St. Catharines Milling and Lumber Co. v. R.

St. Catharines Milling and Lumber Co. v. R.
Collection
Supreme Court Judgments
Date
1887-06-20
Report
(1887) 13 SCR 577
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Aboriginal law
Decision Content
Supreme Court of Canada
St. Catharines Milling and Lumber Co. v. R, (1887) 13 S.C.R. 577
Date: 1887-06-20
The St. Catharines Milling and Lumber Company, (Defendants) Appellants;
and
The Queen, on the Information of the Attorney General for the Province of Ontario, (Plaintiff) Respondent.
1886: November 19, 20 & 22; 1887: June 20.
Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Henry Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Indian Lands—Title to—Right of Occupancy—Lands reserved for Indians—B.N.A. Act sec. 91, subsec. 24—Sec. 92, subsec. 5—Secs. 109, 117.
The lands within the boundary of Ontario in which the claims or rights of occupancy of the Indians were surrendered or became extinguished by the Dominion Treaty of 1873, known as the North West Angle Treaty, No. 3, form part of the public domain of Ontario and are public lands belonging to Ontario by virtue of the provisions of the British North America Act[1].
Only lands specifically set apart and reserved for the use of the Indians are “lands reserved for Indians” within the meaning of sec. 91, item 24 of the British North America Act[2]Supreme Court of Canada.
The judgment of Boyd C. in the Chancery Division of the High Court of Justice for Ontario[3] and of the Court of Appeal for Ontario[4] affirmed. Strong and Gwynne JJ. dissenting,
APPEAL from a decision of the Court of Appeal for Ontario4, affirming the judgment of the Chancery Division3, which restrained the defendants from cutting timber on lands in Ontario claimed to be public lands of the Province.
This was an action by Her Majesty on the information of the Attorney General for the Province of Ontario against the St. Catharines Milling and Lumber Co. to prevent them from cutting and carrying away timber on lands in Ontario, lying south of Wabigoon Lake in the District of Algoma. It was claimed by the Attorney General that the lands in question were public lands of the Province, and that the defendants were trespassers and wrongdoers in cutting such timber.
The defendants justified under a license from the Dominion Government and pleaded the following special defence:
7. “The defendants say that the tract of land in question, together with the growing timber thereon, was, with other lands in the said district or territory, until recently claimed by the tribes of Indians who inhabited that part of the Dominion of Canada, and that the claims of such tribes of Indians have always been recognized, acknowledged, admitted and acquiesced in by the various Governments of Canada and Ontario, and by the crown, and that such Indian claims are, as to the lands in question herein, paramount to the claim of the Province of Ontario, or of the crown as represented by the Government of Ontario, and that the Government of the Dominion of Canada, in consideration of a large expenditure of money made for the benefit of the said Indian tribes, and of payments made to them from time to time, and for divers other considerations, have acquired the said Indian title to large tracts of lands in the said territory, including the lands in question in this action, and the timber thereon, and by reason of the acquisition of the said Indian title, as well as by reason of the inherent right of the crown, as represented by the Government of Canada, the Dominion of Canada, and not the Province of Ontario, has the right to deal with the said timber lands, and at the time of granting the said leave and license had and still have full power and authority to confer upon the defendants the rights, powers and privileges claimed by them, as aforesaid, under which the said pine timber was cut.”
The lands in question formed a portion of the territory declared, by what is known as the “Boundary Award,” to be geographically within the limits of the Province of Ontario, and in the year 1873 they were surrendered by the Indians to the Government of Canada by virtue of a treaty known as the North West Angle Treaty No. 3.
The question to be decided was whether under the provisions of the B.N.A. Act these lands belonged to the Province of Ontario or the Dominion.
The action was tried in the Chancery Division before Boyd C. who decided in favor of the Province, and his decision was affirmed by the Court of Appeal. The defendants appealed to the Supreme Court of Canada from the decision of the Court of Appeal.
McCarthy Q.C. and Creelman for the appellants.
Before discussing this case on the basis of the B.N.A. Act it is proposed to show, historically, that the Indians had a title to this land which never passed to the Province.
All this country was once occupied by Indian tribes. On its discovery by Europeans the discoverers acquired a right of property in the soil provided that discovery was followed by possession. See Sir Travers Twiss Law of Nations ch. headed “Right of Acquisition,”[5], as to the contest between England and the United States with reference to the mouth of the Columbia.
In case of conquest the only test as to the title of the conqueror is found in the course of dealing which he himself has prescribed. When he adopts a system that will ripen into law he settles the principle on which the conquered are to be treated.
In Canada, from the earliest times, it has been recognized that the title to the soil was in the Indians, and the title from them has been acquired, not by conquest, but by purchase.
In 1763 a royal proclamation was issued dividing the British possessions in America into separate governments and defining the powers of each. The rights of the Indians are conserved therein as the following extract will show:—
And whereas it is Just and Reasonable and Essential to Our Interests and the Security of Our Colonies that the several Nations or Tribes of Indians with whom we are connected and who live under Our protection should not be molested or disturbed in the possession of such parts of Our Dominions and Territories as, not having been ceded to or purchased by Us are reserved to them or any of them as their hunting grounds, We do therefore with the Advice of Our Privy Council declare it to be Our Royal Will and Pleasure that no Governor or Commander-in-Chief in any of Our Colonies of Quebec, East Florida or West Florida, do presume upon any pretence whatever to grant warrants of Survey or pass any Patents for Lands beyond the bounds of their respective Governments as described in their Commissions; as also that no Governor or Commander‑in‑Chief of any of Our other Colonies or Plantations in America do presume for the present, and until Our further pleasure be known, to grant warrants of Survey, or pass Patents for any Lands beyond the head or sources of any of the Rivers which fall into the Atlantic Ocean from the West and North-west, or upon any lands whatever, which not having been ceded to or purchased by Us as aforesaid, and reserved to the said Indians or any of them.
And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve under our Sovereignty, protection and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new Governments, or within the limits of the territory granted to the Hudson’s Bay Company; as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatsoever, or taking possession of any of the lands above reserved, without our especial leave or license for that purpose first obtained.
And we do further strictly enjoin and require all persons whatsoever, who have either wilfully or in- advertently seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to or purchased by us, are still reserved to the said Indians as aforesaid, forth-with to remove themselves from such settlements.
“And whereas great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissatisfaction of the said Indians, in order therefore to prevent such irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our Privy Council, strictly enjoin and require, that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians within those parts of our colonies where we have thought proper to allow settlement; but if at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, in some public meeting or assembly of the said Indians to be held for that purpose by the Governor or Commander‑in-Chief of our colony respectively within which they shall lie; and in case they shall lie within the limits of any proprietaries conformable to such directions and instructions as we or they think proper to give for that purpose. And we do, by the advice of our Privy Council, declare and enjoin, that the trade with the said Indians shall be free and open to all our subjects whatever, provided that every person who may incline to trade with the said Indians do take out a license for carrying on such trade from the Governor or Commander‑in‑Chief of any of our colonies respectively where such person shall reside, and also give security to observe such regulations as we shall at any time think fit, by ourselves or commissaries to be appointed for this purpose, to direct and appoint for the benefit of the said trade; and we do hereby authorize, enjoin and require the Governors and Commanders‑in‑Chief of all our Colonies respectively, as well as those under our immediate government, as those under the government and direction of proprietaries, to grant such licenses without fee or reward, taking especial care to insert therein a condition that such license shall be void, and the security forfeited, in case the person to whom the same is granted shall refuse or neglect to observe such regulations as we shall think proper to prescribe as aforesaid.”
