Before: Metis Settlements Appeal Tribunal Land Panel Between: Mandy Laboucane, -and- Appellant Ryan Laboucane, Lee Anne Desjarlais, and Fishing Lake Metis Settlement -and- Metis Settlements General Council, and Metis Settlements Land Registry Respondents Affected Parties Concerning: Land Dispute NW 32-56-2-W4M Hearing Date: June 24, 2015 Decision Date: September 29 2015 DECISION
Land Panel Members: Phyllis Collins, Panel Chair Joyce Parenteau, Panel Member David Drummond, Panel Member Parties Present at the Hearing: Mandy Laboucane, Appellant Fishing Lake Metis Settlement, Respondent Councillors: Arlene Calliou, Shirley Calliou, and Dwayne Laboucane Land and Membership Clerk: Melissa Davie Ryan Laboucane, Respondent Lee Ann Desjarlais, Respondent Appeal Tribunal Staff Present at the Hearing: Karen Mustus, Dispute Resolution Officer Place and Date of the Hearing: Community Hall Fishing Lake Metis Settlement June 24, 2015 at 9:00 AM
1.0 Context [1] At its core, this matter involves the transfer of a housing unit and interest in land on the Fishing Lake Metis Settlement (FLMS), the subdivision of that property and, ultimately, the request by the appellant, Mandy Laboucane, for a Metis Title interest in the vacant 14.08-acre parcel created by the subdivision. 1.1 Issue [2] What, if any, interest or claim does Mandy Laboucane have in the vacant 14.08-acre parcel created by the subdivision? 1.2 Jurisdiction [3] One of the Appel Tribunal s key jobs is to clarify ownership or the extent of interests in settlement lands. It gets this authority from section 189(b) of the Metis Settlements Act [RSA, revised 2014] and from sections 8.1 and 8.2 of the Metis Settlements General Council Land Policy. [4] To trigger the Appeal Tribunal s authority over land disputes, an appeal must be filed with the Appeal Tribunal within 30 days of Council s decision to grant or not grant an interest in land. In the case at hand, FLMS Council considered Mandy Laboucane s request for the Metis Title interest in the 14.08-acre parcel on February 18, 2014, and decided not to give it to her. Mandy was informed of this decision by a letter dated February 20, 2014. Mandy filed her appeal with the Appeal Tribunal on September 18, 2014, or roughly 6 months after FLMS Council s decision. [5] On the face of it, the Appeal Tribunal cannot hear the matter because Mandy did not file her appeal in time. However, the Land Policy specifically allows the Appeal Tribunal to use section 202 of the Metis Settlements Act to extend timelines to make sure people with real problems are heard, 1 and we have elected to use that power now and extend the deadline to include Mandy s appeal. We have done so because all the parties will benefit from having the Appeal Tribunal clarify the appropriate processes for transferring and registering interests in land. 1 Section 8.1(3), Metis Settlements General Council Land Policy. 2
1.3 Findings of Fact [6] Having reviewed the hearing package for this matter and having heard from the parties on June 24, 2015, this Panel is satisfied that the following facts are true and relevant: On September 28, 2005, FLMS and Mandy Lacoucane signed off on a housing agreement for the housing unit and improvements on the NW-32-56-2-W4M. FLMS agreed to sell the property to Mandy at 15% of the total costs of building the house, or for $16,666.00. As set out in the Housing Agreement, Mandy was to pay FLMS $16,666.00 as follows: o $1960.00 down payment, plus; o $122.55 per month x 120 months (totalling $14,706.00). The Housing Agreement does not include any other relevant provisions, except that partial prepayments would not release Mandy from any outstanding payments still owing to FLMS. FLMS Council and Mandy agreed with one another at the hearing that in keeping with local practice, the Metis Title interest in the land should have been transferred to Mandy when she completed payments on the housing unit. Regardless, there is no record showing that the Metis Title interest in the NW-32-56-2-W4M was ever transferred to Mandy. Fishing Lake Metis Settlement financial ledgers show Mandy made house payments to the Fishing Lake Metis Settlement from 2004 to July 2011, totalling $12,859.76 (including the down payment). The balance owing against the original debt of $16,666.00 as of July 28, 2011, was $3,806.24. Mandy sent a letter (no date) to the Fishing Lake Metis Settlement stating that she had started a new life in Calgary. She offered to sell the housing unit back to FLMS for $50,000.00, minus the balance owing of $3,806.24. She further advised FLMS that in the event FLMS did not want to exercise the rights of first refusal that Mandy thought they had, Ryan Laboucane was interested in buying her house. 3
