Cardinal v. Attorney General of Alberta

Cardinal v. Attorney General of Alberta
Collection
Supreme Court Judgments
Date
1973-06-29
Report
[1974] SCR 695
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Alberta
Subjects
Aboriginal law
Decision Content
Supreme Court of Canada
Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695
Date: 1973-06-29
Charlie Cardinal Appellant;
and
The Attorney General of Alberta Respondent.
1972: December 7; 1973: June 29.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Indians—Constitutional law—Provincial Statute prohibiting trafficking in big game—Validity of legislation—Applicability to Indians on Reserve—Wildlife Act, R.S.A. 1970, c. 391—B.N.A. Act.
The appellant, a treaty Indian, at his home on an Indian Reserve in Alberta, sold a piece of moose meat to a non-Indian. He was charged with unlawful trafficking in big game, in breach of s. 37 of the Wildlife Act, R.S.A. 1970, c. 391. It is uncontested that what he did was, in fact and in law, within the prohibitions of that Act. The appellant was acquitted at trial on the ground that the Wildlife Act was ultra vires of the Legislature in its application to the appellant as an Indian on an Indian Reserve. An appeal by way of a stated case was dismissed. On a further appeal to the court of Appeal, the judgment at trial was reversed. The appellant was granted leave to appeal to this Court.
Held (Hall, Spence and Laskin JJ. dissenting): The appeal should be dismissed.
Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie and Pigeon JJ.: Section 12 of the Alberta Natural Resources Agreement of 1929, between the Government of Canada and the Government of Alberta, made the provisions of the Wildlife Act applicable to all Indians, including those on Reserves, and governed their activities throughout the province, including Reserves. By virtue of s. 1 of the B.N.A. Act, 1930, it has the force of law, notwithstanding anything contained in the B.N.A. Act, 1867, any amendment thereto, or any federal statute.
Section 91 (24) of the B.N.A. Act, 1867, gave exclusive legislative authority to the Canadian Parliament in respect of Indians and over lands reserved for the Indians. 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) was to create enclaves within a Province within the boundaries of which provincial legislation could have no application. Section 91(24) 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. Section 37 of the Wildlife Act does not relate to Indians, qua Indians, and is applicable to all Indians, including those on Reserves.
The purpose of s. 12 of the Agreement is to secure to the Indians of the province a continuing supply of game and fish for their support and subsistence. It could not have been intended that the controls which would apply to Indians in relation to hunting and fishing for purposes other than for their own food, should apply only to Indians not on Reserves.
Per Hall, Spence and Laskin JJ., dissenting: Apart entirely from the exclusive power vested in the Parliament to legislate in relation to Indians, its exclusive power in relation also to Indian Reserves puts such tracts of land beyond provincial competence to regulate their use or to control resources thereon. It is only Parliament that may legislate in relation to Reserves once they have been recognized or set aside as such. Indian Reserves are enclaves which are withdrawn from provincial regulatory power. During its existence as such a Reserve is no more subject to provincial legislation than is federal Crown property or any other enterprise falling within exclusive federal competence. Not only provincial game laws but other provincial regulatory legislation can have no application, of its own force, to such Reserves, at least where it is sought to subject Indians thereon to such legislation.
Section 10 of the Agreement provides that all Indian Reserves are to continue to be administered by the Government of Canada for the purposes of Canada. That points clearly to the exclusion of Reserves from provincial control. Section 12 is concerned with Indians as such, and with guaranteeing to them a continuing right to hunt, trap and fish for food regardless of provincial game laws which would otherwise confine Indians in parts of the province that are under provincial administration. Section 12 of the Agreement cannot, in view of s. 10 thereof and in view of s. 91(24) of the B.N.A. Act, have the effect of subjecting Indians on a Reserve to the Alberta Wildlife Act.
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], overruling the judgment of the Court below. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.
R.F. Roddick and L.R. Cunningham, for the appellant.
