Canada: Agricultural Law Netletter - Sunday, October 7, 2018

HIGHLIGHTS

A Justice of the Saskatchewan Court of Queen's Bench has awarded a First Nation summary judgment against its former Chief for a permanent injunction restraining the former Chief from using 24 quarter sections of First Nation farm land and pasture land, damages of $212,925.00 for his unauthorized use and trespass of this land for the period 2013 to 2017, and punitive damages of $20,000.00. The case contains a discussion of the rights of First Nation members to occupy and use First Nation farm land. It also comments on informal "buckshee" agreements. (Wood Mountain Lakota First Nation No. 160 v. Goodtrack, CALN/2018-024, [2018] S.J. No. 353, Saskatchewan Court of Queen's Bench)

NEW CASE LAW

Wood Mountain Lakota First Nation No. 160 v.Goodtrack;

Saskatchewan Court of Queen's Bench,

G.A.J. Chicoine J., August 30, 2018.

CALN/2018-024

[2018] S.J. No. 353 | 2018 SKQB 230

Agricultural Lands on Indian Reserves — Buckshee Arrangements — Requirement of Allocations and Permits for Use by both Band Members and Non-Band Members.

Wood Mountain Lakota First Nation No. 160 (the "First Nation") applied for summary judgment in an action commenced by the First Nation on January 16, 2015 for an interim and a permanent injunction restraining the Defendants, William Goodtrack and Edith Goodtrack (the "Goodtracks") from using any First Nation lands for agricultural purposes without a permit issued under s. 28(2) of the Indian Act, RSC 1985, c I-5 (the "Indian Act") or in accordance with the First Nation's land policy.

The First Nation also claimed damages for trespass and for loss of rent for the period 2013 to 2017; damages for loss of a grant to which it would have been entitled to to administer its lands, and special or punitive damages.

The Goodtracks filed a defence claiming that they acquired the right to farm the land in question by a decision of the First Nation Band Members in the late 1950's and early 1960's to allocate various land parcels to Band Members for the purpose of farming and by the subsequent assignment of farming rights by Band Members to the Goodtracks.

Extensive Affidavit evidence was submitted on behalf of the First Nation by the First Nation's current Chief, the First Nation's Lands Administrator, the First Nation's administrative clerk, a First Nation Councillor, and the Goodtracks.

The First Nation occupies a small reserve near Grasslands National Park in southern Saskatchewan that is 3 miles by 3 miles (9 sections of land)  - approximately 37 quarter sections in total. As of March, 2015, the First Nation had 281 registered members. Only 17 or so resided on the reserve.

William Goodtrack was a member of the First Nation and had been Chief of the First Nation for over 37 years until the current Chief was elected in 2006. William Goodtrack resided in a "home quarter" on the reserve.

The findings of fact are summarized in the decision at para. 85 to 88:

  1. Any permits and Certificates of Possession issued under the Indian Act authorizing the Goodtracks to farm the land had expired as of December 31, 1983.
  2. At a First Nation's annual general meeting held in 2011, the Goodtracks were put on notice that the First Nation intended to put into place a new land code for the benefit of all Band Members. The issue was discussed again at the 2012 annual general meeting at which the Goodtracks were both present. At this meeting a motion authorizing the Chief and Council to develop and adopt a lands policy was passed as well as a motion to start collecting rent for the use of First Nation's lands.
  3. In December of 2012, the Goodtracks were offered the opportunity to apply for a one year permit for the land they had been using to that point in time.
  4. In January of 2013, William Goodtrack informed the Chief and Council that he intended to continue to use 8 quarters of land, as well as another 8 quarters that he farmed on behalf of other Band Members, all of whom claimed that the lands had been allocated to them by custom at a general Band membership meeting many years previous.
  5. Neither the Goodtracks nor any of the other Band Members applied for or received a permit or a Certificate of Possession to continue to occupy these lands in 2013 or thereafter, although the Goodtracks were aware that the Chief and Council intended to take control of reserve lands and to generate revenue from the lands for the benefit of all members of the First Nation.
  6. On December 2, 2013, the First Nation's land management policy came into effect. It required the Goodtracks to obtain a permit and to pay rent.
  7. William Goodtrack's claim that after 2013 he paid various individual Band Members cash or crop share rent for the use of lands allocated to them pursuant to "buckshee" arrangements was rejected by the Court.
  8. 8. After December 2, 2013, the Goodtracks continued to occupy and use reserve lands without applying for a permit, and without paying rent.
  9. In October of 2014, the Goodtracks were reminded by the First Nation that they were trespassing on the lands. They nevertheless continued to occupy most of the reserve lands until December of 2017 without offering to pay compensation.
  10. The Goodtracks asserted they had a right to possess and occupy approximately 24 of the 37 quarters of First Nation land on the basis of prior Band Council resolutions and informal "buckshee" arrangements with various Band Members over the years.

