Supreme
Court of Canada
St.
Catharines Milling and Lumber Co. v. R, (1887) 13 S.C.R. 577
Date:
1887-06-20
The
St. Catharines Milling and Lumber Company, (Defendants) Appellants;
and
The Queen,
on the Information of the Attorney General for the Province of Ontario, (Plaintiff)
Respondent.
1886: November 19, 20 &
22; 1887: June 20.
Present: Sir W.J. Ritchie
C.J. and Strong, Fournier, Henry Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR ONTARIO.
Indian Lands—Title to—Right of Occupancy—Lands reserved for Indians—B.N.A. Act sec. 91,
subsec. 24—Sec. 92,
subsec. 5—Secs. 109, 117.
The lands within the
boundary of Ontario in which the claims or rights of occupancy of the Indians
were surrendered or became extinguished by the Dominion Treaty of 1873, known
as the North West Angle Treaty, No. 3, form part of the public domain of
Ontario and are public lands belonging to Ontario by virtue of the provisions
of the British North America Act.
Only lands specifically set
apart and reserved for the use of the Indians are “lands reserved for Indians” within the meaning of
[Page 578]
sec. 91, item 24 of
the British North America ActSupreme Court of Canada.
The judgment of Boyd C. in
the Chancery Division of the High Court of Justice for Ontario and of the Court of Appeal
for Ontario affirmed. Strong and
Gwynne JJ. dissenting,
APPEAL from a decision of
the Court of Appeal for Ontario4, affirming the judgment of the
Chancery Division3, which restrained the defendants from cutting
timber on lands in Ontario claimed to be public lands of the Province.
This
was an action by Her Majesty on the information of the Attorney General for the
Province of Ontario against the St. Catharines Milling and Lumber Co. to
prevent them from cutting and carrying away timber on lands in Ontario, lying
south of Wabigoon Lake in the District of Algoma. It was claimed by the
Attorney General that the lands in question were public lands of the Province,
and that the defendants were trespassers and wrongdoers in cutting such timber.
The
defendants justified under a license from the Dominion Government and pleaded
the following special defence:
7. “The defendants say that the
tract of land in question, together with the growing timber thereon, was, with
other lands in the said district or territory, until recently claimed by the
tribes of Indians who inhabited that part of the Dominion of Canada, and that
the claims of such tribes of Indians have always
[Page 579]
been
recognized, acknowledged, admitted and acquiesced in by the various Governments
of Canada and Ontario, and by the crown, and that such Indian claims are, as to
the lands in question herein, paramount to the claim of the Province of
Ontario, or of the crown as represented by the Government of Ontario, and that
the Government of the Dominion of Canada, in consideration of a large
expenditure of money made for the benefit of the said Indian tribes, and of
payments made to them from time to time, and for divers other considerations,
have acquired the said Indian title to large tracts of lands in the said
territory, including the lands in question in this action, and the timber
thereon, and by reason of the acquisition of the said Indian title, as well as by
reason of the inherent right of the crown, as represented by the Government of
Canada, the Dominion of Canada, and not the Province of Ontario, has the right
to deal with the said timber lands, and at the time of granting the said leave
and license had and still have full power and authority to confer upon the
defendants the rights, powers and privileges claimed by them, as aforesaid,
under which the said pine timber was cut.”
The lands
in question formed a portion of the territory declared, by what is known as the
“Boundary Award,” to be geographically
within the limits of the Province of Ontario, and in the year 1873 they were
surrendered by the Indians to the Government of Canada by virtue of a treaty
known as the North West Angle Treaty No. 3.
The
question to be decided was whether under the provisions of the B.N.A. Act these
lands belonged to the Province of Ontario or the Dominion.
The
action was tried in the Chancery Division before Boyd C. who decided in favor
of the Province, and his decision was affirmed by the Court of Appeal. The
[Page 580]
defendants
appealed to the Supreme Court of Canada from the decision of the Court of
Appeal.
McCarthy Q.C. and Creelman
for the appellants.
Before
discussing this case on the basis of the B.N.A. Act it is proposed to show,
historically, that the Indians had a title to this land which never passed to
the Province.
All
this country was once occupied by Indian tribes. On its discovery by Europeans
the discoverers acquired a right of property in the soil provided that
discovery was followed by possession. See Sir Travers Twiss Law of Nations ch.
headed “Right of Acquisition,”, as to the contest between
England and the United States with reference to the mouth of the Columbia.
In case
of conquest the only test as to the title of the conqueror is found in the
course of dealing which he himself has prescribed. When he adopts a system that
will ripen into law he settles the principle on which the conquered are to be
treated.
In
Canada, from the earliest times, it has been recognized that the title to the
soil was in the Indians, and the title from them has been acquired, not by
conquest, but by purchase.
In 1763
a royal proclamation was issued dividing the British possessions in America
into separate governments and defining the powers of each. The rights of the
Indians are conserved therein as the following extract will show:—
And
whereas it is Just and Reasonable and Essential to Our Interests and the
Security of Our Colonies that the several Nations or Tribes of Indians with
whom we are connected and who live under Our protection should not be molested
or disturbed in the possession of such parts of Our Dominions and Territories
as, not
[Page 581]
having
been ceded to or purchased by Us are reserved to them or any of them as their
hunting grounds, We do therefore with the Advice of Our Privy Council declare
it to be Our Royal Will and Pleasure that no Governor or Commander-in-Chief in
any of Our Colonies of Quebec, East Florida or West Florida, do presume upon
any pretence whatever to grant warrants of Survey or pass any Patents for Lands
beyond the bounds of their respective Governments as described in their
Commissions; as also that no Governor or Commander‑in‑Chief of any
of Our other Colonies or Plantations in America do presume for the present, and
until Our further pleasure be known, to grant warrants of Survey, or pass
Patents for any Lands beyond the head or sources of any of the Rivers which
fall into the Atlantic Ocean from the West and North-west, or upon any lands
whatever, which not having been ceded to or purchased by Us as aforesaid, and reserved
to the said Indians or any of them.
And we
do further declare it to be our royal will and pleasure, for the present, as
aforesaid, to reserve under our Sovereignty, protection and dominion, for the
use of the said Indians, all the land and territories not included within the
limits of our said three new Governments, or within the limits of the territory
granted to the Hudson’s Bay Company; as also all
the land and territories lying to the westward of the sources of the rivers
which fall into the sea from the west and north-west as aforesaid; and we do
hereby strictly forbid, on pain of our displeasure, all our loving subjects
from making any purchases or settlements whatsoever, or taking possession of
any of the lands above reserved, without our especial leave or license for that
purpose first obtained.
And we
do further strictly enjoin and require all persons whatsoever, who have either
wilfully or in-
[Page 582]
advertently
seated themselves upon any lands within the countries above described, or upon
any other lands which, not having been ceded to or purchased by us, are still
reserved to the said Indians as aforesaid, forth-with to remove themselves from
such settlements.
“And whereas great frauds
and abuses have been committed in the purchasing lands of the Indians, to the
great prejudice of our interests, and to the great dissatisfaction of the said
Indians, in order therefore to prevent such irregularities for the future, and
to the end that the Indians may be convinced of our Justice and determined
resolution to remove all reasonable cause of discontent, we do, with the advice
of our Privy Council, strictly enjoin and require, that no private person do
presume to make any purchase from the said Indians of any lands reserved to the
said Indians within those parts of our colonies where we have thought proper to
allow settlement; but if at any time any of the said Indians should be inclined
to dispose of the said lands, the same shall be purchased only for us, in our
name, in some public meeting or assembly of the said Indians to be held for
that purpose by the Governor or Commander‑in-Chief of our colony
respectively within which they shall lie; and in case they shall lie within the
limits of any proprietaries conformable to such directions and instructions as
we or they think proper to give for that purpose. And we do, by the advice of
our Privy Council, declare and enjoin, that the trade with the said Indians
shall be free and open to all our subjects whatever, provided that every person
who may incline to trade with the said Indians do take out a license for
carrying on such trade from the Governor or Commander‑in‑Chief of
any of our colonies respectively where such person shall reside, and also give
security to observe such regulations as we shall at any time think fit, by
ourselves or
[Page 583]
commissaries
to be appointed for this purpose, to direct and appoint for the benefit of the
said trade; and we do hereby authorize, enjoin and require the Governors and
Commanders‑in‑Chief of all our Colonies respectively, as well as
those under our immediate government, as those under the government and
direction of proprietaries, to grant such licenses without fee or reward,
taking especial care to insert therein a condition that such license shall be
void, and the security forfeited, in case the person to whom the same is
granted shall refuse or neglect to observe such regulations as we shall think
proper to prescribe as aforesaid.”
William
Penn was not the first to acquire Indian lands by purchase. He came to America
in 1682 and made his treaty in 1683. Long before that settlements had been made
in New York, first by the Dutch, next by the English, and then by the Swedes in
1674, and during ail that period the right to the land was held to be determined
by the earlier acquisition of the Indian title. See Hazard’s Annals of Penn.
Penn
made his great treaty with the Indians in 1683. There is no written record of
it in existence and no evidence as to its exact nature. But there is no doubt
that Penn always recognized the Indians as owners of the soil and purchased
lands from them.
To give
two instances out of many. Penn in his own person made a purchase from the
Indians of a considerable quantity of land lying between the Neshaminy and
Pennepact Creek. The deed of sale is dated the 23rd June, 1683, and is of
record; as is also another deed dated the 14th July following, for lands lying
between the Schuylkill and Chester river. And see Hazard.
The
following extracts and references will show that
[Page 584]
the
same system was pursued in different States of the Union.
Pennsylvania—Graham’s history of the United
States. After relating the
various circumstances connected with the celebrated treaty made between William
Penn and the Indians in 1682, the author goes on to say:—
“The example of that
equitable consideration of the rights of the native owners of the soil, which
has been supposed to have originated with him, was first exhibited by the
planters of New England, whose deeds of conveyance from the Indians were
earlier by half a century than his, and was successively repeated by the
planters of Maryland, Carolina, New York and New Jersey, before the province of
Pennsylvania had a name,”
And see
Hepworth Dixon’s life of William Penn; Memoirs of the Hist. Soc.
of Penn.; Broadhead’s Hist. State N.Y.
In
Hazard’s An. will be found the
documents connected with Penn’s dealings with the
Indians.
New
England—Neal’s History of New England,
London, 1720:—“The planters, notwithstanding the
patent which they had for the country from the crown of England, fairly
purchased of the natives the several tracts of land which they afterwards
possessed. See also Barber’s History of New England. And see Palfrey’s Hist. New England.”
Connecticut—Broadhead’s History of the State of
New York:—“It was therefore thought expedient
that to their existing rights by discovery, and exclusive visitation, should be
added the more definite title by pur-
[Page 585]
chase
from the aborigines.” And see Conn. Hist.
Collection.
New
York—Broadhead’s History of the State of
New York:—Speaking of Peter Minuit’s administration of New
Netherland as Director General, the work goes on to say, “up to this period (1626)
the Dutch had possessed Manhatten Island only by right of first discovery and
occupation. It was now determined to superadd a higher title by purchase from
the aborigines.” Smith’s Hist. N.Y.
New
Jersey—Broadhead; Hepworth Dixon’s Life of Penn.
Delaware—Broadhead; Hazard An. Penn.; Martin Hist. North
Carolina.
New
Haven—Story on the Constitution.
Rhode
Island—Story; Barber Hist. New England.
Maryland—Graham Hist. U.S.; McSherry Hist. Maryland; Bozman Hist. Maryland.
Virginia—Notes of Virginia, London, 1782; English in America by
Judge Haliburton.
Carolina—Martin Hist. N.C.; Ramsay Hist. S.C.
Then,
coming to the Dominion, we start with the Articles of Capitulation signed at
Montreal in 1760, one of which is:
Article
40.—”The savages or Indian
Allies of His Most Christian Majesty shall be maintained in the lands they
inhabit, if they choose to reside there; they
[Page 586]
shall
not be molested on any pretence whatsoever, for having carried arms and served
His Most Christian Majesty; they shall have, as well as the French, liberty of
religion, and shall keep their missionaries.”
Next is
the Treaty of Paris, 1763, in which Canada was ceded to Great Britain, and in
the same year the Royal Proclamation to which reference has already been made
was issued.
The Six
Nation Indians came to this country shortly after the War of Independence For
their loyal conduct the crown granted to them certain lands purchased from the
Ojibeways. We have not the precise words of this grant but we have all the
conditions attached to it. After providing against
alienation by the Indians, except among themselves, it concludes as follows:
“Provided always, that if at
anytime the said Chiefs, Warriors, Women and people of the said Six Nations,
should be inclined to dispose of and surrender their use and interest in the
said district or territory, or any part thereof, the same shall be purchased
for us, our heirs and successors, at some public meeting or assembly of the
Chiefs, Warriors, and People of the said Six Nations, to be holden for that
purpose by the Governor, Lieutenant-Governor or person administering our
Government in our Province of Upper Canada.”
In 1796
the Six Nation Indians, then resident in Canada, by treaty with the Government
of the United States ceded their lands in New York for valuable consideration.
On 1798 the Mohawks and in 1802 the Seneca Nation did the same. In 1838 the
Seneca Nation by Indenture conveyed their reserved lands in New York to the
Assignees of Massachusetts. The Treaty will be found in the United States
Statutes at large Mention may be made in
this connection of
[Page 587]
the
Lake Superior and Lake Huron Treaties, in 1850, by which Canada purchased from
the Ojibbeways for valuable consideration nearly all their lands.
In the
Province of Quebec the French appear to have dealt with the Indians as a
conquered people, and while they made them large grants their lands do not seem
to have been acquired by purchase. The same principle prevailed in the Maritime
Provinces. We are not obliged, however, to account for Ontario occupying a
position different, in this respect, from that of the other Provinces. The
B.N.A. Act simply dealt with the condition of affairs as it found them at the
time it was passed.
In Nova
Scotia and New Brunswick all questions with regard to Indians were well defined
and nothing was supposed to be disturbed by the act of confederation.
The
other Provinces not being concerned in the original formation of the Dominion
this question cannot, so far as they are concerned, be discussed on the basis
of the British North America Act.
The
following statutes may be referred to as dealing with the matters in question
here: 2 Vic. ch. 15, (U.C.); 12 Vic. ch. 9 (Can.): 13-14 Vic. ch. 14 (Can.);
C.S.C. ch. 9; C.S.L.C. ch. 14; 27‑28 Vic. ch. 68 (Can.) And the following
cases are cited as decisions on the statutes. The Queen v. Strong; Regina v. Baby; Totten v. Watson; Vanvleck v. Stewart; and Bown v. West; and as American
authorities on the question of the Indian title see Kent’s Com. Title by Discovery; Cherokee Nation v.
State of Georgia; Worcester v. State
of Georgia; Ogden
[Page 588]
v. Lee; Godfrey v. Beardsley; and Gaines v. Nicholson.
In all
the treaties mentioned the word “cede” is used; this is a term
usually employed in cases of transfers of land between different States. The
Indians are dealt with as quasi-independent nations. The reason for this is
pointed out in the case of the Cherokee Nation v. Georgia; see
also Turner v. American Baptist Union.
It is
not contended that item 24, section 91, of the British North America Act
vests these lands in the Dominion, any more than that item 5 of section 92
vests them in the Province. What is contended is that section 92 must be
read in conjunction with section 108 as to public works, section 109
as to lands, &c., in the Provinces, and section 117 as to mines and
minerals, in order to get at the meaning of the act with respect to the
question in this case.
By the
North-West Angle Treaty, in 1873, the Dominion Government granted to the
Indians certain hunting and fishing privileges, which would be inoperative if
the contention of Ontario in this case is correct
It is
claimed that the land always belonged to the Province, but until this treaty
was made they could exercise no control over it. Only the Dominion could deal
with it and the Governor‑General alone could make a treaty for its
surrender. And the land was in a peculiar position in other respects. No white
man could go upon it and deal with the Indians. This was made a criminal
offence in 1841, and the Dominion Parliament was the only authority by which
that law could be repealed. Can it be supposed then, that this territory passed
to the Province under the word
[Page 589]
“lands” in the British North
America Act?
The
lands intended to be under the control of the local authorities are lands which
are valuable assets. It might be admitted that if the crown had any estate in
these lands it would be in the right of the Province under the authority of Mercer
v. Attorney-General for Ontario; but there was no estate.
The Indians had a right to occupy the land, to cut the timber and to claim the
mines and minerals found on the land, and the land descended to their children;
the only restriction upon their title was as to alienation; that might be
called a limited or base fee. And was there any thing more vested in the crown
than a mere right to the land when the Indian title was extinguished?
As to
escheat see Stephens Black.; Burgess v. Wheate; 2 Greenleaf’s Cruise Digest; Mercer v. Attorney
General for Ontario.
W. Cassels Q.C. and Mills
for the respondents.
In
considering the argument of the appellants it must be clearly kept in mind that
the authorities in the United States relied upon by the appellants are
authorities dealing with the rights of the Indians in regard to lands specially
reserved to them by treaties ratified and sanctioned by the United States.
These authorities deal with the rights of the Indians as vested in them under
and by virtue of these treaties.
The
various treaties will be found in vol. 7 United States Statutes at Large. I
more particularly refer to page 44.
The
learned counsel for the appellants lay stress upon the negotiations by the Six
Nation Indians with the United States after they came to Canada. These
negotiations related to lands set apart to those Indians on
[Page 590]
the
11th November, 1794. See Ogden v. Lee. The treaty in question is
there set out, and so in regard to the other cases relied upon by the
appellants.
There
are four cases decided by the Supreme Court of the United States which have a
direct bearing upon the question in controversy. Nearly all, if not all other
cases, are determined upon the particular terms of the various treaties These
four cases decided by the Supreme Court are very applicable to the case in
question, and are directly opposed to the contention of the appellant.
The
first case, Fletcher v. Peck, is strongly in point. In
that case prior to any surrender by the Indians the State had granted a patent.
A surrender was obtained from the Indians in favor of the United States. It was
contended that at the time of the patent the title was in the Indians, and that
no title passed by the patent granted by the State. The court, however, held
that the title to the soil was in the State, the right existing in the Indians
being one merely of occupancy—that the surrender merely
operated as an extinguishment and for the benefit of the legal estate. This
case was decided in 1810.
In 1815
the case of Meigs v. McClung was decided. The facts in
this case were a grant by the State prior to surrender and a subsequent grant
from the United States, claiming title by virtue of a surrender from the
Indians. The court held that the right in the Indians was merely one of
occupancy, and that the surrender merely operated as an extinguishment of this
right enuring to the benefit of the fee.
Johnson
v. McIntosh is a leading case in the
United States. In this case all the various treaties and statutes are referred
to and the question exhaustively dealt with.
[Page 591]
[The
learned counsel read extracts from this case showing that the Indian title,
so-called, was merely one of occupancy.
In Clarke
v. Smith, the same views are
affirmed.
[The
learned counsel then referred to the various cases cited by the appellant’s counsel pointing out and
contending that each case was decided upon the particular treaty and could have
no application to the case in question]
The
cases in our own courts are also against the contention of the appellants. In Doe
d Jackson v. Wilkes it was held that a patent
by the crown of an Indian reserve passed to the plaintiff.
In Bown
v. West and Doe d Sheldon v.
Ramsay the court held that the
Indians had no title.
