Supreme Court of Canada –  2 S.C.R. 119
In this case, the Court refused to interpret the Indian Act to the benefit of the Indians. It solidified third parties’ rights on reserve lands.
Does section 28 (2) of the Indian Act authorize the Crown to concede a permit for an indefinite period of time? And are rights-of-way for transmission lines allowed?
The Crown could grant a license for an undetermined period of time in this case, and the cession was not necessary, since the license “it does not violate the balance between autonomy and protection struck by the Indian Act” (par. 55 of the decision) (7 justices against 2).
Between: The Opetchesaht, an Indian Band, and Danny Watts, suing on his own behalf and on behalf of all the members of the Opetchesaht
And: the Crown of Canada and British Columbia Hydro and Power Authority
Interveners: Union of British Columbia Indian Chiefs, B.C. Tel, B.C. Gas Utility Ltd. and the Greater Vancouver Sewerage and Drainage District
The Band is part of the Opetchesaht First Nation and lives on Klehkoot Indian Reserve No. 2 in the Alberni District (Vancouver Island), British Columbia.
In 1959, the Crown cedes a right-of-way to Hydro B.C. for the purpose of Hydro putting in an electric power transmission line across the Band’s reserve connecting its facility in Sproat Falls to Port Alberni. Hydro is issued a permit under section 28 (2) of the Indian Act, which provides that “the Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve”. Hydro is allowed to construct, operate and maintain this transmission line and gave it exclusive occupancy over the surface where poles were erected and over the air space that contained the wire. Also, Hydro is given the usage of reserve lands to maintain the power line. The term was for an indefinite period of time.
This right-of-way was given with the consent of the Opetchesaht Band. The Band preserved its right to make use of the land and occupy the rest of the area with certain restrictions.
In 1990, the Band wanted new infrastructures on the reserve in order to expand its development, which included building a road across the tract of land under exclusive usage by Hydro. The latter consented under the condition that the Band would be liable for any loss of power by Hydro’s consumers and that it would not infringe upon Hydro’s beneficial interest. At the time, the Band proceeded to re-examine the conditions of the permit. The Council concluded that it was not valid; instead, there should have been surrender by the Band to the Crown of the reserve lands needed by Hydro and their subsequent alienation to Hydro, under sect. 37 of the Indian Act.
In 1992, the Band and its chief, Danny Watts, seized the Court for a declaration that Hydro’s permit was void and without force and effect. The Band sought damages for trespass by Hydro and a declaration of breach of fiduciary duty by the Crown.
The Opetchesaht Band: The Band did not allow the cession of a right-of-way for electric power transmission lines across the reserve for an open-ended period of time. Its consent was unlawfully obtained. The word “period” in section 28(2) of the Indian Act must be understood as a fixed time and not as an indefinite term. Since the minister of Indian Affairs exceeded the powers given to him by the Indian Act, he breached the Crown’s fiduciary duty.
Hydro: Despite the fact that the period is not determined, it is possible to assess its termination. Also, the expression “any longer” preceded the word “period” in section 28 (2) of the Indian Act; therefore, its interpretation included an indefinite portion of time. Furthermore, definitions of the word “period” in a common English dictionary include the concept of an indefinite period of time.
The Crown: The permit given to Hydro would stop being in force when the latter no longer needed the electric transmission line, which can be conceived of as the term and therefore be seen as definite.
Supreme Court of British Columbia (1994): The Band’s interpretation is accepted: the “period” is understood as a specific number of years.
British Columbia Court of Appeal (1994): The judgment is set aside. Section 28 (2) of the Indian Act allows grants of interests for indefinite periods of time.
Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Iacobucci, Major
The permit issued pursuant to section 28 (2) of the Indian Act is valid. The permit did not breach the Indian Act’s objective of equilibrium between autonomy and protection.
The benefits given to Hydro are comparable to an easement over the Band’s reserve lands, which will cease when the power transmission right-of-way is no longer required, a situation that is entirely plausible. When constructing section 28 (2) of the Indian Act, the expression “any longer period” includes a period fixed by dates or events. The event marking the end point of the permit must be ascertainable. Here, it is the moment when Hydro would no longer need the power line in question. Even though this event is remote and uncertain, the period described in the permit is still fixed, falling under the scope of sect. 28 (2).
The right-of-way is to be shared by Hydro and the Band, although the latter cannot hamper Hydro’s easement or build structures on it.
Cession was not necessary, and the band did give its consent.
In 2002, the Land Management Manual was updated. Indian Affairs and Northern Canada (IANC) confirmed the Court’s decision in Opetchesaht and allowed that the granting of a limited interest on a parcel of reserve land can have an indeterminate term if its termination represents a determinable event.
The purpose of establishing an electric power transmission and other utilities right-of-way is considered as such. From now on, the expression “for as long as required” replaces the language “any longer period” in these circumstances (Directive 6-2, s. 4.5 a)).
Osoyoos Indian Band v. Oliver (Town)
Indian Affairs and Northern Canada. 2002. Directive 6-2: Subsection 28(2) Permits. On-line. http://www.ainc-inac.gc.ca/enr/lds/pubs/lmm/lmm-eng.pdf. Retrieved on May 7, 2010.