Mitchell v. Peguis Indian Band [1990] 2 S.C.R. 85

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Donald George Mitchell

and Milton Management Ltd.                                                         Appellants




Peguis Indian Band, Louis J. Stevenson,

Albert Thompson, Oliver Sutherland,

Ronald Williams and Robert Sutherland,

as the Chief and Councillors,

respectively, of the Band                                                                  Respondents


indexed as:  mitchell v. peguis indian band

File No.:  19439.

1989:  February 24; 1990:  June 21.

Present:  Dickson C.J. and Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka and Gonthier JJ.

on appeal from the court of appeal for manitoba

    Indians — Personal property on reserve given under an agreement between the band and Her Majesty — Property not subject to attachment at suit of non-native — Provincial government agreeing to rebate provincial sales tax to Indian bands — Action pending for payment of contingency fee by negotiator acting on behalf of bands — Pre-judgment garnishment order granted — Whether or not moneys owed by province personal property on reserve ‑‑ Whether or not term “Her Majesty” extending to Crown in right of the province — Indian Act, R.S.C. 1970, c. I-6, ss. 89(1), 90(1)(b).

    Manitoba Hydro invalidly imposed a tax upon the Peguis Indians in respect of the sale of electricity on a reserve.  The Government of Manitoba subsequently settled the Indians’ claim for the return of the taxes paid.  Appellants obtained a prejudgment garnishing order against the settlement to the extent of their fees for representing the Indians in the settlement negotiations.  Respondents applied to have the garnishing order set aside because personal property given pursuant to treaty and deemed to be on a reserve is not subject to attachment by a non-Indian.  Both the trial judge and the Court of Appeal held that the funds could not be garnisheed.  Their conclusion was based on their interpretation of s. 90(1) (b) of the Indian Act .

    The courts below held that the garnished moneys were personal property given to a band under an agreement between a band and Her Majesty, and that the words “Her Majesty” in s. 90(1)(b) of the Act include not only the federal Crown but also the provincial Crown.  These courts concluded that the moneys in question were “personal property” within the meaning of s. 90(1) (b) and so deemed to be situated on a reserve and, therefore, protected from garnishment by virtue of s. 89(1).

    Held:  The appeal should be dismissed.

    Per La Forest, Sopinka and Gonthier JJ.:  Section 90(1) (b) did not serve to protect property held by the province from garnishment.  The term “Her Majesty” in the Indian Act  refers to the federal Crown when unqualified.  The Act defines an area of federal responsibility and the wording of s. 90(1) (a) indicates that “Her Majesty” was to be limited to the federal Crown.  No specific terms expand the meaning of the expression in s. 90(1) (b).  Similarly, Indian treaties are matters of federal concern and the terms “treaty” and “agreement” in s. 90(1) (b) take colour from one another.  Finally, the “given” in s. 90(1) (b) is a distinct and pointed reference to the process of cession of Indian lands.

    “Her Majesty” bears a uniform meaning throughout s. 90. The section applies solely to such personal property conferred by the federal Crown in the course of fulfilling its obligations to native peoples, whether pursuant to its treaty commitments or its responsibilities flowing from s. 91(24)  of the Constitution Act, 1867 .  No other interpretation concords with the tenor of the obligations historically assumed by the Crown vis-à-vis the property of native peoples.

    Section 90 must be read in conjunction with ss. 87 and 89.  These provisions should not be ascribed an overly broad purpose.  They are not intended to confer privileges on Indians in respect of any property they may acquire and possess, wherever situated.  Rather, they are to insulate the property interests of Indians in their reserve lands from the intrusions and interference of the larger society so as to ensure that Indians are not dispossessed of their entitlements.

    The statutory notional situs of s. 90(1) (b) operates to protect personal property given to Indians by “Her Majesty” pursuant to a “treaty or agreement” in the same manner as property on a reserve regardless of its actual situs.  Since the term “Her Majesty” in s. 90(1) (b) is limited to the federal Crown, the exemptions and privileges of ss. 87 and 89 apply solely in respect of such property as the federal Crown gives to Indians in acquitting itself of its responsibilities pursuant to treaties, and their ancillary agreements.  This interpretation of s. 90(1) (b) is consistent with the tenor of the obligations that the Crown has always assumed vis-à-vis the protection of native property.

