Again, in my respectful view, Parliament has required that the meeting be attended by a majority of eligible band members and that the decision of the meeting shall be by the vote of a majority of such members attending.

Finally, it was said in argument before this Court that the interpretative strictures enunciated

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by Rand J. in St. Ann’s Island Shooting and Fishing Club Limited v. The King, [1950] S.C.R. 211., at p. 219 continued to be applicable to the construction of the Indian Act, be it the Act of 1906 or subsequent versions. I do not find those general observations to be of assistance in determining the precise meaning of the specialized ss. 47 to 51 dealing with the “Surrender and Forfeiture of Lands in Reserve”. As already noted, there are the strongest indications that Parliament was alive to the need for the prescription of a system for the disposition of part or the whole of reserves so as to protect the welfare of the Indians residing thereon. It serves no purpose to interpret the language of Parliament by attributing to it meanings which are not plain and natural but rather which are super-imposed upon the words adopted by Parliament in order to promote an intention conceived by the Court to be inadequately attended to by Parliament itself. If the words employed in s. 49(1) are clear and unambiguous as in my view they are, then there is no need to invoke some mechanics of interpretation which might bring about a restrictive or unnatural interpretation. The section does not speak of quorums or of the casting of majority votes at a meeting but simply prescribes that a meeting of eligible members must be called in the prescribed manner and at that meeting there must be in attendance a majority of male members of the band of twenty‑one years or more. When such a meeting is so convened the decision to assent or not to assent to the proposed surrender is to be reached. Unless otherwise prescribed by the statute (and this statute does not do so), a meeting expresses assents by a majority of votes cast at that meeting. We are not here troubled, as I have already said, by the circumstance where there are abstentions.

The appellants in their argument in this Court found comfort in s. 49(3), particularly that part which requires that the surrender be “assented to by the band at such council or meeting” and shall then be certified by the Superintendent General or by some other appropriate officer or person described in the subsection. In my view the subsection simply provides the machinery for certification of the result of the band action and in no way qualifies or restricts the action prescribed in s. 49(1).

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I therefore come to the conclusion that of the five possible interpretations which might be placed upon s. 49(1) the plain meaning of the section as applied to the facts on this appeal is that a majority of the majority of the male members of the band of the full age of twenty-one is sufficient to produce a valid consent and accordingly the question is answered in the negative and I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Jones, Black & Company, Calgary.

Solicitor for the respondent: R. Tassé, Ottawa.