William Penn was not the first to acquire Indian lands by purchase. He came to America in 1682 and made his treaty in 1683. Long before that settlements had been made in New York, first by the Dutch, next by the English, and then by the Swedes in 1674, and during ail that period the right to the land was held to be determined by the earlier acquisition of the Indian title. See Hazard’s Annals of Penn.[6]
Penn made his great treaty with the Indians in 1683. There is no written record of it in existence and no evidence as to its exact nature. But there is no doubt that Penn always recognized the Indians as owners of the soil and purchased lands from them.
To give two instances out of many. Penn in his own person made a purchase from the Indians of a considerable quantity of land lying between the Neshaminy and Pennepact Creek. The deed of sale is dated the 23rd June, 1683, and is of record; as is also another deed dated the 14th July following, for lands lying between the Schuylkill and Chester river. And see Hazard[7].
The following extracts and references will show that the same system was pursued in different States of the Union.
Pennsylvania—Graham’s history of the United States[8]. After relating the various circumstances connected with the celebrated treaty made between William Penn and the Indians in 1682, the author goes on to say:—
“The example of that equitable consideration of the rights of the native owners of the soil, which has been supposed to have originated with him, was first exhibited by the planters of New England, whose deeds of conveyance from the Indians were earlier by half a century than his, and was successively repeated by the planters of Maryland, Carolina, New York and New Jersey, before the province of Pennsylvania had a name,”
And see Hepworth Dixon’s life of William Penn[9]; Memoirs of the Hist. Soc. of Penn.[10]; Broadhead’s Hist. State N.Y.[11]
In Hazard’s An.[12] will be found the documents connected with Penn’s dealings with the Indians.
New England—Neal’s History of New England, London, 1720[13]:—“The planters, notwithstanding the patent which they had for the country from the crown of England, fairly purchased of the natives the several tracts of land which they afterwards possessed. See also Barber’s History of New England[14]. And see Palfrey’s Hist. New England[15].”
Connecticut—Broadhead’s History of the State of New York[16]:—“It was therefore thought expedient that to their existing rights by discovery, and exclusive visitation, should be added the more definite title by pur- chase from the aborigines.” And see Conn. Hist. Collection.
New York—Broadhead’s History of the State of New York[17]:—Speaking of Peter Minuit’s administration of New Netherland as Director General, the work goes on to say, “up to this period (1626) the Dutch had possessed Manhatten Island only by right of first discovery and occupation. It was now determined to superadd a higher title by purchase from the aborigines.” Smith’s Hist. N.Y.[18]
New Jersey—Broadhead[19]; Hepworth Dixon’s Life of Penn[20].
Delaware—Broadhead[21]; Hazard An. Penn.[22]; Martin Hist. North Carolina[23].
New Haven—Story on the Constitution[24].
Rhode Island—Story[25]; Barber Hist. New England[26].
Maryland—Graham Hist. U.S.[27]; McSherry Hist. Maryland[28]; Bozman Hist. Maryland[29].
Virginia—Notes of Virginia, London, 1782[30]; English in America by Judge Haliburton[31].
Carolina—Martin Hist. N.C.[32]; Ramsay Hist. S.C.[33]
Then, coming to the Dominion, we start with the Articles of Capitulation signed at Montreal in 1760, one of which is:
Article 40.—”The savages or Indian Allies of His Most Christian Majesty shall be maintained in the lands they inhabit, if they choose to reside there; they shall not be molested on any pretence whatsoever, for having carried arms and served His Most Christian Majesty; they shall have, as well as the French, liberty of religion, and shall keep their missionaries.”
Next is the Treaty of Paris, 1763, in which Canada was ceded to Great Britain, and in the same year the Royal Proclamation to which reference has already been made was issued.
The Six Nation Indians came to this country shortly after the War of Independence For their loyal conduct the crown granted to them certain lands purchased from the Ojibeways. We have not the precise words of this grant but we have all the conditions attached to it[34]. After providing against alienation by the Indians, except among themselves, it concludes as follows:
“Provided always, that if at anytime the said Chiefs, Warriors, Women and people of the said Six Nations, should be inclined to dispose of and surrender their use and interest in the said district or territory, or any part thereof, the same shall be purchased for us, our heirs and successors, at some public meeting or assembly of the Chiefs, Warriors, and People of the said Six Nations, to be holden for that purpose by the Governor, Lieutenant-Governor or person administering our Government in our Province of Upper Canada.”
In 1796 the Six Nation Indians, then resident in Canada, by treaty with the Government of the United States ceded their lands in New York for valuable consideration. On 1798 the Mohawks and in 1802 the Seneca Nation did the same. In 1838 the Seneca Nation by Indenture conveyed their reserved lands in New York to the Assignees of Massachusetts. The Treaty will be found in the United States Statutes at large[35] Mention may be made in this connection of the Lake Superior and Lake Huron Treaties, in 1850, by which Canada purchased from the Ojibbeways for valuable consideration nearly all their lands.
In the Province of Quebec the French appear to have dealt with the Indians as a conquered people, and while they made them large grants their lands do not seem to have been acquired by purchase. The same principle prevailed in the Maritime Provinces. We are not obliged, however, to account for Ontario occupying a position different, in this respect, from that of the other Provinces. The B.N.A. Act simply dealt with the condition of affairs as it found them at the time it was passed.
In Nova Scotia and New Brunswick all questions with regard to Indians were well defined and nothing was supposed to be disturbed by the act of confederation.
The other Provinces not being concerned in the original formation of the Dominion this question cannot, so far as they are concerned, be discussed on the basis of the British North America Act.
The following statutes may be referred to as dealing with the matters in question here: 2 Vic. ch. 15, (U.C.); 12 Vic. ch. 9 (Can.): 13-14 Vic. ch. 14 (Can.); C.S.C. ch. 9; C.S.L.C. ch. 14; 27‑28 Vic. ch. 68 (Can.) And the following cases are cited as decisions on the statutes. The Queen v. Strong[36]; Regina v. Baby[37]; Totten v. Watson[38]; Vanvleck v. Stewart[39]; and Bown v. West[40]; and as American authorities on the question of the Indian title see Kent’s Com. Title by Discovery[41]; Cherokee Nation v. State of Georgia[42]; Worcester v. State of Georgia[43]; Ogden v. Lee[44]; Godfrey v. Beardsley[45]; and Gaines v. Nicholson[46].
In all the treaties mentioned the word “cede” is used; this is a term usually employed in cases of transfers of land between different States. The Indians are dealt with as quasi-independent nations. The reason for this is pointed out in the case of the Cherokee Nation v. Georgia; see also Turner v. American Baptist Union[47].
It is not contended that item 24, section 91, of the British North America Act vests these lands in the Dominion, any more than that item 5 of section 92 vests them in the Province. What is contended is that section 92 must be read in conjunction with section 108 as to public works, section 109 as to lands, &c., in the Provinces, and section 117 as to mines and minerals, in order to get at the meaning of the act with respect to the question in this case.
By the North-West Angle Treaty, in 1873, the Dominion Government granted to the Indians certain hunting and fishing privileges, which would be inoperative if the contention of Ontario in this case is correct
It is claimed that the land always belonged to the Province, but until this treaty was made they could exercise no control over it. Only the Dominion could deal with it and the Governor‑General alone could make a treaty for its surrender. And the land was in a peculiar position in other respects. No white man could go upon it and deal with the Indians. This was made a criminal offence in 1841, and the Dominion Parliament was the only authority by which that law could be repealed. Can it be supposed then, that this territory passed to the Province under the word “lands” in the British North America Act?