Reg.
v. Baby has been cited in support
of the appellants’ argument. That case when
looked at will be found to be very different from what is contended for. So in Totten
v. Watson.
Vanvleck
v. Stewart had reference to a special
reservation set apart for the benefit of the Indians. In this case it was held
that the Indians had a beneficial right in the lands reserved, and a right to
the timber cut from these lands.
Church
v. Fenton related to the lands
specially reserved for the benefit of the Indians. In November, 1786, a
surrender had been obtained and by the terms of the surrender a special reserve
was set apart for the benefit of the Indians. By this treaty it was stipulated
that in the event of the Indians subsequently desiring to surrender the
reserved lands so specially set apart the crown would sell them for the benefit
of the Indians. The special reserve was
[Page 592]
surrendered
in 1854, and the contest in Church v. Fenton arose in regard to
these particular lands.
There
are no other authorities bearing on the point.
Reference
to the mode of dealing with the Indians in the United States does not warrant
the contention of the appellants. For instance, in 1635 one Roger Williams was
banished from Massachusetts for maintaining that the title to Indian lands was
not in the King but in the natives. In 1632 the Dutch complained that their
lands in New York, which they held by purchase from the Indians, had been taken
from them. Counsel’s opinion was that the
Indians could pass no title to the lands.
The
learned counsel for the appellants refers to the Articles of Capitulation and
to the Proclamation of 1763. It is said that this proclamation is the charter
of the Indians.
Assuming
this charter to be the foundation of their title what then becomes of their
original title to the lands? If the Indian title is based upon a right acquired
from the crown by virtue of this proclamation, then it must be the starting
point of their title, and they can have no higher rights than those given to them
by the proclamation in question.
The
proclamation assumes the title to be in the crown and not in the Indians. By
this proclamation the crown gives power to the Governors to grant lands east of
a certain line. If the Indian title existed, how could they exercise this
right? What becomes of the titles granted east of the line in question? The
crown reserves for the present the lands west of the line. If the Indians
accept title under this proclamation, then they accept a reservation during the
pleasure of the crown. Subsequently by the statute, passed in 1774, the
boundaries of the Province of Quebec are extended so as to embrace the lands in
controversy, and the pro-
[Page 593]
clamation
is annulled by the very terms of the act. If, therefore, this proclamation is
the foundation of the Indian title, they accept it merely as an act of bounty
from the crown, with the right to the crown to alter or annul it.
The
effect of this proclamation is fully referred to in the case of Fletcher v.
Peck hereinbefore referred to,
and in that particular case it was held that the extension of the territory
forming the State of Georgia withdrew it from the operation of the proclamation
of 1763.
If the
Supreme Court of the United States is correct in holding that the effect of
extending the jurisdiction of the Governor of Georgia to grant patents for
lands reserved by the proclamation of 1763 was an annulling of that
proclamation, so far as the extended area is concerned, surely an express statute
has a similar effect. It is, therefore, submitted that the contention of the
appellants is erroneous.
There
is no instance on record where the courts have recognized the Indian title, or
gone behind a grant from the crown to inquire whether or not an Indian title
was well founded.
We next
come to the effect of the confederation act. The learned counsel for the
appellants have striven to argue that under the statute the lands in question
are vested in the Dominion.
In
order to arrive at the true meaning of the British North America Act the
constitution of each of the provinces at the time of confederation must be
considered. In the Province of Quebec no surrenders have ever been obtained
from the Indians. If the contention of the appellants is correct, then the
grants for nearly the whole of that province are of no effect. Such contention,
however, has never been put forward.
Section 91
item 24 of the British North America Act
[Page 594]
clearly
refers to lands which have been specially reserved. Take the case of surrender
of lands in Upper and Lower Canada prior to confederation. At the time of
confederation would not the title to these lands be vested in the old provinces
of Upper and Lower Canada? What becomes of these lands after confederation?
Surely under the British North America Act they would be vested in the
provinces of Ontario and Quebec respectively.
Section 108
of the B.N.A. Act refers to the 3rd schedule; that schedule says nothing about
the Indian reserves.
[The
learned counsel here referred to the various statutes of the different
Provinces prior to confederation, contending that the confederation act plainly
referred to reserves specially set apart under the various statutes]
Then,
since confederation the Dominion Parliament has clearly recognized such to be
the case. For instance, in the statute of 1868, again in the statute of 1869,
and so in the statute relating to British Columbia.
[Here
counsel refer to various statutes since confederation relating to the
admittance of British Columbia into the Union, and the various statutes of the
Dominion relating to Indians]
It is
submitted that the extent of the Indian title is a mere right of occupancy, a
mere right of hunting, &c., which can only be dealt with for the purpose of
extinction. The utmost that can be contended is, that the fee is vested in the
Province subject to the right of occupancy in the Indians.
[Counsel
read extracts from the judgments of the Chancellor and the judges in the Court
of Appeal in support of their contention]
There
are lands in Ontario which have never been
[Page 595]
surrendered
and which are dealt with by the Crown Lands Department.
A
further point relied upon by the respondents is, that the contention now put
forward by the appellants could not be put forward on the part of the Dominion
without operating as a fraud on the rights of the Province of Ontario.
In the
year 1871 the Dominion approached the Province of Ontario with the view to
arranging for a provisional boundary pending the assignment of the true
boundary. Negotiations between the Dominion and the Province of Ontario lay in
abeyance until the Dominion obtained a surrender of the Indian title.
Subsequently the Dominion renewed negotiations, pointing out that by virtue of
this surrender the Indian title had become extinguished. An agreement was then
entered into whereby the Dominion were to have a full right to grant patents to
the lands west of the Provincial boundary, and the Province to have the right
to grant patents to the lands east of this boundary, and by the agreement the
Dominion and the Province respectively agreed to ratify each others acts and to
confirm the patents in the event of the true boundary being determined to be
east or west of the provisional line.
Proceedings
were taken to have the true boundary ascertained and after eight years the
contention was determined in favor of the Province.
Notwithstanding
this agreement, and the fact that for eight years the Province and the Dominion
have been endeavouring to have the boundary settled, it is contended by the
present appellants that all the time no matter what the courts might hold in
regard to the true boundary, the lands were vested in the Dominion.
It is
said that by the treaty in question of 1873 the Dominion obtained a title to
the lands in dispute.
[Page 596]
The
Dominion, however, treated this as operating as an extinguishment of the Indian
title for the benefit of the Province in the event of its appearing the
boundary of the Province was west of the lands in question, and it is submitted
the Dominion could not now successfully contend that this surrender had other
or further effect after the agreement entered into by the Province of Ontario.
Another
point to be considered is, supposing the Indians had said to Governor Morris “We will not make a treaty
with you,” if the appellants’ contentions are correct
for all time to come these vast territories would have been withdrawn from
settlement.
To
maintain their position the appellants must assume that the Indians have a
regular form of government, whereas nothing is more clear than that they have
no government and no organization, and cannot be regarded as a nation capable
of holding lands.
Washburn
on Real Property, and Story on The
Constitution were also referred to.
It is
also contended that the crown had never recognized the aboriginal inhabitants
of a country who were without any settled government as the proprietors of the
soil. This was not only the rule uniformly acted upon by the Sovereigns of
England, but it was a part of the common law of Europe. Answers of James I. and
his Lords of Trade to the States’
General; Chalmer’s Annals of the Colonies; Vattel’s Law of Nations; see also various charters
of Government and grants of land made by the Sovereign of England from 1585 to
1758 without reference to Indian occupation.
At the
time of the discovery of America, and long after, it was an accepted rule that
heathen and infidel
[Page 597]
nations
were perpetual enemies, and that the Christian prince or people first
discovering and taking possession of the country became its absolute
proprietor, and could deal with the lands as such.
Calvin’s Case; Butts v. Penny; Gelly v. Cleve cited
in Chamberlain v. Harvey; East India Co. v. Sandy’s; The Slave Grace.
It is a
rule of the common law that property is the creature of the law and only
continues to exist while the law that creates and regulates it subsists. The
Indians had no rules or regulations which could be considered laws.
St.
John’s argument on this subject
and the authorities cited in The King v. John Hampden.
Parkman’s War of Pontiac vol. 1;
Paley’s Moral Philosophy; Bentham’s Theory of Legislation; Locke on Government.
No
title beyond that of occupancy was ever recognized by the crown as being in the
Indians, and this recognition was based upon public policy and not upon any
legal right in the aboriginal inhabitants.
Opinion
of John Holt and others. N.Y. Hist. Doe.; N.Y. Hist. Doc.; New Haven Col Records
1639; Connecticut Col. Rec.
1680; Ibid 1717; Ibid 1722; Douglas’ Hist. Summary; Arnold v. Mundy.
The
King had no power to prevent the sale of lands by any proprietor. The
reservation by the proclamation of 1763, for the present, of the lands west of
a
[Page 598]
certain
line, rests upon the King’s ownership of the lands.
It was an act arising out of his proprietary rights. And in no case did he
undertake to deal with the Indians when he had parted with the fee. Penn dealt
with the Indians of Pennsylvania, and so did the proprietors and corporators in
other proprietary and charter governments.
Entick’s Hist. of Late War.
Young’s Chronicles of New England; Proud’s History of Pennsylvania;
Murdock’s History of Nova Scotia.
McCarthy
Q.C. in
reply.
The
decision of the Privy Council in the boundary case has never been adopted by
act of Parliament and has not the force of law. It is claimed that it estops us
from claiming this land, but even if it is binding it only decided that the
land was, territorially, a part of Ontario. The question of title was not
raised in that case.
The
question to be decided in this case is: Had the Indians any title, and if they
had was it of so limited a character that the crown had an estate in the land
consistent therewith.
[The
learned counsel took up the American cases referred to by the counsel for the
respondent, showing how in his opinion they failed to support the argument
founded on them]
The
case of Mitchell v. The United Stales brings up the questions
involved in this appeal more nearly than any I have found. In that case it was
said that purchases from the Indians have universally been held good. Before
Mitchell died the Indians had ceded to the crown of Great Britain, and the land
was afterwards transferred to the crown of Spain, and finally to the United
States. The court said if these facts were true
[Page 599]
the
prior title must prevail.
It
cannot be said that the Quebec Act of 1784 annulled the proclamation of 1763.
The object of that act was to do away with the British, and restore the French,
law, but it did not attempt to change the mode of dealing with the Indians.
The
following cases may be referred to as dealing with this proclamation. Campbell
v. Hall referred to in Mitchell
v. The United States; Sims v. Irvine; Johnson v. Mcintosh; and Worcester v. State
of Georgia.
Now,
the question remains whether, the Indians having had the enjoyment of the lands
without a right of interference in any body, there was any right or title in
the crown. If so, what is the estate of the crown? Does it depend on the
Indians becoming extinct? It is laid down by the Privy Council that an escheat
is not an estate, and if not, how could it pass under the British North America
Act?
If this
property is under the control of the Dominion they alone can deal with it. But
what duty rests on the Dominion to buy the land for the benefit of Ontario?
Sir
W.J. RITCHIE C.J.—I am of opinion, that all
ungranted lands in the province of Ontario belong to the crown as part of the
public domain, subject to the Indian right of occupancy in cases in which the
same has not been lawfully extinguished, and when such right of occupancy has
been lawfully extinguished absolutely to the crown, and as a consequence to the
province of Ontario. I think the crown owns the soil of all the unpatented
lands, the Indians possessing only the right of occupancy, and the crown
possessing the legal title subject to that occupancy, with the absolute
exclusive right to extinguish the Indian title
[Page 600]
either
by conquest or by purchase; that, as was said by Mr. Justice Story.
It
is to be deemed a right exclusively belonging to the Government in its
sovereign capacity to extinguish the Indian title and to perfect its own
dominion over the soil and dispose of it according to its own good pleasure. *
* The crown has the right to grant the soil while yet in possession of the
Indians, subject, however, to their right of occupancy.
That
the title to lands where the Indian title has not been extinguished is in the
crown, would seem to be clearly indicated by Dominion legislation since
confederation. See 31 Vic. ch. 42; 33 Vic. ch. 3; 43 Vic. ch. 36.
I agree
that the whole course of legislation in all the provinces before, and in the
Dominion since, confederation attaches a well understood and distinct meaning
to the words “Indian reserves or lands
reserved for the Indians,” and which cover only lands
specifically appropriated or reserved in the Indian territories, or out of the
public lands, and I entirely agree with the learned Chancellor that the words “lands reserved for Indians,” were used in the B.N. A.
Act in the same sense with reference to lands specifically set apart and
reserved for the exclusive use of the Indians. In no sense that I can
understand can it be said that lands in which the Indian title has been wholly
extinguished are lands reserved for the Indians.
The
boundary of the territory in the north west angle being established, and the
lands in question found to be within the Province of Ontario, they are
necessarily, territorially, a part of Ontario, and the ungranted portion of
such lands not specifically reserved for the Indians, though unsurrendered and
therefore subject to the Indian title, forms part of the public domain of
Ontario, and they are consequently public lands belonging to Ontario, and as
such pass under
[Page 601]
the
British North America Act to Ontario, under and by virtue of sub-sec. 5 of
sec. 92 and sec. 109 as to lands, mines, minerals and royalties, and
sec. 117, by which the Provinces are to retain all their property not
otherwise disposed of by that act, subject to the right of the Dominion to
assume any lands or public property for fortifications, etc., and therefore,
under the British North America Act, the Province of Ontario has a clear title
to all unpatented lands within its boundaries as part of the Provincial public
property, subject only to the Indian right of occupancy, and absolute when the
Indian right of occupancy is extinguished.
I am
therefore of opinion, that when the Dominion Government, in 1873 extinguished
the Indian claim or title, its effect was, so far as the question now before us
is concerned, simply to relieve the legal ownership of the land belonging to
the Province from the burden, incumbrance, or however it may be designated, of
the Indian title It therefore follows that the claim of the Dominion to
authorize the cutting of timber on these lands cannot be supported, and the
Province has a right to interfere and prevent their spoliation.
This
case has been so fully and ably dealt with by the learned Chancellor, and I so
entirely agree with the conclusions at which he has arrived, that 1 feel I can
add nothing to what has been said by him. Many questions have been suggested
during the argument of this case, and in some of the judgments of the court
below, but I have, purposely, carefully avoided discussing, or expressing any
opinion, on questions not immediately necessary for the decision of this case,
leaving all such matters to be disposed of when they legitimately arise and
become necessary for the determination of a pending controversy.
[Page 602]
STRONG
J.—By the report of the
Judicial Committee of the Privy Council of the 23rd July, 1884, made upon a
reference to it of the question of disputed boundaries between the Provinces of
Ontario and Manitoba, and which report was adopted by Her Majesty and embodied in
the Order in Council of the 11th August, 1884, the territory in which the lands
now in question are included was determined to be comprised within the limits
of the Province of Ontario. This decision of the Judicial Committee, whilst
defining the political boundaries according to the contention of the last named
province, does not, however, in any way bear upon the question here in
controversy between the Dominion of Canada and the Province of Ontario
regarding the proprietorship of the lands now in dispute. The decision of the
present appeal depends altogether upon the construction to be placed upon
certain provisions of the British North America Act. By the 24th enumeration of
section 91 of that act the power of legislation in respect of “Indians and lands reserved
for the Indians” is conferred exclusively
upon the parliament of Canada By section 109 of the same act,
All
lands, mines, minerals and royalties belonging to the several provinces of
Canada, Nova Scotia and New Brunswick at the union, and all sums then due or
payable for such lands, mines, minerals and royalties, shall belong to the
several provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which
the same are situate or arise, subject to any trust existing in respect
thereof, and to any interest other than that of the province in the same.
By
sec. 92, enumeration 5, exclusive power of legislation is given to the
provinces regarding
the
management and sale of the public lands belonging to the province, and of the
timber and wood thereon.
The
contention of the appellants is, that the lands now in question, and which are
embraced in the territory formerly in dispute between the Provinces of Ontario
and Manitoba, and which have been decided by the Judicial Committee to be
within the boundaries
[Page 603]
of
Ontario, were, at the time of confederation, lands which had not been
surrendered by the Indians, and consequently come within the definition of “lands reserved for the
Indians” contained in sub
section 21 of section 91, and are therefore not public lands vested
in the province by the operation of section 109. The province, on the
other hand, insists that these are not “lands reserved for the Indians” within sub-section 24,
and claims title to them under the provision of section 109 as public
lands which at the date of confederation “belonged” to the Province of Ontario.
It is
obvious that these lands cannot be both public lands coming within the
operation of section 109 and “lands
reserved for the Indians,” and so subject to the
exclusive legislative power of the parliament of Canada by force of the 24
sub-section of section 91. The “public lands” mentioned in section 109 are
manifestly those respecting which the province has the right of exclusive
legislation by section 92 sub-section. Then, these public lands referred
to in sub-section and which include all the lands “belonging” to the province, are clearly distinct
from “lands reserved for the
Indians,” since lands so reserved
are by section 91 sub‑section 24 made exclusively subject to
the legislative power of the Dominion. To hold that lands might be both public
lands within section 109 and sub-section 5 of section 92, and “lands reserved for the
Indians,” within sub-section 24
of section 91, would be to determine that the same lands were subject to
the exclusive powers of two separate and distinct legislatures, which would be
absurd. This consideration alone
is sufficient to dispose of any argument derived from the latter clause of
section 109, saving trusts existing in respect of public lands within its
operation. Moreover, the trusts thus
[Page 604]
preserved
are manifestly of a different order from anything connected with lands reserved
for Indians, for instance, those trusts subsisting in favour of persons who had
contracted for the purchase of Crown Lands, but whose titles had not been perfected
by grants. The word “trusts” would not be an
appropriate expression to apply to the relation between the crown and the
Indians respecting the unceded lands of the latter. As will appear hereafter
very clearly, such relationship is not in any sense that of trustee and cestui
que trust, but rather one analogous to the feudal relationship of lord and
tenant, or, in some aspects, to that one, so familiar in the Roman law, where
the right of property is dismembered and divided between the proprietor and a
usufructuary.
It will
be convenient here to notice a point to which some importance has been attached
in the courts below. It is said, that the British North America Act contains no
clause vesting in the Dominion the ultimate property in lands reserved for the
Indians over which an exclusive power of legislation is by section 91
conferred on the Dominion Parliament, and that consequently, even though the
lands now in question should be held to come within the 24th enumeration of the
last mentioned section, yet as they are not vested in the crown in right of the
Dominion nothing passed by the lease or license under which the appellants
claim title. The answer to this objection is, first, that as this is an
information on behalf of the Province complaining of an intrusion upon Provincial
lands, the question to be decided in the first instance is that as to the title
of the Province. To support the information the respondent must establish that
these lands were vested in the Province by the British North America Act,
failing which the information must be dismissed, whether the lease or license
granted by the Dominion to the appellants conferred a legal title or not.
