Supreme Court of Canada
Attorney-General For Canada v. Giroux, (1916) 53
S.C.R. 172
Date: 1916-05-02
The Attorney-General
for Canada (Plaintiff) Appellant;
and
Pierre Giroux (Defendant)
Respondent;
and
Onésime Bouchard Mis-En-Cause.
1916: February 2; 1916: May 2.
Present: Sir Charles Fitzpatrick C.J. and
Idington, Duff Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC.
Crown lands—Lands vesting in
Crown—Constitutional law—"B.N.A. Act, 1867" ss. 91 (24), 109-117—Title
to Indian lands"—Surrender—Sale by Commissioner—Property of Canada and provinces—Construction of statute—" Indian Act," 39 V. c. 18—R.S.C.
1886, c. 43, s. 42—Words and phrases—"Reserve"—"Person"—"Located
Indian"—Evidence—Public document—Legal maxim.
Per curiam.—The
"Indian Act," 39 Vict., chap. 18, does not prohibit the sale by the
Crown to an "Indian" of public lands which have, on surrender to the
Crown, ceased to be part of an Indian "reserve," nor prevent an
individual of Indian blood, who is a member of a band or tribe of Indians, from
acquiring title in such lands. The use of the word "person" in the
provisions of the "Indian Act" (39 Vict., chap. 18, s. 31; R.S.C,
1886, chap. 43, sec. 42), relating to sales of Indian lands, has not the effect
of excluding Indians from the class entitled to become purchasers of such lands
on account of the definition of that word in the interpretation clauses of the
statutes in question.
Per Idington
J.—Crown lands of the Province of Canada, situate in Lower Canada, which had
not (as provided by the statute 14 and 15 Vict., chap. 106), been surveyed and
set apart, as intended to be vested in the Commissioner of Indian Lands for
Lower Canada, and appropriated to the use of Indians prior to the 1st July,
1867, do not fall within the definition of "Lands reserved for the
Indians" in the 24th item enumerated in section 91 of the "British
North America Act, 1867" and, consequently, did not pass under the control
of the Government of the Dominion of Canada at the time of Confederation. In
regard, therefore, to
[Page 173]
the lands in question the presumption is that
they then became vested in the Crown in the right of the Province of Quebec, and, in the absence of evidence to the contrary, the Attorney-General for Canada cannot now enforce any claim of title to such lands in the right of the Dominion.
Per Duff and
Anglin JJ.—The order-in-council of 1869, authorizing the acceptance of a
surrender, and the surrender pursuant thereto by the Indians of the
"reserve" within which the lands in question are situate are public
documents the recitals in which are primâ facie evidence of the facts
stated therein (Sturla v. Freccia (5 App. Cas. 623), at pp.
643-4, referred to). Evidence is thereby afforded that the band of Indians occupied
the tract of land in question as a "reserve" and the principle "omnia
præsumuntur rite esse acta" is sufficient to justify, primâ facie, the
conclusion that the order-in-council of 1853, respecting the constitution of
the reserve, was carried out and that the occupation thereof by the Indians was
legal. Consequently, the rights acquired by the Indians constituted ownership,
the surrender by them to the Crown was validly made and the lands passed under
the control of the Government of Canada, at the time of Confederation, in
virtue of the provisions as to "Lands reserved for the Indians" in
section 91 of the "British North America Act, 1867." St.
Catherine's Milling and Lumber Co. v. The Queen (14 App. Cas. 46),
distinguished.
Judgment appealed from (Q.R. 24 K.B. 433),
affirmed.
APPEAL from the judgment of the Court of
King's Bench, appeal side
affirming the judgment of Letellier J., in the Superior Court, District of
Chicoutimi, dismissing the action.
The circumstances of the case are stated in
the judgments now reported.
G. G. Stuart K.C. and L. P. Girard for
the appellant.
L. G. Belley K.C., for the respondent.
The Chief
Justice.—The appellant, the Attorney-General for the
Dominion of Canada, claims in this suit to have it declared that the Crown is the
owner of a certain half-lot of land, being lot No. 3 of the first range, Canton
Ouiatchouan, in the Parish of St. Prime and County of Lake St. John.
[Page 174]
In the first paragraph of the amended
declaration it is stated that the Crown has always been and still is the owner
of the lot No. 3. This, however, is only inaccurate drafting of which there is
much in the record. There is no doubt that the claim of the Crown is only to
the south-east half of lot No. 3, and it is not disputed that the respondent
has a good title to the northwest half of lot No. 3, The respondent has been in
possession of the whole of lot No. 3 for upwards of a quarter of a century
during which time the Government has taken no effective steps to question his
right to any part of the lot.
By an order-in-council, dated August 9-11, 1853, approval was given to a schedule shewing the distribution of land set apart under
the statute 14 & 15 Vict., ch. 106, for the benefit of the Indian Tribes in
Lower Canada. Included in this schedule was a reservation in favour of the
Montagnais of Lake St. John. The half-lot in question was comprised in this
reservation.
On the 25th of June, 1869, the Montagnais Band of Indians surrendered to the Crown, for sale, a portion of the reservation
including lot No. 3. This land so surrendered was put up for sale and it would
appear that on the 21st June, 1873, the north-west half-lot No. 3 was sold to
the respondent and, on the 7th May, 1878, the south-east half-lot was sold to
one David Philippe.
Under a judgment obtained by the mis-en-cause,
O. Bouchard, against D. Philippe the latter's half of lot No. 3 was sold at a
sheriff's sale to the respondent on the 7th March, 1889.
The Crown alleges that David Philippe was an
Indian, that he was, at the time of the sheriff's sale, in possession of the
land on which he had been located
[Page 175]
by the Crown and that, consequently, the Crown
still held the half-lot as "Indian Lands" and as such liable neither
to taxation nor to execution.
The fallacy in this argument is in the statement
that David Philippe had been located on the land; it involves the proposition
that, whilst all the other lots into which the reserve had been divided were
sold outright to their purchasers, this particular half-lot was not sold to the
purchaser David Philippe, but that, being an Indian, he was only
"located" on the land in the meaning of that term in the "Indian
Act."
To shew the impossibility of supporting such a
contention it is only necessary to turn to the sections in point in the statute.
The Act in force on the 7th May, 1878, the date of the sale to David Philippe,
was the "Indian Act, 1876" (39 Vict., ch. 18). Section 3 is as
follows:—
3. The following terms contained in this
Act shall be held to have the meaning hereinafter assigned to them unless such
meaning be repugnant to the subject or inconsistent with the context.
