A-147-79
Raymond Cardinal, Chief, and Edward Morin,
Charles Cowan, Romeo Morin, Alex Peacock and
Alphonse Thomas, Counsellors of the Enoch Band
of the Stony Plain Indians, for themselves and on
behalf of the Enoch Band of the Stony Plain
Indians Reserve No. 135; and The Enoch Band of
the Stony Plain Indians Reserve No. 135
(Appellants)
v.
The Queen (Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, January 11; Ottawa, February 22,
1980.
Indians — Surrender of Indian lands — Majority of votes
cast at meeting assenting to surrender, but assenting votes not
a majority of all eligible voters — Whether or not Indian Act
requiring assent of majority of those voting or of those eligible
to vote — Indian Act, R.S.C. 1906, c. 81, s. 49(1).
This is an appeal from a judgment of the Trial Division on a
preliminary point of law. In an action dealing with the surren
der of Indian lands, this Court directed that two questions be
tried as a preliminary issue in the matter. The first question
raises the issue whether subsection 49(1) of the Indian Act
required the assent of a majority of the meeting or of a
majority of those entitled to vote. In May 1908, at the time of
the Band's vote dealing with the surrender, there were between
thirty and thirty-three enfranchised members, with fourteen, of
the twenty-six members who voted, assenting. In response to
this question the Trial Judge decided that the surrender was not
invalid. This decision forms the subject-matter of this appeal.
The second question, whether subsection 49(3) required certifi
cation by more than one of the chiefs or principal men, was
answered in the affirmative by the Trial Judge and that portion
of his decision is not under appeal.
Held, (Heald J. dissenting) the appeal is dismissed. The Trial
Judge correctly concluded that the council or meeting required
by subsection 49(I) to be held was a council or meeting of the
Band. It was not a council or meeting of the adult males, per se,
but a meeting of the Band of which the adult males were the
enfranchised members. The interpretation suggested by counsel
that the section requires a majority of the eligible voters present
at the meeting with a majority of those at the meeting approv
ing the surrender thus implying a quorum provision in the
section, is the correct one. At common law, where an unincor-
porated body consisted of an indefinite number of persons,
those who actually voted were held to be the necessary quorum
and the act of the majority of those was the act of the body.
The consent required under subsection 49(1) was the consent of
the Band, not of the adult males, per se. Their number was
indefinite rather than definite in terms of the common law. A
majority of their number attended the meeting or council; that
was clearly a quorum. A majority of the quorum approved the
surrender. The act of the majority was the act of the Band.
Per Heald J. dissenting: Question no. I should be answered
in the affirmative since the persons who in the record of poll are
listed as being in favour of the surrender did not constitute a
majority of the male members of the Enoch Band of the full
age of twenty-one years according to subsection 49(I) of the
Indian Act. The Trial Judge failed to consider the punctuation
in determining the intention of Parliament in respect of subsec
tion 49(1). Significance should be given to the fact that the
majority provision is separated from the meeting requirement
by a comma. The presence of the comma and of the other
punctuation supports the appellants' contention that the assent
required in subsection 49(1) means assent by a majority of the
adult male members of the Band, but provides that such
majority assent must be attained at a meeting of the Band
summoned for that purpose. This is to give subsection 49(I) its
literal construction. Subsection 49(1) requires the assent of the
majority rather than specifying a majority vote to approve the
surrender. Reading the words in subsection 49(1) in their entire
context in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the objects of the Act and the
intention of Parliament to provide a high standard of protection
for the bands, the interpretation of the appellants is the correct
one.
Glass Bottle Blowers' Association of the United States
and Canada v. Dominion Glass Co. Ltd. [1943] O.W.N.
652, agreed with. Knowles v. Zoological Society of
London [1959] 2 All E.R. 595, agreed with.
APPEAL.
COUNSEL:
B. G. Nemetz and T. C. Semenuk for
appellants.
L. P. Chambers and B. Barnard for
respondent.
SOLICITORS:
MacPherson & Company, Calgary, for
appellants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting): This is an appeal from a
judgment of the Trial Division [[1980] 1 F.C. 149]
on a preliminary point of law. By order made on
consent on November 9, 1978, this Court directed
that the following questions be tried as a prelim
inary issue in the action, namely:
I. whether the surrender of the 13th of May 1908 by the
Enoch Band was invalid on the ground, whilst those persons
who in the record of poll are listed as being in favour of the
surrender, constituted a majority of those persons who are
known to have voted, nevertheless they did not constitute a
majority of the male members of the Enoch Band of the full
age of twenty-one years according to subsection 1 of section 49
of the Indian Act, R.S.C. 1906, c. 49.
2. whether the certification in the Affidavit dated May 13,
1908, by one principal man of the Enoch Band that the release
and surrender had been assented to by the Band constituted
sufficient compliance with subsection 3 of section 49 of the
Indian Act, R.S.C. 1906, c. 49.
