Metis Settlements Appeal Tribunal. Sheila Pruden, Rocky Pruden, and Loretta Pruden. -and-

Transcription

1 Before: Metis Settlements Appeal Tribunal Between: Sheila Pruden, Rocky Pruden, and Loretta Pruden -and- Ernest Pruden, Luke Pruden, Terrence Pruden, Barry Pruden, and Kikino Metis Settlement (as Land Trustee) -and- Metis Settlements Land Registry, Metis Settlements General Council Appellants Respondents Other Parties Concerning: Descent of the late Willie Pruden s land interests in the NE and NW Hearing Date: August 17, 2011 Decision Date: August 31, 2011 DECISION

2 Panel Members Allan Lamouche, Panel Chair Joyce Parenteau, Panel Member Don Cunningham, Panel Member Parties present at the hearing Loretta Pruden, Appellant Rocky Pruden, Appellant Sheila Pruden, Appellant Terrence Pruden, Respondent Luke Pruden, Respondent Ernest Pruden, Respondent Barry Pruden, Respondent (Notice received, but not present at hearing) Kikino Metis Settlement Council, Respondent Floyd Thompson, Chair Lee Thom, Vice-Chair Peter Cardinal, Council member Greg Cardinal, Council member Bill McElhanney, (Legal Counsel to Kikino Council) Erin Jackson, (Articling Student) Metis Settlements Land Registry Lisa Chartrand, Registrar Terry Wywal, Geomatics Technologist MSAT staff present at hearing Karen Mustus, Appeal Tribunal Officer Harold Robinson, Tribunal Secretary Place and date of the hearing Kikino Metis Settlement Community Hall August 17, 2011 Page 2 of 9

3 Issues and relief requested (what the Appellants want) 1. Descent of property: The Appellants and Respondents (the Prudens) are the daughters and sons of the late Willie Pruden who passed away on October 16, 2009 without leaving any estate instructions. The Appellants want the Appeal Tribunal to change the March 8, 2011 decision of the Kikino Metis Settlement Council (acting as Land Trustee) concerning the late Willie Pruden s Metis Title interests in the NE (the NE-16 homestead quarter) and the NW (the NW-16). In that decision, the Land Trustee Kikino Council transferred the late Willie Pruden s Metis Title interest in the NW-16 to Ernest Pruden. With respect to the NE-16 homestead quarter, the Land Trustee Kikino Council took steps to subdivide the Metis Title interest into two separate parcels. A acre parcel ( ) was created on the east side of the quarter, and the Metis Title interest in the remaining acre parcel where the house is located was transferred to Luke Pruden. With respect to the acre parcel, the Land Trustee Kikino Council decided that 10 acre lots would be made available upon request to the four heirs who do not hold interests in land on the Settlement (Sheila, Loretta, Barry and Rocky Pruden) providing that the prospective land owner cover the survey costs for the subdivision. The Respondents ask that the Appeal Tribunal uphold the Land Trustee Kikino Council s decision. DESCENT OF PROPERTY 1.1 Right of Appeal The Metis Settlements General Council Land Policy GC-9201 (Land Policy) provides that when a Settlement Council makes a decision under the authority of the Land Policy related to the granting, transfer, or termination of interests in land in the settlement area, any person affected by the decision can appeal in writing to the Appeal Tribunal. The appeal must be filed with the Appeal Tribunal (and a notice of the appeal also filed with the Registrar) within 30 days of the Settlement Council s decision. The evidence shows that Kikino Council followed the terms of the Land Policy to appoint itself as the Land Trustee with respect to the late Willie Pruden s Metis Title interests in the NW-16 and the NE-16 homestead quarter. The evidence also shows that following the decision of the Land Trustee Kikino Council to transfer the interests in land to Ernest and Luke Pruden (with rights of subdivision to the Appellant s), Sheila, Loretta and Rocky Pruden appealed the decision within 30 days of the decision. This Panel is satisfied that the appeal requirements have been met. This Panel also notes that Kikino Council was represented by legal counsel at the hearing into this matter on August 17, 2011, and no challenges were raised concerning the Appellant s rights of appeal. Accordingly, this Panel is satisfied that it is right and proper for the Appeal Tribunal to have heard this matter and to make a decision with respect to the issue now before us. Page 3 of 9

