Saskatchewan District Court, Bendas D.C.J., 19 March 1968
Respondent, a treaty Indian, was charged with unlawful possession of liquor in a place other than a dwelling-house and the present appeal was brought from the dismissal of the charge by a mag- istrate.Respondent was found in possession of the liquor within the reserve in which he lived and about half a mile from his residence. The substantial question on the appeal was whether the fact that respondent was within his own reserve brought him within the ambit of sec. 101 of The Liquor Act, RSS, 1965, ch. 382, wherein "dwelling house" was defined to include the land appurtenant to a dwelling-house.
It was held that the appeal must be allowed and a conviction entered; within the meaning of sec. 101 of The Liquor Act "land appurtenant" to a dwelling-house on an Indian reserve meant that piece of land which had been allotted to the respondent and which was insep- arably connected with the house or building actually occupied and used solely as a private residence, including the yard, garden or curtilage attached thereto but not the rest of the reserve: Re Fry; Reynolds v. Denne [1945] Ch 348, 115 LJ Ch 3; Trim v. Sturminster Rural District Council [1938] 2 KB 508, at 515, 107 LJKB 687, applied.
[Note up with 13 CED (2nd ed.) Indians, secs. 4, 25; 3 CED (CS) Words and Phrases (1947-1967 Supps.).]
N. F. Millar, for crown, appellant.
R. Cariou, for respondent.
March 19, 1968.
BENDAS, D.C.J. (orally) -- This is an appeal by the crown by way of trial de novo from a dismissal by Conroy, P.M., of a charge against the respondent (accused) under sec. 101 of The Liquor Act, RSS, 1965, ch. 382. The information upon which the respondent was charged reads as follows:
"The Informant says that William Bear of Meadow Lake Indian Reserve, Saskatchewan, on the 19th day of August, 1967 at Meadow Lake District in the said Province did un- lawfully have liquor in a place other than a dwelling house, contrary to Liquor Act, 1965."
The evidence in this case consists entirely of admissions of facts made by respondent's counsel. Such admissions were made partly in writing and partly orally, during the hearing of this appeal.
In view of the express provisions of sec. 708 (5) of the Criminal Code, 1953-54, ch. 51, I am of the opinion that I have jurisdiction to proceed with the hearing of this appeal, notwith- standing that the entire evidence consists of admissions of facts by counsel for the respondent.
The written admissions are contained in a document filed in court prior to the hearing of this appeal and read as follows:
"Whereas the evidence is not in dispute and counsel for the Crown and accused (appellant and respondent) are in agreement;
"Counsel for the appellant and respondent hereby agree as follows:
"1. William Bear, of Meadow Lake, in the Province of Saskatchewan, was apprehended on the Meadow Lake In- dian Reserve on the 19th day of August A.D. 1967 and had open liquor in his possession not in a place occupied as a residence, on the Meadow Lake Indian Reserve.
"2. The said William Bear is a Treaty Indian being a member of the Meadow Lake Indian Reserve Band and is a resident of the said reserve.
"3. The Meadow Lake Indian Reserve is a reserve upon which the Indians of the Band have agreed liquor may be consumed, thereby making what is commonly known as a wet reserve."
At the trial learned counsel for the respondent supplemented the above written statement by admitting:
(1) That the respondent is a married man and is employed as a school bus driver;
(2) That the place where the respondent allegedly commit- ted the offence was about half a mile from the location of his residence;
(3) That the place where the respondent was apprehended with liquor in his possession was part of the Meadow Lake Indian Reserve and that the respondent had no certificate of possession, a location ticket or a certificate of occupancy (within the meaning of the Indian Act, RSC, 1952, ch. 149) to that particular portion of the reserve, but that neither had any other person an exclusive right to possession or occupancy of the said place.
(4) It was further admitted by both counsel that a Proc- lamation was passed declaring subsec. (2) of sec. 96A of the Indian Act to be in force in Saskatchewan (Canadian Gazette, pt. 1, July 23, 1960).
Now, the provisions of The Liquor Act applicable to this appeal are contained in sec. 101, which reads, inter alia, as follows:
"101 (1) Except as authorized by this Act * * * no person * * * shall have * * * liquor in a place other than a dwelling house * * *
" (2) The expression 'dwelling house' includes:
" (a) every house or other building, or any part of a house or building, that is bona fide and actually occupied and used solely as a private residence;
* * *
"(c) in the case of a house or building or a trailer or tent or any combination thereof that is bona fide and actually occupied and used solely as a private residence, 'dwelling house' includes the land appurtenant thereto and in the case of a house or building so occupied and used on a farm includes all the lands constituting the farm, but this clause applies only in respect of the owner or occupant of such a house or building or the family, employees or bona fide guests of such owner or occupant."
The only point in issue in this appeal is whether under the provisions of the above section the entire reserve ought to be considered "land appurtenant" to the respondent's dwelling- house. In his argument learned counsel for the respondent submitted that in view of the fact that all Indians of a reserve have equal rights to its use and enjoyment, it follows that every member of the band has the same rights with respect to each part thereof. According to counsel's submission the entire reserve should, therefore, be considered as land appurtenant to the dwelling-house of each Indian residing therein. As having liquor in a dwelling-house, including land appurtenant thereto, is authorized by the Act, it follows that the respon- dent has not committed an offence.
