Attorney-General For Canada v. Giroux

Attorney-General For Canada v. Giroux
Collection
Supreme Court Judgments
Date
1916-05-02
Report
(1916) 53 SCR 172
Judges
Fitzpatrick, Charles; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Quebec
Subjects
State
Decision Content
Supreme Court of Canada
Attorney-General For Canada v. Giroux, (1916) 53 S.C.R. 172
Date: 1916-05-02
The Attorney-General for Canada (Plaintiff) Appellant;
and
Pierre Giroux (Defendant) Respondent;
and
Onésime Bouchard Mis-En-Cause.
1916: February 2; 1916: May 2.
Present: Sir Charles Fitzpatrick C.J. and Idington, Duff Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Crown lands—Lands vesting in Crown—Constitutional law—"B.N.A. Act, 1867" ss. 91 (24), 109-117—Title to Indian lands"—Surrender—Sale by Commissioner—Property of Canada and provinces—Construction of statute—" Indian Act," 39 V. c. 18—R.S.C. 1886, c. 43, s. 42—Words and phrases—"Reserve"—"Person"—"Located Indian"—Evidence—Public document—Legal maxim.
Per curiam.—The "Indian Act," 39 Vict., chap. 18, does not prohibit the sale by the Crown to an "Indian" of public lands which have, on surrender to the Crown, ceased to be part of an Indian "reserve," nor prevent an individual of Indian blood, who is a member of a band or tribe of Indians, from acquiring title in such lands. The use of the word "person" in the provisions of the "Indian Act" (39 Vict., chap. 18, s. 31; R.S.C, 1886, chap. 43, sec. 42), relating to sales of Indian lands, has not the effect of excluding Indians from the class entitled to become purchasers of such lands on account of the definition of that word in the interpretation clauses of the statutes in question.
Per Idington J.—Crown lands of the Province of Canada, situate in Lower Canada, which had not (as provided by the statute 14 and 15 Vict., chap. 106), been surveyed and set apart, as intended to be vested in the Commissioner of Indian Lands for Lower Canada, and appropriated to the use of Indians prior to the 1st July, 1867, do not fall within the definition of "Lands reserved for the Indians" in the 24th item enumerated in section 91 of the "British North America Act, 1867" and, consequently, did not pass under the control of the Government of the Dominion of Canada at the time of Confederation. In regard, therefore, to the lands in question the presumption is that they then became vested in the Crown in the right of the Province of Quebec, and, in the absence of evidence to the contrary, the Attorney-General for Canada cannot now enforce any claim of title to such lands in the right of the Dominion.
Per Duff and Anglin JJ.—The order-in-council of 1869, authorizing the acceptance of a surrender, and the surrender pursuant thereto by the Indians of the "reserve" within which the lands in question are situate are public documents the recitals in which are primâ facie evidence of the facts stated therein (Sturla v. Freccia (5 App. Cas. 623), at pp. 643-4, referred to). Evidence is thereby afforded that the band of Indians occupied the tract of land in question as a "reserve" and the principle "omnia præsumuntur rite esse acta" is sufficient to justify, primâ facie, the conclusion that the order-in-council of 1853, respecting the constitution of the reserve, was carried out and that the occupation thereof by the Indians was legal. Consequently, the rights acquired by the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control of the Government of Canada, at the time of Confederation, in virtue of the provisions as to "Lands reserved for the Indians" in section 91 of the "British North America Act, 1867." St. Catherine's Milling and Lumber Co. v. The Queen (14 App. Cas. 46), distinguished.
Judgment appealed from (Q.R. 24 K.B. 433), affirmed.
APPEAL from the judgment of the Court of King's Bench, appeal side[1] affirming the judgment of Letellier J., in the Superior Court, District of Chicoutimi, dismissing the action.
The circumstances of the case are stated in the judgments now reported.