4 1.2 Evidence from the Parties Loretta Pruden, Appellant Loretta Pruden said that she is a member of Kikino Metis Settlement. She also said that she holds no interests in land in the Kikino Metis Settlement. Loretta said that she was not given a fair opportunity to tell the Land Trustee Kikino Council her views about what should be done with her late father s Metis Title interests. She added that to the extent that she was able to share her views with the Land Trustee Kikino Council, it does not appear to her that her views were taken into account. Loretta said that the Land Trustee Kikino Settlement Council s decision is not fair because those who already have land (i.e. Ernest Pruden) on Kikino Settlement, or who have a house elsewhere (her brother Luke lives in a house with his wife and family on the Goodfish Lake reserve), were given land and/or a house when the remaining children of Willie Pruden have neither. Loretta added that her life circumstances have changed in recent months and she now needs an affordable place to live and raise her family. In Loretta s opinion, her late father s Metis Title interest in the NE-16 homestead quarter should be subdivided and the resulting Metis Title interests be transferred to her sister (Sheila Pruden) and her. (No indication was given as to who should receive the resulting Metis Title interest that includes the house). Loretta also suggested that the Metis Title interest NW-16 quarter be subdivided and the resulting Metis Title interests be transferred to her brothers Rocky Pruden and Luke Pruden. Sheila Pruden, Appellant Sheila Pruden said that she is a member of Kikino Metis Settlement. She also said that she holds no interests in land in the Kikino Metis Settlement. Sheila said that despite the Land Trustee Kikino Council s decision to transfer the NE-16 homestead quarter to Luke Pruden, and despite being served with an eviction notice, she is currently living in her late father s home on the NE-16 homestead quarter. Sheila said that she has spent $5000 renovating or otherwise maintaining the house on the NE-16 homestead quarter. Sheila agrees with Loretta s proposal that the Metis Title interest in the NE-16 homestead quarter be subdivided and the resulting Metis Title interests be transferred to her and Loretta. She further agrees that the Metis Title interest in the NW-16 be subdivided and the resulting Metis Title interests be transferred to her brothers, Rocky and Luke Pruden. Rocky Pruden, Appellant Rocky Pruden said that he is a member of Kikino Metis Settlement. He also said that he holds no interests in land in the Kikino Metis Settlement. Page 4 of 9

5 Rocky said that he is living with Sheila in the house on the NE-16 homestead quarter. He said that he built a new gate leading to the house to improve its security. Rocky also agrees with Loretta s proposal, above. Terrence Pruden, Respondent Terrence Pruden said that he is a member of Kikino Metis Settlement. He said that he already holds Metis Title interests in other lands on the Kikino Metis Settlement and is at his limit for Metis Title holdings. As such, he said he has no desire to have his late father s Metis Title interests transferred to him. Terrence said that he is interested in ensuring that his late father s wishes are respected. In this regard, Terrence said that approximately three years ago his father told him to ensure that his interests in the NE-16 homestead quarter and NW-16 were transferred to Sheila Pruden. Terrence Pruden said that he passed his father s wishes along to the Kikino Council Chair, Floyd Thompson, and the hearing package includes Floyd s notes to this effect. Terrence added that he also supports Loretta s proposal because it would ensure that Sheila has a place to live and that the remaining children use or be given interests in land that they can build on. Ernest Pruden, Respondent Ernest Pruden said that he is a member of Kikino Metis Settlement. He said that he holds Metis Title interest in one quarter (adjacent to his father s land interests). Ernest said that his father s work as a farmer and rancher needs to be considered. Ernest said that as a farmer and rancher himself, and given his proximity to the lands in question and his past efforts to provide hay for his late father s horses, he is well-suited to ensure his father s work as a farmer and rancher is respected and carried forward. Ernest said that he hopes his brothers and sisters will eventually start to work together again to ensure their father s lands continue to be built-up and that the family once again becomes a leader in farming and ranching on the Kikino Metis Settlement. Ernest indicated that Kikino Council (acting as Land Trustee) took the right steps and considerations into account and that their decision should stand. Luke Pruden, Respondent Luke Pruden confirmed that he is a member of Kikino Metis Settlement. He said that apart from the transfer of the NE-16 homestead quarter into his name by the Land Trustee Kikino Council, he does not have any other interests in land on the Kikino Metis Settlement. Luke said that he is anxious to move into the NE-16 homestead quarter because the house he lives in on the Goodfish Lake reservation is not his own. He added that the house at Goodfish is also infested with mould and that he believes it is negatively affecting his children s health. Luke said that he wants to continue his father s work as a rancher and farmer and that he and Ernest have discussed the ways that they would work together to continue building up the lands in question. He also believes that the Land Trustee Kikino Council s decision is fair and proper. Page 5 of 9

