Ontario Court of Appeal, Hagarty C.J.O., Burton, Patterson and Osler JJ.A., 20 April 1886
(On appeal from judgment of Ontario Chancery, supra p.374)
(Appealed to Supreme Court of Canada, reported sub nom. St. Catherines Milling and Lumber Company v. The Queen, infra p. 441)
Held, [affirming the judgment of BOYD, C.], that lands ungranted upon which Indians have been accustomed to roam and live in their primi- tive state, form part of the public lands, and are under the B.N.A. Act, now held in the same manner by that Province in which such lands are situate as before the Confederation of the several Provinces.
THIS was an appeal by the defendants from the judg- ment of Boyd, C. (10 O. R. 196), and came on for hearing before this Court on the 10th, llth, and 14th of December, 1885. (1) Present--HAGARTY, C.J.O., BURTON, PATTERSON, and OSLER, JJ.A.
McCarthy, Q. C., and Creelman, for the appellants.
Mowat, Attorney General, W. Cassels, Q. C., and Mills, for the Crown.
The circumstances out of which this action arose, the points relied on, and authorities cited by counsel, are fully stated in the former report of the case.
April 20, 1886. HAGARTY, C. J. O.--For a clear under- standing of the case before us we are very much indebted to the learned Chancellor for the very clear, full, and well- arranged statement with which he prefaces his judgment. The field to be travelled over is necessarily very extensive. He has mapped it out with so much care and perspicacity as to very much reduce the labors of subsequent investigators. We may fully accept his historical treatment of the sub- ject from the earliest period down to the Confederation Act of 1867. The review of the authorities as to the true nature and extent of the alleged "Indian Title" may well warrant our full acceptance of the conclusion at which the learned Chancellor has arrived on this important branch of the case.
We have then to consider the effect of the Confedera- tion Act, and to glance at the existing position of the vast territories then moulded into a new constitutional form by Imperial legislation.
The north-western boundary of the Province of Onta- rio had not then been clearly ascertained, and it was not known whether the tract of country, which we may call the North West Angle, was or was not within Ontario. The Indian tribes were sparsely scattered over that region, and the rest of the northern continent to the Rocky Moun- tains. No surrender of Indian rights had been made, and according to the settled practice of the United Provinces of Canada, evidenced and sanctioned by repeated statutes, no attempt appears to have been made to grant titles or encourage settlement so long as the Indian claim was unextinguished.
We must except from this general statement any grants or titles from or under the Hudson's Bay Company.
The Confederation Act declares (sec. 6) that the part of Canada which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario.
Sec. 91. The Dominion Parliament may make laws for the peace, order, and good government of Canada in rela- tion to all matters not coming within the classes of sub- jects by this Act assigned exclusively to the Legislature of the Provinces, and the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects thereinafter enumerated. No. 24 of these reads--"Indians and Lands reserved for the Indians."
Sec. 92. In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects thereinafter enumerated. No. 5--"The man- agement and sale of the Public Lands belonging to the Province, and of the timber and wood thereon." No. 13. "Property and civil rights in the Provinces."
Sec. 109. All lands, mines, minerals, and royalties belong- ing to the several Provinces . . . at the Union, and all sums then due or payable for such lands, mines, mine-
rals or royalties shall belong to the several Provinces of . . . in which the same are situate or arise, subject to any trust existing in respect thereof, and to any interest other than that of the Province in the same.
Sec. 117. The several Provinces shall retain all their respective public property not otherwise disposed of by this Act, subject to the right of Canada to assume any lands and public property for fortifications or the defence of the country.
Schedules are attached to the Act as to provincial public works and property to be the property of Canada, such as canals, harbors, and including (No. 9) property transferred by the Imperial Government and known as Ordnance Property. No. 10. Armories, drill-sheds, etc., etc., and lands set apart for general public purposes. Another schedule specifies certain assets and properties which are to belong to Quebec and Ontario jointly.
Reference is made to these schedules to shew the par- ticularity with which the disposition of property was dealt with, and the improbability of any rights to extensive pro- perties being omitted.
In considering the effect to be given to the claim of Ontario to these lands surrendered at Confederation to be part of the public domain, it may be well to refer to certain references in our statutes. In 1839 an Upper Canada Act, 2 Vict. ch. 15, was passed as to trespassing on lands of the Crown, and allowing proceedings against per- sons illegally possessing themselves of any of the ungranted lands or lands appropriated for the residence of Indians, and to lands for the cession of which to Her Majesty no agree- ment had been made with the tribes occupying the same and who may claim title thereto.
12 Vict. ch. 9, (Canada,) 1849, declaring as to the foregoing Act, that it was to extend to all lands in that part of this Province called Upper Canada, whether surveyed or unsur- veyed, etc., and whether such lands be part of those usually known as Crown Reserves, Clergy Reserves, School Lands, or Indian Lands, &c., whether held in trust for the use of
the Indians or of any other parties, &c., and it expressly repeals any limitation in the first section of the Act of 1839.
1860--23 Vict. ch. 2, sec. 28--"The term 'Public Lands' shall be held to apply to Iands heretofore designated or known as Crown Lands, School Lands, Clergy Lands, Ordnance Lands (transferred to the Province), which desig- nation, for the purposes of administration, shall still con- tinue."