G. G. Stuart K.C. and L. P. Girard for the appellant.
L. G. Belley K.C., for the respondent.
The Chief Justice.—The appellant, the Attorney-General for the Dominion of Canada, claims in this suit to have it declared that the Crown is the owner of a certain half-lot of land, being lot No. 3 of the first range, Canton Ouiatchouan, in the Parish of St. Prime and County of Lake St. John. In the first paragraph of the amended declaration it is stated that the Crown has always been and still is the owner of the lot No. 3. This, however, is only inaccurate drafting of which there is much in the record. There is no doubt that the claim of the Crown is only to the south-east half of lot No. 3, and it is not disputed that the respondent has a good title to the northwest half of lot No. 3, The respondent has been in possession of the whole of lot No. 3 for upwards of a quarter of a century during which time the Government has taken no effective steps to question his right to any part of the lot.
By an order-in-council, dated August 9-11, 1853, approval was given to a schedule shewing the distribution of land set apart under the statute 14 & 15 Vict., ch. 106, for the benefit of the Indian Tribes in Lower Canada. Included in this schedule was a reservation in favour of the Montagnais of Lake St. John. The half-lot in question was comprised in this reservation.
On the 25th of June, 1869, the Montagnais Band of Indians surrendered to the Crown, for sale, a portion of the reservation including lot No. 3. This land so surrendered was put up for sale and it would appear that on the 21st June, 1873, the north-west half-lot No. 3 was sold to the respondent and, on the 7th May, 1878, the south-east half-lot was sold to one David Philippe.
Under a judgment obtained by the mis-en-cause, O. Bouchard, against D. Philippe the latter's half of lot No. 3 was sold at a sheriff's sale to the respondent on the 7th March, 1889.
The Crown alleges that David Philippe was an Indian, that he was, at the time of the sheriff's sale, in possession of the land on which he had been located by the Crown and that, consequently, the Crown still held the half-lot as "Indian Lands" and as such liable neither to taxation nor to execution.
The fallacy in this argument is in the statement that David Philippe had been located on the land; it involves the proposition that, whilst all the other lots into which the reserve had been divided were sold outright to their purchasers, this particular half-lot was not sold to the purchaser David Philippe, but that, being an Indian, he was only "located" on the land in the meaning of that term in the "Indian Act."
To shew the impossibility of supporting such a contention it is only necessary to turn to the sections in point in the statute. The Act in force on the 7th May, 1878, the date of the sale to David Philippe, was the "Indian Act, 1876" (39 Vict., ch. 18). Section 3 is as follows:—
3. The following terms contained in this Act shall be held to have the meaning hereinafter assigned to them unless such meaning be repugnant to the subject or inconsistent with the context.
(3) The term "Indian" means:
First, any male person of Indian blood reputed to belong to a particular band * * *
(6) The term "Reserve" means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians of which the legal title is in the Crown, but which is unsurrendered. * * *
(8) The term "Indian Lands" means any reserve or portion of a reserve which has been surrendered to the Crown. * * *
(12)"The term "person" means an individual other than an Indian, unless the context clearly requires another construction.
By Section 5, the Superintendent-General
may authorize that the whole or any portion of a reserve be subdivided into lots.
Section 6:
6. In a reserve or portion of a reserve subdivided by survey into lots, no Indian shall be deemed to be lawfully in possession of one or more of such lots, or part of a lot unless he or she has been or shall be located for the same by the band, with the approval of the Superintendent-General. Section 7:
7. On the Superintendent-General approving of any location as aforesaid he shall issue in triplicate a ticket granting a location to such Indian.
Section 8:
The conferring of any such location-title as aforesaid shall not have the effect of rendering the land covered thereby subject to seizure under legal process or transferable except to an Indian of the same band.
The statute, it will be observed, makes provision for the conferring of a location-title only on a reserve, that is on unsurrendered lands and then by the band, not by the Crown.
Then after sections 25 and following, dealing with surrenders of reserves to the Crown, we have sections 29 and following under the caption "Management and Sale of Indian Lands." There is no suggestion in these sections, or anywhere else in the Act, that Indian lands may not be sold to an Indian.
I suppose it may well be that it would not be a common occurrence for an Indian to be a purchaser at a sale of Indian lands, but it is one thing to say the statute did not contemplate this and quite another to say that it intended to forbid it. I can imagine no reason why an Indian should not purchase such lands; there is no doubt as to his capacity to hold real estate. This is recognized by section 64, which provides that :
No Indian or non-treaty Indian shall be liable to be taxed for any real or personal property, unless he holds real estate under lease or in fee simple, or personal property, outside of the reserve or special reserve, in which case he shall be liable to be taxed for such real or personal property at the same rate as other persons in the locality in which it is situate.