Section 28 of the Indian Act (which is not quoted in the decision) provides as follows:

Grants, etc., of reserve lands void

28(1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.

Minister may issue permits

(2) The Minister may by permit in writing authorize any person for a period of 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.

Section 20 of the Indian Act provides, in part:

20(1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.

(2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.

Decision: Chicoine, J held that the First Nation was entitled to a summary judgment against the Goodtracks for a permanent injunction to prevent trespass upon the First Nation lands (except the quarter section upon which their home is located); damages in the sum of $212,925.00, punitive damages in the sum of $20,000.00, and costs [at para. 99].

Chicoine, J considered the following issues:

  1. Whether this was a proper case to be decided on a summary judgment application?

Chicoine, J [at para. 79 to 83] considered the Saskatchewan Rules of Court, and the decision of the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, and concluded that there was no genuine issue requiring a trial, and that summary judgment was appropriate.

  1. Should a permanent injunction be granted to terminate the Goodtracks' occupation of the reserve lands other than their home quarter?

Chicoine, J held that the Goodtracks had been trespassing on the land in question since 2013, and that a permanent injunction was appropriate, stating at para. 84, 88 and 89:

[84] By virtue of the interpretation of s. 2 and s. 18 of the Indian Act, the use and benefit of reserve land accrues to and comes into existence as an enforceable right vested in the entire Band for which such reserve lands have been set apart, subject to the consent of the Minister of Indian Affairs and Northern Development. Legal title to the reserve lands vests in Her Majesty the Queen in Right of Canada. The statutory right of use and benefit is a collective right in common conferred upon and accruing to the Band members as a body and not to the Band members individually. The right of the entire Band in common may, however, be exercised for the use and benefit of an individual member of the Band by the Band Council, with the approval of the Minister, allotting to such individual member the right to possession of a given parcel of reserve lands.

***

Throughout this period going back to the AGM held in 2012 and to the present William Goodtrack has asserted a right to possess and occupy upwards of 24 quarters of the 37 quarters of land constituting the First Nation reserve on the basis of prior band council resolutions and informal "buckshee" agreements with various band members of the years. The Goodtracks have not provided any documentation to indicate that any land allocated to them had been approved by the Minister under the Indian Act since 1983. I am of the opinion that if occupation of all of these lands by the Goodtracks had been tolerated by the Chief and Council of the First Nation (a period during which William Goodtrack continuously held the position of Chief), there came a time when such use and occupation without compensation was no longer lawful. I find that when the Goodtracks refused to apply for the interim one-year permits that were offered to them for the 2013 growing season they were effectively trespassing on any of the First Nation reserve lands that they continued to use for agricultural purposes.

On the basis of the evidence presented and the legislative requirements set out in the Indian Act, I find that the First Nation is entitled to a permanent injunction enjoining the Goodtracks from using any of the First Nation reserve lands for an agricultural purpose without a permit issued pursuant to s. 28(2) of the Indian Act and in accordance with the First Nation's Land Management Policy.

(c) Is the First Nation entitled to recover damages from the Goodtracks for trespass of the reserve lands since 2013?

Chicoine, J concluded that there was no question that the Goodtracks were aware of but willfully ignored the requirements of the First Nation's Land Management Policy, and that the First Nation had a sufficient interest in unallotted reserve lands to maintain an action for trespass against any person unlawfully claiming possession or a right of occupation thereof [at para. 19].

Chicoine, J assessed damages of $25.00 per acre (a total of $172,525.00) for the cultivated acres of land farmed by the Goodtracks for the years 2013 to 2016 and seasonal pasture rent of $100.00 per cow/calf pair for the same period (a total of $40,400.00), for a total damage award of $212,925.00 [at para. 93 to 95].

Chicoine, J characterized the Goodtracks' conduct as a "flagrant disregard for the First Nation's authority to manage its lands in the best interests of all of its members" and concluded that this conduct justified an award of punitive damages of $20,000.00 [at para. 97 to 98].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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