Sec. 9 allows the Governor-General to declare the pro- visions of the Act, or any of them, to apply to "the Indian Lands under the management of the Chief Superintend- ent of Indian Affairs," and the Chief Superintendent shall, in respect to said Indian lands, have the same power as the Commissioner of Crown Lands has in respect to Crown Lands. In former Acts, such as C. S. C., ch. 23, sec. 7, as to trespassers, the expression is "Crown, Clergy, School or other Public Lands." In a Public Land Act of 1849, 12 Vict. ch. 31, sec. 2, as to the effect of a receipt for purchase money from the Commissioner of Crown Lands, it is enacted that it shall extend to "sales of Clergy Reserves, Crown Reserves, School Lands, and generally to sales of all lands of what nature, kind, or description soever of which the legal estate is or shall be in the Crown, and the sale thereof is or shall be made by any department of the Government or any officer thereof, for or on behalf of Her Majesty, whether such land be held by Her Majesty for the public uses of the Province, or in the nature of a trust for some charitable or other public purpose." These latter words are omitted in the next Land Act, 16 Vict. In the session of 1860 was passed 23 Vict. 151, (reserved Act)--It declared that the Commis- sioner of Crown Lands should be Chief Superintendent of Indian Affairs.
Sec. 2. All lands reserved for Indians, or for any tribe or band of Indians, or held in trust for their benefit, should be deemed to be reserved for the same purposes as before the Act, but subject to its provisions.
Sec. 3. All moneys or securities applicable to the sup- port or benefit of the Indians, &c., and all moneys accrued, or hereafter to accrue from the sale of any lands reserved or held in trust as aforesaid, shall, subject to the provisions of this Act, be applicable to the same purposes, and be dealt with in the same manner as they might have been applied or dealt with before this Act.
Sec. 4 declared that no release or surrender of lands reserved for the use of Indians, &c., shall be valid except assented to by the chiefs (as directed) at a meeting in presence of an officer, duly authorised to attend by the Commissioner of Crown Lands, to be duly certified and returned to the Commissioner of Clown Lands.
Sec 6. Nothing in the Act is to make valid any release or surrender other than to the Crown.
Sec. 7 allows the Governor-General to declare the provi- sions of 23 Vict. ch. 2, or ch. 23 C. S. C., as to sale and management of timber on public lands, to apply to Indian lands, or to the timber on Indian lands.
Sec. 8. He may also direct how, and in what manner, and by whom the money from sales of Indian lands, and from the property held or to be held in trust for the Indians, shall be invested, &c., and for the general man- agement of such lands and moneys, and to set apart there- from, for the construction or repair of roads passing through such lands, and by way of contribution to schools frequented by such Indians.
We may refer to these Acts as shewing the state of the law at Confederation.
Much has been charged by Dominion legislation since that period.
The subsequent Dominion legislation may be referred to as indicative of the views of the framers of the statutes.
In 1868, the 31 Vict. ch. 42, (D.), substitutes the Secretary of State as Superintendent General of Indian Affairs, and the learned Chancellor points out the language in which "lands reserved for Indians, or held in trust for their benefit, shall be deemed to be reserved and held for the same purpose
as before this Act, and no such lands shall be sold, alien- ated, or leased until they have been released or surren- dered to the Crown."
The act of 1870, 33 Vict. ch. 3,(D.), establishing the Province of Manitoba was passed before any treaty was effected with the Indians for that portion of the North West. It pro- vides that after the transfer by the Queen's Proclamation of Rupert's Land, and the North West Territory to Can- ada, (which was dated 23rd June, 1870,) the new Province shall be formed.
Sec. 30 declares that all ungranted or waste lands in the Province shall be vested in the Crown and administered by the Government of Canada, &c.
Sec. 31 declares that towards the extinguishment of the Indian title to lands in the Province, the Lieutenant-Gov- ernor might select lots or tracts to the extent of 1,400,000 acres for the half-breed residents.
Sec. 32. And that all grants by the Hudson's Bay Com- pany in freehold should be confirmed, and all persons in peaceable possession of tracts of lands at the time of the transfer in those parts of the Province in which the Indian title had not been extinguished, should have the right of preemption thereto, &c.
By the terms of the arrangement with the Hudson's Bay Company large quantities of land had been declared by the Imperial and Dominion authorities to be the company's property absolutely. I refer to this statute, and to these arrangements, as a noteworthy commentary on some of the arguments addressed to us as to the extent of the alleged "Indian Title" to all unsurrendered lands. The treaties with the Indians affecting this part of the North West were in 1871. But the Act passed prior to the treaty spe- cifically appropriates large tracts of land.
The Chancellor properly refers to the Dominion Act of 1876, as to the definition of "Reserve" declared by sub. 6, sec. 3, to mean any tracts of land "set apart by treaty or otherwise for the use or benefit of, or granted to a particu-
lar band of Indians of which the legal title is in the Crown but which is unsurrendered."
Sub.-sec. 8. The term "Indian Lands" means any reserve or portion of a reserve which has been surrendered to the Crown.