This really disposes of the appellant's case but, out of respect for the learned judge of the Court of King's Bench who dissented from the majority of the court and one of whose points is taken up in the appellants' factum, a few words may be added. The whole ground of the dissenting opinion is really in the following paragraph:
Les Indiens d'une tribu localisée sur une réserve pourraient se réunir en conseil d'une manière solennelle et décider (si la majorité de la bande le voulait) de remettre tout ou partie de cette réserve à la Couronne et alors la Couronne vendrait ou disposerait de ce qu'elle reçevrait ainsi, dans l'intérêt de la tribu indienne et pour son bénéfice exclusif, mais à la condition—dont la nécessité se voit très bien—de ne jamais vendre une partie quelconque de ces réserves à des sauvages-. On a même pris le soin de dire que toute "personne" pourrait devenir acquéreur de ces propriétés mais qu'un sauvage ne pourrait pas être une de ces personnes.
I am myself quite unable to appreciate the necessity or occasion for any such condition as the learned judge suggests but it is unnecessary to discuss this because, as far as I have been able to ascertain, it is purely imaginary. The judge says further on:
Ce nommé Phillippe était un sauvage, et la loi défendait positivement qu'un sauvage pût acquérir cette propriété.
No reference is given and I know of no such prohibition, positive or otherwise.
The point taken in appellant's factum that a "person," as defined by the "Indian Act," does not include an Indian has reference to the section dealing with certificates of sale which is section 31 of 39 Vict., ch. 18 and section 42 of chapter 43, Revised Statutes of Canada. There seems to be some obscurity about this section because the marginal note which has been carried through all the amendments and revisions of the Act is "Effect of former certificates of sale or receipts." The section, however, seems to look to future certificates and, as I apprehend, is designed to meet the inconvenience of delay in the issue of patents. Be that as it may, the section does not provide that any "person" may purchase these lands but that an Indian may not be one of these "persons": all that it does provide is that a certificate of sale or receipt for money, duly registered as therein mentioned, shall give the purchaser the same rights as he would have under a patent from the Crown.
The definition of terms is, at the commencement of section 3, said to apply only when not inconsistent with the context and this is emphasized by its special repetition in the 12th item in which the word "person" is defined. I cannot think that such an accidental use of the word "person" for "purchaser", or any other word to indicate him could possibly be held to involve by inference a positive law against an Indian becoming a purchaser for which prohibition there is no other warrant. I think in such case the context would clearly require another construction.
But this is not all; the appellant has assumed that the case is governed by the "Indian Act," chapter 43 of the Revised Statutes of 1.886, but this is not so, and when we look at the "Indian Act" of 1876 we find that the word "person" does not occur at all in the extract quoted by the appellant which sets forth what the certificate of sale or receipt for money shall entitle the purchaser to. The word used is "party" shewing conclusively that the legislature had no intention, even by an inference through the interpretation section, to prevent the acquisition by an Indian of Indian lands put up for sale.
The word "party" is several times used when distinctly intended to include both "persons" and "Indians." See sections 12 and 14.
This substitution in the revised statute of the word "person" for the word "party" is an instance of the danger attending such changes in the revision of the statutes. Obviously the revisers had no idea of enacting an important law by the change they made but regarded it simply as a linguistic embellishment; it has, however, misled two of the judges of the Court of King's Bench into finding a positive law against the sale of Indian lands to an Indian.
At the hearing I was considerably impressed with the argument that, even if there had never been a valid sale to David Philippe, the transactions between Euchère Otis, the local agent of the Superintendent-General, and the respondent constituted a sale to the latter which was also confirmed by the Department of Indian Affairs. If, however, the views that I have previously expressed are correct it is unnecessary to consider this point further. If the sale to David Philippe, in 1878, was good, the Crown had nothing left to grant to Giroux in 1889.
Judge Pelletier, delivering the dissenting judgment in the Court of King's Bench, says that he has endeavoured to find in the record the necessary grounds for confirming the judgment, since such confirmation (if it could be legally given) would seem to him more in accordance with equity. With this view I agree and it is therefore satisfactory to be able to conclude that the judgment is in conformity not only with equity in its most general meaning but also with the law.
