[1]         This action concerns a contest amongst family members over rights of possession of a parcel of land on reserve lands of the Tsawout First Nation (“TFN”): Lot 47-6, CLSR 81466, East Saanich No. 2 (the “Premises”). To avoid confusion, I will refer to the parties and other family members by their first names, meaning no disrespect.

[2]         Possession of lands on First Nations reserves is governed by the Indian Act, R.S.C. 1985, c. I-5 [Act]. In respect of the issues in this proceeding, the following provisions are salient:

[3]         The plaintiffs are sons of the late Ernie Earl Claxton, whom I shall refer to as Earl Sr. Earl Sr. was granted a certificate of possession in 1978 over Lot 47, CLSR 63988, East Saanich Indian Reserve No. 2. In 1983, he granted each of the plaintiffs and their brother, Calvin Claxton, an undivided 1/3 interest in Lot 47. Those interests of the three brothers, as holders of certificates of possession, were registered with the First Nations Land Registry (the “Registry”).

[4]         In 1994, Lot 47 was subdivided into four parcels. Each of the three brothers maintained a 1/3 interest in Lots 47-3, 47-4, and 47-5, CLSR 81466, under certificates of possession. With respect to the Premises, Lot 47-6, they pledged their interests to TFN as collateral against TFN’s guarantee of a construction loan obtained by Calvin. The Registry reflects a grant of interest in the Premises from the three brothers to TFN.

[5]         The defendant Sheri Claxton is the now-former spouse of Calvin; the defendant Vanessa Claxton is their daughter.

[6]         Calvin used the loan proceeds to begin building a log home on Lot 47-6. Construction was never completed. Calvin instead built a small house on the Premises (the “House”). Calvin, Sheri, and Vanessa have lived in the House from time to time, and it is currently occupied by Sheri and Vanessa.

[7]         The within action is for ejectment. Under a notice of civil claim filed September 12, 2022, the plaintiffs, Allan and Earl Claxton Jr., seek relief including, inter alia, a declaration that the defendants are trespassing on the Premises; an order for vacant possession of the Premises; payment of sums owed to the plaintiffs, including rent; and damages.

[8]         On the present application, the plaintiffs seek summary judgment on the issues of the defendants’ trespass and the plaintiffs’ right to an order for vacant possession; or, alternatively, an interlocutory injunction requiring the defendants to give up vacant possession of the Premises pending trial.

[9]         The defendants have not filed a response to civil claim. They have filed an application response in opposition to the present application, and an affidavit of Vanessa, which together raise several arguments in opposition to the application. These are discussed below.

[10]      The circumstances under which the plaintiffs have obtained standing to seek the claimed remedies is somewhat complicated. In or about 2002, Calvin transferred his band membership from TFN to the Squamish First Nation. He was thereby disentitled to possess land within the TFN Reserve. At about this time Calvin and Sheri separated; Sheri and Vanessa have continued to occupy the Premises. They are both members of TFN. Neither of them, however, obtained a certificate of possession. There is no evidence that Calvin transferred his right of possession to them under s. 25(1) of the Act.

[11]      At or about the time of his transfer, Calvin defaulted on the construction loan, leaving the plaintiffs, as co-possessors of the Premises, responsible to TFN for payment. The plaintiffs say that since Calvin’s transfer of his interest, the defendants have not offered to make any payments on Calvin’s debt, and have not offered to make any further payments on the loan. Vanessa however does provide evidence, in the form of copies of a TFN receipt and account statement, which she says documents mortgage payments by Sheri to TFN of more than $23,000 between December 31, 2006 and March 31, 2012.

[12]      Earl Sr. died in June 2011. In March 2015, Calvin executed a form of absolute disclaimer of possessory interest in reserve land (the “Disclaimer”), for use by a non-band member inheriting an interest in reserve land, by which he refused to accept any gift of interest in land on the TFN Reserve from Earl Sr.’s estate. The Disclaimer was registered against the Premises in the Registry in December 2015, and on the strength of it, that same month the plaintiffs were each granted a registered undivided 1/2 interest in the Premises.