(3) The term "Indian" means:
First, any male person of Indian blood
reputed to belong to a particular band * * *
(6) The term "Reserve" means any
tract or tracts of land set apart by treaty or otherwise for the use or benefit
of or granted to a particular band of Indians of which the legal title is in
the Crown, but which is unsurrendered. * * *
(8) The term "Indian Lands" means
any reserve or portion of a reserve which has been surrendered to the Crown. *
* *
(12)"The term "person" means
an individual other than an Indian, unless the context clearly requires another
construction.
By Section 5, the Superintendent-General
may authorize that the whole or any portion
of a reserve be subdivided into lots.
Section 6:
6. In a reserve or portion of a
reserve subdivided by survey into lots, no Indian shall be deemed to be
lawfully in possession of one or more of such lots, or part of a lot unless he
or she has been or shall be located for the same by the band, with the approval
of the Superintendent-General.
[Page 176]
Section 7:
7. On the Superintendent-General approving
of any location as aforesaid he shall issue in triplicate a ticket granting a
location to such Indian.
Section 8:
The conferring of any such location-title
as aforesaid shall not have the effect of rendering the land covered thereby
subject to seizure under legal process or transferable except to an Indian of
the same band.
The statute, it will be observed, makes
provision for the conferring of a location-title only on a reserve, that
is on unsurrendered lands and then by the band, not by the Crown.
Then after sections 25 and following, dealing
with surrenders of reserves to the Crown, we have sections 29 and following
under the caption "Management and Sale of Indian Lands." There is no
suggestion in these sections, or anywhere else in the Act, that Indian lands
may not be sold to an Indian.
I suppose it may well be that it would not be a
common occurrence for an Indian to be a purchaser at a sale of Indian lands,
but it is one thing to say the statute did not contemplate this and quite
another to say that it intended to forbid it. I can imagine no reason why an
Indian should not purchase such lands; there is no doubt as to his capacity to
hold real estate. This is recognized by section 64, which provides that :
No Indian or non-treaty Indian shall be
liable to be taxed for any real or personal property, unless he holds real
estate under lease or in fee simple, or personal property, outside of the
reserve or special reserve, in which case he shall be liable to be taxed for
such real or personal property at the same rate as other persons in the
locality in which it is situate.
This really disposes of the appellant's case
but, out of respect for the learned judge of the Court of King's Bench who
dissented from the majority of the court and one of whose points is taken up in
the appellants' factum, a few words may be added.
[Page 177]
The whole ground of the dissenting opinion is
really in the following paragraph:
Les Indiens d'une tribu localisée sur une
réserve pourraient se réunir en conseil d'une manière solennelle et décider (si
la majorité de la bande le voulait) de remettre tout ou partie de cette réserve
à la Couronne et alors la Couronne vendrait ou disposerait de ce qu'elle
reçevrait ainsi, dans l'intérêt de la tribu indienne et pour son bénéfice
exclusif, mais à la condition—dont
la nécessité se voit très bien—de
ne jamais vendre une partie quelconque de ces réserves à des sauvages-. On a
même pris le soin de dire que toute "personne" pourrait devenir acquéreur de ces propriétés mais qu'un
sauvage ne pourrait pas être une de ces personnes.
I am myself quite unable to appreciate the
necessity or occasion for any such condition as the learned judge suggests but
it is unnecessary to discuss this because, as far as I have been able to
ascertain, it is purely imaginary. The judge says further on:
Ce nommé Phillippe était un sauvage, et la loi
défendait positivement qu'un sauvage pût acquérir cette propriété.
No reference is given and I know of no such
prohibition, positive or otherwise.
The point taken in appellant's factum that a
"person," as defined by the "Indian Act," does not include
an Indian has reference to the section dealing with certificates of sale which
is section 31 of 39 Vict., ch. 18 and section 42 of chapter 43, Revised
Statutes of Canada. There seems to be some obscurity about this section because
the marginal note which has been carried through all the amendments and
revisions of the Act is "Effect of former certificates of sale or
receipts." The section, however, seems to look to future certificates and,
as I apprehend, is designed to meet the inconvenience of delay in the issue of
patents. Be that as it may, the section does not provide that any
"person" may purchase these lands but that an Indian may not be one
of these "persons": all that it does provide is that a certificate of
sale or
[Page 178]
receipt for money, duly registered as therein
mentioned, shall give the purchaser the same rights as he would have under a
patent from the Crown.
The definition of terms is, at the commencement
of section 3, said to apply only when not inconsistent with the context and
this is emphasized by its special repetition in the 12th item in which the word
"person" is defined. I cannot think that such an accidental use of
the word "person" for "purchaser", or any other word to
indicate him could possibly be held to involve by inference a positive law
against an Indian becoming a purchaser for which prohibition there is no other
warrant. I think in such case the context would clearly require another
construction.
But this is not all; the appellant has assumed
that the case is governed by the "Indian Act," chapter 43 of the
Revised Statutes of 1.886, but this is not so, and when we look at the
"Indian Act" of 1876 we find that the word "person" does
not occur at all in the extract quoted by the appellant which sets forth what
the certificate of sale or receipt for money shall entitle the purchaser to.
The word used is "party" shewing conclusively that the legislature
had no intention, even by an inference through the interpretation section, to
prevent the acquisition by an Indian of Indian lands put up for sale.
The word "party" is several times used
when distinctly intended to include both "persons" and
"Indians." See sections 12 and 14.
This substitution in the revised statute of the
word "person" for the word "party" is an instance of the
danger attending such changes in the revision of the statutes. Obviously the
revisers had no idea of enacting an important law by the change they made but
regarded it simply as a linguistic embellishment;
[Page 179]
it has, however, misled two of the judges of the
Court of King's Bench into finding a positive law against the sale of Indian
lands to an Indian.
At the hearing I was considerably impressed with
the argument that, even if there had never been a valid sale to David Philippe,
the transactions between Euchère Otis, the local agent of the
Superintendent-General, and the respondent constituted a sale to the latter
which was also confirmed by the Department of Indian Affairs. If, however, the
views that I have previously expressed are correct it is unnecessary to
consider this point further. If the sale to David Philippe, in 1878, was good,
the Crown had nothing left to grant to Giroux in 1889.
Judge Pelletier, delivering the dissenting
judgment in the Court of King's Bench, says that he has endeavoured to find in
the record the necessary grounds for confirming the judgment, since such
confirmation (if it could be legally given) would seem to him more in
accordance with equity. With this view I agree and it is therefore satisfactory
to be able to conclude that the judgment is in conformity not only with equity
in its most general meaning but also with the law.
The appeal should be dismissed with costs.