[Page 605]
If,
therefore, the respondent fails in making out the title of the Province, it is
not essential that the appellants should be able to show that under some
particular clause of the British North America Act, the lands of which I the locus
in quo forms part were vested in the Dominion. I am of opinion, however,
that the ultimate crown title in the lands described in sub-section 24 of
section 91, whatever may be the true meaning of the terms employed (an
inquiry yet to be entered upon), became, subject to the Indian title in the
same, vested in the crown in right of the Dominion. The title and interest of
the crown in the lands specified in sub-section 24 at the date of
confederation belonged to it in the rights of the respective Provinces in which
the lands were situated; for the reasons already given these lands were not
vested in the new Provinces created by the confederation act; they must
therefore have remained in the crown in some other right, which other right
could only have been, and plainly was, that of the Dominion. For, having regard
to the scheme by which the British North America Act carried out confederation,
by first consolidating the four original Provinces into one body politic—the Dominion—and then re-distributing
this Dominion into Provinces and appropriating certain specified property to
these several Provinces, it follows that the residue of the property belonging
to the crown in right of the Provinces before confederation not specifically
appropriated by the appropriation clauses of the act, sections 109 and
117, to the newly created Provinces, must of necessity have remained in the
crown, and it is reasonable to presume for the use and purposes of the Dominion.
Next, inasmuch as all revenues, casual or otherwise, arising from the title and
interest of the crown in “lands reserved for the
Indians” (whatever may upon
subsequent consideration appear to be the proper meaning of that expression)
are
[Page 606]
by the
effect of section 1.02 allotted to the Dominion, this assignment of
revenue to the Dominion, according to a well understood rule of construction,
implies a vesting of the land and property from which the revenue is to arise.
This last mentioned construction, which is analogous to that so familiar in
construing wills by which a gift of rents and profits is held to be equivalent
to a gift of the land itself, was referred to with approbation in Attorney
General v. Mercer, though its application
was excluded in that case for the reason that the right of escheat there was
held to be expressly vested in the Provinces under section 109, which
cannot be the case as regards “lands reserved for the
Indians,” over which an exclusive
power of legislation is conferred on the Dominion, whatever may appear as the
result of further, consideration to be the proper meaning attributable to that
expression.
The
questions to be determined are therefore now restricted entirely to the
construction to be placed on the words, “lands reserved for the Indians,” in sub-section 24 of
section 91, and we are to bear in mind that whatever are the lands
subjected by this description to the exclusive legislative power of the
Dominion they cannot be lands belonging to the Province, since all these last
mentioned lands are expressly subjected to the exclusive legislative powers of
the Provinces. In construing this enactment we are not only entitled but bound
to apply that well established rule which requires us, in placing a meaning
upon descriptive terms and definitions contained in statutes, to have recourse
to external aids derived from the surrounding circumstances and the history of
the subject-matter dealt with, and to construe the enactment by the light
derived from such sources, and so to put ourselves as far as possible in the
position of the legislature whose
[Page 607]
language
we have to expound. If this rule were rejected and the language of the statute
were considered without such assistance from extrinsic facts, it is manifest
that the task of interpretation would 3 degenerate into mere speculation and
guess work.
It is
argued here for the appellants, that these words “lands reserved for the Indians” are to have attributed to
them a meaning sufficiently comprehensive to include all lands in which the
Indian title, always recognized by the crown of Great Britain, has not been
extinguished or surrendered according to the well understood and established practice
invariably observed by the Government from a comparatively remote period. The
respondent, on the contrary, seeks to place a much narrower construction on
these words and asks us to confine them to lands, first, which having been
absolutely acquired by the crown had been re-appropriated for the use and
residence of Indian tribes, and secondly, to lands which, on a surrender by
Indian nations or tribes of their territories to the crown, had been excepted
or reserved and retained by the Indians for their own residence and use as
hunting grounds or otherwise. In order to ascertain whether it was the
intention of Parliament by the use of these words “lands reserved for the Indians” to describe
comprehensively all lands in which the Indians retained any interest, and so to
include unsurrendered lands generally, or whether it was intended to use the
term in its restricted sense, as the respondent contends, as indicating only
lands which had been expressly granted and appropriated by the crown to the use
of Indians, or excepted or reserved by them for their own use out of some large
tract surrendered by them to the crown, we must refer to historical accounts of
the policy already adverted to as having been always followed by the crown in
dealings with the Indians in respect of their
[Page 608]
lands.
In the
Commentaries of Chancellor Kent and in some decisions of the Supreme Court of
the United States we have very full and clear accounts of the policy in
question. It may be summarily stated as consisting in the recognition by the
crown of a usufructuary title in the Indians to all unsurrendered lands. This
title, though not perhaps susceptible of any accurate legal definition in exact
legal terms, was one which nevertheless sufficed to protect the Indians in the
absolute use and enjoyment of their lands, whilst at the same time they were
incapacitated from making any valid alienation otherwise than to the crown
itself, in whom the ultimate title was, in accordance with the English law of
real property, considered as vested. This short statement will, I think, on
comparison with the authorities to which I will presently refer, be found to be
an accurate description of the principles upon which the crown invariably acted
with reference to Indian lands, at least from the year 1756, when Sir William
Johnston was appointed by the Imperial Government superintendent of Indian
affairs in North America, being as such responsible directly to the crown
through one of the Secretaries of State, or the Lords of Trade and Plantation,
and thus superseding the Provincial Governments, down to the year 1867, when
the confederation act constituting the Dominion of Canada was passed. So
faithfully was this system carried out, that I venture to say that there is no
settled part of the territory of the Province of Ontario, except perhaps some
isolated spots upon which the French Government had, previous to the conquest,
erected forts, such as Fort Frontenac and Fort Toronto, which is not included
in and covered by a surrender contained in some Indian treaty still to be found
in the Dominion Archives. These rules of policy
[Page 609]
being
shown to have been well established and acted upon, and the title of the
Indians to their unsurrendered lands to have been recognized by the crown to
the extent already mentioned, it may seem of little: importance to enquire into
the reasons on which it was based. But as these reasons are not without some
bearing on the present question, as I shall hereafter shew, I will shortly
refer to what appears to have led to the adoption of the system of dealing with
the territorial rights of the Indians. To ascribe it to moral grounds, to
motives of humane consideration for the aborigines, would be to attribute it to
feelings which perhaps had little weight in the age in which it took its rise.
Its true origin was, I take it, experience of the great impolicy of the
opposite mode of dealing with the Indians which had been practised by some of
the Provincial Governments of the older colonies and which had led to frequent
frontier wars, involving great sacrifices of life and property and requiring an
expenditure of money which had proved most burdensome to the colonies. That the
more liberal treatment accorded to the Indians by this system of protecting
them in the enjoyment of their hunting grounds and prohibiting settlement on
lands which they had not surrendered, which it is now contended the British
North America Act has put an end to, was successful in its results, is attested
by the historical fact that from the memorable year 1763, when Detroit was
besieged and all the Indian tribes were in revolt, down to the date of
confederation, Indian wars and massacres entirely ceased in the British
possessions in North America, although powerful Indian nations still continued
for some time after the former date to inhabit those territories. That this
peaceful conduct of the Indians is in a great degree to be attributed to the
recognition of their rights to lands unsurrendered by them, and to the
[Page 610]
guarantee
of their protection in the possession and enjoyment of such lands given by the
crown in the proclamation of October, 1763, hereafter to be more fully noticed,
is a well known fact of Canadian history which cannot be controverted. The
Indian nations from that time became and have since continued to be the firm
and faithful allies of the crown and rendered it important military services in
two wars—the war of the Revolution
and that of 1812.
The
American authorities, to which reference has already been made, consist
(amongst others) of passages in the commentaries of Chancellor Kent, in which the whole
doctrine of Indian titles is fully and elaborately considered, and of several
decisions of the Supreme Court of the United States, from which three, Johnston
v. Mcintosh, Worcester v. State
of Georgia, and Mitchell v. United
States, may be selected as
leading cases. The value and importance of these authorities is not merely that
they show that the same doctrine as that already propounded regarding the title
of the Indians to unsurrendered lands prevails in the United States, but, what
is of vastly greater importance, they without exception refer its origin to a
date anterior to the revolution and recognise it as a continuance of the
principles of law or policy as to Indian titles then established by the British
government, and therefore identical with those which have also continued to be
recognized and applied in British North America. Chancellor Kent, referring to
the decision of the Supreme Court of the United States, in Cherokee Nation
v. State of Georgia, says:—
The
court there held that the Indians were domestic, dependent nations, and their
relations to us resembled that of a ward to his guardian; and they had an
unquestionable right to the lands they occupied until that right should be
extinguished by a voluntary
[Page 611]
cession
to our government.
On the same page the learned
commentator proceeds thus:—
The
Supreme Court in the case of Worcester reviewed the whole ground of controversy
relative to the character and validity of Indian rights within the territorial
dominions of the United States, and especially with reference to the Cherokee
nation within the limits of Georgia. They declared that the right given by
European discovery was the exclusive right to purchase, but this right was not
founded on a denial of the Indian possessor to sell. Though the right of the
soil was claimed to be in the European governments as a necessary consequence
of the right of discovery and assumption of territorial jurisdiction, yet that
right was only deemed such in reference to the whites; and in respect to the
Indians it was always understood to amount only to the exclusive right of
purchasing such lands as the natives were willing to sell. The royal grants and
charters asserted a title to the country against Europeans only, and they were
considered as blank paper so far as the rights of the natives were concerned.
The English, the French and the Spaniards were equal competitors for the
friendship and aid of the Indian nations. The Crown of England never attempted
to interfere with the national affairs of the Indians further than to keep out
the agents of foreign powers who might seduce them into foreign alliances. The
English Government purchased the alliance and dependence of the Indian Nations
by subsidies, and purchased their lands when they were willing to sell at a
price they were willing to take, but they never coerced a surrender of them.
The English Government considered them as nations competent to maintain the
relations of peace and war and of governing themselves under her protection.
The United States, who succeeded to the rights of the British Crown in respect
of the Indians, did the same and no more; and the protection stipulated to be
afforded to the Indians and claimed by them was understood by all parties as
only binding the Indians to the United States as dependent allies.
Again the same learned writer says;
The
original Indian Nations were regarded and dealt with as proprietors of the soil
which they claimed and occupied, but without the power of alienation, except to
the Governments which protected them and had thrown over them and beyond them
their assumed patented domains. These Governments asserted and enforced the
exclusive right to extinguish Indian titles to lands, enclosed within the
exterior lines of their jurisdictions, by fair purchase, under the sanction of
treaties; and they held all individual purchases from the Indians, whether made
with them individually or collectively as
[Page 612]
tribes,
to be absolutely null and void. The only power that could lawfully acquire the
Indian title was the State, and a government grant was the only lawful source
of title admitted in the Courts of Justice. The Colonial and State Governments
and the government of the United States uniformly dealt upon these principles
with the Indian Nations dwelling within their territorial limits.
Further,
Chancellor Kent, in summarising the decision of the Supreme Court in Mitchell
v. United States, states the whole doctrine in a form still more
applicable to the present case. He says:
The
Supreme Court once more declared the same general doctrine, that lands in
possession of friendly Indians were always, under the colonial governments,
considered as being owned by the tribe or nation as their common property by a
perpetual right of possession; but that the ultimate fee was in the crown or
its grantees, subject to this right of possession, and could be granted by the
crown upon that condition; that individuals could not purchase Indian lands
without license, or under rules prescribed by law; that possession was
considered with reference to Indian habits and modes of life, and the hunting
grounds of the tribes were as much in their actual occupation as the cleared
fields of the whites, and this was the tenure of Indian lands by the laws of all
the colonies.
It thus
appears, that in the United States a traditional policy, derived from colonial
times, relative to the Indians and their lands has ripened into well
established rules of law, and that the result is that the lands in the
possession of the Indians are, until surrendered, treated as their rightful
though inalienable property, so far as the possession and enjoyment are
concerned; in other words, that the dominium utile is recognized as
belonging to or reserved for the Indians, though the dominium directum is
considered to be in the United States. Then, if this is so as regards Indian
lands in the United States, which have been preserved to the Indians by the
constant observance of a particular rule of policy acknowledged by the United
States courts to have been originally enforced by the crown of Great Britain,
how is it possible to suppose that the law can, or rather could have been, at
the date of confederation, in a state any less favorable to the Indians whose
lands
[Page 613]
were
situated within the dominion of the British crown, the original author of this
beneficent doctrine so carefully adhered to in the United States from the days
of the colonial governments? Therefore, when we consider that with reference to
Canada the uniform practice has always been to recognize the Indian title as
one which could only be dealt with by surrender to the crown, I maintain that
if there had been an entire absence of any written legislative act ordaining
this rule as an express positive law, we ought, just as the United States
courts have done, to hold that it nevertheless existed as a rule of the
unwritten common law, which the courts were bound to enforce as such, and
consequently, that the 24th sub-section of section 91, as well as the
109th section and the 5th sub-section of section. 92 of the British
North America Act, must all be read and construed upon the assumption that
these territorial rights of the Indians were strictly legal rights which had to
be taken into account and dealt with in that distribution of property and
proprietary rights made upon confederation between the federal and provincial
governments.
The
voluminous documentary evidence printed in the case contains numerous instances
of official recognition of, the doctrine of Indian title to unceded lands as
applied to Canada. Without referring at length to this evidence I may just call
attention to one document which, as it contains an expression of opinion with
reference to the title to the same lands part of which are now in dispute in
this cause by a high judicial authority, a former Chief Justice of Upper
Canada, is of peculiar value. In the appendix to the case for Ontario laid
before the Judicial Committee in the Boundary Case we find a letter dated 1st
of May 1819 from Chief Justice Powell to the Lieutenant Governor, Sir Peregrine
Maitland, upon the subject of the conflict then going on between the North West
and Hudson’s
[Page 614]
Bay
Companies, and of which the territory now in question was the scene. The Chief
Justice, writing upon the jurisdiction of the Upper Canada Courts in this
territory and of an act of Parliament relating thereto, says:
The
territory which it affects is in the crown and part of a district, but the soil
is in the aborigines and inhabited only by Indians and their lawless followers.
There
cannot be a more distinct statement of the rights claimed by the appellants to
have existed in the Indians than this, and if the soil, i.e. the title
to the soil, was in the Indians in 1819 it must have so remained down to the
date of the North West Angle Treaty No. 3 made in 1873.
Then it
is to be borne in mind that the control of the Indians and of the lands
occupied by the Indians had, until a comparatively recent period, been retained
in the hands of the Imperial Government; for some fifteen years after local
self government had been accorded to the Province of Canada the management of
Indian affairs remained in the hands of an Imperial officer, subject only to
the personal direction of the Governor General, and entirely independent of the
local government, and it was only about the year 1855, during the
administration of Sir Edmund Head and after the new system of Government had
been successfully established, that the direction of Indian affairs was handed
over to the Executive authorities of the late Province of Canada, Further, it
is to be observed, that by the terms of the 24th sub-section the power to
legislate concerning Indians, as distinct from lands reserved, is expressly
assigned to the Dominion Government, and this legislative power appears, by the
tacit acquiescence of all the new Governments called into existence by
confederation, to include the burden of providing for the necessities of the
Indians, which has since been borne exclusively by the Government of the
Dominion. At all events, the exclusive right of legislating
[Page 615]
respecting
Indian affairs is thus attributed by this clause to the Parliament of Canada.
This must include the right to control the exercise by the Indians of the power
of making treaties of surrender, and since, I as already shown, it is only by
means of formal treaties that the Indian title can be properly surrendered or
extinguished, Parliament must necessarily have the power, as incident to the
general management of the Indians, of so legislating as to restrain or regulate
the making of treaties of surrender which might be deemed improvident
dispositions of Indian lands. If this were not so, and Parliament did not
possess this power of absolute control over the Indians in respect of their dealings
with their lands, the provisions of the 24th sub section would be most
incongruous and unreasonable, for in that case, whilst on the one hand
Parliament would have to provide for the necessities of the Indians, on the
other hand it would not have the means of restraining these wards of the
Dominion Government from wasting the means of self support which their hunting
grounds afforded. Then, taking into consideration this wide power of
legislation respecting the Indian tribes, and seeing that it must necessarily
include a power of control over all Indian treaties dealing with proprietary
rights, it is surely a legitimate application of the maxim noscitur a sociis
to construe the words “Lands reserved for the
Indians” as embracing all
territorial rights of Indians, as well those in lands actually appropriated for
reserves as those in lands which had never been the subject of surrender at
all.
To
summarize these arguments, which appear to me to possess great force, we find,
that at the date of confederation the Indians, by the constant usage and
practice of the crown, were considered to possess a certain proprietary
interest in the unsurrendered lands which they occupied as hunting grounds;
that this
[Page 616]
usage
had either ripened into a rule of the common law as applicable to the American
Colonies, or that such a rule had been derived from the law of nations and had
in this way been imported into the Colonial law as applied to Indian Nations;
that such property of the Indians was usufructuary only and could not be
alienated, except by surrender to the crown as the ultimate owner of the soil;
and that these rights of property were not inaptly described by the words “lands reserved for the
Indians,” whilst they could not,
without doing violence to the meaning of language, be comprised in the
description of public lands which the Provinces could sell and dispose of at
their will. Further, we find from the conjunction of the word “Indians” with the expression “lands reserved for the
Indians” in the 24
sub-section of section 91 of the British North America Act, that a
construction which would place unsurrendered lands in the category of “public lands” appropriated to the
Provinces would be one which would bring different provisions of the act into
direct conflict, since such lands would be subject to the disposition of the
local legislature under sub-sec. 5, and at the same time it would be
within the powers of the Dominion Parliament, in the exercise of its general
right of legislation regarding the Indians, to restrain surrenders or
extinguishments of the Indian title to such lands, and thus to render nugatory
the only means open to the Provinces of making the lands available for sale and
settlement. Then, there being but two alternative modes of avoiding this
conflict, one by treating the British North America Act as by implication
abolishing all right and property of the Indians in unsurrendered lands, thus
at one stroke doing away with the traditional policy above noticed, and
treating such lands as ordinary crown lands in which the Indian title has been
extinguished, the other by holding that such unsurrendered lands are to be
considered as embraced in
[Page 617]
the
description of “lands reserved for the
Indians,” it appears to me that the
first alternative, which would attribute to the Imperial Parliament the
intention of taking away proprietary rights, without express words and without
any adequate reason, and of doing away at a most inopportune time with the long
cherished and most successful policy originally inaugurated by the British
Government for the treatment of the Indian tribes, is totally inadmissible and
must be rejected. The inevitable conclusion is, that the mode of interpretation
secondly presented is the correct one, and that all lands in possession of
Indian tribes not surrendered at the date of confederation are to be deemed “lands reserved for the
Indians,” the ultimate title to
which must be in the crown, not as representing the Province, but in right of
the Dominion, the Indians having the right of enjoyment and an inalienable
possessory title, until such title is extinguished by a treaty of surrender
which the Dominion is alone competent to enter into. To these considerations
must be added the further and weighty reason, that the construction just
indicated is most fair and reasonable, inasmuch as the Dominion, being burdened
with the support and maintenance of the Indians, ought also to have the benefit
of any advantage which may be derived from a surrender of their lands.
