[1] What is involved in this appeal is whether a decision of the Federal Court Trial Division, acting under section 24 of the Federal Court Act, R.S.C. 1985, c. F-7, and section 60 of the Seabird Island Indian Assessment By-Law, dated September 25, 1992, rendered prior to the decision of the Supreme Court of Canada in Osoyoos Indian Band v. Oliver (Town), [2001] S.C.J. No. 82, can stand in the light of the Supreme Court's decision. In my view, it cannot.

[2] This appeal stems from taxation assessments related to a fibre optic cable system, which is owned by Telus Communications ("Telus" or the "respondent", formerly, B.C. Tel) and runs across the Seabird Island Indian Reserve (the "Reserve"). The Assessor for Seabird Island Indian Band (the "appellant") assessed the cable system in 1997 and 1998, pursuant to the bylaws of the Seabird Island Indian Band (the "Band"). The respondent appealed the assessments to the Seabird Island Indian Band Board of Review (the "Board"), arguing that the cable system was not on land, "in the reserve" within the meaning of s. 83(1)(a) of the Indian Act, R.S.C. 1985, c. I-5. The Board held that the land and the cable system were "in the reserve" and, therefore, were properly assessed by the appellant. The respondent appealed to the Federal Court Trial Division. In a decision now reported as B.C. Tel v. Seabird Island Indian Band, [2000] 4 F.C. 350, the Appeal Judge, a Trial Division Judge of this Court, who did not have the benefit of the Supreme Court's recent teachings in Osoyoos, supra, allowed the appeal, holding that the property was not "in the reserve" and, therefore, it was not taxable by the Band.

[3] Whether the fibre optic cable system is "in the reserve" depends mainly on the interpretation of the 1956 Order in Council, P.C. 1956-1659 (the "Order" or "Seabird Order"), whereby the Governor General in Council authorized the province of British Columbia to take land, which now contains the cable system, from the Reserve for road purposes.

II. FACTS

[4] I should say at the outset that many of the facts in this case are remarkably similar to those in Osoyoos, supra. Unfortunately, however, as in Osoyoos, the factual background is somewhat opaque. Perhaps this is attributable to the strange fact that the province of British Columbia is not a party to the litigation. It seems rather curious that the province has left the respondent, a private concern, to advocate what seem to be, in some measure, the interests of the province and its municipal institutions. Nevertheless, the salient facts of this matter will now be outlined.

[5] The Reserve was set aside in 1879 for the Hope, Ohamil, Peters, Popkum, Skawahlook, Union Bar and Yale Bands of Indians in common. It covers the whole of Seabird Island, which spans four thousand five hundred and eleven and one half acres, except perhaps for the one hundred foot wide corridor of land at issue in this appeal, which measures forty-four and fifteen hundredths acres. As indicated, whether that land now forms part of the Reserve is the very question before this Court.

[6] On February 18, 1958 the Committee of the Privy Council formally created the Seabird Island Indian Band by consolidating the existing bands on the island.

[7] On November 7, 1956, prior to the consolidation of the former bands, the Governor in Council made the Order that lies at the heart of this appeal. The Seabird Order provides:

WHEREAS the Minister of the Department of Highways, Province of British Columbia, has applied for the lands hereinafter described, being a portion of Seabird Island Indian Reserve, in the said Province for road purposes;

AND WHEREAS the sum of $5,282 has been received from the said Province in full payment for the land required in accordance with a valuation approved by the Band Council of the Seabird Island Band of Indians on the 14^th of October, 1954, and officials of the Indian Affairs Branch.

THEREFORE, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to section 35 of the Indian Act, is pleased hereby to consent to the taking of the said lands by the Province of British Columbia and to transfer the administration and control thereof to Her Majesty in right of the Province of British Columbia:

Description

The whole of a right-of-way, in Seabird Island Indian Reserve, in the Yale District, in the province of British Columbia, said right-of-way containing by admeasurement forty-four acres and fifteen hundredths of an acre, more or less, as said right-of-way is shown bordered red on a plan of record number Rd four thousand two hundred and twenty-one in Indian Affairs survey records at Ottawa, a copy of which is deposited in the land Registry Office for the New Westminster Land Registration District at New Westminster under plan number sixteen thousand two hundred and eighty-one.

Subject to an easement for a power line right-of-way granted in 1953 to British Columbia Electric Company Limited and as shown on plan B.C. 1129 in the said survey records at Ottawa.

Reserving all mines and minerals whether solid, liquid or gaseous which may be found to exist within, upon or under such lands, together with full power to work the same and for this purpose to enter upon, use and occupy the said lands or so much thereof and to such extend as may be necessary for the effectual working and extracting of the said minerals.

[8] This Order is remarkably similar to Order in Council 1957-577 (the "Osoyoos Order"), which was enacted the following year and eventually considered in Osoyoos, supra. The Supreme Court reproduced the Osoyoos Order as follows (I have underlined the differences for ease of reference):

WHEREAS the Minister of Agriculture for the Province of British Columbia has applied for the lands hereinafter described, being a portion of Osoyoos Indian Reserve number one, in the said Province for irrigation canal purposes;

AND WHEREAS the sum of $7,700 has been received from the Province of British Columbia in full payment for the land required in accordance with a valuation approved by the Band Council of the Osoyoos Band of Indians on the 30^th of March, 1955, and officials of the Indian Affairs Branch.

DESCRIPTION

The whole of those rights-of-way, in Osoyoos Indian Reserve number one, in the province of British Columbia, said rights-of-way containing by admeasurement fifty-six acres and nine hundredths of an acre, more or less, as said rights-of-way are shown bordered red on a plan of record number Irr twenty-one hundred and thirty-four in the Indian Affairs survey records at Ottawa; saving and excepting thereout and therefrom all that portion lying within a right-of-way for a road, as the last aforesaid right of way is shown bordered red on a plan of record number Rd thirty-six hundred and eighty in said records, a copy of which is deposited in the Land Registry Office for the district of Kamloops at Kamloops under number A thirteen hundred and seventy-seven; also saving and excepting thereout and therefrom all roads reserved by the Province of British Columbia by provincial order-in-council number one thousand and thirty-six, also subject to a prior Grant of Easement for a Power Transmission Line granted to West Kootenay Power and Light Company Ltd. by Order-in-Council P.C. 143 dated January 25, 1937, for a term of thirty years, this right-of-way containing by admeasurement 22 acres and two-tenths of an acre, more or less, and is shown on a plan of survey by R.P. Brown, B.C.L.S. dated November 16, 1936 and which is of record in the Indian Affairs Branch as Plan No. M. 2691.

Reserving thereout and therefrom all mines and minerals and the right to work the same. [The Seabird Order in Council contains further particulars, reserving also the right to enter upon, use and occupy the said lands for the purpose of extracting mines and minerals.]

[9] There are a few differences between the two orders, which should be noted. The Osoyoos Order provided for the Minister of Agriculture, rather than the Minister of the Department of Highways, to acquire an interest in land in an Indian reserve for irrigation canal purposes, rather than road purposes. The province of British Columbia paid a higher sum of money for the land at issue in the Osoyoos Order, which covered a slightly larger geographical area than the Seabird Order. Of course, the dates, the numbers of the plans of record and the identity of the Land Registry Offices are different in each order. The Osoyoos Order excepted out one or more roads already reserved by the province and, like the Seabird Order, was subject to a prior grant of an easement for a power transmission line. The specifics of these exceptions account for most of the differences between each order's Description. Finally, the reservation of mines and minerals in the Seabird Order is somewhat more detailed. Aside from these differences, and several clearly immaterial grammatical points, the terms of the orders are virtually identical. The main difference relied on by the respondent is in the provincial legislation under which the two interests in land were taken, which will be described later.