The lands intended to be under the control of the local authorities are lands which are valuable assets. It might be admitted that if the crown had any estate in these lands it would be in the right of the Province under the authority of Mercer v. Attorney-General for Ontario[48]; but there was no estate. The Indians had a right to occupy the land, to cut the timber and to claim the mines and minerals found on the land, and the land descended to their children; the only restriction upon their title was as to alienation; that might be called a limited or base fee. And was there any thing more vested in the crown than a mere right to the land when the Indian title was extinguished?
As to escheat see Stephens Black.[49]; Burgess v. Wheate[50]; 2 Greenleaf’s Cruise Digest[51]; Mercer v. Attorney General for Ontario[52].
W. Cassels Q.C. and Mills for the respondents.
In considering the argument of the appellants it must be clearly kept in mind that the authorities in the United States relied upon by the appellants are authorities dealing with the rights of the Indians in regard to lands specially reserved to them by treaties ratified and sanctioned by the United States. These authorities deal with the rights of the Indians as vested in them under and by virtue of these treaties.
The various treaties will be found in vol. 7 United States Statutes at Large. I more particularly refer to page 44.
The learned counsel for the appellants lay stress upon the negotiations by the Six Nation Indians with the United States after they came to Canada. These negotiations related to lands set apart to those Indians on the 11th November, 1794. See Ogden v. Lee[53]. The treaty in question is there set out, and so in regard to the other cases relied upon by the appellants.
There are four cases decided by the Supreme Court of the United States which have a direct bearing upon the question in controversy. Nearly all, if not all other cases, are determined upon the particular terms of the various treaties These four cases decided by the Supreme Court are very applicable to the case in question, and are directly opposed to the contention of the appellant.
The first case, Fletcher v. Peck[54], is strongly in point. In that case prior to any surrender by the Indians the State had granted a patent. A surrender was obtained from the Indians in favor of the United States. It was contended that at the time of the patent the title was in the Indians, and that no title passed by the patent granted by the State. The court, however, held that the title to the soil was in the State, the right existing in the Indians being one merely of occupancy—that the surrender merely operated as an extinguishment and for the benefit of the legal estate. This case was decided in 1810.
In 1815 the case of Meigs v. McClung[55] was decided. The facts in this case were a grant by the State prior to surrender and a subsequent grant from the United States, claiming title by virtue of a surrender from the Indians. The court held that the right in the Indians was merely one of occupancy, and that the surrender merely operated as an extinguishment of this right enuring to the benefit of the fee.
Johnson v. McIntosh[56] is a leading case in the United States. In this case all the various treaties and statutes are referred to and the question exhaustively dealt with. [The learned counsel read extracts from this case showing that the Indian title, so-called, was merely one of occupancy.
In Clarke v. Smith[57], the same views are affirmed.
[The learned counsel then referred to the various cases cited by the appellant’s counsel pointing out and contending that each case was decided upon the particular treaty and could have no application to the case in question]
The cases in our own courts are also against the contention of the appellants. In Doe d Jackson v. Wilkes[58] it was held that a patent by the crown of an Indian reserve passed to the plaintiff.
In Bown v. West[59] and Doe d Sheldon v. Ramsay[60] the court held that the Indians had no title.
Reg. v. Baby[61] has been cited in support of the appellants’ argument. That case when looked at will be found to be very different from what is contended for. So in Totten v. Watson[62].
Vanvleck v. Stewart[63] had reference to a special reservation set apart for the benefit of the Indians. In this case it was held that the Indians had a beneficial right in the lands reserved, and a right to the timber cut from these lands.
Church v. Fenton[64] related to the lands specially reserved for the benefit of the Indians. In November, 1786, a surrender had been obtained and by the terms of the surrender a special reserve was set apart for the benefit of the Indians. By this treaty it was stipulated that in the event of the Indians subsequently desiring to surrender the reserved lands so specially set apart the crown would sell them for the benefit of the Indians. The special reserve was surrendered in 1854, and the contest in Church v. Fenton arose in regard to these particular lands.
There are no other authorities bearing on the point.
Reference to the mode of dealing with the Indians in the United States does not warrant the contention of the appellants. For instance, in 1635 one Roger Williams was banished from Massachusetts for maintaining that the title to Indian lands was not in the King but in the natives. In 1632 the Dutch complained that their lands in New York, which they held by purchase from the Indians, had been taken from them. Counsel’s opinion was that the Indians could pass no title to the lands.
The learned counsel for the appellants refers to the Articles of Capitulation and to the Proclamation of 1763. It is said that this proclamation is the charter of the Indians.
Assuming this charter to be the foundation of their title what then becomes of their original title to the lands? If the Indian title is based upon a right acquired from the crown by virtue of this proclamation, then it must be the starting point of their title, and they can have no higher rights than those given to them by the proclamation in question.
The proclamation assumes the title to be in the crown and not in the Indians. By this proclamation the crown gives power to the Governors to grant lands east of a certain line. If the Indian title existed, how could they exercise this right? What becomes of the titles granted east of the line in question? The crown reserves for the present the lands west of the line. If the Indians accept title under this proclamation, then they accept a reservation during the pleasure of the crown. Subsequently by the statute, passed in 1774, the boundaries of the Province of Quebec are extended so as to embrace the lands in controversy, and the pro- clamation is annulled by the very terms of the act. If, therefore, this proclamation is the foundation of the Indian title, they accept it merely as an act of bounty from the crown, with the right to the crown to alter or annul it.
The effect of this proclamation is fully referred to in the case of Fletcher v. Peck[65] hereinbefore referred to, and in that particular case it was held that the extension of the territory forming the State of Georgia withdrew it from the operation of the proclamation of 1763.
If the Supreme Court of the United States is correct in holding that the effect of extending the jurisdiction of the Governor of Georgia to grant patents for lands reserved by the proclamation of 1763 was an annulling of that proclamation, so far as the extended area is concerned, surely an express statute has a similar effect. It is, therefore, submitted that the contention of the appellants is erroneous.
There is no instance on record where the courts have recognized the Indian title, or gone behind a grant from the crown to inquire whether or not an Indian title was well founded.
We next come to the effect of the confederation act. The learned counsel for the appellants have striven to argue that under the statute the lands in question are vested in the Dominion.
In order to arrive at the true meaning of the British North America Act the constitution of each of the provinces at the time of confederation must be considered. In the Province of Quebec no surrenders have ever been obtained from the Indians. If the contention of the appellants is correct, then the grants for nearly the whole of that province are of no effect. Such contention, however, has never been put forward.
Section 91 item 24 of the British North America Act clearly refers to lands which have been specially reserved. Take the case of surrender of lands in Upper and Lower Canada prior to confederation. At the time of confederation would not the title to these lands be vested in the old provinces of Upper and Lower Canada? What becomes of these lands after confederation? Surely under the British North America Act they would be vested in the provinces of Ontario and Quebec respectively.
Section 108 of the B.N.A. Act refers to the 3rd schedule; that schedule says nothing about the Indian reserves.
[The learned counsel here referred to the various statutes of the different Provinces prior to confederation, contending that the confederation act plainly referred to reserves specially set apart under the various statutes]
Then, since confederation the Dominion Parliament has clearly recognized such to be the case. For instance, in the statute of 1868, again in the statute of 1869, and so in the statute relating to British Columbia.