W. Henkel, Q.C., and B.A. Crane, for the respondent.
The judgment of Fauteux C.J. and of Abbott, Martland, Judson, Ritchie and Pigeon JJ. was delivered by
MARTLAND J.—On December 8, 1970, the appellant, a treaty Indian, at his home on an Indian Reserve, in the Province of Alberta, sold a piece of moose meat to a non-Indian. He was charged with a breach of s. 37 of the Wildlife Act, R.S.A. 1970, c. 391, which provides:
37. No person shall traffic in any big game or any game bird except as is expressly permitted by this Act or by the regulations.
The trial judge found that the appellant had trafficked in big game within the meaning of this section. The appellant was acquitted on the ground that the Wildlife Act is ultra vires of the Alberta Legislature in its application to the appellant as an Indian on an Indian Reserve. A case was stated on this legal issue, which was considered by a judge of the Supreme Court of Alberta, who held that the decision was correct. An appeal was taken to the Appellate Division of the Supreme Court of Alberta, which allowed the appeal and overruled the judgment of the Court below. The present appeal is brought, with leave, to this Court.
Section 91(24) of the British North America Act, 1867, gives to the Parliament of Canada exclusive authority to legislate in respect of:
24. Indians, and Lands reserved for the Indians.
An agreement was made between the Government of Canada and the Government of Alberta, dated December 14, 1929, hereinafter referred to as “the Agreement”, for the transfer by the former to the latter of the interest of the Crown in all Crown lands, mines and minerals within the Province of Alberta, and the provisions of the Alberta Act were modified as in the Agreement set out.
Sections 10 to 12 inclusive appear in the Agreement under the heading “Indian Reserves”, and it is sections 10 and 12 which are of importance in considering this appeal. They provide as follows:
10. All lands included in Indian Reserves within the Province including those selected and surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may in agreement with the appropriate Minister of the Province, select, as necessary to enable Canada to fulfil its obligations, under the treaties with the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof.
12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.
This Agreement was approved by the Parliament of Canada and the Legislature of the Province of Alberta and, thereafter, it and also agreements between the Government of Canada and the Provinces of Manitoba, Saskatchewan and British Columbia were confirmed by the British North America Act, 1930. Section 1 of that Act provided:
1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything in the British North America Act, 1867, or any Act amending the same, or any Act of the Parliament of Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid.
Sections 10 and 12 of the Agreement were, therefore, given the force of law, notwithstanding anything in the British North America Act, 1867. The question in issue on this appeal is as to whether s. 12 was effective so as to make the provisions of the Wildlife Act applicable to the appellant, a treaty Indian, in respect of an act which occurred on an Indian Reserve in the Province of Alberta.
The submission of the appellant is that the Parliament of Canada has exclusive legislative authority to legislate to control the administration of Indian Reserves and that Provincial laws cannot apply on such a Reserve unless referentially introduced through Federal legislation. It is contended that the phrase “on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access” does not include Indian Reserve lands and that the only laws to which Indians are subject, while on a Reserve, are the laws of Canada. Section 12, it is said, can only have application to Indians in Alberta outside the Indian Reserves.
In support of this proposition the case of R. v. Wesley[2], is cited. This is a judgment of the Alberta Appellate Division. In my opinion it is not of assistance in determining the issue in the present appeal. The accused, an Indian, was charged with breaches of the Game Act of Alberta in respect of his hunting activities on unoccupied Crown land. The deer which he had killed was used for food. The issue was as to the scope of the protection provided to him by s. 12 of the Agreement with respect to hunting for food. The Crown contended that the right to hunt “game” did not include animals the killing of which was totally prohibited by the Game Act. It was also urged that when the right to hunt was given “at all seasons of the year” this only conferred the right to hunt out of season, but that such hunting was still subject to the limits imposed by the Game Act. These submissions were rejected. The Court’s conclusions are stated in the judgment of McGillivray J.A. at p.344:
If the effect of the proviso is merely to give to the Indians the extra privilege of shooting for food “out of season” and they are otherwise subject to the game laws of the province, it follows that in any year they may be limited in the number of animals of a given kind that they may kill even though that number is not sufficient for their support and subsistence and even though no other kind of game is available to them. I cannot think that the language of the section supports the view that this was the intention of the law makers. I think the intention was that in hunting for sport or for commerce the Indian like the white man should be subject to laws which make for the preservation of game but, in hunting wild animals for the food necessary to his life, the Indian should be placed in a very different position from the white man who, generally speaking, does not hunt for food and was by the proviso to sec. 12 reassured of the continued enjoyment of a right which he has enjoyed from time immemorial.