Idington J.—The appellant seeks to have the Crown declared the proprietor of
part of a lot of land in Quebec and respondent removed therefrom and ordered to
account for the fruits thereof for the past twenty-six years.
The circumstances under which the claim is made
are peculiar and some novel questions of law are raised. Much diversity of
judicial opinion in the courts below seems to exist relative to some of these
questions.
To put the matter briefly, the appellant claims
that the land in question is part of a tract of land known
[Page 180]
as an "Indian Reserve," which had
become vested by virtue of certain legislation in the Crown, in trust for a
tribe of Indians; that part of it was thereafter surrendered by the tribe to
the Crown for purposes of sale for the benefit of said tribe; that this part of
the lot now in question was in course of time sold to an Indian of said tribe;
that he paid five 25/100 dollars on account of the purchase; that thereafter,
under a judgment got against him, the land was sold by the sheriff to
respondent for $500; that thereupon he paid to the Indian Department $164 as
the balance of the purchase-money due the Crown, and procured the receipt
therefor, which appears hereinafter, from the local sales agent of the Indian
Department; that he then went into possession and improved the land and has
remained so possessed ever since till, according to assessed values, it has
risen from being worth only $500 in 1889, when respondent entered, to be worth
$3,200, in 1913, when this litigation was pending; that the Indian purchaser
was incapacitated by statute from buying lands in a "Reserve"; and
that the sheriff's sale was, as part of the result, null and void and hence
that respondent got nothing by his purchase.
To realize the force and effect of these several
allegations we must examine the statutes upon which the rights of the Indians
rested, their, powers of surrender thereunder, and the effect of the
"British North America Act" under and by virtue of which the claim of
the appellant is asserted.
The Parliament of Old Canada, by 14 & 15
Vict. ch. 106, enacted:
That tracts of land in Lower Canada, not
exceeding in the whole two hundred and thirty thousand acres, may, under
orders-in-council to be made in that behalf, be described, surveyed and set out
by the Commissioner of Crown Lands, and such tracts of land shall be and are
hereby respectively set apart and appropriated to and for the use of the
several Indian Tribes in Lower Canada, for which they shall be
[Page 181]
respectively directed to be set apart in
any order-in-council, to be made as aforesaid, and the said tracts of land
shall accordingly, by virtue of this Act, and without any price or payment
being required therefor, be vested in and managed by the Commissioner of Indian
Lands for Lower Canada, under the Act passed in the session held in the
thirteenth and fourteenth years of Her Majesty's Reign, and intituled, An
"Act for the better protection of the Lands and Property of the Indians in
Lower Canada."
In the last mentioned Act, chapter 42 of 13
& 14 Vict., there is enacted:
It shall be lawful for the Governor to
appoint from time to time a Commissioner of Indian Lands for Lower Canada in
whom and in whose successors by the name aforesaid all the lands or property in
Lower Canada which are or shall be set apart, or appropriated to or for the use
of any tribe or, body of Indians, shall be and are hereby vested in trust for
such tribe or body and who shall be held in law to be in the occupation and
possession of any lands in Lower Canada actually occupied or possessed by any
such tribe or body in common or by any chief or member thereof or other party
for the use or benefit of such tribe or body and shall be entitled to receive
and recover the rents issues and profits of such lands and property, and shall
and may, in and by the name aforesaid, be subject to the provisions hereinafter
made, exercise and defend all or any of the rights lawfully appertaining to the
proprietor, possessor or occupant of such land or property.
In the evidence in the case there is a certified
copy of an order-in-council of August, 1853, which reads as follows:—
On the letter from the Honourable
Commissioner of Crown Lands, dated 8th June, 1853, submitting for approval a
schedule shewing the distribution of the area of land set apart and
appropriated under the statute 14 & 15 Vict., ch. 106, for the benefit of
the Indian Tribes in Lower Canada.
The Committee humbly advise that the said
schedule be approved and that the lands referred to be distributed and
appropriated as therein proposed.
This is vouched for by a certificate of the
Assistant-Commissioner of Crown Lands, in 1889.
The schedule referred to in the said
order-in-council does not appear in evidence. Neither does the fetter.
There does, however, appear a schedule in the
case, certified by the same Assistant-Commissioner of Crown Lands and of same
date as last mentioned certificate. This on its face cannot be the schedule
referred to in said order-in-council. It is as follows:—
[Page 182]
[Page 183]
I may remark that the marginal note
Surveyed. Exchanged for a tract on the west
shore of Lake St. John. Surveyed.
cannot have formed part of an order-in-council
in 1853. That note is something evidently written in after the date of the
order-in-council and I infer has been a note made by someone in reference to an
exchange proposed on 4th September, 1856, to which I am about to refer.
Who wrote it? When was it written? By what
authority?
The certificate seems as presented in the case
to be placed higher up than the note at left hand side and signed by Mr.
Wauhebe. It is probable, however, the certificate was intended to present this
note as part of the original record purported to be certified to.
What then does the date signify in this note? It
is of February, 1858. Who was Mr. Wauhebe? What office did he fill? What was
the purpose of the extract as it left his hands? Was the marginal note part of
what he seems to be certifying to?
The importance of a definite answer to these queries
and all implied therein becomes apparent when we find that the title of the
Crown, as represented by appellant, depends upon the effect to be given the
most indefinite terms of an order-in-council of the 4th September, 1856, which
is as follows:—
On the application of the Montagnais Tribe
of Indians of the Saguenay, thro' David E. Price, Esq’r, M. P. P. for the
appointment of Mr. Georges McKenzie as interpreter and to distribute all moneys
or goods given to the Tribe; and for the grant of a tract of land on Lake St.
John, commencing at the River Ouiatchouanish, to form a township of six miles
square; also, that the grant of £50 per annum, may be increased to £100, and
continue annually.
The report from the Crown Land Department
dated 25th July, 1856, states that the tract of land set apart for the
Montagnais Indians, lies in the Township of Metabetchouan, west side of the
river of that name and that this land, together with the tract at Peribonca,
north
[Page 184]
side of Lake St. John, are still reserved
for those Indians, but that as they appear desirous of obtaining a grant of the
land at Pointe Bleue, on the western border of Lake St. John, there appears no
objection to an exchange.
The Committee recommend that the exchange
be effected and the grant made accordingly.
Certified,
(Sgd.)
Wm. H. Lee,
C. E.
C.
To the Supt.-Gen'l Indian Affairs,
etc., etc., etc.
Certified a true copy.
Duncan Scott.
Deputy Superintendent-General of Indian
Affairs
There is nothing in the case to explain what was
done pursuant to this order, and when, if anything ever was done. There is
nothing in the printed case shewing any definite survey ever was made of the
lands thus recommended to be given in exchange for the lands which had been
allotted to some Indians.