[Here counsel refer to various statutes since confederation relating to the admittance of British Columbia into the Union, and the various statutes of the Dominion relating to Indians]
It is submitted that the extent of the Indian title is a mere right of occupancy, a mere right of hunting, &c., which can only be dealt with for the purpose of extinction. The utmost that can be contended is, that the fee is vested in the Province subject to the right of occupancy in the Indians.
[Counsel read extracts from the judgments of the Chancellor and the judges in the Court of Appeal in support of their contention]
There are lands in Ontario which have never been surrendered and which are dealt with by the Crown Lands Department.
A further point relied upon by the respondents is, that the contention now put forward by the appellants could not be put forward on the part of the Dominion without operating as a fraud on the rights of the Province of Ontario.
In the year 1871 the Dominion approached the Province of Ontario with the view to arranging for a provisional boundary pending the assignment of the true boundary. Negotiations between the Dominion and the Province of Ontario lay in abeyance until the Dominion obtained a surrender of the Indian title. Subsequently the Dominion renewed negotiations, pointing out that by virtue of this surrender the Indian title had become extinguished. An agreement was then entered into whereby the Dominion were to have a full right to grant patents to the lands west of the Provincial boundary, and the Province to have the right to grant patents to the lands east of this boundary, and by the agreement the Dominion and the Province respectively agreed to ratify each others acts and to confirm the patents in the event of the true boundary being determined to be east or west of the provisional line.
Proceedings were taken to have the true boundary ascertained and after eight years the contention was determined in favor of the Province.
Notwithstanding this agreement, and the fact that for eight years the Province and the Dominion have been endeavouring to have the boundary settled, it is contended by the present appellants that all the time no matter what the courts might hold in regard to the true boundary, the lands were vested in the Dominion.
It is said that by the treaty in question of 1873 the Dominion obtained a title to the lands in dispute. The Dominion, however, treated this as operating as an extinguishment of the Indian title for the benefit of the Province in the event of its appearing the boundary of the Province was west of the lands in question, and it is submitted the Dominion could not now successfully contend that this surrender had other or further effect after the agreement entered into by the Province of Ontario.
Another point to be considered is, supposing the Indians had said to Governor Morris “We will not make a treaty with you,” if the appellants’ contentions are correct for all time to come these vast territories would have been withdrawn from settlement.
To maintain their position the appellants must assume that the Indians have a regular form of government, whereas nothing is more clear than that they have no government and no organization, and cannot be regarded as a nation capable of holding lands[66].
Washburn on Real Property[67], and Story on The Constitution[68] were also referred to.
It is also contended that the crown had never recognized the aboriginal inhabitants of a country who were without any settled government as the proprietors of the soil. This was not only the rule uniformly acted upon by the Sovereigns of England, but it was a part of the common law of Europe. Answers of James I. and his Lords of Trade to the States’ General[69]; Chalmer’s Annals of the Colonies[70]; Vattel’s Law of Nations[71]; see also various charters of Government and grants of land made by the Sovereign of England from 1585 to 1758 without reference to Indian occupation.
At the time of the discovery of America, and long after, it was an accepted rule that heathen and infidel nations were perpetual enemies, and that the Christian prince or people first discovering and taking possession of the country became its absolute proprietor, and could deal with the lands as such.
Calvin’s Case[72]; Butts v. Penny[73]; Gelly v. Cleve cited in Chamberlain v. Harvey[74]; East India Co. v. Sandy’s[75]; The Slave Grace[76].
It is a rule of the common law that property is the creature of the law and only continues to exist while the law that creates and regulates it subsists. The Indians had no rules or regulations which could be considered laws.
St. John’s argument on this subject and the authorities cited in The King v. John Hampden[77].
Parkman’s War of Pontiac vol. 1; Paley’s Moral Philosophy[78]; Bentham’s Theory of Legislation[79]; Locke on Government[80].
No title beyond that of occupancy was ever recognized by the crown as being in the Indians, and this recognition was based upon public policy and not upon any legal right in the aboriginal inhabitants.
Opinion of John Holt and others. N.Y. Hist. Doe.[81]; N.Y. Hist. Doc.[82]; New Haven Col Records 1639[83]; Connecticut Col. Rec. 1680[84]; Ibid 1717[85]; Ibid 1722[86]; Douglas’ Hist. Summary[87]; Arnold v. Mundy[88].
The King had no power to prevent the sale of lands by any proprietor. The reservation by the proclamation of 1763, for the present, of the lands west of a certain line, rests upon the King’s ownership of the lands. It was an act arising out of his proprietary rights. And in no case did he undertake to deal with the Indians when he had parted with the fee. Penn dealt with the Indians of Pennsylvania, and so did the proprietors and corporators in other proprietary and charter governments.
Entick’s Hist. of Late War[89].
Young’s Chronicles of New England[90]; Proud’s History of Pennsylvania; Murdock’s History of Nova Scotia.
McCarthy Q.C. in reply.
The decision of the Privy Council in the boundary case has never been adopted by act of Parliament and has not the force of law. It is claimed that it estops us from claiming this land, but even if it is binding it only decided that the land was, territorially, a part of Ontario. The question of title was not raised in that case.
The question to be decided in this case is: Had the Indians any title, and if they had was it of so limited a character that the crown had an estate in the land consistent therewith.
[The learned counsel took up the American cases referred to by the counsel for the respondent, showing how in his opinion they failed to support the argument founded on them]
The case of Mitchell v. The United Stales[91] brings up the questions involved in this appeal more nearly than any I have found. In that case it was said that purchases from the Indians have universally been held good. Before Mitchell died the Indians had ceded to the crown of Great Britain, and the land was afterwards transferred to the crown of Spain, and finally to the United States. The court said if these facts were true the prior title must prevail.
It cannot be said that the Quebec Act of 1784 annulled the proclamation of 1763. The object of that act was to do away with the British, and restore the French, law, but it did not attempt to change the mode of dealing with the Indians.
The following cases may be referred to as dealing with this proclamation. Campbell v. Hall[92] referred to in Mitchell v. The United States; Sims v. Irvine[93]; Johnson v. Mcintosh[94]; and Worcester v. State of Georgia[95].
Now, the question remains whether, the Indians having had the enjoyment of the lands without a right of interference in any body, there was any right or title in the crown. If so, what is the estate of the crown? Does it depend on the Indians becoming extinct? It is laid down by the Privy Council that an escheat is not an estate, and if not, how could it pass under the British North America Act?
If this property is under the control of the Dominion they alone can deal with it. But what duty rests on the Dominion to buy the land for the benefit of Ontario?
Sir W.J. RITCHIE C.J.—I am of opinion, that all ungranted lands in the province of Ontario belong to the crown as part of the public domain, subject to the Indian right of occupancy in cases in which the same has not been lawfully extinguished, and when such right of occupancy has been lawfully extinguished absolutely to the crown, and as a consequence to the province of Ontario. I think the crown owns the soil of all the unpatented lands, the Indians possessing only the right of occupancy, and the crown possessing the legal title subject to that occupancy, with the absolute exclusive right to extinguish the Indian title either by conquest or by purchase; that, as was said by Mr. Justice Story[96].
It is to be deemed a right exclusively belonging to the Government in its sovereign capacity to extinguish the Indian title and to perfect its own dominion over the soil and dispose of it according to its own good pleasure. * * The crown has the right to grant the soil while yet in possession of the Indians, subject, however, to their right of occupancy.
