Date: 19980702
Dockets: A-391-96
A-404-96
CORAM: STONE J.A.
DENAULT J.A.
DÉCARY J.A.
A-391-96
BETWEEN:
MATSQUI INDIAN BAND and
MATSQUI INDIAN BAND COUNCIL
Appellants
| (Respondents) |
AND:
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Applicant)
AND: CANADIAN PACIFIC LIMITED and
AT & T LONG DISTANCE SERVICES COMPANY and
INDIAN TAXATION ADVISORY BOARD and
LITTLE SHUSWAP INDIAN BAND and
LITTLE SHUSWAP INDIAN BAND COUNCIL
Intervenors
A-404-96
BETWEEN:
KAMLOOPS INDIAN BAND and
KAMLOOPS INDIAN BAND COUNCIL
Appellants
| (Respondents) |
AND:
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Applicant)
AND: CANADIAN PACIFIC LIMITED and
AT & T LONG DISTANCE SERVICES COMPANY and
INDIAN TAXATION ADVISORY BOARD and
LITTLE SHUSWAP INDIAN BAND and
LITTLE SHUSWAP INDIAN BAND COUNCIL
Intervenors
Heard at Vancouver (British Columbia) on Tuesday, Wednesday and Thursday, May the 26, 27, and 28, 1998.
Judgment delivered at Ottawa on Thursday, July 2, 1998.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: STONE J.A.
DENAULT J.A.
Date: 19980702
Dockets: A-391-96
A-404-96
CORAM: STONE J.A.
DENAULT J.A.
DÉCARY J.A.
A-391-96
BETWEEN:
MATSQUI INDIAN BAND and
MATSQUI INDIAN BAND COUNCIL
Appellants
| (Respondents) |
AND:
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Applicant)
AND: CANADIAN PACIFIC LIMITED and
AT & T LONG DISTANCE SERVICES COMPANY and
INDIAN TAXATION ADVISORY BOARD and
LITTLE SHUSWAP INDIAN BAND and
LITTLE SHUSWAP INDIAN BAND COUNCIL
Intervenors
A-404-96
BETWEEN:
KAMLOOPS INDIAN BAND and
KAMLOOPS INDIAN BAND COUNCIL
Appellants
| (Respondents) |
AND:
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Applicant)
AND: CANADIAN PACIFIC LIMITED and
AT & T LONG DISTANCE SERVICES COMPANY and
INDIAN TAXATION ADVISORY BOARD and
LITTLE SHUSWAP INDIAN BAND and
LITTLE SHUSWAP INDIAN BAND COUNCIL
Intervenors
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] These appeals arise in two of a number of applications, brought by railway companies under sections 18 and 18.1 of the Federal Court Act, challenging the validity of property tax assessment notices issued on behalf of various Indian Bands in respect of lands held by these companies, comprising their railway road-bed, station grounds and other lands. The applications involve one common question: whether the lands at issue are lands "in the reserve" within the meaning of the Indian Act, R.S.C. 1985, c. I-5, as amended and therefore subject to taxation by the Board pursuant to paragraph 83(1)(a) of the Indian Act.
[2] There were six applications for judicial review that were heard together by the Motions Judge1. The reasons for order given in File T-639-92 applied to all. Before us, in these appeals, are Files T-269-95 (A-391-96) and T-1638-93 (A-404-96), both involving Canadian National Railway Company ("CN"). Appeals were also filed in T-639-92 (A-389-96), T-2780-93 (A-403-96), T-2790-93 (A-386-96) and T-2986-93 (A-390-96). Three of these appeals await the disposition of the present ones; the appeal by the Nanaimo Indian Band and the Nanaimo Indian Band Council in A-390-96 has been discontinued.
[3] In his Order dated April 15, 1996, Mr. Justice Teitelbaum allowed the applications and set aside the Indian Bands' property assessment notices taxing the railway companies "as being outside the taxing jurisdiction" of the respective Indian Bands. In his amended reasons dated July 25, 1996, the Motions Judge formulated the following alternative conclusion (supra, note 1 at 420):
| Alternatively, if I am wrong in allowing the present applications, I sever those impugning aspects of the aforementioned Indian Band property assessment notices taxing the property of the applicants that discriminate as between persons. |
[4] These two appeals were heard together. Even though some of the facts and some of the relevant legislation may be different, the present set of reasons will be applicable to both File No. A-391-96 and File No. A-404-96.
[5] I shall first set out the provisions of the Indian Act which are immediately relevant:
| INTERPRETATION 2. (1) In this Act, [...] "designated lands" means a tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interests, whether before or after the coming into force of this definition; [...] "reserve"
[...] "surrendered lands" means a reserve or part of a reserve or any interest therein, the legal title to which remains vested in Her Majesty, that has been released or surrendered by the band for whose use and benefit it was set apart. [...] LANDS TAKEN FOR PUBLIC PURPOSES 35. (1) Where by an Act of Parliament or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein. (2) Unless the Governor in Council otherwise directs, all matters relating to compulsory taking or using of lands in a reserve under subsection (1) are governed by the statute by which the powers are conferred. [...] SURRENDERS AND DESIGNATIONS 37. (1) Lands in a reserve shall not be sold nor title to them conveyed until they have been absolutely surrendered to Her Majesty pursuant to subsection 38(1) by the band for whose use and benefit in common the reserve was set apart. (2) Except where this Act otherwise provides, lands in a reserve shall not be leased nor an interest in them granted until they have been surrendered to Her Majesty pursuant to subsection 38(2) by the band for whose use and benefit in common the reserve was set apart. 38. (1) A band may absolutely surrender to Her Majesty, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve. (2) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted. [...] POWERS OF THE COUNCIL 81. (1) The Council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,
[...] 83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,
[...] |
DÉFINITIONS 2. (1) Les définitions qui suivent s'appliquent à la présente loi. [...] "terres désignées" Parcelle de terrain, ou tout droit sur celle-ci, propriété de Sa Majesté et relativement à laquelle la bande à l'usage et au profit de laquelle elle a été mise de côté à titre de réserve a cédé, avant ou après l'entrée en vigueur de la présente définition, ses droits autrement qu'à titre absolu. [...] "réserve" Parcelle de terrain dont sa Majesté est propriétaire et qu'elle a mise de côté à l'usage et au profit d'une bande; y sont assimilées les terres désignées, sauf pour l'application du paragraphe 18(2), des articles 20 à 25, 28, 36 à 38, 42, 44, 46, 48 à 51, 58 et 60, ou des règlements pris sous leur régime. [...] "terres cédées" Réserve ou partie d'une réserve, ou tout droit sur celle-ci, propriété de Sa Majesté et que la bande à l'usage et au profit de laquelle il avait été mis de côté a abandonné ou cédé. [...] TERRES PRISES POUR CAUSE D'UTILITÉ PUBLIQUE 35. (1) Lorsque, par une loi fédérale ou provinciale, Sa Majesté du chef d'une province, une autorité municipale ou locale, ou une personne morale, a le pouvoir de prendre ou d'utiliser des terres ou tout droit sur celles-ci sans le consentement du propriétaire, ce pouvoir peut, avec le consentement du gouverneur en conseil et aux conditions qu'il peut prescrire, être exercé relativement aux terres dans une réserve ou à tout droit sur celles-ci. (2) À moins que le gouverneur en conseil n'en ordonne autrement, toutes les questions concernant la prise ou l'utilisation obligatoire de terres dans une réserve, aux termes du paragraphe (1), doivent être régies par la loi qui confère les pouvoirs. [...]
