Supreme Court of Canada
Natural Parents v. Superintendent of Child Welfare et al., [1976] 2 S.C.R. 751
Date: 1975-10-07
The Natural Parents Appellants;
and
The Superintendent of Child Welfare and The Petitioners For Adoption Respondents;
and
Attorney General of Canada, Attorney General of Alberta, Attorney General of British Columbia, Attorney General of Ontario and Attorney General of Saskatchewan Intervenors.
1974: October 28, 29; 1975: October 7.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians—Adoption—Whether non-Indian parents may adopt Indian child—Applicability of provincial adoption legislation to Indians—Adoption Act, R.S.B.C. 1960, c. 4, s. 10, as amended by 1973 (B.C.) (2nd sess.), c. 95, s. 1—Indian Act, R.S.C. 1970, c. I-6, ss. 11, 88—British North America Act, 1867, s. 91(24).
A petition by the respondent petitioners (a non-Indian married couple) for the adoption of an Indian child was dismissed at first instance. The trial judge, although satisfied on the merits that an adoption order should be made without the consent of the natural parents, held that there was an inconsistency between the Adoption Act, R.S.B.C. 1960, c. 4, and the Indian Act, R.S.C. 1970, c. I-6, which precluded such an order. In his opinion, the Indian Act clothed those within its terms with a certain status from which alone certain rights arose, and that status would be obliterated by the operation of the Adoption Act. The British Columbia Court of Appeal was unanimously of the opinion that Indian status survived despite adoption. It held that the Adoption Act, as a provincial statute of general application, applied to the adoption of Indian children, and was blunted only to the extent of inconsistency with the Indian Act. The addition, between the date of the judgment at first instance and the hearing of the appeal, of s. 10(4a) to the Adoption Act (which sought to provide that s. 10 of the Act should not affect the status of an adopted Indian person acquired as an Indian under the Indian Act) reinforced the view that there was no infringement on matters within the Indian Act. The
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Indian Act would prevail if there was an inconsistency but that was no reason to hold that the Adoption Act could not apply at all to Indians.
The Court of Appeal also reached and rejected an issue as to the application of the Canadian Bill of Rights by holding (1) that s. 88 of the Indian Act did not referentially incorporate the Adoption Act so as to make it federal legislation for the purposes of the Canadian Bill of Rights, and (2) that even if there was referential incorporation, there was no violation of the Canadian Bill of Rights, either by way of discrimination on account of race or by way of inequality before the law, especially in the light of the concession by counsel for the natural parents that the Indian Act was valid federal legislation that did not in its relevant terms contravene the Canadian Bill of Rights. In the result, the Court of Appeal concluded that the Adoption Act applied to Indians, subject to the provisions of the Indian Act, and that an order of adoption should be made. On appeal to this Court, the Court did not call upon the respondents or the intervenors to make submissions on the Canadian Bill of Rights, being of the opinion that, on the assumption that the Adoption Act, by referential incorporation, is federal legislation, there was nothing in it to bring any of the prescriptions of the Bill of Rights into play.
Held: The appeal should be dismissed.
Per Laskin C.J. and Judson, Spence and Dickson JJ.: By virtue of s. 88 of the Indian Act, there was incorporation by reference of the Adoption Act into the Indian Act, and, accordingly, it was immaterial that the Provincial Legislature introduced s. 10 (4a) into the Adoption Act.
Treating the Adoption Act as referentially incorporated, the central question became one of the extent to which that Act is inconsistent with the Indian Act. In view of the effect of s. 10 of the Adoption Act (as an incorporated provision in the Indian Act) upon parentage, was it open to say that notwithstanding adoption by non-Indians the Indian child still has entitlement to be or to continue to be registered as an Indian under s. 11 of the Indian Act? This was the key provision going to consistency or inconsistency, since “Indian” is defined in the Indian Act as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”.
It was not contested that the Indian child in this case comes within s. 11(1)(d) unless the effect of an adoption
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order would be to remove him from that classification. Section 10(2) of the Adoption Act speaks of a cessation, upon adoption, of the relationship of the child to his natural parents and of the natural parents to the child “for all purposes”. These quoted words do not destroy entitlement to registration under s. 11(1)(d) of the Indian Act.
On the key issue of registrability no inconsistency was found between the Adoption Act and the Indian Act.
Per Martland J. (and Pigeon and de Grandpré JJ. as to the meaning and effect of s. 88 of the Indian Act): There is no conflict between the provisions of the Adoption Act and the Indian Act. The words “for all purposes” in subss. (1) and (2) of s. 10 of the Adoption Act must be taken to refer to all purposes within the competence of the British Columbia Legislature. Section 10, even prior to the enactment of subs. (4a), did not purport to deprive the child of any status or rights which he possessed under the Indian Act at the time of his adoption, and it is clear that no provincial legislation could deprive him of such rights.
With respect to the constitutional validity of subs. (4a), the purpose of this amendment to s. 10 was merely to make it clear that the Legislature did not intend that the Adoption Act should be construed as encroaching upon a legislative area which was beyond its competence. If it purported to have any effect beyond that it would be ultra vires of the Legislature as being legislation in relation to Indians.
As to the impact of s. 88 of the Indian Act upon the circumstances of this case, s. 88 was not regarded as intending to incorporate, as part of federal legislation in respect of Indians, all provincial laws of general application. To adopt this view would be to say that in respect of one class of persons, i.e.,Indians, only federal law should apply to them, and subject to federal enforcement. It would mean that Parliament, by enacting s. 88, had caused valid provincial legislation, properly applicable to Indians, to cease to have effect as provincial legislation, by incorporating it as federal legislation into the Indian Act. The wording of s. 88 does not purport to incorporate the laws of each province into the Indian Act so as to make them a matter of federal legislation. The section is a statement of the extent to which provincial laws apply to Indians.
Per Ritchie J.: Section 88 of the Indian Act does not have the effect of incorporating provincial legislation as part of the Indian Act and thereby converting it into
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legislation passed by the Parliament of Canada. When Parliament passed the Indian Act it was concerned with the preservation of the special status of Indians and with their rights to Indian lands, but it was made plain by s. 88 that Indians were to be governed by the laws of their province of residence except to the extent that such laws are inconsistent with the Indian Act or relate to any matter for which provision is made under that Act.
The Adoption Act is not a statute enacted in relation to Indians “under the Indian Act” and its provisions, including those of s. 10, do not affect the “status, rights, privileges, disabilities and limitations… acquired as an Indian under the Indian Act”. The Adoption Act only applies to Indians by reason of their character as citizens of the Province of British Columbia and there is no conflict between that statute and the Indian Act. It followed that the newly added subs. (4a) to s. 10 of the Adoption Act made no change in the law. It was ineffective rather than ultra vires.
Per Pigeon, Beetz and de Grandpré JJ.: The only question directly raised in this case was whether an Indian child can be legally adopted by non-Indian parents. The Indian Act, in s. 2(1), explicitly contemplates legal adoption although it does not otherwise provide for it. Provincial laws must therefore apply; there are no others. None of the provisions of the Indian Act forbids the adoption of an Indian child by non-Indian parents. The Adoption Act does not distinguish either, assuming that it could, which is most unlikely. It could not be accepted that laws general in their terms ought to be interpreted so as not to extend all their advantages to a child because he is an Indian.