[13]      By way of letter dated May 14, 2018, TFN demanded that Sheri vacate the Premises. The letter stated that failure to vacate may lead TFN to take eviction proceedings. No such proceedings were commenced by TFN. Subsequent correspondence between TFN and the defendants implies that TFN regards the present matter as a private dispute.

[14]      The plaintiffs eventually negotiated an agreement with TFN to pay off Calvin’s indebtedness in exchange for a transfer of all the possessory interests in the Premises. This was effected by way of an offer to purchase dated and accepted May 31, 2022, and payment by the plaintiffs to TFN of the sum of $109,000. The defendants did not contribute to that payment amount.

[15]       The plaintiffs served the defendants with a notice of eviction by letter dated July 26, 2022. That letter noted that there was no rental agreement in place allowing the defendants to continue to inhabit the Premises. The plaintiffs offered to waive their claim for back rent, if the Premises were vacated by August 31, 2022. The defendants did not vacate. The plaintiffs then commenced the within civil claim.

[16]      Vanessa wrote a letter to the TFN Chief and Council dated November 7, 2022, seeking permission to continue occupying the Premises. No reply to that letter had been received as of the date of the hearing.

[17]      On this application, the defendants submit that:

[18]      As stated above, the plaintiffs seek summary determination of their rights of possession and an order for vacant possession. Alternatively, they seek an interlocutory injunction requiring the defendants to vacate.

[19]      The elements of a claim for ejectment were summarized by Madam Justice Quijano in Terbasket v. Harmony Co-ordination Services Ltd., 2003 BCSC 17, leave to appeal ref’d, 2003 BCCA 238:

[20]      This present application is brought under the summary trial rule, R. 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Under subrule 9-7(15), the Court may grant judgment in favour of any party on the hearing of a summary trial application, unless the Court is unable, on the whole of the evidence before the Court on the application, to find the facts necessary to decide the issues of fact or law, or the Court is of the opinion that it would be unjust to decide the issues on the application.

[21]      In Terbasket, Quijano J. held that as there were serious issues to be tried, on the evidence put forward by the defendants, entitlement to a writ of possession was not an appropriate issue for summary determination: paras. 19–20. She then went on to decide whether an interlocutory injunction should be granted.

[22]      I turn to consider the objections raised by the defendants.

[23]      I do not find any merit in the defendants’ position that the dispute resolution provisions of the Land Code are paramount. The Trespass Law, under s. 4.0(2), has no application to registered Tsawout Band members, or persons authorized by the Chief and Council to be on Tsawout land. TFN has not enacted laws regulating claims of trespass made as between Tsawout Band members, and therefore by virtue of s. 33.1 of the Land Code, civil remedies for trespass are preserved. Vanessa states that she is in the process of preparing a written notice of dispute, objecting to the transfer of the family home from the Council to a Council member. While she may have the right to pursue resolution under the Land Code, her doing so does not bar or found the basis for a stay of the plaintiffs’ civil claim for ejectment.

[24]      Vanessa says in her affidavit that Calvin has been overwhelmed with trauma through working on his day school claim; that Calvin received no independent legal advice regarding the Disclaimer; and that he did not, in signing the Disclaimer, intend to completely give up all rights to the Premises. There is, however, no affidavit evidence from Calvin. Vanessa further submits that she was only made aware of the particulars of the offer to purchase, under which possession of the Premises was transfered to the plaintiffs, just days before the hearing of this application, when she received Allan’s second affidavit. Regardless, however, the defendants have been aware of the plaintiffs’ claim of ownership since the July 26, 2022 eviction letter, if not earlier. The defendants’ failure to take any steps to investigate the merits of the plaintiffs’ claim, or to positively assert their own rights, cannot be to their advantage.