The Act of 14 & 15 Vict., ch. 106, makes it
clear by the above quotation therefrom that orders-in-council setting apart
land for the use of Indians should be described, surveyed and set out by the
Commissioner of Crown Lands, and that only in such event can such tracts of
land be considered as set apart and appropriated for the use of the Indians.
Again, it is clearly intended by the earlier
enactment of 13 & 14 Vict. that the lands intended to be vested in the
Commissioner of Indian Lands are such as have been set apart or appropriated to
the use of Indians. When we consider that the lands to be so vested by virtue
of those Acts are to be only lands which have been surveyed and set apart by
the Commissioner of Crown Lands, it is very clear that something more than an
order-in-council," such as that produced, merely approving of the proposed
scheme of exchange, was needed to vest lands at Point Bleue in the Commissioner
of Indian Lands.
[Page 185]
Yet, strange to say, there is nothing of the
kind in the case or anything from which it can be fairly inferred that the
necessary steps ever had been taken.
Counsel for the appellant referred to a blue
print in the record; and I understood him to suggest it was made in 1866.
Examining it, I can find no date upon it; but I
do find another plan purporting to be a survey made by one Dumais, P. L. S., in
1866. Probably it is by reference thereto he fixed the date of the blue print,
if I understood him correctly.
This latter plan has stamped upon it the words
"Department of Indian Affairs, Ottawa, Canada"; and inside these, set
in a circle, are the words "Survey Branch, True, Reduced Copy, W. A.
Austin, 18.6.00." I infer that probably the latter plan is but a reduced
copy of the former and that both refer to some survey made in 1866.
So far as I can find from the case, or the
record from which the case is taken, the foregoing presents all there is
entitling appellant to assert a title in the Crown on behalf of the Dominion.
Clearly the order-in-council recommending an
exchange, without more, furnishes no evidence of title.
It might be said with some force, but for the
constitutional history of Canada involved in the inquiry, that what we do find
later on furnishes something from which after such lapse of years some
inferences might be drawn. There are two difficulties in the way. All that
transpired after the 1st of July, 1867, when the "British North America
Act" came into force, can be of no effect unless and until we have
established a state of facts, preceding that date, which would enable the
"British North America Act" by its operation to
[Page 186]
give control of the said lands to the Crown on
behalf of the Dominion.
By section 91, sub-section 24 of said Act, one
of the subject matters over which the Dominion Parliament was given exclusive
legislative authority was "Indians and Lands reserved for Indians."
The question is thus raised whether or not the
lands in question herein fall definitely within the term "Lands reserved
for Indians."
The Dominion Parliament, immediately after Confederation,
by 31 Vict., ch. 42, asserted its legislative authority over such lands as
reserved for Indians.
All that took place afterwards relative to the
lands in question can be of no effect in law unless the alleged reserve had
been duly constituted on or before the 1st July, 1867.
It seems impossible on such evidence as thus
presented to find anything bringing the lands in question within the scope of
and under the operation of the "British North America Act."
But there is another difficulty created by the
enactment, in 1860, by the Parliament of Old Canada of 23 Vict., ch. 151, sec.
4, which provides as follows:—
4. No release or surrender of lands
reserved for the use of Indians, or of any tribe or band of Indians, shall be
valid or binding except on the following conditions.
This is followed by two sub-sections which
specify the steps which must be taken to enable a surrender to be made. It is
to be observed that this was passed within three years and ten months from the
order-in-council recommending, the exchange made of the lands on the Peribonca and Metabetchouan rivers held as reserves for the Indians in question.
If the survey and setting apart contemplated by
the proposed exchange was not made and fully completed
[Page 187]
by the 30th June, 1860, when the bill, which had
been reserved by the Governor in May, was assented to, the completion of that
exchange would require the due observance by the Indians of the form of
surrender imperatively required by the last mentioned Act.
There is nothing to indicate this ever was
complied with. Hence surveys made in 1866, or any time after 30th June, 1860, cannot help without evidence of such compliance.
There is no evidence of any Indians in fact
having been found on the Pointe Bleue reservation before the year 1869.
If one had to speculate he might infer something
took place between 1866 and 1869. But we are not at liberty do do so, or found
a judgment herein for appellant, without evidence or only upon the merest
scintilla thereof.
The appeal therefore fails in my opinion. I
think the distinction claimed by Mr. Stewart to exist between reserves duly
constituted under the Acts above referred to, whereby the land became vested in
commissioners in trust, and such reserves as involved in the case of St.
Catherine's Milling and Lumber Company v. The Queen, and
some other cases referred to, was well taken.
But, as this case stands, there being no
evidence of the land having been duly vested before 1st July, 1867, in
commissioners in trust, or otherwise falling within the operation of the
"British North America Act," section 91, sub-section 24, the
presumption is in favour of the land being vested in the Crown on behalf of
Quebec.
[Page 188]
Assuming, for argument's sake, that there is any
evidence upon which to find the land vested in the Crown on behalf of the
Dominion and that there is evidence of a sale by the Crown to David Phillippe,
upon which he paid only five 25/100 dollars, how does that help the appellant?
Admitting the invalidity of the sale and nullity
of the sheriff's sale, and discarding both as null, there is evidence which
goes far to establish the recognition by the Crown of the respondent as the
purchaser. The local agent gave respondent the following receipt:—
Roberval,
Pointe Bleue, 22 juin, 1889.
$164.32.
Reçu de M. Pierre Giroux la somme de cent
soixant et quatre piastres et 32 cents, en payement du ½ lot S. E. No.
Rang 1er. du Township Ouiatchouan suivant instruction de Dep. et avec contrat
de Vente pour le dit ½ lot.
L. E.
Otis, A.S.
And the Department of Indian Affairs, at Ottawa, set down in its books a recognition of respondent as purchaser.
It would have been, I incline to think, quite
competent for the Crown under all the circumstances, and without any detriment
either to the trust or anything else, to have taken the position in 1889, as
may be inferred was done, that the said receipt and entry in the books should
stand forever as a final disposition of the affair.
The reasons against such a course of action
being taken by the Crown were of rather a technical character; even assuming
Phillippe was debarred from buying, upon which I pass no opinion.
Under the law as it has long existed there was
the possibility of recognizing any Indian qualified to be enfranchised and
thereby beyond doubt entitled to
[Page 189]
become a buyer. It may be inferred even at this
distance of time that if the questions now raised had, at the time when
respondent was set down in the books of the department as purchaser of the
lands in question, been viewed in light thereof and the foregoing circumstances
and especially having regard to the fact that, in any event, Phillippe alone
was to blame, and had no more substantial grievance at least none worth more
than $5.25 to set up, and seeing respondent had contributed $500 to pay his
debts and paid practically the whole purchase money to the Crown, no harm would
have been done by letting the recognition of respondent stand.