This passage was quoted with approval in this Court in Prince v. R.[3], in which the issue was as to the meaning of the word “hunt” in s. 72(1) of the Game and Fisheries Act, R.S.M. 1954, c. 94, which had been enacted in implementation of s. 13 of the Manitoba Natural Resources Agreement, which is the same as s. 12 of the Agreement. It was admitted that the appellants were Indians, hunting for food, on land to which they had the right of access. It was held that they were not subject to restriction as to the method of hunting. The same principle was applied, recently, by the Manitoba Court of Appeal in R. v. McPherson[4].
The Court of Appeal for Saskatchewan, in R. v. Smith[5], considered the application of s. 12 of the Saskatchewan Natural Resources Agreement, which is the same as s. 12 of the Agreement. The accused was an Indian charged with carrying fire-arms on a game preserve. It was contended that he was protected by the proviso in the section, in that he was hunting on unoccupied Crown lands or on lands to which he had a right of access. Both arguments were rejected. It was held that “unoccupied” meant “idle” or “not put to use” and that Crown lands appropriated for a special purpose were not unoccupied within the meaning of s. 12. It was also held that the only right of access to the lands in question was merely the privilege accorded to all persons to enter the preserve without carrying fire-arms.
All of the members of the Court, when considering the meaning of the words “right of access”, considered that they applied to Indian Reserves as well as to other lands. The only other case cited to us which was concerned with the interpretation of s. 12 is the judgment of this Court in Daniels v. White and The Queen[6], which dealt with the equivalent section (s. 13) of the Manitoba Agreement. The issue there, however, was as to whether the guarantee of the Indians’ right to hunt, trap and fish game and fish for food was binding upon the Federal Government, so as to exempt the appellant, who was an Indian, from the application of the provisions of the Migratory Birds Convention Act. It was held that it was only Provincial game laws which were subject to the proviso contained in that section. That decision has no application to the circumstances of this case.
The present appeal thus raises issues as to the application of s. 12 which have not been considered previously.
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 British North America Act, 1867, 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 Company v. Bryden[7], 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[8], 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 British North America Act, 1867, 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 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. There have been a number of cases in Provincial Courts in which s. 12 of the Agreement, or its equivalent in the Manitoba and Saskatchewan Agreements, was not applicable, which have considered the question of the application of Provincial laws to Indians, and their application within Indian Reserves. Counsel for the appellant cites R. v. Jim[9]. In this case Hunter C.J.B.C. held that a charge of hunting deer, without a licence issued pursuant to the British Columbia Game Protection Act, would not lie against an Indian hunting on an Indian Reserve. The ground of the decision was that the Indian Act, enacted pursuant to s. 91(24) of the British North America Act, 1867, had provided that all Indian lands should be managed as the Governor-in-Council directs and that management included the regulation of hunting on a Reserve.
R. v. Rodgers[10] is a decision of the Manitoba Court of Appeal, to the like effect, involving the trapping of mink on an Indian Reserve without a Provincial licence.
In R. v. Morley[11], the British Columbia Court of Appeal held that a Provincial game law applied to a non-Indian on a charge of killing a pheasant during the closed season on an Indian Reserve.
