Attorney General of Canada et al. v. Canard, [1976] 1 SCR 170

Supreme Court of Canada

Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170

Date: 1975-01-28

The Attorney General of Canada and William Barber Rees (Defendants) Appellants;

and

Flora Canard (Plaintiff) Respondent;

and

The National Indian Brotherhood and The Manitoba Indian Brotherhood Intervenants.

1974: March 7, 8; 1975: January 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon and Beetz JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law—Indians—Appointment by Minister of official as administrator of estate—Legislation and Regulations relating to estates of deceased Indians—Validity—No conflict with Bill of Rights—Meaning of “ordinarily reside on a reserve”—Indian Act, R.S.C. 1970, c. I‑6, ss. 4(3), 42, 43—Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b)—British North America Act, 1867, s. 91(24).

Courts—Jurisdiction of Supreme Court of Canada—Supreme Court Act, R.S.C. 1970, c. S-19, s. 47—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.

The respondent’s husband, C, an Indian of the Fort Alexander Indian Reserve in Manitoba, was killed in a traffic accident on July 6, 1969. He died intestate. C and his wife had made their home on the reserve since 1964. In 1967 and 1968, C was employed for several weeks each summer on a farm at St. Andrews, Manitoba, and on those occasions he and his family would move to the farm, complete the work that was to be done, and then move back to the reserve. In 1969, C was again employed on the same farm, but had moved his family to the farm and commenced his employment only two days before his death. His wife then moved back to their home on the reserve.

On December 1, 1969, the second appellant, R, a departmental officer, was appointed to be administrator of C’s estate by the Minister of Indian Affairs and Northern Development pursuant to ss. 42 and 43 of the Indian Act, R.S.C. 1952, c. 149 (now R.S.C. 1970, c. I-6). In that capacity, on March 1, 1970, he commenced an action in the Manitoba Court of Queen’s Bench,

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claiming damages from three defendants in respect of the accident resulting in the death of C.

On March 18, 1970, pursuant to an application made by the respondent, letters of administration were issued to her by the Surrogate Court of the Eastern Judicial District of Manitoba. The Minister of Indian Affairs and Northern Development had not given to that Court his consent to the exercise of testamentary jurisdiction under s. 44 of the Indian Act in relation to the estate of C. In her capacity as administratrix of the estate of her late husband, the respondent also commenced an action in the Court of Queen’s Bench on July 6, 1970, against the same three defendants and against a fourth one.

The respondent then commenced an action against the appellants, claiming a judgment declaring that the Indian Act did not apply to the deceased because of exempting provisions under s. 4(3) of the Act, or, alternatively, if the Act did apply, its provisions relating to administration of estates of Indians (ss. 42, 43, 44) were ultra vires and contrary to the principles of the Canadian Bill of Rights; the appointment of R as administrator was contrary to the principles of natural justice. By way of counterclaim the appellants claimed (a) a declaratory judgment declaring R to be the lawful administrator of C’s estate; (b) a declaratory judgment declaring the appointment of the respondent as administratix to be void; (c) an injunction restraining the respondent from acting as administratrix; (d) an order impounding her letters of administration.

The trial judge held that when C died, he was not ordinarily resident on a reserve, and, as a result, the respondent was entitled to a declaration that pursuant to s. 4(3) of the Indian Act, ss. 42 to 44 did not govern the administration of C’s estate and that the appointment of R as administrator was invalid. He issued a declaration accordingly and dismissed the counterclaim.

The Court of Appeal found, on the evidence, that C did ordinarily reside on a reserve, and so the application of s. 43 was not excluded by the operation of s. 4(3). The Court went on to hold that s. 43 was inoperative to the extent that, in violation of s. 1(b) the Bill of Rights, guaranteeing the right to equality before the law without discrimination by reason of race, it denied the respondent administration of the estate of her late husband. From that judgment the appellants appealed to this Court.

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Held (Laskin C.J. and Spence J. dissenting): The appeal should be allowed, the judgments of the Courts below set aside, the respondent’s action dismissed and the appellants’ counterclaim maintained except para. (a) thereof on which no view was expressed.

Per curiam: As held by the Court of Appeal, C at his death was ordinarily resident on a reserve and therefore s. 4(3) of the Indian Act did not apply.

Per Martland and Judson JJ.: Section 43 of the Indian Act is legislation relating to the administration of the estates of deceased Indians and (unless the Minister otherwise orders, which he did not do in this case) relates only to those Indians ordinarily resident on reserves. It enables the Minister to appoint administrators of estates of deceased Indians and to remove them. The regulations enacted pursuant to s. 42 enable the Minister to appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates. There is no discrimination against the respondent by reason of race in these provisions. They relate exclusively to the administration of the estates of deceased Indians, in certain circumstances, and apply generally to such estates. There is no federal legislation relating to the administration of estates of non-Indians in the provinces, and, constitutionally, such legislation could not be enacted. This is not a case in which federal legislation dealing with a subject-matter within s. 91 of the B.N.A. Act, 1867 has permitted certain acts or conduct by non-Indians and prohibited Indians from doing the same thing. The provisions of the Indian Act, including s. 43, deal only with the legal rights of Indians.

Per Martland, Judson and Ritchie JJ.: The civil right, i.e., the right to administer the estate of her husband, said to be denied to the respondent “that other Canadians not of her race enjoy”, is a provincial right which is beyond the scope of the legislative authority of the Parliament of Canada, and which cannot therefore be invoked in contra-distinction to the provisions of otherwise valid federal legislation so as to result in a denial to the respondent of “equality before the law” within the meaning of s. 1(b) of the Canadian Bill of Rights. In the context of this case there can only be a conflict between the Bill of Rights and the Indian Act if the Indian Act, standing alone or read in conjunction with other federal legislation, can be said to result in a denial to Indians of the equality before the law guaranteed by s. 1(b) of the Bill.

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Per Martland, Judson, Ritchie and Pigeon JJ.: The very object of s. 91(24) of the B.N.A. Act, 1867 in so far as it relates to Indians, is to enable the Parliament of Canada to make legislation applicable only to Indians as such, and there is no reason why provisions with respect to the administration of the estate of deceased Indians would be excluded from the scope of such authority.

The contention that such provisions were made inoperative by the Canadian Bill of Rights cannot be accepted. If one of the effects of the Bill is to render inoperative all legal provisions whereby Indians as such are not dealt with in the same way as the general public, the conclusion is inescapable that Parliament, by the enactment of the Bill, has not only fundamentally altered the status of Indians in that indirect fashion but has also made any future use of federal legislative authority over them subject to the requirement of expressly declaring every time “that the law shall operate notwithstanding the Canadian Bill of Rights”. It is very difficult to believe that Parliament so intended when enacting the Bill. Also, the provisions of the Indian Act vesting in the Minister jurisdiction for the appointment of administrators, cannot be considered as an infringement of the principle of equality before the law for much the same reasons as provisions creating a special jurisdiction respecting juvenile delinquents and authorizing discretionary transfers to the ordinary courts cannot be looked upon as violations of that same rule.

Lastly, concerning the attack against the Minister’s order based on absence of notice and of any valid reason for not appointing the widow as administratrix, the Courts of Manitoba were without jurisdiction to entertain it for the reasons given by Beetz J.

Per Beetz J.: Sections 42 to 44 of the Indian Act are not ultra vires of the Parliament of Canada. Testamentary matters and causes with respect to deceased Indians come within the class of subjects of “Indians and Lands reserved for the Indians” upon which Parliament has exclusive legislative authority under s. 91(24) of the British North America Act, 1867. In a matter of exclusive federal competence, such as “Indians and Lands reserved for the Indians” there is nothing unconstitutional in Parliament excluding the authority of provincial courts over this subject and bestowing it upon a Minister, particularly if it makes it subject to a form of judicial control as is provided by s. 47 of the Indian Act.

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Nor are ss. 42 to 44 in conflict with the Canadian Bill of Rights. There is nothing in ss. 42 and 43 which prevents the Minister, on account of the respondent’s race, from authorizing her to administer the estate of her late husband, and nothing which deprives the respondent from the capacity to receive such authorization. The Act empowers the Minister to appoint anyone, including the respondent. In other words, if the respondent has been the victim of racial discrimination, such discrimination was administrative in nature; it does not flow from the Indian Act. The Indian Act in this respect is capable of being construed and applied so as to provide for Indians a treatment similar to that reserved for their fellow Canadians. Accordingly, it is not in conflict with the Canadian Bill of Rights and no part of it ought to be declared inoperative for the purpose of this case

As to whether, in this particular instance, the Act had been applied in accordance with the principle of equality before the law, the opinion might have been formed that the burden of showing cause why the respondent should not be appointed administratix was a burden which rested upon the appellants: in view of their failure to discharge that burden, the appointment of R could then have been deemed to have been made contrary to the principles of fundamental justice and to the Canadian Bill of Rights and the matter could have been referred back to the Minister for determination. However, once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba, which could not hear an appeal from the Minister’s decision or otherwise review it. This Court, sitting in appeal from a decision of the Manitoba Court of Appeal, is limited to giving the judgment that that Court could and should have given but not the one that could and should have been given had the issue been raised in the Federal Court.