The appeal should be dismissed with costs.
Idington J.—The appellant seeks to have the Crown declared the proprietor of part of a lot of land in Quebec and respondent removed therefrom and ordered to account for the fruits thereof for the past twenty-six years.
The circumstances under which the claim is made are peculiar and some novel questions of law are raised. Much diversity of judicial opinion in the courts below seems to exist relative to some of these questions.
To put the matter briefly, the appellant claims that the land in question is part of a tract of land known as an "Indian Reserve," which had become vested by virtue of certain legislation in the Crown, in trust for a tribe of Indians; that part of it was thereafter surrendered by the tribe to the Crown for purposes of sale for the benefit of said tribe; that this part of the lot now in question was in course of time sold to an Indian of said tribe; that he paid five 25/100 dollars on account of the purchase; that thereafter, under a judgment got against him, the land was sold by the sheriff to respondent for $500; that thereupon he paid to the Indian Department $164 as the balance of the purchase-money due the Crown, and procured the receipt therefor, which appears hereinafter, from the local sales agent of the Indian Department; that he then went into possession and improved the land and has remained so possessed ever since till, according to assessed values, it has risen from being worth only $500 in 1889, when respondent entered, to be worth $3,200, in 1913, when this litigation was pending; that the Indian purchaser was incapacitated by statute from buying lands in a "Reserve"; and that the sheriff's sale was, as part of the result, null and void and hence that respondent got nothing by his purchase.
To realize the force and effect of these several allegations we must examine the statutes upon which the rights of the Indians rested, their, powers of surrender thereunder, and the effect of the "British North America Act" under and by virtue of which the claim of the appellant is asserted.
The Parliament of Old Canada, by 14 & 15 Vict. ch. 106, enacted:
That tracts of land in Lower Canada, not exceeding in the whole two hundred and thirty thousand acres, may, under orders-in-council to be made in that behalf, be described, surveyed and set out by the Commissioner of Crown Lands, and such tracts of land shall be and are hereby respectively set apart and appropriated to and for the use of the several Indian Tribes in Lower Canada, for which they shall be respectively directed to be set apart in any order-in-council, to be made as aforesaid, and the said tracts of land shall accordingly, by virtue of this Act, and without any price or payment being required therefor, be vested in and managed by the Commissioner of Indian Lands for Lower Canada, under the Act passed in the session held in the thirteenth and fourteenth years of Her Majesty's Reign, and intituled, An "Act for the better protection of the Lands and Property of the Indians in Lower Canada."
In the last mentioned Act, chapter 42 of 13 & 14 Vict., there is enacted:
It shall be lawful for the Governor to appoint from time to time a Commissioner of Indian Lands for Lower Canada in whom and in whose successors by the name aforesaid all the lands or property in Lower Canada which are or shall be set apart, or appropriated to or for the use of any tribe or, body of Indians, shall be and are hereby vested in trust for such tribe or body and who shall be held in law to be in the occupation and possession of any lands in Lower Canada actually occupied or possessed by any such tribe or body in common or by any chief or member thereof or other party for the use or benefit of such tribe or body and shall be entitled to receive and recover the rents issues and profits of such lands and property, and shall and may, in and by the name aforesaid, be subject to the provisions hereinafter made, exercise and defend all or any of the rights lawfully appertaining to the proprietor, possessor or occupant of such land or property.
In the evidence in the case there is a certified copy of an order-in-council of August, 1853, which reads as follows:—
On the letter from the Honourable Commissioner of Crown Lands, dated 8th June, 1853, submitting for approval a schedule shewing the distribution of the area of land set apart and appropriated under the statute 14 & 15 Vict., ch. 106, for the benefit of the Indian Tribes in Lower Canada.
The Committee humbly advise that the said schedule be approved and that the lands referred to be distributed and appropriated as therein proposed.
This is vouched for by a certificate of the Assistant-Commissioner of Crown Lands, in 1889.
The schedule referred to in the said order-in-council does not appear in evidence. Neither does the fetter.