In Corporation of Surrey v. Peace Arch Enterprises Ltd.[12], the situation was different. It involved lands in an Indian Reserve which had been “surrendered” in trust to the Federal Crown for the purpose of leasing. The issue was as to whether the lands were subject, in their use by the lessees, who were non-Indians, to certain municipal by-laws and to regulations under the Provincial Health Act. The Court found that the lands in question were still “lands reserved for the Indians” and, that being so, only the Federal Parliament could legislate as to the use to which they might be put. The Morley case is not mentioned in the judgment and I presume that this was so because the cases were not considered as parallel. Once it was determined that the lands remained lands reserved for the Indians, Provincial legislation relating to their use was not applicable. The game law considered in the Morley case governed the conduct of persons hunting game in British Columbia and was held to apply in all parts of the Province.
The Quebec Court of Sessions of the Peace, in R. v. Groslouis[13], convicted an Indian merchant, who resided and operated a retail store on an Indian Reserve, of an offence under the Quebec Retail Sales Tax Act in respect of a sale of goods on the Reserve to a non-Indian. The Court suggested, however, that, when selling to a non-Indian, he did an action which theoretically caused him to go outside the Reserve.
The Ontario Court of Appeal held in R. v. Hill[14] that an unenfranchised treaty Indian, resident on a Reserve, was subject to the provisions of the Ontario Medical Act when he practised medicine for hire, but not upon the Reserve. That Court also held, in R. v. Martin[15] that an Indian, not on a Reserve, could be convicted of an offence under the Ontario Temperance Act. Riddell J., at p. 83, applied the language of the decision of the Privy Council in Canadian Pacific Railway Company v. Corporation of the Parish of Notre Dame de Bonsecours[16] mutatis mutandis, in the case before him. The passages in the Canadian Pacific Railway case are as follows:
The British North America Act, whilst it gives the legislative control of the appellants’ railway quâ railway to the Parliament of the Dominion, does not declare that the railway shall cease to be part of the provinces in which it is situated, or that it shall, in other respects, be exempted from the jurisdiction of the provincial legislatures.
* * *
It therefore appears to their Lordships that any attempt by the Legislature of Quebec to regulate by enactment, whether described as municipal or not, the structure of a ditch forming part of the appellant company’s authorized works would be legislation in excess of its powers. If, on the other hand, the enactment had no reference to the structure of the ditch, but provided that, in the event of its becoming choked with silt or rubbish, so as to cause overflow and injury to other property in the parish, it should be thoroughly cleaned out by the appellant company, then the enactment would, in their Lordships’ opinion, be a piece of municipal legislation competent to the Legislature of Quebec.
Riddell J. then went on to say:
In other words, no statute of the Provincial Legislature dealing with Indians or their lands as such would be valid and effective; but there is no reason why general legislation may not affect them.
In none of these cases is it decided that a Provincial game law, of general application, would not affect an Indian outside a Reserve. Legislation of this kind does not relate to Indians, quâ Indians, and the passage above quoted would, in my opinion, be applicable to such legislation. The Jim case and the Rodgers case held that such legislation did not apply to an Indian on an Indian Reserve. The Morley case is inconsistent with the idea that no Provincial legislation can apply within an Indian Reserve, save by reference in a Federal statute.
I now turn to a consideration of the effect of s. 12 of the Agreement.
It has been noted that this section, along with ss. 10 and 11, appears under the heading “Indian Reserves”. It begins with the words:
In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, ….
The opening words of the section define its purpose. It is to secure to the Indians of the Province a continuing supply of game and fish for their support and subsistence. It is to achieve that purpose that Indians within the boundaries of the Province are to conform to Provincial game laws, subject, always, to their right to hunt and fish for food. This being the purpose of the section, it could not have been intended that the controls which would apply to Indians in relation to hunting and fishing for purposes other than for their own food, should apply only to Indians not on Reserves.