Even if one assumed that the child would lose his Indian status as a consequence of the adoption order, this in no way would conflict with the Indian Act. There could be no conflict either by way of outright repugnancy or by way of occupation of the field since the Indian Act, silent as it is on the conditions, formalities and effects of legal adoption, does not even purport to occupy the field.
Subsection (4a) of the Adoption Act is clearly ultra vires. How Indian status is affected, by adoption or otherwise, is a matter coming within the class of subjects mentioned in s. 91(24) of the British North America Act, 1867.
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APPEAL from a judgment of the Court of Appeal for British Columbia, allowing an appeal from a judgment of Tyrwhitt-Drake L.J.S.C. Appeal dismissed.
J.J. Gow and D.R. Wilson, for the appellants.
B.R.D. Smith, for the respondents.
N.D. Mullins, Q.C., and G.C. Carruthers, for the Attorney General of Canada.
K. Lysyk, Q.C., for the Attorney General of Saskatchewan.
M. Manning, for the Attorney General of Ontario.
W. Henkel, Q.C., for the Attorney General of Alberta.
The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE—The question in this appeal concerns the validity of an adoption order made in respect of a male Indian child in favour of a non-Indian couple who had provided a foster home for the child. The child’s natural parents, who were registered members of a band under the Indian Act, R.S.C. 1970, c. I-6, he too being entitled to registration thereunder, objected to the adoption, but it was held at first instance that their consent should be dispensed with. No objection is taken to the regularity of the adoption proceedings, but a constitutional question was raised in respect of the Adoption Act, R.S.B.C. 1960, c. 4 and, more particularly, in respect of that Act as amended by the addition thereto of s. 10(4a) by 1973 (B.C.) (2nd sess.), c. 95, s. 1. Connected to this question is the effect of s. 88 of the Indian Act.
The judge at first instance, although satisfied on the merits that an adoption order should be made without the consent of the natural parents, held that there was an inconsistency between the Adoption Act and the Indian Act which precluded such an order. In his opinion, the Indian Act clothed those within its terms with a certain status from which alone certain rights arose, and that status
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would be obliterated by the operation of the Adoption Act. The British Columbia Court of Appeal was unanimously of the opinion that Indian status survived despite adoption. It held that the Adoption Act, as a provincial statute of general application, applied to the adoption of Indian children, and was blunted only to the extent of inconsistency with the Indian Act. The addition of s. 10(4a) to the Adoption Act, between the date of the judgment at first instance and the hearing of the appeal, reinforced the view that there was no impingement on matters within the Indian Act. The Indian Act would prevail if there was an inconsistency but that was no reason to hold that the Adoption Act could not apply at all to Indians.
The British Columbia Court of Appeal also reached and rejected an issue as to the application of the Canadian Bill of Rights by holding (1) that s. 88 of the Indian Act did not referentially incorporate the Adoption Act so as to make it federal legislation for the purposes of the Canadian Bill of Rights, and (2) that even if there was referential incorporation, there was no violation of the Canadian Bill of Rights, either by way of discrimination on account of race or by way of inequality before the law, especially in the light of the concession by counsel for the natural parents that the Indian Act was valid federal legislation that did not in its relevant terms contravene the Canadian Bill of Rights. In the result, the British Columbia Court of Appeal concluded that the Adoption Act applied to Indians, subject to the provisions of the Indian Act, and that an order of adoption should be made.
The legislative provisions particularly germane to the disposition of this appeal are s: 10 of the Adoption Act, as amended, and s. 88 of the Indian Act, and they read as follows:
Adoption Act, s. 10, as amended
10. (1) For all purposes an adopted child becomes upon adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock.
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(2) For all purposes an adopted child ceases upon adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.
(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).
(4) Subsections (2) and (3) do not apply, for the purposes of the laws relating to incest and to the prohibited degrees of marriage, to remove any persons from a relationship in consanguinity which, but for this section, would have existed between them.
(4a) The status, rights, privileges, disabilities, and limitations of an adopted Indian person acquired as an Indian under the Indian Act (Canada) or under any other Act or law are not affected by this section.
(5) This section is to be read subject to the provisions of any Act which distinguishes in any way between persons related by adoption and persons not so related.
(6) This section does not apply to the will of a testator dying before or to any other instrument made before the seventeenth day of April, 1920.
(7) This section applies to adoptions made by the Court or by the Provincial Secretary under legislation heretofore in force.
(8) For the purpose of this section, “child” includes a person of any age, whether married or unmarried. Indian Act, s. 88
Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.
I refer also to s. 2(1) of the Indian Act in which “child” is defined to include “a legally adopted Indian child” (in the French version “un enfant indien légalement adopté”) and s. 48(16) defining “child”, for the purpose of that section (being a section respecting distribution of property on an intestacy), to include “a legally adopted child and a child adopted in accordance with Indian cus-
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torn”. These provisions show that adoption is within the scope of the Act, albeit that the general definition in s. 2 is confined to adoption of an Indian child and, in my view, in any context involving parental relationship it would be limited to an Indian child of Indian parents.
The submissions of the appellants against the validity of the adoption order are based on a series of related propositions which I may summarize as follows. The Indian Act, which, as enacted in its present form in 1951 by 1951 (Can.), c. 29, and which introduced at that time the Indian register and as well s. 88, makes the original family tie the essence of Indian status and keeps the child in that status (at least until enfranchisement as provided in s. 109). Since adoption under the Adoption Act by non-Indian persons would obliterate the family ties and hence destroy the status, the Act cannot of its own force apply to status Indians and, indeed, would be an encroachment on federal legislative power in relation to Indians under s. 91(24) of the British North America Act. If the provincial Adoption Act applies at all, it can only apply through referential incorporation under s. 88 of the Indian Act, but it cannot be squared with s. 88 because of irreconcilable inconsistency. However, if it does so apply and can operate consistently to some degree, this can only be if it is restricted to the adoption of a status Indian child by status Indians. Appellants went on to contend that if there was no such limitation to the force of the Adoption Act, it would run foul of the Canadian Bill of Rights because there would be discrimination on account of race and inequality before the law.
The respondents, whose counsel also appeared for the Attorney General of British Columbia, were supported in this appeal by the Attorney General of Canada and the Attorneys General of Saskatchewan, Ontario and Alberta. The main thrust of their submissions was to assert that the Adoption Act applied ex proprio vigore to the adoption of Indian children and hence no question arose under the Canadian Bill of Rights. An alter-
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native submission, made particularly by the respondents’ counsel, was that even if the Adoption Act applied through referential incorporation, there was nothing inconsistent in giving force to that Act and still recognizing the survival of the Indian status of the adopted child under the Indian Act.
This Court did not call upon the respondents or the intervenors to make submissions on the Canadian Bill of Rights, being of the opinion that, on the assumption that the Adoption Act, by referential incorporation, is federal legislation, there was nothing in it to bring any of the prescriptions of the Canadian Bill of Rights into play. I would in this connection adopt the remarks of the British Columbia Court of Appeal on this issue.
I do not, however, agree with the British Columbia Court of Appeal that there was no referential incorporation in this case. Whether there was or was not depends not only on the meaning and scope of the phrase “all laws of general application from time to time in force in any province” in s. 88 of the Indian Act, but, as well and preliminarily, on the relation between so-called provincial laws of general application and federal legislative powers in relation to matters that, absent federal legislation, are alleged to be governed by those provincial laws in some of their aspects. In this connection I draw attention to the judgment of this Court in The Queen v. George, in which Martland J. pointed out at pp. 280-281 that the now s. 88 (it was then s. 87) in speaking of “laws of general application from time to time in force in any province” referred to “those rules of law in a province which are provincial in scope”, including laws of England adopted as part of provincial law.