To
these arguments the respondent opposes others of varying weight and importance,
which may, as far as I can see, be all classed under two heads. First, it is
attempted to show by reference to a variety of documents consisting of
legislative and administrative acts, public correspondence and official
reports, all of which I concede are quite admissible for the purpose, that the
words “lands reserved for the
Indians” had, at the time of
confederation, acquired a well recognised secondary meaning, and that they were
[Page 618]
synonymous
with Indian reserves and were confined to lands appropriated to the Indians by
grant from the crown, or lands which the Indians had themselves reserved by
excepting them from treaty surrenders. The answer to this is, in my opinion,
very plain. It is true that these documents do show that lands so specifically
appropriated to the Indians have always been treated and are to be considered
as lands “reserved” for the Indians, and
therefore lands comprised in the description given in the 24th
sub-section of section 91, but it does not follow from this that the
clear and undoubted title of the Indians to their peculiar interest in
unsurrendered lands is not also included in the same description. The inference
would rather be against a construction which would attribute to the Imperial
Parliament the intention of making a purely arbitrary distinction between the
two classes of Indian property, for if it is once admitted or established that
the Indians have a proprietary interest in lands not surrendered by them, a
point on which there can really be no serious doubt, the same reasons which
induced Parliament to throw around the minor territorial interests of the
Indians in the smaller classes of reserves the powerful protection of the
Dominion Government, or rather stronger reasons than these, must also have
applied to their more valuable and important territorial rights in
unsurrendered lands.
The
other principal argument relied upon for the respondent is one derived from the
supposed inconvenience which would result from the proprietary interest in this
large tract of territory becoming vested in the Dominion Government. I can see
no force in this. I am unable to see that any such result must necessarily, or
is even likely, to follow because the proprietorship of the soil in a large
tract of land situate within the confines of a particular province is vested
[Page 619]
in the
Dominion, whilst the political rights, legislative and administrative, over the
same territory are vested; in the provincial government. Instances of such
ownership by a federal government within the limits I and subject to the
jurisdiction of local governments, provinces, or states, are easily to be
found, and it has never been suggested that any political inconvenience) or
clashing of jurisdiction, has resulted from them. In all the States of the
American Union, except the original thirteen and seven others formed out of
cessions of territory by original States, viz.: Maine, Vermont, Tennessee,
Kentucky, West Virginia, Alabama and Misissipi, and Texas, (which was admitted
to the Union as a state already formed out of foreign territory,) the federal
government was the original proprietor of the soil, and still remains so as
regards ungranted lands. We may, therefore, presume that a system which has
prevailed and still prevails in seventeen states of the Union, and which also
exists in our own Province of Manitoba, and must likewise apply to all future
provinces formed out of the North-West Territory, cannot be so incompatible
with the political rights of local governments, or with the material interests
of the people, as to require us to depart from the ordinary and well understood
rule of statutory construction, and to ascribe to the Imperial Parliament the
intention of abolishing by implication Indian titles which the crown had
uniformly recognized for a long course of time, and protection to which had
been expressly ordained and guaranteed by a proclamation of the king more than
a century old.
The
objection that the interests of the public would be prejudiced by attributing
the ultimate crown title in Indian lands to the Dominion instead of to the
province, seems to imply that this dispute is to be considered as a continuance
of the contest respecting the provincial boundaries of Ontario and Manitoba. I
cannot assent
[Page 620]
to
this. The question between the two provinces was one in which the rights of two
distinct political communities, each representing separate and distinct
portions of the general public of the Dominion, came into conflict. In the
present case we are entitled, indeed bound, to assume that in the disposal of
these lands for the purposes of settlement the interests of the public, as well
the public of Ontario as of Canada at large, will be as well served by the
Dominion as by the province. I have already shown that the ownership by the
Dominion of territory included within the limits of the province, is in no way
inconsistent with the political rights of the latter as regards government and
legislation The only real question, therefore, can be and is, that as to which
government has the better title to the fund to be produced by the sale of these
lands, and if, in construing the statute, we are to take into consideration
arguments based on the fairness and equity of giving to one government rather
than to the other the title to this fund, I have no hesitation in assigning the
better right to the Dominion. I see nothing inequitable or inconvenient, but
much the reverse, in a construction of the statute which has the effect of
attributing the profits arising from the surrender and sale of Indian lands to
the Dominion, upon which is cast the burthen of providing for the government
and support of the Indian tribes and the management of their property, not only
in the Provinces, but throughout the wide domain of the North-West Territories,
rather than upon the Provinces, who are not only free from all liabilities
respecting the Indians, but are not even empowered to undertake them and cannot
legally do so.
So far
as arguments derived from expediency, public policy, and convenience are to
have weight in removing any ambiguity which may be fairly raised with reference
to the meaning of the terms “lands reserved for the
[Page 621]
Indians,” there were some invoked by
the learned counsel for the appellants which, in my opinion, far exceed in
weight any of the same class put forward on behalf of the respondent. Is it to
be presumed that by the 109th and 117th sections of the British North
America Act it was intended to abrogate entirely the well understood doctrine,
according to which the Indians were recognized as having a title to the lands
not surrendered by them, which had been acted upon for at least one hundred
years, and which had received the express sanction of the crown in a royal
proclamation, wherein the Indians are assured that, to the end that they might
be convinced of the King’s justice and determined
resolution to remove all reasonable cause of discontent, their lands not ceded
to or purchased by the crown should be reserved to them for their hunting
grounds? And is it to be supposed that this was done of the mere motion of the
Imperial Parliament, without any suggestion or request from the body of delegates
assembled in the conference by which the terms and plan of confederation were
settled, or otherwise from this side of the Atlantic? And can that be
considered a reasonable construction which would attribute to Parliament the
intention to make this great change, and thus to break faith with the Indian
tribes by abrogating the privileges conferred by a proclamation which they had
always regarded as the charter of their rights, just as Canada was on the eve
of acquiring from the Hudson’s Bay Company a large
territory which would place in subjection to the new Dominion an Indian
population far in excess of the aggregate of that contained in all the old
Provinces together, a population which it would be of the utmost importance to
conciliate, and which would be sure to be affected by any want of good faith
practised towards the Indians of the Provinces? Before we can say that the
language of the 24th sub-section of section 91
[Page 622]
is to
receive the interpretation contended for by the respondent, we must be prepared
to answer these questions in the affirmative. This I cannot bring myself to do,
but I am compelled to prefer the plain primary meaning of the words in question
contended for by the appellants, according to which lands reserved for the
Indians include unsurrendered lands, or, in other words, all lands
reserved for the Indians, and not merely a particular class of such lands.
To the
objections just mentioned it is, however, answered, that all the obligations of
the crown towards the Indians incidental to their unsurrendered lands, and the
right to acquire such lands and to make compensation therefor by providing
subsidies and annuities for the Indians, attach to and may be performed by the
Provinces as well as by the Dominion. The proper rejoinders to this have been
already indicated, but may be more fully stated as follows: First, a
construction which, without any adequate reason, would apportion the management
of the Indians and their lands between two Governments and two sets of
officers, whilst it is obvious that an administration of Indian affairs as a
whole by one Government and one set of officers could alone be practicable and
beneficial, would be so eccentric and arbitrary that nothing but express words
could authorise it. Secondly, the Provinces are Governments of limited
capacities, executive as well as legislative, and amongst the powers attributed
to the Provincial Governments and Legislatures by the B.N.A. Act none can be
found which would authorise such a dealing with Indians in respect of their
lands. It cannot be pretended that any such power is conferred in express
terms, and none can be implied, since such an implication would be in direct
conflict with the only meaning which can be sensibly attached to the word “Indians” as used in the 24th
sub-section of section
[Page 623]
91,
considered apart altogether from the subsequent words “and lands reserved for Indians,” by which word “Indians,” standing alone, it must
have been intended to assign to the Dominion the tutelage or guardianship of
the Indians and the right to regulate their relations with the crown generally,
a duty which could not be properly performed by the Dominion if the tribes were
liable to be beset by the Provinces seeking surrenders of their lands. On the
whole, therefore, the result is that the construction contended for by the
respondent, that unsurrendered Indian lands vested in the Provinces under the
109th and 117th sections, would practically annul the well recognized doctrine
of an Indian title in these lands, and for that reason alone is therefore
inadmissible.
It
appears to me, therefore, that the contentions of the respondent entirely fail,
and that were there nothing more to be said the appellants would be entitled to
judgment on this appeal.
So far
I have considered and dealt with the case upon the assumption that there were
no extrinsic circumstances, documents, or course of conduct, from which we
could derive assistance in placing a meaning upon the words of the 24th
sub-section, beyond the established usage of the crown, according to which the
Indians were considered as possessing the proprietary interest already referred
to in their unsurrendered lands. It appears, however, that a much stronger case
than this is made in favour of the construction contended for by the
appellants, for we find that in the proclamation of King George the 3rd,
already incidentally alluded to, which had the force of a statute and was in
the strictest sense a legislative act, and which had never, so far as I can
see, been repealed, but remained, as regards so much of it as is now material,
in force at the date of confederation, Indian lands not ceded to or purchased
by the king, i.e., lands not surrendered, are expressly des-
[Page 624]
cribed
in terms as lands “reserved to the Indians;” the two expressions, “lands not ceded to or
purchased by the king,” and “lands reserved to the
Indians,” being expressly treated as
convertible terms. This proclamation was that of the 7th October, 1763, by
which provision was made for the government of certain territories acquired by
Great Britain by conquest during the seven years’ war, and which had been ceded by the
treaty of peace concluded at Paris between France, England, and Spain on the
10th February, 1763. By this proclamation four separate governments were
established, viz., those of Grenada, East and West Florida, and Quebec, and the
limits of each province were defined, those of Quebec not comprising the whole
territory of Canada ceded by France and being of much smaller extent than those
afterwards ascribed to the second province of the same name by the Quebec Act
passed in 1774. The description of the
territory included in the government of Quebec erected by the proclamation is
as follows:—
First,
the government of Quebec, bounded on the Labrador coast by the river
St. John, and from thence by a line drawn from the head of that river
through the lake St. John to the south end of Lake Nipissim, from whence
the said line crossing the river St. Lawrence, and the Lake Champlain, in
45 degrees of north latitude; passes along the high lands which divide the
rivers that empty themselves into the said river St. Lawrence from those
which fall into the sea; and also along the north coast of the Bay of Chaleurs
and the coast of the gulf of St. Lawrence to Cape Rosieres, and from
thence crossing the mouth of the river St. Lawrence by the west end of the
island of Anticosti, terminates at the aforesaid river of St. John.
This
description, manifestly, does not include the lands now in question.
The
proclamation, after declaring that the King had issued Letters Patent to the
Governors of these several colonies directing the calling of general assemblies
for purposes of legislation and some other provisions immaterial here, proceeds
to ordain certain
[Page 625]
regulations
respecting Indians and Indian lands as follows:—
And
whereas it is just and reasonable and essential to our interest and the
security of our colonies that the several nations or tribes of Indians with
whom we are connected and who live under our protection should not be molested
or disturbed in the possession of such parts of our dominions and territories
as, not having been ceded to or purchased by us, are reserved to them or any of
them as their hunting grounds, We do therefore, with the advice of our Privy
council, declare it to be our royal will and pleasure that no Governor or
Commander in chief in any of our colonies of Quebec, East Florida or West
Florida, do presume, upon any pretence whatever, to grant warrants of survey,
or pass any patents for lands, beyond the bounds of their respective
Governments as described in their Commissions; as also, that no Governor or
commander in Chief in any of our other colonies or plantations in America do
presume for the present, and until our further pleasure be known, to grant
warrants of survey, or pass patents for any lands, beyond the heads or sources
of any of the rivers which fall into the Atlantic ocean from the west and
north-west, or upon any lands whatever which, not having been ceded to or
purchased by us as aforesaid, are reserved to the said Indians or any of them.
And
we do further declare it to be our royal will and pleasure, for the present, as
aforesaid, to reserve under our sovereignty protection and dominion, for the
use of the said Indians, all the land and territories not included within the
limits of our said three new Governments, or within the limit of the territory
granted to the Hudson’s Bay Company; as also all
the lands and territories lying to the westward of the sources of the rivers
which fall into the sea from the west and north-west as aforesaid; and we do
hereby strictly forbid, on pain of our displeasure, all our loving subjects
from making any purchases or settlements whatsoever, or taking possession of
any of the lands above reserved, without our especial leave or licence for that
purpose first obtained.
And
we do further strictly enjoin and require all persons what-soever, who have
either wilfully or inadvertently seated themselves upon any lands which, not
having been ceded to or purchased by us, are still reserved to the said Indians
as aforesaid, forthwith to remove themselves from such settlements.
And
whereas great frauds and abuses have been committed in the purchasing lands of
the Indian, to the great prejudice of our interests, and to the great
dissatisfaction of the said Indians, in order therefore to prevent such
irregularities for the future, and to the end that the Indians may be convinced
of our justice and determined resolution to remove all reasonable cause of
discontent, we
[Page 626]
do,
with the advice of our Privy Council, strictly enjoin and require, that no
private person do presume to make any purchase from the said Indians of any
lands reserved to the said Indians within those parts of our colonies where we
have thought proper to allow settlement; but if at any time any of the said
Indians should be inclined to dispose of the said lands the same shall be
purchased only for us, in our name, in some public meeting or assembly of the
said Indians, to be held for that purpose by the Governor or Commander-in-Chief
of our colony respectively within which they shall lie.
This
same proclamation was the subject of judicial consideration in the celebrated
case of Campbell v. Hall, and its effect and
operation was fully considered by Lord Mansfield in his judgment in that case.
As is
well known, it was determined in the case of Campbell v. Hall109,
that the king had power to legislate as regards ceded and conquered colonies,
and that this identical proclamation now under consideration had the force of
law in the colonies to which it applied, though it was also determined that the
king, having by it ordained the calling of legislative assemblies in the
several colonies mentioned, his power of legislation was thereby exhausted, and
that a subsequent proclamation with reference to Grenada was of no legislative
force. In the present case the importance of this proclamation is paramount,
and appears to me to be by itself decisive of the present appeal. In the first
place, it gives legislative expression and force to what I have heretofore
treated as depending on a regulation of policy, or at most on rules of
unwritten law and official practice, namely, the right of the Indians to enjoy,
by virtue of a recognized title, their lands not surrendered or ceded to the
crown; it prohibits all interference with such lands by private persons by way
of purchase or settlement, and limits the right of purchasing or obtaining
cessions of Indian lands to the king exclusively. Next, by the words “to lands which not having
been ceded to or “purchased by us are still
reserved to the said Indians as aforesaid,” it indicates that “lands reserved for the
[Page 627]
“Indians” was a description and
definition applicable to, and indeed convertible with, unsurrendered or
non-ceded lands. It thus furnishes us with a key to the meaning of the words “lands reserved for the
Indians,” I an expression which
appears to have originated in this proclamation, and it entitles us, whenever
we find the same words used in a statute or public document without a context
indicating that it is used in some restricted sense, to infer that it includes
those rights of the Indians in their unsurrendered lands which it was one of
the principal purposes of the proclamation to assure to them. If the effect of
this proclamation as applicable to the present case stopped here it would, as
it seems to me, be conclusive, for being a legislative act having the force of
a statute it has never, in my opinion, been repealed, but has, so far as it
regulates the rights of the Indians in their unsurrendered lands, remained in
force to the present day. It was, therefore, in force at the date of the
passage of the British North America Act, and, if I am correct in this, I am
warranted in saying that in the face of its express provisions that Indian
lands not surrendered or ceded to the crown shall be considered “lands reserved to the “Indians,” it is impossible to reject
the equivalent interpretation that lands reserved for the Indians mean lands
not ceded by the Indians, which is all the appellants contend for. But this
proclamation has, as it appears to me, an application far beyond that already
mentioned. It not only gives us a clue to the meaning of the term “lands reserved for or to
the Indians,” but it applies directly
and in terms to the present lands. By the first clause of the extract from the
proclamation which I have read the King declares it to be his will and pleasure
to reserve under his sovereignty, protection and dominion, for the use of the
said Indians, all land and territory not included (1) within the limits of “our said three Governments,” (2) or within the limits
[Page 628]
of the
territory granted to the Hudson’s Bay Company, (3) also all
lands westward of the sources of the rivers which fall into the Atlantic ocean
from the west and north west. Now this territory, of which the lands in
question form part, and one controversy as to which was determined by the Order-in-Council
of August, 1884, was clearly not comprised within the limits of the first
Province of Quebec, as those limits were defined by this proclamation of
October, 1763, nor was it included within the territory granted to the Hudson’s Bay Company, nor did it
lie to the west or north-west of the sources of the rivers falling into the
Atlantic ocean. Then, what were the lands not included within the three
Governments, nor within the Hudson’s
Bay territory, to which the proclamation refers as being thereby reserved for
the Indians? Clearly it has reference to the residue of the territories
mentioned at the outset of the proclamation, viz., the “countries and islands ceded and
confirmed to us by the said treaty.”
And if this is correct, and I fail to see how it can be otherwise, this
identical tract of territory now in question was, by this proclamation, which
in Campbell v. Hall was adjudged to have legislative force,
reserved to and set apart for the use of the Indians, and this provision of the
proclamation, never having been repealed, nor in any way derogated from, by any
subsequent legislation, remained in full force as a subsisting enactment up to
the passing of the confederation act. In other words, it is a legislative act,
applying directly to the lands now in question, assuring to the Indians the
right and title to possess and enjoy these lands until they thought fit of
their own free will to cede or surrender them to the crown, and declaring that,
until surrender, the lands should be reserved to them as their hunting grounds,
and being still in full force and vigor when the British North America Act was
passed, it operated at that time as an express
[Page 629]
legislative
appropriation of the land now in dispute for the rise and benefit of the
Indians by the designation of “lands reserved to the
Indians.” Therefore the effect of
the 24th sub‑section of section 91 of the British North America
Act upon these lands, as lands “reserved to the, Indians” by the proclamation, must
be precisely the same as if, by an act of Parliament passed the day before the
British North America Act, it had been declared that these same lands,
designated by some appropriate description, should be “reserved to the Indians,” in which case it could
hardly be pretended that they were not lands “reserved for the Indians” within sub-section 24
of section 91, but public lands belonging to the Province under
sections 109 and 117 and subject to the exclusive legislation of the
Province under sub‑section 5 of section 92.
I now
proceed to consider the objections which have been made on behalf of the
respondent to the arguments based on the Proclamation of 1763. First, it is
said that the proclamation was wholly repealed by the Quebec Act passed in 1774. To this proposition I
cannot assent. The proclamation had made provision for the civil government of
the Province of Quebec, which was created by it, and it had defined the
boundaries of that Province; and it was these provisions, and these only, which
were repealed, altered, or in any way affected by the act of 1774. The
repealing section, which is the fourth, is as follows;
And
whereas the provisions made by the said proclamation in respect of the civil
government of the said Province of Quebec and the powers and authority given to
the Governor and other civil officers of the said Province, by the grants and
commissions issued in consequence thereof, have been found by experience to be
inapplicable to the state and circumstances of the said Province, the
inhabitants whereof amounted at the conquest to above 65,000 persons professing
the religion of the Church of Rome and enjoying an established form of
constitution and system of laws by which their persons and property had been
protected, governed and ordered for
[Page 630]
a
long series of years, from the first establishment of the said Province of
Canada. Be it therefore further enacted: That the said proclamation, so far as
the same relates to the said Province of Quebec and the commission under the
authority whereof the Government of the said Province is at present
administered, and all and every the ordinance and ordinances made by the
Governor and Council of Quebec for the time being relative to the civil
government and administration of justice in the said Province, and all
commissions to judges and other officers thereof, be and the same are hereby
revoked, annulled and made void from and after the 1st day of May, 1775.