[10] Although the precise date is not known, sometime after the Seabird Order was made the British Columbia Department of Highways created a corridor, 100 feet wide, across the Reserve. The province eventually constructed the Lougheed Highway, a major highway that runs between Vancouver and Hope, British Columbia, in the middle of the corridor. The paved part of the Highway is thirty-eight feet wide with a shoulder, ditch and buffer zone on either side. According to the Board, the Highway has been used exclusively and continuously by the province for over forty years.

[11] An easement granted to British Columbia Electric Company Limited runs along the corridor's northern edge. That easement was authorised by the Committee of the Privy Council on January 14, 1953. Although this grant is not in issue in this appeal, it is worth reproducing here, as it may provide additional context for interpreting the Order now in dispute.

The Committe of the Privy Council have has before them a report dated January 6, 1953, from the Minister of Citizenship and Immigration, representing:

That British Columbia Electric Company Limited, with Head Office at the City of Vancouver, British Columbia, a corporation empowered by statute to take or use lands or any interest therein without the consent of the owner, has applied for the use of the several parcels of land described in the Schedule hereto, being portions of the five Indian Reserves hereinafter named, all being situate in Yale District in the said Province, which lands are required for electric power transmission line purposes;

That the said Corporation has agreed to pay the sum of $2,042.25 for the use of the said land for so long as the same is required for the aforesaid purpose in accordange with the valuation placed thereon by the officials of the Indian Affairs Branch and the several Band Councils of the respective Bands of Indians for whose use and benefit the lands have been set apart, particulars of which are the following:

Seabird Island Indian Reserve - $ 607.74

Ruby Creek Indian Reserve No. 2 - 125.00

Skawehlook Indian Reserve No. 1 - 177.00

Chawutben (Katz) Indian Reserve No. 4 - 1,063.00

Lukseetsis-sum Indian Reserve No. 9 - 69.50

Total $2,042.25

The Committee, therefore, on the recommendation of the Minister of Citizenship and Immigration, advise that Your Excellency may be pleased, pursuant to the provisions of section 35 of the Indian Act, to consent to the British Columbia Electric Company Limited exercising its aforesaid statutory powers in relation to the lands described in the Schedule hereto, and to authorise the grant to British Columbia Electric Company Limited of an easement for an electric power transmission line right of way on the said lands upon payment of the aforesaid sum of $2,042.25, and upon such further terms, conditions, and provisions as the Minister of Citizenship and Immigration [illegible] deem necessary and advisable.

The "Schedule" contains metes and bounds descriptions of the specific location and position of the parcels of land subject to the easement referred to in this document.

[12] At the hearing the appellant made a motion to introduce new factual evidence to the effect that a part of the Lougheed Highway rests on lands that are not owned by the province absolutely, but instead are leased, originally from Canadian Pacific Limited and now from Her Majesty the Queen in right of Canada. I will discuss the appellant's motion in further detail below, however, I mention it here because, if accepted, such evidence contributes to the factual background underlying this appeal.

[13] An agreement dated September 26, 1961 between Her Majesty, represented by the Minister of Citizenship and Immigration, and the British Columbia Electric Company Limited allowed, with the Band's consent, for the construction and maintenance of poles for electrical, communication and television purposes on the island. Both the agreement and the Band's consent form acknowledge that the agreement was required because poles would be constructed on "Reserve land" within the meaning of the predecessor to the modern Indian Act. This could be seen as an admission in 1961 of the existence of an Indian interest in the land. However, it is unclear whether the particular area described in the consent form is, in fact, within the corridor.

[14] The respondent, Telus, is a corporation that supplies telephone and telecommunications services. On November 2, 1994 the British Columbia Ministry of Transport and Highways granted to the respondent a permit to construct, use and maintain poles and anchors along the Lougheed Highway. Pursuant to that permit, the respondent installed an aerial fibre optic cable system eight kilometres and four hundred metres long, which is strung on poles that run along the inside of the northern edge of the corridor, twenty-five feet from the road itself. It is not clear whether the respondent's cable is strung along newly constructed poles, or along poles that existed pursuant to the 1961 agreement. Both parties agree, however, that the respondent's cable system is not located within the easement granted to the British Columbia Electric Company Limited.

[15] Pursuant to s. 83(1)(a) of the Indian Act the Band made assessment and taxation bylaws that were duly approved by the Minister of Indian Affairs and Northern Development. The appellant then assessed the respondent for its use of reserve land and issued assessment notices for the 1997 and 1998 taxation years. The District of Kent in the province of British Columbia also assessed the respondent's cable system. Thus, the respondent has been assessed twice. However, the assessment by the District of Kent is in abeyance pending the outcome of this case.

III. LEGISLATIVE FRAMEWORK

[16] Before proceeding, it is helpful to set out the legislation that governs the issues in this appeal. The Indian Act, R.S.C. 1952, c. 149, contained the following provisions at the time the Seabird Order was issued:

2. (1) In this Act,

...

(o) "reserve" means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band;

18. (1) Subject to the provisions of this Act, reserves shall be held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

35. (1) Where by an Act of the Parliament of Canada or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.

(2) Unless the Governor in Council otherwise directs, all matters relating to compulsory taking or using of lands in a reserve under subsection (1) shall be governed by the statute by which the powers are conferred.

(3) Whenever the Governor in Council has consented to the exercise by a province, authority or corporation of the powers referred to in subsection (1), the Governor in Council may, in lieu of the province, authority or corporation taking or using the lands without the consent of the owner, authorize a transfer or grant of such lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council.

(4) Any amount that is agreed upon or awarded in respect of the compulsory taking or using of land under this section or that is paid for a transfer or grant of land pursuant to this section shall be paid to the Receiver General of Canada for the use and benefit of the band or for the use and benefit of any Indian who is entitled to compensation or payment as a result of the exercise of the powers referred to in subsection (1).

[17] The relevant provisions of the current Indian Act, R.S.C. 1985, c. I-5, are as follows:

83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,

(a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve;

...

(2) An expenditure made out of moneys raised pursuant to subsection (1) must be so made under the authority of a by-law of the council of the band.

(3) A by-law made under paragraph (1)(a) must provide an appeal procedure in respect of assessments made for the purposes of taxation under that paragraph.

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.

[18] Portions of the Highway Act, R.S.B.C. 1948, c. 144, at the time of the Seabird Order, read as follows:

5. Unless otherwise provided for, the soil and freehold of every public highway shall be vested in His Majesty, his heirs and successors.

8. (1) It shall be lawful for the Minister in his absolute discretion to make public highways [...] and to take either at the time the highway is first made or declared or at any subsequent time, additional land beyond the width of the highway so established where necessary for the use or purpose of the Department of Public Works [...]; and for such purpose, by himself, his agents, and workmen, without any notice to and without any consent on the part of any person owning or occupying the land, or having or claiming any estate, right, title, or interest therein, to enter upon, set out, ascertain, and take possession of any private roads and any lands [...] and also in the like discretion to enter upon any land for the purpose of erecting and maintaining snow-fences, or cutting any drains that may be thought necessary, or for the purpose of taking therefrom any gravel, timber, stone, and other materials required for the construction or maintenance of any highway.

9. The entry by the Minister, his agents, servants, or workmen, as in the last preceding section mentioned, for the purpose of taking possession of any roads or lands shall operate as a complete extinguishment of every title and claim to the roads or lands so entered upon and taken possession of.

