Ontario Chancery, Mowat V.-C., 1871
The Act respecting Indian Lands authorized the Governor in Council to declare applicable thereto the Act respecting timber on public lands; an order in Council was issued accordingly; eight years afterwards another Act was passed which contained a clause author- izing the Governor in Council to declare the timber Act applicable to Indian Lands, and to repeal any such order in Council and substitute others, and another clause authorizing the Governor in Council to make regulations and impose penalties for the sale and protection of timber on Indian Lands:Held, that the Timber Act continued in force until revoked or altered by a new order in Council.
On the 29th September, 1870, the Superintendent General of Indian Affairs granted to the defendant Fowlds a license to cut timber on certain Indian lands on terms specified in the license. It appeared from the evidence that the license had been issued in the interest [Statement] of the Indians, and that the terms were the highest which could have been obtained. At the hearing the defendant was not charged with any impropriety either in pro- curing a license or in acting under it. The Indians, however, having been dissatisfied, the license was re- voked. The question in issue before the Court was, whether the license had been legally granted. On that question depended the defendant's rightto the timber which he had cut before the revocation. This right was the only matter in issue.
On behalf of the Indians it was contended, that the supposed authority under which the license had been issued was not in force at the time of the license being granted.
The license was in terms of the Consolidated Act, chap- ter 23, "respecting the sale and management of timber on public lands." The subsequent Act 23 Victoria, chapter
151, transferred to the province the management of the Indian affairs, which had previously been managed by the Imperial authorities. That Act made the Commissioner of Crown Lands, for the time being, Chief Superintendent of Indian Affairs, and enacted, that the Governor in Council might "from time to time declare the provisions of the Act respecting the sale and management of the public lands passed in the" same session, and the Consolidated Statute as to the timber on public lands, "or any of such provisions, to apply to Indian lands or to the timber on Indian lands; and the same shall thereupon apply and have effect as if they were expressly recited or em- bodied in this Act." Under this Act the Governor in Council passed an order in Council, dated sixth of May, 1862, declaring the Timber Act thus mentioned to apply to Indian lands. This order in Council had never been revoked; and it was not disputed that, from the time it was made until the passing of the Act, 31 Victoria, [Statement.]chapter 42, the provisions of the Timber Act applied to Indian lands, and had the same effect with respect to them as if these provisions had been embodied in the Act 23 Victoria, chapter 151, under which the order in Council had been issued.
Previous Acts (a) 16 Vic. ch. 159, sec. 15; 22 Vic. ch. 22; 23 Vic. ch. 22., as well as this Act, had authorized the Governor in Council to declare the laws enacted respect- ing the sale and management of other public lands to apply to Indian lands. Whether this power had ever been exercised did not appear from the evidence in the cause.
The Act 31 Victoria, chapter 42, was "an Act pro- viding for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance lands." It provided amongst other things that "the Secretary of State shall be the
Superintendent General of Indian Affairs, and shall as such have the control and management of the lands and property of the Indians in Canada." The Act gave the Secretary of State some new powers in regard to Indian lands; authorized the Governor in Council to make regu- lations from time to time for the protection and management of such lands and the timber thereon, and for these purposes to impose penalties (a) sec. 37.; and it re-en- acted almost all the provisions of the Act 23 Victoria, chapter 151, in nearly the same language. It contained a clause (b) sec.38. corresponding with the seventh clause of the previous Act (c) 23 Vic. ch. 151, sec. 7. as to the power of the Governor in Council to apply to Indian lands the Acts, Consolidated Canada, chapter 23 (timber), and 23 Victoria, chapter 2, but in addition gave the Governor in Council power to from time to time repeal orders in Council passed for that purpose, and to substitute others. The part of the clause referring to Indian lands was as fol- lows: "The Governor in Council may direct that the said two Acts or either of them, or any part or parts of either or both of them shall apply to the Indian lands in the provinces of Quebec and Ontario, or to any of the said lands, and may from time to time repeal any such order in Council, and make any other or others instead thereof." No new order in Council was made after the passing of this Act.
The cause came on for the examination of witnesses and hearing at the Spring Sittings 1871, at Lindsay.
Mr. Bain, for the informant.
Mr. Crooks, Q.C., and Mr. Moss, contra.
MOWAT, V. C.--The Department considered that, by virtue of the order in Council of August 23, 1862, the
Timber Act continued applicable under the last Act (a) 31 Vic. ch. 42.. The principal argument now urged against this is, that the circumstance of the last Act giving to the Governor in Council authority to apply the previous Acts to Indian lands implies, that they were not to be applicable unless the Governor in Council should thereafter by order in Council make them so.
Now it must be assumed that the Legislature when passing the last Act were aware that the Timber Act was then in force with respect to Indian lands as fully as if its provisions had been embodied in the previous Act (b) 23 Vic. ch. 15.; and it would be a very strong thing to hold that the provisions so in force and known to be in force were in- tended to be repealed by the form of enactment referred to. Acts of Parliament often contain enactments of old and recognized rules as if they were new, but the Courts do not in such cases hold that such enactments unsettle [Judgment] the existing law; the implied opinion of the Legislature that the provisions are new is not construed as an authoritative declaration that they are new, or as an enactment that the Courts are so to regard them.
It is further to be observed, that the presumption of law is against a repeal by implication. Then, in the present case, the policy of the Legislature at the time of passing the last Act, as shewn by its provisions generally, affords no argument in favor of an intention to re- peal by Act of the Legislsture; but the contrary. The Timber Act had at this time been applicable to Indian lands for eight years; by the new Act, confessedly, the Governor in Council might at any moment, again put the same Timber Act in force with respect to those lands; the provisions of the Timber Act, when exam- ined, appear as beneficial and desirable for Indian lands as for any other; there might be considerable
inconvenience from there being a Legislative repeal without any special provision for past matters; and I think that such a construction of the new Act is not a necessary or probable implication. I think that I shall best carry out the intention of the Legislature, and shall do no violence to the language of the Act, by holding, in accordance with the view on which the licence now in question was granted, that, under sections 35 and 37 (a), the Governor in Conncil had power to, from time to time, withdraw Indian lands from the provisions of the Timber Act, and to, from time to time, direct that they should be again applicable, but that, meanwhile, and until the Governor in Council should act, the provi- sions in question continued in force.
The information must therefore be dismissed. I be- [Judgment] lieve the Attorney General raises no question as to the propriety in that case of the defendant getting his costs.