From
the wording of this section, as well that portion of it which consists of
preamble as the enacting clause itself, it is plain that the intention was only
to revoke so much of the proclamation as had relation to the civil government,
the powers given to the governor, and other civil officers, and to the
administration of justice in the Province. By the proclamation the law of
England had been introduced into the new Province erected by the King out of
the territory ceded by France. This had proved a cause of great dissatisfaction
to the French Canadian population, and had, as the fourth section recites,
“been found upon experience
to be inapplicable to the state and circumstances of the Province.” One principal object of
the act was to remedy this grievance by providing (as it did) that in
controversies as to property and civil rights the laws of Canada should be the
rule of decision. The proclamation had also provided for the calling of
legislative assemblies; such assemblies being considered unsuited to the state
of the Province, this provision was also superseded by enacting that the
legislative power should be vested in a council composed of members appointed
by the crown.
Further,
the act greatly enlarged the boundaries of the Province, extending them
westward to the Mississippi (as I may now venture to say) and southward to the
junction of the Ohio and Mississippi. It was this
[Page 631]
last
provision which principally attracted attention to the measure in England, and
led to great debates in Parliament, and particularly to the vigorous opposition
of Mr. Burke, then the agent of the Province of New York. This extension of the
limits of the Province was, as is well known, induced by considerations of
policy connected with the discontent then prevailing in the adjoining English
Provinces, whose people greatly objected to the act and considered themselves
much aggrieved by its passage.
It is
nowhere suggested that anything connected with the questions of Indians or
Indian rights led to this enactment. None of the changes in the terms of the
proclamation which were introduced by the act have the most remote bearing on
Indian land rights or Indian affairs. Neither the establishment of French
instead of English law, nor the substitution of a council for an assembly, nor
the enlargement of the Provincial boundaries, can by implication have any such
effect, and the act does not contain a word expressly referring to the Indians.
Further, the third section of the act contains an express saving of titles
to land, in words sufficiently comprehensive to include the Indian title
recognized by the proclamation. Its words are:
Nothing
in this act contained shall extend, or be construed to extend, to make void, or
to vary, or alter, any right, title or possession derived under any grant;
conveyance or otherwise howsoever, of or to any lands within the said province
or the provinces thereto adjoining; but that the same shall remain and be in
force and have effect as if this act had never been made.
The
words “right,” “title” and “possession” are all applicable to the rights
which the crown had conceded to the Indians by the proclamation, and, without
absolutely disregarding this 3rd section, it would be impossible to hold
that these vested rights of property or possession had all been abolished and
swept away
[Page 632]
by the
statute. I must therefore hold, that the Quebec act had no more effect in
revoking the five concluding paragraphs of the proclamation of 1763 which
relate to the Indians and their rights to possess and enjoy their lands until
they voluntarily surrendered or ceded them to the crown, than it had in
repealing it as a royal ordinance for the government of the Floridas and
Granada.
Then it
is said that the proclamation was, as regards the Indians, merely a temporary
measure, and that its character as such is evidenced by the introductory words
to the clauses now material: “and we do further declare
it to be our Royal will and pleasure for the present” There is no force in this
point unless it can be shown that the proclamation was revoked in a regular and
constitutional manner. A statute which makes provision “for the present,” without any express limit
in point of time, or other indication by which its duration can be ascertained,
remains in force until it is repealed. As I have already said, we are bound to
regard this proclamation as having all the force of a statute, and as such it
must be subject to the established rules of statutory construction. No act of
Parliament, Order in Council, or Colonial statute or ordinance can be produced
repealing, or assuming to repeal, so much of its terms as are applicable to the
present question. We are therefore bound to conclude that, to the extent just
indicated, it remained in full force and operation, and had all the effect of
an act of Parliament, up to the passing of the British North America Act in
1867.
That
the proclamation was not considered by the government and its officers to have
been superseded by the Quebec Act, or otherwise, is shown by the strict
observance of its terms in all dealings with the Indians respecting their
lands. The Indians themselves have been allowed to consider it as still of
binding force, and
[Page 633]
to look
upon it as the charter of their rights. In the report of the Indian
commissioners appointed by the; government of Canada, dated the 22nd January,
1844, and therefore made whilst the Indians were still under the protection of
the Imperial Government, it is said:
The
subsequent proclamation of His Majesty George Third, issued in 1763, furnished
them with a fresh guarantee for the possession of their hunting grounds and the
protection of the crown. This document the Indians look upon as their charter.
They have preserved a copy of it to the present time, and have referred to it
on several occasions in their representations to the government.
Since
1763 the government, adhering to the royal proclamation of that year, have not
considered themselves entitled to dispossess the Indians of their lands without
entering into an agreement with them and rendering them some compensation. For
a considerable time after the conquest of Canada the whole of the western part
of the upper province, with the exception of a few military posts on the
frontier and a great extent of the eastern part, was in their occupation. As
the settlement of the country advanced and the land was required for new
occupants, or the predatory and revengeful habits of the Indians rendered their
removal desirable, the British government made successive agreements with them
for the surrender of portions of their lands.
It is
not suggested that between 1844 and the passage of the British North America
Act anything occurred to detract from Indian rights. This constant usage for
upwards of a century by itself raises a strong presumption in favour of the
construction of the Quebec Act which I maintain, namely, that it had not the
repealing effect contended for by the respondent. Further, in the case of Johnson
v. Mcintosh, decided in 1823, the
Supreme Court of the United States had to deal directly with this identical
point of the binding effect, as a legislative ordinance, of the proclamation of
1763, and with its operation at a date subsequent to the Act of 1774 upon Indian
lands included within the boundaries of the second province of Quebec created
by that act. The lands there in question were within the territory, which, by
the Treaty of Versailles (1783) settling the boundaries between Canada and the
United States, became
[Page 634]
part of
the United States and was known as the Territory of Illinois, and these lands
had been purchased from the Indians in 1775 and 1778 in contravention of the
terms of the proclamation. It was objected that the title so acquired was
thereby rendered void. Chief Justice Marshall, in giving the judgment of the
court, says:
The
proclamation issued by the King of Great Britain in 1763 has been considered,
and we think with reason, as constituting an additional objection to the title
of the plaintiff.
The
Chief Justice then proceeds to consider the constitutional validity of the
proclamation, which he recognises to have been well established by Campbell
v. Hall, and upon that, as well as
upon other grounds, he gives judgment against the title. Now, if the Quebec
Act, which, as it was a statute preceding in date the Declaration of
Independence (1776), would have been considered in this respect binding by the
American Courts, had repealed the proclamation, the Supreme Court would have
been wrong in its conclusion that it applied to the case before them. It is out
of the question to suppose that the judges of the Supreme Court of the United
States, several of whom were contemporaries of the revolution and actors in it
(notably the Chief Justice himself), were not perfectly familiar with a statute
so notorious throughout the old colonies as the Quebec act, which had been one
of the pretended grievances set forth in the Declaration of Independence by way
of justifying the revolution. We must therefore conclude that it was considered
by the court not to repeal or in any way affect the provisions of the
proclamation relating to the Indians. Lastly, the learned Chancellor himself,
in his judgment in this case, concedes that “the proclamation has frequently been
referred to by the Indians themselves as the charter of their rights;” and, speaking of the
clause “relating to the manner of
dealing with them in respect of lands they occupy at large or as a reserve,” he says it “has
[Page 635]
always
been scrupulously observed in such transactions,” but still he adds that it had been
repealed by the Quebec act and had become obsolete. That so much of it as is
now material was not repealed by the Quebec act, according to the proper
construction of that statute, I have, I think, sufficiently established; and
that it could otherwise have become legally obsolete was impossible, since, if Campbell
v. Hall is to be considered sound law, it was a legislative
ordinance of equivalent force with a statute, and consequently could only have
been repealed by an act emanating from some competent legislative authority;
but no such act can be referred to. That the proclamation ever in fact became
practically obsolete from desuetude, is so far from having been the case that
it is admitted to have remained since the act of 1774 “operative as a declaration of sound
principles which then and thereafter guided the executive in disposing of
Indian claims.”
But
even if I am wrong in my view that the statute of 1774 had not the effect
contended for, but that the proclamation was in point of law wholly revoked by
it, there still remains the argument that its terms furnish a key to the
meaning of the words used in the 24th sub‑section of section 91
of the British North America Act, upon the construction of which the decision
to this appeal must wholly depend. Thus, using the text of the proclamation as
a glossary, we find that in 1763 lands reserved for the Indians meant lands not
ceded or surrendered by them to the crown. Then, as we find it generally
admitted, that this proclamation, even if superseded, has down to the present
time been regarded by the Indians as the charter of their rights, that it has
remained operative as a declaration of sound principles, and that its terms
have always been scrupulously observed in dealings with the Indians in respect
of their lands (all of which are very nearly the learned Chancellor’s own words), the result is
inevitable, that
[Page 636]
the
expression “lands reserved for the
Indians” employed in the
proclamation retained its original significance as an equivalent for lands not
ceded to or purchased by the crown down to 1867 when the British North America
Act was passed, and that, consequently, when the same words were made use of in
the 91st section of that act, it was with the intention that they should
receive the same definite and well understood meaning as had always been thus
attached to them.
Some
stress has been laid on the legislation of the Dominion since confederation, as
indicating that the Parliament of Canada has adopted the construction of the
British North America Act contended for by the respondent. Even if this had
been so, I am not aware of any principle upon which what may be considered an
erroneous view adopted by Parliament of this question of the meaning of
sub-section 24 of section 91 could bind this court to adopt the same
construction in a judicial decision, although, if there was room for doubt and
there had in fact been any legislation, it would, as embodying the opinion of
Parliament as to the proper interpretation of the Imperial act, be entitled to
some, though not conclusive, weight and influence. It does not appear, however,
that any such construction as is contended for by the respondent has, in fact,
been placed by Parliament on the 24th sub-section of section 91.
Three acts relating to the Indians and Indian lands have been passed by the
Parliament of Canada since confederation, in 1868, 1876, and 1880 respectively.
In the first of these statutes (31 Vic. ch. 42), an act organizing the
Department of the Secretary of State, by section 6 all lands reserved for
Indians, or for any tribe, band, or body of Indians, are declared “to be deemed reserved for
the same purposes as before the act,”
and by section 8 it was provided, that lands reserved for the use of the
Indians should only be ceded to the crown by a
[Page 637]
formal
treaty of surrender made in the manner prescribed by the act, and that until
surrender no sale or lease of Indian lands should be valid. In the subsequent
acts of 1876 and 1880, the same provisions were
repeated, except that the word “reserves” was used instead of “lands reserved for the
Indians,” and by an interpretation
clause it was declared that the term “reserve” meant “any tract of land set apart
by treaty or otherwise for the use or benefit, or granted to a particular band
of Indians, of which the legal title is in the crown but which is
unsurrendered.” With regard to these acts
it is to be observed that in the first act the identical expression calling for
interpretation, “lands reserved for the
Indians,” is used In the second and
third, the word “reserves” has been substituted, and
what I understand to be contended is, that this word “reserves,” with the meaning affixed to it by the
interpretation clause, has a narrower signification than one which includes all
unsurrendered lands. I am not prepared so to understand the word “reserves” as defined by the
interpretation clause, for I cannot admit that it has a less comprehensive
signification than the words “lands reserved for the
Indians” in the Act of 1868, and these
latter words must receive the same construction as is to be attributed to
precisely the same words as used in the British North America Act. But,
conceding that the word “reserves” did apply to Indian lands
of a different class from those referred to as “lands reserved for the Indians,” what possible effect could
that have on the present question, which is confined to the construction of an
Imperial statute—the confederation act? That
Parliament has no power to divest the Dominion in favour of the Provinces of a
legislative power conferred on it by the British North America Act is, I think,
clear. But, assuming that it had, it has neither assumed to put
[Page 638]
forth
any authoritative declaration of the proper construction of the clause in
question in the British North America Act, or to relinquish in favour of the
provinces any right of property or power of legislation vested in the Dominion
by its provisions. At most, if my construction of the word “reserves” is erroneous, it could be
said, that, having the power to legislate for all lands occupied by and not
surrendered by Indians, Parliament had only seen fit to exercise this power in
relation to the class of lands comprised in the description of “reserves” as defined by the
interpretation clause, but on no principle that I ever heard or read of could
this be said either to imply an authoritative declaration of the construction
of the British North America Act binding on the courts, or a relinquishment in favour
of the provinces of the exclusive right of legislation regarding lands reserved
for the Indians, or a cession to the provinces of the rights of the crown in
such lands. These statutes have, therefore, no application to the question the
court is called upon to decide on this appeal.
On the
whole my conclusion must be, that the lands included in the description of “lands reserved for the
Indians,” in subsection 24 of
section 91 were not vested in the provinces as public lands or property by
sections 109 and 117, and that all lands occupied by Indians and not ceded
by them to the crown are comprehended in the exclusive powers of legislation
conferred on the Dominion, and that the ultimate property in such lands,
subject to the Indian title, is vested in the crown for the use of the
Dominion; that consequently the North-West Angle Treaty No. 3 conferred an
absolute title to the lands in question in this case on Her Majesty in right of
the Dominion of Canada; and that this appeal must be allowed and the
information dismissed in the court below with costs in all the courts.
FOURNIER
J. concurred with RITCHIE C.J.
[Page 639]
HENRY
J.—I have not considered it
necessary, in the view I entertain of this case, to prepare a written judgment,
but may say, in starting, that I entirely approve of the judgment of the
learned chancellor, which, I think, embraces all the important points in the
case.
I think
that after the conquest of this country all wild lands, including those held by
nomadic tribes of Indians, were the property of the crown and were transferred
to those who applied for them only by the crown. It was never asserted that any
title to them could be given by the Indians. In 1763, after the conquest, the
crown issued a proclamation by which all persons were prohibited from trading
with the Indians in regard to purchase of lands, and it was declared that all
such transactions should be void. The Indians were not permitted to transfer
any of their rights as to the land to any individual, and no such transfers
were valid unless made by the crown. These were restrictions on the rights of
the Indians following the conquest of the country, and I refer to them with
reference to the question whether or not the Indians could convey a title in
fee simple of the lands in question to the Dominion Government, as contended for,
or to any one else.
If the
Province of Ontario owned these lands, subject to such rights, then arises
another question, whether the purchase from the Indians by the treaty spoken of
operated to give a title in them to the Dominion Government, or as an
extinguishment of the rights of the Indians in favour of the Province of
Ontario.
In the
first place, I suppose nobody will assert that if a private individual entered
upon any of the lands at any time the Indians could legally object, as the law
does not permit them by any legal means to recover possession of the land, or
recover damages for any trespass committed thereon. I mention this to show that
the Indians were never regarded as having a title.
[Page 640]
In 1873
the crown, in its wisdom, decided to hold these lands as a hunting ground for
the Indians. In the first settlement of the country to assert sovereignty and
to put that assertion into operation would have caused war, and it was
necessary to treat with the Indians from time to time in order to facilitate
settlement. They were, therefore, dealt with in such a manner that they were
not asked to give up their lands without some compensation. The treaty in
question was made when the Dominion Government claimed that the lands in
question were not a part of Ontario, and many years before the Privy Council
decided that they were. The Dominion Government, asserting that it was a
portion of the territory of Manitoba over which they had jurisdiction (for, by
arrangement, all the crown lands and timber in Manitoba were reserved to the
Dominion), entered into negotiations with the Indians for the extinguishment of
their title. That being done we have to inquire what was the operation, in law,
of that extinguishment.
Now,
suppose an individual had purchased from the Indians a part of this territory
the crown would have the right to ignore the transfer. The Indians might have
no further claim, but the extinguishment of the Indian rights would enure to
the benefit of the crown. If the Indian claim had been extinguished by private
persons it would, without doubt, have operated in favor of the crown. Apply
that principle to this case and we will see that the extinguishment, if Ontario
was the owner at the time, would in the same way operate in favor of the
Province of Ontario.
This
document signed by certain Indians is not evidence of a purchase. The
conveyance itself shows that the title was in the crown, and the treaty is
simply a cession of all the Indian rights, titles, and privileges whatever they
were, and the consideration is stated to have emanated from Her Majesty’s bounty,
[Page 641]
&c.,
The consideration was, therefore, on the face of the treaty, an act of bounty
on the part of Her Majesty. It is not an acknowledgment of any title in fee
simple in the Indians. The Indians were not in possession of any particular
portion of the land; for years and years they might never be on certain
portions of it; they could not be said to have yielded possession, for that
they cannot be assumed to have had, but virtually only relinquished their claim
to the lands as hunting grounds.
A
question of importance arises under the confederation act. By one of the
sections of that act all lands reserved for the Indians were placed
under the control of the Dominion Parliament. We must then inquire what was
reserved for them. There are many ways of reserving real estate. It may be
reserved by will, by deed, by proclamation, and so on, but it requires an act
of some description. As regards the wild lands inhabited by nomadic tribes of
Indians, by what process is it shown that they were ever reserved by
anybody? They are in the same state as they were at the conquest. We find that
several large tracts of land were at different times specially reserved for the
use of Indian tribes, and have been held in trust for them by the Government.
When the Indians did not require them they were sold and the money held for
their use. There was another class. In many of the treaties by which the
Indians gave up their right to portions of the country certain portions of the
territory they were about to transfer were reserved for them in the treaties
themselves. When, therefore, the Imperial act was passed there was sufficient
material for the operation of the clauses relating to lands “reserved for the Indians.”
But, I
would ask, how can it be said that the lands in question in this suit were ever
reserved? They were always the property of the crown. The Indians
[Page 642]
had the
right to use them for hunting purposes, but not as property the title of which
was in them. Thus, then, we have these words in the statute explained by the
knowledge we have of certain lands being expressly reserved for the Indians.
Reservation
cannot be effected by implication; there must be some act.
The
words in the Imperial statute refer only to lands expressly reserved, and the
other wild lands in the country are not affected by the provision referred to.
These
very lands belonged to the Province before confederation, but the right to them
was contested by the Dominion Government. A mere dispute does not alter the
question of title. And when the matter came before the Privy Council it was
decided that the lands were part of the Province of Ontario. The result of that
decision reverted back to the time of the passing of the Imperial act. It was
just as much the property of the Province all along as it would have been had
no dispute arisen.
We have
the Imperial Act which settles the whole question. All the lands, except those
reserved in the act itself, shall belong to the several Provinces. How, then,
could the Dominion get a title to these lands? If the transfer from the Indians
had never taken place no such question could or would have arisen, and the
right of Ontario to the lands now contested would no doubt have been admitted.
The mere transfer by the Indians to the Dominion Government of their rights
cannot affect the title of Ontario.
I
think, therefore, the right to grant licenses to cut timber on these lands was
in no way given to the Dominion Government. If the lands are situate in Ontario
they belong to Ontario, under the British North America Act. So that all we
have to enquire is: Was the land a part of Ontario at the time of con-
[Page 643]
federation?
If it was, it is in the same position as any other wild lands in Quebec, Nova
Scotia, or New Brunswick. The Dominion does not claim the lands in those other
Provinces, and the mere surrender by the Indians could not give a title to
those lands in Ontario.
As I
stated before, I fully concur in the judgment of the learned Chancellor. If the
lands in question belong to Ontario, and the Indian claims had not been
extinguished, I maintain that it would be highly unconstitutional for the
Dominion to interfere with them, as suggested, by the passage of an act to
prohibit the Indians from dealing with the Government of Ontario therefor.