11. The Minister may at any time, by notice published in the Gazette, [...] discontinue and close in whole or in part any highway [...]. The land comprised in any highway which has been discontinued and closed may become the property of, the owner of the land of which it originally formed part, or the owner of the land adjoining the land so transferred, or may be leased by the Minister to either of those owners, or may be sold, leased, or disposed of by public auction of tender under the authority of the Lieutenant-Governor in Council, or may, under the authority of the Lieutenant-Governor in Council, be leased or transferred to the Dominion Government. [...]

IV. PREVIOUS DECISIONS

The Seabird Island Indian Band Board of Review

[19] On August 4, 1998 the Board denied the respondent's appeal and upheld the appellant's 1997 and 1998 assessments, on the basis that the province only had the right to use the transferred land for road purposes and did not have fee simple title to the transferred land. The Board found that if the transferred land should cease to be used for road purposes, then the land would revert to the Band. Consequently, it determined that if the province ceased to use a portion of the transferred land, used it for another purpose or if some else occupied and used a portion of that land, then the land would no longer be used for the purpose granted and would revert back to the Band.

[20] The Board then concluded that the lands occupied by the respondent's fibre optic cable system were not being used for road purposes and, consequently, even if the land had been removed from the Reserve by the 1956 Order in Council, it had reverted back to the Band as it was not used for the purpose granted. Therefore, according to the Board, the respondent's system was in the Reserve and subject to assessment and taxation by the Band.

[21] Pursuant to section 24 of the Federal Court Act, R.S.C. 1985 C. F-7 and section 60 of the Band's assessment bylaws the respondent appealed the Board's decision to the Federal Court Trial Division on September 18, 1998.

The Federal Court Trial Division

[22] The Appeal Judge allowed the appeal and concluded that the transferred land on which the fibre optic cable was installed was not part of the Reserve and, therefore, not subject to taxation by the appellant.

[23] The Appeal Judge indicated that in order to extinguish the Band's interest in the Reserve land, the Crown's intention must be "clear and plain", as determined by the Supreme Court in Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119, and this Court in Canadian National Railway Co. v. Matsqui Indian Band (1998), 162 D.L.R. (4^th) 649. He reasoned that, as the transfer in this case depended on what the province wanted to take, it was necessary to look at the province's intention to discover what the federal government consented to. The Appeal Judge examined ss. 5, 8, 9 and 11 of the B.C. Highway Act, supra, in force in 1956, to determine that the province's intention was to acquire fee simple title. In fact, the Appeal Judge was not convinced that anything less than fee simple title would enable a province to build and maintain a highway. The Appeal Judge also referred to the fact that the Band had never attempted to exercise control over the corridor. On the whole, he determined that the language used in the Order in Council did not contain anything to detract from the clarity of the province's intention to acquire absolute title.

[24] The Appeal Judge went on to reject the argument that the land was no longer being used for road purposes. He noted that the corridor continues to be used for road purposes notwithstanding the presence of the fibre optic cable system over the transferred land. Regardless, he held that the land would not revert to the Band even if it had ceased to be used for road purposes.

V. ISSUES

[25] The broad issue in this appeal is whether the respondent's fibre optic cable system was properly assessed pursuant to the Band's bylaws. The appellants raise two underlying questions in this regard. First, did Order in Council 1956-1659, enacted pursuant to s. 35 of the Indian Act, supra, extinguish the entire aboriginal interest in land in the corridor, so that the Lougheed Highway corridor is no longer "in the reserve" within the meaning of s. 83(1)(a)? If so, did the land upon which the fibre optic cable system lies cease to be used for road purposes and, therefore, revert back to the Band and become, once again, "in the reserve" within the meaning of s. 83(1)(a)?

VI. ANALYSIS

A. The Motion to Introduce New Evidence on Appeal

[26] As mentioned above, the appellant made a motion at the hearing to introduce new factual evidence on appeal. Rule 351 of the Federal Court Rules, 1998 reads:

351. New evidence on appeal - In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.

Because this motion impacts directly upon the facts before this Court, it is appropriate to deal briefly with it at the outset of the analysis.

[27] In its motion, the appellant sought to adduce new evidence that, despite the provisions of the B.C. Highway Act, supra, a part of the Lougheed Highway rests on lands that are leased, originally from Canadian Pacific Limited and now from Her Majesty the Queen in right of Canada. According to the appellant, the fact that the province of British Columbia constructed and now maintains the Lougheed Highway on leased lands conclusively rebuts the Appeals Judge's finding and respondent's argument that, under B.C. law, a fee simple was absolutely necessary to construct and maintain a major highway.

[28] Generally, new factual evidence can be considered by an appellate court if it could not have been discovered earlier through reasonable diligence, is practically conclusive of an issue on appeal and, of course, is credible (Amchem Products Inc. v. British Columbia (Workers' Compensation Bd.), [1992] S.C.J. No. 110 at para. 6 (Q.L.); Frank Brunckhorst Co. et al. v. Gainers Inc. et al. [1993] F.C.J. No. 874 at para. 2 (C.A.) (Q.L.)). I have no reason to be suspicious of the credibility of this evidence, which the respondent has not made an issue. I am also persuaded that all parties were entirely unaware of this evidence at the time of the trial, and it could not have reasonably been discovered earlier than it was. The only question is whether the evidence is practically conclusive.

[29] As Sharlow J.A. explained in Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, one must enquire whether the evidence "could reasonably be expected to affect the result of the trial". I do not take this statement to mean that it is necessary for the evidence to have determined or changed the result of the trial, but rather that it likely would have influenced the decision. In this case, one of the central issues is whether or not a complete extinguishment of the aboriginal interest in the land was necessary to fulfill the public purpose of constructing and maintaining the Lougheed Highway. The evidence sought to be introduced would establish the fact that a leasehold interest, as opposed to full and absolute ownership of the land, was and is sufficient for that purpose. To me, it is clearly reasonable to expect that evidence of this fact would have affected the Appeal Judge's finding, at para. 30, that "[t]he Court is not convinced, however, that anything less than a fee simple interest, in 1956, could allow a province to build and maintain one of its major highways." It is impossible to say for certain whether this would have changed the outcome of the case, but I have no doubt that, on the correct legal analysis, this evidence would have been valuable and influential, and "could reasonably be expected to affect the result of the trial"(Chippewas, supra at para. 20).

[30] Moreover, even if the appellant had failed to satisfy the three-prong test set out above, it is well settled that this Court retains an overriding discretion to admit new evidence nevertheless. This discretion may be exercised to avoid an undue burden on scarce judicial resources and "permit a complete record on the appeal so as not to leave the Court in any doubt as to the surrounding circumstances" (Glaxo Wellcome PLC v. Canada (Minister of National Revenue - M.N.R.), [1998] F.C.J. No. 358 at para. 12 (C.A.) (Q.L.); see also Amchem, supra at para. 7).

[31] In my view, this is also a situation where this Court should exercise that discretion. The factual background in this appeal is somewhat deficient, and the interpretation of a nearly fifty-year-old document depends in large part upon the contextual factors that may shed light on its enactment. In fact, the respondent itself argues that this case turns on the contextual factors that surround the grant of land in the Order. It would undoubtedly be valuable to have before this Court the fullest version of the facts, circumstances and events possible in order to facilitate our interpretive task.

[32] Therefore, the appellants motion to adduce this evidence is granted, with costs in the cause.