Furthermore, if the section were to be so restricted in its scope, it would accomplish nothing towards its purpose. Cases decided before the Agreement, such as R. v. Martin, supra, had held that general legislation by a Province, not relating to Indians, qua Indians, would apply to them. On their facts, these cases dealt with Indians outside Reserves. The point is that the provisions of s. 12 were not required to make Provincial game laws apply to Indians off the Reserve. In my opinion, the meaning of s. 12 is that Canada, clothed as it was with legislative jurisdiction over “Indians, and Lands reserved for the Indians”, in order to achieve the purpose of the section, agreed to the imposition of Provincial controls over hunting and fishing, which, previously, the Province might not have had power to impose. By its express wording, it provides that the game laws of the Province shall apply “to the Indians within the boundaries thereof”. To me this must contemplate their application to all Indians within the Province, without restriction as to where, within the Province, they might be.
This view is supported by an examination of the state of the law, in Alberta, at the time the Agreement was made. At that time, s. 69 of the Indian Act , R.S.C. 1927, c. 98 , provided as follows:
69. The Superintendent General may, from time to time, by public notice, declare that, on and after a day therein named, the laws respecting game in force in the province of Manitoba, Saskatchewan or Alberta, or the Territories, or respecting such game as is specified in such notice, shall apply to Indians within the said province or Territories, as the case may be, or to Indians in such parts thereof as to him seems expedient.
The Superintendent General was thus empowered to declare that Alberta laws respecting game should apply to “Indians within the said province” or “in such parts thereof as to him seems expedient”. Being a provision of the Indian Act, the section must have contemplated the possible exercise of the power with respect to Indians on Reserves when it spoke of “Indians within the said province”.
When s. 12 was drafted, it stated its general purpose and then went on to provide that the game laws of the Province should apply “to Indians within the boundaries thereof”. This is practically the same as the words “Indians within the said province” in s. 69 , and, in my opinion, it was intended to have the same meaning and application. Section 69 ceased to have any effect in Alberta, Saskatchewan and Manitoba after the enactment of the British North America Act, 1930, which gave the agreements therein mentioned the force of law, notwithstanding anything in the British North America Act, 1867, or any amendments to it, or any Act of the Parliament of Canada. Section 69 disappeared from the Indian Act enacted in 1951, c. 29, S.C. 1951, which then introduced s. 87 (now s. 88) to which reference will be made later, and which provided:
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 appellant places emphasis on the words in the proviso to s. 12 of the Agreement “on any other lands to which the said Indians may have a right of access”. The contention is that s. 10 provided for continuance of the vesting of title in Indian Reserves in the Federal Crown, as well as for the creation of additional Reserves, and that, in these lands, the Indians who reside thereon have an interest considerably greater than a mere “right of access”. The use of that phrase, it is submitted, is inconsistent with any reference to Reserve lands, and therefore, as the proviso, by the terms used, does not apply to Indian Reserves, the section, as a whole, must be taken not to have application to them.
I am unable to agree that the broad terms used in the first portion of s. 12 can be limited, inferentially, in this way. In my view, having made all Indians within the boundaries of the Province, in their own interest, subject to Provincial game laws, the proviso, by which the Province assured the defined rights of hunting and fishing for food, was drawn in broad terms. The proviso assures the right to hunt and fish for food on Indian Reserves, because there can be no doubt that, whatever additional rights Indian residents on a Reserve may have, they certainly have the right of access to it. This view was expressed by the Saskatchewan Court of Appeal in the Smith case to which reference has already been made.
For these reasons, I am of the opinion that s. 12 of the Agreement made the provisions of the Wildlife Act applicable to all Indians, including those on Reserves, and governed their activities throughout the Province, including Reserves. By virtue of s. 1 of the British North America Act, 1930, it has the force of law, notwithstanding anything contained in the British North America Act, 1867, any amendment thereto, or any Federal statute.