37. (1) Les terres dans une réserve ne peuvent être vendues ou aliénées que si elles sont cédées à titre absolu conformément au paragraphe 38(1) à Sa Majesté par la bande à l'usage et au profit communs de laquelle la réserve a été mise de côté. (2) Sauf disposition contraire de la présente loi, les terres dans une réserve ne peuvent être données à bail ou faire l'objet d'un démembrement que si elles sont cédées conformément au paragraphe 38(2) à Sa Majesté par la bande à l'usage et au profit communs de laquelle la réserve a été mise de côté. 38. (1) Une bande peut céder à titre absolu à Sa Majesté, avec ou sans conditions, tous ses droits, et ceux de ses membres, portant sur tout ou partie d'une réserve. (2) Aux fins de les donner à bail ou de les démembrer, une bande peut désigner par voie de cession à Sa Majesté, avec ou sans conditions, autre qu'à titre absolu, tous droits de la bande, et ceux de ses membres, sur tout ou partie d'une réserve. [...] POUVOIRS DU CONSEIL 81. (1) Le Conseil d'une bande peut prendre des règlements administratifs, non incompatibles avec la présente loi ou avec un règlement pris par le gouverneur en conseil ou par le ministre, pour l'une ou l'ensemble des fins suivantes:
[...] 83. (1) Sans préjudice des pouvoirs que confère l'article 81, le conseil de la bande peut, sous réserve de l'approbation du ministre, prendre des règlements administratifs dans les domaines suivants:
[...] |
[6] These references are to those provisions currently in force. There is no point in reproducing the text of the provisions applicable in earlier times. It may be helpful to note that sections 35, 37 and 38 have been in place since the Revised Statutes of 1952, c. 149 and that sections 35 and 37 correspond to sections 48 and 50 of the Revised Statutes of 1927, c. 98. The "Kamloops Amendments", in 1988 (An Act to amend the Indian Act (designated lands), S.C. 1988, c. 23), introduced the concept of "designated lands". Prior to these amendments, the definition of "reserve" was restricted to what is now its paragraph (a) and the taxation powers were granted only to those bands which, in the opinion of the Governor in Council, had "reached an advanced stage of development".
[7] In the Matsqui appeal, notices of property assessment were issued by the Matsqui Indian Band ("Matsqui"), in respect of five tracts of land held by Canadian National Railway Company or Canadian Northern Pacific Railway Company, now amalgamated (CN). CN holds certificates of indefeasible title to these lands, and these provincial certificates are based on Letters Patent issued by the Crown in right of Canada. The Letters Patent were issued after the Governor in Council approved surrenders of the lands (parcels 1 and 2)2 or authorized compulsory takings of the lands by orders under the Indian Act, in force from time to time (parcels 3 to 5)3. In each of the three takings, it appears from the very terms of the Orders in Council that the approval of the Council of the Band had been sought and obtained. (I shall refer throughout these reasons to "compulsory takings" or "takings" rather than to "expropriations": under s. 35, the Crown does not, properly speaking, "expropriate" lands the legal title to which is vested in Her).
[8] In the Kamloops appeal, notices of property assessment were issued by the Kamloops Indian Band ("Kamloops") in respect of seven tracts of land (parcels 1 to 7) in respect of which CN holds certificates of indefeasible title. These provincial certificates are based on Letters Patent issued by the Crown in right of Canada after the Governor in Council authorized compulsory takings of the lands by orders under the Indian Act4. It appears from the documentary evidence adduced with respect to each of the seven takings that the approval of the Council or of the members of the Band had been sought and obtained even though such approval was not required by law.
I - Preliminary observations
[9] a) The Band Councils are not attempting to tax property which would otherwise not be taxed, nor are the railway companies attempting to avoid taxation of their property allegedly situated in a reserve. Should the property in issue be found by this Court not to be "in the reserve" within the meaning of paragraph 83(1)(a) of the Indian Act, railway companies will pay property taxes to the neighbouring municipality and the Province, as they have in the past. Whether the property is assessed and taxed at a higher or lower rate depending on who the taxing authority is, does not appear from the record.
* * *
[10] b) These cases have been argued by all parties on the basis that the words "in the reserve", in paragraph 83(1)(a) of the Indian Act, mean that only land that satisfies the requirements of the narrow definition of "reserve" in the Indian Act could be taxed by a band. It was not suggested that the words "in the reserve" ("les immeubles situés dans la réserve") might, for the limited purposes of paragraph 83(1)(a), be understood in a geographical rather than legal sense and include all lands that happen to be situated within the geographical boundaries of the reserve, whether or not they are legally "reserve lands". It could make sense, for taxation purposes, to look at the "reserve" as a physical, global entity " indeed, it is a "tract of land" " rather than as a legal puzzle missing a few pieces.