NOTE: The reference above to c. 49 is in error.
The Indian Act was c. 81 of the R.S.C.
1906.
The learned Trial Judge answered the second
question in the affirmative and that portion of his
decision is not under appeal. In response to the
first question, the learned Trial Judge decided that
the surrender of May 13, 1908 by the Enoch Band
was not invalid. It is this decision which forms the
subject-matter of this appeal.
In the Trial Division, the parties filed an agreed
statement of facts which reads as follows:
AGREED STATEMENT OF FACTS
I. By Order dated November 9, 1978, the Federal Court of
Appeal ordered that questions 1 and 2 of Part 11 of the
Defendant's application to this Honourable Court, dated
March 4, 1977, be tried as a preliminary issue in this action.
2. By Joint Application for Time and Place for Trial, filed on
December 13, 1978, the parties have applied for a date and
place for such trial.
3. For the purpose of such trial the parties agree on the
following facts:
(a) As of May 8, 1908, there were between 30 and 33 male
members of the Enoch band of Indians of the full age of 21
years and who were entitled to vote on the surrender of lands
forming part of their reserve, within the meaning of section
49(1) of the Indian Act, R.S.C. 1906, c.81.
(b) The number of male members of the Enoch band of
Indians of the full age of 21 years who either assented to the
surrender of the subject lands or who were recorded as being
in opposition thereto was 26.
(c) The number of male members of the Enoch band of
Indians of the full age of 21 years who assented to the said
surrender on May 13, 1908 and who were so entitled to vote
pursuant to section 49(1) of the Indian Act, R.S.C. 1906, c.
81, were 14 in number.
(d) There was executed subsequent to such vote an affidavit
by one principal man of the Enoch band of Indians attesting
to the surrender, pursuant to section 49(1) of the Indian Act,
R.S.C. 1906, c.81. Hereunto annexed and marked as Exhib
its "A" and "B" are photocopies of the said surrender
instrument and attesting affidavit, respectively.
4. The parties are not in agreement that there was in fact a
meeting of the male members of the Enoch band of Indians of
the full age of 21 years on May 13, 1908, summoned for the
purpose of voting on the said surrender, and that such vote was
taken thereat, within the meaning of section 49(1) of the
Indian Act, R.S.C. 1906, c.81.
5. However, the parties seek the Court's determination of the
said questions on the assumption that there was such a meeting
and that such vote was taken thereat.
In order to answer the first question set out supra,
it is necessary to interpret the provisions of section
49 of the Indian Act, R.S.C. 1906, c. 81. That
section reads as follows:
49. Except as in this Part otherwise provided, no release or
surrender of a reserve, or a portion of a reserve, held for the use
of the Indians of any band, or of any individual Indian, shall be
valid or binding, unless the release or surrender shall be
assented to by a majority of the male members of the band of
the full age of twenty-one years, at a meeting or council thereof
summoned for that purpose, according to the rules of the band,
and held in the presence of the Superintendent General, or of
an officer duly authorized to attend such council, by the
Governor in Council or by the Superintendent General.
2. No Indian shall be entitled to vote or be present at such
council, unless he habitually resides on or near, and is interest
ed in the reserve in question.
3. The fact that such release or surrender has been assented
to by the band at such council or meeting shall be certified on
oath by the Superintendent General, or by the officer author
ized by him to attend such council or meeting, and by some of
the chiefs or principal men present thereat and entitled to vote,
before some judge of a superior, county or district court,
stipendiary magistrate or justice of the peace, or, in the case of
reserves in the province of Manitoba, Saskatchewan or Alberta,
or the Territories, before the Indian commissioner, and in the
case of reserves in British Columbia, before the visiting Indian
Superintendent for British Columbia, or, in either case, before
some other person or officer specially thereunto authorized by
the Governor in Council.
4. When such assent has been so certified, as aforesaid, such
release or surrender shall be submitted to the Governor in
Council for acceptance or refusal.
More specifically, on the admitted facts in this
case, it becomes necessary to interpret the provi
sions of subsection (1) of section 49 supra.
The learned Trial Judge interpreted that subsec
tion as follows (Vol. 6, Appeal Book, p. 845 [pages
160-161 of the reasons for judgment]):
The consent required under subsection 49(1) was the consent
of the Enoch Band, not the consent of the adult males, per se.
The adult males were the enfranchised members of the Band
and, while they were not numerous in 1908, their number was
indefinite rather than definite in terms of the common law. A
majority of their number attended the meeting or council of
May 13, 1908. That was clearly a quorum; perhaps fewer than
a majority would also have been but I do not have to decide
that. A majority of that quorum approved the surrender. The
act of that majority was the act of the Band. The first question,
being posed in the negative, must be answered in the negative.
The surrender was not invalid because, while assented to by a
majority of the adult males at the council or meeting, it was not
assented to by a majority of all the adult males of the Enoch
Band.