B. The Interpretive Framework: Osoyoos

[33] I begin the legal analysis by setting out a framework with which to approach these issues. To that end, it is helpful to discuss in some detail the recent decision of the Supreme Court of Canada in Osoyoos, supra. In that case, Iacobucci J., writing for the majority, held that the Osoyoos Order, which contained terms virtually identical to the Seabird Order, granted less than a fee simple interest and, therefore, an irrigation canal was still "in the reserve". Iacobucci J. did not dispute that, if necessary, full ownership of land could be taken pursuant to s. 35 of the Indian Act, supra. However, the pith of the majority's judgment was that if either full ownership of the land or something less than that are equally capable of fulfilling the public purpose for which the land was taken, and the Order in Council is ambiguous, then the interpretation least intrusive to the Band's interest should be preferred. Gonthier J., writing for the minority, thought that s. 35 allowed for the expropriation of full ownership of land. Since full ownership was reasonably required for irrigation canal purposes and, in his view, the Osoyoos Order was unambiguous, full ownership was thereby granted.

[34] At least two overarching themes that arise in the context of dealings with an aboriginal interest in reserve land influence the result of this appeal.

[35] The first overarching principle, accepted by all Justices of the Supreme Court of Canada, is that the Crown owes a fiduciary duty to the band when it participates in removing land from a reserve. Therefore, in the context of s. 35 of the Indian Act, the Crown ought to reconcile the public's interest and the band's interest by consenting to transfer only the minimum land required to fulfill the public purpose (Osoyoo, supra at paras 47, 51-55). Gonthier J., for the minority, was of the view that the fiduciary obligation in Osoyoos did not include a duty to preserve the band's taxation jurisdiction because, as in this case, the power to tax came into effect after the enactment of the Osoyoos Order (ibid. at 135). However, I do not take this as detracting significantly from the Crown's duty to impair aboriginal interests in reserve land to the minimum extent possible.

[36] Notably, both Iacobucci J. and Gonthier J. cited La Forest J. in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at 143, where he said:

... it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. ...

At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote.

Thus, enactments aimed at abrogating Indian rights should be interpreted as narrowly as possible, within the limits inferred from surrounding and underlying policy considerations. This seems to me to be an incontrovertible proposition and, not surprisingly, widely accepted.

[37] The second theme to bear in mind is that an aboriginal interest in reserve land is sui generis in nature (Osoyoos, supra at paras. 41-47 per Iacobucci J.). It is fundamentally similar to aboriginal title, as both are inalienable except to the Crown, both are rights of use and occupation and both are held communally. Therefore, traditional common law principles related to real property may not be helpful to give effect to the true purpose of a dealing related to reserve land (ibid. at para. 43). It is also important to note that an Indian band cannot unilaterally add to or replace reserve lands (ibid. at para. 45), and that an aboriginal interest in land is more than just a fungible commodity because of important and unique cultural values (ibid. at para. 46). These principles, in conjunction with the Crown's fiduciary obligations, dictate that "a clear and plain intention must be present in order to conclude that land has been removed from a reserve" (ibid. at para. 47; see also Matsqui, supra at para. 27 per Décary J.A.; [1973] S.C.R. 313">Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 at 404 per Hall J. dissenting). This proposition was also accepted by the Appeals Judge in this case, whose reasons were cited by Iacobucci J..

[38] However, this view is not shared by all Justices of the Supreme Court. Gonthier J. suggested that the fundamental premise that underlies a constitutionally protected aboriginal right, such as aboriginal title, has no bearing on an aboriginal interest in reserve land granted purely by statute (Osoyoos, supra at paras 158-174). He felt that if the existence of an aboriginal interest in reserve land stemmed entirely from modern legislation, then unlike other aboriginal rights it cannot be premised on a relationship with land that preceded sovereignty (ibid. at paras. 166-7, citing R. v. Van der Peet, [1996] 2 S.C.R. 507, R. v. Adams, [1996] 3 S.C.R. 101, and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010). Therefore, it does not fit into the same category of rights protected under s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[39] Yet simply because a bare aboriginal interest in reserve land may arguably fall short of the special constitutional status conferred upon other aboriginal rights, I am not convinced it necessarily follows that such an interest can be extinguished through less than a clear and plain intention to do so. Given the principles described by Iacobucci J. and the Crown's fiduciary obligation under s. 35 of the Indian Act, it makes sense that only a clear and plain intention can extinguish that interest. In any event, this Court is bound by the reasons of the majority of the Supreme Court in Osoyoos, supra.

[40] The next question is whether, in light of these principles, the Seabird Order in Council is ambiguous or whether it evinces a clear and plain intention to completely extinguish the Band's interest in the corridor.

C. Interpreting the Order in Council

1. The Purpose of Interpreting the Order

[41] Before proceeding, it is necessary to say something about s. 83(1)(a) of the Indian Act in order to determine what to look for when interpreting the Order. According to the Supreme Court of Canada, s. 83(1)(a) should be given a broad reading, and "unless the entire interest of a band is removed, land remains in the reserve for the purposes of s. 83(1)(a)" (Osoyoos, supra at paras. 49-50, emphasis added).

[42] Throughout these proceedings, and in Osoyoos, supra, the terms "fee simple" and "easement" have been used regularly to describe the potential interest transferred to the province by the Governor in Council. However, what is really being transferred between the federal and provincial Crowns is not an ordinary conveyance of title in "fee simple", but the administration and control of lands (ibid. at para. 88 per Iacobucci J., and para. 181 per Gonthier J., citing G.V. La Forest, Natural Resources and Public Property Under the Canadian Constitution, (Toronto: University of Toronto Press, 1969) at 18-19).

[43] We must be careful when using the common law property concepts of "fee simple" and "easement", not only because of the special nature of public ownership, but also because of the fact that this transfer involved an aboriginal interest in reserve land (Osoyoos, supra at paras. 43-44, 70). Moreover, bearing in mind that the sole purpose of interpreting the Order is to determine whether the Band retains an interest "in the reserve" for the purpose s. 83(1)(a), we must not lose sight of the proper question to be answered by interpreting the Order in Council.

[44] That question is not whether the Order granted either a fee simple or an easement to the province, but rather, whether the federal government intended to completely extinguish the entire aboriginal interest in the Reserve. To use the words of Iacobucci J., the question for the purpose of s. 83(1)(a) is whether "the entire interest of a band is removed" (Osoyoos, supra at para. 50). This is a subtle but important difference in that the essential issue does not concern what the province has, but what the Band retains. It is too easy to get sidetracked if one focusses on the interests of the province, as indicated by the provincial legislation, rather than the true interests of the public and of the Band. In addition, because the Order was enacted prior to the consolidation of various Indian bands into the Seabird Band, the question, technically, concerns what the predecessors to the Band retained.

2. The Language of the Order

[45] That said, it is natural to begin by assessing the language of the Order in Council in order to discover a clear and plain intention to extinguish the entire aboriginal interest of the Band. As discussed above, the language of the Seabird Order is strikingly similar to that of the Osoyoos Order, which the majority of the Supreme Court of Canada found to be ambiguous. To me, the fact that the clarity of the Order in Council in Osoyoos, supra, like the one before this Court, is in dispute and that the Justices of the Supreme Court of Canada can have legitimately disagreed as to the meaning of the Osoyoos Order, suggests that the Crown's intention, as expressed in the language of the Order in this case, is not clear and plain. Let me explain in more detail.

[46] Because of the similarities between the two Orders, I will not discuss at length the various potential interpretations of each word and phrase, but instead will highlight the principal sources of ambiguity as discussed by the Supreme Court in Osoyoos, supra.

[47] The Supreme Court noted that some phrases in the Osoyoos Order suggest that the entire aboriginal interest was extinguished, and some suggested otherwise. To begin, the use of the term "land" is inherently ambiguous as it is almost universally defined to include "interests in land" (ibid. at para. 87). Therefore, as the Supreme Court said, "[t]he use of the term "land" is not determinative of the scope of the interest being conveyed" (ibid.). There is nothing at all in this case that is capable of distinguishing the Supreme Court's conclusion in this regard.