These definitions are repeated in 1880, 43 Vict. ch. 38, D.
I think the Chancellor has placed the right interpreta- tion on the words in the British North America Act. "Indians and lands reserved for the Indians." They cannot, in my judgment, be held to embrace the enormous territories then lying beyond the settled or surveyed lands of Ontario. I adopt the language of the judgment appealed from on this head, and consider that the whole course of Canadian legislation, both before and after Confederation has stamped a definite meaning on the words "Indian Re- serves" or "lands reserved for Indians." That, in effect, such words do not cover lands which have never been the subject of treaty or surrender, and as to which the Legis- lature or executive Government have never specifically appropriated or "reserved" for the Indian population.
The Confederation Act professed only to unite the then Provinces of Canada, Nova Scotia, and New Brunswick, in a federal union, "with provision for the eventual union of other parts of British America." The territory embraced within the boundaries of these Provinces we may consider as alone affected by the special provisions in the Act for the appropriation and division of property. The territory in this North West Angle, was at that time unsurveyed and its legal boundary unascertained. It was eventually found to be within the Province of Ontario, representing the old Upper Canada. The well understood "Indian title" had never been surrendered, and no part of it, as far as I can understand from the evidence, had been treated as "reserved" for special Indian use or purpose. Territo- rially it was of course part of Ontario.
The main contest before us is, whether it did not thereby become part of the public domain of Ontario. The appel- lants have to contend, as they do, that inasmuch as the In-
dian title had never been extinguished it still remained excluded from the dominion of Ontario, and could only be dealt with or disposed of by the Federal Government--that it did not form part of the "public lands belonging to Ontario." The consequences would be, that it remained the property of the Dominion--that that power alone could grant any portion of the soil or timber, and it must be at its pleasure when or at what date, if ever, the Indian title should be extinguished by its action, and the same result would follow, if at the time of Confederation one-half or more of the Province of Ontario, clearly within its bound- aries, had remained with the alleged Indian title unsur- rendered. Difficulties may be suggested and may arise whichever of the opposing contentions may govern our decision. I do not propose to consider them further than the decision of the point in controversy requires.
If these lands passed under the British North America Act to Ontario, our decision must be against this appeal. It is not sufficient to hold that without this Act the lands in question in 1867 fall properly within the designation of "Public Lands" as such words are used in some of our statutes. We must take the whole Act together and as- certain as far as we can from its whole scope and bearing how far it decides this controversy. The sub-sec. 5, already quoted, must be read with sec. 109 as to "lands, mines, minerals, and royalties." And sec. 117 as to the Provinces retaining "all their respective public property not other- wise disposed of by this Act, subject to the right of Cana- da to assume any lands or public property for fortifications," &c. As to the words in sect. 109, "subject to any trusts existing in respect thereof and to any interest other than that of the Provinces in the same, "they do not in my opin- ion help the appellants. I cannot hold that any trust or interest in the legal sense in which we are bound to regard them, can be said to have then existed or affected these lands, as waste lands of the Crown. We are not called on to decide whether Ontario could or could not before the extinguishment of the alleged Indian title, enter upon or sell these lands.
The treaty of 1873 has settled that matter. In the Attor- ney-General v. Mercer (8 App. Cas. 770) Lord Selborne says: "The fact that exclusive powers of legislation were given to the Provinces as to the management and sale of the public lands belonging to the Province would still leave it neces- sary to resort to sec. 109 in order to determine what those public lands were." He cites sec. 109, and discussing what "lands" are meant he says: "They evidently mean lands, &c., which were at the time of the Union in some sense and to some extent publici juris," and in this respect they re- ceive illustration from another section 117--"The several Provinces shall retain all their respective public property not otherwise disposed of by this Act subject to the right of Cannda to assume any lands or public property required for fortifications, &c. . . . It was not disputed on the argument for the Dominion at the bar, that all territorial revenues arising within each Province from 'lands' (in which term must be comprehended all estates in land) which at the time of the Union belonged to the Crown were reserved to the respective Provinces by sec. 109, and it was admitted that no distinction could in that respect be made between Crown Lands then ungranted and lands that had previously reverted to the Crown by escheat."
Again in reference to 109 he says--"The general subject of the whole section is of a high political nature, it is the attribution of royal territorial rights for purposes of rev- enue and government to the Provinces in which they are situated or arise. It is a sound maxim of law that every word ought to, primâ facie, be construed in its primary and natural sense, unless a secondary or more limited sense is required by the subject or the context."
I think the general scope of Lord Selborne's remarks strongly favor the opinion that the whole effect of the Act was to vest the ungranted lands of the Crown within the bounds of Ontario in the ownership of that province, and that no sound reason exists for exempting the unsurren- dered lands over which the very sparse Indian population was scattered.
Assuming that the treaty-making power rests wholly with the Dominion Government, and for the purposes of this case only, assuming that the appellants are right in asserting that until the Indian claims be extinguished the territory cannot properly be entered upon or occupied under either government, I still feel great difficulty in agreeing that when the extinguishment takes place the territory and its timber remain, or rather become, the property of the Dominion. Believing, as I have stated, that the Union Act declared that all within the territo- rial limits of Ontario become the property of this Prov- ince subject to any trust, &c., I feel myself forced to the conclusion that when the Dominion Government in 1873 extinguished the Indian claims, such action must be held to enure to the benefit of the Province in which is the legal ownership of the land thus relieved from an alleged burden.