There was no challenge in this Court to the general and long-established proposition found in Union Colliery Co. of British Columbia Ltd. v. Bryden, at p. 588 that “the abstinence of the Dominion Parliament from legislating to the full limit of its powers could not have the effect of transferring to any provincial legislature the legis-
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lative power which had been assigned to the Dominion by s. 91 of the Act of 1867”. It cannot be said therefore that because a provincial statute is general in its operation, in the sense that its terms are not expressly restricted to matters within provincial competence, it may embrace matters within exclusive federal competence. Thus, to take an example, it has been held by this Court that general mechanics’ lien legislation of a province could not be enforced against the property of an interprovincial pipe line: Campbell-Bennett Ltd. v. Comstock Midwestern Ltd. Again, provincial minimum wage legislation was held inapplicable to the employees of an interprovincial communications enterprise: see Minimum Wage Commission v. Bell Telephone Co. of Canada Ltd., and, similarly, inapplicable to employees of a local contract postmaster: see Reference re Saskatchewan Minimum Wage Act. This is because to construe the provincial legislation to embrace such activities would have it encroaching on an exclusive federal legislative area. On the other hand, provincial hours of work legislation was held applicable to employees of a hotel owned and operated by a railway company but not as an integral part of its transportation system: see C.P.R. v. Attorney General of British Columbia.
Ex facie, and apart from the amendment of 1973 introducing s. 10(4a), the Adoption Act did not purport to extend to areas of exclusive federal competence, e.g. Indians. It could only embrace them if the operation of the Act did not deal with what was integral to that head of federal legislative power, there being no express federal legislation respecting adoption of Indians. It appears to me to be unquestionable that for the provincial Adoption Act to apply to the adoption of Indian children of registered Indians, who could be compelled thereunder to surrender them to adopting non-Indian parents, would be to touch “Indian-
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ness”, to strike at a relationship integral to a matter outside of provincial competence. This is entirely apart from the question whether, if referentially incorporated, the Adoption Act could have any force in the face of various provisions of the Indian Act, securing certain benefits for Indians.
Counsel for the respondents cited a number of cases holding Indians to be subject to provincial legislation. Among them was Rex v. Hill and Rex v. Martin. These, and other like cases, are simply illustrative of the amenability of Indians off their reservations to provincial regulatory legislation, legislation which, like traffic legislation, does not touch their “Indianness”. Such provincial legislation is of a different class than adoption legislation which would, if applicable as provincial legislation simpliciter, constitute a serious intrusion into the Indian family relationship. It is difficult to conceive what would be left of exclusive federal power in relation to Indians if such provincial legislation was held to apply to Indians. Certainly, if it was applicable because of its so-called general application, it would be equally applicable by expressly embracing Indians. Exclusive federal authority would then be limited to a registration system and to regulation of life on a reserve.
The fallacy in the position of the respondents in this case and, indeed, in that of all the intervenors, including the Attorney General of Canada, is in the attribution of some special force or special effect to a provincial law by calling it a “provincial law of general application”, as if this phrase was self-fulfilling if not also self-revealing. Nothing, however, accretes to provincial legislative power by the generalization of the language of provincial legislation if it does not constitutionally belong there.
This is, no doubt, overly obvious, but it is compelled by the nature of the submissions made in this case by the respondents and the intervenors. If the phrase “provincial laws of general application”
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has any source, it is in the “federal company” cases, involving the relationship of general companies legislation of a province to federally incorporated companies. Thus, in John Deere Plow Co. v. Wharton, at pp. 342-3, Lord Haldane commented as follows:
It is true that even when a company has been incorporated by the Dominion Government with powers to trade, it is not the less subject to provincial laws of general application enacted under the powers conferred by s. 92.
The history of this matter is well known because from the very beginning of its concern with the British North America Act the Privy Council drew a distinction between authority to incorporate companies and to prescribe their powers and their corporate structure and the internal relationship of shareholders and directors and authority to regulate the activities or enterprises in which the companies are engaged. It was in this connection that Lord Haldane made the observation above quoted. Yet in the very case in which he made it, the Privy Council concluded that it was not open to a province under its general companies legislation to require a licence of a federally incorporated company as a condition of carrying on business qua company because this would in effect prevent it from exercising the powers with which it was endowed by federal authority. Attorney General of Manitoba v. Attorney General of Canada, and Lymburn v. Mayland are two contrasting cases in which the principle of John Deere Plow, seen in later cases like Great West Saddlery Co. v. The King, was applied to provincial legislation which was alleged to put federally incorporated companies at the mercy of the province in respect of the sale of their shares. The particular results in those two cases are of no direct relevance here, but simply illustrate the care that must be taken in the analysis of the issues and of the provincial legislation before subjecting federally incorporated companies to general provincial companies legislation.
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I cannot believe that any less care should be taken in analysis before subjecting Indians, coming as they do within a specific head of exclusive federal jurisdiction, to general provincial legislation, unless the inclusion of Indians within the scope of the provincial legislation touches them as ordinary persons and in a way that does not intrude on their Indian character or their Indian identity and relationship.
I would add that to give a primary effect to so-called “provincial laws of general application”, in the face of s. 88 of the Indian Act, is to fall into the same trap that was noted by Judson J. in Nykorak v. Attorney General of Canada. The fact is that we are concerned here with a federal enactment which would be robbed of any meaning if the respondents’ and intervenors’ submissions went as far as they appeared to carry them. When s. 88 refers to “all laws of general application from time to time in force in any province” it cannot be assumed to have legislated a nullity but, rather, to have in mind provincial legislation which, per se, would not apply to Indians under the Indian Act unless given force by federal reference.
I am fully aware of the contention that it is enough to give force to the several opening provisions of s. 88, which, respectively, make the “provincial” reference subject to the terms of any treaty and any other federal Act and subject also to inconsistency with the Indian Act and orders, rules, regulations or by-laws thereunder. That contention would have it that s. 88 is otherwise declaratory. On this view, however, it is wholly declaratory save perhaps in its reference to “the terms of any treaty”, a strange reason, in my view, to explain all the other provisions of s. 88. I think too that the concluding words of s. 88, “except to the extent that such laws make provision for any matter for which provision is made by or under this Act” indicate clearly that Parliament is indeed effecting incorporation by reference. To hold otherwise would be to reject the proposition quoted
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earlier from the Union Colliery Co. case and to treat the distribution of legislative powers as being a distribution of concurrent powers.
In the view I take, I find it immaterial that the provincial Legislature introduced s. 10(4a) into the Adoption Act. It may properly be considered as an abjuring provision, but there is the point, which was raised during the hearing, that if the province does indeed claim that its Act applies to interfere in Indian family relationships, s. 10(4a) may be constitutionally suspect. I do not find it necessary to pursue this point.