[48] In addition, the phrase "a portion of Seabird Island Indian Reserve" could legitimately be construed as referring to some of the bundle of property rights that make up the property interest in the Reserve (Osoyoos, supra at para. 81 per Iacobucci J.). As the Supreme Court noted, "[a] right to use the land for a restricted purpose is part of the bundle of rights that make up the property interest in the reserve and so may be referred to as a ‘a portion' of the reserve." Alternatively, this phrase could merely indicate what was transferred (ibid. at para. 177 per Gonthier J.). With respect to the Seabird Order, I cannot find any evidence to favour one interpretation over the other and, therefore, this phrase is ambiguous to me.

[49] The phrase "right-of-way" is similarly ambiguous. In the words of Iacobucci J., "it is not clear from the context in which it appears in the Order in Council whether the term ‘rights-of-way' necessarily refers to an easement as it is traditionally known, or some greater interest in a corridor of land" (ibid. at para. 82 per Iacobucci J.). This is because, although under the common law, a granting of a "right-of-way" does not give the holder a fee simple interest or the right to exclusive possession, that phrase might have been intended merely to physically describe the corridor of land (ibid., see also paras. 182-7 per Gonthier J.). As there is support from the Supreme Court of Canada for both interpretations, the use of this language also sheds little or no light on the intention of the federal government.

[50] The Supreme Court has also emphasized that the word "take" can refer to ownership or an interest less than full ownership (ibid. at paras. 85-86 per Iacobucci J., and para. 180 per Gonthier J.). It does not necessarily refer to the acquisition of full title and the extinguishment of all other interests. Therefore, it is not helpful in distilling the meaning of the Order as a whole.

[51] With respect to the words "administration and control", the Supreme Court held that this language does not per se remove the land from a reserve (ibid. at para. 88). As discussed above, such language is commonly used to describe the transfer of administrative control from one emanation of the Crown to another (ibid.). This type of transfer does not automatically extinguish the entire aboriginal interest in the land. As Iacobucci J. explained, "[r]eserve land can be, and is in many cases, held by a province for the benefit of an Indian band" (ibid.). Therefore, this language also aids little is clarifying the intention of the federal government.

[52] The language of the reservation of mines and minerals to the Band is somewhat different in the Seabird Order than in the Osoyoos Order. In Osoyoos, supra, the Supreme Court determined that such a clause had become "boilerplate" and, therefore, was not determinative of the true intentions of the federal government in light of other factors in that case (ibid. at para. 79 per Iacobucci J.).The reservation in this case, however, contains further particulars as well as a reservation of the right to enter upon, use and occupy in order to extract minerals from the land in the corridor. The Appeals Judge commented at para. 28 that such a reservation would only be meaningful if the Order contemplated a transfer of absolute title of the surface rights (see also ibid. at para. 187 per Gonthier J.). Although I acknowledge the reservation of mines and minerals in this case is a factor that suggests that aboriginal interest may have been otherwise extinguished, given the concerns expressed by the Supreme Court, I am not convinced that this factor is determinative of the issue.

[53] In sum, the terms of the Seabird Order are not sufficiently different than the Osoyoos Order to justify a conclusion that it expresses a clear and plain intention to completely extinguish the entire aboriginal interest in the corridor.

[54] However, the thrust of the respondent's argument is that the contextual evidence in this case is sufficient to infer such an intention. As noted by Iacobucci J., "in making its intention clear and plain, the Crown does not necessarily have to use language which refers expressly to its extinguishment of aboriginal rights" (Osoyoos, supra at para. 57, citing R. v. Gladstone, [1996] 2 S.C.R. 723 at para. 34). Yet, as further explained in Osoyoos, supra at para. 84, "[w]hile express language is not strictly necessary, courts should not take away an aboriginal interest in land by implication unless clearly and plainly supported by the context." Therefore, I will address the surrounding context as best I can, given the paucity of evidence.

3. The Context of the Order

[55] One of the primary contextual factors to consider is the provincial legislation pursuant to which the transfer of land was authorized, since the federal government could not "grant an interest greater than the one the province was authorized to take under its own legislation" (Osoyoos, supra at para. 62). In Osoyoss, supra, the Water Act, R.S.B.C., 1948, c. 361, ss. 21(1), (2), generally authorized the province of British Columbia to acquire land that was "reasonably required" for irrigation canal purposes. In this case, it is the Highway Act, supra, that generally authorized the province to take or use land.

[56] The key provision of the Highway Act, supra, is s. 8, which at the time read (emphasis added):

[57] Other relevant provisions of the Highway Act are ss. 5, 9 and 11, which at the time read as follows (emphasis added):

5. Unless otherwise provided for, the soil and freehold of every public highway shall be vested in His Majesty, his heirs and successors.

9. The entry by the Minister, his agents, servants, or workmen, as in the last preceding section mentioned [section 8], for the purpose of taking possession of any roads or lands shall operate as a complete extinguishment of every title and claim to the roads or lands so entered upon and taken possession of.

[58] The respondent relies heavily on the language of the provisions of the Highway Act, supra, which it emphasizes is quite different than the language of the provincial statute in Osoyoos, supra. The Appeal Judge held that, linked together, the provisions of the Highway Act make clear and plain the province's intention to extinguish all other interests and to transfer to itself the fee simple in lands taken for highway purposes. He held (at para. 25) that, "[i]n light of the clarity with which the old Highway Act highlights the intentions of the province to transfer the fee simple, ... the relevant question is whether the order contains anything to detract from this clarity." In this respect, according to the Supreme Court's decision in Osoyoos, supra, the Appeal Judge erred.

[59] In correcting the same error made by the majority of the British Columbia Court of Appeal in Osoyoos Indian Band v. Oliver (Town), 1999 BCCA 297 (B.C.C.A.), the Supreme Court of Canada commented that "this approach is contrary to the clear and plain intention test for extinguishment" (Osoyoos, supra at para. 84). The Appeal Judge's error was in assuming that the terms of the transfer are, prima facie, determined by the language of the provincial legislation. Rather, as explained in Osoyoos, supra at para. 69 (emphasis added), "the scope of the statutory power to transfer interests in land is constrained by the terms of the [provincial legislation]". The Governor in Council cannot grant more than the province is empowered to take, but can grant less (Osoyoos, supra at paras. 62, 69 ,136).

[60] The language of the provincial legislation is not determinative of, nor does it establish a presumption regarding the federal government's intention. As Iacobucci J. explained (ibid. at para. 80):the only intention relevant to the inquiry is that of the grantor of the interest. Section 35 of the Indian Act gives the Governor in Council the absolute discretion to define the terms of the transfer, and thus the relevant inquiry is one of determining the intention of the Governor in Council, as evidenced by the Order in Council. Gonthier J. also mentioned that "[i]t is for the government to decide, governed by its fiduciary obligation, the appropriate limits to the amount of land and the nature of the interest in land that it is transferring" (Osoyoos, supra at para. 134). The federal government's fiduciary obligation is owed to the aboriginals, not to the province. Therefore, it is incorrect to presume, absent an indication to the contrary, that the federal government intended to grant to the province what it wanted. In short, the province may not have received what its legislation might normally have empowered it to take in the context of non-aboriginal interests in land.

[61] The Supreme Court was clear that the Crown's fiduciary obligation under s. 35 mandates that the Governor in Council "grant only the minimum interest required to fulfill [the] public purpose"(Osoyoos, supra at para. 52-55). The public purpose may or may not always coincide with the language of the provincial legislation. It is crucial to recognize that the terms of the transfer are influenced by the public purpose, not by the language of the provincial legislation or the province's intention. Therefore, the presumption, if any, is that the federal government intended to grant only the minimum interest required to fulfill the public purpose, as is often but not always indicated by the provincial legislation. It is in this way that the Crown balances its obligations to the public and to the Band (ibid.).