The Confederation Act and subsequent Imperial legisla- tion left the general Government of Canada in full posses- sion of the immense North-West territories. It left each Province in the legal ownership of all the territory com- prised within its limits, with certain carefully specified exceptions. The Indian treaty of 1873 extended over part of Ontario as well as a large part of territory not included in any existing Province. Unfortunately at that time the true boundaries had not been ascertained. Had it been otherwise we might naturally suppose that some understanding would have existed between the local and the general Governments as to a distribution of the burden undertaken by the latter in extinguishing the Indian claims. But I cannot see how the absence of any such provision can alter the legal result.
If I hold otherwise I must decide that the fact of a bur- den, less or greater, being undertaken, necessarily affects the title to the released territory. If, as has occurred before in Indian treaties, the bargain had been that the Indians should remove altogether from the North West Angle to other lands assigned to them in the more distant
regions, the argument would be equally strong for declar- ing the surrendered lands to remain for ever in the hands of the general Government, although an integral part of Ontario, and wholly freed from the presence of a single Indian. I think we must assume, under the known uncertainty as to true boundaries, that the treaty was made by the Dominion as it were, "for the benefit of all concerned."
I cannot consider that we are dealing with the case of two rival claimants for the separate beneficial enjoyment of a valuable estate. I look upon the position of the Federal Government, in a case like this, as that of a power intrusted with large legislative authorities to be exercised, so far as the Provinces are concerned, for their general benefit. If any Province had a portion of its territory, as fixed by the paramount authority of the Union Act, incumbered or embarrassed by an Indian claim, it would be, I assume, the duty of the Federal Government to endea- vour to relieve it therefrom. The omission to make some provision for a fair share of the cost or burden, cannot, I think, affect the question.
The peculiar facts of this case suggest it as one emi- nently calling for some amicable arrangement in view of the great public interests. I do not underrate the difficul- ties presented by these facts. The treaty seems clearly to have been made on the assumption that the Dominion had the whole control of the surrendered territory. For exam- ple, we find a clause by which (p. 323 App.) Her Majesty agrees that the Indians shall have the right to hunt and fish over the tract surrendered, subject to such regulations as may from time to time be made by the Dominion Government except over such tracts, &c., required for set- tlement, &c., by the Government, or by her subjects duly authorized by such Government.
This lattter clause could, I presume, be carried out in good faith by arrangement between the two Governments. I think the appeal must be dismissed.
BURTON, J. A.--The case, when we come to understand the facts, does not present any very formidable difficulties, although a perusal of the reasons for and against the appeal, and the numerous authorities cited in them, might well impress one at first with the idea that it was beset with intricacies and complications. It is a case in which we are again called upon to place a construction upon the British North America Act, but the first objection of the learned counsel for the appellants is a very startling one, viz.: That the Act can have no application to the lands in question, inasmuch as at the time of Confederation the title to them was in the Indians, and that it consequently could not pass under the Act which professed to deal only with the lands which were the property of the former Provinces. In other words that a tract of country of over one hundred thousand square miles in extent, about one- half of which by the recent decision of the Privy Council was held to be within the confines of Ontario, and which was supposed hitherto to belong to the Provinces of Onta- rio and Quebec, was owned by the small body of Indians, less than four thousand in number, who were roaming over it at large in their primitive state, and occupying it merely as hunting or fishing grounds.
It would require very strong authority to induce any Court to come to such a conclusion, and whatever dicta there may be in American text books or decisions in support of such a view, I think it is the first time that such a con- tention has been urged in a British Court of Justice. Nor do I think the decisions in the United States warrant any such conclusion. It was stated in Fletcher v. Peck arguendo, 6 Cranch 87, (Feb. 1810,) that the Indian title was a mere occupancy for the purpose of hunting. It is not like our tenure, they have no idea of a title to the soil itself. It is over-run by them rather than inhabited: citing Vattel, ch. 1, secs. 81 and 209, bk. 2 sec. 97; Montesquieu, bk. 18, ch. 18; Smith's Wealth of Nations, bk. 5 ch. 1. It is a right not to be transferred but extinguished. And Mar- shall, C. J., in delivering judgment, refers to the question
merely in this way: "The Court is of opinion that the nature of the Indian title, which is certainly to be respec- ted by all Courts until it be legitimately extinguished, is not such as to be absolutely repugnant to seizin in fee on the part of the State." And in 1823, the same eminent Judge again discusses the question in an able and exhaus- tive judgment from which the learned Chancellor has made some extracts.
The whole discussion and judgment in that case are very interesting and instructive. Counsel referred to the practice of all civilized nations to deny the right of the Indians to be considered as independent communities hav- ing a permanent property in the soil. And it was said in argument that the North American Indians could have ac- quired no proprietary interest in the vast tract of territory which they wandered over, and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it; the use in the one case as in the other, is not exclusive. Accor- ding to every theory of property the Indians had no indi- vidual right to the land; nor had they any collectively, or in their national capacity, for the lands used by each tribe were not used by them in such manner as to prevent their being appropriated by settlers.