As to the letters of administration issued to the respondent, their nullity makes no doubt. The Court which issued them was without jurisdiction to do so as this jurisdiction is vested exclusively in the Minister by ss. 42 and 43 of the Indian Act and could not, under s. 44, be exercised by the Surrogate Court without the consent of the Minister. This consent was not given.

Per Laskin C.J. and Spence J., dissenting: On the face of the Indian Act as amplified by the Regulations thereunder, and certainly as fortified by the invariable practice of the Department of Indian Affairs, Indians are disqualified from obtaining letters of administration

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of the estate of an Indian intestate, even in the case where the intestate is a spouse, and a fortiori where the intestate may have a lesser relationship to a would-be Indian applicant. This creates an inequality before the law by reason of race in violation of s. 1(b) of the Canadian Bill of Rights.

While it is much easier for the Courts to apply the Bill of Rights to a federal legislative measure if Parliament itself provides the touchstone of comparison in other federal legislation, it may equally provide it by what it has done and failed to do in the very measure that is under challenge. The Court’s function in such a case is different only in degree but not in kind.

The mere grant of legislative power is not to be regarded as itself authorizing Parliament to offend against its generally stated protections in the Bill of Rights. If Parliament deems it necessary to treat its grant of legislative power under s. 91(24) of the British North America Act in terms that would be offensive to the Bill of Rights, it is open to Parliament to do so, but s. 91(24) is not an invitation to the Courts to do what Parliament has not chosen to do.

The appeal should be dismissed but the judgment of the Court of Appeal should be varied by avoiding any declaration that s. 43 of the Indian Act is inoperative and by declaring instead that s. 43 must be applied consistently with s. 1(b) of the Canadian Bill of Rights and that s. 11 of the Indian Estates Regulations is inoperative in so far as it excludes Indians from eligibility to be administrators of the estates of deceased Indians.

[R. v. Drybones, [1970] S.C.R. 282; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, discussed; R. v. Burnshine,[1975] S.C.R. 693; Re Regina and M (1973), 2 O.R. (2d) 86; R. v. Smythe, [1971] S.C.R. 680, referred to.]

APPEAL from a judgment of the Court of Appeal for Manitoba[1], dismissing an appeal from a judgment of Matas J. Appeal allowed, Laskin C.J. and Spence J. dissenting.

I.G. Whitehall and D.F. Friesen, for the defendants, appellants.

W. Rachman, for the plaintiff, respondent.

D.E. Sanders, for the intervenants.

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The judgment of Laskin C.J. and Spence J. was delivered by

THE CHIEF JUSTICE (dissenting)—I have had the advantage of reading the reasons prepared by my brother Beetz and the concurring reasons of my brother Pigeon, holding that the Manitoba Courts were wrong in concluding that s. 43 of the Indian Act, R.S.C. 1952, c. 149, now R.S.C. 1970, c. I-6, was inoperative in the present case because of incompatibility with s. 1(b) of the Canadian Bill of Rights. I accept the narrative of facts in the reasons of Beetz J. but I cannot accept his conclusion that s. 1(b) of the Canadian Bill of Rights is without effect.

There are a number of preliminary points that are, in my opinion, easily put out of the way. I have no difficulty in accepting the conclusion of the Manitoba Court of Appeal that the deceased Canard was an Indian ordinarily resident on a reserve when he died in a traffic accident. Thus, under s. 4(3) of the Indian Act, the provisions of that Act respecting testamentary matters were applicable to him. Again, I am in entire agreement with the Manitoba Court of Appeal that Parliament, in legislating in the exercise of its exclusive power under s. 91(24) of the British North America Act, may include in such legislation testamentary provisions which would, according to their reach, govern the issue of letters of administration of the estate of an Indian intestate. Moreover, I see no constitutional infirmity in the assignment of jurisdiction in such matters to a federal functionary. Any constitutional limitation which might arguably reside in s. 96 of the British North America Act if provincial legislation was involved does not apply to the otherwise valid legislation of Parliament.

The only point for serious consideration in this appeal is whether any of the prescriptions of the Canadian Bill of Rights are offended by certain provisions of the Indian Act or by the administration of those provisions through regulations pro-

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mulgated under the Indian Act. The Manitoba Court of Appeal took the position that s. 43 of the Indian Act disqualified an Indian, whether male or female, from being an administrator or administratrix of his or her deceased spouse’s estate and that this created an inequality before the law by reason of race in violation of s. 1(b) of the Canadian Bill of Rights. Dickson J.A., as he then was, speaking for the Manitoba Court of Appeal, formulated his conclusion as follows:

In the present case we have a situation in which the Parliament of Canada has said in effect “because you are an Indian you shall not administer the estate of your late husband”. Parliament has thereby in a law of Canada placed a legal road-block in the way of one particular racial group, placing that racial group in a position of inequality before the law. The inequality does not arise through conflict between a federal statute with a provincial statute. It arises through conflict between the Bill of Rights and a federal statute. The Bill of Rights has capacity to render inoperative, racially discriminatory legislation, whether or not there be provincial legislation touching the subject-matter.

…

The right of Mrs. Canard to equality before the law of Canada does not depend upon which province she happens to live in. She enjoys that right as a citizen of Canada. If a law of Canada infringes that right on racial grounds, the Bill of Rights is available to remedy the injustice.

There is no doubt that this statement of principle carries the operation of s. 1(b) of the Canadian Bill of Rights beyond the law as considered in Regina v. Dry bones[2], and beyond the law as expounded even in the minority judgment in Attorney General of Canada v. Lavell[3]. In each of those two cases, this Court took the position that the Canadian Bill of Rights would have an operative effect if the conflict with any of its provisions arose under federal law in the sense that there was a discordance either between two federal statutes or between provisions of the same federal statute such as to exhibit that one of the statutes or one of the provisions was vis-à-vis the other in conflict with a prescription of the Canadian Bill of Rights.

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The effect of the judgment of Dickson J.A. is to measure the operation of a federal statute, or any provision thereof, by the guarantees (if I may so term them) of the Canadian Bill of Rights alone, and thus to treat those guarantees as requiring not only comparative conformity to their terms but conformity by a challenged statute alone.

I do not find this to be other than a proper appreciation of what the Canadian Bill of Rights says. This Court in Curr v. The Queen[4] explored the issues in that case under the same appreciation. The fact that the Court has not hitherto found it necessary to give effect to the Canadian Bill of Rights in relation to a particular statute measured in its own terms against the prescriptions of s. 1(b) of the Canadian Bill of Rights is not a ground for refusing to do so in a case which calls for consideration of such an issue. This is what the Supreme Court of the United States has been doing over the years in testing state and federal legislation under the American Bill of Rights. This Court has done exactly this in relation to other provisions of the Canadian Bill of Rights, as, for example, in Brownridge v. The Queen[5], in relation to s. 2(c)(ii) (the right of a person who has been arrested or detained to retain and instruct counsel without delay), and in Lowry and Lepper v. The Queen[6], in relation to s. 2(e) (the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations), a provision which, as Martland J. speaking for the Court rightly said (at p. 201), relates back to those rights guaranteed by s.1. The proposition advanced by Dickson J.A. is with due recognition of the fact that the Parliament of Canada may take any of its legislation out of the scope of the Canadian Bill of Rights by appropriate enactment.

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What is involved in this approach, patent on the face of the Canadian Bill of Rights, is the premise of our legal system that no legal permission is needed to do anything or act in any manner not prohibited by law, whether statute law or common law. Hence, if a federal enactment were to operate prohibitively against a specified class of persons by reason, for example, of colour or religion, saying nothing about other classes, the question of its operability under the Canadian Bill of Rights would arise notwithstanding that there was no federal legislation expressly sanctioning for those other classes what was prohibited for a specified class. In short, the question would be whether, having regard to the purpose of the statute, it had accorded equality before the law (to take s. 1(b) of the Canadian Bill of Rights as illustrative) to the affected class. It is easy to give examples; for instance, a provision in federal railway legislation prohibiting Indians alone from travelling in first class accommodation; or a provision in federal communications legislation prohibiting members of Jehovah’s Witnesses from participating in religious programmes on radio or television; or a provision in federal banking legislation prohibiting persons of Asian descent from being bank directors. None of these illustrations are intended pejoratively, but they do raise the issue that arises here, namely, that it appears to be forbidden to Indians to become administrators of estates of Indian intestates, where no other class is singled out for disqualification.

It is said, however, that because questions of administration of estates are, generally, in the provincial domain, a consideration of the disqualification of Indians under the Indian Act would mean testing the operation of the Canadian Bill of Rights by reference to provincial legislation and that this is outside the scope of the Canadian Bill of Rights which applies only to federal law. In my opinion, this is to obtrude an irrelevant factor into the matter at issue. If provincial legislation respecting the administration of estates exhibited

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any conflict with the prescriptions of the Canadian Bill of Rights, that would be obviously no ground for challenging its operability as provincial legislation. Correlatively, I see no reason to refer to provincial legislation to test the operability of federal legislation under the Canadian Bill of Rights. The question whether any of the prescriptions of the Canadian Bill of Rights are offended by federal legislation depends on what that legislation provides and on the reach of the Canadian Bill of Rights itself.