At a council meeting on November 6, 2013, FLMS Council passed the following motions: o Move to sub-divide 20 acres 2 on NW-32-56-2-W4 for FLMS to be held for Ryan Laboucane pending his pay back agreement signed on Alternative Housing. [FLMS Council Motion #FLMSRCM372/13] o Move to approve Ryan Laboucane application for Alternative Housing in the amount of $30,000.00 for purchase of interest on NW-32-56-2-W4M payable to previous residing member Mandy Laboucane minus the debt owe (sic) to the house. [FLMS Motion #FLMSRCM373/13] FLMS Council meeting minutes state the following on February 18, 2014: o NW 32-056-02-4 Mandy Laboucane She has requested a Metis Title for the remainder of the land NW 32-056-02-4. In conversation with Mandy Laboucane (sic). There is a land issue between her and Ryan Laboucane. The agreement with Mandy Laboucane, Ryan Laboucane and previous Lands Clerk was that Ryan was to receive 15 acres (maximum) just so he has access to both roads on the small parcel. Mandy was just informed that she was not a Metis Title holder as she was told in previous conversation. She has requested that she have her Metis Title on the land and Ryan receive 15 acres that was agreed beforehand. She wants the title in case she comes back home and has land to build a new homestead on. FLMS Council declined Mandy s request and the FLMS Land and Membership clerk sent her a letter dated February 20, 2014 advising her of that fact. The letter to Mandy 2 Subdivision Plan No. 900653 (Descriptive Plan showing subdivision of part of the NW-32-56-2-W4M) was entered and registered on May 22, 2014 at the Metis Settlements Land Registry. The subdivision creates Lot 1 (19.99 acres). The Metis Title interest for Lot 1 is registered with the FLMS. Subdivision Plan No. 900661 (Descriptive Plan showing subdivision of part of the NW-32-56-2-W4M) was entered and registered on October 1, 2014, at the Metis Settlements Land Registry. The subdivision creates Lot 2 (31.14 acres). The Metis Title interest for Lot 2 is registered with the FLMS. FLMS continues to hold the Metis Title interest in the remaining 14.08 acres for the NW-32-56-2-W4M. The remainder of the NW-32-56-2-W4M (Partial Quarter) is 14.08 acres. The Metis Title interest for the parcel is registered with FLMS. 4
also reads that: I could put a request for a land posting for 14 days on your behalf, but, you would have to be a residing member in the FLMS for 12 months. On September 18, 2014, the Appeal Tribunal received an appeal from Mandy Laboucane requesting an interest in the NW-32-56-2-W4M. On September 22, 2014, the Metis Settlements Land Registry sent a letter advising the Appeal Tribunal that Mandy Laboucane was a settlement member. On October 16, 2014, the Metis Settlements Land Registry sent a letter to the Appeal Tribunal advising there are no interests or documentation on file which associates Mandy Laboucane to the NW-32-56-02-W4M. Mandy Laboucane confirmed at the hearing she would like an interest in the NW-32-56- 2-W4M (Partial Quarter 14.08 acres). 5
1.4 Analysis/Reasons [7] Should Mandy be given the Metis Title interest in the 14.08-acre parcel? [8] If the Panel accepts what the parties said at the hearing about FLMS s practice of transferring Metis Title upon the payment of housing unit debts, then it is arguable that Mandy should have received Metis Title to the NW-32-56-02-W4M on November 6, 2013, when her outstanding debt of $3,806.24 was paid off through the alternative housing loan to Ryan. It would have then been up to Mandy to request that the land be subdivided to effect the transfer of interest to Ryan, or back to FLMS, which FLMS would hold until Ryan paid off his loan. Certainly, Mandy as the Metis Title interest holder would have also been responsible for requesting any further subdivisions of the land that followed resulting in the remaining 14.08 acres now in play. [9] Upon closer examination of what actually happened, though, there is no compelling evidence before us that FLMS ever intended to transfer the Metis Title interest to Mandy. [10] Despite what the current FLMS Council said at the hearing about Settlement practice, its predecessor Council did not do anything to show that it intended to transfer the Metis Title interest to Mandy. Firstly, the Housing Agreement signed by Mandy and FLMS on September 28, 2005, makes no mention that the Metis Title interest would be transferred once the debt is paid. Indeed, on some settlements, the practice is that