There does, however, appear a schedule in the case, certified by the same Assistant-Commissioner of Crown Lands and of same date as last mentioned certificate. This on its face cannot be the schedule referred to in said order-in-council. It is as follows:— SCHEDULE
Shewing the distribution of the area of land set apart and appropriated under the Statute 14th and 15th Vict., Ch. 106, for the benefit of Indian Tribes in Lower Canada.
County
Township or Locality.
No. of Acres.
Description of Boundaries.
Names of the Indian Tribes.
Remarks.
Peribonca River.
16,000
A tract five miles on the River Peribonca, north of Lake St. John.
Montagnais of Lake St. John and Tadoussac.
Indians having their hunting grounds along the Saguenay and its tributaries.
Surveyed.
Exchanged for a tract on the west shore of Lake St. John.
Surveyed.
Saguenay
Metabetchouan
4,000
The ranges 1st and C. south of Lake St. John.
(And other lands)
Certified a true copy of the original of record in this Department.
(Sgd.) E. E. Taché,
Assist.-Commissioner,
Department of Crown Lands, Quebec, 30th April, 1889.
Crown Land Department, Toronto, 23rd February, 1858, Ind.
(Sgd.) Joseph Wauhebe, P.L. I may remark that the marginal note
Surveyed. Exchanged for a tract on the west shore of Lake St. John. Surveyed.
cannot have formed part of an order-in-council in 1853. That note is something evidently written in after the date of the order-in-council and I infer has been a note made by someone in reference to an exchange proposed on 4th September, 1856, to which I am about to refer.
Who wrote it? When was it written? By what authority?
The certificate seems as presented in the case to be placed higher up than the note at left hand side and signed by Mr. Wauhebe. It is probable, however, the certificate was intended to present this note as part of the original record purported to be certified to.
What then does the date signify in this note? It is of February, 1858. Who was Mr. Wauhebe? What office did he fill? What was the purpose of the extract as it left his hands? Was the marginal note part of what he seems to be certifying to?
The importance of a definite answer to these queries and all implied therein becomes apparent when we find that the title of the Crown, as represented by appellant, depends upon the effect to be given the most indefinite terms of an order-in-council of the 4th September, 1856, which is as follows:—
On the application of the Montagnais Tribe of Indians of the Saguenay, thro' David E. Price, Esq’r, M. P. P. for the appointment of Mr. Georges McKenzie as interpreter and to distribute all moneys or goods given to the Tribe; and for the grant of a tract of land on Lake St. John, commencing at the River Ouiatchouanish, to form a township of six miles square; also, that the grant of £50 per annum, may be increased to £100, and continue annually.
The report from the Crown Land Department dated 25th July, 1856, states that the tract of land set apart for the Montagnais Indians, lies in the Township of Metabetchouan, west side of the river of that name and that this land, together with the tract at Peribonca, north side of Lake St. John, are still reserved for those Indians, but that as they appear desirous of obtaining a grant of the land at Pointe Bleue, on the western border of Lake St. John, there appears no objection to an exchange.
The Committee recommend that the exchange be effected and the grant made accordingly.
Certified,
(Sgd.) Wm. H. Lee,
C. E. C.
To the Supt.-Gen'l Indian Affairs,
etc., etc., etc.
Certified a true copy.
Duncan Scott.
Deputy Superintendent-General of Indian Affairs
There is nothing in the case to explain what was done pursuant to this order, and when, if anything ever was done. There is nothing in the printed case shewing any definite survey ever was made of the lands thus recommended to be given in exchange for the lands which had been allotted to some Indians.
The Act of 14 & 15 Vict., ch. 106, makes it clear by the above quotation therefrom that orders-in-council setting apart land for the use of Indians should be described, surveyed and set out by the Commissioner of Crown Lands, and that only in such event can such tracts of land be considered as set apart and appropriated for the use of the Indians.
Again, it is clearly intended by the earlier enactment of 13 & 14 Vict. that the lands intended to be vested in the Commissioner of Indian Lands are such as have been set apart or appropriated to the use of Indians. When we consider that the lands to be so vested by virtue of those Acts are to be only lands which have been surveyed and set apart by the Commissioner of Crown Lands, it is very clear that something more than an order-in-council," such as that produced, merely approving of the proposed scheme of exchange, was needed to vest lands at Point Bleue in the Commissioner of Indian Lands. Yet, strange to say, there is nothing of the kind in the case or anything from which it can be fairly inferred that the necessary steps ever had been taken.