[11] Such a practical approach could suit situations where, as here, railway lands, should they be found not to be legally "in the reserve", would cut the reserve in two and transform to some extent "a tract of land" into two or more tracts of land, The argument, however, has not been made and it may well be, in view of the Kamloops Amendments in 1988, that it is too late in the day even to suggest it.
* * *
[12] c) No order is sought against the Crown. The Crown is not a party to the proceedings. The Crown chose not to participate in the proceedings and no inference can be made one way or the other from the Crown's decision not to participate. The absence of the Crown, however, in no way diminishes the ability of the Court to dispose of the appeals on the basis of the applicable legislation and legal principles.
* * *
[13] d) The proceedings are in the nature of a judicial review of administrative actions undertaken by Indian Band Councils. No constitutional issue has been raised and even though the Court in interpreting the relevant provisions of the Indian Act and the statutory instruments at issue is expected to take account of and apply principles specially developed with respect to matters pertaining to native rights, this case is not a case about aboriginal title.
* * *
[14] e) The proceedings are not claims against the Crown for breach of fiduciary duty. While I agree with counsel for the appellants that the concept of fiduciary duty should permeate any interpretation of the Indian Act and that the Court must assume when interpreting the instruments at issue that the Crown did not breach that duty, the Court may not and will not entertain any allegation, consider any evidence or make any finding of fact or of law that would properly belong to proceedings in which relief for breach of fiduciary duty is formally sought against the Crown.
* * *
[15] f) These cases have proceeded on the basis that the lands have been taken by the CN for valid railway purposes, that the amount of the compensation paid by CN for the lands taken was assessed on the basis of the market value of the lands at the time of the taking, that the statutory instruments granting or recognizing title to the lands taken are valid and that the property rights acquired by CN, whatever they may be, were required by it for the building of its railway. The Court is asked to determine what the property rights were at the time they were ceded, not what they might have been then nor what they might be today.
* * *
[16] g) These cases have proceeded on the basis that the "lands" referred to do not include mineral rights. Issues with respect to mineral rights such as were raised in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 simply do not arise here. I observe that in any event section 140 of the Railway Act (R.S.C. 1985, c. R-3) expressly states that railway companies are not entitled to minerals unless they have been expressly named in a conveyance and conveyed thereby. (See, also, s. 136 of R.S.C. 1970, c. R-2, s. 198 of R.S.C. 1952, c. 234 and s. 195 of R.C.S. 1927, c. 170).
[17] It is of interest to note that mineral rights were expressly reserved by the Crown, and were therefore not granted to CN, in the statutory instruments pertaining to parcels 3, 4 and 5 in the Matsqui appeal. This illustrates the long-standing policy which, as noted by the Supreme Court of Canada in Blueberry River Indian Band, supra, para. 16 at 364, the Department of Indian Affairs had of reserving mineral rights for the benefit of the aboriginal peoples when surface rights were taken.
* * *
[18] h) The fact that the takings were made "for railway purposes" is a neutral factor. To be valid, compulsory takings under the Indian Act must be made, as the title to s. 35 says, "for public purposes" and expropriations under the Railway Act as it read from time to time (para. 151(1)c) of R.S.C. 1906, c. 37; para. 162(1)(c) of R.S.C. 1927, c. 170; para. 164(1)(c) of R.S.C. 1952, c. 234; para. 102(1)(c) of R.S.C. 1970, c. R-2), had to be made "for the construction, maintenance and operation of the railway". The various Railway Acts also gave railway companies the express power to "take possession of or occupy" ("s'approprier ou occuper") any portion of any Indian reserve or lands with the consent of the Governor in Council (para. 175 in 1906; s. 192 in 1927; subs. 195(1) in 1952; subs. 133(1) in 1970). The general purpose for which a compulsory taking was made sheds little light on the nature of the right taken: the taking of a mere right of passage would be as much for "railway purposes" as the taking of the whole of the surface rights.
[19] In the same vein, the fact that some takings were expressly said to last for as long as the land taken was used for "railway purposes" does not make the taking less absolute. In St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657 at 670, Chief Justice Lamer stated that:
| [...] "Absolute" and "conditional" are not mutually exclusive terms " either conceptually or under the scheme of the Indian Act [...] |
* * *
[20] i) While "Railway purposes" is not an expression defined in the various Railway Acts, the word "railway" itself has been defined and given a very wide meaning which has not substantially changed throughout the years. In the 1970 version of the Railway Act, for example, (R.S.C. 1970, c. R-2), "railway" is defined as meaning:
| [...] any railway that the company has authority to construct or operate, and includes all branches, extensions, sidings, stations, depots, wharfs, rolling stock, equipment, stores, property real or personal and works connected therewith, and also any railway bridge, tunnel or other structure that the company is authorized to construct [...] |
On the other hand, the word "lands" is defined in a very broad manner as meaning:
| [...] the lands, the acquiring, taking or using of which is authorized by this or the Special Act, and includes real property, messuages, lands, tenements and hereditaments of any tenure, and any easement, servitude, right, privilege or interest in, to, upon, under, over or in respect of the same; |
[21] The appellants suggest that the Governor in Council would have exceeded its statutory authority had it authorized the taking of lands on a fee-simple basis. Clearly the relevant statutes give it authority to do so. Whether the Governor in Council should have instead granted a lesser interest might raise a question of compliance with its fiduciary obligations towards the appellants. As I said earlier, this cannot be an issue in these appeals.
* * *
[22] j) As noted by Gonthier J. in Blueberry River Indian Band, supra, para. 16 at 358-59:
| [...] when determining the legal effect of dealings between aboriginal peoples and the Crown relating to reserve lands, the sui generis nature of aboriginal title requires courts to go beyond the usual restrictions imposed by the common law, in order to give effect to the true purpose of the dealings. |
Therefore, the emphasis should be placed not on the very words used or on the concepts usually associated in common law with these words, but on what it was, in the context of the dealings taken as a whole, that the Bands and the Crown truly intended to achieve at the time. The Blueberry River case made it abundantly clear, according to the Chief Justice in St. Mary's Indian Band, (supra, para. 19, at 668) that:
| [...] we do not rely upon traditional distinctions between a determinable fee and a fee subject to a condition subsequent in adjudicating disputes relating to native land rights. |
[23] The fact that the reason for which common law real property concepts do not apply to native bands is "to prevent native intentions from being frustrated by an application of formalistic and arguably alien common law rules" (St. Mary's Indian Band, supra, para. 19 at 668), does not mean that the rule is a one-sided rule that can be invoked only in favour of the bands. The St. Mary's Indian Band case was decided against the Band on the basis that what might have been a condition subsequent in common law was not so in the circumstances.
