Hill v. Canada
T-2288-87
Wetston J.
12/8/98
30 pp.
Action for declaration purported surrender of Six Nations of Grand River Indian Band (Band) interest in land (80.616 acres) null and void-In 1870's, lands in which Band had Indian Reserve interest taken for railway purposes-Surrender approved only in 1985 after two referenda on Land Claim Settlement Agreement-In first referendum, of 4,742 eligible voters, 278 people voted (268 for, 9 against, 1 spoiled ballot); in second referendum, of 4,852 eligible voters, 297 people voted (280 for, 14 against, 3 spoiled ballots)-Before final approval by Minister, Traditional Council of Chiefs of Iroquois Confederacy, presenting document with signatures of more than 300 eligible voters opposed to surrender and who had not voted, objected to surrender on grounds only minority of electors had voted-Land Claim Settlement Agreement nevertheless signed by Minister and accepted by Governor in Council-Issues (1) whether, by operation of Indian Act, s. 39(3), majority of electors of Band assented to land surrender; (2) whether Acting Director of Land and Trusts validly called referenda pursuant to standing delegation of authority conferred by Minister pursuant to Act, s. 3(2)-Action dismissed-Insufficient evidence upon which to conclude Minister or officials acted in such manner as to taint surrender process-Absence of word "referendum" in Act, s. 39(3) not creating ambiguity therein as no inconsistency between words used and purported purpose of legislation when provision considered in context of s. 39 in its entirety-Delegation of authority to Acting Director of Lands and Trusts invalid-Language of Act, ss. 3(2) and 39 indicating intention Minister or named officials therein, upon authorization, must act personally when exercising authority under Act, s. 39(2): Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375-Language, object and scope of administrative scheme cannot, herein, be considered to displace general rule of construction of law that person endowed with discretionary authority should exercise it personally: R. v. Harrison, [1977] 1 S.C.R. 238-Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 not standing for proposition all acts of Minister may, by implication, be delegated to responsible departmental officials-Therefore, while delegation of authority herein invalid, surrender of land not void by reason of invalidity of delegation of authority to Acting Director of Land-While Acting Director of Land called referendum, Minister, as well as Deputy Minister, actively involved throughout matter-While not determinative, Band Council clearly wanted surrender of land to take place-Successful surrender made in accordance with law and subject only to acceptance by Governor in Council-In Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344, S.C.C. indicated one should adopt intention-based approach to validity of process for surrender of land under Indian Act; nature of Aboriginal title requiring courts to go beyond usual restrictions imposed by common law, or non-compliance with certain requirements in Indian Act concerning surrender process, in order to give effect to true purpose of dealings-In conclusion, while Minister did not call first or second referendum, given intention and understanding of Band, determined in accordance with law, calling surrender vote not fatal requirement-Whether Minister or Acting Director of Land called referenda, no finality until such time as surrender accepted by Governor in Council-Herein, no substantive right abrogated as result of invalid delegation of authority-Indian Act, R.S.C., 1985, c. I-5, ss. 3(2), 39 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 3).