once the initial debt is paid especially a debt that does not cover the building costs of the unit itself members are then only entitled to apply for more money to do renovations to the unit. [11] FLMS acted with the understanding that it held an unencumbered Metis Title interest in the land throughout the entire process. It managed the subdivision process and provided advice on how the remainder might be posted and the requirements that Mandy would have to meet as someone who does not currently hold an interest in the land. In addition, at no time did FLMS take any steps to divest itself of the Metis Title interest by, say, signing transfer documents necessary to give effect to the so-called practice, or to otherwise create a fair expectation of transference to Mandy. Nor did Mandy take the initiative and issue any transfer documents on her own. [12] So, although the parties said it was Settlement practice to transfer title after debts were paid off, our assessment of the evidence does not back up this contention. [13] Furthermore, to allow the mere assertion of settlement practice to override the legal requirements for properly transferring interests in settlement lands would ultimately undermine the accuracy of the Metis Settlements Land Registry system; and this should not be allowed to happen, and certainly not allowed to happen on the back of an unsubstantiated practice. 6
[14] Put another way, the rules 3 say that a settlement holds the Metis Title interest until the interest is properly transferred to a settlement member and that people who look at land search reports from the Registry can rely on the Registry s record to be accurate. To allow the mere assertion of a settlement practice to supersede the basic rule and registration processes would be to say that it is not necessary to submit transfer documents to the Registry in a timely basis because it can all be fixed later. In short, allowing the bare expression of an expectation or socalled practice to override the registration process would be to undermine the Registry itself, and the Panel cannot permit this. [15] Indeed, had things worked the way they should have, the housing agreement would include language detailing what would happen when the debt was paid off, along with post-dated transfer documents for the Metis Title (if that was what was agreed to), and the agreement would be registered or at least recorded on title. Had things worked the way they should have, Ryan would have known to look at the land search report for the NW 32-56-2-W4M to see whether Mandy held the Metis Title interest that she was purporting to sell him and see that she didn t hold the interest. [16] Unfortunately, none of this happened, and this Panel cannot now order that the Metis Title interest in all or part of the NW 32-56-2-W4M be transferred to Mandy. [17] Finally, with respect to the Registry s registration of the new lots/sub-divisions on May 22, 2014, (Lot 1) and October 1, 2014, (Lot 2), it is worth noting that the Metis Settlements Land Registry Regulation (Alta Reg 361/1991) effects a freeze on registering any transfers of Metis Title, Provisional Metis Title, or allotment interests during the appeal period, or period while the Appeal Tribunal has carriage of an appeal, and during the 45 day appeal period following the Appeal Tribunal s decision. However, no interests in land were transferred along with the subdivision, (i.e. FLMS kept the Metis Title interests to Lots 1 and 2), so the registration of the sub-divisions stands. 3 See Metis Settlements General Council Land Policy, section 2.3(1) and Metis Settlements Land Registry Regulations. 7
1.5 Decision [18] Mandy s request for the Metis Title interest in the 14.08-acre parcel is denied. 1.6 Order [19] Insofar as Mandy would like at least some form of interest in the 14.08-acre parcel on the NW-32-56-2-W4M, and insofar as this Panel may refer a matter back to FLMS Council with suggestions, we think the following is fair in the circumstances: That FLMS post a Provisional Metis Title interest in the 14.08-acre parcel on the NW-32-56-2-W4M as available and invite Mandy to apply for that interest and to register that interest with conditions that are appropriate for the acquisition and fulfillment of a PMT interest. It is also important to note that Mandy be informed of her rights of appeal and the deadlines for appeal should FLMS refuse her application for the PMT interest. Dated in the City of Edmonton, in the Province of Alberta on this 29 th day of September, 2015 Original signed by Harold Robinson for: Phyllis Collins, Panel Chair 8