It is the submission of counsel for the appellants
that the learned Trial Judge erred in so holding. In
their view, the learned Trial Judge, while accept
ing their submission that punctuation was to be
considered in determining the intention of Parlia
ment in respect of section 49, failed to give any
weight to the punctuation found in section 49.
They attach significance to the fact that the
majority provision is separated from the meeting
requirement by a comma. It is their submission
that the presence of the comma and the presence
of the other punctuation in the subsection support
their view that the assent required in section 49(1)
means assent by a majority of the adult male
members of the Band, but provides that such
majority assent must be attained at a meeting of
the Band summoned for that purpose. In their
view, the decision of the learned Trial Judge disre
gards the comma placed between the two phrases
in question and substitutes for the comma the
word "present", which, in their submission, result
ed in an improper interpretation of section 49(1).
I am in agreement with this submission by
counsel for the appellants. Maxwell on The Inter
pretation of Statutes' states:
It is a corollary to the general rule of literal construction that
nothing is to be added to or taken from a statute unless there
are adequate grounds to justify the inference that the legisla
ture intended something which it omitted to express.
Lord Loreburn L.C. stated in the case of Vickers,
Sons & Maxim, Ltd. v. Evans 2 :
' 12th Edition, p. 33.
2 11910] A.C. 444 at 445.
... we are not entitled to read words into an Act of Parliament
unless clear reason for it is to be found within the four corners
of the Act itself.
In my opinion, section 49(1) given its literal con
struction, requires that any release or surrender of
a reserve or a portion of a reserve to be valid must
meet the following requirements:
(a) the release or surrender must be assented to
by a majority of the male members of the Band
of the full age of 21 years; and
(b) that assent must take place at a meeting or
council of the Band called for that purpose
according to the rules of the Band and held in
the presence of the Superintendent General of
Indian Affairs or an officer duly authorized to
attend such meeting or council on his behalf.
Support for this construction is to be found, in my
view, from the fact that section 49(1) requires the
assent of the majority rather than specifying a
majority vote.
I agree with counsel for the appellants that
Parliament, in requiring the assent of the majority
has imposed a higher standard than that of a mere
majority of votes. This is well illustrated in the
example suggested by counsel, namely, a factual
scenario in which all of the eligible voters (whether
it be 30, 31, 32 or 33 in this case) were present at
the meeting and when the vote was taken, only five
of those eligible voters assented to the surrender
with the remaining twenty-five abstaining from
voting or expressing any opinion. In that case, the
issue would be decided at a meeting where there
was present a majority of those entitled to vote and
by a majority of those voting but the issue would
not have been assented to even by a majority of
those at the meeting. Such a possible result sup
ports the view that it was Parliament's intention, in
enacting section 49(1) to require the Crown to
obtain the positive assent of the majority of the
male band members over 21 and not merely some
majority of votes, since that majority could con
ceivably be only a majority of a very small number
of the eligible members. Support for this view is
also found, in my opinion, from the wording of
subsection (3) of section 49 where it is provided
that:
49....
3. The fact that such release or surrender has been assented
to by the band at such council or meeting .... [Emphasis
added.]
In my view, this wording makes it clear that the
assent required by subsection (1) of section 49 is
the assent of the Band and not the assent of the
meeting. The meeting requirement is separate and
severable from the assent requirement and merely
indicates the forum at which the assent is to be
given. If Parliament intended the majority to be a
majority of the meeting, subsection (3) could have
provided that: "The fact that such release or sur
render has been assented to by such council or
meeting ...". The fact that subsection (3) does not
so provide, impels me to the view that the interpre
tation urged on us by the appellants is the correct
one.
At this juncture, I consider it instructive to
consider the general scheme of the Indian Act of
1906 and thereafter to examine the provisions of
section 49(1) thereof in the context of that general
scheme. A "band" is defined, inter alia, as a body
of Indians who own or are interested in a reserve
or in Indian lands in common, of which the legal
title is vested in the Crown. "Reserve" is defined,
inter alia, as a tract or tracts of land set apart by
treaty or otherwise for the use or benefit of or
granted to a particular band of Indians, of which
legal title is vested in the Crown. The definition of
"reserve" also includes "... all the trees, wood,
timber, soil, stone, minerals, metals and other
valuables thereon or therein". The Crown had the
control and management of the reserve lands. The
Crown, through Indian agents, had substantial
powers over the Indians for the purpose of educat
ing Indian children. An Indian could not transfer
from one band to another without the approval of
the Crown. The Indians could be issued, upon the
approval of the Crown, a certificate of occupancy
of a parcel of land on the reserve, not exceeding
160 acres. Such certificate could be cancelled at
any time by the Crown but while in force, entitled
the holder thereof to lawful possession of the land
in question as against all others. There were re
strictions on the ability of Indians to dispose of
their property by will. The Crown could appoint
and change guardians of the persons of infant
Indians whose father was deceased. Indians could
not sell their own crops to non-Indians without the
consent of the Superintendent General of Indian
Affairs. The Crown had absolute control over all
logging on the reserve. The Crown decided wheth
er an elective system of chiefs and councillors was
to be instituted on any particular reserve; the
Crown could depose any chief; and the procedures
for elections had to be approved by the Crown.