Having reached this conclusion, it is not necessary, in the circumstances of this case, to determine the meaning and effect of s. 88 (formerly s. 87) of the Indian Act, R.S.C. 1970, c. I‑6.
I would dismiss the appeal.
The judgment of Hall, Spence and Laskin JJ. was delivered by
LASKIN J. (dissenting)—This appeal raises, for the first time in this Court, the question whether provincial game laws apply to a Treaty Indian on an Indian Reserve so as to make him liable to their penalties for engaging on the Reserve in activities prohibited by the provincial legislation. Although the issue in this case involves Alberta legislation, and hence requires a consideration of the Natural Resources Agreement between Canada and Alberta, as approved respectively by 1930 (Can.), c. 3 and 1930 (Alta.), c. 21 and confirmed by the British North America Act, 1930 (U.K.), c. 26, it eddies out to sister western Provinces which have like agree- ments with Canada and, in my opinion, is of equal import to Treaty Indians living on Reserves in Provinces east of Manitoba.
The Alberta Natural Resources Agreement is part of the constitutional order under which Canada and its respective Provinces exist, and the question arises whether and to what extent it affects and is affected by the distribution of legislative power under ss. 91 and 92 of the British North America Act. The issue in the present case engages, therefore, not only the relevant terms of the Alberta Natural Resources Agreement but also the exclusive federal power under s. 91(24) in relation to “Indians, and lands reserved for the Indians”. In my opinion, there are parallel questions here of the extent, if any, to which provincial game laws may apply to Indians on a Reserve either in the face of the Alberta Natural Resources Agreement (or the Manitoba Natural Resources Agreement or the Saskatchewan Natural Resources Agreement, which have like provisions on the matter in issue) or in the face of unexercised federal legislative power under s. 91(24). In this latter respect, I repeat time‑tested words from Union Colliery Co. v. Bryden[17], which express what is now a constitutional axiom: 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 legislative power which had been assigned to the Dominion by s. 91 of the Act of 1867.
There is a subsidiary question that arises here if it be held that the relevant provincial statute, the Wildlife Act, 1970 (Alta.), c. 113 (now R.S.A. 1970, c. 391), applies to Indians on a Reserve under the Alberta Natural Resources Agreement. That question is whether, in that event, it is excluded or overborne by the provisions of the Indian Act, R.S.C. 1970, c. I-6, and especially ss. 73, 81 and 88 thereof.
One of the preambles to the Alberta Natural Resources Agreement (and similarly in the Saskatchewan Natural Resources Agreement and as well, albeit in a somewhat different context, in the Manitoba Natural Resources Agreement) provides that “it is desirable that the Province should be placed in a position of equality with the other Provinces of Confederation with respect to the administration and control of its natural resources as from its entrance into Confederation in 1905”.
The provisions of the Agreement which directly raise the question for decision in this case are ss. 10 and 12 which read, respectively, as follows:
10. All lands included in Indian reserves within the Province, including those selected and surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the appropriate Minister of the Province, select as necessary to enable Canada to fulfil its obligations under the treaties with the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof. 12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.
There are several other sections of the Alberta Natural Resources Agreement which are worth reproducing as indicators of its purpose to put Alberta in a position of equality with other Provinces respecting administration and control of its natural resources. They are ss. 14, 15 and 18 which are, in their material terms, in these words:
14. The parks mentioned in the schedule hereto shall continue as national parks and the lands included therein, as the same are described in the orders in council in the said schedule referred to (except such of the said lands as may be hereafter excluded therefrom), together with the mines and minerals (precious and base) in each of the said parks and the royalties incident thereto, shall continue to be vested in and administered by the Government of Canada as national parks, but in the event of the Parliament of Canada at any time declaring that the said lands or any part thereof are no longer required for park purposes, the lands, mines, minerals (precious and base) and the royalties incident thereto, specified in any such declaration, shall forthwith upon the making thereof belong to the Province, and the provisions of paragraph three of this agreement shall apply thereto as from the date of such declaration.