I must not be understood as holding that there
cannot be discovered abundant evidence to cover the very palpable defects I
point out in the proof of title adduced herein.
This is not one of the many cases wherein
probabilities must be weighed.
It is upon the record as it presents the title
to the lot in question that we must pass. Fortunately the result does justice
herein even if the result of blunders in failing to produce evidence which may
exist.
The appeal must be dismissed with costs.
Duff J.—The action out of which this appeal arises was brought in the
Superior Court for the District of Chicoutimi, in the Province of Quebec, by the Attorney-General of the Dominion on behalf of the Crown claiming a declaration
that a certain lot of land was the property of the Crown and possession of the
same.
The three questions which it will be necessary
to discuss are:—
[Page 190]
First.—Was the lot in question within the limits
of an Indian Reserve constituted under the authority of 14 & 15
Vict., ch. 106?
Second.—If so, is the title vested in His
Majesty in right of the Dominion of Canada or has the Attorney-General of Canada, on other grounds, a title to maintain the action?
Third.—Was a professed sale of the lot made in
1878 to one David Philipe, member of the Montagnais tribe by an agent of the
Department of Indian Affairs, a valid sale?
I shall first state the facts bearing upon the
first and second of these questions. On the 9th of August, 1853, an
order-in-council was passed by which certain tracts of land were severally
appropriated for the benefit of the Indian tribes in Lower Canada under the
authority of the statute above mentioned. Two tracts were set apart for the
benefit of the Montagnais Band, one on the Metabetchouan and one on the Peribonca river in the Saguenay district. A few years afterwards, on the request of the
tribe, the Governor in Council sanctioned an exchange of the Peribonca tract
for a tract at Pointe Bleue, Ouiatchouan, on the western border of Lake St. John. In August, 1869, the Governor-General in Council, by order, accepted what
professed to be a surrender by the Montagnais Indians of the reserve
constituting the Township of Ouiatchouan which admittedly is the tract of land
that the order-in-council of 1851 authorized to be substituted for the
Peribonca Reserve. In view of the contention that the exchange was never
effected it is desirable to set out this order-in-council and the surrender in
full. They are as follows:—
[Page 191]
Copy of a Report of a Committee of the
Honourable the Privy Council, approved by His Excellency the Governor-General
in Council on the 17th August, 1869.
The Committee have had under consideration
a memorandum dated 3rd August, 1869, from the Hon. the Secretary of State
submitting for acceptance by Your Excellency in Council under the provisions of
the 8th section of the Act, 31 Vict., Chap. 42, a surrender bearing date the
25th of June, 1869, executed at Metabetchouan, in the District of Chicoutimi,
by Basil Usisorina, Luke Usisorina, Mark Pise Thewamerin and others, parties
thereto as chiefs and principal men of the Band of Montagnais Indians, claiming
to be those for whose benefit the reserve at Lake St. John, known as the
Township of Ouiatchouan, was set apart, executed in the presence of Rev'd
Dominique Racine, authorized by the Hon. the Secretary of State to receive said
surrender and in that of the Hon. Mr. Justice Roy, Judge of the Superior Court
in the District of Chicoutimi, such surrender conveying their interest and
right in certain lands on the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ranges
of the said Township of Ouiatchouan, indicated on the copy of a map by
provincial surveyor P. H. Dumais, dated A.D. 1866, attached to the said
surrender and vesting the lands so surrendered in the Crown in trust to sell
and convey the same for the benefit of the said Indians, and their descendants,
and on condition that the moneys received in payment for the same shall be
placed at interest in order to such interest being periodically divided among
the said Montagnais Indians.
The Committee advise that the surrender be
accepted and enrolled in the usual manner in the office of the
Registrar-General.
Certified,
(Sgd.)
Wm. H. Lee, Clk. P. C.
Certified a true copy.
Duncan Scott,
Deputy Superintendent-General of Indian
Affairs.
Surrender by the Band of Montagnais Indians
for whom was set apart the Reserve of the Township of Ouiatchouan, in the Province of Quebec, to Her Majesty Queen Victoria, of their lands in the Indian Reserve
there, as described below, to be sold for their benefit. KNOW ALL MEN that the
undersigned Chief and Principal Men of the above mentioned band living on the
above mentioned reserve, for and acting on behalf of our people, do hereby
remise, release, surrender, quit-claim and yield up to our Sovereign Lady the
Queen, Her Heirs and Successors forever, all and singular those certain
parcels, or tracts of land situated in the Dominion of Canada and in that part
of the said Province of Quebec, being composed of concessions one, two, three,
parts of four, five, six and the whole of seven and eight, in the said Township
of Ouiatchouan, as described and set forth in the map or plan hereunto annexed.
To have and to hold the same unto Her said
Majesty the Queen, Her Heirs and Successors forever, in trust, to sell and
convey the same to such person or persons and upon such terms as the Government
of the said Dominion of Canada shall or may deem most conducive to
[Page 192]
the interest of us, the said Chief and
Principal Men and our people in all the time to come and upon the further
condition that the moneys received from the sale thereof shall, after deducting
the usual proportion for expense of management, be placed at interest, and that
the interest money so accruing from such investment shall be paid annually, or
semi-annually to us and our descendants. And we the said Chiefs and principal
men of the band aforesaid do, on behalf of our people and for ourselves, hereby
ratify and confirm and promise to ratify and confirm whatever the Government of
this Dominion of Canada may do or cause to be lawfully done in connection with
the disposal and sale of the said lands.
In WITNESS THEREOF, the said Chiefs and
principal men have set our hands and affixed our seal unto this instrument in
the said Province of Quebec, at Post Metabetchouan. Done at our Council-House
this twenty-fifth day of June, in the year of our Lord one thousand eight
hundred and sixty-nine.
Signed, sealed and delivered in the
presence of:
D. Roy,
Judge of the Superior Court and of the
District of Chicoutimi. Signed by the Chief and thirty-six other Indians,
members of the Band.
Since the acceptance of this surrender the lands
have been dealt with by the Department of Indian Affairs as lands surrendered,
under the provisions of the "Indian Act" and held by the Crown under
that Act.