The Act did provide for enfranchisement but the
procedure was difficult and complex. When Indi-
ans became enfranchised there was provision for
issue of fee simple title to the land they held under
location ticket but any further transfer was subject
to Crown approval. The Act also provided substan
tial penalties for outsiders buying produce from a
reserve or a reserve Indian without Crown approv
al. Alcohol could not be sold to Indians.
Turning now to section 49—that section is in a
portion of the Act containing sections 47 to 51
inclusive. The caption or sub-title to that portion
reads "Surrender and Forfeiture of Lands in
Reserve". A perusal of these sections convinces me
that the primary intention of Parliament in enact
ing them was to protect the reserve lands from
transfer and disposition away from the Indians
who had been given possessory, and, in some cases,
proprietary rights by other sections of the statute.
Most of these sections commence with a prohibi
tion and then provide for certain exceptions from
those prohibitions. Section 51 of the Act was
considered by the Supreme Court of Canada in the
case of St. Ann's Island Shooting and Fishing
Club Limited v. The King 3 . In dealing with section
51, Rand J. stated as follows at page 219:
But I agree that s. 51 requires a direction by the Governor in
Council to a valid lease of Indian lands. The language of the
statute embodies the accepted view that these aborigines are, in
effect, wards of the State, whose care and welfare are a
political trust of the highest obligation. For that reason, every
such dealing with their privileges must bear the imprint of
governmental approval, and it would be beyond the power of
the Governor in Council to transfer that responsibility to the
Superintendent General.
Mr. Justice Rand's characterization of the lan
guage of the statute is clearly accurate. Under the
3 [1950] S.C.R. 211.
statute, our native Canadians were, in effect,
wards of the state and their care and welfare,
while being "a political trust of the highest obliga
tion" was, at the same time, in furtherance of that
trust, carefully protected by numerous statutory
safeguards. In this context, it is my firm conviction
that if the words used in section 49(1) are not
susceptible of a plain and unambiguous meaning,
(and in my view, as stated earlier, they are clear
and unambiguous), then they should be read re
strictively so as to protect the majority of band
members from irresponsible actions by a minority
which could result in an entire reserve being sur
rendered. Such a result might well have cata
strophic consequences for the majority of the Indi-
ans living on that reserve. I do not believe that
Parliament intended to permit such a possibility to
occur.
Counsel in the argument before us suggested
three possible interpretations of the language used
in section 49(1):
1. The section requires a majority of the eligible
voters present at the meeting with a majority of
those at the meeting approving the surrender
thus implying a quorum provision in the section.
2. The section merely requires a simple major
ity of those eligible voters who attend the meet
ing. This would mean that two eligible voters at
a meeting at which only three eligible voters
were present could surrender an entire reserve.
3. The section requires that a majority of the
eligible voters approve the surrender.
The third interpretation is the one urged on us by
counsel for the appellants and is the one which in
my view is the correct interpretation.
The learned Trial Judge appears to have chosen
the first interpretation while not foreclosing the
second interpretation. In my view, the second pos
sible interpretation would be completely unreason
able and contrary to the intent of Parliament. For
the reasons given supra, I think that the first
interpretation is also contrary to the intent of
Parliament. Additionally, as above stated, it is my
opinion that to arrive at this interpretation, it is
necessary to remove the comma and insert the
word "present" into the section.
Support for the view which I hold can be found,
in my opinion, in a perusal of the other voting
provisions of this Act. Those sections are sections
17, 166, 167, 183 and 189.
Section 17 describes the procedure to be fol
lowed when an Indian of one band is admitted into
membership in another band. The provision is for
"... a majority vote of a band, or the council of a
band ...". It is to be noted that this section refers
to "vote" rather than to "assent".
Section 166 deals with the election of chiefs and
has the same requirement as section 49 regarding
who is eligible to vote and goes on to provide that
"... the vote of a majority of such members, at a
council or meeting of the band ...". Again, the
reference is to "vote" rather than "assent". The
other interesting feature about section 166 is that
it applies: "At the election of a chief or chiefs, or
at the granting of any ordinary consent required of
a band under this Part ...". (Underlining mine.)
The use of this term implies that in other sections
and in other situations under Part I of the Act, a
special or extraordinary consent may be necessary.
Section 167 deals with the manner in which a
band having a council of chiefs or councillors may
act. It provides that "... any ordinary consent
required of the band may be granted by a vote of a
majority of such chiefs or councillors, at a council
summoned ...". Again we have the reference to
"vote" rather than "assent". Again there is a
reference to "any ordinary consent".