Counsel for the appellant referred to a blue print in the record; and I understood him to suggest it was made in 1866.
Examining it, I can find no date upon it; but I do find another plan purporting to be a survey made by one Dumais, P. L. S., in 1866. Probably it is by reference thereto he fixed the date of the blue print, if I understood him correctly.
This latter plan has stamped upon it the words "Department of Indian Affairs, Ottawa, Canada"; and inside these, set in a circle, are the words "Survey Branch, True, Reduced Copy, W. A. Austin, 18.6.00." I infer that probably the latter plan is but a reduced copy of the former and that both refer to some survey made in 1866.
So far as I can find from the case, or the record from which the case is taken, the foregoing presents all there is entitling appellant to assert a title in the Crown on behalf of the Dominion.
Clearly the order-in-council recommending an exchange, without more, furnishes no evidence of title.
It might be said with some force, but for the constitutional history of Canada involved in the inquiry, that what we do find later on furnishes something from which after such lapse of years some inferences might be drawn. There are two difficulties in the way. All that transpired after the 1st of July, 1867, when the "British North America Act" came into force, can be of no effect unless and until we have established a state of facts, preceding that date, which would enable the "British North America Act" by its operation to give control of the said lands to the Crown on behalf of the Dominion.
By section 91, sub-section 24 of said Act, one of the subject matters over which the Dominion Parliament was given exclusive legislative authority was "Indians and Lands reserved for Indians."
The question is thus raised whether or not the lands in question herein fall definitely within the term "Lands reserved for Indians."
The Dominion Parliament, immediately after Confederation, by 31 Vict., ch. 42, asserted its legislative authority over such lands as reserved for Indians.
All that took place afterwards relative to the lands in question can be of no effect in law unless the alleged reserve had been duly constituted on or before the 1st July, 1867.
It seems impossible on such evidence as thus presented to find anything bringing the lands in question within the scope of and under the operation of the "British North America Act."
But there is another difficulty created by the enactment, in 1860, by the Parliament of Old Canada of 23 Vict., ch. 151, sec. 4, which provides as follows:—
4. No release or surrender of lands reserved for the use of Indians, or of any tribe or band of Indians, shall be valid or binding except on the following conditions.
This is followed by two sub-sections which specify the steps which must be taken to enable a surrender to be made. It is to be observed that this was passed within three years and ten months from the order-in-council recommending, the exchange made of the lands on the Peribonca and Metabetchouan rivers held as reserves for the Indians in question.
If the survey and setting apart contemplated by the proposed exchange was not made and fully completed by the 30th June, 1860, when the bill, which had been reserved by the Governor in May, was assented to, the completion of that exchange would require the due observance by the Indians of the form of surrender imperatively required by the last mentioned Act.
There is nothing to indicate this ever was complied with. Hence surveys made in 1866, or any time after 30th June, 1860, cannot help without evidence of such compliance.
There is no evidence of any Indians in fact having been found on the Pointe Bleue reservation before the year 1869.
If one had to speculate he might infer something took place between 1866 and 1869. But we are not at liberty do do so, or found a judgment herein for appellant, without evidence or only upon the merest scintilla thereof.
The appeal therefore fails in my opinion. I think the distinction claimed by Mr. Stewart to exist between reserves duly constituted under the Acts above referred to, whereby the land became vested in commissioners in trust, and such reserves as involved in the case of St. Catherine's Milling and Lumber Company v. The Queen[2], and some other cases referred to, was well taken.
But, as this case stands, there being no evidence of the land having been duly vested before 1st July, 1867, in commissioners in trust, or otherwise falling within the operation of the "British North America Act," section 91, sub-section 24, the presumption is in favour of the land being vested in the Crown on behalf of Quebec. Assuming, for argument's sake, that there is any evidence upon which to find the land vested in the Crown on behalf of the Dominion and that there is evidence of a sale by the Crown to David Phillippe, upon which he paid only five 25/100 dollars, how does that help the appellant?