[24] Counsel before us spent a great deal of time debating whether CN's interest in the land was a fee-simple or an easement. To the extent that counsel invite the Court to apply the common law concepts of fee simple and easement, this is precisely the approach that was condemned in Blueberry River and in St. Mary's Indian Band and which inevitably leads us into technical and endless discussions. The Court is interested, rather, in finding "the purpose of the dealing" (St. Mary's Indian Band, supra, para. 19 at 669), in whatever way that intent might have been eventually expressed.
[25] Furthermore, the concept of "easement" might in itself be misleading. In Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119 at 133, Major J. for the majority, found that the rights created by an occupation permit, which he found to be analogous to an easement, were
| [...] statutory in origin and as such, they may be unknown to the common law [...] |
A finding that a property right is analogous to an easement would not in itself imply that the land is still "in the reserve". Even though the Supreme Court of Canada, in Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654, found, in obiter, in the circumstances of that case, that the interest therein granted was "a statutory easement in the nature of a right-of-way" (at 671), it went on to say that the nature and extent of that right of way depended "on the proper construction of the language of the instrument creating it" (at 671). What is left for the use, occupation and benefit of a band, where a "statutory easement in the nature of a right-of-way" is granted, will much depend on the circumstances of the case.
* * *
[26] k) Where a surrender of part of a reserve is at issue, the Court must determine whether the nature of the surrender and the context in which it was made "make it clear that [the Band's] true intention was to part with the impugned lands on an absolute basis" (St. Mary's Indian Band, supra, para. 19 at 666).
[27] Where a compulsory taking of part of a reserve is at issue, the Court must satisfy itself that the intention of the Crown to extinguish the Indian interest in the portion taken was "clear and plain" (see R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1099). When the Band's approval has been sought and obtained prior to the taking, the Court, in my view, must be satisfied that the extent of the extinguishment agreed to was properly understood by the Band.
* * *
[28] l) In examining the various documents filed with the Court, I have given little weight to the Certificates of Indefeasible Title which all describe CN as being "absolutely and indefeasibly entitled in fee-simple". These certificates are issued after the fact by provincial authorities and can hardly be invoked against the Indian Bands to determine their true intention at the time of the takings.
[29] On the other hand, I have given weight to the Letters Patent issued despite counsel for the appellants' submission to the effect that Letters Patent can only mirror or reflect the terms of Orders in Council and cannot add to them. The Letters Patent contain some details (such as the price paid) which complete the Orders in Council and reflect the discussions that went on and the agreements which were reached as between the Crown, CN and the Indian Bands in the process leading to the surrenders or to the takings.
* * *
[30] m) Even though there are twelve parcels of land at issue, each with its own set of circumstances and statutory instruments, both appeals were argued on the basis that in each appeal the Court should endeavour to reach a conclusion that applies equally to all parcels at issue in the appeal. It would not serve the interests of the parties, absent compelling reasons to the contrary, to decide that some parcels are in the reserve, and others are not. The case has been argued on all sides on an all-or-nothing basis and this is how it ought to be decided in each appeal.
II - The interest of the Crown and of CN in the lands.
[31] As noted in para. 18, railway companies were entitled at all relevant times to take and hold reserve lands for the construction, maintenance and operation of a railway. It is true, as counsel for the appellants submit, that the power of compulsory taking for public purposes should be interpreted in such a way as to appropriate only that land or interest in the land that is necessary for the accomplishment of these purposes. However, as I have noted earlier, "railway" purposes and railway "lands" have been defined as encompassing real property in the widest sense and this is not the proper occasion to argue that the Crown took away more than was needed by the CN for the construction of its railway.
[32] In order to determine the nature and extent of a railway company's interest in reserve lands " and, by the same token, the nature and extent of what was taken away from a band " , resort must be had "to the language of the statutes, to any agreements between the original parties and to subsequent actions and declarations of the parties" (Canadian Pacific Ltd. v. Paul, supra , para. 25 at 665).
A - The language of the statutes
[33] The most relevant provision in these appeals is paragraph 83(1)(a) of the Indian Act. This is the provision, added to the Act in 1988, upon which the appellants rely to assess the property of the respondent.
[34] Two recent decisions of the Supreme Court of Canada have set out the objectives of Parliament when it created the new Indian taxation powers. In Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at 24, Lamer C.J. described the objective as follows:
| [...] The regime which came into force in 1988 is intended to facilitate the development of Aboriginal self-government by allowing bands to exercise the inherently governmental power of taxation on their reserves [...] |
[35] In St. Mary's Indian Band, supra, para. 19, the Chief Justice discussed in full the Kamloops Amendments the stated purpose of which, he said at page 672, was "unequivocal". He went on:
| [...] When introducing the new amendments to Parliament, the government made it clear that they were intended to clarify the status of surrendered lands and to draw lands surrendered for lease into the definition of reserve, primarily for the purpose of taxation. |
| [at 672] |
| [...] It is obvious, however, that Parliament did not draw all lands surrendered by an Indian band within the legal definition of "reserve". Had this been the desired end, the means would have been decidedly less elaborate. Instead, recognizing the need to keep land surrendered for sale outside the definition of "reserve", Parliament created a two-tiered system of surrenders. That surrenders for sale were meant to remain beyond the definition of reserve is evidenced by the precondition in s. 37(1) that land be surrendered absolutely prior to being sold. That surrenders for lease were meant to be drawn within the definition of "designated lands" is evidenced by a number of features of the Kamloops Amendments, the most obvious being the fact that s. 38(2) uses the word "designate". |
| Why did Parliament use this broad "otherwise than absolutely" language? If its express intention was to keep surrenders for sale outside the reserve, why did Parliament not define "designated lands" in a more explicit manner? I offer one convincing response: Parliament must have selected the broad "otherwise than absolutely" phraseology in order to account for other contingencies " to allow, at one end, for other limited forms of surrenders, such as a right of way, to be considered designated land, and to ensure, at the other end, that other forms of permanent surrenders such as exchange or gift remain beyond our notions of reserve land. Parliament could have tailored its definition of "designated lands" to the specific distinction between lease and sale. Had it done so, this litigation would likely have been preempted. But this distinction is merely a threshold distinction and such a narrow legislative response would have given rise to many other disputes which would have been presumably more difficult to adjudicate. |
| The duality in the Kamloops Amendments provides clear guidance in defining "otherwise than absolutely". Given the Leonard decision, Parliament wanted to draw land surrendered for lease (or other means short of lease) within the legal definition of "reserve". At the same time, Parliament sought to confirm that land surrendered for sale (or other means similar to sale) remain beyond the definition of reserve. I have no hesitation, therefore, in concluding that "otherwise than absolutely" specifically excludes all lands surrendered for sale, be it conditionally or unconditionally. |
| [at 675-76] |
[36] As a result of the Kamloops Amendments, therefore, surrendered lands remained in the reserve where the surrender was akin to a lease or "other limited forms of surrenders, such as a right of way" ("droit de passage"), and remained beyond the reserve where the surrender was akin to a sale or "other forms of permanent surrenders such as exchange or gift".