    Any interpretation of s. 90(1) (b) that sees the purpose of that section as extending beyond that of preventing non-natives from interfering with property that enures to Indians as a result of the Crown’s obligations under treaties and ancillary agreements, gives a novel and unprecedented extension to the protections that have up to now been conferred by the Crown on the property of Indians.  Parliament, if it had intended to cast aside these traditional constraints, would have expressed this intention in the clearest of terms.

    Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians but somewhat different considerations apply to treaties than to statutes.  The Crown enjoyed a superior bargaining position when it negotiated treaties with native peoples and they must be read as the Indians would have understood them.  Statutes relating to Indians, however, are an expression of the will of Parliament and import different considerations.  The salutary rule that statutory ambiguities be resolved in favour of the Indians does not imply automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any competing interpretation.  It is necessary to reconcile any given interpretation with the policies the Act seeks to promote.

    Parliament, in enacting s. 90(1) (b), did not intend that the privileges of ss. 87 and 89 exempt Indian bands from taxation and civil process in respect of all personal property that they may acquire pursuant to all agreements with that level of government, regardless of where that property is located.  Since “Her Majesty” in s. 90(1) (b) is limited to the federal Crown, this section has no application to the agreement that was entered into between the Government of Manitoba and the respondents.

    Though s. 90(1) (a) does not afford the Indians protection against attachment by garnishment, such attachment is otherwise inconsistent with the operation of the Indian Act .  Given the broad purpose of s. 87 (b) to protect Indian property on reserves from taxation, it would be truly anomalous if the province could do this illegally and then authorize the attachment of the tax moneys, a procedure tantamount to allowing provincial law to do indirectly what it cannot do directly, i.e., attach the personal property of Indians on reserves.

    Moreover, the words “moneys due or accruing due to persons employed or paid by the government” in s. 3 of the Garnishment Act refer solely to debts of the Government arising pursuant to agreements relating to the provision of work or services.

    Per Lamer, Wilson and L’Heureux-Dubé JJ.:  The interpretation of s. 90(1) (b) given by La Forest J. and his conclusion that, as between the Government of Manitoba and the Indians, the Indians are entitled to the moneys were agreed with.

    Once it is held that the moneys are not in fact situate on the reserve or deemed to be so and that they do constitute a debt, that debt is subject to garnishment at the hands of an innocent third party.  The way in which the debt arose does not affect an innocent third party seeking to initiate garnishment proceedings with respect to that debt.

    The Garnishment Act does not apply to the Crown so to permit the garnishment by the appellants of moneys owing by the Crown to the Indians under the settlement.  The words “moneys due or accruing due to persons employed or paid by the government” in s. 3 of the Garnishment Act refer solely to debts of the Government arising pursuant to agreements relating to the provision of work or services.  These words do not extend to lift the Government’s immunity in respect of the garnishment proceedings which the appellant sought to initiate.

    Per Dickson C.J.:  Under the Nowegijick principle, ambiguities in the interpretation of treaties and statutes relating to Indians are to be resolved in favour of the Indians and aboriginal understandings of words and corresponding legal concepts in Indian treaties are to be preferred over more legalistic and technical constructions.  This principle is concerned with interpreting a statute or treaty with respect to the persons who are its subjects — Indians — and not with interpreting a statute in favour of Indians simply because it is the State that is the other interested party.

    The Nowegijick principle applies even if a civil party other than the state will lose out.  Canadian society at large must bear the historical burden of the current situation of native peoples.  Section 89(1) explicitly provides that a non-Indian cannot attach personal property of an Indian in certain circumstances and contemplates Indians being favoured vis-à-vis non-Indians.  Therefore, it would be inconsistent with Nowegijick to interpret s. 90 (which extends s. 89’s protection) in a restrictive manner.

    A broad interpretation of the Garnishment Act and the particular provision which allows and facilitates the garnishing of government was assumed, without deciding, to be valid for the purposes of this appeal.  Without s. 90, the situs of the debt would be the location of the debtor, i.e., off the reserve.