That the title to lands where the Indian title has not been extinguished is in the crown, would seem to be clearly indicated by Dominion legislation since confederation. See 31 Vic. ch. 42; 33 Vic. ch. 3; 43 Vic. ch. 36.
I agree that the whole course of legislation in all the provinces before, and in the Dominion since, confederation attaches a well understood and distinct meaning to the words “Indian reserves or lands reserved for the Indians,” and which cover only lands specifically appropriated or reserved in the Indian territories, or out of the public lands, and I entirely agree with the learned Chancellor that the words “lands reserved for Indians,” were used in the B.N. A. Act in the same sense with reference to lands specifically set apart and reserved for the exclusive use of the Indians. In no sense that I can understand can it be said that lands in which the Indian title has been wholly extinguished are lands reserved for the Indians.
The boundary of the territory in the north west angle being established, and the lands in question found to be within the Province of Ontario, they are necessarily, territorially, a part of Ontario, and the ungranted portion of such lands not specifically reserved for the Indians, though unsurrendered and therefore subject to the Indian title, forms part of the public domain of Ontario, and they are consequently public lands belonging to Ontario, and as such pass under the British North America Act to Ontario, under and by virtue of sub-sec. 5 of sec. 92 and sec. 109 as to lands, mines, minerals and royalties, and sec. 117, by which the Provinces are to retain all their property not otherwise disposed of by that act, subject to the right of the Dominion to assume any lands or public property for fortifications, etc., and therefore, under the British North America Act, the Province of Ontario has a clear title to all unpatented lands within its boundaries as part of the Provincial public property, subject only to the Indian right of occupancy, and absolute when the Indian right of occupancy is extinguished.
I am therefore of opinion, that when the Dominion Government, in 1873 extinguished the Indian claim or title, its effect was, so far as the question now before us is concerned, simply to relieve the legal ownership of the land belonging to the Province from the burden, incumbrance, or however it may be designated, of the Indian title It therefore follows that the claim of the Dominion to authorize the cutting of timber on these lands cannot be supported, and the Province has a right to interfere and prevent their spoliation.
This case has been so fully and ably dealt with by the learned Chancellor, and I so entirely agree with the conclusions at which he has arrived, that 1 feel I can add nothing to what has been said by him. Many questions have been suggested during the argument of this case, and in some of the judgments of the court below, but I have, purposely, carefully avoided discussing, or expressing any opinion, on questions not immediately necessary for the decision of this case, leaving all such matters to be disposed of when they legitimately arise and become necessary for the determination of a pending controversy. STRONG J.—By the report of the Judicial Committee of the Privy Council of the 23rd July, 1884, made upon a reference to it of the question of disputed boundaries between the Provinces of Ontario and Manitoba, and which report was adopted by Her Majesty and embodied in the Order in Council of the 11th August, 1884, the territory in which the lands now in question are included was determined to be comprised within the limits of the Province of Ontario. This decision of the Judicial Committee, whilst defining the political boundaries according to the contention of the last named province, does not, however, in any way bear upon the question here in controversy between the Dominion of Canada and the Province of Ontario regarding the proprietorship of the lands now in dispute. The decision of the present appeal depends altogether upon the construction to be placed upon certain provisions of the British North America Act. By the 24th enumeration of section 91 of that act the power of legislation in respect of “Indians and lands reserved for the Indians” is conferred exclusively upon the parliament of Canada By section 109 of the same act,
All lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick at the union, and all sums then due or payable for such lands, mines, minerals and royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick 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.
By sec. 92, enumeration 5, exclusive power of legislation is given to the provinces regarding
the management and sale of the public lands belonging to the province, and of the timber and wood thereon.
The contention of the appellants is, that the lands now in question, and which are embraced in the territory formerly in dispute between the Provinces of Ontario and Manitoba, and which have been decided by the Judicial Committee to be within the boundaries of Ontario, were, at the time of confederation, lands which had not been surrendered by the Indians, and consequently come within the definition of “lands reserved for the Indians” contained in sub section 21 of section 91, and are therefore not public lands vested in the province by the operation of section 109. The province, on the other hand, insists that these are not “lands reserved for the Indians” within sub-section 24, and claims title to them under the provision of section 109 as public lands which at the date of confederation “belonged” to the Province of Ontario.
It is obvious that these lands cannot be both public lands coming within the operation of section 109 and “lands reserved for the Indians,” and so subject to the exclusive legislative power of the parliament of Canada by force of the 24 sub-section of section 91. The “public lands” mentioned in section 109 are manifestly those respecting which the province has the right of exclusive legislation by section 92 sub-section. Then, these public lands referred to in sub-section and which include all the lands “belonging” to the province, are clearly distinct from “lands reserved for the Indians,” since lands so reserved are by section 91 sub‑section 24 made exclusively subject to the legislative power of the Dominion. To hold that lands might be both public lands within section 109 and sub-section 5 of section 92, and “lands reserved for the Indians,” within sub-section 24 of section 91, would be to determine that the same lands were subject to the exclusive powers of two separate and distinct legislatures, which would be absurd[97]. This consideration alone is sufficient to dispose of any argument derived from the latter clause of section 109, saving trusts existing in respect of public lands within its operation. Moreover, the trusts thus preserved are manifestly of a different order from anything connected with lands reserved for Indians, for instance, those trusts subsisting in favour of persons who had contracted for the purchase of Crown Lands, but whose titles had not been perfected by grants. The word “trusts” would not be an appropriate expression to apply to the relation between the crown and the Indians respecting the unceded lands of the latter. As will appear hereafter very clearly, such relationship is not in any sense that of trustee and cestui que trust, but rather one analogous to the feudal relationship of lord and tenant, or, in some aspects, to that one, so familiar in the Roman law, where the right of property is dismembered and divided between the proprietor and a usufructuary.
It will be convenient here to notice a point to which some importance has been attached in the courts below. It is said, that the British North America Act contains no clause vesting in the Dominion the ultimate property in lands reserved for the Indians over which an exclusive power of legislation is by section 91 conferred on the Dominion Parliament, and that consequently, even though the lands now in question should be held to come within the 24th enumeration of the last mentioned section, yet as they are not vested in the crown in right of the Dominion nothing passed by the lease or license under which the appellants claim title. The answer to this objection is, first, that as this is an information on behalf of the Province complaining of an intrusion upon Provincial lands, the question to be decided in the first instance is that as to the title of the Province. To support the information the respondent must establish that these lands were vested in the Province by the British North America Act, failing which the information must be dismissed, whether the lease or license granted by the Dominion to the appellants conferred a legal title or not. If, therefore, the respondent fails in making out the title of the Province, it is not essential that the appellants should be able to show that under some particular clause of the British North America Act, the lands of which I the locus in quo forms part were vested in the Dominion. I am of opinion, however, that the ultimate crown title in the lands described in sub-section 24 of section 91, whatever may be the true meaning of the terms employed (an inquiry yet to be entered upon), became, subject to the Indian title in the same, vested in the crown in right of the Dominion. The title and interest of the crown in the lands specified in sub-section 24 at the date of confederation belonged to it in the rights of the respective Provinces in which the lands were situated; for the reasons already given these lands were not vested in the new Provinces created by the confederation act; they must therefore have remained in the crown in some other right, which other right could only have been, and plainly was, that of the Dominion. For, having regard to the scheme by which the British North America Act carried out confederation, by first consolidating the four original Provinces into one body politic—the Dominion—and then re-distributing this Dominion into Provinces and appropriating certain specified property to these several Provinces, it follows that the residue of the property belonging to the crown in right of the Provinces before confederation not specifically appropriated by the appropriation clauses of the act, sections 109 and 117, to the newly created Provinces, must of necessity have remained in the crown, and it is reasonable to presume for the use and purposes of the Dominion. Next, inasmuch as all revenues, casual or otherwise, arising from the title and interest of the crown in “lands reserved for the Indians” (whatever may upon subsequent consideration appear to be the proper meaning of that expression) are by the effect of section 1.02 allotted to the Dominion, this assignment of revenue to the Dominion, according to a well understood rule of construction, implies a vesting of the land and property from which the revenue is to arise. This last mentioned construction, which is analogous to that so familiar in construing wills by which a gift of rents and profits is held to be equivalent to a gift of the land itself, was referred to with approbation in Attorney General v. Mercer[98], though its application was excluded in that case for the reason that the right of escheat there was held to be expressly vested in the Provinces under section 109, which cannot be the case as regards “lands reserved for the Indians,” over which an exclusive power of legislation is conferred on the Dominion, whatever may appear as the result of further, consideration to be the proper meaning attributable to that expression.