[37] The Kamloops Amendments dealt only with surrenders made under sections 37 and 38 of the Indian Act; they did not deal with compulsory takings made pursuant to section 35. It is striking that nowhere in the Parliamentary Debates we have been referred to nor in the lengthy affidavit of Chief Jules which has been filed by Kamloops for the purpose of its appeal, is there any reference to the possible taxation by Indian bands of railway lands taken by the Crown and held by railway companies.5
[38] Indeed, it does appear that the main concern of the bands and of the Government was to ensure that local government powers of Band Councils would be extended to "leased land". In a publication entitled Proposed Amendments to the Indian Act Concerning Conditionally surrendered Land and Band Taxation Powers which the Minister of Indian Affairs and Northern Development sent to all Band Councils in September, 1987 and which is attached to Chief Jules' affidavit, the Minister explains:
| [...] |
| The primary benefit of conditional surrender is clear: It enables land to be leased without losing its status as Indian land. This should mean that Indian bands can develop their land through lease arrangements without having to give up their underlying "ownership" of it, their local government powers over it, or their special rights on it; all of which are fundamental to reserve land status. The only rights that are affected should be those that are necessary to the purpose and conditions of the surrender and the terms of the lease. |
| None of this was clearly stated in the Indian Act. It is thus uncertain whether and when the many different sections of the Act that refer to reserves should also refer to conditionally surrendered land. In fact, courts have recently ruled that Indians living on conditionally surrendered land cannot vote in band elections, and that the Indian personal tax exemption does not apply on surrendered land. |
| Ironically, reserve land in the possession of individual Indians can be leased without surrender and maintains full reserve status. Such leases are commonly called locatee leases, and there is a good deal of locatee leased Indian land. In order to avoid surrenders, and the risks they bring due to the lack of definition in the Indian Act, bands may be more and more inclined to attempt to arrange their collective leasing needs by using individual locatee leases. This could bring much confusion because individuals would be put in a complex trust relationship with the band. |
| WHAT NEEDS TO BE DONE? |
| Surrenders for lease make it possible for bands to put their land into the economic mainstream while remaining as Indian land, thereby dramatically increasing the potential economic viability of reserve-based Indian communities. As time has gone on, this type of surrender has taken on primary importance, while the use of surrender for sale, or other final separation from the reserve, has almost disappeared. |
| For conditionally surrendered land to remain Indian land in a meaningful way, however, it must clearly come under the provisions of the Indian Act as part of the reserve. Band councils should be able to govern it and tax it through their by-law powers (Sections 81 and 83). Band members living on it should be able to vote in band elections (Section 77). Indian cultural property should be protected on it (Section 91). The traditional tax exemption for Indian property on Indian land, which has existed in Canadian laws since pre-Confederation days, should apply (Section 87), and so on. |
| Without these and other Indian Act provisions, conditionally surrendered land would be Indian land in name only. |
| Furthermore, the application of the provisions of the Indian Act to conditionally surrendered land is needed for the land to be effectively governed. The governing of Indian land is done through band council by-laws, for the most part, or federal regulations, as these powers are set out in the Indian Act. |
| For all these reasons it is crucial that the Indian Act explicitly recognize conditionally surrendered land as part of the reserve, and deal with it thoroughly. This will remove the "double standard" that now makes it more problematic for a band to lease land than for an individual. And generally, it will ensure that conditionally surrendered land remains Indian land in the full sense. |
| *In this booklet, for ease of reference, unless otherwise indicated, conditional surrender is used to refer to surrender for lease. |
| [Booklet at 2] |
[39] It is clear and plain, in my view, that as Indian bands do not and may not for all practical purposes "effectively govern" tracts of land taken and used by railway companies, they had not contemplated, at the time of the Kamloops Amendments in 1988, the possibility of exercising with respect to these lands the local government powers, including the power of taxation, described in section 81 and 83 of the Indian Act. In short, it is clear and plain that Indian bands did not truly expect the new tax regime to allow them to tax railway lands.
[40] This conclusion does not however dispose of the appeals. In the Matsqui appeal, two of the parcels of land at issue were surrendered by the Band and these surrenders have to be examined in the context of the amendments. Furthermore, as paragraph 83(1)(a) authorizes taxation "of land, or interests in land, in the reserve", the question remains as to whether, notwithstanding the fact that such was not the purpose of the 1988 amendments, the CN lands can be said to be "in the reserve" and therefore taxable.
B - The Matsqui agreements
a) The Matsqui surrenders: Parcels 1 and 2
[41] CN relies on St. Mary's Indian Band to support its view that the surrender of parcels 1 and 2, in the Matsqui appeal, were absolute surrenders.