Admitting the invalidity of the sale and nullity of the sheriff's sale, and discarding both as null, there is evidence which goes far to establish the recognition by the Crown of the respondent as the purchaser. The local agent gave respondent the following receipt:—
Roberval, Pointe Bleue, 22 juin, 1889.
$164.32.
Reçu de M. Pierre Giroux la somme de cent soixant et quatre piastres et 32 cents, en payement du ½ lot S. E. No. Rang 1er. du Township Ouiatchouan suivant instruction de Dep. et avec contrat de Vente pour le dit ½ lot.
L. E. Otis, A.S.
And the Department of Indian Affairs, at Ottawa, set down in its books a recognition of respondent as purchaser.
It would have been, I incline to think, quite competent for the Crown under all the circumstances, and without any detriment either to the trust or anything else, to have taken the position in 1889, as may be inferred was done, that the said receipt and entry in the books should stand forever as a final disposition of the affair.
The reasons against such a course of action being taken by the Crown were of rather a technical character; even assuming Phillippe was debarred from buying, upon which I pass no opinion.
Under the law as it has long existed there was the possibility of recognizing any Indian qualified to be enfranchised and thereby beyond doubt entitled to become a buyer. It may be inferred even at this distance of time that if the questions now raised had, at the time when respondent was set down in the books of the department as purchaser of the lands in question, been viewed in light thereof and the foregoing circumstances and especially having regard to the fact that, in any event, Phillippe alone was to blame, and had no more substantial grievance at least none worth more than $5.25 to set up, and seeing respondent had contributed $500 to pay his debts and paid practically the whole purchase money to the Crown, no harm would have been done by letting the recognition of respondent stand.
I must not be understood as holding that there cannot be discovered abundant evidence to cover the very palpable defects I point out in the proof of title adduced herein.
This is not one of the many cases wherein probabilities must be weighed.
It is upon the record as it presents the title to the lot in question that we must pass. Fortunately the result does justice herein even if the result of blunders in failing to produce evidence which may exist.
The appeal must be dismissed with costs.
Duff J.—The action out of which this appeal arises was brought in the Superior Court for the District of Chicoutimi, in the Province of Quebec, by the Attorney-General of the Dominion on behalf of the Crown claiming a declaration that a certain lot of land was the property of the Crown and possession of the same.
The three questions which it will be necessary to discuss are:— First.—Was the lot in question within the limits of an Indian Reserve constituted under the authority of 14 & 15 Vict., ch. 106?
Second.—If so, is the title vested in His Majesty in right of the Dominion of Canada or has the Attorney-General of Canada, on other grounds, a title to maintain the action?
Third.—Was a professed sale of the lot made in 1878 to one David Philipe, member of the Montagnais tribe by an agent of the Department of Indian Affairs, a valid sale?
I shall first state the facts bearing upon the first and second of these questions. On the 9th of August, 1853, an order-in-council was passed by which certain tracts of land were severally appropriated for the benefit of the Indian tribes in Lower Canada under the authority of the statute above mentioned. Two tracts were set apart for the benefit of the Montagnais Band, one on the Metabetchouan and one on the Peribonca river in the Saguenay district. A few years afterwards, on the request of the tribe, the Governor in Council sanctioned an exchange of the Peribonca tract for a tract at Pointe Bleue, Ouiatchouan, on the western border of Lake St. John. In August, 1869, the Governor-General in Council, by order, accepted what professed to be a surrender by the Montagnais Indians of the reserve constituting the Township of Ouiatchouan which admittedly is the tract of land that the order-in-council of 1851 authorized to be substituted for the Peribonca Reserve. In view of the contention that the exchange was never effected it is desirable to set out this order-in-council and the surrender in full. They are as follows:— Copy of a Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor-General in Council on the 17th August, 1869.