Turning now to sections 183 and 189 of the Act:
these sections are both contained in Part II of the
Act. Part II deals with Indian advancement and is
an attempt to give to those bands who, in the
opinion of the Governor in Council, are advanced
to the point where they are ready for it, a larger
voice in their own affairs and in the governing and
administration of their own bands. Sections 182
and 183 deal with the election of members of the
council. Section 183 provides for the election of
these councillors and states that "... the Indian
. having ... the greatest number of electors .. .
shall be the councillor ...". It is interesting to note
that when Parliament clearly intended to provide
that a majority of those voting was sufficient to
determine an issue, it had no difficulty in finding
apt words to define the requirement. Turning now
to section 189, this section deals with the proce
dure at meetings of band councils. Section 189
reads as follows:
189. Each councillor present shall have a vote on every
question to be decided by the council, and such question shall
be decided by the majority of votes, the chief councillor voting
as a councillor and having also a casting vote, in case the votes
would otherwise be equal.
2. Four councillors shall be a quorum for the despatch of any
business.
Thus, when band councils are conducting their
business, even in the case of "Advanced Bands"
under Part II, Parliament has required a quorum
of 2/3 of the total number of councillors (the
maximum being six pursuant to sections 176 to
181) to carry out the normal routine business of
the band and to pass any resolution or motion, a
majority of the quorum, namely 1/2 of the total
number of councillors. Section 189 aptly illustrates
the clear and unambiguous language which, in my
view, is necessary to achieve the interpretation of
section 49(1) made by the learned Trial Judge and
supported by the respondent.
I agree with counsel for the appellants that
Parliament could not have intended that a question
so fundamental as the breaking up of an entire
reserve could proceed with less concurrence than
the transaction of ordinary and routine business at
a council meeting of an "advanced band" under
Part II of the Act.
In my view, the proper approach to the con
struction of a section of a statute is succinctly
stated by E. A. Driedger, Q.C., in his textbook on
The Construction of Statutes. At page 67, Mr.
Driedger states as follows:
To-day there is only one principle or approach, namely, the
words of an Act are to be read in their entire context in their
grammatical and ordinary sense harmoniously with the scheme
of the Act, the object of the Act and the intention of Parlia
ment. This principle is expressed repeatedly by modern judges.
Lord Atkinson in Victoria City v. Bishop of Vancouver Island
([1921] A.C. 384, at p. 387) put it this way:
In the construction of statutes their words must be interpret
ed in their ordinary grammatical sense, unless there be
something in the context, or in the object of the statute in
which they occur, or in the circumstances with reference to
which they are used, to show that they were used in a special
sense different from their ordinary grammatical sense.
Applying that approach, I have concluded that,
reading the words in section 49(1) in their entire
context in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the
objects of the Act and the intention of Parliament,
the interpretation urged on us by the appellants is
the correct one, notwithstanding that the result is a
requirement for an absolute majority of the eli
gible voters. Breaking up a reserve or a part of a
reserve is a serious matter with serious conse
quences not only for the eligible voters but for all
the other members of the band as well. In my view,
Parliament in using the words of section 49(1)
clearly intended to provide a high standard of
protection for these bands.
Accordingly, and for the foregoing reasons, I
would allow the appeal with costs and answer
Question No. 1 in the affirmative since the persons
who in the record of poll are listed as being in
favour of the surrender did not constitute a majori
ty of the male members of the Enoch Band of the
full age of twenty-one years according to subsec
tion (1) of section 49 of the Indian Act, R.S.C.
1906, c. 81.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of Mr. Justice Heald. I
regret that I am unable to agree with his conclu
sion and, therefore, with his proposed disposition
of this appeal.
There is no necessity for my repeating the factu
al background since it has been fully set forth in
Heald J.'s reasons.
It is common ground that the learned Judge of
first instance correctly concluded [at page 158],
for the reasons which he carefully set out, that
"the council or meeting required by subsection
49(1) 4 [of the Indian Act] to be held was a council
or meeting of the band. It was not a council or
meeting of the adult males, per se, but a meeting
of the band of which the adult males were the
enfranchised members." What is challenged is his
interpretation of the following words from section
49(1):
... assented to by a majority of the male members of the band
of the full age of twenty-one years, at a meeting or council
thereof summoned for that purpose ....
As Heald J. has pointed out, counsel suggested
three possible interpretations of those words:
1. The section requires a majority of the eligible
voters present at the meeting with a majority of
those at the meeting approving the surrender thus
implying a quorum provision in the section.
2. The section merely requires a simple majority
of those eligible voters who attend the meeting.
This would mean that two eligible voters at a
meeting at which only three eligible voters were
present could surrender an entire reserve.
3. The section requires that a majority of the
eligible voters approve the surrender.