It is thus not a telling factor for me that the respondent Mrs. Canard was appointed administratrix of her late husband’s estate by letters of administration issued out of a Surrogate Court in Manitoba. The relevance of this is in its relation to the issue whether Mrs. Canard as an Indian was disqualified under the Indian Act and applicable regulations from being appointed administratrix by the authorized federal functionaries charged with the execution of the Indian Act and regulations thereunder. Sections 42 to 44 of the Indian Act must now be considered, and they read as follows:

42. (1) Unless otherwise provided in this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister, and shall be exercised subject to and in accordance with regulations of the Governor in Council.

(2) The Governor in Council may make regulations for providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.

(3) Regulations made under this section may be made applicable to estates of Indians who died before, on or after the 4th day of September, 1951.

43. Without restricting the generality of section 42, the Minister may

(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;

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(b) authorize executors to carry out the terms of the wills of deceased Indians;

(c) authorize administrators to administer the property of Indians who die intestate;

(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and

(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

44. (1) The court that would have jurisdiction if the deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred upon the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.

(2) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to such court any question arising out of any will or the administration of any estate.

(3) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve.

Since no consent of the Minister has been given under s. 44(1) and no direction under s. 44(2), it is unnecessary to consider that section for the purposes of this case; it is simply not applicable. We are left then with ss. 42 and 43 and with the Indian Estates Regulations, promulgated pursuant to s. 42. The relevant provisions of the Regulations are ss. 4 and 11 which I reproduce hereunder so far as material:

4. (1) With the notice of death or as soon thereafter as possible, the Superintendent shall forward an itemized statement of inventory in the form prescribed, to the Minister, showing all the real and personal property of the deceased, the value of each item estimated as closely as possible, as well as all debts of or claims against the estate known at such time; he shall also state

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therein whether the deceased left a will and give the names of all persons entitled to share in the estate and all such other information as may be required by the Minister.

(2) For all the purposes of this section, the Superintendent shall act in the capacity of an administrator and shall take all necessary steps for the proper safekeeping or safeguarding of the assets of the deceased and for the collection of moneys due or owing to the deceased and shall dispose of the moneys so collected or held as the Minister may direct.

11. (1) The Minister may appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates and of all the assets of deceased Indians, and may provide that for the purposes of closing an estate the administration thereof be transferred to the Superintendent of the Reserve to which the deceased belonged.

(2) The administrator appointed pursuant to this section or the person acting as administrator in accordance with section 4 shall be responsible to the Minister for the proper preparation of the inventory, the giving of all notices and the carrying out of all inquiries and duties that may be necessary or be ordered with respect to any matter referred to in these regulations.

(14) Generally, an administrator shall have all such powers as are required for the carrying out of the duties herein specified, and shall carry out any order or direction and abide by any finding made or given by the Minister with respect to any matter and cause testamentary.

(15) An administrator shall be accountable to the Minister for his administration.

It is clear from the reasons of the Manitoba Court of Appeal that it proceeded on the basis that ss. 42 and 43 did not envisage that an Indian could be an administratrix of a deceased Indian spouse’s estate. In this Court, counsel for the Attorney General of Canada submitted that there was nothing in s. 43 that prevented Mrs. Canard from applying for the issue to her of letters of administration, and nothing to prevent the Minister from granting her application. The completely illusory possibility of this is belied not only by the Regulations and the provisions thereof to which I have referred (provisions which name the Superintendent of Indian Affairs and officers of the Indian Affairs Branch as the qualified administrators)

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but by the fact that Mrs. Canard was not told by the Department of Indian Affairs that the appellant Rees, an officer of the Branch, had been appointed administrator of her deceased husband’s estate, nor was she told that Rees had commenced an action as administrator to recover damages arising out of the traffic accident in which Mrs. Canard’s husband was fatally injured. I do not think that the Canadian Bill of Rights can be set to one side so easily.

On the face of the Indian Act as amplified by the Regulations thereunder, and certainly as fortified by the invariable practice of the Department of Indian Affairs, Indians are disqualified from obtaining letters of administration of the estate of an Indian intestate, even in the case where the intestate is a spouse, and a fortiori where the intestate may have a lesser relationship to a would-be Indian applicant. The contention is, however, and here the judgment of Ritchie J. in the Lavell case is invoked, that federal legislative authority in relation to Indians is itself an expression of a classification that removes the Indian Act and allied legislation from any taint under the Canadian Bill of Rights. We are told that the reason why the Drybones case stands apart is because there other federal legislation had established a position of inequality by reason of race that operated against Indians alone, and that that is not this case, nor was it the case in Lavell.

If anything, the Drybones case is quite consistent with the approach I would take here. The fact that the Court had before it a liquor ordinance of the Territories which made it an offence for any person to be intoxicated in a public place and that s. 94(b) of the Indian Act made it an offence for an Indian to be intoxicated off a reserve, meant only that whereas all others in the Territories were not subject to liability and penalty for intoxication in other than a public place an Indian was so subject. I cannot believe that the Drybones case would have been decided differently if s. 94(b) of the Indian Act stood alone, thus making Indians alone subject to liability and penalty for being intoxicated off a reserve but there was no prohibition against anyone else. The

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Territories liquor ordinance merely circumscribed the offence and the issue of inequality resided in the want of any prohibition outside of that circumscription affecting others than Indians.

Of course, it is much easier for the Courts to apply the Canadian Bill of Rights to a federal legislative measure if Parliament itself provides the touchstone of comparison in other federal legislation. Yet, it may equally provide it by what it has done and failed to do in the very measure that is under challenge. The Court’s function in such a case is different only in degree but not in kind.

In my opinion, to the extent that there is any majority opinion in the Lavell case (having regard to the separate concurring reasons of Pigeon J. since the Court was otherwise evenly split), it resides in the view that the Indian Act is a self-contained code which if it exhibits any dissonance with the Canadian Bill of Rights is justified by the very fact that Indians have been designated as a special class for which Parliament may legislate. I did not accept that view in Lavell and I do not accept it now, because I do not regard the mere grant of legislative power as itself authorizing Parliament to offend against its generally stated protections in the Canadian Bill of Rights. If Parliament deems it necessary to treat its grant of legislative power under s. 91(24) of the British North America Act in terms that would be offensive to the Canadian Bill of Rights, it is open to Parliament to do so, but s. 91(24) is not, in my opinion, an invitation to the Courts to do what Parliament has not chosen to do. It seems to me patent that no grant of federal legislative power, as a mere vehicle for legislation, should be viewed as necessarily carrying with it a built-in exclusion of the mandates of the Canadian Bill of Rights.

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Lavell was, apart from the foregoing, an even more obvious case than Drybones for the application of the Canadian Bill of Rights, because the inequality in that case, on the ground of sex, was built into the Indian Act itself. The present case on its facts is at least as susceptible as was Drybones to the purging effect of the Canadian Bill of Rights, and I can add nothing more in this respect to what was said more tersely but just as effectively by Dickson J.A.

I would dismiss the appeal with costs but I would vary the judgment of the Manitoba Court of Appeal by avoiding any declaration that s. 43 of the Indian Act is inoperative and by declaring instead that s. 43 must be applied consistently with s. 1(b) of the Canadian Bill of Rights and that s. 11 of the Indian Estates Regulations is inoperative in so far as it excludes Indians from eligibility to be administrators of the estates of deceased Indians.

The Attorney General of Canada undertook, if he was successful here, to pay the costs of the appellant in this Court on a party-and-party basis and to forgo costs in the Courts below. In view of the result I reach, the appellant does not need this indulgence.

The judgment of Martland and Judson JJ. was delivered by

MARTLAND J.—The facts which give rise to this appeal are stated in the reasons of my brother Beetz.

The relevant provisions of the Indian Act, R.S.C. 1970, c. I-6, are subs. (3) of s. 4 and ss. 42 and 43, which provide as follows:

4. (3) Sections 114 to 123 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.

42. (1) Unless otherwise provided in this Act, all jurisdiction and authority in relation to matters and

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causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister, and shall be exercised subject to and in accordance with regulations of the Governor in Council.

(2) The Governor in Council may make regulations for providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.

(3) Regulations made under this section may be made applicable to estates of Indians who died before, on or after the 4th day of September 1951.

43. Without restricting the generality of section 42, the Minister may

(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;

(b) authorize executors to carry out the terms of the wills of deceased Indians;

(c) authorize administrators to administer the property of Indians who die intestate;

(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and

(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

The learned trial judge held that the deceased, Alexander Canard, did not ordinarily reside on a reserve, and, in consequence, there having been no order of the Minister otherwise, the Minister did not have the power, under s. 43, to appoint an administrator of his estate.

The Court of Appeal found, on the evidence, that Canard did ordinarily reside on a reserve, and so the application of s. 43 was not excluded by the operation of s. 4(3). I agree with this conclusion. The Court went on to hold that s. 43 was inoperative to the extent that, in violation of the Bill of Rights, guaranteeing the right to equality before the law without discrimination by reason of race, it denied Mrs. Canard administration of the estate of her late husband. It is from this judgment that the present appeal is brought.

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Section 1(6) of the Canadian Bill of Rights provides that:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(b) the right of the individual to equality before the law and the protection of the law;

Section 91(24) of the British North America Act gave to the Parliament of Canada exclusive legislative authority over the subject of “Indians, and Lands reserved for the Indians.” Pursuant to this authority Parliament has enacted the Indian Act, which establishes a comprehensive regime for Indians, dealing with such diverse matters as the possession of lands in reserves; the surrender of reserve lands; wills; the distribution of property on intestacy; mentally incompetent Indians; the administration of property of infant children; loans to Indians; schools; and enfranchisement.