The learned Judge in the course of his able judg- ment referred to the exclusive power of the Crown to grant lands, though in the occupation of the Indians be- fore the Revolution as being undoubted, and then adds: "The existence of the power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist at the same time in different persons or in different Governments. An abso- lute must be an exclusive title, or at least a title which ex- cludes all others not compatible with it. All our institu- tions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the abso- lute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians." I am aware that there are to be found in some
of the United States decisions expressions which would seem to place the so-called Indian title on a higher footing, but I think that it is met by the extract I have made from Chief Justice Marshall's judgment "that an ab- solute title cannot exist at one and the same time in differ- ent persons or in different Governments," and that in truth the recognition of any right in the Indians has been on the part of the Government a matter of public policy deter- mined by political considerations, and motives of prudence or humanity, and has not been a recognition of property in the soil capable of being transferred. That has always been the view taken of their rights in this country, and so far back as 1858 the late Sir John Robinson, in giving judgment in Totten v. Watson, very clearly enunciates the opinion that the Indians had no title even as regards the lands reserved for them, and which, as he expresses, "they are merely permitted to occupy at the pleasure of the Crown;" 15 U. C. R. 392,
Mr. McCarthy contended that the principles upon which the Crown had been accustomed to deal with the Indians since the cession had been so well established, and so uni- formly and continuously exercised as to have grown into a right. There is no question that the same humane policy which the Imperial Government pursued in reference to them has been faithfully observed by the old Province of Canada from the time that the jurisdiction passed to them, and I have no doubt will still be continued whether the jurisdiction be with the Provinces or the Dominion. All that we are at present concerned with is, that this right, whatever it may be, is not a title to the land, and that by the 109th section of the British North America Act, the lands being within the limits of that portion of the old Province of Canada which now constitutes the Province of Ontario, belong to that Province, subject to any trusts at the time of the passing of the Act existing in respect thereof and to any interest other than that of the Province to the same. Sec. 109 became necessary in consequence of Ontario and Quebec having previously to Confederation formed but
one Province, and on their becoming disunited it became ne- cessary to assign to each the property each should have. Apart from this, the plain and obvious intent and spirit of the Act is, that all lands situate within a Province con- tinued to belong to the Province, with the exception of those which were specifically transferred to the Dominion and set forth in a schedule, and, as if to place this beyond all question, Section 117 declares that the several Provinces shall retain all their respective public property not other- wise disposed of in the Act, subject to the right of the Do- minion to assume any lands or public property required for fortifications or the defence of the country.
Mr. McCarthy further contended that they did not pass to the Province, inasmuch as they were "Lands reserved for Indians as described in sub-sec. 24 of sec. 91," and so became the property of the Dominion, and that up to the time of the making of Treaty No. 3, it was clear that nei- ther the Executive nor Legislature of the Province had any power to deal with them; and that the Governor-Gen- eral could alone represent the Crown in treating with the Indians, and could alone accept a surrender from them. I am not prepared to accede to either proposition. It by no means follows that because exclusive jurisdiction to legis- late in reference to property--the subject matter of sec. 91-- is given by that sec., to the Parliament of Canada, the pro- perty itself should vest in the Dominion. On the contrary Parliament, as I have already pointed out, has clearly and specifically defined what property shall go to the Dominion, and "lands reserved for Indians" are not in the schedule so defining it. But the first proposition seems to assume the whole question in controversy, viz., what is meant by the words "Lands reserved for Indians."
I certainly should not have thought of resorting to the Proclamntion of 1763 for the definition of the words in question, which at the time of Confederation had acquired a well understood meaning which had been repeatedly re- cognized in the statutes and public documents of the Pro- vinces, and in the first Act passed by the Dominion
Parliament upon the subject, they treated their jurisdiction as confined to such lands as had been reserved for Indians, or for any tribe, band or body of Indians or held in trust for their benefit, and eight years subsequently when they consolidated the laws respecting Indians, they passed in- terpretation clauses in which the terms "Reserve" and "Special Reserve," and "Indian lands" are thus clearly defined, viz.:
(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, and includes all the trees, wood, timber, soil, stone, minerals, metals, or other valuables thereon or therein.
(7) The term "Special Reserve" means any tract or tracts of land, and everything belonging thereto set apart for the use or benefit of any band or irregular band of Indians, the title of which is vested in a society, corporation or commu- nity legally established, and capable of suing and being sued, or in a person or persons of European descent, but which land is held in trust for or benevolently allowed to be used by such band or irregular band of Indians.
(8) The term "Indian Lands" means any reserve or por- tion of a reserve which has been surrendered to the Crown, indicating very clearly that the Government and Parlia- ment of the Dominion adopted the construction which had always been attributed to the words in the Provinces, and their own construction of the language of the Imperial Act.