[42] In St. Mary's Indian Band, supra, para. 19, a band had surrendered part of its reserve for full market value to the Federal Crown for use as a municipal airport. The Court found that "the nature of the surrender" and "the context in which it was made", "make it clear that the [band's] true intention was to part with the impugned lands on an absolute basis" (at 666). The Chief Justice explained in the following words how he had reached the conclusion that the Band "intended to part with the airport lands on an absolute basis":
| For one, the band surrendered the land for sale. The band thoroughly contemplated the prospect of a long-term lease, but ultimately preferred the option whereby the Crown would sell the surrendered land to a third party. Second, the appellants entered into negotiations with the Crown upon the full understanding that the impugned lands were to be sold for the purpose of constructing an airport for the City of Cranbrook. We are not talking about a facility or an enterprise with a short-term lifespan. A sale suggests a high degree of permanence and an airport requires an elaborate and lasting infrastructure. Third, in return for its surrender, the Crown paid the appellants the full market value of the land ($35,880). This further confirms the permanence of the arrangement. In fact, given the statutory scheme set out in the Indian Act, this is about as close as an Indian band can get to selling reserve land itself. |
| [at 669] |
[43] The "true intention", in St. Mary's Indian Band, was therefore revealed by the fact that the land was surrendered for sale rather than for lease, that the use contemplated was the construction of a permanent airport requiring an elaborate and lasting infrastructure and that the Crown paid the full market value of the land.
[44] The evidence of the "true intention" in that case is more completely described in the reasons for judgment of the British Columbia Court of Appeal which are reported in (1995), 126 D.L.R. (4th) 539. Writing for the Court, Hutcheon J.A. first attempted to "know the purpose of the surrender, the background of the negotiations and the context in which the parties to the surrender were operating" (at 544). He found from the minutes of the negotiation meeting that the advantages of a long-term lease had been discussed and explained more than once and that the Band Council had decided that they would rather have an outright sale.
[45] In the Matsqui surrender, while there is no evidence that any other option but the sale was discussed, the "true intention" of the parties is clearly to surrender lands to the Crown for purposes of sale to CN. The words used (such as "release, remise, surrender, quit claim and yield [...] forever, All and Singular, that certain parcel or tract of land and premises, situate, lying and being in the [...] Reserve" and "the disposition of the said land", in the Surrender, and the words "the sale and disposal of the Lands", "the absolute purchase at and for the price of [...] of the Lands and Tenements [...]", "grant, sell, alien, convey and assure [...] for ever" and "Composed of all the right title estate interest", in the Letters Patent), the price paid, the permanent nature of the railway for the construction of which the surrender was made, clearly evidence an intention to part with the railway lands on an absolute basis.
[46] It is true that what had been applied for by CN was "a right of way through the Reserve", that the land taken was described in the Surrender as "being composed of the right of way of [CN] through the [...] Reserve" and that the expression "right of way" was not expressly defined and could technically refer to an easement rather than to a sale. Yet, in my view, the expression "right of way", in the context in which it was used, merely described the land taken and did not qualify the interest on the land that was surrendered. The expression was used, in other words, to define precisely what land was taken; it was not used to describe what right in that land was meant to be given up by the Band. Finally, the expression was used in all the documents in the context of an outright sale of land.
[47] The effect of the surrender was, for all practical purposes, to cut the Reserve in two thereby creating all sorts of inconveniences to the members of the Band. But these inconveniences were well known to the Band Council, which was aware that the property surrendered would be fenced and had, in a resolution dated November 7, 1910 (A.B. vol. 2 at 260), approved the sale on the condition that "[t]he company [...] put in three crossings with the necessary gates where most convenient for us".
[48] The fact that s. 35 of the Indian Act ("lands taken for public purposes") rather than s. 28 ("possession of lands in reserve" through the issuance of a permit to occupy or use) also supports a finding that what was being considered by the Crown, by the Band and by CN was much more in the nature of a sale than in the nature of an easement. The recent decision of the Supreme Court of Canada in Opetchesaht Indian Band, (supra, para. 25) provides a useful analysis of the different purposes of sections 35 and 28.
[49] At issue in that case was a permit issued under section 28 granting B.C. Hydro:
| [...] the right to construct, operate and maintain an electric power transmission on the said lands [...] |
| [at 128] |
| The permit gave Hydro "the right to construct, operate and maintain an electric power transmission line", and the exclusive right to occupy the portions of the surface of the reserve where poles were erected, and that part of the air space where the wires were strung. The Band retained the right to use and occupy the balance of the "right-of-way" area subject to specified restrictions related to the erection, operation, maintenance and patrol of the structures installed by Hydro. Hydro was allowed to use the lands as necessary for the purpose of constructing, operating, maintaining and patrolling the electric power transmission line. The right-of-way conferred by the permit was "for such period of time as the said right-of-way is required for the purpose of an electric power transmission line ". The rights granted in the permit were not assignable without the written consent of the Crown. |
| [...] [at 129-30] |
[50] The Court, in a majority judgment, found that the interest granted was analogous to an easement, which is not surprising as B.C. Hydro's rights in the land clearly were "not exclusive" and as the "Band's ability to use the land [was] restricted only in that they cannot erect buildings on it or interfere with the respondent Hydro's easement" (at 134), and went on to decide that such an easement was contemplated by section 28 of the Indian Act. In her dissent, Madam Justice McLachlin expressed the view that:
| [...] an interest in band lands such as the one here at issue, possessing as it does the potential to continue in perpetuity, can only be removed from the band by the formal process of expropriation under s. 35 or by surrender and alienation with the consent of the entire band membership under s. 37 of the Indian Act. |
| [at 148-49] |
Later, at 159, she observed:
| The Department of Indian Affairs and Northern Development has acknowledged that s. 28 should be confined to temporary uses on Indian land. In its Land Management and Procedures Manual (1988), the Department states that expropriations pursuant to s. 35 are the appropriate means for achieving such things as "major highways, railways, and long distance fuel and energy transmission systems" because "[s]uch uses require that the expropriating body gain the exclusive right to use and occupy reserve land" (p. 4). The manual goes on to recognize that in the past s. 28 had been wrongly used for permanent structures (at p. 4): |
| In the past, reliance was placed on the use of subsection 28(2) for the provision of rights of way for various utilities crossing through reserves to non-Indian lands. Since permanent installations or improvements such as roads, pipelines, electric and telephone cables and surface support structures are attached to the reserve land, it is inappropriate to grant a permit except in those circumstances where the sole purpose of the utility is to service reserve lands and the exclusive use of those lands is not required by the subject utility; [Emphasis in original.] |
[51] The ruling in Opetchesaht Indian Band is a clear illustration, in my view, of the different status that must be recognized in law to "rights of way" which require the exclusive right to use and occupy reserve lands, such as railways, and to "rights of way" where the exclusive use of the lands is not required, such as utilities. In the instant case, the right of way is clearly of the first category.