The provisions of the Act dealing with wills and estates provide a scheme for testamentary capacity and for the administration of estates. It is characterized by a discretionary and supervisory jurisdiction in the Minister of Indian Affairs rather than in the Courts.

The subject-matter defined in s. 91(24) necessarily contemplates legislation respecting the status and rights of a particular class of persons. If the words “equality before the law” in s. 1(b) of the Bill of Rights were to be construed as precluding legislation of this kind it would prevent Parliament from exercising the power entrusted to it by s. 91(24).

The majority of this Court in Attorney General of Canada v. Lavell[7], rejected the application of the Bill of Rights in that way, and approved the

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statement of Pigeon J., on this point, in his dissenting reasons in The Queen v. Drybones[8], at p. 304:

If one of the effects of the Canadian Bill of Rights is to render inoperative all legal provisions whereby Indians as such are not dealt with in the same way as the general public, the conclusion is inescapable that Parliament, by the enactment of the Bill, has not only fundamentally altered the status of the Indians in that indirect fashion but has also made any future use of federal legislative authority over them subject to the requirement of expressly declaring every time “that the law shall operate notwithstanding the Canadian Bill of Rights”. I find it very difficult to believe that Parliament so intended when enacting the Bill. If a virtual suppression of federal legislation over Indians as such was meant, one would have expected this important change to be made explicitly not surreptitiously so to speak.

In The Queen v. Burnshine[9], this Court had occasion to consider the application of s. 1(b) in relation to federal legislation which dealt specially with a designated class of individuals, in relation to indeterminate sentences for young offenders. It was held that the right to equality before the law guaranteed by s. 1(b) of the Bill of Rights did not involve the proposition that all federal statutes must apply equally to all individuals in all parts of Canada, and that federal legislation which applied to a particular group or class of people, or in a particular area of Canada, did not offend against that guarantee if it was enacted in order to achieve a valid federal objective.

The judgments of this Court in Lavell and in Burnshine were delivered after the judgment of the Court of Appeal in the present case.

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Section 43 of the Indian Act is legislation relating to the administration of the estates of deceased Indians and (unless the Minister otherwise orders, which he did not do in this case) relates only to those Indians ordinarily resident on reserves. It enables the Minister to appoint administrators of estates of deceased Indians and to remove them. The regulations enacted pursuant to s. 42 enable the Minister to appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates. In my opinion there are legitimate reasons of policy for the enactment of such provisions in relation to the estate assets of deceased Indians ordinarily resident on reserves.

I cannot find in these provisions discrimination against the respondent by reason of race. They relate exclusively to the administration of the estates of deceased Indians, in certain circumstances, and apply generally to such estates. There is no federal legislation relating to the administration of estates of non-Indians in the provinces, and, constitutionally, such legislation could not be enacted. This is not a case in which federal legislation dealing with a subject-matter within s. 91 of the British North America Act has permitted certain acts or conduct by non-Indians and prohibited Indians from doing the same thing. The provisions of the Indian Act, including s. 43, deal only with the legal rights of Indians.

For these reasons, as well as those delivered by my brother Ritchie and by my brother Pigeon, I would allow this appeal and dispose of the matter in the manner proposed by my brother Beetz.

RITCHIE J.—The conclusion reached by the Court of Appeal for Manitoba in this case is that s. 43 of the Indian Act is “inoperative to the extent that in violation of the Bill of Rights guaranteeing the right to equality before the law without discrimination by reason of race, it denies Mrs. Canard administration of the estate of her late husband.”

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It is thus the finding of the denial of the fundamental right of “equality before the law” guaranteed to all Canadians by s. 1(b) of the Canadian Bill of Rights which forms the basis of the Court of Appeal’s conclusion that the provisions of s. 43 are inoperative.

In the course of the reasons for judgment which he delivered on behalf of the Court of Appeal, Mr. Justice Dickson recognized the validity of the proposition that the question of whether a piece of federal legislation has been rendered inoperative should not rest on a difference between such legislation and that of any of the provinces “for”, as he said, “its operation would then vary from province to province and from time to time”, but he went on to say of the present case:

The inequality does not arise through a conflict between a federal statute and a provincial statute. It arises through conflict between the Bill of Rights and a federal statute. The Bill of Rights has capacity to render inoperative racially discriminatory legislation, whether or not there be provincial legislation touching the subject-matter.

The matter at issue in the present appeal is the administration of “property” of a deceased Indian, and I agree with the Court of Appeal that he was at the time of his death resident on lands reserved for Indians. This is therefore a subject to which the exclusive legislative authority of the Parliament of Canada extends under s. 91(24) of the British North America Act, and where, as here, s. 88 of the Indian Act does not apply, it is one to which provincial legislation can have no application. It therefore follows, in my view, that if the impugned sections of the Indian Act are to be declared inoperative, it must be shown that they have the effect of creating inequality before laws enacted under the legislative authority of the Parliament of Canada (see Bill of Rights s. 5(3)).

The specific ground upon which the Court of Appeal founded its conclusion that the impugned legislation constituted a denial of Mrs. Canard’s “right to equality before the law” is expressed in the following paragraph:

The Bill of Rights proclaims an egalitarian doctrine. It assures Mrs. Canard “without discrimination by reason of race” “the right to equality before the law”. I

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do not think Mrs. Canard can be said to be in a position of equality before the law when that law denies her a civil right which other Canadians, not of her race, enjoy—the right to administer the estate of her husband. The denial of that right is a negation of the principle of equality and places Mrs. Canard in a state of inferiority vis-à-vis other Canadians.

The italics are my own.

In my view the inequality referred to in this paragraph must of necessity be created because of the differences existing between the law of Canada governing the administration of the estates of Indians and the provincial laws in this regard which have general application to other Canadians in the various provinces. The civil right said to be denied to Mrs. Canard “that other Canadians not of her race enjoy”, is a provincial right which is beyond the scope of the legislative authority of the Parliament of Canada, and which cannot therefore, in my view, be invoked in contra-distinction to the provisions of otherwise valid federal legislation so as to result in a denial to the respondent of “equality before the law” within the meaning of s. 1(b) of the Canadian Bill of Rights.

The Bill of Rights was designed to eradicate any discriminatory laws passed by the Parliament of Canada and to guarantee the rights and freedoms therein specified to all Canadian citizens, but these guarantees are expressly declared in the preamble to the Bill to be enacted so as to “reflect the respect of Parliament for its constitution”, and s.91(24) of that document clearly vests in the Parliament of Canada the authority to pass laws concerning Indians which are different from the laws which the provincial legislatures may enact concerning the citizens of the various provinces.

If the provisions of the Indian Act and the regulations made thereunder are to be declared inoperative as offending against the guarantee provided by s. 1(b) of the Bill of Rights wherever they have the effect of treating Indians differently from other Canadians, then it seems to me to follow that eventually all such differences will be eradicated and Indians will in all respects be treated in the same way as their fellow citizens under the law. I cannot believe that the special Indian status so

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clearly recognized in the British North America Act is to be whittled away without express legislation being passed by the Parliament of Canada to that effect.

This is not a case like that of Regina v. Drybones[10], where there was found to be inequality before the law because of the interaction of two federal statutes, nor is it like the case of Attorney General of Canada v. Lavell[11], where it was alleged that the Indian Act by its own provisions created inequality by reason of sex. It appears to me that in the present context there can only be a conflict between the Bill of Rights and the Indian Act if the Indian Act, standing alone or read in conjunction with other federal legislation, can be said to result in a denial to Indians of the equality before the law guaranteed by s. 1(b) of the Bill.

I have had the advantage of reading the reasons for judgment of my brother Beetz and I agree with him that the power to appoint an administrator of the estate of a person who has died intestate is not one which must necessarily be assigned to a court and that there is nothing unconstitutional in Parliament excluding the authority of provincial courts over this subject and bestowing it upon a Minister. I think it of interest also to note that while the provisions respecting the appointment of such an administrator vary from province to province, the ultimate discretion as to such appointment rests with the provincial courts, and although the widow occupies a preferred position in applying for administration of the estate of her deceased husband, it is clear that she is not entitled, as a matter of right to administer the estate of her late husband, and that, depending on the circumstances, the court may, in its discretion, appoint some other person (e.g., the Surrogate Courts Act of Manitoba, R.S.M. 1970, c. C290, s. 31).

For these reasons, as well as for those advanced by Mr. Justice Pigeon, I would dispose of this

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appeal in the manner proposed by my brother Beetz.

PIGEON J.—I agree in the result with Beetz J. I also concur in his reasons for holding that the late Alexander Canard was, at his death, ordinarily resident on a reserve.

On the constitutional question, I adhere to the view that the very object of s. 91 (24) of the British North America Act, 1867 in so far as it relates to Indians, is to enable the Parliament of Canada to make legislation applicable only to Indians as such, and I fail to see any reason why provisions with respect to the administration of the estate of deceased Indians would be excluded from the scope of such authority.