Treating the Adoption Act as referentially incorporated, the central question in this case becomes one of the extent to which that Act is inconsistent with the Indian Act. Certainly, there would be no problem of consistency or inconsistency if, as the appellants urge, the incorporation was limited to adoption of Indian children by Indians. Whether it should be so limited depends on the effect of adoption under the incorporated Act upon the position of an Indian child under the Indian Act. For this purpose, I am not concerned with the actual administration of the incorporated legislation, that is with whether a case for adoption of the particular child by the particular applicants is made out and whether the case is one where the consent of the natural parents should be dispensed with. Assumptions to these ends must be made to focus on the issue of consistency.
In view of the effect of s. 10 of the Adoption Act (as an incorporated provision in the Indian Act) upon parentage, is it open to say that notwithstanding adoption by non-Indians the Indian child still has entitlement to be or to continue to be registered as an Indian under s. 11 of the Indian Act? This, in my view, is the key provision going to consistency or inconsistency, since “Indian” is defined in the Indian Act as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”. Section 11, so far as relevant, reads as follows:
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11. (1) Subject to section 12, a person is entitled to be registered if that person
(a) on the 26th day of May 1874 was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, being chapter 42 of the Statutes of Canada, 1868, as amended by section 6 of chapter 6 of the Statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May 1874, have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b)
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b),
or
(ii) a person described in paragraph (c);…
I may say here that s. 12 of the Indian Act, mentioned in the opening words of s. 11 above, does not have any bearing here.
It has not been contested that the Indian child in this case comes within s. 11 (1)(d) unless the effect of an adoption order would be to remove him from that classification. Section 10(2) of the Adoption Act, previously quoted, speaks of a cessation, upon adoption, of the relationship of the child to his natural parents and of the natural parents to the child “for all purposes”. These quoted words do not destroy entitlement to registration under s. 11(1)(d) of the Indian Act. They would equally be involved if the adoption of the Indian child was by Indian adopting parents, and yet counsel for the appellants did not urge that there was complete inconsistency in that situation. There may, indeed, be some situations under the Indian Act with which an adoption order and the effect given to it may not be squared. That, however, should not exclude adoption per se through the incorporating
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effect of s. 88, since adoption legislation is ruled out only to the extent that it is inconsistent.
I do not find that on the key issue of registrability there is inconsistency between the Adoption Act and the Indian Act. I would be loathe to give such a wide construction (and it is construction only with which we are here concerned) to the incorporated s. 10(2) of the Adoption Act as to create incompatibility with the continuing effect of s. 11(1)(d) of the Indian Act. This would result in excluding Indian children from possible adoption (save perhaps by Indian custom as mentioned in s. 48(16)) outside of the Indian community, a result to which I would not come unless clearly compelled to do so by unambiguous legislation.
For these reasons, differing somewhat from those of the British Columbia Court of Appeal, I would dismiss the appeal. This is not a case for costs in any Court.
MARTLAND J.—This case is concerned with a petition by the respondent petitioners for the adoption of an Indian child, now over seven years of age. The petitioners are not Indians. The petition was made pursuant to the provisions of the Adoption Act, R.S.B.C. 1960, c. 4. Section 8 of the Act contains the following provisions:
8. (1) Subject to the provisions of subsection (6), no adoption order may be made without the written consent to adoption of
(a) the child, if over the age of twelve years;
(b) the parents or surviving parent of the child, provided that, if the child, is illegitimate at the time the mother’s consent was signed and has not previously been adopted, only the mother’s consent is required, and, notwithstanding anything contained in the Legitimacy Act, no further consent shall be required by reason of the legitimation of the child;
…
(6) The Court may dispense with any consent required by subsection (1) if satisfied that the person whose consent is to be dispensed with has abandoned or deserted the child or cannot be found or is incapable of giving such consent, or, being a person liable to contrib-
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ute to the support of the child, either has persistently neglected or refused to contribute to such support or is a person whose consent ought, in the opinion of the Court and in all the circumstances of the case, to be dispensed with, and the Court may act on the written report of the circumstances by the Superintendent, without futher evidence.
The facts are summarized in the reasons of the trial judge when dealing with the application of the petitioners to dispense with the consent of the natural parents of the child to the adoption:
The child in question is of native origin, the son of registered members of a band. He is thus a person to whom the Indian Act, R.S.C. 1970, cap. I-6, applies. At the age of 7 weeks or so he was admitted to hospital in a condition near death as a result of injury and neglect. He came under the care of the female petitioner, a registered nurse on the staff of the hospital, and it is a fair inference from the evidence that she was instrumental in preserving his life. In due course the baby was discharged from hospital (having been apprehended under the Protection of Children Act, R.S.B.C. 1960, cap. 303) to the care of the petitioners on an official foster home basis, and thereafter (save for a short period which he spent with his natural parents at the age of 3), which resulted in another episode requiring a stay in hospital) has been brought up by them. There is no doubt at all, in my view of the evidence, that he is now a member of their family in every way but blood relationship, and that it would be a cruel and damaging thing to remove him from that family. His status at the moment is that of a ward of the Superintendent of Child Welfare.
The natural parents have had difficult lives. They do not propose to take the boy into their own immediate family—in which they show some wisdom, for on the evidence I cannot possibly hold them to be fit and proper parents—but instead propose that he be raised by an aunt. This lady and her husband testified that they were willing and anxious to undertake the duty. They have impressive credentials as foster parents, and in my opinion showed themselves to be admirable and suitable people in every way. It is true that in the past, having taken certain preliminary steps, they did not pursue the matter of formal adoption. Only now do they come forward and state their position. While delay of this sort might be regarded as a lack of due diligence on the part
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of the wealthy and the well advised, I do not regard it in that light in the circumstances of this case.
I am much indebted to certain prominent native people who attended the hearing at my request as friends of the Court, to inform me as to tribal custom in the matter of adoption and family relationships generally. Mrs. Audrey Sampson, Mr. Phillip Paul, for many years Chief of the Tsartlip Band and now holding a responsible office in the education field, and Chief John Albany of the Songhees Band advised me, and were of great assistance. I am of the view that native custom, speaking very generally (for there are slight differences between those of one people and another), recognizes a form of adoption: the rearing of children was and is not the exclusive responsibility of the parents, though they have primary rights and duties. Grandparents, uncles and aunts share this responsibility to a great extent. In native society, originally matrilineal, it is usual nowadays for grandmothers and aunts to take in and rear children when their parents, for one reason or another, cannot themselves do so. Many instances of this custom were given (and see also James Sewid, Guests Never Leave Hungry, 1969, University of Washington Press). I think it is general, and much in use today. It brings about something very close to our notion of adoption: a notion which is common to all legal systems, West Coast native custom as well as our Roman derived law.
Those who gave evidence, as well as the Court’s own advisers, were all of the opinion that there was potential danger to a native child being brought up in a white family, particularly when he reached the later stages of adolescence. I can readily appreciate this view: it is based on perfectly sound ideas of the effects of heredity and is not a matter merely emotional or racial. Instances abound where such persons have in the past experienced difficulty in establishing racial identity in their maturity.
However, there is another view. One must not forget the effects of environment upon personality; and I have on this point the evidence of Dr. Rasmussen, the family doctor of the petitioners, who has attended the child all his life, is well acquainted with his immediate family, and who struck me as not only a learned, but a sensible physician. Dr. Rasmussen, while not discounting heredity, made a strong case for an intelligently imposed environment being largely determinative of the direction of personality growth—and I am in no doubt at all as to
[Page 769]
the capabilities and intentions of the petitioners in this regard. They are as likely as any people to succeed in equipping this child with the strong character of which he will stand in need in the future.