[62] That said, the language of the Highway Act is not irrelevant. The Appeals Judge was correct to consult the provincial legislation, as it is one of several contextual factors that may illuminate the intention of the federal government. That is, while the language of the provincial legislation is certainly not determinative of the federal government's intentions, nor does it establish a presumption in favour of the respondent's position, it is nevertheless contextual evidence that may elucidate the terms of the grant described in the Order in Council. In this respect, the language of the Highway Act, supra, is one of the factors that favours interpreting the Order as suggesting that the grant operated as a "complete extinguishment" of the aboriginal interest in the corridor (s. 9). However, I do not believe that the legislative language, by itself, establishes a clear and plain intention and, therefore, it is not conclusive of the matter.

[63] Other contextual evidence upon which the respondent relies heavily is the fact that the Lougheed Highway was not yet built at the time of the grant to the province. According to the respondent and the Appeal Judge, this indicates that the Crown intended to extinguish absolutely the aboriginal interest in the corridor. However, such a conclusion relies upon correctness of the assumption that nothing less than that could suffice to construct and maintain the highway. The Appeal Judge was "not convinced .. that anything less than a fee simple interest ... could allow a province to build and maintain one of its major highways" (at para. 30).

[64] I note, however, that there is and never was any evidence submitted in support of this position. As Iacobucci J. noted "as a general matter the Court should be reluctant to take away interests in land in the absence of conclusive evidence" (Osoyoos, supra at para. 65). It is inconsistent with the principle of minimal impairment and, therefore, incorrect to require the Band to adduce evidence to rebut a presumption that absolute ownership by the province was necessary. The onus, if any, is on the respondent to establish that only an absolute extinguishment of the aboriginal interest in the corridor would do.

[65] In fact, the only contextual evidence in this case, including the new evidence submitted to this Court, suggests that it was not necessary to completely extinguish the Band's interest in the corridor to construct and maintain the Lougheed Highway. The Supreme Court of Canada has found that less than absolute title can certainly suffice for the purposes of operating and maintaining a canal and, more importantly, building and maintaining a railway (see Canadian Pacific Ltd. v. Paul, [1998] 2 S.C.R. 654 at 671; and Osoyoos, supra). In the absence of evidence to the contrary, the same can be said of a highway.

[66] Moreover, the land in the corridor is subject to a variety of other interests, none of which preclude the province from adequately satisfying the public need for the construction and maintenance of the Highway. For one, the corridor was at the time of construction of the Highway, and is still subject to the easement granted to the British Columbia Electric Company Limited. Obviously, the province did not feel it was necessary to extinguish that interest. The province also has no problem sharing the corridor with the respondent's fibre optic cable system. There is also important new evidence, admitted on appeal, to indicate that at least part of a major highway can exist on railway land that is merely leased. Finally, the Highway Act itself allows for the Minister to "enter upon any land" to enable the "construction or maintenance of any highway", thus indicating to me that it is not strictly necessary for that purpose to extinguish all other interests in the land. Given that there is no evidence whatsoever to support the contrary position, it is clearly wrong to suggest that it was necessary to completely extinguish the aboriginal interest in order to construct and maintain the Highway.

[67] The respondent argues that such an absolute extinguishment was necessary for constitutional reasons. Section 91(24) of the Constitution Act, 1867 gives exclusive jurisdiction to the federal Parliament over Indian reserves. The respondent submits that if the entire aboriginal interest was not extinguished, then provincial laws, including the Highway Act, supra would be constitutionally inapplicable to that land. Consequently, according to the respondent, the province would be unable to build and maintain the Lougheed Highway. I cannot accept this argument. Section 88 of the Indian Act as it now reads (s. 87 of the Act as it read in 1952) expressly states that all provincial laws are applicable to reserve lands except to the extent they are inconsistent with or already addressed by the Indian Act.

[68] Additional contextual factors may also help clarify the Order. The respondents argue that, had the federal government intended to grant to the province less than an absolute interest in the land, it would have used language similar to that in Order in Council P.C. 1953-30 (the "1953 Order"), which granted an easement to the British Columbia Electric Company Limited. According the respondent, the Seabird Order would have consented to "the use of the said land for so long as the same is required for the aforesaid purpose", as done in the 1953 Order. In the opinion of the respondent, by using different language in each of these Orders in Council, the federal government intended to achieve a different result.

[69] Upon first glance, this evidence does weigh in the respondent's favour. On the other hand, using this reasoning, one must conclude that if the federal government intended to grant a different interest to the province of British Columbia in this case than it did in Osoyoos, supra, it would have used different language in each of the Orders, which it did not. That is, the necessary corollary of the respondent's argument is that by using the same language in different Orders, the federal government intended to achieve the same result. If that is indeed the case, then the Seabird Order must be seen to confer an identical interest as the Osoyoos Order.

[70] However, I note that the Osoyoos Order, like the Seabird Order, was also "subject to a prior Grant of Easement for a Power Transmission Line". Although I am not sure whether the specific language of the prior grant was in evidence before the Supreme Court, the following comments of Iacobucci J. are apt in the circumstances. He explained, at para. 82 of Osoyoos, supra, that the prior grant of an easement "does not, by comparison, necessarily render the other two rights of way something other than an easement." These remarks were made in the context of analysing, by comparison, the internal language of the Osoyoos Order. His comments are even more applicable when comparing the language of two separate and distinct documents. Although the 1953 Order provides an example of one type of language that may be used to transfer less than an absolute interest in land, it does not clearly and plainly follow that different language cannot achieve a similar result. Thus, although the 1953 Order may be relevant, it is not determinative of the matter.

[71] Moreover, relying on indirect evidence, such as the language of an earlier Order in Council, would require me not only to interpret the Seabird Order, but first to interpret the earlier Order to establish a framework for comparison. Only then might it be possible to glean some help from the language in one Order, in deciding the intention of the other. Given the factual record in this appeal, this Court cannot engage in that inquiry. Consequently, I am not persuaded that there was a clear and plain intention to entirely extinguish the aboriginal interest in this land.

[72] Although the parties have not emphasized it, a word should be said about the 1961 agreement to give permission to the British Columbia Electric Company Limited to "construct ... and maintain upon the Reserve poles ... and one or more lines of wire for the distribution of electrical energy and for communication and television purposes." All parties to that agreement expressly realized that permission was necessary because the land was "Reserve land within the meaning of the Indian Act", as it read at the time. If the permission was sought and granted with respect to land in the corridor, then to me, it would be nearly incontrovertible that such land was admitted, by the parties to that agreement, to be subject to the Band's interest. The question is, therefore, whether this agreement specifically contemplates land in the corridor or not.

[73] The agreement states that the Reserve is "situate, lying and being on Seabird Island". It does not, however, state that the Reserve is the whole of Seabird Island. Thus, it is unclear whether the agreement refers to the whole island or simply most of the island, excepting out the part containing the Lougheed Highway corridor. It might be possible to infer that if the parties to this agreement contemplated that it did not relate to the Lougheed Highway corridor, since that land was not "Reserve land", they might have said so. Alternatively, it is possible to infer from the omission of such a statement, that such a point was so obvious it did not require mentioning. To me, either inference is legitimate.

[74] A reference to particular land is found in the Band Council Resolution, which expressly states that the agreement sought specifically to accommodate an extension to a power line "along the Seabird Island roadway adjacent to the Maria Slough as shown on Pole Plan No. 24239 dated June 15, 1961." That Plan is not in evidence, and there is no indication whether the roadway referred to is in or near the corridor. As it is unclear whether this agreement, in fact, evinces a concession that the Lougheed Highway corridor was "Reserve land" and, therefore, subject to the Band's interest, it is a neutral factor with respect to the interpretation of the Seabird Order.