For the
reasons given, I am of opinion that the appeal herein should be dismissed with
costs.
TASCHEREAU
J.—I am also of opinion that
the appeal should be dismissed.
The
question involved has been so thoroughly reviewed by the learned Chancellor in
the court of first instance, and by the learned judges of the Ontario Court of
Appeal, that I feel unable to add to their observations almost anything but
useless repetition.
There
is no doubt of the correctness of the proposition laid down by the Supreme
Court of Louisiana, in Breaux v. Johns, citing Fletcher v.
Pecks, and Johnson v. McIntosh, “that on the discovery of the American
continent the principle was asserted or acknowledged by all European nations,
that discovery followed by actual possession gave title to the soil to the
Government by whose subjects, or by whose authority, it was made, not only
against other European Governments but against the natives themselves. While
the different nations of Europe respected the rights (I would say the claims)
of the natives as
[Page 644]
occupants,
they all asserted the ultimate dominion and title to the soil to be in
themselves.” I refer also to Brooks
v. Norris, Martin v. Johnson, and De Armas v. New
Orleans, in the same court.
That
such was the case with the French Government in Canada, during its occupancy
thereof, is an incontrovertible fact. The King was vested with the ownership of
all the ungranted lands in the colony as part of the crown domain, and a royal
grant conveyed the full estate and entitled the grantee to possession. The
contention, that the royal grants and charters merely asserted a title in the
grantees against Europeans or white men, but that they were nothing but blank
papers so far as the rights of the natives were concerned, was certainly not
then thought of, either in France or in Canada. Neither in the commission or
letters patent to the Marquis de la Roche in 1578 and 1598, nor in the charter
to the Cent Associés in 1627, nor in the retrocession of the same in 1663, nor
in the charter to the West Indies Company in 1664, nor in the retrocession of
the same in 1674, by which proprietary Government in Canada came to an end, nor
in the six hundred concessions of seigniories extending from the Atlantic to.
Lake Superior, made by these companies, or by the Kings themselves, nor in any
grant of land whatever during the 225 years of the French domination, can be
found even an allusion to, or a mention of, the Indian title.
On the
contrary, in express terms, de la Roche was authorized to take possession of,
and hold as his own property, all lands whatsoever that he might conquer from
any one but the allies and confederates of the crown, and, likewise, the
charter of the West Indies Company granted them the full ownership of all lands
[Page 645]
whatsoever,
in Canada, which they would conquer, or from which they would drive away the
Indians by; force of arms. Such was the spirit of all the royal grants of the
period. The King granted lands, seigniories, territories, with the
understanding that if any of these lands, seigniories, or territories proved to
be occupied by aborigines, on the grantees rested the onus to get rid of them,
either by chasing them away by force, or by a more conciliatory policy, as they
would think proper. In many instances, no doubt, the grantees, or the King
himself, deemed it cheaper or wiser to buy them than to fight them, but that
was never construed as a recognition of their right to any legal title
whatsoever. The fee and the legal possession were in the King or his grantees.
Now
when by the treaty of 1763, France ceded to Great Britain all her rights of
sovereignty, property and possession over Canada, and its islands, lands,
places and coasts, including, as admitted at the argument, the lands now in
controversy, it is unquestionable that the full title to the territory ceded
became vested in the new sovereign, and that he thereafter owned it in allodium
as part of the crown domain, in as full and ample a manner as the King of
France had previously owned it. That it should be otherwise for the lands now
in dispute, I cannot see on what principle. To exclude from the full operation
of the cession by France all the lands then occupied by the Indians, would be
to declare that not an inch of land thereby passed to the King of England, as,
at that time, the whole of the unpatented lands of Canada were in their
possession in as full and ample a manner as the 57,000 square miles of the
territory in dispute can be said to be in possession of the 26,000 Indians who
roam over it.
Now,
when did the Sovereign of Great Britain ever
[Page 646]
divest
himself of the ownership of these lands to vest it in the Indians? When did the
title pass from the Sovereign to the Indians? Not by any letters patent. The
appellants do not contend that any exist, but they contend that such was the
effect of the royal proclamation of the 7th October, 1763. They failed,
however, to establish that proposition. I cannot find in that document a single
word that can be construed as a grant or to have the operation of a grant. The
general provisions of this proclamation, it must not be lost sight of, did not
apply to the territory now in controversy, for the Province of Quebec, thereby
constituted, was bounded west at Lake Nipissing. But it is argued by the
appellant that the following clauses support their contention:
And
whereas it is just and reasonable and essential to our interests and the
security of our colonies that the several nations or tribes of Indians with
whom we are connected, and who live under our protection, should not be
molested or disturbed in the possession of such parts of our Dominion and
Territories, as not having been ceded to or purchased by us, are reserved to
them or any of them as their hunting grounds, we do therefore, with the advice
of our Privy Council, declare it to be our royal will and pleasure that no
governor or commander-in-chief in any of our colonies of Quebec, East Florida
or West Florida, do presume, upon any pretence whatever, to grant warrants of
survey or pass any patents for lands beyond the bounds of their respective
governments as described in their commissions; as also that no governor or
commander-in-chief in any of our other colonies or plantations in America do
presume, for the present, and until our further pleasure be known, to grant
warrants of survey or pass patents for any lands beyond the head or sources of
any of the rivers which fall into the Atlantic ocean from the west and
north-west, or upon any lands whatever which, not having been ceded to or
purchased by us as aforesaid, are reserved to the said Indians or any of them.
And
we do further declare it to be our royal will and pleasure, for the present, as
aforesaid, to reserve under our sovereignty, protection and dominion, for the
use of the said Indians, all the lands and territories not included within the
limits of our said three new governments, or within the limits of the territory
granted to the Hudson’s Bay Company; as also all
the lands and territories lying to the westward of the sources of the rivers
which fall into the sea from the
[Page 647]
west
and north-west as aforesaid; and we do hereby strictly forbid, on pain of our
displeasure, all our loving subjects from making any purchases or settlement
whatsoever, or taking possession of any of the lands above reserved, without
special leave or license for that purpose first obtained.
Now, as
I read these clauses, they, it seems to me, far from supporting the appellants’ case, are entirely adverse
to them. First, rather superfluously and unnecessarily, the governors are
forbidden to issue any patents for lands beyond the bounds of their respective
governments. This applies to crown lands of course. Then the governors are
prohibited, for the present, from granting patents for any lands in the
territory of the North-West, or for any lands whatever which, not having been
ceded to, or purchased by, the crown, are reserved to the Indians or any of
them. Now, all this clause necessarily refers to is crown lands not previously
conceded or granted; the governors never have been presumed to even grant
patents for lands that had previously passed from the crown. It is to crown
lands, to lands owned by the crown but occupied by the Indians, that the
proclamation refers. The words “for the present,” in this and the next
clause, are equivalent to a reservation by the king of his right, thereafter or
at any time, to grant these lands when he would think it proper to do so. He
reserves for the present for the use of the Indians all the lands in Canada outside
of the limits of the Province of Quebec as then constituted. Is that, in law,
granting to these Indians a full title to the soil, a title to these lands? Did
the sovereign thereby divest himself of the ownership of this territory? I
cannot adopt that conclusion, nor can I see anything in that proclamation that
gives to the Indians forever the right in law to the possession of any lands as
against the crown. Their occupancy under that document has been one by
sufferance only. Their possession has been, in law, the
[Page 648]
possession
of tie crown. At any time before confederation the crown could have granted
these lands, or any of them, by letters patent, and the grant would have
transferred to the grantee the plenum et utile dominium, with the right
to maintain trespass, without entry, against the Indians. A grant of land by
the crown is tantamount to conveyance with livery of seisin. This proclamation of 1763
has not, consequently, in my opinion, created a legal Indian title.
From
this result of my interpretation of it it is unnecessary, for my determination
of this case, to consider how far the sections of the proclamation to
which I have alluded, have been affected by the act of 1774. I may, nevertheless,
remark, that any right the Indians might have previously had could not, it
seems, have been affected by this act, as by its 3rd section it is
specially provided and enacted that “nothing
in this act contained shall extend, or be construed to extend, to make void, or
to vary, or alter, any right, title, or possession derived under any grant,
conveyance, or otherwise howsoever, of or to any lands within the said
Province, or the Provinces thereto adjoining.”
It was
further argued for the appellants that the principles which have always guided
the crown since the cession in its dealing with the Indians amount to a
recognition of their title to a beneficiary interest in the soil. There is, in
my opinion, no foundation for this contention. For obvious political reasons,
and motives of humanity and benevolence, it has, no doubt, been the general
policy of the crown, as it had been at the times of the French authorities, to
respect the claims of the Indians. But this, though it unquestionably gives
them a title to
[Page 649]
the
favorable consideration of the Government, does not give them any title in law,
any title that a court of justice can recognize as against the crown. If the
numerous quotations on the subject furnished to us by I appellants from
philosophers, publicists, economists and historians, and from official reports
and despatches, must be interpreted as recognizing a legal Indian title as
against the crown, all I can say of these opinions is, that a careful
consideration of the question has led me to a different conclusion.
The
necessary deduction from such a doctrine would be, that all progress of
civilization and development in this country is and always has been at the
mercy of the Indian race. Some of the writers cited by the appellants,
influenced by sentimental and philanthrophic considerations, do not hesitate to
go as far. But legal and constitutional principles are in direct antagonism
with their theories. The Indians must in the future, every one concedes it, be
treated with the same consideration for their just claims and demands that they
have received in the past, but, as in the past, it will not be because of any
legal obligation to do so, but as a sacred political obligation, in the
execution of which the state must be free from judicial control.
The
appellants’ contentions, I may here
remark, would appear to be supported by some extracts from the judgment of the
Supreme Court of New Zealand, in a case of the Queen v. Symonds (June
1847), which are to be found in the Imperial Parliamentary papers, 1860,
vol. XLVII, p. 47, (Colonies New Zealand). But the nature of the Indian
title in New Zealand is a peculiar one. Art. 2 of a treaty with the Indians,
known as the treaty of Waitangi, guaranteed to them the full exclusive
possession of all the lands occupied by them so long as they would desire to
retain these lands, and by the interpretation put
[Page 650]
upon
that treaty by the Home Government, it was considered that the Indians had a
right of proprietorship over their lands.
On the
interpretation of the words “lands reserved for the
Indians,” in section 91 par. 24
of the B.N.A. Act, I adopt the reasoning of the Chancellor and of Chief Justice
Hagarty. Even if such lands be specially reserved for the Indians, the title is
in the Crown.
The
Territory in dispute is not “reserved for the Indians” in the sense of these
words as contained in that section. And even if the Indians had any interest’ in it, that would not
affect the Province of Ontario’s claim to it, as then the
Province would, under the very words of section 109 of the B.N.A. Act,
hold it subject to that interest.
As
regards the question considered by Mr Justice Burton, whether or not the
Lieutenant Governor in each Province is, as Her Majesty’s representative under the B.N.A Act,
the only party who could extinguish the so called Indian title, if any there
be, I refrain from expressing any opinion, for the reason that the point does
not come up for our determination, and consequently that anything I might say
about it would be entirely obiter
Were
these lands at confederation crown lands, or the private property of the
Indians, is the abstract question to be determined. I am of opinion that they
were crown lands, and consequently that under sections 109 and 117 of the
B.N.A. Act they belong, as before confederation, to the Province of Ontario and
form part of its public domain by title paramount.
GWYNNE
J. In 1763 the Board of Trade made a report to His then Majesty King George the
3rd,
[Page 651]
wherein
they suggested a plan for the future management of Indian Affairs in His
Majesty’s possessions in North
America.
The
plan suggested in this report was approved by His Majesty, and to give effect
to it the proclamation of the 7th October, 1763, was issued, wherein is
contained a declaration of His Majesty’s
Royal intentions towards the tribes of Indians in His Majesty’s North American
possessions. In that proclamation are contained the following passages:
It has
been argued that the above passages extracted from the proclamation, had no
effect within the limits of the then Province of Quebec, although that Province
is specially mentioned in the proclamation. This argument was founded upon the
contention, that the Indians were never recognised by the French Kings as
having any estate, right, or title in the lands situate within the limits of
the French possessions in North America, and that the English title to those
lands being derived from the treaty of Paris of 1763, the title of the Crown of
England to the lands ceded by the French King by that treaty is the same as the
title which the Kings of France formerly had.
It may
be admitted that the Kings of France recognised no title in the Indians in any
part of the territory in the possession of the Kings of France, whose mode of
dealing with the Indians was to make, ex gratiâ, crown grants of land
for their conversion, instruction, and subsistence, but the fact that the Kings
of France so dealt with the Indians presented no obstacle to the Sovereign of
Great Britain, upon acquiring the French title, placing the Indians upon a more
just and equitable footing, and recognizing their having a certain title,
estate and interest in the lands so acquired by the Crown of Great Britain; and
in
[Page 652]
point
of fact this proclamation, ever since its issue, has been faithfully observed
in its integrity; as well within the limits of the then Province of Quebec as
in all other the British possessions in North America. At the time of the
cession by the French the greater part of that portion of French Canada which
now constitutes the Province of Quebec had been already granted by the French
Kings To lands so granted the proclamation, of course, had no application, but
outside of those granted lands, if there were any Indians claiming title their
rights, as declared in the proclamation, were respected.
By the
Haldimand papers in the Canadian Archives it appears that in December, 1766,
one Philibot, having an order of his Majesty in Council, dated the 18th June
1766, directed to the Governor and Commander-in-Chief of the Province of
Quebec, for a grant of 20,000 acres in that Province, petitioned the Governor,
praying that the grant might be assigned to him on the Restigouche at a place
indicated by him, and the Committee of Council at Quebec having taken the
matter of the petition into consideration reported that the lands so prayed to
be granted to the petitioner were or were claimed to be the property of the
Indians, and as such, by His Majesty’s
express command as set forth in his proclamation of 1763, not “within their power to
grant.” It is with that part of
French Canada which now constitutes the Province of Ontario that we are at
present concerned, and so inviolably has the proclamation been observed therein
that it, together with the Royal instructions given to the Governors as to its
strict enforcement, may, not inaptly, be termed the Indian Bill of Rights. By
an order of His Majesty and Council, dated at St James’, May 4th, 1768, transmitted to the
Honorable Thomas Gage, Major-General and Commander-in-Chief of all
[Page 653]
His
Majesty’s Forces in North America,
he was ordered to
Put
Lieut. George McDougal, late of the 60th Regt., in possession of Hogg Island
situate in Detroit River, three miles above the Fort of Detroit “provided that it can be
done without umbrage to the Indians,”
and upon consideration that the Improvements projected by McDougal be directed
to the more easy and effectual supply of His Majesty’s Fort and Garrison maintained at
Detroit.
The
mode adopted on this occasion to extinguish the Indian title was, that General
Gage forwarded the order to Capt. Turnbull, commanding at Detroit, with the
following instructions as to the execution of it;—
As
Mr. McDougal’s occupying these lands
depends on the sufferance of the Indians who have claims thereto, it will be
necessary that those Indians should be collected by the friends of
Mr. McDougal and publicly signify to you, or rather give a written
acknowledgment of, their consenting to the cession of these lands in favor of
Mr. McDougal.
This
must be a solemn act, performed in your presence by Indians concerned in the
property of these lands, to which they must sign the mark of their tribes, and
you will certify the same to be done by you, under my authority and in your
presence; their permission at the same time must be had to people the Islands
for cultivation, for every necessary particular should be mentioned in the
writing for the cession of these lands, and the whole fully and distinctly
explained to the Indians to prevent future claims or disputes.
In
pursuance of the above instructions an indenture inter partes was made
and executed by and between those chiefs of the Ottawa and Chippewa nations of
Indians, of the one part, and George McDougal, of the other part, whereby it
was witnessed that the said chiefs, for themselves and by the consent of the
whole of the said nations of Indians, for and in consideration of property to
the value of £194. 10s., thereby
acknowledged to have been received, did grant, bargain, sell, alien and confirm
unto the said George McDougal, his heirs and assigns for ever, the said island
in the Detroit river, about three miles above the fort, that he might settle,
cultivate and otherwise employ it to his and his Majesty’s advantage, together with
the houses, out-
[Page 654]
houses
and appurtenances whatsoever to the said island, messuage or tenement and
premises belonging or in any wise appertaining, and the reversion and
reversions, remainder and remainders, rents and services of the said premises
and every part thereof, and all the estate, right, title, claim and demand
whatsoever of them the said Indians of, in and to the said messuage, tenement
and premises and every part thereof, to have and to hold the said messuage, and
all and singular the said premises above mentioned, and every part and parcel
thereof, with the appurtenances, unto the said George McDougal, his heirs and
assigns for ever, and the said chiefs did thereby engage themselves, their
heirs, their nations, &c., forever to warrant and defend the property of the
said island unto the said George McDougal, his heirs, executors, administrators
and assigns for ever. In 1784 Governor Haldimand purchased from the Mississagas
what is known as the Grand. River tract and settled thereon the Six Nations
Indians who, shortly after the close of the revolutionary war, removed from
their settlements in the State of New York into Canada.
In a
letter dated at Quebec, the 26th April, 1784, addressed by Governor Haldimand
to Lieut.‑Governor Hay on his departure from Quebec to enter upon his
government, is the following paragraph defining his duty in relation to the
Indians and their lands:
The
mode of acquiring lands by what is called Deeds of Gift is to be entirely
discontinued, for, by the King’s instructions, no Private Person, Society,
Corporation or Colony is capable of acquiring any property in lands belonging
to the Indians, either by purchase, or grant or conveyance from the Indians,
excepting only where the lands lie within the limits of any colony the soil of
which has been vested in Proprietaries or Corporations by grants from the
Crown; in which cases such Proprietaries or Corporations only shall be capable
of acquiring such property by purchase or grants from the Indians. It is also
necessary to observe to you that, by the King’s instructions, no purchase of lands
belonging to the Indians, whether in the
[Page 655]
name
of or for the use of the Crown, be made, but at some general meeting, at which
the Principal Chiefs of each Tribe claiming a property in such lands shall be
present.
In 1781
the form adopted for the surrender of the Island of Michilimakinak was a deed
poll whereby four chiefs of the Chippawa nation, on behalf of themselves and
all others of their nation the Chippewas “who have or can lay claim to the said
Island,” surrendered and yielded up
the said Island into the hands of Lieutenant Governor Sinclair for the behalf
and use of His Majesty George the third, &c., &c., and his heirs for
ever, and they did thereby make for themselves and posterity a renunciation of
all claims in future to said Island. The deed contains the following clause:
And
we have signed two deeds of this tenor and date in the presence of (naming
seven persons), one of which deeds is to remain with the Government of Canada
and the other to remain at this post to certify the same, and we promise to
preserve in our village a Belt of Wampum of seven feet in length to perpetuate,
secure, and be a lasting memorial of the said transaction to our nation forever
hereafter, and that no defect in this deed for want of law forms, or any other,
shall invalidate the same.
This
deed is signed by the Chiefs with their totems, according to Indian custom, and
by the Lieutenant Governor and a Captain, Lieutenant and Ensign of the 8th
regiment. The last clause in the deed seems to have been inserted with the
design of shewing on the face of the deed that the transaction had been
authorised in a council of the nation. The obtaining such authority in the
first place was the invariable custom, and then a deed was executed for the
purpose of evidencing the transaction’
which the nation had authorised in council.