    The definition of “Her Majesty” in the Interpretation Act includes the provincial Crowns and whether or not both Crowns are included depends on the statutory context.  The words “Her Majesty” in a federal statute are not necessarily limited to the Crown in right of Canada:  they can refer to the province.  The ambiguity here lay in whether they did indeed refer to the province.

    “Her Majesty” in s. 90(1) (b) of the Indian Act  refers to both the federal and provincial Crowns.  An application of the Nowegijick principle supported this conclusion.  (Contextual arguments that the term referred only to the federal Crown were inconclusive and therefore an ambiguity arose.)  Further, from the aboriginal perspective, any divisions that the Crown has imposed on itself, such as the federal and provincial Crown, are internal to itself and do not alter the basic structure of Sovereign-Indian relations. 

    The extent to which aboriginal peoples are affected only by decisions and actions of the federal Crown can be over-emphasized.  Part and parcel of the division of powers is the incidental effects doctrine:  a law in relation to a matter within the competence of one level of government may validly affect a matter within the competence of the other.  As long as Indians are not affected qua Indians, a provincial law may affect Indians, and significantly so in terms of everyday life.  Section 88  of the Indian Act  greatly increases the extent to which the provinces can affect Indians by acknowledging the validity of laws of general application, unless they are supplanted by treaties or federal law.  This fluidity of responsibility across lines of jurisdiction accords well with the fact that the newly entrenched s. 35  of the Constitution Act, 1982 , applies to all levels of government in Canada.

    The term “personal property” in s. 90(1) (b) includes intangible property such as the right to payment of money.  There was no compelling reason why the words “personal property”  must be given a common meaning that fits both s. 90(1) (a) and (b).  The meaning in s. 90(1) (b) is not limited to tangible or physical property because the meaning in s. 90(1) (a) is so limited.

    The personal property in question was a debt, not money per se, and respondents were given the right to be paid money.  This right or debt was in existence when the garnishing order was issued.  It was not necessary that actual money be paid before s. 90(1) (b) became applicable.

    The word “agreement” in s. 90(1) (b) was not to be read ejusdem generis with the word “treaty”.  Here, there was an agreement with the province to refund the tax in exchange for the execution of releases made by the bands involved. Assuming the applicability of the ejusdem generis rule, there was no reason why it should prevail over the Nowegijick principle of resolving ambiguities in favour of Indians.

Cases Cited

By La Forest J.

    Distinguished:  Attorney-General for Quebec v. Nipissing Central Railway Co., [1926] A.C. 715; Nickel Rim Mines Ltd. v. Attorney General for Ontario, [1967] S.C.R. 672; referred to:  Greyeyes v. The Queen, [1978] 2 F.C. 385 (T.D.); Guerin v. The Queen, [1984] 2 S.C.R. 335; Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; Bryan v. Itasca County, 426 U.S. 373 (1976); Francis v. The Queen, [1956] S.C.R. 618; Leonard v. R. in Right of British Columbia (1984), 52 B.C.L.R. 389, leave to appeal refused, [1984] 2 S.C.R. viii; Leighton v. B.C. (Gov’t), [1989] 3 C.N.L.R. 136; Metlakatla Ferry Service Ltd. v. B.C. (Gov’t.) (1987), 12 B.C.L.R. (2d) 308 (C.A.); Bank of Nova Scotia v. Blood, [1990] 1 C.N.L.R. 16; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; United States v. Powers, 305 U.S. 527 (1939).

By Wilson J.

    Referred to:  Canadian National Railway Co. v. Croteau, [1925] S.C.R. 384; The King v. Central Railway Signal Co., [1933] S.C.R. 555; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551.

By Dickson C.J.