[52] I am therefore satisfied that the Matsqui Band, in surrendering Parcel 1, fully understood that it would no longer use and occupy that portion of its Reserve.
[53] I reach the same conclusion with respect to the surrender of Parcel 2, which is but a minor complement to the surrender of Parcel 1 and which was made in similar circumstances.
b) The Matsqui compulsory takings: Parcels 3, 4 and 5
[54] Little need be said with respect to these three parcels. They are but relatively small additions (some 5.203 acres) to the 20 acres surrendered by the Band some fifty and more years earlier. Even though the lands were compulsorily taken rather than surrendered, there is no doubt, when one looks at the statutory instruments and at the documentary evidence, that the end result was understood by all parties to be the same as that of the surrenders.
[55] The only difference of some interest is the inclusion in the three Letters Patent of a clause whereby the Crown distracted from the grant to CN all mines and minerals which may be found to exist "within, upon or under such lands". That clause, in my view, is additional evidence that CN has been granted absolute ownership of the surface rights and that there is nothing left on the land for the Band to use and occupy.
C - The Kamloops agreements: Parcels 1 to 7
[56] The Band clearly ceded any and all interest it had in Parcels 1 to 7. The wording of the statutory instruments, coupled with the documentary evidence, cannot but lead to the firm conclusion that the intention of the Crown and the understanding of the Band were that the lands were to be sold to CN and that the Band would no longer have the use and benefit of the lands so taken.
[57] I am particularly impressed by the lengthy negotiations that preceded every taking, by the remarkable persistence that allowed the Band each time to get the highest possible price for the land, by the amount of the compensation paid which clearly indicates that what was happening was an outright purchase, by the knowledge the Band had of the effect of the takings in terms of inconvenience and physical severance and, finally, by the awareness of the absoluteness of the deals evidenced, amongst other things, by the refusal at one time by CN to be satisfied with a mere permit for right of passage and by the request of the Band, in the very last taking as recently as in 1983, for access through what it called the CN lands.
[58] I refer, in particular, to the following documents:
[59] - re Parcel 6, letter sent to CN by the local Indian Agent on May 2, 1947:
| [...] |
| You state in your letter that my predecessor had quoted a price of $100.00 per acre, I do not know how Indian Agent Taylor arrived at this rate as the land through which your roadway passes was not long ago under irrigation. Land in the Kamloops District which can be irrigated demands a very high price and the Indians have the privilege of setting the price on the land on their own Reserve, and as their Agent I have no alternative other that to quote the offer made by the Band. |
| [...] [A.B., vol. 3 at 331] |
[60] - re Parcel 2, letter sent to the Secretary of Indian Affairs by the local Indian Agent on February 25, 1926:
| [...] |
| The Canadian National Railways have written me, under date of January 5th, 1926, stating that they are willing to arrange a settlement with the Indians on a basis of $25.00 per acre. This, the members of the Kamloops Band will not countenance at all. Personally, I am of the opinion that $125.00 an acre is somewhat high, as I, myself, would valuate it more in the proximity of $60.00 to $75.00 per acre. However, if the railway company paid $125.00 an acre for land previously, in the same locality, I cannot see that the land itself has deteriorated in value since the right of way was purchased, somewhere about the year 1910 or 1911. |
| [...] [A.B., vol. 2 at 215] |
and the resulting letter, dated March 5, 1926 sent to CN by the Assistant Deputy and Secretary of Indian Affairs:
| [...] |
| If you wish to acquire this land, kindly make formal application to the Department, accompanied by a certified plan on tracing cloth and payment for the land at $125.00 per acre. |
| [...] [A.B., vol. 2 at 217] |
[61] - re Parcel 6, letter dated August 12, 1947, by the Indian Affairs Superintendent of Reserves and Trusts to the Indian Commissioner for British Columbia:
| [...] The land, 3.16 acres, apparently is for a road, and not for a railway. The Company has applied for Letters Patent granting the land. If such were issued, the north and south portions of the Reserve would be separated by the land alienated. |
| Would you consider it worth while to try to persuade the Company to accept a permit for the use of the land for as long as it is required for a roadway. The present offer is $500.00 per acre (amounting to $l,580.00) for an outright purchase. |
| [...] [A.B., vol. 3 at 337] |
and the reply of the Indian Commissioner on September 20, 1947:
| [...] |
| In my opinion the price of $500.00 per acre that the Company appears willing to pay for the land desired is very generous, even taking into consideration the question of severance, which has existed since the right of way was first used by the applicant. Under the circumstances I do not consider it worth while to try to persuade the Company to accept a permit only for the land for as long as it is required by them. |
| [...] [A.B., vol. 3 at 338-39] |
[62] - re Parcel 7, where amongst the "terms and conditions which have been negotiated between the Kamloops Indian Band and CN" described in the letter sent by CN to the Minister on November 26, 1982, were the following:
| [...] |
| 3. C.N. will grant the members of the Kamloops Indian Band a right of first refusal to cut, remove, and sell, for their own benefit, timber within the New Kamloops Junction [...] |
| 4. CN shall permit members of the Band, their servants, agents, invitees, and licencees access through CN's lands at Kamloops, [...] |
| 5. CN shall retain and extend two existing cattle underpasses crossing the existing CN lands adjacent to the New Kamloops Junction [...] |
| 6. CN acknowledges that members of the Band want to acquire access or ownership of lands bordering on the Fraser River between Lytton and Yale, in the Province of British Columbia, for the purpose of establishing fishing endeavours in that river. CN agrees to cooperate with the Band to assess the suitability of land owned by CN in that area, for fishing purposes in the Fraser River. Without imposing a legal obligation on itself, CN agrees to favourably consider a request by the Band for access across CN lands to the Fraser River, or the sale of CN lands as a fishing site along the Fraser River, upon such terms as CN and the Band may mutually agree. |
| [...] [A.B., vol. 3 at 358-61] |
[63] - re Parcel 1, internal letter by the Right of Way Agent of the CNPC dated March 25, 1913:
| [...] |
| That the Company is to give the Indians road crossings where reasonable and necessary, also to take care of any irrigating ditches that are in use through the lands the Company has acquired. It goes without saying that the Company is bound to fence their right of way on both sides. |
| [...] [A.B., vol. 2 at 191] |
[64] The only troubling argument of the Band rests in the abundant use, particularly with respect to Parcel 1, of the words "right-of-way through the Reserve", which suggests, in its view, that the Band never agreed to depart from anything but some form of easement.