By the
deed of surrender of about two million (2,000,000) acres along the shore of Lake
Erie, executed on the 19th May, 1790, it appears to have been executed in a
full Council of the Ottawa, Chippewa, Pottowatani and Huron Nations, which was
attended by
[Page 656]
the
Commanding Officer at Detroit, with a large staff of his officers as
representing the crown, and in their presence as subscribing witnesses the deed
is executed in the Indian manner by eight Chiefs of the Ottawa, eight of the
Chippewa, six of the Pottowatani and thirteen of the Huron Nations.
The
deed is in the form of a deed-poll, commencing:
Know
all men by these presents that we, the principal Village and War Chiefs of the
Ottawa, Chippewa, Pottowatani and Huron Nations, for and in consideration, &c.
Have, by and with the consent of the whole of our said Nations, Given, granted,
enfeoffed, alienated and confirmed, And by these presents do give, grant,
enfeoff, alien and confirm unto His Majesty George III, King, &c., &c.,
a certain tract of land (describing it) To Have and to hold to the only proper
use and behoof of His said Majesty, his Heirs and Successors for ever.
The
deed contained a covenant for quiet enjoyment as follows:—
And
we the said Chiefs for ourselves and the whole of our said Nations, and their
Heirs, do covenant, promise and agree to and with his said Majesty (for quiet
enjoyment by his Majesty, his heirs and Successors).
And
then concludes:
And
by these presents do make this our act and deed irrevocable under any pretence
whatever, and have put his said Majesty in full possession and seizin by
allowing houses to be built upon the premises.
The
deed appears to have been recorded in the office of the clerk of the crown, in
the district of Hesse, on the 22nd day of June, 1790.
On the
7th of December, 1792, a deed was executed which purports to be an indenture
made between Five Chiefs of the Mississaga Indian Nation, of the one part, and
our Sovereign Lord George the 3rd, King, &c., &c., of the other part,
which recites an indenture, bearing date the 22nd of May, 1784, made between
the ten persons (naming them and describing them as Sachems, War Chiefs and
principal Women of the Mississaga Indian Nation), of the one part, and our said
[Page 657]
Sovereign
Lord George the third, King, &c., &c., of the other part, whereby the
said Sachems, principal Chiefs and Women, in consideration of £1180, 7s. 4d., lawful money
of Great Britain, did grant, bargain, sell, alien, release and confirm unto his
said Majesty, his Heirs and Successors (certain lands therein particularly
described); it then recites that there was found to be a certain error in that
description, and that it was necessary and expedient that the boundary lines of
the said parcel of land should be accurately laid down and described, the said
chiefs, therefore, parties to the said deed of December, 1792, did thereby
acknowledge and declare
That
the true and real description of the said tract or parcel of land so bargained,
sold, aliened and transferred by and to the parties aforesaid is all that tract
or parcel of land lying and being, &c. (describing it by a corrected
description), and therefore the said five chiefs (naming them) in consideration
of the aforesaid sum of £1180 7s. 4d., so paid as
therein aforesaid, and of the further sum of five shillings to them in hand
paid and for the better ratifying and confirming the thereinbefore recited
indenture, did grant, bargain, sell and confirm unto his Majesty, his heirs and
successors, all that tract of land (describing it by the corrected
description), to have and to hold to His Majesty, his heirs and successors for
ever.
The
deed then contains the clause following:
And
whereas at a conference held by John Collins and William R. Crawford, Esquires,
with the principal chiefs of the Mississaga nation (Mr, John Rousseau as
interpreter) it was unanimously agreed that the king shall have a right to make
roads through the Mississaga country; that the navigation of the said rivers
and lakes shall be open and free for his vessels and those of his subjects;
that the king’s subjects should carry on
a free trade, unmolested, in and through the country; now this indenture doth
hereby ratify and confirm the said conference and agreement so had between the
parties aforesaid, giving and granting to his said Majesty power and right to
make roads through the said Mississaga country, together with the navigation of
the said rivers and lakes for his vessels and those of his subjects trading
thereon free and unmolested. In witness whereof the chiefs, on the part of the
Mississaga nation, and His Excellency John Graves Simcoe, Lieutenant Governor
of the said province, &c., on the part of His Britannic Majesty, have
hereunto set their hands and seals, &c., &c.
[Page 658]
The
deed is executed by the four chiefs and the. Lieutenant Governor,,
In the
interval between the years 1792 and 1836. many instruments similar in
character, some in the form of deeds poll by way of grant and surrender, and
others in form of deeds of bargain and sale, were from time to time executed by
the Indians in the customary Indian manner, whereby divers large tracts of
country situate within the Province of Upper Canada were granted, and
surrendered, and sold, and transferred to the reigning sovereign for the time
being in pursuance of resolutions passed in solemn councils of the respective
nations of Indians occupying and claiming title to the lands so granted and
surrendered. One of those deeds, which was executed by the Mississagas of the
Bay of Quinté in 1835, when we reflect that the form of those surrenders has been
in every case devised by officials acting on behalf of the crown, and not by
the Indians themselves is very instructive as to the light in which the Indian
title has always been regarded by the crown. It is as follows:
Know
all men by these presents that we (here follows the names of five Indians),
sachems and chief warriors of the Mississaga tribe of Indians of the Bay of
Quinté, in the Province of Upper Canada, in consideration of the trust and
confidence by us reposed in His Most Gracious Majesty King William the Fourth, and
in order that His said Most Gracious Majesty, his Heirs and Successors, may
grant and dispose of the lands and tenements hereinafter comprised and
described for the benefit of the said Indians, in such manner and form, and at
such price or prices, as to His Majesty His Heirs and Successors shall seem
best, do remise, release, surrender, quit claim and yield up unto His Majesty
King William the Fourth, his Heirs and Successors, all and singular those
certain parcels of land (&c. &c., &c., describing them) to the end,
intent, and purpose that the said lands and premises shall and may be granted
and disposed of by His said Majesty, his Heirs and Successors, in trust, for
the benefit of the said Indians and upon and for no other use, trust and intent
or purpose whatsoever. In witness whereof we the said Sachems and Chief
Warriors of the said Indians have hereunto set our hand& and seals at Grape
Island, in the Province aforesaid, the
[Page 659]
15th
December, 1835.
The
deed is executed by the five Chiefs in the presence of J.B. Clench, then
Superintendent of Indian Affairs, and two others.
In the
month of August, 1836, Sir Francis Head, then Lieutenant Governor of Upper
Canada, deeming the resolution of the Indians in council assembled to be the
material element in effectuating the extinction of the Indian title, dispensed
with the subsequent execution of any deed, and obtained the surrender to the
crown of several large tracts of country by submitting certain propositions in
writing (containing terms of surrender) to the Indians, to be considered by
them in council, which, upon being approved and signed by the Chiefs in council
assembled, constituted the surrenders. In his reports communicating the
surrenders to Lord Glenelg, then Colonial Secretary, the Lieutenant Governor,
after enumerating the tracts of land so acquired, says:—
I
have thus obtained for his Majesty’s
Government from the Indians an immense portion of most valuable land.
Although
the opinion entertained by Sir Francis Head that the act of the Indians in
Council was all that was necessary to effectuate the surrenders may be admitted
to be correct, still in point of fact this would seem to have been the only
occasion upon which deeds were dispensed with—unless the surrender by the Saugeen
and Owen Sound Indians in 1854 can be considered another. The resolution in
council in that case seems to have been prepared with the view of serving both
as the resolution in council and a deed of surrender, for it is framed in the
form of a deed—and, indeed, all the
resolutions of the Indians in their councils, being signed by the Chiefs with
their totems according to Indian custom, may be regarded as deeds. The
surrender of 1854 above referred is in the following form:—
[Page 660]
We
the Chiefs, Sachems and Principal men of the Indian tribes resident at Saugeen
and Owen Sound confiding in the wisdom and protecting care of our Great Mother
across the Big Lake, and believing that our good Father, His Excellency the
Earl of Elgin and Kincardine, Governor General of Canada, is anxiously desirous
to promote those interests which will most largely conduce to the welfare of
his Red children, have now, being in full Council assembled, in presence of the
Superintendent General of Indian affairs and of the young men of both tribes,
agreed that it will be highly desirable for us to make a full and complete
surrender to the Crown of that Peninsula known as the Saugeen and Owen Sound
Indian Reserve, subject to certain restrictions and Reservations to be
hereinafter set forth.
We
have therefore set our marks to this document, after having heard the same read
to us, and do hereby surrender the whole of the above named tract of country,
bounded &c., with the following reservations, to wit—
then
followed those paragraphs describing three several blocks of land out of the
tract, one for the occupation of the Saugeen Indians, another for the
occupation of the Owen Sound Indians, and the third for the occupation of the
Colpoy’s Bay Indians.
The
instrument then proceeded:
All
which reserves we hereby retain to ourselves and our children in perpetuity.
And it is agreed that the interest of the principal sum arising out of the sale
of our lands shall be regularly paid, so long as there are Indians left to
represent our tribe, without diminution, at half yearly periods. And we hereby
request the sanction of our Great Father, the Governor General, to this
surrender, which we consider highly conducive to our general interests. It is
understood that no islands are included in this surrender.
This
instrument was executed under the respective hands and seals of the Chief
Superintendent of Indian Affairs and of the several chiefs, sachems, and
principal men of the tribe.
In the
interval between 1886 and the passing of the British North America Act several
surrenders of large tracts of land were made by the Indians to the crown by
deeds executed by the chiefs and principal men of the tribes of Indians
occupying and claiming title to such lands. In some of the instruments so
executed
[Page 661]
the
Indians specially reserved to their own use and occupation, from the operation
of the deeds of surrender, certain specified tracts within the limits of the
tracts as described in the instruments. In some cases the surrenders were made,
as in that of 1854 above set out, upon the express condition and trust that the
monies to be realized from sale of the lands surrendered should be applied by
the crown for the benefit of the Indians.
Now, in
1837, an act, 7 Wm. 4 ch. 118, was passed by the Legislature of the Province of
Upper Canada, entituled “An Act to provide for the
disposal of the Public lands in this Province and other purposes therein
mentioned.”
The act
was passed for regulating the issue of Letters Patent granting lands known as
and designated “crown lands,” “clergy reserves” and “school lands,” all of which lands were
placed under the control of an officer styled the commissioner of crown lands,
and the proceeds arising from the sale thereof were to be accounted for by him
to the Receiver General, as forming part of the public revenue of the Province.
The act did not affect any lands for the cession of which to His Majesty no
agreement had been made with the Indian Tribes occupying and claiming title to
the same, nor any lands which, although surrendered by the Indians to the
crown, were so surrendered for the purpose of being sold and the proceeds
applied for the maintenance of and benefit of the Indians themselves. These
lands were all designated Indian lands, and the sale of those surrendered to be
sold for the benefit of the Indians themselves, and the management and
investment of the proceeds arising from their sale, were placed by the crown
under the management of a special officer called the Chief Superintendent of
Indian Affairs, who was under the direct super-
[Page 662]
vision
of the Lieutenant Governor for the time being as representing Her Majesty, and
who was accountable to the Imperial Treasury Department. The term “public lands,” as used in the act in
relation to lands known as “crown lands,” “clergy reserves” and “school lands,” as distinguished from
those known as “Indian lands,” has been maintained in
several acts of the legislature of the Province of Upper Canada, viz., 4 and 5
Vic. ch. 100, 16 Vic ch. 159, Consolidated Statutes of Canada ch. 22, 23 Vic.
ch. 2 and 23 Vic. ch. 151. By this last act it was enacted, that from and after
the 1st day of July, 1861, the Commissioner of Crown lands for the time being
should be Chief Superintendent of Indian Affairs, and that all lands reserved
for the Indians, or for any tribe or band of Indians, or held in trust for
their benefit, should be deemed to be reserved and held for the same purposes
as before the passing of the act, but subject to its provisions, and that no
release or surrender of lands reserved for the use of the Indians, or of any
tribe or band of Indians, should be valid except upon condition that such
release or surrender should be assented to by the chief or, if more than one
chief, by a majority of the chiefs of the tribe or band of Indians assembled at
a meeting or council of the tribe or band summoned for that purpose according
to their rules and entitled to vote thereat, and held in the presence of an
officer duly authorised to attend such council by the Commissioner of Crown
Lands, and that nothing in the act contained should render valid any release or
surrender other than to the crown; and it was further enacted that—
The
Governor in Council may, from time to time, declare the provisions of the act
respecting the sale and management of “the
public lands,” passed in the present
session, or of the twenty-third chapter of the Consolidated Statutes of Canada,
intituled “An Act respecting the sale
and management of the timber on public
[Page 663]
lands” or any of such provisions,
to apply to Indian lands or to the timber on Indian lands, and the same shall
thereupon apply and have effect as if they were expressly recited or embodied
in this act.
The
inviolable manner in which the Indian title as declared by the Proclamation of
1763 has been recognised amply justifies the language of the commissioners
appointed by the crown to report upon Indian affairs in the Province of Upper
Canada in 1842 and 1856. The former commissioners in their report say:—
The
Proclamation of His Majesty George the third issued in 1763 furnished the
Indians with a fresh guarantee for the possession of their hunting grounds and
the protection of the crown. This document the Indians look upon as their
charter. They have preserved a copy of it to the present time, and have
referred to it on several occasions in their representations to the Government.
And
again:—
Since
1763 the Government, adhering to the Royal Proclamation of that year, have not
considered themselves entitled to dispossess the Indians of their lands without
entering into an agreement with them and rendering them some compensation.
The
commissioners of 1856 in their report say;—
By
the Proclamation of 1763 territorial rights, akin to those asserted by
Sovereign Princes, are recognised as belonging to the Indians, that is to say,
that none of their land can be alienated save by treaty made publicly between
the crown and them. Later, however, as this was found insufficient to check the
whites from entering into bargains with the Indians for portions of their lands
or for the timber growing thereon, it has been found necessary to pass
stringent enactments for the protection of the Indian Reserves.
After
the most explicit recognition by the crown of the Indian title for upwards of a
century in the most solemn manner—by
treaties entered into between the crown and the Indian nations in council
assembled according to their national custom, and by deeds of cession to the
crown and of purchase by the crown, prepared by officers of the crown for
execution by the Indians—it cannot, in my opinion,
admit of a doubt that at the time of the passing of the British North America
Act the Indians in Upper Canada were acknowledged by the crown to have, and
that they
[Page 664]
had, an
estate, title and interest in all lands in that part of the Province of Canada
formerly constituting Upper Canada for the cession of which to the crown no
agreement had been made with the nations or tribes occupying the same as their
hunting grounds, or claiming title thereto, which estate, title and interest
could be divested or extinguished in no other manner than by cession made in
the most solemn manner to the crown. These cessions were made sometimes upon
purchases made by the crown for the use of the public, in which case the lands
so acquired became “Public lands” because the revenue to be
derived from their sale was appropriated for the benefit of the public and was
paid into the Provincial Treasury. Sometimes the cessions were made to the
crown upon trust for sale and investment of the proceeds for the benefit of the
Indians themselves, and sometimes upon trust to grant to some person upon whom
the Indians desired to confer a benefit for special services rendered to them;
but all such lands, until the cession thereof should be made by the Indians to
the crown, constituted what were known as and designated “Indian Reserves,” “Lands reserved for the Indians,” or “Indian lands.” It is the lands not
ceded to or purchased by the crown which are spoken of in the
proclamation of 1763 as the lands reserved to the Indians for their
hunting ground—and the unceded lands have
ever since been known by the designation “Lands reserved for the Indians” or “Indian Reserves.”
When
the Indians in the deeds or treaties by way of cession of land to the crown
reserved from out of the general description of the lands given in the
instruments of cession, as they often did, certain particularly described
portions of the lands so generally described, for the special uses, occupation
or residence of particu-
[Page 665]
lar
bands, the parts so reserved did not come under the operation of the deed or
treaty of cession, but were reserved and excepted out of it and so continued to
be just as they were before, lands not ceded to, or purchased by, the crown,
and therefore remained still within the designation of “Lands reserved for the Indians,” or “Indian Reserves.”
It was
not the exception of the particular parcels from the operation of the
instrument of cession which made such parts come within designation of “Lands reserved for Indians” or “Indian Reserves,” but because, being so
excepted, they remained in the position they were before, namely, lands not yet
ceded to or purchased by the crown.
Now the
lands upon which the timber which is the subject of this suit was cut, although
admitted to have been within the limits of the old Province of Upper Canada,
were, at the time of the passing of the B.N.A. Act, lands for the cession of
which to Her Majesty no agreement had been made with the Indian Nations or
Tribes occupying the same as their hunting ground and claiming title thereto;
the lands had not been ceded to or purchased by the crown; they were not
therefore “Public lands” within the meaning of the
statutes above referred to, viz;—4
and 5 Vic. ch. 100, 16 Vic. ch. 159, C.S.C. ch. 22, or 23 Vic. ch. 2. It was
not competent for the Provincial Government to have sold the lands or any part
thereof, for the lands, not having been yet ceded to or purchased by the crown,
did not come under the designation of “Crown
Lands” within the meaning of the
above acts. No revenue could have been derived from the land which could have
passed to the Province of Canada under the statute of 1846—9 Vic. ch. 114—by which the crown
surrendered to the Provincial Legislature in exchange for a civil list all the
casual and territorial
[Page 666]
revenue
of the crown. The Indians, whenever they should cede those lands to the crown
might cede them only upon trust for sale and investment of the proceeds for the
benefit of the Indians themselves, so that the public might never acquire any
interest whatever in the monies arising from the sale of the lands.
From
these considerations it follows, in my opinion, as an incontrovertible
proposition, that in lands situate as those lands were at the time of the
passing of the B.N.A. Act, namely, lands which had not been ceded by the
Indians to the crown, the province or government of Ontario did not acquire by
that act any vested interest. The lands did not come within item No. 5 of
section 92, nor within section 109 of the act, but did, in my
opinion, come within item 24 of section 91, which placed “Indians” and “lands reserved for the
Indians” under the legislative
control of the Dominion Parliament. The B.N.A. Act did not contemplate making,
and has not made, any alteration in the relations existing of old between the
Indians and his Majesty, either in respect of the estate, title, and interest
of the former in their lands not yet ceded to the crown, or indeed in respect
of any other matter, further than to place all matters affecting the Indians
under the control and administration of her Majesty’s government of the Dominion of Canada
and the parliament of the Dominion. The provincial government or legislature
having been given no control whatever over Indian affairs, the power of
entering into a treaty or agreement with the Indians for obtaining from them a
cession of the lands in question became vested in her Majesty, freed from the
operation of the Canada statute, 23 Vic. ch. 151, which became null and of
no further validity. The B.N.A. Act having removed the Indians and their affairs
wholly from under the management of a provincial Commissioner of Crown
[Page 667]
Lands,
such an officer could no longer be Chief Superintendent of Affairs. The
authorities of the Province of Ontario are invested by the B.N.A. Act with no
jurisdiction whatever over the Indians, their lands or their affairs. All these
matters are by the act placed under the exclusive jurisdiction of the Dominion
authorities. The power, therefore, of entering into a treaty between her
Majesty and the Indians for the cession to her Majesty of their acknowledged
title to any territory within the limits of the province not yet ceded to the
crown can, since the passing of the B.N.A. Act, be exercised only either under
the authority of an act of the Dominion Parliament or, in the absence of such
an act, by her Majesty acting through the instrumentality of the Governor
General of the Dominion as her representative and the Dominion Government, in
whom and in the Indians claiming title to the land to be ceded must be vested
the right of arranging the terms of the treaty of cession. It was in this
manner that her Majesty did enter into the treaty with the Indians for the
cession of the lands upon which the timber grew the right to which is in
question now.