Concerning the contention that such provisions were made inoperative by the Canadian Bill of Rights, I would refer to the paragraph from my reasons in Drybones[12] quoted by Ritchie J. in Lavell[13], at pp. 1361-2. Also, it appears to me that the provisions of the Indian Act vesting in the Minister jurisdiction for the appointment of administrators, cannot be considered as an infringement of the principle of equality before the law for much the same reasons as provisions creating a special jurisdiction respecting juvenile delinquents and authorizing discretionary transfers to the ordinary courts cannot be looked upon as violations of that same rule. In this connection, 1 would refer to the recent judgment of Houlden J. in Re Regina and M.[14] This conclusion is entirely consistent with the judgment of this Court in R. v. Smythe[15] holding that provisions for stiffer penalties depending on the method of prosecution do not infringe equality before the law although the choice of the method depends on executive discretion.

Lastly, concerning the attack against the Minister’s order based on the absence of notice and of any valid reason for not appointing the widow as

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administratrix, I agree with Beetz J.’s reasons for holding that the Courts of Manitoba were without jurisdiction to entertain it.

In the circumstances, I do not wish to discuss the validity of the regulations under the Indian Act, a point which was hardly mentioned at the hearing in this Court and I find it unnecessary to express an opinion on any other point than those above dealt with.

BEETZ J.—The respondent is the widow of the late Alexander Canard, an Indian of the Fort Alexander Indian Reserve No. 3 in the Province of Manitoba. Alexander Canard was killed in a traffic accident on July 6, 1969. He died intestate.

On December 1, 1969, appellant William Barber Rees, the superintendent in charge of the Clandeboye Fisher River Indian District, in the Province of Manitoba, was appointed to be administrator of Alexander Canard’s estate by the Minister of Indian Affairs and Northern Development pursuant to ss. 42 and 43 of the Indian Act, R.S.C. 1952, c. 149, (now R.S.C. 1970, c. I-6). In that capacity, on March 1, 1970, he commenced an action in the Manitoba Court of Queen’s Bench, claiming damages from three defendants in respect of the accident resulting in the death of Alexander Canard.

On March 18, 1970, pursuant to an application made by the respondent, letters of administration were issued to her by the Surrogate Court of the Eastern Judicial District of Manitoba. The Minister of Indian Affairs and Northern Development had not given to that Court his consent to the exercise of testamentary jurisdiction under s. 44 of the Indian Act in relation to the estate of the late Alexander Canard. In her capacity as administratrix of the estate of her late husband, the respondent also commenced an action in the Court of Queen’s Bench on July 6, 1970, against the same three defendants and against a fourth one.

The respondent then commenced against the appellants the action which gave rise to the present

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appeal and which puts before us the issue we have to decide: which of the two administrators, if any, is the lawful one?

The respondent claims a judgment declaring that:

(a) Certain sections of the Indian Act dealing, among other matters, with the administration of the property of Indians who die intestate do not govern the administration of the estate of Alexander Canard because section 4 (3) of the Act provides that these sections do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province; or

(b) Alternatively, if the Indian Act does apply, its sections 42, 43 and 44 relating to descent of property and the administration of estates of Indians are ultra-vires of the Parliament of Canada and contrary to the principles of the Canadian Bill of Rights (1960) S.C. 8-9 Eliz. 11, Cap. 44, and the appointment of Appellant Rees made under these sections is contrary to natural justice and is null and void.

By way of counterclaim, appellants claim:

(a) A Declaratory Judgment declaring the Defendant, William Barber Rees, to be the lawful Administrator of the estate of Alexander Canard, deceased;

(b) A Declaratory Judgment declaring the appointment of Flora Canard as Administratrix of the estate of Alexander Canard, deceased, null and void;

(c) An Injunction restraining the Plaintiff from purporting to act for any purpose as Administratrix of the estate of Alexander Canard, deceased;

(d) An Order for the impoundment of the Letters of Administration purporting to appoint Flora Canard as Administratrix of the estate of Alexander Canard, deceased, and all certified copies thereof.

The action was tried by Matas J. of the Manitoba Court of Queen’s Bench on the basis of an agreed statement of facts filed by the parties and some portions of which I have already paraphrased. The rest of the agreed statement of facts reads as follows:

9. The late Alexander Canard and Mrs. Canard, the Plaintiff commenced to reside on the reserve in the year 1964. In that year they had intermittent residence on the reserve. Mr. Canard and the Plaintiff have made their home on the Reserve since late in 1964. They

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resided on the Reserve from that time until the date of Mr. Canard’s death. In the month of October, 1967 a house was built for Mr. and Mrs. Canard on the Reserve and they occupied it as their home until the date of Mr. Canard’s death and Mrs. Canard has continued to live in the house and still resides there.

10. In the summer of 1967 and 1968, Mr. Canard was employed for several weeks each summer as a helper on a farm at St. Andrews Manitoba, and on those occasions the Canard family would move into the bunkhouse on the farm, complete the work to be done, and then move back to the Reserve.

11. In the year 1969, Mr. Canard was again employed on the same farm, but had moved his family to the farm and commenced his employment only two days before his death. After his death Mrs. Canard moved back to the house on the Reserve.

The first question to be decided is whether the late Alexander Canard who, at the time of his death, resided on a farm at St. Andrews, did not ordinarily reside on the Fort Alexander Indian Reserve. If he did not, the provisions of the Indian Act relating to descent of property, wills, appeals, distribution of property on intestacy (ss. 42 to 50 of the Act) and to some other matters, would not, under s. 4 (3) of the Act, govern the administration of his estate. Section 4 (3) reads as follows:

Sections 114 to 123 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.

The laws of Manitoba would then govern this matter.

Matas J. of the Manitoba Court of Queen’s Bench found that

…Canard was ordinarily resident, with his family, on the farm at St. Andrews in Manitoba for the period during which he worked there. He was ordinarily resident on the reserve the rest of the time. When Canard died, he was not ordinarily resident on the reserve.

He accordingly issued a declaration that ss. 42 to 44 of the Indian Act did not govern the adminis-

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tration of Canard’s estate, and that the appointment of appellant Rees was invalid. He dismissed the counterclaim. Because of his finding on the first issue, Matas J. refrained from expressing a view on the other questions.

However, on this first issue, he was overruled by a unanimous judgment of the Court of Appeal. Dickson J.A., as he then was, speaking for the Court, had this to say on the meaning of the words “ordinarily reside on a reserve”:

The words “ordinarily resident” have been judicially considered in many cases, principally income tax cases or matrimonial causes. Among the former: Thomson v. Minister of National Revenue, [1946] S.C.R. 209, in which Rand J. said p. 224: “It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence”; Levene v. Inland Revenue Comrs., [1928] A.C. 217 in which Viscount Cave said, p. 225: “…I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences”. Among the latter: Stransky v. Stransky, [1954] 2 All E.R. 536, in which Karminsky J. applied the test, p. 541: “where was the wife’s real home?” Perdue J.A., of this Court, in Emperor of Russia v. Proskouriakoff (1908), 18 M.R. 56 at p. 72, held that the words “ordinarily resident” simply meant where the person had “his ordinary or usual place of living”.

Applying any of these tests it would seem to me that at the time of his death Alexander Canard was ordinarily resident on the reserve. He normally lived there, with some degree of continuity. His ordinary residence there would not be lost by temporary or occasional or casual absences.

When one seeks to interpret the phrase “ordinarily resident” within the context of the Indian Act one is reenforced in the view which I have expressed. Section 77 (1) of the Act gives a band member “ordinarily resident on a reserve” the right to vote for the chief of the band and for councillors. Parliament could not have intended that an Indian would lose such voting rights, and lose the right to have his children schooled pursuant to ss. 114 et seq. if he left the reserve during the summer months to guide or gather wild rice or work on a nearby farm.

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The words “ordinarily resident” as used in s. 77 of the Act have been interpreted by Order in Council SOR/54-425, P.C. 1954-1367, which establishes Rules Governing Band Elections, a subject covered in more general terms in s. 77 of the Act. Admittedly rules contained in Regulations affecting one section of the Act do not govern the meaning to be given to the words in a different section of the Act. However, I am content to adopt the rules found in those Regulations as appropriate for guidance in interpreting the words “ordinarily resident” as found in s. 4 (3) of the Act. Such rules accord with the general objects sought to be achieved by the Indian Act and there is the added advantage of maintaining consistency in the interpretation to be given to the words “ordinarily resident” whether in s. 77 or s. 4 (3) of the Act.

These rules read:

“3. The following rules apply to the interpretation of the words “ordinarily resident” in respect of all matters pertaining to the right of an elector to vote in an election:

(a) Subject to the other provisions of this section, the question as to where a person is or was ordinarily resident at any material time or during any material period shall be determined by reference to all the facts of the case;

(b) The place of ordinary residence of a person is, generally, that place which has always been, or which he had adopted as, the place of his habitation or home, whereto, when away therefrom, he intends to return and, specifically, where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where that person sleeps;

(c) A person can have one place of ordinary residence only, and he shall retain such place of ordinary residence until another is acquired;

(d) Temporary absence from a place of ordinary residence does not cause a loss or change of place of ordinary residence.”

If one applies the foregoing rules, one would, I think, conclude that the late Mr. Canard was ordinarily resident on the Reserve.

