The Queen v. Devereux

Supreme Court of Canada – [1965] S.C.R. 567


Ontario Indian ActLands reserved for Indians
Summary

The Supreme Court decides that a non-Indian is not entitled in this case to stay in possession of reserve land. It is determined to maintain reserves intact for Indians.

Issue

Was Devereux entitled to receive any proceeds from a potential sale of the farm lands he occupied and if so, as an unpaid vendor, was he allowed to remain in possession until the closing of the transaction?

Decision

Devereux’s only rights were to receive the proceeds of the sale of the right to possession, but since the Department did not consent another permit to allow him to stay, he cannot stay in possession of the land (4 against 1).

Parties

Between: the Crown of Canada, on behalf of the Six Nation Band

And: Harry Devereux

Facts

In 1934, Devereux started living on a farm, which was situated on the Six Nation Band reserve near Brantford in Ontario. He had helped out during the construction of the farm and signed a lease with Rachel Ann Davis, the widow of a Six Nations Band member who had a right of occupancy over the 225 acres on which the farm is build. At that time, the Indian Act precluded them from entering into this agreement. However, the Crown consented to a ten years lease, running until December 1, 1950.

In 1950, the lease expired. Devereux was awarded two permits to use the premises for agriculture. In 1958, Rachel Ann Davis died. In her will, dated November 19, 1953, she ceded her rights to the land to Devereux. In 1962, the Band Council sent a notice to Devereux ordering him to vacate the farm after the expiration of the second permit, but Devereux does not comply.

In 1963, the Indian Superintendent at Brantford informed Devereux of his obligation to leave the farm on or before January 31, 1963.  A resolution is passed by the Band Council requesting the Attorney-General of Canada to take action on its behalf against Devereux. The Crown seized the Exchequer Court to recover the possession of the lands held by Devereux.

Arguments

Devereux: He had made arrangement to purchase his right to remain on the land pursuant to the Indian Act. He contended that as an unpaid vendor he was entitled to remain in possession until he received the full proceeds of the sale.

The Crown: It was besides the point considering that the Department did not agree to any further lease.

Decision of the lower courts

Exchequer Court of Canada (1964): Pursuant to the certificate delivered to her under the Indian Act, Mrs. Davis held a right of possession of the land and had not reverted that right to the band. Hence, the band had no interest and no right to possession to that tract of land. Furthermore, the disposition enabling the Attorney-General to take action to expulse an non-Indian from a reserve conferred a right to an individual Indian, but did not grant capacity to bands. The Crown’s pretentions are dismissed.

Reasons for Judgement

Jury

Taschereau, Martland, Judson, Hall

Reason

The trial judge erred in his interpretation of the Indian Act when he affirmed the Attorney-General’s right to take action on behalf of a band. The terms used, “when an Indian or a band”, are to be understood as permitting either an Indian or a band to seize the Attorney-General to act of their behalf.

The intention of Indian Act was aimed at maintaining reserves intact for Indians. The reserves were established on lands put aside for them, despite the fact that some Indians might want to part with land for their personal advantage. Therefore, it maintained that if an Indian owner of a possession certificate over a parcel of lands could alienate this certificate to a non-Indian, it would be contrary to the Act. As an exception to the rule, the Minister of Indian Affairs could lease the land possessed by an Indian without it constituting a surrender of the said land, as it was the case for Devereux. Since the Minister had no intention of renewing the contract with Devereux, he had no right to remain on the premises until the superintendent disposed of the land pursuant to the Indian Act.

Impact

Section 50 of the Indian Act states that reserve land cannot be disposed of by will in favour of a non-member. The non-member of the band is only entitled to the profits from the sale of the land. Devereux confirmed that the section should be rigorously applied, albeit exceptional circumstances: the band granted the non-member heir membership before the estate was distributed or the non-member heir transferred his interest to another heir, who is a member of the band, or to the band itself (Evans & Willis, 2007: 14 ; Lee, 2007: 10-11).

In 2003, the Court of Appeal of British Columbia ruled that a band member could only bequeath the right to receive the proceeds of the sale of his parts in the reserve lands to non-members. In Songhees First Nations v. Canada (Attorney General), the Court of Appeal stated that the overall purpose of the Indian Act is to protect the bands’ interests in their reserve. For the band members to enjoy those benefits, provisions have to be made to limit possession to them in order to keep the reserve intact. One of these measures is section 50 of the Indian Act which balances that objective, in prohibiting to acquire possession reserve lands by non-member, with testamentary freedom, in allowing non-member heirs to receive the proceeds of the sale of the certificate of possession. In this case, there was a dispute between the band and the heir as to whom the revenues from the rent of the tracts of land should be paid until they were finally disposed. The Court ruled in favour of the band (Songhess First Nation v. Canada).

Related Cases

Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119


Sources

Pronovost v. Minister of Indian Affairs et al. (1985) 1 F.C. 517

 Songhees First Nation v. Canada, 2003 BCCA 187

Carfagnini Anthony. 2007. Administration of Aboriginal Wills and Estates, Ontario Bar Association Aboriginal Law 13(2): 3-5.

Evans Sherry and Susan A. Willis.  2007. Aboriginal Estates: Policies and procedures of INAC, BC Region. Aboriginal Practice Points Series. Vancouver: Continuing Legal Education Society of British Columbia.

Lee Roger D. 2007. Estates under the Indian Act. Aboriginal Practice Points Serires. Vancouver : Continuing Legal Education Society of British Columbia.

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