My brother Heald has concluded that the third
possible interpretation is the correct one. On the
other hand the learned Judge of first instance
appears to have accepted the first interpretation as
applicable on the facts of this case, although he did
not appear to foreclose the applicability of the
second interpretation in different circumstances.
With the greatest respect for Mr. Justice
Heald's view to the contrary, I do not agree that
interpreting the relevant words of the section in
4 49. Except as in this Part otherwise provided, no release or
surrender of a reserve, or a portion of a reserve, held for the use
of the Indians of any band, or of any individual Indian, shall be
valid or binding, unless the release or surrender shall be
assented to by a majority of the male members of the band of
the full age of twenty-one years, at a meeting or council thereof
summoned for that purpose, according to the rules of the band,
and held in the presence of the Superintendent General, or of
an officer duly authorized to attend such council, by the
Governor in Council or by the Superintendent General.
the manner suggested by the first possible inter
pretation requires the substitution of the word
"present" for the comma appearing after the
words "twenty-one years". I have so concluded
because of the use of the word "at" immediately
following the comma. It denotes a place—a fixed
and definite place. In the context of the section the
"place" is a "meeting". It is a mandatory require
ment that there be a meeting. Since it is required
that there be such a "meeting" it is implied that
two or more persons be present. 5 The phrase
immediately preceding the words "at a meeting"
instructs how many must be in attendance at the
meeting—not simply two or more but a majority
of the male members of the band of the full age of
twenty-one years. The presence or absence of the
comma between the phrases, in my opinion, nei
ther aids in the understanding of the meaning of
the section, nor obscures it. By the same token, the
inclusion of the word "present" in the section is
not necessary for such an understanding. In my
view, its inclusion would be superfluous because,
as I have endeavoured to show, the words as they
appear are clear and unambiguous without it.
They show that a majority of the adult male
members of the band must be present at a meeting
or a council of the band for the purpose of assent
ing to the release or surrender of a reserve or a
portion thereof.
Such a view of the section is consistent with the
scheme of the Act as referred to in the reasons for
judgment of the Court below and in the reasons of
my brother Heald. I need not repeat their review
of the portions of the Act necessary to determine
the objectives and scheme of the legislation.
However, it is noteworthy, I think, that section
166, also in Part I of the Act, prescribing the
method for electing chiefs and for the granting of
an ordinary consent, uses much the same language
as section 49(1) and includes a comma in exactly
the same position as in the latter section. So does
section 167. Section 166 reads in part as follows:
... and the vote of a majority of such members, at a council or
meeting of the band summoned according to its rules ....
5 Sharp v. Dawes (1876-77) 2 Q.B.D. 26 per Coleridge C.J.
at p. 29.
The voting members referred to are the same as
those in section 49(1), namely, "the male members
of the band of the full age of twenty-one years". In
the context, again I think it is clear that the vote
will be among the majority of the adult males
present at a meeting.
Like the learned Judge below, I do not think
that the sections of Part II of the Act upon which
counsel for the appellants relied, namely sections
183 and 189, are particularly helpful in ascertain
ing the meaning of section 49(1) since they use
entirely different language. The ordinary rule of
construction that the plain grammatical construc
tion of the phrase or words in question is to prevail
cannot be displaced by reference to different
phrases and words in other parts of statutes unless
the grammatical construction is repugnant to the
intention of the Act or lead to some manifest
absurdity. I have not been persuaded that such is
the case here. What is clear is that Parliament
used different language in Part II of the Act from
that in Part I but I do not think that any inference
can be drawn from that fact which would be
helpful in interpreting a section in Part I by refer
ence to other sections in Part II which deals with
"advanced" Indians.
The agreed statement of facts, of course, dis
closes that there were between 30 and 33 male
members of the Enoch Band of the full age of 21
years (adult males) and who were entitled to vote
as at May 8, 1908. Twenty-six of such members
attended the meeting on May 13, 1908 and 14 of
them assented to the surrender at that time,
although it should be noted that the parties are not
in agreement that such a meeting, in fact, was
held. On the assumption that we were asked to
make, namely that such a meeting was held, the 14
who assented to the surrender represented more
than half of the majority of adult male members
which, in fact, was present at the meeting. The
next question then is, what portion of the majority
of adult males at the meeting was required to
effect the surrender of the reserve, or a portion
thereof, in compliance with section 49(1) of the
Act? To determine that question resort should be
had to the jurisprudence relating to voting require
ments in various types of organizations.
In his reasons for judgment, the learned Judge
below dealt [at pages 159-160] with what he
termed the common law on the question as follows:
What is now section 21 of the Interpretation Act (R.S.C.
1970, c. 1-23) was not in force in 1908. There is a body of
common law on the question of quorums and majorities.
With reference to corporations whose charters contained no
particular provision to the contrary, the common law distin
guished between those composed of a definite number of per
sons and those composed of an indefinite number of persons.