But I understand the learned counsel for the appellants to push his argument to the extent of saying that the Imperial authorities kept so jealous a control over the Indians and their affairs, that they would not have entrus- ted the Provinces with the power of treating for the extinguishment of their rights. The best answer to that argument is, that many years before Confederation those authorities had handed over the control of the Indians to the Provinces, and that the division of the Dominion and
Provincial powers was settled by delegates from the several Provinces, the Imperial Parliament having little more to do with the matter than to give legal effect to the agree- ment then arrived at by the delegates. The main feature of the scheme of division being to give to the Dominion power to legislate upon subjects of national interest, or matters common to all the Provinces, and to the Provinces power to deal with matters of a local or private nature. It was reasonable, therefore, that the power to legislate for Indians generally throughout the Dominion should be vested in the central authority, and that the same power should deal with the lands which the Provinces had reserved or set apart for them, but this power was expressly limited to such subjects. It would have been very un- likely that the delegates would have consented to place the power of legislation in reference to the large unorganised tracts of public lands like that in question in the hands of the Dominion. If then the lands in question passed, or to speak more accurately remained part of the Province of Ontario, it would seem to follow almost as of course that the Provincial and not the Dominion authorities were the parties and the only parties who could extinguish the so-called Indian title in the absence of any express power to the Dominion to deal with it. We were referred to the case of Lenoir v. Ritchie, 3 S.C.R. 376--more commonly known as the Great Seal case--as authority against the Lieutenant- Governor of a Province having power to deal with such a matter on behalf of Her Majesty. Whenever a case invol- ing the grave issues which were presented for decision in that proceeding comes before us under similar circumstances we shall be bound to follow that decision, but I must respect- fully decline to adopt the views expressed by some of the Judges in that case as to the limited powers of the Lieu- tenant Governors and of the Legislatures of the Provinces.
It was intended that each of the Provinces at the time of Confederation should stand upon the same footing as to constitutional and proprietary rights.
The 12th sec. provides that all the powers, authorities
and functions which under any Act of Parliament were vested in or exercisable by the respective Governors, or Lieutenant Governors, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in or ex- ercisable by the Governor General, while the 65th sec. vests the same powers in the Lieutenant Governors of Ontario and Quebec as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec, as were formerly exercised by the Governor General. This became necessary, as before Confederation the Province of Canada (now Ontario and Quebec) formed only one Province, presided over not by Lieutenant Gov- ernors but by the Governor General. But as respects New Brunswick, and Nova Scotia, by the 64th sec. the Provin- cial constitutions were continued. In other words, what- ever powers might have been exercised by any Governor fell to the Governor General of the Dominion if the subject matter related to the Dominion of Canada, and fell to the Lieutenant Governor if the matter related to the Province.
If it had not been for the expression to be found in some judicial utterances placing within very narrow limits the powers of the executive of the Provinces, I should have thought it too clear for argument, that the powers formerly exercised by the Lieutenant Governors of the other Provinces, and by the Governor General of Canada in reference to provincial matters, including agreements or so-called treaties with the Indians for the extinguishment of their rights, and granting to them in lieu thereof cer- tain reserves either for occupation or for sale, were now vested exclusively in the Lieutenant Governors. The view that has been sometimes expressed that they do not repre- sent Her Majesty for any purpose, appears to me to be founded on a fallacy, and to be taking altogether too nar- row a view of an Act, which is not to be construed like an ordinary Act of Parliament, but as pointed out in the Queen v. Hodge, is to be interpreted in a broad, liberal, and quasi political sense.
It is obvious that as the public lands are vested in the Queen, the Lieutenant Governor must have the power, in Her Majesty's name, to grant the same, or they cannot be granted at all, for the Governor General clearly has no such power, and it has always been assumed, without any express provision in the statute for making such grants in Her Majesty's name, that the power is vested in the Lieu- tenant Governor. There are several clauses of the British North America Act in which his power to act in the name of the Queen is expressly recognised, as for instance: sec- tion 82, which empowers him in the Queen's name to sum- mon the Legislature: in sec. 72 the Lieutenant Governor of Quebec is authorized to appoint legislative councillors in the Queen's name; and the Provincial Legislatures create Her Majesty's courts of civil and criminal jurisdiction, the writs in which are issued in Her Majesty's name. And this view appears to have received the direct confirmation of the Privy Council in Theberge v. Laudry, in which the Judicial Committee refer to an Act of the Provincial Legis- lature (2 App. Cas. 108) as having been assented to on the part of the Crown, and to which therefore the Crown was a party. If then it is within the competency of the Legislature of Ontario to legislate for the management and sale of these lands as being public lands belonging to the Pro- vince, it would follow that they have the minor power of empowering the executive to make any agreement for the extinguishment of the so-called Indian right. And I am of opinion therefore that there is no force in the learned counsel's objection that the Governor General could alone, as the representative of Her Majesty, accept a surrender of that right from the Indians.
Another reason for assuming that the Provincial authori- ties are the proper parties to deal with it arises from the consideration that in the event of the tribes ceasing to exist, the lands which have been reserved to them, to use SIR John Robinson's language, "for occupation at the pleasure of the Crown," would revert to the Province. Although when once reserved the Dominion Parliament
has alone power to deal with their management, it could scarcely have been in the contemplation of Parliament that the Dominion should prescribe to the Provinces the extent or nature of the reserves.