The questions to be determined are therefore now restricted entirely to the construction to be placed on the words, “lands reserved for the Indians,” in sub-section 24 of section 91, and we are to bear in mind that whatever are the lands subjected by this description to the exclusive legislative power of the Dominion they cannot be lands belonging to the Province, since all these last mentioned lands are expressly subjected to the exclusive legislative powers of the Provinces. In construing this enactment we are not only entitled but bound to apply that well established rule which requires us, in placing a meaning upon descriptive terms and definitions contained in statutes, to have recourse to external aids derived from the surrounding circumstances and the history of the subject-matter dealt with, and to construe the enactment by the light derived from such sources, and so to put ourselves as far as possible in the position of the legislature whose language we have to expound. If this rule were rejected and the language of the statute were considered without such assistance from extrinsic facts, it is manifest that the task of interpretation would 3 degenerate into mere speculation and guess work.
It is argued here for the appellants, that these words “lands reserved for the Indians” are to have attributed to them a meaning sufficiently comprehensive to include all lands in which the Indian title, always recognized by the crown of Great Britain, has not been extinguished or surrendered according to the well understood and established practice invariably observed by the Government from a comparatively remote period. The respondent, on the contrary, seeks to place a much narrower construction on these words and asks us to confine them to lands, first, which having been absolutely acquired by the crown had been re-appropriated for the use and residence of Indian tribes, and secondly, to lands which, on a surrender by Indian nations or tribes of their territories to the crown, had been excepted or reserved and retained by the Indians for their own residence and use as hunting grounds or otherwise. In order to ascertain whether it was the intention of Parliament by the use of these words “lands reserved for the Indians” to describe comprehensively all lands in which the Indians retained any interest, and so to include unsurrendered lands generally, or whether it was intended to use the term in its restricted sense, as the respondent contends, as indicating only lands which had been expressly granted and appropriated by the crown to the use of Indians, or excepted or reserved by them for their own use out of some large tract surrendered by them to the crown, we must refer to historical accounts of the policy already adverted to as having been always followed by the crown in dealings with the Indians in respect of their lands.
In the Commentaries of Chancellor Kent and in some decisions of the Supreme Court of the United States we have very full and clear accounts of the policy in question. It may be summarily stated as consisting in the recognition by the crown of a usufructuary title in the Indians to all unsurrendered lands. This title, though not perhaps susceptible of any accurate legal definition in exact legal terms, was one which nevertheless sufficed to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the crown itself, in whom the ultimate title was, in accordance with the English law of real property, considered as vested. This short statement will, I think, on comparison with the authorities to which I will presently refer, be found to be an accurate description of the principles upon which the crown invariably acted with reference to Indian lands, at least from the year 1756, when Sir William Johnston was appointed by the Imperial Government superintendent of Indian affairs in North America, being as such responsible directly to the crown through one of the Secretaries of State, or the Lords of Trade and Plantation, and thus superseding the Provincial Governments, down to the year 1867, when the confederation act constituting the Dominion of Canada was passed. So faithfully was this system carried out, that I venture to say that there is no settled part of the territory of the Province of Ontario, except perhaps some isolated spots upon which the French Government had, previous to the conquest, erected forts, such as Fort Frontenac and Fort Toronto, which is not included in and covered by a surrender contained in some Indian treaty still to be found in the Dominion Archives. These rules of policy being shown to have been well established and acted upon, and the title of the Indians to their unsurrendered lands to have been recognized by the crown to the extent already mentioned, it may seem of little: importance to enquire into the reasons on which it was based. But as these reasons are not without some bearing on the present question, as I shall hereafter shew, I will shortly refer to what appears to have led to the adoption of the system of dealing with the territorial rights of the Indians. To ascribe it to moral grounds, to motives of humane consideration for the aborigines, would be to attribute it to feelings which perhaps had little weight in the age in which it took its rise. Its true origin was, I take it, experience of the great impolicy of the opposite mode of dealing with the Indians which had been practised by some of the Provincial Governments of the older colonies and which had led to frequent frontier wars, involving great sacrifices of life and property and requiring an expenditure of money which had proved most burdensome to the colonies. That the more liberal treatment accorded to the Indians by this system of protecting them in the enjoyment of their hunting grounds and prohibiting settlement on lands which they had not surrendered, which it is now contended the British North America Act has put an end to, was successful in its results, is attested by the historical fact that from the memorable year 1763, when Detroit was besieged and all the Indian tribes were in revolt, down to the date of confederation, Indian wars and massacres entirely ceased in the British possessions in North America, although powerful Indian nations still continued for some time after the former date to inhabit those territories. That this peaceful conduct of the Indians is in a great degree to be attributed to the recognition of their rights to lands unsurrendered by them, and to the guarantee of their protection in the possession and enjoyment of such lands given by the crown in the proclamation of October, 1763, hereafter to be more fully noticed, is a well known fact of Canadian history which cannot be controverted. The Indian nations from that time became and have since continued to be the firm and faithful allies of the crown and rendered it important military services in two wars—the war of the Revolution and that of 1812.
The American authorities, to which reference has already been made, consist (amongst others) of passages in the commentaries of Chancellor Kent[99], in which the whole doctrine of Indian titles is fully and elaborately considered, and of several decisions of the Supreme Court of the United States, from which three, Johnston v. Mcintosh[100], Worcester v. State of Georgia[101], and Mitchell v. United States[102], may be selected as leading cases. The value and importance of these authorities is not merely that they show that the same doctrine as that already propounded regarding the title of the Indians to unsurrendered lands prevails in the United States, but, what is of vastly greater importance, they without exception refer its origin to a date anterior to the revolution and recognise it as a continuance of the principles of law or policy as to Indian titles then established by the British government, and therefore identical with those which have also continued to be recognized and applied in British North America. Chancellor Kent, referring to the decision of the Supreme Court of the United States, in Cherokee Nation v. State of Georgia[103], says:—
The court there held that the Indians were domestic, dependent nations, and their relations to us resembled that of a ward to his guardian; and they had an unquestionable right to the lands they occupied until that right should be extinguished by a voluntary cession to our government[104].