6 Barry Pruden, Respondent Barry Pruden was not present at the hearing. As evidenced through the various submissions by the parties, though, Barry Pruden once had interests in land on the Kikino Metis Settlement, which he sold to a third party. Kikino Council, Respondent Floyd Thompson, Kikino Council Chair, spoke about the process and decision made by Kikino Council in its role as Land Trustee. Floyd said that the Land Trustee Kikino Council paid particular attention to the Guiding Principles set out in section 7.13 of the Land Policy. Floyd said that the Land Trustee Kikino Council wanted to ensure that the interests in land stayed in the Pruden family and that it made repeated attempts to meet with Willie Pruden s adult children in order to determine which of them should receive the late Willie Pruden s interests in land. Floyd said that based on the feedback received, and taking into account who might best use the land for the purpose intended (farming/ranching), the Land Trustee Kikino Council thought it best to transfer the NW-16 to Ernest Pruden and to apply to subdivide the NE-16 homestead quarter into one 120 acre and one 40 acre section, leaving it open for the remaining siblings to further sub-divide the 40 acres into 10 acre lots at their own costs. In this regard, it was stated that the remaining siblings could apply for the Settlement s sub-division cost-sharing program, and also stated that the holder of a 10 acre parcel to apply for a loan or grant under the Settlement s Housing Policy. Finally, it was acknowledged that the hearing itself afforded Kikino Council its first opportunity to hear the views (of 6 of 7 of) Willie Pruden s adult children at a single venue. 1.3 Findings of Fact Based on the evidence before us, (including evidence contained in the hearing package and spoken to by the parties), this Panel finds the following facts to be relevant and more likely than not to be true: The late Willie Pruden did not leave any estate instructions concerning his Metis Title interests in the NE-16 homestead quarter or the NW-16; Plan registered with the Metis Settlements Land Registry on June 15, 2011 created Metis Title , Lot 1 (43.47 acres) located within NE-16. Willie Pruden built and ran farming and ranching operations on the quarters until his death; The adult children of the late Willie Pruden are members of the Kikino Metis Settlement; Loretta, Rocky, Sheila, and Luke Pruden do not have any interests in land in the Kikino Metis Settlement; Page 6 of 9

7 The adult members of the late Willie Pruden s family do not all agree on what should be done with his Metis Title interests; and Loretta, Rocky Sheila and Terrence Pruden agree that Willie Pruden s Metis Title interest in the NE-16 homestead quarter should be subdivided and transferred to Sheila and Loretta, and that his Metis Title interest in the NW-16 should also be subdivided and transferred to Luke and Rocky. 1.4 Analysis The circumstances of this appeal are sad and troubling. They are sad in that Willie Pruden s children (all of whom are now adults) are at serious odds with one another. This is troubling because Metis culture and identity depends on members of a family to work together and to support each other through good times and bad. Though there were hurt feelings and finger-pointing at the hearing, each of Willie Pruden s adult children also spoke with pride about the fact that their late father worked non-stop to develop his land into one of the leading farms/ranches in Kikino. There was also tacit recognition amongst those gathered at the hearing that once the dispute is resolved, they should once again work together to improve their late father s lands. Unfortunately, the fact that Willie Pruden did not leave any estate instructions (and this Panel s view that Willie Pruden s discussion with Terrence Pruden cannot be taken as conclusive proof of his wishes), has left open the question about what to do with Willie Pruden s Metis Title interests in the NE-16 homestead quarter and the NW-16. When such a question arises, it is for the Land Trustee to consider the Guiding Principles set out in section 7.13 of the Land Policy. Given that there are no estate instructions, and therefore no heirs list to speak of, (and that there was certainly no unanimity amongst the would-be heirs in any event), it was for the Land Trustee Kikino Council to determine whether there is substantial agreement amongst the deceased s immediate family as to what should be done with the deceased s interests in land (see section 7.13(d) of the Land Policy). In this regard, the Panel acknowledges that the Land Trustee Kikino Council made many attempts to solicit feedback from the Prudens, but that these attempts did not yield a solid or cohesive response from the Prudens. Rather, the solid or cohesive response did not come until the day of the hearing itself, when 6 out of 7 adult Pruden children attended and 4 out of the 6 present proposed a different split than what was approved by the Land Trustee Kikino Council on March 8, With 4 out of 6 immediate family members favouring Loretta s proposal, it is appropriate to conclude that there is substantial agreement as to what should be done with Willie Pruden s Metis Title interests in the NE-16 homestead quarter and the NW-16. However, finding that there is substantial agreement is not the end of this matter. It is still for the Panel to determine whether the agreement can be carried out in the manner presented at the hearing. In this regard, the Panel notes two critical deficiencies. The first is the obvious uncertainty concerning who should hold Metis Title over the land upon which the house sits, and the second Page 7 of 9