This is a case, then, where the claims of native custom and the Adoption Act of the Province come into conflict, or where heredity and environment clash as concepts. This conflict can only be resolved in the light of the best interests of the child himself. He must be considered as an individual, not a part of a race or culture. His own people are ready and willing to bring him up—in effect, to adopt him. His foster parents have provided, and now provide, the only home he has ever known. To my thinking, the foster parents have established their right (or taken up the right abandoned by the natural parents) to custody at this time.
…
On balance then, I believe it is best for this child that he be left where he is. The future will not be so difficult for him as it may have been for those of an earlier generation. The order I must make is that the consent of the natural parents to his adoption by the petitioners be dispensed with; and on the facts, I would be prepared to make an order for adoption.
Counsel for the natural parents raised a question of law as to whether the Adoption Act could apply to a child who is an Indian within the purview of the Indian Act, R.S.C. 1970, c. I-6. This issue was subsequently argued and the trial judge concluded that to the extent that the operation of the Adoption Act would affect the status of the child as an Indian, and so extinguish his rights as an “Indian”, it is inconsistent with the Indian Act. The petition for adoption was dismissed, although, otherwise, the trial judge expressed the view that he would have had no hesitation in making the order prayed for.
This decision was reversed on appeal by the unanimous judgment of the Court of Appeal for British Columbia. The following passage appears in the reasons for judgment of the Court:
In my opinion the Legislature of British Columbia has not purported to legislate in respect of the matters coming within the purview of the Indian Act. The words “for all purposes” in Sec. 10(1) and (2) must be taken to refer to all purposes within the legislative competence
[Page 770]
of the provincial legislature. If there was any doubt as to the Legislature’s intention in this regard it was removed by the passage of the Adoption Act Amendment Act, 1973 Statutes of British Columbia (2d Session) Ch. 95 which adds ss. (4a) to sec. 10 and reads as follows:
“(4a) The status, rights, privileges, disabilities, and limitations of an adopted Indian person acquired as an Indian under the Indian Act (Canada) or under any other Act or law are not affected by this section.”
Section 10 of the Adoption Act, to which reference is here made, contains the following provisions:
10. (1) For all purposes an adopted child becomes upon adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock.
(2) For all purposes an adopted child ceases upon adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.
(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).
(4) Subsections (2) and (3) do not apply, for the purposes of the laws relating to incest and to the prohibited degrees of marriage, to remove any persons from a relationship in consanguinity which, but for this section, would have existed between them.
(4a) The status, rights, privileges, disabilities, and limitations of an adopted Indian person acquired as an Indian under the Indian Act (Canada) or under any other Act or law are not affected by this section.
The Court of Appeal, in its reasons, dealt with the impact of s. 88 of the Indian Act. It had been argued by counsel for the natural parents that if the effect of s. 88 was to incorporate the Adoption Act into the Indian Act, as federal law, it would contravene the provisions of the Bill of Rights, 1960 (Can.), c. 44.
Section 88 provides as follows:
88. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the prov-
[Page 771]
ince, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.
The Court of Appeal held that s. 88 did not convert the Adoption Act into federal legislation for the following reasons:
In my opinion, Sec. 88 does not have the effect of converting provincial legislation to federal legislation whenever it applies to Indians. Sec. 88 simply defines the obligation of obedience that Indians owe to provincial legislation. Parliament is neither delegating legislative power to the province nor adopting provincial legislation as its own by declaring in Sec. 88 what was true before Sec. 88 existed, namely, that Indians are not only citizens of Canada but also are citizens of the province in which they reside and are in general to be governed by provincial laws. In defining the limits of the obligation of Indians to obey provincial laws, Parliament could not intend that those laws should lose their character as provincial legislation. Accordingly, the Adoption Act is not subject to the Canadian Bill of Rights as that Act only applies to the laws of Canada.
The natural parents appealed to this Court. On the appeal the constitutional validity of the statute which amended the Adoption Act by adding subs. (4a) to s. 10 (previously cited) was questioned on the ground that it was legislation dealing specifically with Indians.
The first question which requires consideration is as to whether the adoption which is under consideration here could properly be authorized by provincial legislation. There is no question as to the power of a provincial legislature to legislate concerning the subject matter of adoption. There is also no question that the Adoption Act is a statute of general application applying to all residents of British Columbia. It did not purport to affect Indians, qua Indians, in a manner different from its effect on all other persons in the province. The only reference in the Act to Indians, as such, appears in s. 10(4a), enacted in 1973, which sought to provide that s. 10 of the Act should not affect the status of an adopted Indian person acquired as an Indian under the Indian Act. It is
[Page 772]
also clear that the Indian Act contains no procedure of its own for the adoption of Indian children.
The only references to adoption in that Act are:
2. (1) In this Act “child” includes a legally adopted Indian child;
DISTRIBUTION OF PROPERTY ON INTESTACY
48. (16) In this section “child” includes a legally adopted child and a child adopted in accordance with Indian custom.
No other provision is made in this Act with regard to the legal effect or consequences of adoption.
It is contended, however, that, notwithstanding the absence of federal legislation on the subject, to the extent that the Adoption Act might purport to govern the adoption of Indian children it would constitute an encroachment upon the exclusive federal jurisdiction, under s. 91(24) of the British North America Act, to legislate on the subject of “Indians, and Lands reserved for the Indians.”
Subsection (24)
of s. 91 is unlike the other subsections of that section (other than subs. 25) in that it confers legislative jurisdiction on the Parliament of Canada in relation to a specified group of people. The ambit of that authority is uncertain, in that it has not been positively defined by the Courts. Within certain limits this includes the power to define Indian status, and this power has been exercised by Parliament by the enactment of the Indian Act. In my opinion it does not mean that Parliament alone can enact legislation which may affect Indians. It does not mean that Indians are totally exempted from the application of provincial laws. A number of cases dealing with the application of provincial laws to Indians were mentioned in the judgment of this Court in Cardinal v. Attorney General of Alberta. The extent to which provincial legislation could apply to Indians was stated to be that the legislation must be within the authority of s. 92 of the British North America Act and that the legislation must not be enacted in relation to Indians. Such legislation, generally applicable throughout the province, could affect Indians.
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In the present case we have provincial social legislation, applicable throughout British Columbia, dealing with the subject of the adoption of children. Is the scope of s. 91(24) such that it makes it impossible for an Indian child to be adopted under the provisions of the Adoption Act? In support of the proposition that subs. (24) has that effect it is argued that the Adoption Act can compel Indian parents to surrender their child to non-Indian parents. But, under the provisions of the Adoption Act, no Indian child could be adopted by anyone without the parents’ consent unless the child had been made a permanent ward of the Superintendent of Child Welfare, or of a children’s aid society, or unless consent of the parents is dispensed with because the child has been abandoned or deserted, or because of failure to contribute to the child’s support, or because the parent is a person whose consent, in the opinion of the Court, in all the circumstances of the case, ought to be dispensed with.
These exceptions to the general rule requiring the consent of a child’s natural parents to an adoption are all cases in which the child is in need of protection.
The Protection of Children Act, R.S.B.C. 1960, c. 303, as amended, makes provision for the committal of children in need of protection to the custody of the Superintendent of Child Welfare or to a children’s aid society, and for the placement of such children in a foster home. The Indian child in the present case was a ward of the Superintendent of Child Welfare and had been placed in the custody of the petitioners on an official foster home basis.