[65] This argument does not, however, for the reasons I have already expressed with respect to the Matsqui appeal, withstand a close scrutiny of what was actually said and done.
III - Conclusion
[66] I have therefore reached the conclusion that both the Matsqui Band and the Kamloops Band knew, understood and accepted that they would no longer have "the use and benefit" of the lands surrendered or taken away for the construction of the railway, that these lands were no longer part of their Reserve, that for all practical purposes they could no longer effectively exercise their local government powers over these lands and that they could no longer make by-laws, including taxation by-laws, applicable to these lands.
[67] Having reached the view, as did the Motions Judge, that the property assessment notices taxing the railway companies with respect to the lands at issue should be set aside as being outside the taxing jurisdiction of the Bands, I need not discuss the alternative conclusion he has reached that in taxing as they did the Bands illegally discriminated against CN.
[68] Both appeals should be dismissed with one set of costs.
"Robert Décary"
J.A.
"I agree
A.J. Stone J.A."
"I agree
Pierre Denault J.A."
__________________
1 Canadian Pacific Limited and Unitel Communications Inc. v. Matsqui Indian Band and Matsqui Indian Band Council (T-639-92, A-389-96), [1996] 3 F.C. 373 (T.D.);
Canadian National Railway Company v. Kamloops Indian Band and Kamloops Indian Band Council (T-1638-93, A-404-96);
Canadian Pacific Limited v. Boothroyd Indian Band and Boothroyd Indian Band Council (T-2780-93, A-403-96);
Canadian Pacific Limited v. Seabird Island Indian Band and Seabird Island Indian Band Council (T-2790-93, A-386-96);
Esquimalt and Nanaimo Railway Company v. Nanaimo Indian Band and Nanaimo Indian Band Council (T-2986-93, A-390-96);
Canadian National Railway Company v. Matsqui Indian Band and Matsqui Indian Band Council ( T-269-95, A-391-96).
2 Parcel 1: 13.91 acres, surrender No. R12154, January 5, 1911; Order in Council OCPC 1911-126, January 24, 1911; Letters Patent No. 16236, February 13, 1911; Certificate of Indefeasible Title No. 5783E, October 28, 1913. Price paid: $2,428.00.
Parcel 2: .09 acres, surrender No. H38287, June 8, 1911; Order in Council OCPC 1911-1489, July 5, 1911; Letters Patent No. 16403, October 12, 1911; Certificate of Indefeasible Title No. 5785E, October 28, 1913. Price paid: $68.00.
3 Parcel 3: 2.83 acres, Order in Council 1963-589, April 12, 1963; Letters Patent No. 172278, May 30, 1963 and Certificate of Indefeasible Title No. 518366E, July 3, 1963. Price paid: $715.00.
Parcel 4: .083 acres, Order in Council OCPC 1973-2738, September 18, 1973; Letters Patent No. X20272, November 23, 1973, and Certificate of Indefeasible Title No. K8881E, February 11, 1974. Price paid: $500.00.
Parcel 5: 2.29 acres, Order in Council OCPC 1978-2473, August 9, 1978; Letters Patent No. 78791, September 8, 1981, and Certificate of Indefeasible Title No. T121238E, December 22, 1981. Price paid: $9,701.18.
4 Parcel 1: 160.83 acres; Order in Council OCPC 1912-3259, November 21, 1912; Letters Patent No. 22790, November 5, 1935; Certificate of Indefeasible Title No. 176600F, October 13, 1955. Price paid: $17,636.25.
Parcel 2: 10.29 acres; Order in Council OCPC 1933-211, February 6, 1933. Letters Patent No. 22483, March 1, 1933; Certificate of Indefeasible Title No. 176600F, October 13, 1955. Price paid: $1,142.50.
Parcel 3: 3.93 acres; Order in Council OCPC 1927-750, April 27, 1927; Letters Patent No. 20949, June 23, 1927; Certificate of Indefeasible Title No. 176597F, October 7, 1955. Price paid: $494.25.
Parcel 4: 6.89 acres; Order in Council OCPC 1929-662, April 16, 1929; Letters Patent No. 21633, May 20, 1929; Certificate of Indefeasible Title No. 176600F, October 13, 1955. Price paid: $861.25.
Parcel 5: 1.29 acres; Order in Council OCPC 1936-1358, June 6, 1936; Letters Patent No. 22861, September 10, 1936; Certificate of Indefeasible Title No. 176600F, October 13, 1955. Price paid: $150.00.
Parcel 6: 3.16 acres; Order in Council OCPC 1948-297, January 30, 1948; Letters Patent No. 24138, April 6, 1948; Certificate of Indefeasible Title No. 126263F, May 20, 1948. Price paid: $1,580.00.
Parcel 7: 164.64 acres; Order in Council OCPC 1984-515, February 16, 1984; Letters Patent No. 94594, March 29, 1984; Certificate of Indefeasible Title No. W26841F, May 23, 1984. Price paid: $4,219,600.00.
5 I note for the record that Chief Jules, as Chief of the Kamloops Band, led on behalf of the Indian Bands the negotiations and consultations that resulted in the Kamloops Amendments.