The Dominion authorities assumed to make the treaty in question under the mistaken belief that the lands were beyond the confines of the Province and were consequently Dominion lands, which will account for the reservation of the right to the Indians still to occupy the vast tract out- side their actual reserve for hunting and fishing until granted to settlers by the Dominion Government; which if the treaty is to be adopted in its integrity, would mean for all time to come, as the Dominion Government have no power to make such grants. Even if I did not think the language of the British North America Act, which I have quoted, clearly conferred upon the Provincial authorities the power to extinguish the Indian title, the same reasoning which compelled us to hold in Leprehon v. Ottawa, 2 A.R. 522, that the local Legislature had no power to tax the official income of a Dominion officer for Provincial or Municipal purposes, would compel us, in my opinion, to hold that the local Governments alone must be the judges of the extent to which lands belonging to them shall be set apart for the use or benefit of any tribe of Indians. If the Dominion Government have the power, being in its nature unlimited, it might, as was pointed out in that case, be so used as to defeat the Provincial power and control over these lands altogether.
In the view which I take of the whole case it was not necessary to consider the question I have lastly discussed, but I thought it due to Mr. McCarthy to let him see that his argument was not overlooked, and I also desired to re- cord my dissent from the view expressed by the Chief Jus- tice upon this part of the case. If, however, the lands were public lands which passed or remained with the Province, subject to the rights which the Indians might possess, as in my opinion they were, it is clear that the claim of the Dominion to authorize the cutting of the timber cannot be
sustained, and the judgment appealed from should conse- quently be affirmed.
PATTERSON, J. A.--The discussion of this appeal has ranged over a rather wide field, and we have had the benefit of much learning and historical research, for which we are indebted to the industry of counsel on both sides; but I have not been convinced that the learned Chancellor erred in his construction of the provisions of the British North America Act on which the question of property has to be decided. Two leading propositions were insisted on for the appellants, as Mr.McCarthy reminded us in his re- ply: First, that the lands in question are not lands in the sense intended in section 109, or public property of the kind mentioned in section 108, but are of the nature of pri- vate property; and secondly, that if this should be other- wise decided, they still passed to the Dominion as "lands reserved for Indians," described in article 24 of sec. 91. The contest has turned to a great extent upon the second proposition, the effort on the part of the appellants being to establish that lands which had not been the subject of a treaty with the Indians, but over which they had always been allowed to hunt and fish without molestation, were "lands reserved for Indians" within the meaning of section 91; while it is insisted for the Crown that the phrase is employed to denote a class of lands well known as Indian Reserves, and being tracts of lands set apart by treaties for the use of certain tribes or bands, and reserved from the ordinary course of settlement; but it can scarcely be said that each proposition was discussed by itself, and there is no good reason for attempting to consider them separately even if it were practicable to do so.
I shall not attempt to follow the course of the arguments to which we have listened, or to deal with the historical evidence touching the recognition or disregard by Euro- pean powers of the rights of the natives of the countries they discovered or conquered or seized on this continent, to which counsel on both sides appealed in aid of the views
they advocated. I have not failed to consider it attentive- ly, and I am satisfied that to discuss it at any length would be only to traverse the same ground which has been gone over by the learned Chancellor in his very able and per- spicuous judgment, without adding anything of import- ance to what he has said.
The general result of the historical evidence is, I think, as correctly and as concisely stated in Story's Comment- aries on the Constitution of the United States as in any other work. I quote from section 6, of the author's abridged edition of 1833: "It may be asked, what was the effect of this principle of discovery in respect to the rights of the natives themselves. In the view of the Euro- peans it created a peculiar relation between themselves and the aboriginal inhabitants. The latter were admitted to possess a right of occupancy or use in the soil, which was subordinate to the ultimate dominion of the discover- ers. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain pos- session of it, and to use it according to their own discre- tion. In a certain sense they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign who discovered it, but they were denied authority to dispose of it to any other persons, and, until such a sale or transfer, they were generally permitted to occupy it as sovereigns de facto. But notwithstanding this occupancy, the European discoverers claimed and ex- ercised the right to grant the soil while yet in the possession of the natives, subject, however, to their right of occu- pancy; and the title so granted was universally admitted to convey a sufficient title in the soil to the grantees in perfect dominion, or, as it is sometimes expressed in trea- tises of public law, it was a transfer of plenum et utile do- minium." This view is evidently that of the Parliament of Canada as may be gathered from the Indian Act, 1880, where "Reserve" is defined as "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."
I start therefore with the proposition that the title to all these Indian lands, even before what is called the surrender by the Indians, is in the Crown, without attempting by any argument of my own to prove its correctness; and shall content myself with making a few observations, chiefly concerning the effect of the British North America Act as it strikes me.
The British North America Act when it established the Dominion of Canada by the union of the four Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, had to provide for two great subjects, viz., the constitution, includ- ing the legislative powers, of each Province, and of the Dominion, and the ownership of the public assets or pro- perty of every kind, besides other subsidiary matters.
The division of the Act numbered VIII, and including sections 102 to 126, is headed "Revenues, Debts, Assets, Taxation."