First, then, of the contention that the
Ouiatchouan Reserve was never lawfully constituted. The order-in-council and
the surrender registered pursuant to the order-in-council constitute, in my
judgment, together, a public document within the meaning of the rule stated in Taylor on Evidence, 1769a, and the recitals in this document are, therefore, primâ
facie evidence of the facts stated. (See Sturla v. Frecc a, et
al.
at 643-4). Evidence is thereby afforded that the Montagnais Band of Indians did
occupy this tract of land as a reserve and the principle omnia prœsumuntur
rite esse acta is sufficient to justify, primâ facie, the conclusion
that the order-
[Page 193]
in-council was carried out and that their
occupation was a legal one.
The second question depends upon the character
of the Indian title to this reserve at the time the "British North America
Act" came into force. If at that time there was vested in the Crown in
right of the Province of Canada an interest in these lands which properly falls
within the description "land," as that word is used in section 109 of
the "British North America Act," or within the word
"property" within the meaning of section 117, then that interest (as
it is not suggested that section 108 has any application), passed to the
Province of Quebec. It is necessary, therefore, to consider the nature of the
Indian title and, as that depends upon the meaning and effect of certain parts
of chapter 14, C.S.L.C., it will be convenient to set out these provisions in
full. They are as follows:—
7. Le gourverneur
pourra nommer, au besoin, un Commissaire des terres des Sauvages pour le
Bas-Canada, qui, ainsi que ses successeurs, sous le nom susdit, sera mis en
possession, pour et au nom de toute tribu ou peuplade de sauvages, de toutes
les terres ou propriétés dans le Bas-Canada, affectées a l'usage d'aucune tribu
ou peuplade de Sauvages, et sera censé en loi occuper et posseder aucune des
terres dans le Bas-Canada, actuellement possedées ou occupées par toute telle
tribu ou peuplade, ou par tout chef ou membre d'icelle, ou autre personne, pour
l'usage ou profit de tells tribu ou peuplade; et il aura droit de recevoir et
recouvrer les rentes, redevances et profits, provenant de telles terres et
propriétés, et sous le nom susdit; mais eu egard aux dispositions ci-dessous
établies, il exercera et maintiendra tous et chacun les droits qui
appartiennent légitimement aux propriétaires, possesseurs ou occupants de
telles terres ou propriétés.
* * * * *
8. Toutes les
poursuites, actions ou procédures portées par ou contre le dit commissaire,
seront intentées et conduites par ou contre lui, sous le nom susdit seulement,
et ne seront pas périmées or discontinuées par son décès, sa destitution ou sa resignation, mais seront continuées par ou
contre son successeur en office.
2. Tel commissaire
aura, dans chaque district civil du Bas-Canada, un bureau qui sera son domicile
légal, et où tout ordre, avis ou autre procédure pourra lui être légalement
signifié; et il pourra nommer des
[Page 194]
députes, et leur déléguer tels pouvoir qu'il
jugera expédient de leur déléguer de temps à autre, ou qu'il recevra ordre du
gouverneur de leur déléguer. 13 & 14 V., c. 42, s. 2, moins le proviso.
9. Le dit commissaire
pourra conceder ou louer, ou grever toute telle terre ou propriété, comme
susdit, et reçevoir ou recouvrer les rentes, redevances et profits en
provenant, de même que tout propriétaire, possesseur ou occupant légitime de
telle terre pourrait le faire; mais il sera soumis, en toute chose, aux
instructions qu'il pourra reçevoir de temps à autre du gouverneur, et il sera
personnellement responsable à la couronne de tous ses actes et plus
particulièrement de tout acte fait contrairement à ces instructions, et il
rendra compte de tous les deniers par
lui reçus, et les emploiera de telle manière, en tel temps, et les paiera à
telle personne ou officier qui pourra être nommé par le gouverneur, et il fera
rapport, de temps à autre, de toutes les matières relatives à sa charge, en
telle manière et forme, et donnera tel cautionnement que le gouverneur
prescrira et éxigera; et tous les deniers et effets mobiliers qu'il reçevra ou
qui viendront en sa possession, en sa qualité de commissaire, s'il n'en a pas
rendu compte, et s'ils ne sont pas employés et payés comme susdit, ou s'ils ne
sont pas remis par toute personne, qui aura été commissaire à son successeur en
charge, pourront être recouvrés de toute personne qui aura été commissaire, et
de ses cautions, conjointement et solidairement, par la couronne, ou par tel
successeur en charge dans aucune cour ayant juridiction civile, jusqu'a concurrence
du montant ou de la valeur. 13 & 14 V., c. 42, s. 3.
12. Des étendues de
terre, dans le Bas-Canada, n'excédant pas en totalité deux cent trente mille
acres, pourront (en autant que la chose n'a pas encore été faite sous l'autorité de l'acte 14
& 15, V., c. 106), en vertu des ordres-en-conseil emanés à cet égard, être désignées,
arpentées et reservées par le commissaire des terres de la couronne; et ces
étendues de terre seront respectivement reservées et affectées à l'usage des
diverses tribus sauvages du Bas-Canada, pour lesquelles, respectivement, il est
ordonné qu'elles soieut reservées par tout ordre-en-conseil emané comme susdit;
et les dites étendues de terre seront, en conséquence, en vertu du présent
acte, et sans condition de prix ni de paiement, transferées au Commissaire des
terres des Sauvages pour le Bas-Canada, et par lui administrées conformement au
présent acte. 14 & 15 V., c. 106, s. 1.
The tract in question was
set apart under the authority of section 12. Our inquiry concerns the effect of
sections 7, 8 and 9 as touching the nature of the Indian interest.
First. It may be observed that the Commissioner
is to hold the Indian lands "pur
et au nom" of the tribe or
band and that he is deemed in law to occupy
[Page 195]
and to possess them "pour
l'usage et au profit de telle tribu ou peuplade." These appear to be the dominating provisions and they express the
intention that any ownership, possession or right vested in the Commissioner is
vested in him for the benefit of the Indians. Therefore, the rights which are
expressly given him are rights which are to be exercised by him for them as by
tutor for pupil.
Looking at the ensemble of the rights and
powers expressly given I can entertain no doubt that in the sum they amount to
ownership. By paragraph 7 he is given a right to receive and to recover the
rents and profits
et il exercera et maintiendra tous et chacun
les droits qui appartiennent légitimement aux propriétaires.
By section 9:—
Le dit commissaire pourra concéder ou louer,
ou grever toute telle terre ou propriéte, comme susdit, et recevoir et
recouvrer les rentes redevances et profits en provenant, de même que tout
propriétaire, possesseur ou occupant légitime de telle terre pourra le faire.
This in the sum, I repeat, is ownership; and none
the less so that in the administration of the property the Commissioner is
accountable to the Governor. The Governor in this respect does not represent
the Crown as proprietor but as parens patriœ.
