| Case name: |
Osoyoos Indian Band v. Oliver (Town) |
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| Jurisdiction: |
Canada - British Columbia |
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| Parties: |
Name |
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Appearing as |
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Osoyoos Indian Band |
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Appellant |
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British Columbia |
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Respondent |
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Oliver (Town) |
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Respondent |
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| Before: |
Decision maker |
Designation |
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Lambert, John Douglas |
J.A. |
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Newbury, Mary V. |
J.A. |
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Prowse, Jo-Ann E. |
J.A. |
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| Lawyers: |
Name |
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Appearing for |
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Woodward, John E. (Jack) |
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Appellant |
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Buholzer, William |
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Respondent |
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Gordon, Hunter W. |
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Respondent |
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| Decision: |
Appeal from a stated case in a property taxation matter under the Indian Act, R.S.C. 1985, c. I-5. At issue was whether a right of way granted to the Province of British Columbia was in the nature of a fee simple interest or a lesser interest in land similar to an easement. The right of way extended through an Indian Reserve and had been granted in 1957 pursuant to the expropriation provisions of the Indian Act, R.S.C. 1952, c. 149, and the Water Act, R.S.B.C. 1948, c. 361, for purposes of a concrete irrigation canal. The 1957 Order in Council authorizing the grant of the right of way did not clearly state the nature of the interest. However, if the interest was an easement then the land was still part of the reserve and the interest and improvements constructed on the right of way were therefore taxable. If the interest was a fee simple interest, then the land was no longer part of the reserve and not subject to the Band's taxation by-laws.
The court held (Lambert, J.A. dissenting) that the Province had acquired a fee simple interest in the right of way and the land was no longer part of the reserve. The decision contains a discussion of the expropriation procedures found in the Indian Act and whether there is a distinction between interests in land which may be acquired by expropriation and those which may be acquired under the surrender provisions of the Act. |
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| Neutral citation: |
1999 BCCA 297 |
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| ExLaw citation: |
[1999] EXLAW 303 |
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| Parallel citations: |
(1999) 88 A.C.W.S. (3d) 284 |
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(1999) 122 B.C.A.C. 220 |
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[1999] B.C.J. No. 997 |
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(1999) 68 B.C.L.R. (3d) 218 |
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[1999] 4 C.N.L.R. 91 |
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(1999) 172 D.L.R. (4th) 589 |
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(1999) 200 W.A.C. 220 |
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