1 hold that the late Mr. Canard at the time of his death, although resident on the farm at St. Andrews, was ordinarily resident on the Fort Alexander Reserve, and therefore s. 4 (3) of the Indian Act does not apply.

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On this point, I agree with the Court of Appeal. There is little I can add to the reasons given by Dickson J.A. except perhaps that while it may be possible for a person to have more than one residence, still, in contradistinction to what is out of the ordinary, the words “ordinary” or “ordinarily”, unless the context indicates otherwise, do convey a meaning of uniqueness. In this instance where ss. 42 to 51 of the Indian Act constitute a veritable code of laws relating to descent of property, wills and intestacy, applicable to Indians, as opposed to provincial laws, the context is more than compatible with the uniqueness of the ordinary residence. It would be a surprising result if the distribution of the late Alexander Canard’s property were to take place in accordance with the intestacy laws of Manitoba rather than under the Indian Act simply because Mr. Canard sought summer employment on a farm, established a temporary residence outside the reserve and happened to die during this period. It could not have been intended that the laws governing the descent of property of an Indian should vary with such casual migrations outside the reserve.

The next point is whether ss. 41 to 44 of the Indian Act, apart from the question of the effect upon them of the Canadian Bill of Rights, are ultra-vires of the Parliament of Canada. This point has not been pressed before us but it appears to have been fully argued before the Court of Appeal which dealt with it in some detail. The respondent and the intervenants refer to it in their factums. The respondent’s factum submits that “matters testamentary are property and civil rights” and that “the administration of the estate is therefore a disposition of property and civil rights”.

It might be useful that ss. 42 to 44 be quoted in full, together with s. 47. They are as follows:

DESCENT OF PROPERTY

42. (1) Unless otherwise provided in this Act, all jurisdiction and authority in relation to matters and

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causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister, and shall be exercised subject to and in accordance with regulations of the Governor in Council.

(2) The Governor in Council may make regulations for providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.

(3) Regulations made under this section may be made applicable to estates of Indians who died before, on or after the 4th day of September 1951.

43. Without restricting the generality of section 42, the Minister may

(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;

(b) authorize executors to carry out the terms of the wills of deceased Indians-;

(c) authorize administrators to administer the property of Indians who die intestate;

(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and

(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

44. (1) The court that would have jurisdiction if the deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred upon the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that Court.

(2) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to such court any question arising out of any will or the administration of any estate.

(3) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve.

47. (1) A decision of the Minister made in the exercise of the jurisdiction or authority conferred upon him

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by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Exchequer Court of Canada, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal.

(2) The judges of the Exchequer Court may make rules respecting the practice and procedure governing appeals under this section.

The Court of Appeal, Dickson J.A. speaking on its behalf, took the view, on the basis of previous authority, that ss. 42 et seq., and more particularly ss. 42 to 44 come strictly within the class of subjects of “Indians, and Lands reserved for the Indians” upon which Parliament has exclusive legislative authority under s. 91(24) of the British North America Act, 1867, and that this included the property and civil rights of Indians and therefore wills, devolution of estates and surrogate procedures.

Dickson J.A. added:

Counsel for Mrs. Canard argued that if ss.42 et seq. are within Head 24, of s.91 of the British North America Act, 1867, they are none the less invalid for the reason that they effect an ouster of the jurisdiction of a provincial court. They do indeed effect such an ouster but there is ample authority to the effect that Parliament has the right to establish courts having exclusive jurisdiction in a field that is within the jurisdiction of Parliament and to oust the jurisdiction of provincial courts in that field. The only question is whether the words by which that object is sought to be achieved are apt for the purpose. As long ago as 1879 in Valin v. Langlois (1879), 3 S.C.R.1, Taschereau J. said, p. 75:

“…cannot Parliament, in virtue of sec. 101 of the act create new courts of criminal jurisdiction, and enact that all crimes, all offences shall be tried exclusively before these new courts? I take this to be beyond controversy.”

and at p. 76:

“I also think it clear, that Paraliament can say for instance, that all judicial proceedings on promissory notes and bills of exchange shall be taken before the Exchequer Court or before any other Federal Court. This would be certainly interfering with the jurisdiction of the Provincial Courts. But, I hold that it has

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the power to do so quoad all matters within its authority.”

Section 101 of the British North America Act, 1867, provides that the Parliament of Canada may from time to time provide for the establishment of any additional courts for the better administration of the laws of Canada and Parliament has in the past acted under this power in establishing the Income Tax Appeal Board, Admiralty Courts, Bankruptcy Courts, Labour Board, Immigration Appeal Board and the like.

Dickson J.A. mentioned several authorities supporting the validity of the ouster of provincial courts’ jurisdiction in federal matters. He concluded:

Counsel then submitted that if ouster of jurisdiction is possible, there is nevertheless a distinction between transferring jurisdiction from one court to another court or to a Board, and transferring it from a court to a Minister of the Crown; that the former may be within the federal power but the latter is not. I cannot accept this argument. Acting within the area of its legislative competence Parliament may limit or oust the jurisdiction of a provincial court and give the jurisdiction which would otherwise reside within that court to a federal court or to a federal board or, if Parliament so wishes, to a Minister of the Crown.

I am satisfied that in enacting ss. 42 et seq. of the Indian Act, Parliament was acting within the powers given to Parliament by the British North America Act, 1867.

We are not called upon to decide the constitutional validity of ss. 42 et seq. in all their substantive and jurisdictional ramifications. Yet, for the purposes of this case, I find myself in agreement with the general propositions that testamentary matters and causes with respect to deceased Indians come within the class of subjects of “Indians and Lands reserved for the Indians” and that Parliament can constitutionally oust the jurisdiction of provincial courts in these as well as in other federal matters and vest it in a federal agency, subject perhaps to an obvious qualification: while Parliament has the power to establish courts for the administration of the laws of Canada, it does not necessarily follow that it can clothe a Minister, or any official or board of a non-judicial nature

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with all the functions of a superior court; the powers of Parliament are limited by the wording of s. 101 of the British North America Act, 1867, as well as by the federal and fundamental nature of the Constitution which implies an inherent and entrenched jurisdiction in the courts to adjudicate in constitutional matters.

However, the power to appoint an administrator of the estate of persons who have died without leaving a will is not one which must necessarily be assigned to a court. Historically, it is derived from the royal prerogative. It belonged to the King, as parens patriae and general trustee of the kingdom and was at first exercised by the King’s ministers. It has long been exercised by ecclesiastical courts until by statute it was vested in the Courts of Probate in England, in 1857, and earlier in some of the colonies: the Probate and Surrogate Courts of Ontario, for instance, date from 1793 but were apparently presided by the Governor. (R.E. Kingsford, Executors and Administrators, 2nd ed., Toronto, 1914; A.R. Ingpen, Executors and Administrators, Canadian edition, Toronto, 1909, pp. 94 and ff.; Parry, The Law of Succession, 6th ed., 1972, London, pp. 170 and ff.; Blackstone’s Commentaries, Book II, c. XXXII). It may also be noted, as a matter of historical curiosity, that in 1867, 1869 and 1872 the Commissions of the first three Governors-General after Confederation, expressly authorized them to exercise all such powers as the Queen was entitled to exercise in Canada “in respect of granting Licences of Marriage, Letters of Administration and Probate of Wills”. This power is quasi-administrative in its purpose. It involves a substantial degree of discretion although such discretion must be exercised judicially. In a matter of exclusive federal competence, such as “Indians and Lands reserved for the Indians” there is nothing unconstitutional in Parliament excluding the authority of provincial courts over this subject and bestowing it upon a Minister, particularly if it makes it subject to a form of judicial control as is provided by s. 47 of the Indian Act.

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The third question to be decided is whether the impugned sections of the Indian Act, (ss. 42, 43 and 44) are in conflict with the Canadian Bill of Rights.

The Court of Appeal held that s. 43 of the Indian Act is “inoperative to the extent that, in violation of the Bill of Rights guaranteeing the right to equality before the law without discrimination by reason of race, it denies Mrs. Canard administration of the estate of her late husband”.

It will have been noted that the Court of Appeal rendered its judgment after Regina v. Drybones[16], but before the decision of this Court in A.G. of Canada v. Lavell and Isaac et al v. Bédard[17]. In both these cases as in the present one, the impact of the Canadian Bill of Rights upon certain provisions of the Indian Act had to be assessed. More particularly, the complex notion that every individual has the right to equality before the law and the protection of the law without discrimination by reason of race or sex had to be explored in its relationship with Indian status.

Status has been defined in various ways. The Shorter Oxford Dictionary describes it as:

…the legal standing or position of a person as determined by his membership of some class of persons legally enjoying certain rights or subject to certain limitations.

Narrower legal definitions of status have been proposed such as that of R.H. Graveson, in Status in the Common Law, 1953, p. 2:

…a special condition of a continuous and institutional nature, differing from the legal position of the normal person, which is conferred by law and not purely by the act of the parties, whenever a person occupies a position of which the creation, continuance or relinquishment and the incidents are a matter of sufficient social or public concern.

The legislative history of the western world has recognized a great diversity of status among which

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those of married women, infants, aliens, villeins, nobles, slaves, outlaws, merchants, illegitimate children, lunatics, bankrupts, clerics, etc. Flowing from status are special rights, duties, privileges or incapacities which are the consequences of status and which are sometimes called its incidents. While, conceivably, status can be considered apart from its incidents, it may be difficult to do so in many instances lest a particular status be emptied of any significant content.