It seems to follow that, on the passing of the
"British North America Act," this ownership passed under the
legislative jurisdiction of the Dominion as falling within the subject
"Indian Lands," and I see no reason to doubt that the provisions of
the Act of 1868 (sec. 26, ch. 42),
by which the Secretary of State, as Superintendent-General of Indian Affairs,
was substituted for the Commissioner provided for by the enactments just cited
as the trustee of the Indian title were well within the authority of the
Parliament of Canada; nor can I see on what ground it
[Page 196]
could be contended that the provisions of the
"Indian Act" (ch. 43, R.S.C.), providing for the surrender of Indian
lands or the provisions relating to the sale of the same after the surrender
are not within the ambit of that authority.
But it is argued that, on the surrender being
made, the lands, under the authority of St. Catherine's Milling and Lumber
Co. v. The Queen,
became vested in the Crown and fell under the control of the province. There
are two answers. First: The Indian interest being, as I have pointed out,
ownership is by the terms of the surrender a surrender to Her Majesty in trust
to be dealt with in a certain manner for the benefit of the Indians. The
Dominion Parliament, having plenary authority to deal with the subject of "Indian
Lands" and having authorized such a transfer of the Indian title, it is
difficult to see on what ground the transfer could be held not to take effect
according to its terms or on what ground the trusts, upon which the transfer
was accepted, can be treated as non-operative.
Secondly. If I am right in my view as to the
character of the Indian title, it is obvious that any interest of the Crown was
a contingent interest to become vested only in the event of the disappearance
of the Indians while the lands remained unsold. If that event had taken place,
it may be that there would have been a resulting trust in favour of the Crown
and if the lands in such an eventuality remained unsold in the hands of the
Dominion the question might arise whether as a "royalty" the Crown in
the right of the province would not be entitled to the benefit of them. But all
this has no application here. So long as the band exists the band is the
beneficial owner of the land in question or of the monies arising out of the
sale of them.
[Page 197]
The distinction between this case and the case
of the St. Catherine's Milling Company,
is not difficult to perceive. The Privy Council held in that case that the
right of the Indians, resting on the proclamation of 1873, was a "personal
and unsufructuary right" depending entirely upon the bounty of the Crown.
The Crown had a paramount and substantial interest at the time of
Confederation, which interest remained within the province. The surrender of
the Indian right to the Crown (which was not, it may be observed, a surrender
to the Dominion Government), left the interest of the province unincumbered.
There is no analogy between that case and this, if I am right in my view that
the Indian interest amounted to beneficial ownership, the rights of ownership,
in some respects, being exercisable not by the Indians but by their statutory
tutor, the Commissioner. The surrender of that ownership in trust under the
terms of the instrument of 1868 cannot be held, without entirely defeating the
intention of it, to have the effect of destroying the beneficial interest of
the Indians.
The third question arises in this way.
Professing to act under the authority of the "Indian Act" (ch. 18 of
1876), the Indian agent, in May, 1878, sold the lot in question to one David
Philippe, a member of the Montagnais Band. On the 7th March, 1889, this land was sold by the sheriff under a judgment against Philippe, and adjudged to
the respondent Giroux. The appellant alleged that Philippe was not a competent
purchaser and that, by certain provisions of the statutes relating to Indians,
the sale to Philippe was forbidden and that the sale was contrary to law.
Two distinct points are made by Mr. Stuart.
[Page 198]
First, he says that the effect of section 42 of
the "Indian Act" (ch. 43, R.S.C., 1886), taken with section 2,
sub-secs, c and h, precludes an Indian, within the meaning of the
Act, from becoming the purchaser of any part of a surrendered reserve. Section
42, oh the literal construction of it might, no doubt, be held to confine the
benefits of the certificate of the sale or receipt for the money received on
the sale of Indian lands to a "person" within the meaning of section
2 (c), that is, to some individual other than an Indian. But the
conclusive objection to this line of argument is to be found in the Act of 1876
(ch. 18), which was in force when Phillipe purchased. Section 31 of that Act
dealt with the effect of a certificate of sale or a receipt for money received
on the sale of Indian lands. It is to the "party to whom the same was or
shall be made or granted" that the section refers and the definition of
"person" in the interpretation section is without effect.
The second point made rests upon sub-section 3
of section 77 of the Act, R.S.C. 1886, ch. 43, as amended by 51 Vict., ch. 22,
sec. 3. It will be convenient to set out sections 77 and 78 incorporating that
amendment. They are as follows—
Sec. 77. No Indian or non-treaty Indian
shall be liable to be taxed for any real or personal property, unless he holds,
in his individual right, real estate under a lease or in fee simple, or
personal property outside of the reserve or special reserve in which case he
shall be liable to be taxed for such real or personal property at the same rate
as other persons in the locality in which it is situate:
2. No taxes shall be levied on the real
property of any Indian, acquired under the enfranchisement clauses of this Act,
until the same has been declared liable to taxation by proclamation of the
Governor in Council, published in the Canada Gazette:
3. All land vested in the Crown or in any
person, in trust for or for the use of any Indian or non-treaty Indian or any
band or irregular band of Indians or non-treaty Indians, shall be exempt from
taxation, except those lands which, having been surrendered by the bands owning
them, though unpatented, have been located by or sold or
[Page 199]
agreed to be sold to any person; and,
except as against the Crown and any Indian located on the land, the same shall
be liable to taxation in like manner as other lands in the same locality; but
nothing herein contained shall interfere with the right of the
Superintendent-General to cancel the original sale or location of any land, or
shall render such land liable to taxation until it is again sold or located.
Sec. 78. No person shall take any security
or otherwise obtain any lien or charge, whether by mortgage, judgment or
otherwise, upon real or personal property of any Indian or non-treaty Indian,
except on real or personal property subject to taxation under the next
preceding section; but any person selling any article to an Indian or
non-treaty Indian may take security on such article for any part of the price
thereof which is unpaid. 43 V., c. 28, s. 77.
The argument is that "any Indian located on
the land" excludes an Indian purchaser under section 31 of the Act of
1876. I think that argument fails. The meaning of "located Indian,"
I think, is made sufficiently clear by reference to sections 16, 17, 18 and
20 of the Act of 1886 and, in my judgment, clearly refers to an Indian located
under those provisions, that is to say, an Indian who has been permitted to
occupy part of the reserve in respect of which he has a location ticket and
continues to occupy it notwithstanding the surrender of the reserve. The scheme
of these sections appears to be that real estate held by an Indian within the
reserve where he resides shall not be subject to taxation or to be charged by
mortgage or judgment, but it does not appear to be within the scheme to exempt
property purchased by an Indian as purchaser outside of the reserve on which he
is living. "Reserve," it may be observed, by reference to the
interpretation clause, does not apply to a surrendered reserve.