Section 108 declares that the public works and property of each Province enumerated in the third schedule to the Act shall be the property of Canada. From reading this schedule along with section 91, it is evident that in the scheme of the Act, the vesting of property in the Dominion as against the Provinces was not intended to follow or to be inferred merely from the bestowal of exclusive legisla- tive jurisdiction over the subjects with which the property was connected. Thus while exclusive legislative power is given over: (5) Postal Service; (7) Militia, Military, and Naval Service and Defence; (9) Beacons, Buoys, Light- houses, and Sable Island; (10) Navigation and Shipping; the schedule expressly enumerates Post-offices, Ordnance property, Armories, Drill-sheds, &c.; Lighthouses, Piers, and Sable Island; Harbors, River and Lake imporvements, &c., there is, however, nothing answering in the schedule to the "lands reserved for Indians" over which by article 24 of section 91, the Parliament has exclusive legislative jurisdiction.
Therefore to argue that lands reserved for Indians become, by force of the British North America Act, the property of the Dominion as against the Provinces in which the reserves are situated, is, in my judgment, to attribute to section 91 an effect not contemplated or inten- ded by the framers of the Act, and certainly not the neces- sary result of the language of the section. The question of the ultimate ownership, as between the Dominion and the Provinces, of the ordinary Indian reservation may not be too speculative a question for discussion. It would become a practical question in the event of any such land ceasing to be required for the occupation of the tribe, or for applicaiton by way of sale or lease for its benefit, and falling in, as it were, for ordinary public uses; and it might become a practical question if it were attempted to dispose of the land or the timber on it for other uses than the benefit of the Indians. It does not at present appear to raise except on the assumption that the lands reserved for Indians, mentioned in section 91, include not only tracts within the definition of "Reserve" in the Indian Act, 1880, but also such lands as those which are the subject of this litigation.
It does not strike me as being involved in the circum- stance that the administration of the reserves belongs to the Dominion Government. The administrative and the legislative functions I take to be made co-extensive by the Act, as indicated by, inter and, section 130. Nor is the fact that, as part of the administration of Indian Affairs, the Dominion Government has made sales or carried out, by granting patents, sales already made for the benefit of the Indians of portions of the reserves, inconsistent with the ultimate ownership of the lands by the Provinces. The title is in the Crown, and the patent, whether issued by the Government of the Dominion or by that of a Province, is a grant from the Crown. If the lands should cease to be held for an Indian tribe or band, by reason of the tribe or band ceasing to exist or for any other reason, the question between the Dominion and the Provinces may have to be decided.
I am strongly inclined to the opinion that the lands reserved for Indians mentioned in section 91, whatever that term includes, are not vested in the Dominion for any purpose except legislation and administration on behalf of the Indians; but I do not discuss that question more fully because I hold, with the learned Chancellor, that the lands with which we are concerned are not touched by the section.
The title of the Province to the lands in question is in my opinion established by the direct force of sections 109 and 117. By section 109 all lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick, at the Union, were to belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same were situate or should arise, subject to any trust existing in respect thereof, and to any interest other than that of the Province in the same; and section 117 declares that the several Provinces shall retain all their respective public property not otherwise disposed of in the Act, subject to the right of Canada to assume any lands or public pro- perty required for fortifications or for the defence of the country.
To take the lands in question out of the operation of the extremely comprehensive effect of these sections, it is essential to establish one of two things: either that by some other provision of the Act they were assigned to the Dominion, or that they were private property of the Indians. The only other provision of the Act on which an argument can be based is section 91. I have made all the remarks I think necessary with regard to it.
The contention that the lands belonged to the Indians in any sense which deprived them of the character of lands belonging to the Province, or public property of the province, is answered by the extract I have read from Story on the Constitution, and by the judgment of the learned Chancellor to which, as I have said, I do not pro- pose to add anything on this point.
The action of the Dominion Government in procuring the extinguishment of the Indian title does not, in my view, in any way affect the legal question which is before us. The defendants assert a right to cut timber on the lands by virtue of a license from the Dominion Govern- ment, which is not pretended to have been given in the course of the administration of Indian affairs, or in dealing with lands reserved for Indians, but was admittedly given as a means of producing revenue for the general purposes of the Government. If the lands were, as I hold they were, assigned to the Province, subject to whatever rights the Indians had in them, the Province must have the right to interfere to prevent the spoliation of the lands, whether the Indians retain or have surrendered their title.
Other matters connected with the surrender of the Indian title were referred to at the bar, and from reading the treaty of the North West Angle and the history of the negotiations in the volume published by the Hon. Mr. Morris, we see that certain outlay was incurred and certain burdens assumed by the Government. Of these things I can say no more than that they seem to me to leave the legal question untouched. Whether they give rise to any claims or equities between the Dominion and the Province is a matter of policy as to which we have no information, and with which we are not concerned beyond the one question of the effect on the right to the timber.
I agree that we must dismiss the appeal.
OSLER, J. A.--I am satisfied to affirm the learned Chan- cellor's judgment for the reasons stated therein, and in the judgment of the learned Chief Justice which I have had an opportunity of reading.
[Since carried to the Supreme Court.]