Both the Protection of Children Act and the Adoption Act are designed for the protection, custody and care of children in the Province of British Columbia. In my opinion the power given to Parliament, under s. 91(24), to legislate on the subject matter of “Indians, and Lands reserved for the Indians” does not make such legislation inapplicable to Indian children, in the absence of federal legislation dealing with the matter, merely because the designated authorities under those statutes might consider it appropriate, in certain circumstances, in the child’s interest, to entrust custody of
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such child to a foster home, or to parents by adoption, who were not themselves Indians. I do not interpret s. 91(24) as manifesting an intention to maintain a segregation of Indians from the rest of the community in matters of this kind, and, accordingly, it is my view that the application of the Adoption Act to Indian children will only be prevented if Parliament, in the exercise of its powers under that subsection, has legislated in a manner which would preclude its application.
There have been cases in which it has been held that some provincial legislation of general application would not be applicable to a corporation or institution subject to exclusive federal control. In Campbell-Bennett Limited v. Comstock Midwestern Ltd., it was held that a federally incorporated company which was incorporated for the purpose of transporting oil by means of interprovincial and international pipe lines, and thus was a work or undertaking within the exclusive jurisdiction of Parliament, was not subject to a mechanic’s lien registered under provincial legislation, because such legislation would permit the sale of the undertaking piecemeal and thus nullify the purpose for which it was incorporated.
The case of Minimum Wage Commission v. The Bell Telephone Company of Canada, held that a company which had been declared to be a work for the general advantage of Canada was not subject to having its employer-employees relationships affected by a provincial minimum wage statute. Similarly, in Reference re Saskatchewan Minimum Wage Act, it was decided that provincial minimum wage requirements would be inapplicable to an employee who was a part of the Postal Service.
McKay v. Her Majesty The Queen held that a municipal zoning regulation governing the erection of signs on residential properties could not preclude the erection of a sign to support a candidate
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in a federal election.
Each of these cases was concerned with a particular statute which had the effect of restricting an enterprise or activity within exclusive federal jurisdiction. The Adoption Act is not legislation of this kind. It does not restrict the rights of Indians. It makes it possible for Indian children to have the same right to become adopted as that of all other children in the province. If the contention of the appellants were to prevail it would mean that the parents of an Indian child who desired that the child be adopted by non-Indian adoptive parents would not be able to accomplish that end under the provisions of the provincial legislation, despite their consent.
I do not find any conflict between the provisions of the Adoption Act and the Indian Act. I agree with the view expressed in the Court of Appeal that the words “for all purposes” in subss. (1) and (2) of s. 10 of the Adoption Act must be taken to refer to all purposes within the competence of the British Columbia Legislature. Section 10, even prior to the enactment of subs. (4a), did not purport to deprive the child of any status or rights which he possessed under the Indian Act at the time of his adoption, and it is clear that no provincial legislation could deprive him of such rights.
With respect to the constitutional validity of subs. (4a) of s. 10 of the Adoption Act, it is my view that the purpose of this amendment to s. 10 was merely to make it clear that the Legislature did not intend that the Adoption Act should be construed as encroaching upon a legislative area which was beyond its competence. If it purported to have any effect beyond that it would be ultra vires of the Legislature as being legislation in relation to Indians. I do not propose to deal with the matter further, because the views which I have so far expressed are not in any way based upon subs. (4a).
I now propose to consider the impact of s. 88 of the Indian Act upon the circumstances of this case. I do not regard s. 88 as intending to incorporate, as part of federal legislation in respect of Indians, all provincial laws of general application. To adopt
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this view would be to say that, in respect of one class of persons, i.e., Indians, only federal law should apply to them, and subject to federal enforcement. It would mean that Parliament, by enacting s. 88, had caused valid provincial legislation, properly applicable to Indians, to cease to have effect as provincial legislation, by incorporating it as federal legislation into the Indian Act. The wording of s. 88 does not purport to incorporate the laws of each province into the Indian Act so as to make them a matter of federal legislation. The section is a statement of the extent to which provincial laws apply to Indians. I agree with the view expressed by the Court of Appeal with respect to the meaning of this section, which is cited earlier in these reasons.
For the foregoing reasons, I would dispose of this appeal in the manner proposed by the Chief Justice.
RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by the Chief Justice and while I agree with him that the appeal should be dismissed, my reasons for doing so are so materially different from his that I think it desirable to express my own views.
The question of law to which this appeal relates and which has been outlined in the reasons for judgment of the Chief Justice is, essentially, whether the Adoption Act, R.S.B.C. 1960, c. 4, as amended, applies of its own force to Indians within the meaning of the Indian Act, R.S.C. 1970, c. I-6, who are resident in the Province of British Columbia.
A constitutional issue related to this general question and arising directly from a recent amendment to the Adoption Act was formulated in the Order of the Chief Justice dated July 4, 1974, notice of which was served on the Attorney General of Canada and the Attorneys General of the Provinces pursuant to that order. The question so stated reads as follows:
Whether A) The Act to Amend the Adoption Act S.B.C. 1973, (2nd) chapter 95, which purported to take effect on the 7th day of November, 1973 is ultra vires the Legislative Assembly of the Province of British Columbia being legislation specifically dealing with Indians.
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By the amendment to which reference is made in this question, the Legislature of British Columbia enacted subs. 4(a) of s. 10 of the Adoption Act which reads as follows:
(4a) The status, rights, privileges, disabilities, and limitations of an adopted Indian person acquired as an Indian under the Indian Act (Canada) or under any other Act or law are not affected by this section.
As will hereafter appear, I am satisfied that the Adoption Act is not a statute enacted in relation to Indians “under the Indian Act” and that its provisions, including those of s. 10, do not affect the “status, rights, privileges, disabilities, and limitations… acquired as an Indian under the Indian Act”. The Adoption Act only applies to Indians by reason of their character as citizens of the Province of British Columbia and I can find no conflict between that statute and the Indian Act.
It follows from this that in my opinion the newly added subsection made no change in the law. If I thought otherwise, however, I would feel constrained to hold that subs. 4(a) constitutes an attempt by the Province to invade the field of legislative authority over “Indians and lands reserved for Indians” which is assigned to the exclusive legislative authority of Parliament by s. 91(24) of the British North America Act, and is accordingly beyond the powers of the Province, but as I find that s. 4(a) has no such effect and makes no change in the law, I find it to be ineffective rather than ultra vires.
The question so raised is however, in my view, far from the heart of the matter and the determination of this appeal must turn on the meaning to be attributed to the language employed by Parliament in enacting s. 88 of the Indian Act and particularly whether that section has the effect of incorporating provincial legislation as a part of the Indian Act and thereby converting it into legislation passed by the Parliament of Canada. Section 88 of the Indian Act reads as follows:
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Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.
The italics are my own.
The reasons for judgment delivered by the Chief Justice of British Columbia on behalf of the Court of Appeal of that Province contain the following pertinent comments on this section:
In 1951, what is now sec. 88 of the Indian Act was enacted. It defines the extent to which laws of general application of a province are applicable to Indians.
…
Thus, the extent to which laws of general application in force in a province are applicable in respect of Indians is limited. Laws of general application apply to Indians but they will not operate in a way that is inconsistent with the provisions of the Indian Act or in respect of matters for which the Indian Act has made provision.