15. The Parliament of Canada shall have exclusive legislative jurisdiction within the whole area included within the outer boundaries of each of the said parks notwithstanding that portions of such area may not form part of the park proper; the laws now in force within the said area shall continue in force only until changed by the Parliament of Canada or under its authority, provided, however, that all laws of the Province now or hereafter in force, which are not repugnant to any law or regulation made applicable within the said area by or under the authority of the Parliament of Canada, shall extend to and be enforceable within the same, and that all general taxing acts passed by the Province shall apply within the same unless expressly excluded from application therein by or under the authority of the Parliament of Canada.
18. Except as herein otherwise expressly provided, nothing in this agreement shall be interpreted as applying so as to affect or transfer to the administration of the Province (a) any lands for which Crown grants have been made and registered under the Land Titles Act of the Province and of which His Majesty the King in the right of His Dominion of Canada is, or is entitled to become the registered owner at the date upon which the agreement comes into force, or (b) any ungranted lands of the Crown upon which public money of Canada has been expended or which are, at the date upon which this agreement comes into force, in use or reserved by Canada for the purpose of the federal administration.
The accused in this case, who is a Treaty Indian, was charged with unlawful trafficking on his Reserve in big game (he sold a piece of moose meat to a provincial game law officer) contrary to s. 37 of the Wildlife Act. It is uncontested that what he did was, in fact and in law, within the prohibitions of that Act. The Act establishes a system of control over wildlife in Alberta by regulatory licensing and prohibitions to which all persons in Alberta are ex facie subject. Neither Indians nor Indian Reserves are mentioned in the Act. In its generality, it extends to them but, as in other situations where generally expressed provincial legislation must be construed to meet the limitations on provincial authority because of exclusive federal competence or because of precluding or supervening federal legislation, the inquiry is whether the ex facie scope of the Act must be restricted in recognition of federal power, whether unexercised or exercised. I propose to deal first with the effect of s. 91(24) upon the reach of provincial game laws. Apart entirely from the exclusive power vested in the Parliament of Canada to legislate in relation to Indians, its exclusive power in relation also to Indian Reserves puts such tracts of land, albeit they are physically in a Province, beyond provincial competence to regulate their use or to control resources thereon. This is not because of any title vested in the Parliament of Canada or in the Crown in right of Canada, but because regardless of ultimate title, it is only Parliament that may legislate in relation to Reserves once they have been recognized or set aside as such. The issue of title to Indian lands, whether the loosely defined lands referred to in the Royal Proclamation of 1763 or the more precisely defined tracts known as Indian Reserves, was considered by the Privy Council in St. Catherines Milling and Lumber Co. v. The Queen[18]. The present case involves a Reserve in the special sense of lands expressly set aside as such, and it was the result of the St. Catherines Milling case that where such lands are within the limits of a Province, it is only when they are surrendered to the Crown that the full proprietary interest of the Province may be asserted, and that they then become subject to its control and disposition: see also Ontario Mining Co. v. Seybold[19].
However, as was noted in Attorney-General of Canada v. Giroux[20], in the reasons of Duff J., with whom Anglin J. concurred, there may be Indian title in a Reserve beyond the mere personal and usufructuary interest found to exist in the St. Catherines Milling case. Indians may have the beneficial ownership which is held for them in trust, and if that be so the legislative authority of Parliament under s. 91(24) would remain upon the surrender of the Reserve land to the Crown to permit it to effectuate the trust. Surrender would not, in such a case, be to the Crown in right of the Province, as it was in the St. Catherines Milling case where the land in question was unaffected by any trust in favour of the Indians. In any event, as was pointed out by this Court in Reference re Saskatchewan Natural Resources[21], “a distinction [is] recognized between legislative powers and proprietary rights, and the Crown may, f