The Committee have had under consideration a memorandum dated 3rd August, 1869, from the Hon. the Secretary of State submitting for acceptance by Your Excellency in Council under the provisions of the 8th section of the Act, 31 Vict., Chap. 42, a surrender bearing date the 25th of June, 1869, executed at Metabetchouan, in the District of Chicoutimi, by Basil Usisorina, Luke Usisorina, Mark Pise Thewamerin and others, parties thereto as chiefs and principal men of the Band of Montagnais Indians, claiming to be those for whose benefit the reserve at Lake St. John, known as the Township of Ouiatchouan, was set apart, executed in the presence of Rev'd Dominique Racine, authorized by the Hon. the Secretary of State to receive said surrender and in that of the Hon. Mr. Justice Roy, Judge of the Superior Court in the District of Chicoutimi, such surrender conveying their interest and right in certain lands on the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ranges of the said Township of Ouiatchouan, indicated on the copy of a map by provincial surveyor P. H. Dumais, dated A.D. 1866, attached to the said surrender and vesting the lands so surrendered in the Crown in trust to sell and convey the same for the benefit of the said Indians, and their descendants, and on condition that the moneys received in payment for the same shall be placed at interest in order to such interest being periodically divided among the said Montagnais Indians.
The Committee advise that the surrender be accepted and enrolled in the usual manner in the office of the Registrar-General.
Certified,
(Sgd.) Wm. H. Lee, Clk. P. C.
Certified a true copy.
Duncan Scott,
Deputy Superintendent-General of Indian Affairs.
Surrender by the Band of Montagnais Indians for whom was set apart the Reserve of the Township of Ouiatchouan, in the Province of Quebec, to Her Majesty Queen Victoria, of their lands in the Indian Reserve there, as described below, to be sold for their benefit. KNOW ALL MEN that the undersigned Chief and Principal Men of the above mentioned band living on the above mentioned reserve, for and acting on behalf of our people, do hereby remise, release, surrender, quit-claim and yield up to our Sovereign Lady the Queen, Her Heirs and Successors forever, all and singular those certain parcels, or tracts of land situated in the Dominion of Canada and in that part of the said Province of Quebec, being composed of concessions one, two, three, parts of four, five, six and the whole of seven and eight, in the said Township of Ouiatchouan, as described and set forth in the map or plan hereunto annexed.
To have and to hold the same unto Her said Majesty the Queen, Her Heirs and Successors forever, in trust, to sell and convey the same to such person or persons and upon such terms as the Government of the said Dominion of Canada shall or may deem most conducive to the interest of us, the said Chief and Principal Men and our people in all the time to come and upon the further condition that the moneys received from the sale thereof shall, after deducting the usual proportion for expense of management, be placed at interest, and that the interest money so accruing from such investment shall be paid annually, or semi-annually to us and our descendants. And we the said Chiefs and principal men of the band aforesaid do, on behalf of our people and for ourselves, hereby ratify and confirm and promise to ratify and confirm whatever the Government of this Dominion of Canada may do or cause to be lawfully done in connection with the disposal and sale of the said lands.
In WITNESS THEREOF, the said Chiefs and principal men have set our hands and affixed our seal unto this instrument in the said Province of Quebec, at Post Metabetchouan. Done at our Council-House this twenty-fifth day of June, in the year of our Lord one thousand eight hundred and sixty-nine.
Signed, sealed and delivered in the presence of:
D. Roy,
Judge of the Superior Court and of the District of Chicoutimi. Signed by the Chief and thirty-six other Indians, members of the Band.
Since the acceptance of this surrender the lands have been dealt with by the Department of Indian Affairs as lands surrendered, under the provisions of the "Indian Act" and held by the Crown under that Act.
First, then, of the contention that the Ouiatchouan Reserve was never lawfully constituted. The order-in-council and the surrender registered pursuant to the order-in-council constitute, in my judgment, together, a public document within the meaning of the rule stated in Taylor on Evidence, 1769a, and the recitals in this document are, therefore, primâ facie evidence of the facts stated. (See Sturla v. Frecc a, et al.[3] at 643-4). Evidence is thereby afforded that the Montagnais Band of Indians did occupy this tract of land as a reserve and the principle omnia prœsumuntur rite esse acta is sufficient to justify, primâ facie, the conclusion that the order- in-council was carried out and that their occupation was a legal one.
The second question depends upon the character of the Indian title to this reserve at the time the "British North America Act" came into force. If at that time there was vested in the Crown in right of the Province of Canada an interest in these lands which properly falls within the description "land," as that word is used in section 109 of the "British North America