Where the number was definite, as in a church corporation
composed of a dean and twelve canons, a majority of that
number constituted a quorum to act and the act of a majority
of that quorum was the act of the corporation (Dr. Hascard v.
Dr. Somany (1663) 89 E.R. 380). However, where the number
of members was indefinite, as in the case of a municipal
corporation consisting of a mayor, twelve aldermen and an
indefinite number of burgesses, those assembled even though
they did not constitute a majority of all of the burgesses,
aldermen and the mayor, constituted a quorum to act and the
act of a majority of those assembled was the act of the
corporation (R. v. Varlo, Mayor of Portsmouth (1775) 98 E.R.
1068). In the case of unincorporated bodies, where a public
duty was delegated to certain named persons, all had to join in
trying to reach the decision but the act of the majority was the
act of the body (Grindley v. Barker (1798) 126 E.R. 875).
However, where the unincorporated body consisted of an indefi
nite number of persons, as the general conference of a church,
those who actually voted were held to be the necessary quorum
and the act of the required majority of those was the act of the
body (liter v. Howe (1897) 23 Ont. App. 256). In the result,
the common law treated abstainers as neither favouring nor
opposing and precluded them, by their mere abstention, from
frustrating the will of the body, corporate or otherwise, as
expressed by a majority of those who cared enough, one way or
another, to take part in the process.
In one class of case, the common law may require that the
quorum of an unincorporated body of an indefinite number of
persons be a majority of that number rather than only those
who actually voted. That is in the area of collective bargaining
where the will of "a majority of the employees" is required to
be ascertained (Glass Bottle Blowers' Association v. Dominion
Glass Co. Ltd. [1943] O.W.N. 652).
I think that the above fairly represents the
principles to be derived from the cases to which he
referred and little would be gained by further
commenting on them with two exceptions. The
Enoch Band is not, of course, a corporate entity
but the Indian Act gives to Indian bands some
elements of self-government, either by votes of the
enfranchised members of the band or through their
councils, which have some of the characteristics of
government through municipal corporations. If
that is so it does not seem to me unreasonable to
accord to such words as "majority" the meaning
that is given to them in the context of such govern
ments. For that reason the principles referred to in
the reasons from the Court below in respect of
local government cases are, to some extent at least,
apposite. Most are, however, very old. Perhaps two
cases of more recent vintage are of greater inter
est, particularly since they deal with the number of
votes required in situations where the voters are
members of unincorporated bodies.
In Glass Bottle Blowers' Association of the
United States and Canada v. Dominion Glass Co.
Ltd. 6 the Ontario Labour Court had to deal with a
certification vote ordered in respect of the compet
ing applications for certification of a bargaining
unit by two trade unions. The report on the vote
showed that of 502 eligible voters, 460 voted, the
vote being 228 in favour of one union and 232 in
favour of the other. The problem and how it was
resolved is disclosed in the following excerpt from
the reasons for judgment of Gillanders J.A. at pp.
654 et seq.:
The proper conclusion [as to the effect of the vote] is not free
from difficulty. Subs. 1 of s. 13 of the Act as follows:—
A collective bargaining agency claiming to represent the
majority of the employees of an employer or of a unit thereof
for collective bargaining purposes may apply to the court to
be certified as a collective bargaining company.
Subs. 2 makes provision for application by an employer "for
an order determining which, if any, collective bargaining
agency represents a majority of his employees or a unit thereof
for collective bargaining purposes and is entitled to certification
as a collective bargaining agency." Subs. 5(b) of the same
section provides that the Court may "certify that a collective
bargaining agency represents a majority of the employees in
such unit, indicating the names of the persons who have been
duly appointed or elected representatives thereof".
The question in so far as the vote is concerned is whether or
not the result indicates that one of the competing organizations
"represents a majority of the employees". The Act clearly
indicates that before certification the Court must conclude that
the agency "represents a majority of the employees", but the
method by which that conclusion may be reached on a vote is
not specified.
On first consideration I was impressed with the view that
before one could conclude on the evidence provided by a vote
6 [1943] O.W.N. 652.
that an organization represents a majority of the employees,
one must find a majority of all eligible employees voting for
such organization, and that nothing short of the affirmative
votes of a majority of all eligible employees would be sufficient
to support such a conclusion. There is force in this view when
one keeps in mind that upon certification the representatives of
the certified agency speak for all the employees in the unit and
the employer is bound to bargain with such representatives with
respect to his employees or an appropriate unit thereof. It is
urged that this is clearly the only basis by way of vote on which
it could be concluded from a vote that the agency seeking
certification has attained the standard fixed by the Legislature.
The matter is open to another view. See The Mayor, Con
stables and Company of Merchants of the Staple of England v.
The Governor and Company of the Bank of England (1887),
21 Q.B.D. 160 at 165:
The acts of a corporation are those of the major part of the
corporators, corporately assembled: Com. Dig. tit. Franchise,
F. 11; and, omitting the words "corporately assembled," this
is declared by 33 Hen. VIII, c. 27, to be the common law.