On the same page the learned commentator proceeds thus:—
The Supreme Court in the case of Worcester reviewed the whole ground of controversy relative to the character and validity of Indian rights within the territorial dominions of the United States, and especially with reference to the Cherokee nation within the limits of Georgia. They declared that the right given by European discovery was the exclusive right to purchase, but this right was not founded on a denial of the Indian possessor to sell. Though the right of the soil was claimed to be in the European governments as a necessary consequence of the right of discovery and assumption of territorial jurisdiction, yet that right was only deemed such in reference to the whites; and in respect to the Indians it was always understood to amount only to the exclusive right of purchasing such lands as the natives were willing to sell. The royal grants and charters asserted a title to the country against Europeans only, and they were considered as blank paper so far as the rights of the natives were concerned. The English, the French and the Spaniards were equal competitors for the friendship and aid of the Indian nations. The Crown of England never attempted to interfere with the national affairs of the Indians further than to keep out the agents of foreign powers who might seduce them into foreign alliances. The English Government purchased the alliance and dependence of the Indian Nations by subsidies, and purchased their lands when they were willing to sell at a price they were willing to take, but they never coerced a surrender of them. The English Government considered them as nations competent to maintain the relations of peace and war and of governing themselves under her protection. The United States, who succeeded to the rights of the British Crown in respect of the Indians, did the same and no more; and the protection stipulated to be afforded to the Indians and claimed by them was understood by all parties as only binding the Indians to the United States as dependent allies.
Again the same learned writer says[105];
The original Indian Nations were regarded and dealt with as proprietors of the soil which they claimed and occupied, but without the power of alienation, except to the Governments which protected them and had thrown over them and beyond them their assumed patented domains. These Governments asserted and enforced the exclusive right to extinguish Indian titles to lands, enclosed within the exterior lines of their jurisdictions, by fair purchase, under the sanction of treaties; and they held all individual purchases from the Indians, whether made with them individually or collectively as tribes, to be absolutely null and void. The only power that could lawfully acquire the Indian title was the State, and a government grant was the only lawful source of title admitted in the Courts of Justice. The Colonial and State Governments and the government of the United States uniformly dealt upon these principles with the Indian Nations dwelling within their territorial limits.
Further, Chancellor Kent, in summarising the decision of the Supreme Court in Mitchell v. United States, states the whole doctrine in a form still more applicable to the present case. He says[106]:
The Supreme Court once more declared the same general doctrine, that lands in possession of friendly Indians were always, under the colonial governments, considered as being owned by the tribe or nation as their common property by a perpetual right of possession; but that the ultimate fee was in the crown or its grantees, subject to this right of possession, and could be granted by the crown upon that condition; that individuals could not purchase Indian lands without license, or under rules prescribed by law; that possession was considered with reference to Indian habits and modes of life, and the hunting grounds of the tribes were as much in their actual occupation as the cleared fields of the whites, and this was the tenure of Indian lands by the laws of all the colonies.
It thus appears, that in the United States a traditional policy, derived from colonial times, relative to the Indians and their lands has ripened into well established rules of law, and that the result is that the lands in the possession of the Indians are, until surrendered, treated as their rightful though inalienable property, so far as the possession and enjoyment are concerned; in other words, that the dominium utile is recognized as belonging to or reserved for the Indians, though the dominium directum is considered to be in the United States. Then, if this is so as regards Indian lands in the United States, which have been preserved to the Indians by the constant observance of a particular rule of policy acknowledged by the United States courts to have been originally enforced by the crown of Great Britain, how is it possible to suppose that the law can, or rather could have been, at the date of confederation, in a state any less favorable to the Indians whose lands were situated within the dominion of the British crown, the original author of this beneficent doctrine so carefully adhered to in the United States from the days of the colonial governments? Therefore, when we consider that with reference to Canada the uniform practice has always been to recognize the Indian title as one which could only be dealt with by surrender to the crown, I maintain that if there had been an entire absence of any written legislative act ordaining this rule as an express positive law, we ought, just as the United States courts have done, to hold that it nevertheless existed as a rule of the unwritten common law, which the courts were bound to enforce as such, and consequently, that the 24th sub-section of section 91, as well as the 109th section and the 5th sub-section of section. 92 of the British North America Act, must all be read and construed upon the assumption that these territorial rights of the Indians were strictly legal rights which had to be taken into account and dealt with in that distribution of property and proprietary rights made upon confederation between the federal and provincial governments.
The voluminous documentary evidence printed in the case contains numerous instances of official recognition of, the doctrine of Indian title to unceded lands as applied to Canada. Without referring at length to this evidence I may just call attention to one document which, as it contains an expression of opinion with reference to the title to the same lands part of which are now in dispute in this cause by a high judicial authority, a former Chief Justice of Upper Canada, is of peculiar value. In the appendix to the case for Ontario laid before the Judicial Committee in the Boundary Case[107] we find a letter dated 1st of May 1819 from Chief Justice Powell to the Lieutenant Governor, Sir Peregrine Maitland, upon the subject of the conflict then going on between the North West and Hudson’s Bay Companies, and of which the territory now in question was the scene. The Chief Justice, writing upon the jurisdiction of the Upper Canada Courts in this territory and of an act of Parliament relating thereto, says:
The territory which it affects is in the crown and part of a district, but the soil is in the aborigines and inhabited only by Indians and their lawless followers.
There cannot be a more distinct statement of the rights claimed by the appellants to have existed in the Indians than this, and if the soil, i.e. the title to the soil, was in the Indians in 1819 it must have so remained down to the date of the North West Angle Treaty No. 3 made in 1873.
Then it is to be borne in mind that the control of the Indians and of the lands occupied by the Indians had, until a comparatively recent period, been retained in the hands of the Imperial Government; for some fifteen years after local self government had been accorded to the Province of Canada the management of Indian affairs remained in the hands of an Imperial officer, subject only to the personal direction of the Governor General, and entirely independent of the local government, and it was only about the year 1855, during the administration of Sir Edmund Head and after the new system of Government had been successfully established, that the direction of Indian affairs was handed over to the Executive authorities of the late Province of Canada, Further, it is to be observed, that by the terms of the 24th sub-section the power to legislate concerning Indians, as distinct from lands reserved, is expressly assigned to the Dominion Government, and this legislative power appears, by the tacit acquiescence of all the new Governments called into existence by confederation, to include the burden of providing for the necessities of the Indians, which has since been borne exclusively by the Government of the Dominion. At all events, the exclusive right of legislating respecting Indian affairs is thus attributed by this clause to the Parliament of Canada. This must include the right to control the exercise by the Indians of the power of making treaties of surrender, and since, I as already shown, it is only by means of formal treaties that the Indian title can be properly surrendered or extinguished, Parliament must necessarily have the power, as incident to the general management of the Indians, of so legislating as to restrain or regulate the making of treaties of surrender which might be deemed improvident dispositions of Indian lands. If this were not so, and Parliament did not possess this power of absolute control over the Indians in respect of their dealings with their lands, the provisions of the 24th sub section would be most incongruous and unreasonable, for in that case, whilst on the one hand Parliament would have to provide for the necessities of the Indians, on the other hand it would not have the means of restraining these wards of the Dominion Government from wasting the means of self support which their hunting grounds afforded. Then, taking into consideration this wide power of legislation respecting the Indian tribes, and seeing that it must necessarily include a power of control over all Indian treaties dealing with proprietary rights, it is surely a legitimate application of the maxim noscitur a sociis to construe the words “Lands reserved for the Indians” as embracing all territorial rights of Indians, as well those in lands actually appropriated for reserves as those in lands which had never been the subject of surrender at all.