Mr. Millar for the crown took the opposite view, arguing that a reserve is in the same legal position as a lake shore between the high water mark and the lake. The public has access to the lake shore but no one is authorized to have liquor therein.
From the above summary of the arguments it would appear that the decision in this appeal depends entirely upon the interpretation of the words "dwelling house including land appurtenant thereto" in sec. 101 of The Liquor Act, as they apply to the conditions prevailing on a reserve.
In the Century Dictionary, 1895 ed., the word "appurtenant" is defined as "appertaining or belonging; pertaining; incident or relating to as legal right, interest or property subsidiary to one more valuable or important." According to Oxford Dic- tionary, 1947 ed., the meaning of the term "appurtenant" is given as "belonging as a property or right; in Law, constituting an appurtenance." The term "appurtenance" is defined in the latter dictionary as "a thing that belongs to another, a belong- ing; a minor property right or privilege, belonging to another as principal and passing with it."
The word "appurtenant" is a derivative of the noun "appur- tenance." The latter refers to a subsidiary object itself while the former describes the relationship between the principal thing and such subsidiary object. Both terms were judicially considered. In an English case, In re Fry; Reynolds v. Denne [1945] Ch D 348, 115 LJ Ch 3, Vaisey, J. defines the word "appurtenant" in a will as follows, at p. 352: "As to the word 'appurtenant,' I think it means annexed to, or inseparably con- nected with * * *."
The word "appurtenance" was considered by the court of appeal of England in Trim v. Sturminster Rural District Coun- cil [1938] 2 KB 508, 107 LJKB 687. Slesser, L.J., in discuss- ing the meaning of the term "appurtenances," has this to say at p. 515:
"That word has had applied to it, through a long series of cases mostly dealing with the meaning of the word in demises, a certain limited meaning, and it is now beyond question that, broadly speaking, nothing will pass, under a demise, by the word 'appurtenances' which would not equally pass under a conveyance of the principal subject-matter with- out the addition of that word, that is to say, as pointed out in the early case of Bryan v. Wetherhead (1625) Cro Car 17, 79 ER 620, that the word 'appurtenances' will pass with the house, the orchard, yard, curtilage and gardens, but not the land. That view, as far as I understand the author- ities, has never been departed from * * * ."How much of the adjacent land ought to be included in the word 'appurtenances' depends on the facts of the
particular case. As I have said, the word may include or- chards, yard, curtilage and gardens."
Having considered the definition of the word "appurtenant," it is necessary to ascertain whether and how the phrase "dwell- ing house including land appurtenant thereto," as same appears in sec. 101 of The Liquor Act, applies within the context of the Indian Act. The relevant provisions of the latter Act are contained in secs. 20, 21 and 24, which in part read:
"Sec. 20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, posses- sion of the land has been allotted to him by the council of the band."(2) The Minister may issue to an Indian who is law- fully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein."
Subsec. (3) is not applicable.
" (4) Where possession of land in a reserve has been allotted to an Indian by the council of the band, the Min- ister may, in his discretion, withhold his approval and may authorize the Indian to occupy the land temporarily * * *." (5) Where the Minister withholds approval pursuant to subsection (4), he shall issue a Certificate of Occupation to an Indian, and the Certificate entitles the Indian, or those claiming possession by devise or descent, to occupy the land in respect of which it is issued for a period of two years from the date thereof."
"Sec. 21. There shall be kept in the Department a reg- ister, to be known as the Reserve Land Register, in which shall be entered particulars relating to Certificates of Posses- sion and Certificates of Occupation and other transactions respecting lands in a reserve."
"Sec. 24. An Indian who is lawfully in possession of lands in a reserve may transfer to the band or to another member of the band the right to possession of the land * * * ."
From reading these sections it is apparent that Indians on a reserve live in an organized community. Their property rights are well defined and no Indian is lawfully in possession of land in a reserve unless possession thereof has been allotted to him in accordance with the Act. Such possession or occupancy is evidenced by a special certificate of possession or a certificate
of occupancy, which must be registered in the reserve land register. An Indian on a reserve has practically all the fea- tures of ownership in the land allotted to him and he can alienate his interest therein to the band or to another member of the band or bequeath it in his will. With certain exceptions, peculiar to the conditions prevailing on a reserve, there is no essential difference between the tenure of land in a reserve and that outside of it. The rights of an Indian to possession or occupancy of the land in a reserve are restricted to the land allotted to him. Except as authorized by the Act an Indian has no other rights to the reserve just as any other citizen has no such rights to any other public domain.
In the result I am of the opinion that within the meaning of sec. 101 of The Liquor Act, "land appurtenant" to a dwelling- house on an Indian reserve means that piece of land which has been allotted to him and which is inseparably connected with the house or building that is actually occupied and used solely as a private residence, including the yard, garden and curtilage attached thereto, but not the rest of the reserve. How much of the adjacent land ought to be included as being part of a dwelling-house depends on facts of the particular case.
On the facts as admitted in the present appeal I find that the land where the respondent had liquor in his possession was not appurtenant to a dwelling-house. Such possession was an offence under The Liquor Act, and as a result I must find the respondent guilty. The appeal will be allowed. In view of the fact that this matter has not been previously considered by this court, there will be no costs to either party.