Wewayakum Indian Band v. Wewayakai Indian Band
T-2652-85 / T-951-89
Teitelbaum J.
19/9/95
275 pp.
Court called upon to determine which of Wewayakum Indian Band (Campbell River) or Wewayakai Indian Band (Cape Mudge) has possession and exclusive use of Campbell River Indian Reserve (Reserve No. 11) and Quinsam Indian Reserve (Reserve No. 12) -- Both Bands allege Crown responsible for situation (breach of fiduciary duty, duty of care and duties under Indian Act) and basically seek damages, not to dispossess other Band -- Declaration also sought -- Crown says dispute squarely between two Bands and argues actions barred by reason of laches and acquiescence, statute barred pursuant to Federal Court Act, s. 39 and British Columbia Limitation Act and Statute of Limitations -- Court left to reconstruct what took place over last 100 years based on thousands of documents and expert reports -- Actions dismissed as statute barred by B.C. Limitations Act as incorporated by Federal Court Act -- Given incorporation by reference, limitation provisions applied as valid federal law, not as provincial law -- No basis to argument limitations periods not applicable to declarations of existing legal rights -- No basis to argument claim cannot be extinguished by statutory limitation period based on concept of "ongoing" or continuous action (claim arising fresh each day) -- Neither lack of factual knowledge nor disability, nor concealment by Crown would be sufficient to postpone running of limitation period beyond 30 years from date original cause of action arose -- Court nevertheless addressing merits of various issues raised in matter -- Both Bands also barred from seeking equitable relief from Court by equitable defences of laches and acquiescence -- Indian reserves in B.C. created in 1938 -- Clerical error in 1913 Schedule of Indian Reserves corrected; in terms of entitlement to Reserves Nos. 11 and 12, status quo preserved -- Reserves Nos. 11 and 12 originally defined and approved for use of Laichkwiltach Indians (of which two Bands herein subgroups) -- Surveyor Ashdown Green had no authority to allot reserves -- Reserves subsequently assigned to Bands in accordance with desires of Indians at meeting in 1907 -- Objective of Cape Mudge Indian Band Resolution in 1907 to resolve difference of opinion between Cape Mudge and Campbell River Indians as to ownership of Reserve No. 11 as well as to resolve fishing dispute -- Surrender provisions of 1906 Indian Act not applicable to transactions between Indians of same group or tribe in respect of resolution of dispute -- No breach of Crown's fiduciary duty -- Mistakes not amounting to breach -- Significance of 1936 sworn Declaration of Chief and Principle Men of Campbell Band not including Reserve No. 12 (Quinsam) and 1936 sworn Declaration of Chief and Principle Men of Cape Mudge Band not including Reserve No. 11 (Campbell River) -- Federal Court Act, R.S.C., 1985, c. F-7, s. 39 -- Limitation Act, R.S.B.C. 1979, c. 236, ss. 3 (as am. by S.B.C. 1992, c. 37, s. 15; c. 44, s. 1; 1994, c. 8, s. 1), 8 (as am. idem, s. 2), 14 (as am. by S.B.C. 1993, c. 55, s. 15; 1994, c. 8, s. 3) -- Statute of Limitations, R.S.B.C. 1936, c. 159.