8 is that the proposal confuses the role of Land Trustee with that of the Subdivision Authority. With respect to this latter issue, it is for the holder of Metis Title to apply to the Subdivision Authority to approve the request for a subdivision and to ensure that all regulatory and recording/registration requirements are met. It is certainly not for the Land Trustee nor for the Tribunal in its current capacity as reviewer to take the place of the Subdivision Authority and thereby effectively bypass an important step in the regulatory process. For these reasons, the proposal is not practicable (i.e. not capable of being carried out). However, just as finding that there is a substantial agreement did not end the matter, finding that the agreement is not practicable does not end the matter either. As set out in section 7.13(d) of the Land Policy, the substantial agreement should still guide the resolution of the matter at hand. In this regard, where the terms of the substantial agreement cannot be applied as presented, a careful examination of the principles underlying the agreement is warranted. In the Panel s view, the principles underlying the agreement are that Willie Pruden s children be treated equitably/fairly with respect to housing, that cooperation amongst the siblings be promoted, and that the purposes for which the land was developed by Willie Pruden (i.e. farming and ranching) be respected. In the Panel s view, these principles apply in different measure depending on whether one is considering the NE-16 homestead quarter, or the NW-16 quarter. With respect to the NE-16 homestead quarter, it is equitable/fair to give priority to Willie Pruden s children who do not have a house to live in, (or who have not otherwise previously disposed of their interest/house on the Kikino Metis Settlement). This means that priority should be given to Sheila, Loretta and Rocky Pruden, because Ernest, Terrance and Luke Pruden all have houses to live in. (That the house that Luke Pruden lives in on the Goodfish Lake reserve is less than ideal, does not remove the fact that he has a house to live in). As set out in the substantive agreement, Sheila, Loretta and Rocky, agreed that the interests in the NE-16 homestead quarter should be transferred to Sheila or Loretta Pruden. In the Panel s view, though Rocky Pruden is currently living in the house on the NE-16 homestead quarter, it is clear that he is not interested in taking ownership over the NE-16 homestead quarter. This leaves the question of whether the interest in the NE-16 homestead quarter should be transferred to Sheila and Loretta Pruden. In this regard, the testimony from Terrence Pruden that the late Willie Pruden told him that Sheila Pruden should receive his interests in the NE-16 homestead quarter provides a useful (although not binding) reference point. The Panel also thinks it appropriate to consider that Sheila Pruden has spent upwards of $ maintaining the house on the NE-16 homestead quarter, and that she is currently living in the house. On the whole, then, the Panel thinks it equitable/fair to direct that the Metis Title interests in all lands situated in the NE-16 (including both the acre parcel and the acre parcel) be transferred to Sheila Pruden. 1 This approach ensures that Sheila Pruden will have a house to live 1 The option to amalgamate the two parcels into one Metis Title is available to Sheila Pruden by applying to the Subdivision Authority. Page 8 of 9

9 in. Moreover, it also takes at face value the testimony of Sheila, Loretta and Rocky Pruden that they will respect the principle of cooperation set out in the substantive agreement. In particular, it is anticipated, though not ordered, that Sheila will work with her siblings to one day subdivide her interest so that her siblings may also build or apply for their own houses on the Kikino Metis Settlement. With respect to the NW-16, the purposes for which the land was developed by Willie Pruden (i.e. farming and ranching) should be given priority. In this regard, it is the Panel s view that of the parties present at the hearing, (including Luke and Rocky Pruden), Ernest Pruden (who is actively farming his interest in the quarter adjacent to the NW-16 and who provided hay for his late father s horses) is best able to use the NW-16 for the purposes of farming and ranching as intended by Willie Pruden. Accordingly, the Panel confirms that part of the Land Trustee Kikino Council s decision to transfer the Metis Title interest in the NW-16 to Ernest Pruden. Of course, it is also expected, though not directed by this Panel, that as he indicated at the hearing, Ernest Pruden will continue cooperating with Luke Pruden and one day subdivide his interest in the NW-16. By doing so, Ernest Pruden will provide Luke Pruden with the opportunity to build or apply for a house on the Kikino Metis Settlement. 1.5 Order The Registrar for the Metis Settlements Land Registry is directed to register Metis Title interests in all lands situated in the NE (i.e. the acre parcel ( ) and the acre parcel) in the name of Sheila Pruden. The Registrar is further directed to register the Metis Title interest in the NW in the name of Ernest Pruden. Dated in the City of Edmonton in the Province of Alberta on the 31 st day of August Original Signed by: Allan Lamouche Panel Chair Page 9 of 9