The principle of equality before the law is generally hostile to the very nature of status and it is no easy task to reconcile the two in Canada when the one is enshrined in a quasi‑constitutional statute and the other forms part of the fundamental law of the land. This the Courts have attempted to do in Drybones and Lavell.

I take the following principles to be settled by the decision of this Court in R. v. Drybones[18].

(1) The Canadian Bill of Rights is more than a canon of interpretation, the terms of which would give way to any contrary legislative intent. It renders inoperative any law of Canada that cannot be construed and applied so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized by the Bill, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Bill, and it confers upon the Courts the responsibility to declare any such law inoperative.

(2) Equality before the law without discrimination by reason of race, national origin, colour, religion or sex does not simply mean equality with every other person within the class to whom a particular law relates: such a meaning would render possible all forms of prohibited discrimination so long as the other members of a class were also being discriminated against in the same way.

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(3) An Indian is being denied equality before the law contrary to the Canadian Bill of Rights if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without committing any offence or being made subject to any penalty.

These principles were reaffirmed in this Court by eight judges out of nine in the Lavell case. (Pigeon J. took the position that he could not disagree with the view he had expressed in Dry bones).

Considering the division of opinion in Lavell, it is admittedly difficult, if it is possible, to formulate the ratio decidendi of the case. Still, in the light of the opinion of Ritchie J. whose conclusions are those of the majority, I understand Lavell to have primarily decided that Parliament must not be deemed to have subjected to the Canadian Bill of Rights the authority vested upon it under s. 91 (24) of the British North America Act, 1867, exclusively to make laws for “Indians and Lands reserved for the Indians”, in so far as this authority, being of a special nature, could not be effectively exercised without the necessarily implied power to define who is and who is not an Indian and how Indian status is acquired or lost. In so defining Indian status, Parliament could, without producing conflict with the Canadian Bill of Rights, establish between various sorts of intermarriages, such distinctions as could reasonably be regarded to be inspired by a legitimate legislative purpose in the light for instance of long and uninterrupted history.

Laskin J., as he then was, whose opinion was concurred in by three other judges, took the view that the Canadian Bill of Rights “does not differentiate among the various heads of legislative power” and that “it embraces all exercises under whatever head or heads they arise”.

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The British North America Act, 1867, under the authority of which the Canadian Bill of Rights was enacted, by using the word “Indians” in s. 91(24), creates a racial classification and refers to a racial group for whom it contemplates the possibility of a special treatment. It does not define the expression “Indian”. This Parliament can do within constitutional limits by using criteria suited to this purpose but among which it would not appear unreasonable to count marriage and filiation and, unavoidably, intermarriages, in the light of either Indian customs and values which, apparently were not proven in Lavell, or of legislative history of which the Court could and did take cognizance.

Of course, it is possible to legislate in several ways with respect to Indians without impinging upon the principle of equality and other principles incorporated in the Canadian Bill of Rights, and this is a point which has also been made by Laskin J. in Lavell where he wrote that “discriminatory treatment on the basis of race or colour or sex does not inhere in that grant of legislative power”. Nevertheless, it is not easy so to legislate irrespective of race or sex when it is race which has to be defined and, assuming it were possible if one were to start afresh, it may be next to practically impossible so to do for an already existing group which has been sociologically and legislatively defined since before Confederation. The alternative would appear to have been the abolition of the present Indian status or of any Indian status. A very real issue also in Lavell was not only whether a fundamental change in Indian status could be done for one or two individuals, on an ad hoc basis and without risk of social disruption but whether, as a matter of principle, it should be done on a possibly large scale, in one stroke, (since the courts are without much power to insure transitory stages for any reform that they be called to bring about), regardless of local wishes, desires or preparation. What was decided in Lavell finally was that some exclusive rights or privileges such as registration or registrability and the use and benefit of the reserves can be made incidents of Indian status without conflict with the Canadian Bill of Rights.

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But it is to be noted that these incidents are intimately connected with Indian status. They are not remote or indirect incidents. Registration is the administrative instrumentality whereby Indian status is acknowledged and the right to the exclusive use of the reserve is a necessarily incidental consequence of the idea that certain lands are “reserved” for the Indians.

The issue in Lavell is commonly taken to be that of discrimination by reason of sex and, admittedly, it was an essential part of it. However, it was not simply a matter of discriminating between men and women, but of distinguishing between married men and married women, Indian married men and Indian married women, and an Indian male married to a non-Indian woman, and an Indian female married to a non-Indian male. Whether or not it compounded the discrimination, as Laskin J. put it, it certainly did not simplify the problem. But, through and above the question of sex and marriage, what was really at stake was the present Indian status and some of its unseverable incidents.

By contrast, it is not evident that the litigious question in Drybones had to do with Indian status or even with the incidents of Indian status. Dry-bones, in the light of Lavell, may be rationalized in more than one way: for instance either the attaching of a particular consequence to Indian status could not be characterized as a provision in pith and substance relating to Indians and lands reserved for the Indians but as the use of other federal powers such as the power to enact penal laws for the promotion of temperance and the prevention of drunkenness which would not stand on the same footing vis-à-vis the Canadian Bill of Rights as the power to make laws for Indians and lands reserved for the Indians; or, assuming a particular consequence of Indian status could be said to pertain to “Indian” legislation, it would not be beyond the reach of the Canadian Bill of Rights, if it was so remote or indirect an incident as not to be indispensable to the effective exercise

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of the federal power under 91(24) of the British North America Act, 1867. In any event, it was made clear in Drybones that Parliament could not, without conflict with the Canadian Bill of Rights, purport to attach just any consequence to Indian status.

The present case differs from both Drybones and Lavell. What is in issue is neither the definition of Indian status nor, directly at least, the attachment of some incapacity to Indian status, such as testamentary incapacity.

Some arguments were addressed to us on this point tending to show that the Indian Act does not “virtually vitiate the testamentary capacity of Indians” as had been said in the Court of Appeal. However, the case was not fully argued on such a broad basis and I do not propose to deal with it in this manner. This would be unnecessary since the point we have to answer is a narrower one and is, in any event, severable from the rest of the impugned sections of the Indian Act: we are not confronted with a will, for this is a case of intestacy, nor with the question of distribution of property on intestacy. The questions before us are whether the vesting in the Minister of certain parts of the administration of the Indian Act, of itself, creates some inequality incompatible with the Canadian Bill of Rights and whether, in this particular instance, the Indian Act has actually been administered in conformity with the principles of the Canadian Bill of Rights.

In bestowing upon a Minister rather than upon a provincial Surrogate Court the power to appoint an administrator to the estate of a deceased Indian, the Indian Act evidently creates for Indian estates a forum which differs from the forum which would be competent in other testamentary causes. But in my view, the establishment of a special forum does not of itself entail a form of undue discrimination. If it were otherwise, Parliament, by enacting the Canadian Bill of Rights, would have purported to bind itself not to exercise at all, except in accordance with the manner and

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form prescribed by the Canadian Bill of Rights, a power which it solely possesses under the Constitution, namely the power to create a forum for the administration of its laws and more particularly a forum for the administration of testamentary matters and causes with respect to deceased Indians. Such a consequence would be tantamount to an amendment of the British North America Act, 1867. It would also be contrary to the decision of this Court in Lavell with this difference that Lavell dealt with a matter of substantive law whereas the respondent in this case complains that she is being denied access to a provincial Court and that the determination of some of her rights depends upon the Minister. Furthermore, the power bestowed upon the Minister by the Indian Act to appoint administrators of Indian estates, given its nature and history, is a power perfectly capable of being exercised by him in a judicial or quasi-judicial manner, under judicial control, in accordance with the due process of law and with standards applicable to other Canadians as well as with all the requirements of the Canadian Bill of Rights.

I see nothing in ss. 42 and 43 of the Indian Act which prevents the Minister from exercising in this manner the surrogate power devolved upon him. To be more specific, there is nothing in ss. 42 and 43 of the Indian Act, the way I read them, which prevents the Minister on account of the respondent’s race, from authorizing her to administer the estate of her late husband, and nothing which deprives the respondent from the capacity to receive such authorization. The Act empowers the Minister to appoint anyone, including the respondent. In other words, if the respondent has been the victim of racial discrimination, such discrimination was administrative in nature; it does not flow from the Indian Act. The Indian Act in this respect is capable of being construed and applied so as to provide for Indians a treatment similar to that reserved for their fellow Canadians. Accordingly, it is not in conflict with the Canadian Bill of Rights and no part of it ought to be declared inoperative for the purpose of this case.

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Although under the Indian Act the respondent was capable of being appointed administratrix of her late husband’s estate by the Minister, the fact remains that she was not. The outstanding question is whether the Act has been applied in accordance with the principle of equality before the law.