And the Chief Justice later observes:
In my opinion, Sec. 88 does not have the effect of converting provincial legislation to federal legislation whenever it applies to Indians. Sec. 88 simply defines the obligation of obedience that Indians owe to provincial legislation. Parliament is neither delegating legislative power to the province nor adopting provincial legislation as its own by declaring in Sec. 88 what was true before Sec. 88 existed, namely, that Indians are not only citizens of Canada but also are citizens of the province in which they reside and are in general to be governed by provincial laws. In defining the limits of the obligation of Indians to obey provincial laws, Parliament could not intend that those laws should lose their character as provincial legislation. Accordingly, the Adoption Act is not subject to the Canadian Bill of Rights as that Act only applies to the laws of Canada.
This view is directly opposed to that expressed by the present Chief Justice in the reasons for judgment which he delivered on behalf of the
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minority in this Court in Cardinal v. Attorney General of Alberta, at p. 228, where he said of the effect of s. 88 on the provisions of The Wildlife Act of Alberta, R.S.A. 1970, c. 391, when read in light of the terms of an agreement entered into between the Province and the federal government which was confirmed by the B.N.A. Act, 1930 and by s. 12 whereof Canada agreed that the laws respecting game in the Province of Alberta applied to Indians within the boundaries of that Province:
The section [88] deals only with Indians, not with reserves, and is, in any event, a referential incorporation of provincial legislation which takes effect under the section as federal legislation. I do not read s. 88 as creating any exception to the operation of federal legislation by making way for otherwise competent provincial legislation, as is the case under the Lord’s Day Act, R.S.C. 1970, c. L-13. If The Wildlife Act of Alberta is such an enactment as is envisaged by s. 88, an Indian who violated its terms would be guilty of an offence under federal law and not of an offence under provincial law.
The italics are my own.
The majority of this Court did not subscribe to these views and found it unnecessary in the circumstances of that case to determine the meaning and effect of s. 88, but the present Chief Justice does not appear to have altered the view which he then expressed as his reasons for judgment in the present case are clearly predicated on the assumption that s. 88 constitutes referential incorporation of provincial legislation which takes effect under the section as federal legislation.
In my opinion before embarking on an analysis of the language used in s. 88, it is profitable to consider the construction to be placed on provincial legislation which is not directed towards or passed in relation to Indians but which may have an incidental effect on them as citizens of the province in which they reside. In this regard, Mr. Justice Martland, in delivering the opinion of the majority of this Court in Cardinal v. Attorney
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General of Alberta, commented on the provisions of s. 12 of the agreement hereinbefore referred to whereby it was provided that the laws respecting game in force in the province applied to Indians within its boundaries, and went on to say:
As indicated earlier, the appellant starts from the proposition that, prior to the making of the Agreement, Indian reserves were enclaves which were withdrawn from the application of provincial legislation, save by way of reference by virtue of federal legislation. On this premise it is contended that s. 12 should not be construed so as to make provincial game legislation applicable within Indian reserves.
I am not prepared to accept this initial premise. Section 91(24) of the B.N.A. Act, gave exclusive legislative authority to the Canadian Parliament in respect of Indians and over lands reserved for the Indians. Section 92 gave to each province, in such province, exclusive legislative power over the subjects therein defined. It is well established, as illustrated in Union Colliery Co. of British Columbia Ltd. v. Bryden, [1899] A.C. 580, 1 M.M.C. 337, that a province cannot legislate in relation to a subject matter exclusively assigned to the Federal Parliament by s. 91. But it is also well established that provincial legislation enacted under a heading of s. 92 does not necessarily become invalid because it affects something which is subject to federal legislation. A vivid illustration of this is to be found in the Privy Council decision a few years after the Union Colliery case in Cunningham v. Tomey Homma, [1903] A.C. 151, which sustained provincial legislation, pursuant to s. 92(1), which prohibited Japanese, whether naturalized or not, from voting in provincial elections in British Columbia.
A provincial legislature could not enact legislation in relation to Indians, or in relation to Indian reserves, but this is far from saying that the effect of s. 91(24) of the B.N.A. Act was to create enclaves within a province within the boundaries of which provincial legislation could have no application. In my opinion, the test as to the application of provincial legislation within a reserve is the same as with respect to its application within the province, and that is that it must be within the authority of s. 92 and must not be in relation to a subject matter assigned exclusively to the Canadian Parliament under s. 91. Two of those subjects are Indians and Indian reserves, but if provincial legislation within the limits of s. 92 is not construed as being legislation in relation to those classes of subjects (or any other subject under s. 91) it is applicable anywhere in the province, including Indian reserves, even though Indians or Indian reserves
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might be affected by it. My point is that s. 91(24) enumerates classes of subjects over which the Federal Parliament has the exclusive power to legislate, but it does not purport to define areas within a province within which the power of a province to enact legislation, otherwise within its powers, is to be excluded.
I agree with the views so expressed and, as I have indicated, I am of opinion that the Adoption Act of British Columbia was not passed “in relation to Indians” but rather that it is a statute applying to all the citizens of the Province and only having application to Indians as such citizens.
In my view, when the Parliament of Canada passed the Indian Act it was concerned with the preservation of the special status of Indians and with their rights to Indian lands, but it was made plain by s. 88 that Indians were to be governed by the laws of their province of residence except to the extent that such laws are inconsistent with the Indian Act or relate to any matter for which provision is made under that Act.
The question here is whether s. 10 of the Adoption Act is legislation in relation to Indians so as to affect Indian status or Indian land rights. This section has been fully reproduced in the reasons for judgment of the Chief Justice, but I think it desirable for an understanding of my reasons to reproduce the first three subsections:
10. (1) For all purposes an adopted child becomes upon adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock.
(2) For all purposes an adopted child ceases upon adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.
(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).
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In determining whether this section affects the status, rights, privileges, disabilities or limitations of an Indian it appears to me desirable to consider the meaning of Indian under the Indian Act. The word is defined in s. 2(1) as follows: “ ‘Indian’ means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”. The persons so entitled are described in s. 11(1), the relevant portions of which are reproduced in the reasons for judgment of the Chief Justice. Section 11(1)(a) provides that a person is entitled to be registered as an Indian if that person was considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada, under the provisions of c. 42 of the Statutes of Canada, 1868 as amended.
I think it relevant to quote s. 11(1), paras. (b), (c) and (d) which provide that a person is entitled to be registered as an Indian if that person:
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May 1874, have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b)
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a person described in paragraph (c);
It is not contested that the child adopted in this case comes within s. 11(1)(d) unless the effect of the adoption order would be to remove him from that classification. It was contended that the provisions of s. 10(2) of the Adoption Act which I have quoted, affected the status of the adopted child so as to deprive him of his right to registration under the Indian Act.
Section 10(2) provides that an adopted child ceases upon adoption to be the child of his existing
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(natural) parents and the existing parents of the adopted child cease to be his parents, but I do not think that this section can be said to destroy the child’s quality as the legitimate child of a person entitled to be registered as an Indian. The fact that the child acquires new parents does not make him an illegitimate child and it is his legitimacy which entitles him to registration in conjunction with the fact that he was born of a male person entitled to registration.
