Opetchesaht Indian Band v. Canada: Indigenous Land Rights & Law

This case study examines the Opetchesaht Indian Band v. Canada legal dispute, focusing on land rights and the interpretation of the Indian Act. The core issue revolves around a right-of-way permit granted to Hydro for power transmission lines across the Band's land in 1959. The Band later sought to develop the land, leading to a legal challenge regarding the duration and scope of Hydro's rights. The Supreme Court of British Columbia upheld the permit's validity as long as the right-of-way was required, balancing the Band's land use with Hydro's operational needs. The case highlights the complexities of Indigenous autonomy, land management, and the balance between economic development and the preservation of Indigenous rights under Canadian law, emphasizing that the Band's actions must comply with the existing permit while considering the evolving needs of future generations.

Running head: OPETCHESAHT INDIAN BAND -V- CANADA
Opetchesaht Indian Band v. Canada
Name of the Student
Name of the University
Author Note

1OPETCHESAHT INDIAN BAND -V- CANADA
The completion of the construction of a hydro-electricity generation facility, Hydro
required transmission lines across Opetchesaht Band’s land and therefore negotiated with
Crown and the Band Council. A payment was fixed and provisions were made for free
electricity to Band’s members and an agreement between the Crown and Hydro was
concluded in 1959.
Hydro under Section 28(2) of the Indian Act received a permit for right-of-way, a
right to ‘construct, operate and maintain’ their lines, right to occupy where the poles were set
up and the air space, for as long as such a permit is required. The remaining portion of the
area and right-to-way was available to the Band for their use. Around 1990 the Band wanted
to make some developments in the reserve that would interfere with Hydro’s right of way and
applied to the British Columbia Rules of Court under Rule 18A that the previous right-to-way
was not indefinitely and had to be for a specified period. Hydro partially consented with
Band’s plan and through their letter made Band accountable for any loss to third party and
obstruction of Hydro’s right-of-way.
Relief was sought by the Supreme Court of British Columbia under the Indian Act.
The permit was upheld by the Court of Appeals being valid till there was requirement for
power transmission right-of-way, Band’s use of the land should not however obstruct
Hydro’s use. Requirement is thus an issue that is to be decided not only by Hydro but on
reasonable and justifiable terms as also established in Canada (Attorney General) v. Canadian
Pacific Ltd. The permit obtained under section 28(2) allows the Band and Hydro to share the
property while complying with their respective interests.
As expounded by Mclachlin J. in Blueberry River Indian Band the Indian Act
maintains a perfect balance between autonomy granted to band reserves and the protection of
their rights.

2OPETCHESAHT INDIAN BAND -V- CANADA
The Opetchesaht are a group of people similar to the aboriginal population comprising
the First Nations in Canada who live on land that has been reserved for them by the Canadian
government. The aboriginal people are therefore given autonomy to make their own decisions
in respect of such lands, however the same cannot be sold (section 37 of the act) and their
decisions must be respected under different bodies of law. As the Council of the Band had
given consent to Hydro for partial use of their land and section 28(2) provides the opportunity
to grant limited rights for an indefinite period of time such a permit is valid.
The permit being in the nature of easement binds the Opetchesaht people for an
indefinite period of time till transmission lines are required, this in turn limits their right over
the use of property, their use must not be in contrast to, or obstructing those possessed by
Hydro. As the needs of the future generations might differ and evolve the land must still be
used while complying with the permit provided in 1959, the same act that gives the people
autonomy and protection makes them accountable for all their actions and decisions.

3OPETCHESAHT INDIAN BAND -V- CANADA
Reference List:
Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119
Indian Act 1952
Canada (Attorney General) v. Canadian Pacific Ltd., [1986] 1 C.N.L.R. 1 (B.C.S.C.),
aff’d [1986] B.C.J. No. 407 (C.A.)
Blueberry River Indian Band v Canada [1995] 4 SCR 344