4. Conclusion

[75] In sum, although the language of the Order and the context surrounding this case are virtually identical to the facts in Osoyoos, supra, there are several differences here. To review, first, the express language of the reservation of mines and minerals is slightly different. Second, the language of the provincial legislation is different. Third, whereas the canal was already constructed, the highway was not. Fourth, the language of an earlier Order in Council refers specifically to the "use" of land. Finally, a 1961 agreement acknowledges that the permission of the federal government was necessary to erect power lines on Reserve land. The crucial question, therefore, is whether the slight differences in the terms of the transfer, in conjunction with additional contextual evidence not present in Osoyoos, establish a clear and plain intention to extinguish completely the aboriginal interest in the corridor.

[76] I cannot say they do. Nothing in this case is sufficient to differentiate it from Osoyoos, supra, so as to establish a "clear and plain" intention to completely extinguish the aboriginal interest in the corridor. The language of the Seabird Order, like the Osoyoos Order, is genuinely ambiguous. The provincial legislation cannot be determinative of anything, but only acts as a constraint placed upon the Crown to grant only an interest that is within the scope of the province's own statutory power. Moreover, I am not persuaded that the construction and maintenance of the corridor necessarily required an absolute extinguishment of the aboriginal interest. In fact, the circumstances suggest the opposite. The language of the 1953 Order is merely one of the ways, but certainly not the only way, that the federal government might have transferred less than an absolute interest in land. The 1961 agreement does little or nothing to supplement the analysis.

[77] In conclusion, as explained in Osoyoos, supra at para. 68, "the interpretation that impairs the Indian interests as little as possible should be preferred, so long as the ambiguity is a genuine one". Embracing that principle, I have concluded, as I am bound to do, that because of the genuine ambiguity in the Seabird Order, it must be interpreted to mean that the entire aboriginal interest in the Lougheed Highway corridor was not extinguished. To borrow the words of Iacobucci J., therefore, I cannot say that "the entire interest of a band is removed" and, consequently, "land remains in the reserve for the purposes of s. 83(1)(a)" (Osoyoos, supra at para. 50). Given that the Band retains its interest in land "in the reserve", it is unnecessary for me to identify precisely the interest granted to the province. Suffice it to say that the Order in Council falls short of completely extinguishing the "entire interest" of the Band and, therefore, the Band is entitled to exercise the powers granted by s. 83(1)(a) of the Indian Act. Thus, the Appeal Judge's decision cannot stand in light of Osoyoos, supra.

[78] I should end by addressing the potential misapprehension that the result of the corridor being "in the reserve" for the purposes of s. 83(1)(a) of the Indian Act is to enable the Band to wreak havoc with the maintenance and operation of the road itself or any other interest in the corridor. In fact, this is not the case. For one, the appellant acknowledges that it is not entitled to tax the province in respect of land in the corridor. Also, even under the Indian Act, the Band does not have an unfettered right to enact by-laws that are incompatible with the interest created pursuant to s. 35 (Osoyoos, supra at para. 75). Indeed, the result for the respondent in particular is merely that it must pay its taxes to the Band rather than the District of Kent.

D. Reversion to the Band

[79] Because, for purpose of s. 83(1)(a) of the Indian Act, the Band's entire interest in the Lougheed Highway corridor was not removed from the Reserve, it is unnecessary for me to consider whether the land would revert back to the Band had the aboriginal interest been completely extinguished.

VII. DISPOSITION

[80] This appeal should be allowed, the decision of the Appeal Judge should be set aside and the appeal from the Seabird Island Indian Band Board Review should be dismissed with costs to the appellant of his appeal and in the Trial Division.

"A.M. Linden"

J.A.

"I concur

Alice Desjardins J.A."

NOËL J.A. (Dissenting Reasons)

[81] In my respectful view, the reasoning of the Supreme Court in Osoyoos Indian Band, supra, supports the conclusion reached by the Appeal Judge in this case.

[82] I agree that the wording of the Order in Council with which we are concerned is strikingly similar to the one reviewed by the Supreme Court in Osoyoos. However, there are two crucial differences which, in my respectful view, would have led the majority to reach a different result in Osoyoos.

[83] I refer first to that part of the majority decision under heading "The Nature of the Interest Transferred Under Section 35 in this Case" which I have reproduced in its entirety:

58. Section 35 clearly permits the taking of reserve land for public purposes. Moreover, it is clear and plain that s. 35 authorizes the taking or use of a range of interests in land, up to and including a fee simple interest. This is obvious from an ordinary and grammatical reading of the words of the section. However, a more fundamental question is whether s. 35 of the Indian Act authorized the removal of lands from the reserve for the purposes of s. 83(1)(a) in the circumstances of this case. [Emphasis in original]

59. In seeking to expropriate reserve land under s. 35(1) of the Indian Act, the Province was only able to take or use land that it was empowered to take under an Act of the provincial legislature. Section 35(1) reads:

35. (1) Where by an Act of ... a provincial legislature Her Majesty in right of a province ... is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council ... be exercised in relation to lands in a reserve or any interest therein. [Emphasis in original]

The words "the power" clearly refer to that power contained in the Act of the provincial legislature referred to in the opening lines of s. 35(1). Thus, the Province could only exercise "the power" given to it by the relevant Act of the legislature. [My emphasis]

60. The parties concede that the Minister of Agriculture applied for the lands at issue under s. 21 of the Water Act, as inferred from the recitations of the Order in Council, i.e. "the Minister of Agriculture ... applied for the lands ... for irrigation canal purposes". Section 21 of the Water Act provides:

21.__(1) In this and the following three sections "land" includes any estate or interest in or easement over land.

(2) Every licensee shall have the right to expropriate any land reasonably required for the construction, maintenance, improvement, or operation of any works authorized under his licence ... [Emphasis in original]

61. Thus, under s. 21 of the Water Act, the Minister of Agriculture was only empowered to expropriate the "estate or interest in or easement over land" that was "reasonably required" for the purposes of the canal, not more. The Province could not do an end run around the limitations on its powers inherent in the Water Act and expropriate a greater interest than was reasonably required for the canal by proceeding under s. 35(1) of the Indian Act. [My emphasis]

62. In the same way, although s. 35(3) permitted the Governor in Council to short-cut the formal expropriation process, neither could the Governor in Council do an end run around the limitations on provincial powers of expropriation and grant an interest greater than the one the Province was authorized to take under its own legislation. [My emphasis] section 35(3) provides:

(3) Whenever the Governor in Council has consented to the exercise by a province ... of the powers referred to in subsection (1), the Governor in Council may, in lieu of the province ... taking or using the lands without the consent of the owner, authorize a transfer or grant of such lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council. [Emphasis in original]

63. By reference to "the powers referred to in subsection (1)", s. 35(3) authorizes the Governor in Council to grant or transfer only "such lands" as could have been taken by the Province under the relevant statutory authority, in this case, the Water Act. In other words, the Governor in Council could only grant the "estate or interest in or easement over the land" that was "reasonably required" for the canal. This interpretation of s. 35 is not only consistent with its plain and ordinary meaning, but it is also supported by the principle of interpretation which favours a narrow reading of statutes which limit Indian rights (see para. 67 below). [My emphasis]

64. _In the result, in the circumstances of this case, because the source of the power to expropriate was the Water Act, the discretion to grant "land" pursuant to s. 35(3) was limited to the land or interest in land "reasonably required" for the canal. [My emphasis]