I may add that the Act does not appear to
contemplate the disabling of the Indians from acquiring property and engaging
in transactions outside the reserve. See section 67, for example, in addition
to sections 64, 65 and 66.
Anglin J. concurred with Duff J.
[Page 200]
Brodeur J.—Il s'agit d'une action pétitoire instituée
par le Procureur-Général de la Puissance du Canada demandant que la Couronne
soit déclarée propriétaire de la moitié sud-est du lot No. 3 dans la première concession du canton de Ouiatchouan.
Les faits qui ont donné lieu au présent litige sont
les suivants:
Le terrain en question faisait partie d'une réserve
sauvage établie en vertu de l'acte 14 & 15 Vict. c.
106. En 1869, la Bande des Sauvages Montagnais qui possédait la réserve a décidé de
céder et abandonner entr'autres la première concession du canton de Ouiatchouan. Plus tard, le 7 mai, 1878, le surintendant-général des affaires des sauvages a vendu à un nommé
David Philippe, pour la somme de $26.25, la propriété en question dans cette cause, qui faisait partie
originairement de la réserve des sauvages mais qui était tombée dans le domaine
de la Couronne à la suite de la cession faite par la bande.
David Philippe, ayant encouru certaines dettes,
jugement fut rendu contre lui et la propriété fut vendue par le shérif. Le
terrain fut adjugé au défendeurintimé, Giroux, qui en prit possession, le
défricha complètement et en fit une propriété de bonne valeur.
Des doutes ayant été soulevés par la Couronne sur
la validité du décret, l'acquérerur Giroux, pour éviter un procès avec le
Gouvernement, préféra prendre un titre de ce dernier et obtint de l'agent un
reçu qui se lit comme suit:
Roberval,
Pointe-Bleue, 22 juin, 1889.
$164.32.
Reçu de M. Pierre Giroux la somme de cent soixante-et-quatre piastres et 32 cents, en paiement du ½ lot S.E. No. Rang 1er. du Township
Ouiatchouan suivant instruction de Département et avec
contrat de, vente pour le dit ½ lot.
L. E. Otis, A.S.
[Page 201]
Cette nouvelle vente fut confirmée et approuvée par
le Ministère des Sauvages; elle fut également approuvée par le Département de
la Justice. Plus tard, cependant, nous voyons par la correspondance au dossier
que le Département des Sauvages ayant demandé l'opinion du Département de la
Justice sur la validité de la vente, en alléguant que le nommé Philippe était
un sauvage localisé sur la réserve et qu'il y avait lieu de s'enquérir si ce
fait n'affectait pas la validité de la vente judiciare, le Département de la
Justice a répondu que dans les circonstances, en vertu de la section 79 de "l'Acte des Sauvages," telle que amendée par 51 Victoria, ch. 12, sec. 75, la terre ne
pouvait pas être hypothéquée légalement et que la propriété ne pouvait pas être
vendue par autorité de justice.
Malgré cette opinion du Ministère de la Justice
aucune action ne parait avoir été prise par le Département que vingt-deux ans
après la vente judiciaire.
La première question qui se soulève est de savoir
si un sauvage peut acheter du Gouvernement un terrain qui était originairement
dans une réserve mais qui a été abandonné.
Lorsque les réserves sont abandonnées ainsi par les
sauvages, la Couronne voit à administrer, à vendre ou à louer ces terrains pour
le bénéfice et avantage des sauvages. En vertu de la loi, elle est obligée de
vendre ces terrains aux personnes qui se présentent les première et suivant les
prix qu'elle détermine.
Il y avait du doute de savoir si le nommé David Philippe était un sauvage ou non. Un
certain doute a même été exprimé sur la bande à laquelle il pouvait appartenir.
Les uns prétendent qu'il était Abénaquis, les autres Montagnais.
Mais en supposant même qu'il était un sauvage de
[Page 202]
la tribu des Montagnais, qu'il eût le droit comme
tel de vivre sur la réserve sauvage de la Pointe Bleue, il n'en est pas moins
vrai que du moment que cette réserve ou une partie de cette réserve était
abandonnée à la Couronne, rien n'empêchait un sauvage d'acheter un de ces
terrains ainsi abandonnés.
Les sauvages ont, relativement aux réserves, des
droits et des obligations restreintes; mais, du moment que ces réserves sont
abandonnées à la Couronne, il me semble qu'un sauvage pourrait avoir le droit
d'acheter un de ces terrains, de le cultiver, d'en faire les fruits siens et de
jouir sous ce rapport des mêmes droits et des mêmes privilèges que les blancs.
Prétendre le contraire serait, suivant moi, nier à ces sauvages le droit
de se développer et de faire partie d'une civilisation plus avancée.
. L'appelant allégue qu'il
n'y a que les blancs cependant qui peuvent acheter ces terrains de la Couronne.
Il n'y a pas de doute, je crois, qu'un sauvage
pourrait acheter, comme n'importe quel autre colon, des terres de la Couronne;
et il faudrait, suivant moi, un texte bien plus formel que celui de la section 42 qui nous a été cité pour prétendre que dans
le cas d'une réserve qui a appartenu jadis aux sauvages ces derniers seraient
empéchés de pouvoir s'y établir comme colons.
La section 42 de "l'Acte des Sauvages" de 1886, citée par M. Stuart, ne
peut pas être interprétée comme excluant les sauvages du droit de pouvoir
acheter.
Je considère donc que Philippe avait le droit
d'acheter ce terrain de la Couronne et que la vente judiciaire qui a été faite est valable et que Giroux est
devenu acquéreur par bon titre de la propriété réclamée par l'appelant.
Mais il y a plus. En supposant que la Couronne
[Page 203]
n'avait pas le droit de vendre la propriété à
Philippe il n'y a pas de doute qu'elle pouvait et qu'elle devait la vendre à
Giroux. Or, en 1889, la Couronne
elle-même s'est fait payer par Giroux une somme de $164.32
pour prix d'achat de la propriété en question et le
département a lui-même confirmé cette vente qui avait été faite par son agent.
Je considère donc que, dans les circonstances, il
ne peut pas y avoir de doute sur le droit de propriété de Giroux au terrain en
question et, par conséquent, le jugement des cours inférieures qui a renvoyé
l'action doit être confirmé avec dépens.
Appeal dismissed with costs.
Solicitor for the appellant : L. P. Girard.
Solicitor fo the respondent: L. G. Belley.
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