Indigenous Property

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Date Retrieved:	2025-05-09
CLNP Page ID:	2497
Page Categories:	Indigenous
Citation:	Indigenous Property, CLNP 2497, <https://rvt.link/fh>, retrieved on 2025-05-09
Editor:	MKent
Last Updated:	2025/05/02

Indian Act (R.S.C., 1985, c. I-5)

Restriction on mortgage, seizure, etc., of property on reserve

89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

Exception

(1.1) Notwithstanding subsection (1), a leasehold interest in designated lands is subject to charge, pledge, mortgage, attachment, levy, seizure, distress and execution.

Conditional sales

(2) A person who sells to a band or a member of a band a chattel under an agreement whereby the right of property or right of possession thereto remains wholly or in part in the seller may exercise his rights under the agreement notwithstanding that the chattel is situated on a reserve.

Property deemed situated on reserve

90 (1) For the purposes of sections 87 and 89, personal property that was

(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, or

(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,

shall be deemed always to be situated on a reserve.

Restriction on transfer

(2) Every transaction purporting to pass title to any property that is by this section deemed to be situated on a reserve, or any interest in such property, is void unless the transaction is entered into with the consent of the Minister or is entered into between members of a band or between the band and a member thereof.

Destruction of property

(3) Every person who enters into any transaction that is void by virtue of subsection (2) is guilty of an offence, and every person who, without the written consent of the Minister, destroys personal property that is by this section deemed to be situated on a reserve is guilty of an offence.

Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 SCR 85

I cannot accept that the comments in Nowegijick were implicitly limited in this way. The Nowegijick principles must be understood in the context of this Court's sensitivity to the historical and continuing status of aboriginal peoples in Canadian society. The above‑quoted statement is clearly concerned with interpreting a statute or treaty with respect to the persons who are its subjects -- Indians -- not with interpreting a statute in favour of Indians simply because it is the State that is the other interested party. It is Canadian society at large which bears the historical burden of the current situation of native peoples and, as a result, the liberal interpretive approach applies to any statute relating to Indians, even if the relationship thereby affected is a private one. Underlying Nowegijick is an appreciation of societal responsibility and a concern with remedying disadvantage, if only in the somewhat marginal context of treaty and statutory interpretation.

(...)

(a) "Personal Property"

The meaning of "personal property" in s. 87 of the Indian Act was the subject of decision in Nowegijick. It was held that one form of intangible property, taxable income, came within the words "personal property" in that section of the Act. See also the judgment of McLachlin J.A., as she then was, in Metlakatla Ferry Service Ltd. v. B.C. (Gov't.) (1987), 1987 CanLII 2748 (BC CA), 12 B.C.L.R. 308 (C.A.), in which she partly relies on Nowegijick for the finding that a lease and a debt owing under it constitute "personal property" in s. 87 and notes that s. 87 covers both tangible and intangible personal property; see Brown v. The Queen in Right of British Columbia, [1979] 3 C.N.L.R. 67 (B.C.C.A.), in which electricity delivered to Indians on a reserve was found to be s. 87 "personal property". I would adopt the following statement of Morse J., supra, at p. 121:

If intangibles such as electricity and taxable income are personal property, clearly the right of the defendants to payment of the moneys agreed to be paid by the government of Manitoba must be considered as personal property, and it seems to me there is no good reason to give the words "personal property situated on a reserve" in s. 89 a meaning different to the same words in s. 87.

Of course, the debt owing from the Manitoba government must also constitute "personal property" under s. 90(1)(b) for the respondents to succeed. The argument of the appellants is that "personal property", appearing only once in the introductory clause of s. 90(1) and applying to both subsequent subsections, must be given a common meaning that fits both s. 90(1)(a) and (b). Since, the argument continues, s. 90(1)(a) limits the meaning to tangible or physical property and, as well, since s. 90(3) speaks of the destruction of personal property, then "personal property" in s. 90(1)(b) must be similarly limited to tangible property. Two cases have found that s. 90(1)(b) is restricted to tangible property on the above reasoning: Kuhn v. Starr, Ferg J., Man. Q.B., unreported, October 28, 1976, and Mintuck v. Valley River Band 63A, 1977 CanLII 1657 (MB KB), [1978] 2 W.W.R. 159 (Man. Q.B.), (following Kuhn, supra). It is not evident on the facts that Ferg J. had to address the scope of s. 90(1)(b) in that case, but it is nonetheless clear that his reasoning is the only judicial exposition available of the case for restrictive interpretation of "personal property" in s. 90(1)(b). Prior to Morse J.'s decision, one case had decided that the words in s. 90(1)(b) included intangible property (a scholarship being the property in question), without, however, explicit consideration of the point: Greyeyes v. The Queen, 1978 CanLII 3595 (FC), [1978] 2 F.C. 385 (T.D.), per Mahoney J. Shortly thereafter, Thurlow A.C.J., found that "personal property" in s. 90(1)(a) could not include a right to a salary because of the effect of the words "purchased by Her Majesty" which followed in the subsection: The Queen v. National Indian Brotherhood, 1978 CanLII 3563 (FC), [1979] 1 F.C. 103 (T.D.), at p. 108. However, Thurlow A.C.J. implicitly held that "personal property" in s. 90(1)(b) could be given a different interpretation due to the qualifying words in the rest of that subsection; this follows from his view that Greyeyes was good law (at p. 108). Since the Morse J. decision, two cases have explicitly followed him on this point: Fricke and Seaton Timber Ltd. v. Mitchell (1985), 1985 CanLII 252 (BC SC), 67 B.C.L.R. 227 (B.C.S.C.); and Fayerman Bros. Ltd. v. Peter Ballantyne Indian Band, 1984 CanLII 2342 (SK KB), [1986] 1 C.N.L.R. 6 (Sask. Q.B.) A third case has also implicitly agreed with Morse J., although there is no explicit discussion of the point: Williams v. Canada, 1988 CanLII 9340 (FC), [1989] 1 C.N.L.R. 184 (F.C.T.D.) (unemployment insurance benefits paid to a worker on a job creation project). In my view, these cases have correctly held that the words "personal property" in s. 90(1)(b) include intangible property such as the right to payment of money at issue in this case. I would, again, endorse the reasoning of Morse J., supra, at p. 125:

I am, with respect, unable to reach the same conclusion as did Ferg L.J.Q.B. with respect to the meaning of the words `personal property' so far as s. 90(1) is concerned. In my judgment, there is no compelling reason why the words "personal property" must be given the same meaning in para. (b) as in para. (a). The section is meant to extend the meaning of the words "personal property situated on a reserve". Section 90(1)(a) uses the words "personal property . . . purchased", while s. 90(1)(b) uses the words "personal property . . . given", and the two sub‑sections are separated by the disjunctive preposition "or". It is true, as was pointed out by Ferg L.J.Q.B., that s. 90(3) has reference to tangible personal property, but I do not see why making the destruction of property an offence necessarily restricts the meaning of "personal property" in s. 90(1). So far as s. 90(2) is concerned, that subsection is, I think, broad enough to cover not only tangible but intangible personal property such as a debt or a right to payment.

. . . a liberal construction may, in my view, be given to the meaning of the words "personal property" in s. 90. The right of the defendants in this case to payment of the money agreed to be paid to them by the government of Manitoba should, in my opinion, be held to be personal property within the meaning of s. 90(1).

(b) "was . . . given"

The appellants' argument is that since the money owed was not actually given to the various respondents, personal property was not "given". This argument is manifestly flawed. The personal property in question is a debt, not money per se. As Morse J. succinctly put it, supra, at p. 128, "the defendants have been given personal property because they have been given the right to be paid money. This right or debt was in existence when the garnishing order was issued. It is not, in my view, necessary that actual money be paid to the defendants before s. 90(1)(b) is applicable."

(c) "Agreement"

Finally, it was argued before Morse J., although not explicitly before this Court, that the word "agreement" in s. 90(1)(b) must be read ejusdem generis with the word "treaty" which also appears in the sub‑section; because treaties are only with the federal government, such agreement must be similar to a treaty with the federal government. All of the cases to date which have found a s. 90(1)(b) agreement have indeed involved agreements with the federal government: see Greyeyes, supra (scholarship funds paid out in accordance with an agreement to assist the band members in their education pursuant to treaty obligations), Fayerman, supra (money paid to a bank pursuant to a signed agreement between the Department of Indian Affairs and a band), Fricke, supra (a similar agreement to that in Fayerman), and Williams, supra (an agreement between a band and the federal government creating a job creation project pursuant to which benefits were paid).

Apart from amounting to an indirect challenge to the meaning of "Her Majesty", a matter already disposed of, I can see no reason why the ejusdem generis rule of interpretation, assuming that it is applicable, should prevail over the Nowegijick principle of resolving ambiguities in favour of Indians. I have no difficulty in accepting that there was an agreement to refund the tax in exchange for the execution of releases by the 54 Indian bands involved; see Order‑in‑Council No. 253. Indeed, the very action instituted by the appellants against the respondents is premised on the existence of an agreement which the appellants claim to have negotiated on behalf of the respondents. Paragraph 65 of the appellants' Amended Statement of Claim reads in part: "In the Fall of 1982, the Government of Manitoba, as a result of the efforts of the Plaintiffs, agreed to pay the Defendant Indian bands sales tax rebates as hereinafter set out." (Emphasis added.)

I would note that the appellants also argue for combining the interpretation of the words "was given" with the word "agreement" and suggest that any agreement must be one that is not accompanied by consideration (in this case, the releases of the bands) which are said to give it the tinge of a commercial bargain and not a gift. Such an interpretation would be the antithesis of a liberal interpretation, and cannot be endorsed.

An additional point in favour of the respondents is that the money in question was a tax rebate. One can only assume that this money should never have been taxed in the first place (per s. 87 of the Indian Act) and should never have left Indian hands. It would be an odd result if that money could be garnished on its way back to where it never should have left.