This means that, in the absence of special custom, the major
part must be present at the meeting, and that of that major
part there must be a majority in favour of the act or
resolution. It was so decided in Easter Term, 1693: Hascard
v. Somany, Freem. 504, quoted in Viner's Abridgment, tit.
Corporations, G. 3, pI. 7; and it was said by Lord Mansfield
in Rex v. Monday, Cowp. 530 at p. 538, to be undoubted
law.
Appropriate bargaining units of employees such as those
concerned in these proceedings are not corporations, but in
determining what acts may be viewed as those of the unit of
employees it seems logical to apply the same principle, subject,
of course to applicable statutory provisions.
Where a majority of the eligible employees take part in such
a vote and a majority of those so taking part indicate they
desire to bargain through a certain agency, that may be viewed
as prima fade evidence of the wish of the majority taking part
in the vote. It follows from this view that in the absence of
evidence indicating otherwise, it might be concluded that the
agency so selected "represents a majority of the employees".
In considering how one should construe the provisions of the
statute in question, it is relevant to have regard to the circum
stances and the consequences of whichever construction may be
adopted, if both constructions are open. The list of eligible
voters fixed for the purpose of taking the vote is at best a
somewhat artificial test. In many cases where there is rapid
turnover and variation in employment rolls, the settlement of
the list of employees as of a certain date leaves something to be
desired as a fair basis for a vote. Where a vote is to be taken it
should be done as expeditiously as convenient, both for the
proper conduct of the vote itself, and to avoid unnecessary
protraction of the whole application. If an affirmative vote of
an absolute majority of all eligible employees were required
before certification, it is apparent that the settlement of the list
of eligible voters becomes of increased importance, whether all
such employees present themselves to vote or not; and it might
well be urged that provision should be made for the votes of
employees temporarily absent by reason of illness, holidays, or
other reasons.
Further, experience with votes taken by the National War
Labour Board in the United States has indicated that to require
the vote of an absolute majority might, in some cases, give
undue effect to the indifference of a small minority. On the
other hand, if one looked upon the vote as conclusive and were
prepared, when a majority of all employees voted, to accept the
decision of the majority of those voting as the voice of the
whole quorum, it might logically be urged that a bare majority
of a majority, i.e., 26 per cent. of all employees, could select a
bargaining agent.
I am of opinion that where a vote is taken and more than half
of the eligible employees in a bargaining unit cast their ballots,
and more than half of those so casting their ballots express
their desire to bargain through a particular agency, the vote
should be viewed as prima fade evidence that such agency
represents a majority of the employees in such bargaining unit.
The reasoning of Gillanders J.A. commends
itself to me assimilating as it does the principles
derived from ancient cases to the situation existing
in labour matters where the ramifications of a
certification vote are of such importance to the
members of a bargaining unit. Similarly, in the
situation in this case where there is a partial
self-determination of proprietary matters given to
the Indians by the Indian Act, a logical, fair and
practical method for the determination of surren
der of Indian reserves contemplated within the
framework of section 49(1) is provided without the
inherent unfairness which would arise if a simple
majority of those present at the meeting were
accepted as the basis for determination of the
question. Furthermore, it avoids another type of
unfairness contemplated by Gillanders J.A. when
he said "to require the vote of an absolute majority
might, in some cases, give undue effect to the
indifference of a small minority." I am unable to
put the proposition more succinctly.
The only other case to which I would refer
briefly is Knowles v. Zoological Society of
London'. In that case the by-laws of the Society
enabled new by-laws to be made by giving notice
at an ordinary general meeting of fellows and
provided that the proposal should be carried "if
the majority of fellows entitled to vote" should
vote in its favour. On the question whether the
majority required by the by-law was a majority of
7 [1959] 2 All E.R. 595.
all fellows of the Society, the English Court of
Appeal held, as stated in the head note, that:
Held: the words "majority of fellows entitled to vote" in Ch.
13, s. 3, meant "majority of fellows present at the meeting and
entitled to vote thereat", because this was a possible construc
tion of the words in the context of s. 3, which was directed to a
particular ordinary meeting, and should be adopted because it
avoided inconvenience (for it would not be practicable to know
which fellows were disqualified by absence from the country or
unable to vote by being in arrear with subscription) and
avoided inconsistency with the charters (for the supplemental
charter conferred power on a three-quarters majority of those
present at a meeting to alter the provisions of the charter which
was a document of far greater consequence than the bye-laws).
The circumstances of the case and the reasoning
of the Court are not wholly apposite here. How
ever, it is of some importance in my view, since the
Court applied the principles from the old cases
applicable to corporations to the voting require
ments of an unincorporated body.
For all of the foregoing reasons, I would dismiss
the appeal with costs.
* * *
MACKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.