It is worthy of note also that under the provisions of s. 2(1) of the Indian Act “child” is defined as follows: “‘Child’ includes a legally adopted Indian child”. This provision serves as an indication of the fact that the Parliament of Canada recognized that Indian status was unaffected by provincial Adoption Acts because there being no federal legislation concerning adoption, the phrase “a legally adopted Indian child” must refer to adoption under the law of the Province, and I take the view that the definition must be taken in its ordinary and natural meaning and that there is no reason to confine it to cases of the adoption of Indian children by Indian parents.
In light of the above, I am of opinion that s. 88 of the Indian Act should be construed as meaning that the provincial laws of general application therein referred to apply of their own force to the Indians resident in the various Provinces. Accordingly, in my view, the Adoption Act here in question applies to the Indians resident in the Province of British Columbia just as it does to the other residents of that Province.
For all these reasons I would dismiss this appeal.
I agree with the Chief Justice that this is not a case for costs in any Court.
The judgment of Pigeon and de Grandpré JJ. was delivered by
PIGEON J.—I agree with Mr. Justice Beetz and also with the views expressed by Mr. Justice Mart-
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land on the meaning and effect of s. 88 of the Indian Act.
BEETZ J.—I have had the considerable advantage of reading the opinions of the Chief Justice, of Mr. Justice Martland and of Mr. Justice Ritchie. They relate the facts and quote the relevant provisions of the Indian Act, R.S.C. 1970, c. I-6, and of the Adoption Act, R.S.B.C. 1960, c. 4, as amended by the addition thereto of s. 10 (4a) in 1973 (B.C.) (2nd sess.), c. 95, s. 1.
In my view, the only question directly raised by this case is whether an Indian child can be legally adopted by non-Indian parents.
The Indian Act, in s. 2(1), explicitly contemplates legal adoption although it does not otherwise provide for it. Provincial laws must therefore apply; there are no others. None of the provisions of the Indian Act forbids the adoption of an Indian child by non-Indian parents. The Adoption Act does not distinguish either, assuming that it could, which is most unlikely. I cannot be persuaded that laws general in their terms ought to be interpreted so as not to extend all their advantages to a child because he is an Indian.
While its formal order is silent on this point, the Court of Appeal of British Columbia, concludes its reasons for judgment by saying that “the order of adoption will not deprive the child of his status or his rights under the Indian Act”. Inherent in this conclusion is the proposition that the adoption order could not have been granted had the child lost his Indian status as a consequence of the adoption sought by the petitioners which is the only reason why the trial judge held that he had no jurisdiction to grant the petition.
I do not agree with that proposition.
Even if one assumes that the child would lose his Indian status as a consequence of the adoption order, I fail to see in what respect this would
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conflict with the Indian Act. There could be no conflict either by way of outright repugnancy or by way of occupation of the field since the Indian Act, silent as it is on the conditions, formalities and effects of legal adoption, does not even purport to occupy the field.
One field that the Indian Act does occupy is the definition of Indians. It directs how Indian status is acquired, held and lost. It makes Indian status dependent upon various factors among which the relationship of filiation. But filiation can be affected by provincial adoption laws. The question then arises whether the concept of filiation under the Indian Act is co‑extensive with that of provincial law, or, in other words, whether the Indian Act is to be construed, for the purpose of defining Indian status, as importing the concept of provincial law. The question remains the same, I believe, irrespective of words such as “for all purposes” which are found in subss. (1) and (2) of s. 10 of the Adoption Act. Should the answer to that question be in the affirmative, Indian status might conceivably be affected in the result. But such a result, if it be the case, would turn on the true construction of the terms used in the Indian Act to prescribe who qualifies as an Indian in the light of the whole Act. It would flow from these terms and not from provincial law except in so far as, in the very definition of Indian status, they may be part of federal law. It would be a case of reference to provincial law, which can sometimes be made by the use of a single expression in a statute. Such a case would differ, I think, from the broader question whether, for purposes other than the definition of Indian status, the latter purpose being provided for in the Indian Act, provincial laws of general application apply to Indians of their own force or by referential incorporation under s. 88 of the Indian Act. The incorporation in this case, if any, is a particular, not a general one and it finds its source in the provisions of the Indian Act which relate to Indian status. Problems of a similar nature would arise should Indians wish to adopt a non-Indian child or should a child who is the
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member of an Indian band be adopted by Indians of another band.
I do not find it necessary to express an opinion on the purview of s. 88 of the Indian Act.
One finds nothing startling in the possible impact of provincial law upon Indian status if one keeps in mind that, in certain cases, the Indian Act makes the acquisition or loss of Indian status dependent upon marriage, (as in Attorney General of Canada v. Lavell), and that provincial laws relating to the solemnization of marriages may affect the validity of the contract: (Reference of certain questions concerning Marriage). Failure to observe provincial laws might, under the provisions of the Indian Act relating to status, entail far-reaching effects upon the status of persons who are parties to an Indian marriage and upon the status of their issue if such provisions are construed as attaching status to a marriage which is valid according to provincial law. This is the situation apart from s. 88 of the Indian Act, as it was the situation before the enactment of this section in 1951.
The view which I take of this case makes it unnecessary for me to pronounce upon the effects, if any, of the adoption order on the status of the child. However, there are additional reasons of a jurisdictional and procedural nature why I find it preferable to exercise restraint on this point. It would not normally be competent for provincial courts to decide whether or not a person is an Indian. The Indian Act provides a forum and a procedure for this purpose in ss. 5 to 10 which relate to registration: the inclusion of the name of a person on a band list or on the general list, or its deletion from such list may be the subject of a protest made to the Registrar by interested parties such as the electors of the band; the decision of the Registrar upon such protest is subject to review by a county or district court judge acting as persona
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designata; the latter’s decision can in its turn be reviewed by the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.). This again is illustrated by the proceedings in the Lavell case. Our own jurisdiction is limited to giving the judgment that could and should have been rendered by the court whose decision is appealed against (s. 47 of the Supreme Court Act, R.S.C. 1970, c. S-19).
I accept on the other hand that, before granting an adoption order in a case similar to the present one, the trial judge may and indeed should, in the exercise of his discretion although not as a matter of adjudication, take into consideration, among various circumstances to be weighed by him, the child’s possible forfeiture of his Indian status. This consideration does not arise in this case where the child’s life and health have twice been put in jeopardy while he was away from his foster parents, the petitioners, whose family and home have been his only family and home for several years.
Finally, in order to reach my conclusions and to answer the question of law which has been specifically stated by the Chief Justice, I must say that subs. (4a) of the Adoption Act is, in my opinion, clearly ultra-vires. This may be paradoxical since s. (4a) appears to have been dictated by the intent not to invade federal jurisdiction. But what was said is what matters, not what was meant. Whether “the status, rights, privileges, disabilities and limitations of an adopted Indian person acquired as an Indian under the Indian Act” are affected or not affected by adoption is, as a matter of legislative policy, exclusively for Parliament to decide, or, as a question of interpretation in a proper case, for the courts to rule upon. How Indian status is affected, by adoption or otherwise, is a matter coming within the class of subjects mentioned in s. 91.24 of the British North America Act, 1867.
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I would dispose of the appeal as is proposed by the Chief Justice.
Appeal dismissed.
Solicitors for the appellants: Wilson, Hitch & Easdon, Victoria.
Solicitors for the respondents: Pearlman & Lindholm, Victoria.
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