In the
year 1873 a commission was issued by the Dominion Government to the Honorable
Alexander Morris, then Lieutenant-Governor of Manitoba, Lieut.-Colonel
Provencher, then Commissioner of Indian Affairs, and S.J. Dawson, Esq., then a
member of the Dominion House of Commons, appointing them commissioners upon
behalf of her Majesty to treat with the Indians for the surrender to the crown
of the lands now under consideration, and at a council of the Indians held in
the month of October, 1873, after three days’ spent in negotiating the terms of the
cession, a treaty was concluded in the following terms:
Articles
of treaty made and concluded this third day of October, 1873, between Her Most
Gracious Majesty the Queen of Great
[Page 668]
Britain
and Ireland by her commissioners, the Honorable Alexander Morris, Lieutenant‑Governor
of the Province of Manitoba and the North-West Territories, Joseph Albert
Herbert Provencher and Simon James Dawson, of the one part, and the Saulteaux
tribe of Ojibbeway Indians, inhabitants of the country hereinafter defined and
described by their chiefs chosen and named as hereinafter mentioned, of the
other part.
The
treaty then recites the assembling in council of the Indians inhabiting the
territory, and the appointment by them in council of twenty-four chiefs and
head men (naming them) to conduct on their behalf negotiations for a treaty
with her Majesty’s commissioners, and to
sign any treaty to be founded upon such negotiations, and that the said
commissioners and the said Indians had finally agreed upon and concluded a
treaty as follows:—
The
Saulteaux tribe of the Ojibbeway Indians and all other the Indians inhabiting
the district hereinafter described and defined do hereby cede, release, surrender,
and yield up to the government of the Dominion of Canada, for Her Majesty the
Queen and her successors forever, all their rights, title and privileges
whatsoever to the lands included within the following limits, that is to say:
(Here
follows a description of the lands).
To
have and to hold the same to Her Majesty the Queen and her successors for ever.
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves
for farming lands, due respect being had to lands at present cultivated by the
said Indians, and also to lay aside and reserve for the benefit of the said
Indians, to be administered and dealt with for them by Her Majesty’s Government of the
Dominion of Canada, in such manner as shall seem best, other reserves of land
in the said territory hereby ceded, which said reserves shall be selected and
set aside where it shall be deemed most convenient and advantageous for each
band of Indians by the officers of the said government appointed for that
purpose, and such selection shall be so made after conference with the Indians.
Provided, however, that such reserve, whether for farming or other purposes,
shall in nowise exceed one square mile for each family of five, or in that
proportion for larger or smaller families, and such selection shall be made if
possible during the course of next summer, or as soon thereafter as may be
found practicable, it being understood, however, that if, at
[Page 669]
the
time of any such selection of any reserves as aforesaid, there are any settlers
within the bounds of the lands reserved by any Band, Her Majesty reserves the
right to deal with such settlers as she shall deem just, so as not to diminish
the extent of land allotted to the Indians, and provided also, that the
aforesaid reserves of lands, or any interest or right therein or appurtenant
thereto, may be sold leased or otherwise disposed of by the said Government for
the use and benefit of the said Indians with the consent of the Indians
entitled thereto first had and obtained.
And
with a view to shew the satisfaction of Her Majesty with the behaviour and good
conduct of her Indians she hereby, through her Commissioners, makes them a
present of twelve dollars for each man, woman and child belonging to the bands
here represented, in extinguishment of all claims heretofore preferred.
And
further Her Majesty agrees to maintain Schools for instruction in such reserves
hereby made as to her government of her Dominion of Canada may seem advisable,
whenever the Indians of the reserve shall desire it.
Her
Majesty further agrees with her said Indians, that within the boundary of
Indian Reserves, until otherwise determined by the Government of the Dominion
of Canada, no intoxicating liquor shall be allowed to be introduced or sold,
and all laws now in force, or hereafter to be enacted, to preserve her Indian
subjects inhabiting the reserves, or living elsewhere within her North-West
territories, from the evil use of intoxicating liquors, shall be strictly
enforced.
Her
Majesty further agrees with her said Indians that they the said Indians shall
have the right to pursue their avocations of hunting and fishing throughout the
tract surrendered as hereinbefore described, subject to such regulations as may
from time to time be made by her Government of the Dominion of Canada, and
saving and excepting such tracts as may from time to time be required or taken
up for settlement, mining, lumbering or other purposes by her said Government
of the Dominion of Canada, or by any of the subjects thereof duly authorised
therefor by the said Government.
It
is further agreed between Her Majesty and her said Indians that such
sections of the reserves above indicated as may at any time be required
for public works or building of what nature soever, may be appropriated for
that purpose by Her Majesty’s Government of the
Dominion of Canada, due compensation being made for the value of any
improvements thereon.
And
further, that Her Majesty’s Commissioners shall, as
soon as possible after the execution of this treaty, cause to be taken an
accurate census of all the Indians inhabiting the tracts above
[Page 670]
described,
distributing them in families, and shall in every year ensuing the date hereof,
at some period in each year to be duly notified to the lndians, and at a place
or places to be appointed for that purpose within the territory ceded, pay to
each Indian person the sum of Five Dollars per head yearly.
It
is further agreed between Her Majesty and the said Indians that the sum of
fifteen hundred dollars per annum shall be yearly and every year expended by
Her Majesty in the purchase of amunition and twine for nets for the use of the
said Indians.
It
is further agreed between Her Majesty and the said Indians that the following
articles shall be supplied to any Band of the said Indians who are now actually
cultivating the soil, or who shall hereafter commence to cultivate the land,
that is to say (here follows the enumeration of several agricultural
implements).
All
the aforesaid articles to be given once for all for the encouragement of the
practice of agriculture among the Indians.
It
is further agreed between Her Majesty and the said Indians that each Chief duly
recognized as such shall receive an annual salary of twenty-five dollars per
annum, and each subordinate officer not exceeding three for each Band shall
receive fifteen dollars per annum; and each such Chief and subordinate officer
as aforesaid shall also receive once in every three years a suitable suit of
clothing; and each Chief shall receive, in recognition of the closing of this
treaty, a suitable flag and medal.
And
the undersigned chiefs, on their own behalf and on behalf of all other Indians
inhabiting the tract within ceded, do hereby solemnly promise and engage to
strictly observe this treaty, and also to conduct and behave themselves as good
and loyal subjects of Her Majesty the Queen. They promise and engage that they
will in all respects obey and abide by the law; that they will maintain peace
and good order between each other, and also between themselves and other tribes
of Indians, and between themselves and other subjects of Her Majesty, whether
Indians or Whites, now inhabiting or hereafter to inhabit any part of the said
ceded tract; and that they will not molest the person or property of any
inhabitant of such ceded tract, or the property of Her Majesty the Queen, or
interfere with or trouble any person passing or travelling through the said
tract or any part thereof; and that they will aid and assist the officers of
Her Majesty in bringing to justice and punishment any Indian offending against
the stipulations of this treaty, or infringing the laws in force in the country
so ceded.
In
witness whereof Her Majesty’s said Commissioners and
the said Indian Chiefs have hereunto subscribed and set their hands at the
[Page 671]
North-west
angle of the Lake of the Woods the day and year first herein above mentioned.
The
treaty is thus co-executed by the three Commissioners and the twenty-four
Indian chiefs, in the presence of seventeen persons who subscribe their names
as witnesses to the signatures of the several parties, and to the fact of the
treaty having been first read over and explained by the Honorable James McKay.
Now it is to be observed, that the faith of Her Majesty is solemnly pledged to
the faithful observance of this treaty, and the government of the Dominion of
Canada is made the instrument by which the obligations contained in it, which are
incurred by and on behalf of Her Majesty, are to be fulfilled. The land ceded
supplies the primary and indeed the only source from which the funds required
to maintain the schools contemplated by the treaty, and to meet all the other
pecuniary payments and obligations incurred, can be raised. The benefits
received and to be received by the Indians under the treaty are in effect so
many fruits issuing from their own acknowledged estate and interest in the
lands ceded. The administration and management of the estate constituting the
source from which the funds required to meet the obligations incurred by the
treaty must remain under the control of the Dominion of Canada, which alone, by
the B.N.A. Act, has jurisdiction in relation to the Indians and their affairs,
at least until a sum shall be realized which, in the judgment of Her Majesty’s government of the
Dominion having the obligations of the treaty imposed upon them, shall be
deemed sufficient to supply for all time to come the necessary funds. That
portion of the ceded territory which shall be composed of the contemplated
reserves, equal in extent to one square mile for every family of five, if sold,
being to be sold for the benefit of the Indians themselves, must be sold by the
[Page 672]
Dominion
Government, upon whom is imposed the duty of investing and administering the
proceeds for the benefit of the Indians interested in each particular parcel;
but if the contention of the Province of Ontario is to prevail the whole ceded
tract, which constitutes the source from which alone the obligations incurred
by the Dominion Government by the treaty can be fulfilled, becomes upon the
passing of the B.N.A. Act and by force of that act absolutely and exclusively
the property of the Province of Ontario, and therefore the Dominion of Canada
have not and cannot have any control over these lands either for the purposes
of the treaty or any other purpose. The Dominion, therefore, can have no
control over, nor can the Indians have any interest in, the reserves
contemplated in the treaty of one square mile for every family of five. If any
part of the ceded tract became by the B.N.A. Act the property of the Province
of Ontario, as is contended, these reserves did equally with all other parts,
for all of it was then in the same condition, and the contention of the
Province in substance and effect is, that by force of the B.N.A. Act the whole
territory, upon the passing of that act, became the property of the Province of
Ontario, and that therefore no part of it, not even the contemplated reserves,
can be affected by the terms of the treaty, which cannot affect the rights
acquired by the Province under the B.N.A. Act. To obtain a judicial decision to
the above effect, by what appears to me a strange procedure, Her Majesty’s name is used by the
Province for the purpose of having the treaty which has been solemnly entered
into by Her Majesty with the Indians, and for the faithful observance of which
Her Majesty is solemnly pledged to the Indians, declared to be void and of none
effect.
The
learned Chancellor of Ontario, in his judgment
[Page 673]
pronounced
in this case, draws from certain language of mine in Church v. Fenton the conclusion that the
lands now under consideration cannot come within item 24 of sec. 91 of the
British North America Act as “lands reserved for the
Indians,” but that Ianguage, read in
the sense which was intended by me, leads to the contrary conclusion. The
contention of the plaintiff in that case was, that the land in question there,
which was part of the tract ceded by the Saugeen and Owen Sound Indians by the
above recited treaty of 1854, did come within that item, and that therefore it
was not liable to be sold for mere payment of taxes. The point adjudged was,
that from the time that a contract of sale of the lot in question to a
purchaser was entered into by the chief superintendent of Indian affairs, after
the cession by the Indians of the land for sale for their benefit, the interest
of the purchaser became liable to taxation precisely as the interest of a
purchaser of crown lands would be, and that the patent for the lands in
question having been issued to the purchaser before the sale for taxes under
which the defendant claimed took place, the title of the defendant under that
sale must prevail. In the course of my judgment I expressed the opinion that
lands surrendered by the Indians, as the tract under consideration there was,
for the purpose of being sold, although when sold the proceeds arising from the
sale were to be applied for the benefit of the Indians, did not come within the
designation of “lands reserved for the
Indians” within item 24 of
sec. 91 of the British North America Act, that expression being, as I
thought, more appropriate in relation to “unsurrendered lands” than to lands in which the
Indian title had been extinguished.
Lands
for the cession of which to Her Majesty
[Page 674]
no
agreement had been made with the tribes occupying and claiming title to the
same, and which were situate within the limits of the old Province of Upper
Canadas have always been, in my opinion, considered to come within the
designation of “lands reserved for the
Indians,” or “Indian reserves,” or “Indian lands.” These lands have always
been regarded as Indian hunting grounds. My object was to draw a distinction
between lands not ceded by the Indians to the crown and those which had been
ceded by them; lands coming within the latter class not being, in my opinion,
within the item 24 of section 91, while those of the former class, to
which the lands now under consideration did belong at the time of the passing
of the British North America Act, do come within that item.
The
proclamation of 1763, which may be called the Indians’ Bill of Eights, treats these unceded
lands as being “lands reserved for the
Indians as their hunting grounds,”
and as such they have always been regarded in that part of Her Majesty’s dominions which formerly
constituted the Province of Upper Canada, within the limits of which old
province it is admitted that at the time of the passing of the British North
America Act the tract under consideration was situate.
Upon
the whole, therefore, I am of opinion that the tract in question did not become
“public lands belonging to
the Province of Ontario” by force of the British
North America Act; that the right to sell the said tract, or any part thereof,
and to issue letters patent therefor, or the right to sell the timber growing
thereon, did not pass to the Province of Ontario by force of the act; that the
Indian title in the tract remained the same after the passing of the act as it
had been before; that the Indians had an estate, title, and interest in the
tract as
[Page 675]
their
hunting ground, declared and acknowledged in the most solemn manner by all the
sovereigns of Great Britain since the proclamation of 1763, which precluded the
Provincial Government from interfering; therewith in any manner, and which
title, estate, and interest could only be divested and extinguished by a
cession made in solemn manner by the Indians to Her Majesty; that the British
North America Act did not invest the provincial authorities of Ontario with
power or right to enter into any treaty with the Indians for the cession of
such their estate, title and interest to Her Majesty; that such power and right
remained in Her Majesty to be exercised by her through the instrumentality of
her Government of the Dominion of Canada and her representative the Governor
General; that the treaty of October, 1873, entered into with Indians for the
cession of the tract in question is obligatory upon the Dominion Government,
who are bound to fulfil the obligations therein contained upon the part of Her
Majesty to be fulfilled, and for such purpose are entitled to deal with the
lands and the timber growing thereon, unless and until some contract be entered
into between the Government of the Province of Ontario and the Dominion
Government for the acquisition by the Province of a beneficial interest in any
revenue to be derived from the sale of the said lands or of the timber growing
thereon.
The
Province of Ontario not having acquired such beneficial interest by the British
North America Act nor by the terms of the treaty, such beneficial interest can,
in my opinion, be acquired only by contract with the Government of the
Dominion.
The
latter part of sec. 109 of the British North America Act, viz: “Subject to any trusts
existing in respect thereof and to any interest other than that of the Province
therein,” applies, in my opinion,
only to lands beneficially
[Page 676]
belonging
to the Province at the time of the Union, that is to say “public lands,” the revenues arising from
the sale of which (the lands having been already ceded by the Indians to the
crown) formed part of the public revenue of the Province, and has no
application to lands which at the time of the passing of the British North
America Act had not been ceded by the Indians to the crown. But, assuming that
part of section 109 to have any application in the present case, then, as
it appears to me, the “trusts” and “interest” in the sentence referred
to must be held to be the “purposes” mentioned in the treaty,
in consideration of which the cession was made, and the interest which the
Indians have in the due fulfilment of the terms of the treaty, of which the
Dominion Government are the trustees, and are, therefore, entitled to hold the property
ceded in the terms of the treaty of cession as their security and means of
executing the trusts imposed on them, unless and until some agreement shall be
entered into between the Provincial government and them. In fine, I am of
opinion, that at the time of the commencement of this suit the Provincial
Government had not, and that they have not now, any vested interest in the
timber which is the subject of this suit, and that, therefore, their suit or
claim must be dismissed with costs, and that this appeal be allowed with costs.
Appeal dismissed with
costs.
Solicitors for appellant:
McCarthy, Osler, Hoskin & Creelman.
Solicitor for respondent:
The Attorney General for Ontario.
The
following sections of the act bear upon the point in question:—
“Sec. 92.
In each Province the Legislature may exclusively make laws in relation to
matters coming within the classes of subjects next hereinafter enumerated, that
is to say—
“5. The management
and sale of the public lands belonging to the Province and of the timber and
wood thereon.
“Sec. 109.
All lands, mines, minerals and royalties belonging to the several Provinces of
Canada, Nova Scotia and New Brunswick at the Union, and all sums then due or
payable for such lands, mines, minerals and royalties, shall belong to the
several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which
the same are situate or arise, subject to any trusts existing in respect
thereof, and to any interest other than that of the Province in the same.
“Sec. 117.
The several Provinces shall retain all their respective public property not
otherwise disposed of in this act, subject to the right of Canada to assume any
lands or public property required for fortifications or for the defence of the
country.”
“Sec. 91.
It shall be lawful for the Queen by and with the advice and consent of the
Senate and House of Commons, to make laws for the peace, order and good
government of Canada, in relation to all matters not coming within the classes
of subjects by this act assigned exclusively to the Legislatures of the
Provinces; and for greater certainty, but not so to restrict the
generality of the foregoing terms of this section, it is hereby declared that
(notwithstanding anything in this act) the exclusive legislative authority of
the Parliament of Canada extends to all matters coming within the classes of
subjects next hereinafter enumerated, that is to say s:—
“24. Indians
and lands reserved for the Indians.”
Pp. 196
and 203, secs. 123 et seq.
Pp. 185,
199, 200, 214-6 and 312.
Vol. 1
part 1 pp. 164-6; Vol. 3 part 2 pp. 146, 164.
App. (E E
E) to Journals Ho. Ass., Can. 1844-5, page 24.
6 Hill
(N.Y.) 546; 5 Den. N.Y. 628.
5 Can.
S.C.R. 538; 8 App. Cas. 767.
Wheaton’s
International Law. Note 24.
5 Ed. Bk.
3 ch. 3 ss. 4, 5 & 6.
N.Y. Hist.
Doc. Vol. 1. pp. 56-58.
Bk. 1 Ch.
7 Sec. 81—Ch. 18 ss.
205-209.
Bk. 2 ch.
5 secs. 28, 32, 42.
Vol. 8 pp.
373-374. pp.441, 442.
Story on
the Constitution 4th Ed. ss. 687.
See, as to
conjoint effect of General v. Mercer, 8 App. Cas. at s. 109 and s. 92,
subs. 5, Attorney p. 776.
Kent’s
Commentaries 12 ed. by Holmes, vol. 3 p. 379 et seq. and in editor’s notes.
See
printed papers in arbitration case 371-373 and Ontario appendix to same 137.
39 Vic.
ch. 18; 43 Vic. ch. 28.
Doe
Fitzgerald v. Finn, 1 U. 24 U.C.C.P. 230; Rex v. Lelievre, C.Q.B.
70; Greenlaw v. Fraser, 1 Rev. de Jurisp. 506.
Boulton v.
Jeffreys,1 E. & A. (Ont) 111; Jackson v. Wilkes, 4 Q.B. (O.S.) 142; Bown v.
West, 1 E. & A. 117; Totten v. Watson, 15 U.C.Q.B. 392; Bastien v. Hoffman,
17 L.C.R. 238; The Commissioner of Indian Lands v. Payzant, 3 L.C.R. 313.
Email this Content