To summarize these arguments, which appear to me to possess great force, we find, that at the date of confederation the Indians, by the constant usage and practice of the crown, were considered to possess a certain proprietary interest in the unsurrendered lands which they occupied as hunting grounds; that this usage had either ripened into a rule of the common law as applicable to the American Colonies, or that such a rule had been derived from the law of nations and had in this way been imported into the Colonial law as applied to Indian Nations; that such property of the Indians was usufructuary only and could not be alienated, except by surrender to the crown as the ultimate owner of the soil; and that these rights of property were not inaptly described by the words “lands reserved for the Indians,” whilst they could not, without doing violence to the meaning of language, be comprised in the description of public lands which the Provinces could sell and dispose of at their will. Further, we find from the conjunction of the word “Indians” with the expression “lands reserved for the Indians” in the 24 sub-section of section 91 of the British North America Act, that a construction which would place unsurrendered lands in the category of “public lands” appropriated to the Provinces would be one which would bring different provisions of the act into direct conflict, since such lands would be subject to the disposition of the local legislature under sub-sec. 5, and at the same time it would be within the powers of the Dominion Parliament, in the exercise of its general right of legislation regarding the Indians, to restrain surrenders or extinguishments of the Indian title to such lands, and thus to render nugatory the only means open to the Provinces of making the lands available for sale and settlement. Then, there being but two alternative modes of avoiding this conflict, one by treating the British North America Act as by implication abolishing all right and property of the Indians in unsurrendered lands, thus at one stroke doing away with the traditional policy above noticed, and treating such lands as ordinary crown lands in which the Indian title has been extinguished, the other by holding that such unsurrendered lands are to be considered as embraced in the description of “lands reserved for the Indians,” it appears to me that the first alternative, which would attribute to the Imperial Parliament the intention of taking away proprietary rights, without express words and without any adequate reason, and of doing away at a most inopportune time with the long cherished and most successful policy originally inaugurated by the British Government for the treatment of the Indian tribes, is totally inadmissible and must be rejected. The inevitable conclusion is, that the mode of interpretation secondly presented is the correct one, and that all lands in possession of Indian tribes not surrendered at the date of confederation are to be deemed “lands reserved for the Indians,” the ultimate title to which must be in the crown, not as representing the Province, but in right of the Dominion, the Indians having the right of enjoyment and an inalienable possessory title, until such title is extinguished by a treaty of surrender which the Dominion is alone competent to enter into. To these considerations must be added the further and weighty reason, that the construction just indicated is most fair and reasonable, inasmuch as the Dominion, being burdened with the support and maintenance of the Indians, ought also to have the benefit of any advantage which may be derived from a surrender of their lands.
To these arguments the respondent opposes others of varying weight and importance, which may, as far as I can see, be all classed under two heads. First, it is attempted to show by reference to a variety of documents consisting of legislative and administrative acts, public correspondence and official reports, all of which I concede are quite admissible for the purpose, that the words “lands reserved for the Indians” had, at the time of confederation, acquired a well recognised secondary meaning, and that they were synonymous with Indian reserves and were confined to lands appropriated to the Indians by grant from the crown, or lands which the Indians had themselves reserved by excepting them from treaty surrenders. The answer to this is, in my opinion, very plain. It is true that these documents do show that lands so specifically appropriated to the Indians have always been treated and are to be considered as lands “reserved” for the Indians, and therefore lands comprised in the description given in the 24th sub-section of section 91, but it does not follow from this that the clear and undoubted title of the Indians to their peculiar interest in unsurrendered lands is not also included in the same description. The inference would rather be against a construction which would attribute to the Imperial Parliament the intention of making a purely arbitrary distinction between the two classes of Indian property, for if it is once admitted or established that the Indians have a proprietary interest in lands not surrendered by them, a point on which there can really be no serious doubt, the same reasons which induced Parliament to throw around the minor territorial interests of the Indians in the smaller classes of reserves the powerful protection of the Dominion Government, or rather stronger reasons than these, must also have applied to their more valuable and important territorial rights in unsurrendered lands.
The other principal argument relied upon for the respondent is one derived from the supposed inconvenience which would result from the proprietary interest in this large tract of territory becoming vested in the Dominion Government. I can see no force in this. I am unable to see that any such result must necessarily, or is even likely, to follow because the proprietorship of the soil in a large tract of land situate within the confines of a particular province is vested in the Dominion, whilst the political rights, legislative and administrative, over the same territory are vested; in the provincial government. Instances of such ownership by a federal government within the limits I and subject to the jurisdiction of local governments, provinces, or states, are easily to be found, and it has never been suggested that any political inconvenience) or clashing of jurisdiction, has resulted from them. In all the States of the American Union, except the original thirteen and seven others formed out of cessions of territory by original States, viz.: Maine, Vermont, Tennessee, Kentucky, West Virginia, Alabama and Misissipi, and Texas, (which was admitted to the Union as a state already formed out of foreign territory,) the federal government was the original proprietor of the soil, and still remains so as regards ungranted lands. We may, therefore, presume that a system which has prevailed and still prevails in seventeen states of the Union, and which also exists in our own Province of Manitoba, and must likewise apply to all future provinces formed out of the North-West Territory, cannot be so incompatible with the political rights of local governments, or with the material interests of the people, as to require us to depart from the ordinary and well understood rule of statutory construction, and to ascribe to the Imperial Parliament the intention of abolishing by implication Indian titles which the crown had uniformly recognized for a long course of time, and protection to which had been expressly ordained and guaranteed by a proclamation of the king more than a century old.
The objection that the interests of the public would be prejudiced by attributing the ultimate crown title in Indian lands to the Dominion instead of to the province, seems to imply that this dispute is to be considered as a continuance of the contest respecting the provincial boundaries of Ontario and Manitoba. I cannot assent to this. The question between the two provinces was one in which the rights of two distinct political communities, each representing separate and distinct portions of the general public of the Dominion, came into conflict. In the present case we are entitled, indeed bound, to assume that in the disposal of these lands for the purposes of settlement the interests of the public, as well the public of Ontario as of Canada at large, will be as well served by the Dominion as by the province. I have already shown that the ownership by the Dominion of territory included within the limits of the province, is in no way inconsistent with the political rights of the latter as regards government and legislation The only real question, therefore, can be and is, that as to which government has the better title to the fund to be produced by the sale of these lands, and if, in construing the statute, we are to take into consideration arguments based on the fairness and equity of giving to one government rather than to the other the title to this fund, I have no hesitation in assigning the better right to the Dominion. I see nothing inequitable or inconvenient, but much the reverse, in a construction of the statute which has the effect of attributing the profits arising from the surrender and sale of Indian lands to the Dominion, upon which is cast the burthen of providing for the government and support of the Indian tribes and the management of their property, not only in the Provinces, but throughout the wide domain of the North-West Territories, rather than upon the Provinces, who are not only free from all liabilities respecting the Indians, but are not even empowered to undertake them and cannot legally do so.
So far as arguments derived from expediency, public policy, and convenience are to have weight in removing any ambiguity which may be fairly raised with reference to the meaning of the terms “lands reserved for the Indians,” there were some invoked by the learned counsel for the appellants which, in my opinion, far exceed in weight any of the same class put forward on behalf of the respondent. Is it to be presumed that by the 109th and 117th sections of the British North America Act it was intended to abrogate entirely the well understood doctrine, according to which the Indians were recognized as having a title to the lands not surrendered by them, which had been acted upon for at least one hundred years, and which had received the express sanction of the crown in a royal proclamation, wherein the Indians are assured that, to the end that they might be convinced of the King’s justice and determined resolution to remove all reasonable cause of discontent, their lands not ceded to or purchased by the crow