Musqueam Indian Band v. Musqueam Indian Band (Board of Review)

2016 SCC 36

(Aboriginal law — Indian reserves — Taxation)

On appeal from a judgment of the British Columbia Court of Appeal (2015 BCCA 158), setting aside in part a decision of Maisonville J., (2013 BCSC 1362).

Since 1991, the Musqueam Indian Band exercises jurisdiction over taxation of reserve lands under the Musqueam Indian Band Property Assessment Bylaw. In 1996, Musqueam amended s. 26(3.2) of the Bylaw to allow an assessor to consider “any restriction placed on the use of the land and improvements by the band” in determining the value of property for taxation purposes, instead of restrictions imposed by “an interest holder”. In 1957, Musqueam surrendered a portion of its reserve lands to the Crown for lease to the Shaughnessy Golf and Country Club. As the lease restricts the use of the lands to a golf and country club, the assessor for Musqueam consistently assessed the value of the lands based upon this use for tax assessment purposes. In 2011, Musqueam challenged this assessment before a board of review, claiming that the lands should be valued as residential land and that the use restriction in the lease had not been placed “by the band”, since the lease was between the Crown and the Club. The Board of Review stated a case to the British Columbia Supreme Court. Both the chambers judge and the Court of Appeal held that the assessor could take the use restriction into account.

Held (7-0): The appeal should be dismissed.

As the courts below concluded, the Bylaw permits the assessor to consider the use restriction in the lease between the Crown and the Club in determining the value of the demised reserve lands for assessment purposes. Resolving this issue is a matter of interpreting s. 26(3.2) the Bylaw, which entails discerning its meaning by examining its terms in their entire context and in their grammatical and ordinary sense, in harmony with the Bylaw’s scheme and objects. Here, the plain wording of s. 26(3.2), read in light of its purpose and context, grants the assessor the discretion to consider the use restriction in establishing the value of the leased lands for tax assessment purposes.

Musqueam’s arguments — that the 1996 amendment to the Bylaw was intended to account for the powers it acquired under the Framework Agreement on First Nation Land Management, and that the term “placed . . . by the band” bars consideration of the lease with the Club since the lease was concluded with the Crown — are not persuasive. The only relevant substantive change to s. 26(3.2) of the Bylaw made by the 1996 amendment was to narrow the range of restrictions on use which an assessor is expressly permitted to take into account, from those imposed by an interest holder (which would include a lessee) to those imposed only by Musqueam itself. Furthermore, while it is true that the lease was between the Club and the Crown, the Crown’s intervention was necessitated by the Indian Act which provided at the material time that reserve lands could not be leased without first being surrendered to the Crown. The Bylaw must be read in light of this statutorily mandated Crown role. While the surrender document makes no mention of the lease or the Club, the context in which the surrender occurred and the lands were demised clarifies that Musqueam intended that the lands be leased to the Club. Given that context, the use restriction in the lease was placed “by the band”.

Reasons for Judgment by Brown J. (McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner and Côté JJ. concurring)

Neutral Citation: 2016 SCC 36

Docket Number: 36478

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16120/index.do