[25]      Nevertheless, despite these deficiencies in the defendants’ claim, and despite there being no filed response to civil claim, I am unable to find the necessary facts and I find that it would be unjust to decide the issue of entitlement to an order for possession on this application. I say so for two reasons.

[26]      First, in bringing this application, the plaintiffs are seeking to sever the issue of their entitlement to an order of possession from all other forms of relief sought in the notice of civil claim. As determining this sole issue would still leave significant issues to be tried, there are few if any efficiencies to be obtained through proceeding summarily, and such piecemeal decision-making is not to be encouraged: Coast Foundation v. Currie, 2003 BCSC 1781 at paras. 16–18; Ferrer v. 589557 B.C. Ltd., 2020 BCCA 83 at paras. 33–34.

[27]      Second, while Sheri and Vanessa have never held a certificate of possession, it appears that they continued to inhabit the House on the Premises to the knowledge of TFN, and that TFN accepted mortgage or rent payments from Sheri for a period of several years. Under s. 25(2) of the Act, the right of possession of the Premises would appear to have reverted to TFN when Calvin transferred his band membership and failed to transfer his interest under s. 25(1). TFN’s subsequent acceptance of Sheri’s payments would appear possibly to give rise to an equitable interest. That issue cannot be determined.

[28]      Further, while the plaintiffs relied upon Calvin’s Disclaimer to have TFN transfer the right of possession to them, it is not at all clear that the Disclaimer had the legal effect contended by the plaintiffs. The Disclaimer was limited to the acceptance of gifts from Earl Sr.’s estate. However, Earl Sr. had already granted possessory rights to Calvin, and the plaintiffs, in 1983. I cannot find on the evidence that the estate had anything to give in respect of Lot 47-6; the effectiveness of the Disclaimer as an instrument entitling the plaintiffs to sole possession is therefore uncertain, on the evidence.

[29]      As in Terbasket, I find that entitlement to an order of possession is not an appropriate issue for summary determination. I turn to consider whether an interlocutory injunction should be granted.

[30]      The three-part test to be applied in determining whether to grant an interlocutory injunction is set out in RJR-Macdonald Inc. v. Canada (Attorney-General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 [RJR-Macdonald]. The test is as follows:

[31]      However, in trespass cases, if there is no arguable case against a plaintiff’s right of possession, an injunction will normally lie against a trespasser without consideration of the second and third parts of the RJR-Macdonald test: Terbasket at paras. 24–25; The Sol Sante Club v. Biefeld, 2005 BCSC 1908 at paras. 17–19. When the evidence clearly establishes a plaintiff’s rights, the onus shifts to the defendant to establish that their continuing possession of the property is as of right. In this context, the claim to possession “as of right” must be established as of the date of the application: Terbasket at para. 27.

[32]      Under s. 20(1) of the Act, no member of a First Nation is in lawful possession of reserve land unless possession of the land has been allotted to them by the band council, with the Minister’s approval. The defendants have not established that they meet that requirement. They have never held certificates of possession or a registered interest in the Premises. Under the Act, their possession is unlawful. They have not proven that they had a legal right to possession of the Premises as of the hearing of the application.

[33]      Accordingly, the interlocutory injunction is granted. Within 45 days of the date of this Order, the defendants will provide vacant possession of the Premises, pending the trial of this civil claim.

[34]      Should the defendants wish to contest the plaintiffs’ claim, I further order that within 14 days of this Order, the defendants file a response to civil claim. If the defendants do not do so, the plaintiffs will be at liberty to pursue the remedies sought in the notice of civil claim, in default of pleading. Further, if the defendants oppose the plaintiffs’ claim on the grounds of the defendants’ opposition to decisions made or actions taken by TFN, I order that they take all steps necessary to initiate legal proceedings to challenge decisions of TFN, or to compel action by TFN, as the case may be, within 45 days.