    Applied:  Nowegijick v. The Queen, [1983] 1 S.C.R. 29; considered: Nickel Rim Mines Ltd. v. Attorney General for Ontario, [1967] S.C.R. 672; Attorney-General for Quebec v. Nipissing Central Railway Co., [1926] A.C. 715 (P.C.); Guerin v. The Queen, [1984] 2 S.C.R. 335; referred to: Maritime Bank of Canada (Liquidators of) v. Receiver-General of New Brunswick, [1892] A.C. 437; R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892; Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; Metlakatla Ferry Service Ltd. v. B.C. (Gov’t.) (1987), 12 B.C.L.R. 308 (C.A.); Brown v. The Queen in Right of British Columbia, [1979] 3 C.N.L.R. 67 (B.C.C.A.); Kuhn v. Starr, (Ferg J., Man. Q.B., unreported, October 28, 1976); Mintuck v. Valley River Band 63A, [1978] 2 W.W.R. 159 (Man. Q.B.); Greyeyes v. The Queen, [1978] 2 F.C. 385 (T.D.); The Queen v. National Indian Brotherhood, [1979] 1 F.C. 103 (T.D.); Fricke and Seaton Timber Ltd. v. Mitchell (1985), 67 B.C.L.R. 227 (B.C.S.C.); Fayerman Bros. Ltd. v. Peter Ballantyne Indian Band, [1986] 1 C.N.L.R. 6 (Sask. Q.B.); Williams v. Canada, [1989] 1 C.N.L.R. 184 (F.C.T.D.)

Statutes and Regulations Cited

An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, S.C. 1850, c. 74, s. 4.

Constitution Act, 1867 , s. 91(24) .

Constitution Act, 1982 , s. 35 .

Garnishment Act, R.S.M. 1970, c. G20, C.C.S.M., c. G20, s. 3.

Indian Act, R.S.C. 1970, c. I-6, ss. 4(3), 15, 16(2), (3), 18, 31(3), 32, 34(2), 35(1), 36, 37, 38, 39, 40, 41, 48(8), 53(3), 59(a), 67, 72, 87(a), (b), 88, 89(1),(2), 90(1)(a), (b), (2), (3), 91, 92, 93, 103(3), 104(1), 114(1).

Indian Act, 1876, S.C. 1876, c. 18, ss. 25 et seq., 64, 65, 66, 69.

Indian Act, S.C. 1951, c. 29, s. 90.

Interpretation Act, R.S.C. 1952, c. 158.

Interpretation Act, R.S.C. 1970, c. I-23, ss. 16, 28.

Order-in-Council No. 253 (Manitoba), March 9, 1983.

Proceedings Against the Crown Act, R.S.M. 1987, c. P140, s. 16(6).

Railway Act, 1919, S.C. 1919, c. 68, s. 189.

Royal Proclamation of 1763, R.S.C. 1970, App. II, No. 1.

Supreme Court Act, R.S.C. 1952, c. 259, s. 105.

Authors Cited

Bartlett, Richard Hamilton.  Indians and Taxation in Canada, 2nd ed.  Saskatoon:  University of Saskatchewan, Native Law Centre, 1987.

British Columbia.  Law Reform Commission.  Report on Attachment of Debts Act.  Victoria:  1978.

Hogg, Peter W.  Constitutional Law of Canada, 2nd ed.  Toronto:  Carswells, 1985.

Hogg, Peter W.  Liability of the Crown, 2nd ed.  Toronto:  Carswells, 1989.

New Brunswick.  Law Reform Division of the New Brunswick Department of Justice.   Third Report of the Consumer Protection Project, vol. II.  Legal Remedies of the Unsecured Creditor After Judgment.  Fredericton:  1976.

Ontario.  Law Reform Commission.  Report on the Enforcement of Judgment Debts And Related Matters.  Toronto:  1981.

Ontario.  Law Reform Commission.  Report on the Liability of the Crown.  Toronto:  1989.

Slattery, Brian.  “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727.

    APPEAL from a judgment of the Manitoba Court of Appeal (1983), 39 Man. R. (2d) 180, [1986] 2 W.W.R. 477, [1985] 2 C.N.L.R. 90, dismissing an appeal from a judgment of Morse J. (1983), 22 Man. R. (2d) 286, [1983] 5 W.W.R. 117, [1983] 4 C.N.L.R. 50, finding moneys not subject to garnishing order granted by Referee Richardson.  Appeal dismissed.


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