65. This raises the question of what type of interest is reasonably required for the canal. The evidence before the Court is insufficient to provide a clear answer. The respondents argue that since the canal is a permanent structure, they therefore must have the exclusive right to use and occupy the land. However, while the canal seems to be a permanent structure on the land, this fact should not be overstated. There was no evidence to indicate what kind of structure the canal is. Stripped to its essence, it is a ditch lined with concrete. Furthermore, it may be inferred that the fee simple to the land was not necessary to construct the canal since no transfer of title was made at the time of its construction. As well, since the canal was already built when the transfer was made, the interest in question is that which is reasonably required to operate and maintain the canal only. Moreover, it is obvious that the fee simple is not necessary to operate and maintain the canal since those activities are currently the responsibility of the Town of Oliver, which appears to have some kind of leasehold interest in the land. A canal is similar in nature to a railway in that both are permanent structures on the land involving operation and maintenance activities, and this Court has found that a grant of a statutory easement can be sufficient for the purposes of building and maintaining a railway (Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654, at p. 671). As noted above, as a general matter the Court should be reluctant to take away interests in land in the absence of conclusive evidence. [My emphasis])

[84] This reasoning was sufficient to dispose of the appeal in Osoyoos. Having found that it had not been shown that anything more than a leasehold interest or an easement was "reasonably required" to construct, operate or maintain the canal within the meaning of the Water Act, the Court was bound to conclude that the Order in Council did not convey a greater interest (Osoyoos, paragraph 69). Irrespective of anything else, the provincial government could not take more, and the federal government could not grant more, than what the Water Act authorized.

[85] No such restriction exists here. On the contrary, the Highway Act as it read at the relevant time, contemplated that "Unless otherwise provided for, the soil and freehold of every public road shall be vested in His Majesty ..." (section 5). That this Act generally provides for the taking of a freehold in land rather than some lesser interest is not surprising. While every road can conceivably be built and operated on leased lands, or on a mere right of way, it would have made no sense in 1956, anymore than it would today, to build a major Highway on land held by a third party. The Appeal Judge's finding to that effect (reasons, paragraphs 23, 24 and 30) is based on the words of the Highway Act and plain common sense.

[86] The new evidence allowed in by my colleagues does not detract from the conclusion reached by the Appeal Judge on this point. It shows that exceptionally the Province took a lesser interest from Canadian Pacific Railway Company with respect to a limited strip within the 100 foot corridor running through part of the reserve. The record makes it clear that Canadian Pacific did not want the lands running along its railway right of way to be dedicated for Highway purposes (Motion Record, pages 10-11). The Highway Act expressly contemplates that the Province could take a lesser interest where "otherwise provided" (section 5).

[87] I do not believe that the Appeal Judge in reaching the above noted conclusion proceeded on the basis that the provincial legislation was prima facie determinative of the terms of the transfer (Linden J.A., paragraph 58); his reasons make it clear that the only relevant intention is that of the Crown acting in its federal capacity. However, in determining this intention, he found it useful to consider the request to which the grantor was responding (reasons, paragraphs 16, 17 and 18).

[88] I can detect no error in the approach adopted by the Appeal Judge. Indeed, the majority in Osoyoos specifically refers to paragraphs 13 to 19 of the reasons of the Appeal Judge in the present matter as reflecting the proper approach in matters such as this (Osoyoos, paragraph 47). The Appeal Judge nowhere departs from this framework of analysis. In the end, only a clear and plain intention on the part of the federal government can support a conclusion that land has been removed from a reserve (reasons, paragraph 19).

[89] The other crucial difference between the two Orders in Council lies in the last clause which deals with mineral rights. In Osoyoos, the majority of the Judges, relying on a finding made by Lambert J.A. of the B.C. Court of Appeal, held that the reservation of mineral rights in that case was a "boiler plate" provision and thus not properly indicative of the intention of the grantor (Osoyoos, paragraph 79).

[90] A "boiler plate" provision as these words suggest is a standard clause which is systematically reproduced usually verbatim in a series of instruments having the same object (Black's Law Dictionary, sixth edition, page 175). The fact that such clauses are automatically inserted appears to have led the majority in Osoyoos, to hold that, although the reservation of mineral rights was otherwise "quite instructive", no reliance could be placed on it.

[91] The exact wording of the clause in Osoyoos was as follows:

Reserving there out and therefrom all mines and minerals and the right to work the same.

[92] In contrast, the clause in the Order in Council under review provides:

Reserving all mines and minerals whether solid, liquid or gaseous which may be found to exist within, upon or under such lands, together with full power to work the same and for this purpose to enter upon, use and occupy the said lands or so much thereof and to such extent as may be necessary for the effectual working and extracting of the said minerals.

[93] Accepting as I must, that the clause in Osoyoos was "boiler plate", as this term is usually understood, this last clause cannot possibly be labelled the same way. The comparison of the two orders makes it clear that in the present case, the federal government, in an obvious attempt to reconcile the public interest in having the subject lands used for Highway purposes and its fiduciary duty (as it then understood it) to minimally impair Indian interests in reserve land, carefully carved out of the interest granted to the Province, the ownership of mines and minerals, and provided for the right to "enter upon, use and occupy the said lands ... to such extent as may be necessary for ..." the exploitation of these mines and minerals (compare Osoyoos, paragraphs 52 to 55).

[94] As was found by the Appeal Judge, this severing when considered in light of the Province's unlimited power to take land for the purpose contemplated by the Highway Act points in only one direction; the Governor in Council, after considering the competing interests, authorized the transfer of the lands in question subject to the exception stated (reasons, paragraphs 28 and 29).

[95] The principle of minimal impairment will tilt the balance in favour of the Indian interests wherever there is a "genuine" ambiguity in the intention of the federal government as evidenced by the instrument of conveyance (Osoyoos, paragraph 68). A genuine ambiguity requires that there be a real doubt about the nature and extent of the interest conveyed. In the absence of any such doubt, it is incumbent upon the Courts to give effect to the clear and plain intention of the federal government.

[96] In my view, it has not been shown when regard is had to the reasons of the Supreme Court in Osoyoos that a genuine ambiguity exists in this case or that the Appeal Judge erred in concluding that it was plain and obvious that the federal government by its Order in Council transferred to the Province absolute ownership of the subject lands save and except for the mines and minerals found to exist within, upon or under these lands.

[97] I would also reject the alterative grounds of appeal. In my view, the Appeal Judge, for the reasons that he gave, correctly concluded that the phrase "for road purposes" in the recital to the Order in Council did not render the fee determinable (reasons, paragraph 38). Nor has it been shown that the Appeal Judge committed any error in holding that the corridor of land comprising the Lougheed Highway continues to be used for "road purposes" (reasons, paragraphs 36 and 37).

[98] I would dismiss the appeal with costs.

"Marc Noël"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-391-00

STYLE OF CAUSE: Assessor for Seabird Island Indian Band v. BC Tel

PLACE OF HEARING: Vancouver, B.C.

DATE OF HEARING: May 29, 2002

REASONS FOR JUDGMENT : LINDEN J.A.

CONCURRED IN BY: DESJARDINS J.A.

DISSENTING REASONS BY: NOEL J.A.

DATED: July 9, 2002

APPEARANCES:

Gary Snarch/ FOR THE APPELLANT

Fiona Anderson

Ron Skolrood/ FOR THE RESPONDENT

J. Olynyk

SOLICITORS OF RECORD:

Snarch & Allen FOR THE APPELLANT

Vancouver

Lawson & Lundell FOR THE RESPONDENT

Vancouver

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Assessor for Seabird Island Indian Band v. BC Tel, 2002 FCA 288

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2002 FCA 288