The sections of the federal statute we are concerned with relate to the administration of a private estate a matter which, were it not for the fact that this estate is that of a deceased Indian, would normally fall under provincial jurisdiction. Accordingly, in a case such as the present one, in order to determine whether the principle of equality before the law has been complied with in the administration of federal law (or, in other words, whether an Indian is not deprived of a right generally recognized to other Canadians), some reference to the standards of provincial laws and practices may be unavoidable as there is no other basis for comparison except perhaps the ordinances of the Yukon and the Northwest Territories, which, under the Canadian Bill of Rights, are laws of Canada. It could be argued that a reference to such a variety of standards might entail complications and variations in the administration of the Indian Act across Canada and, indeed, I do not wish to suggest that Parliament, in legislating on testamentary matters and causes with respect to Indians, or the Minister, in administering the Indian Act, are bound to follow all provincial enactments and practices over which they have no control in any event: this they might not be able to do, they might not find desirable to do and, in my view, they are not required to do in order to comply with the Canadian Bill of Rights. But there may well emerge from the variety of provincial laws on these matters a body of general rules common to all or to many provinces, which for want of other criteria and as a sort of jus gentium is susceptible to provide general minimum standards to which reference can be made for the purpose of deciding how the principle of equality can be safeguarded.

A proposition to which I cannot subscribe in its generality however is one which has been put to us by appellants and according to which Indians are

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not placed in a position of inequality provided they are treated equally vis-à-vis other Canadians “who are also subject to federal law”. Whatever else may be meant by this proposition it would appear to me that, when applied to Indians, it would allow all sorts of discriminations provided all Indians were being equally discriminated against; this would be contrary to the decision of this Court in Drybones.

It was argued on behalf of the appellants that no one had a “right” to be appointed administrator of an estate. But this is not a reasoning I would be prepared to entertain: under normal circumstances, and according to rules in force in most provinces, the respondent, as widow of the deceased, had every reason to expect the appointment.

In Manitoba more “particularly, the matter is governed by the Surrogate Courts Act, R.S.M. 1970, c. C290, s. 31, which provides that:

Where, by reason of special circumstances, it appears to the court to be expedient to grant administration to some person other than the person who, if this Act had not been passed, would be entitled to a grant, the court, in its discretion, may grant administration to him upon the giving of such security, if any, as the court directs; and such administration so granted may be limited as the court thinks fit.

(Italics are mine.)

Some person is therefore “entitled” to be granted the administration of the estate when the deceased dies intestate, and that person, according to 21 Henry VIII, c. 5, s. 2, is “the widow of the same person deceased, or… the next of his kin, or… both, as by the discretion of the… Ordinary shall be thought good”.

Such “entitlement” may not be a right, strictly speaking, but I would be prepared to regard it as having colour of right and as not being capable of frustration unless good cause be shown why it should be defeated, and unless it be defeated by a judicially exercised discretion.

In referring to the Manitoba Surrogate Courts Act and to the statute of 21 Henry VIII, c. 5, I

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should not be taken to mean that the Minister was bound by the Canadian Bill of Rights to adhere to all the provisions of such laws which, again, I quote as purely illustrative of a relatively general practice.

I do not believe either that the laws of Manitoba govern the matter under s. 88 of the Indian Act. This section reads as follows:

88. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

In my view, the appointment of an administrator to the estate of an Indian who has died intestate is a matter for which “provision is made” by ss. 42, 43 and 44 of the Indian Act; this matter accordingly, does not come under s. 88.

The reasons why the respondent was not appointed administratrix by the Minister are not before us. In the course of argument, the question was asked as to what was the practice of the Department of Indian Affairs and Northern Development in these matters. But counsel for the appellants could not enlighten us. We could not be told whether an Indian widow or widower had ever been appointed once to be administrator of his spouse’s estate, or whether the practice is common or unheard of and what the reasons are for such a practice whatever it is.

It may be that the reasons why Mrs. Canard was not appointed administratrix of her late husband’s estate are to be found in the Regulations made pursuant to s. 42 of the Indian Act (SOR/ 55-285, P.C. 1955-1083). Their relevant provisions are as follows:

2. In these regulations,

(b) “administrator” means a person appointed by the Minister to administer the property of deceased Indians and includes a person who by reason of his office, is instructed to initiate or conclude the administration of an estate;

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4. (1) With the notice of death or as soon thereafter as possible, the Superintendent shall forward an itemized statement of inventory in the form prescribed, to the Minister, showing all the real and personal property of the deceased, the value of each item estimated as closely as possible, as well as all debts of or claims against the estate known at such time; names of all persons entitled to share in the estate and all such other information as may be required by the Minister.

(2) For all the purposes of this section, the Superintendent shall act in the capacity of an administrator and shall take all necessary steps for the proper safekeeping or safeguarding of the assets of the deceased and for the collection of moneys due or owing to the deceased and shall dispose of the moneys so collected or held as the Minister may direct.

6. With the application under section 5, or with the statement of inventory if there is no will, the Superintendent shall forward to the Minister an application for administration in the form prescribed.

11. (1) The Minister may appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates and of all the assets of deceased Indians, and may provide that for the purposes of closing an estate the administration thereof be transferred to the Superintendent of the Reserve to which the deceased belonged.

(2) The administrator appointed pursuant to this section or the person acting as administrator in accordance with section 4 shall be responsible to the Minister for the proper preparation of the inventory, the giving of all notices and the carrying out of all inquiries and duties that may be necessary or be ordered with respect to any matter referred to in these regulations.

(14) Generally, an administrator shall have all such powers as are required for the carrying out of the duties herein specified, and shall carry out any order or direction and abide by any finding made or given by the Minister with respect to any matter and cause testamentary.

Read by themselves and apart from the Act, these Regulations would appear to give the Minister no choice, where an Indian died intestate, but to leave the administration of his estate to the officer of the Indian Affairs Branch appointed as

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the administrator of estates of deceased Indians or to direct that the administration of such an estate be transferred to the Superintendent of the Reserve to which the deceased belonged.

If that be the case, the effect of the Regulations would be to prevent all Indians in all circumstances from being appointed administrators of the estate of an Indian who died intestate and I would have grave doubts as to whether the Regulations are not pro tanto rendered inoperative by the Canadian Bill of Rights.

However, this would not deprive the Minister of his jurisdiction, which he could still exercise in a quasi-judicial manner and in accordance with the requirements of the Canadian Bill of Rights, and this would not validate Mrs. Canard’s appointment by the Surrogate Court, if it were otherwise invalid.

Also, when the Regulations are read in conjunction with s. 44(2) of the Act, it would seem that Indians are not necessarily precluded from being appointed administrators since the Minister may direct that an application for letters of administration shall be made to the court that would have jurisdiction if the deceased were not an Indian. (It is to be noted, on the other hand, that a decision of the Minister under s. 44 of the Act is not one which s. 47 mentions as being appealable to the Federal Court).

None of these possible constructions and their consequences was discussed before us; the Regulations were hardly mentioned at all during the argument.

Be that as it may, in her statement of claim, the respondent alleges that she was not even notified of the appointment of appellant Rees as administrator by the Department of Indian Affairs and Northern Development. This forms no part of the agreed statement of facts and is denied in the appellant’s counterclaim but it was taken for granted by the Court of Appeal.

While there might have been reasons why the respondent should not have been appointed administratrix, why another next of kin should not

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have been appointed either and why a public servant was appointed in their stead, yet, the respondent was judged capable of being so appointed by a court which is in the habit of deciding these matters.

Given all the circumstances of this case, I might have been inclined to form the opinion that the burden of showing cause why the respondent should not be appointed administratrix was a burden which rested upon the appellants: in view of their failure to discharge that burden, the appointment of appellant William Barber Rees could then have been deemed to have been made contrary to the principles of fundamental justice and to the Canadian Bill of Rights and the matter could have been referred back to the Minister for determination.

I am however prevented from taking this course by what appears to be an insuperable jurisdictional difficulty. Once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba. It is true that the latter’s jurisdiction had not been questioned by the appellants, presumably because the action taken by the respondent challenged the constitutional validity and the operation of the Indian Act and the Manitoba Courts had jurisdiction to adjudicate upon this issue as well as upon appellants’ counterclaim. The Courts of Manitoba could not on the other hand hear an appeal from the Minister’s decision or otherwise review it. We sit in appeal from the decision of the Manitoba Court of Appeal and our own jurisdiction is limited to giving the judgment that it could and should have given, (Supreme Court Act, R.S.C. 1970, c. S-19, s. 47), but not the one that could and should have been given had the issue been raised in the Federal Court.

As to the letters of administration issued to the respondent by the Surrogate Court of the Eastern Judicial District of Manitoba, their nullity makes no doubt. The Court which issued them was without jurisdiction to do so as this jurisdiction is

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vested exclusively in the Minister by ss. 42 and 43 of the Indian Act and could not, under s. 44, be exercised by the Surrogate Court without the consent of the Minister. This consent was not given.

I would allow the appeal, set aside the judgments of the Manitoba Court of Appeal and of the Manitoba Court of Queen’s Bench, dismiss respondent’s action and maintain appellants’ counterclaim except para. (a) of their counterclaim on which I would refrain from expressing a view.

As to costs, we were informed that the Crown would pay the party and party costs of the respondent before this Court and would forego all costs in the lower Courts. I would so order.

Appeal allowed, LASKIN C.J. and SPENCE J. dissenting.

Solicitor for the defendants, appellants: D.S. Thorson, Ottawa.

Solicitor for the plaintiff, respondent: William Rachman, Winnipeg.