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Title to Indian reserves in British Columbia : a critical analysis of order in council 1036 Smith, Donald Myles 1988

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TITLE TO INDIAN RESERVES IN BRITISH COLUMBIA: A CRITICAL ANALYSIS OF ORDER IN COUNCIL 1036 by DONALD MYLES SMITH B.A., The University of Guelph, 1977 LL.B., The University of Windsor, 1981 A MAJOR PAPER SUBMITTED IN PARTIAL FULFILLMENT THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n THE FACULTY OF GRADUATE STUDIES THE FACULTY OF LAW We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA September 1988 O Donald Myles Smith, 1988 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of Law  The University of British Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Date September 9, 1988 DE-6(3/81) ABSTRACT Indian reserves i n B r i t i s h Columbia have a unique history. When B r i t i s h Columbia joined Confederation, the Terms of Union required the province to convey reserve lands to Canada i n trust, f o r the use and ben e f i t of the Indians. That c o n s t i t u t i o n a l o b l i g a t i o n , imposed by the Terms of Union, was not f u l f i l l e d u n t i l many years a f t e r the date of union. It was not u n t i l 1929 that a "form of tenure and mode of administration" for a l l reserves i n the province was agreed upon by the two governments. Nine years l a t e r , the p r o v i n c i a l government passed Order i n Council 1036, which conveyed most reserves outside the o l d Railway Belt to Canada. Pursuant to the 1929 agreement, the reserves which had been established inside the Railway Belt, (a s t r i p of land that had been transferred to Canada i n 1884), were to be governed by the same terms and conditions found i n Order i n Council 1036. Other reserves, which had been established pursuant to treaty Number 8, were not formally transferred u n t i l 1961. The purpose of t h i s thesis i s to examine the hi s t o r y leading up to the t r a n s f e r of reserve lands i n B r i t i s h Columbia, and to c r i t i c a l l y analyze the t i t l e which passed pursuant to Order i n Council 1036. The examination of Order i n Council 1036 includes an analysis of the proprietary r i g h t s transferred, such as water and mineral r i g h t s . The transfer instrument i s analysed i n d e t a i l i n order to determine what righ t s and int e r e s t s were passed to the i i Dominion and what was reserved to the province. Because the reserves i n the o l d Railway B e l t share the same terms and conditions, pursuant to Privy Council Order 208, they w i l l also be included i n t h i s study. The establishment and transfer of Treaty Eight reserves w i l l not be dealt with here. However, due to the s i m i l a r i t i e s i n the transfer instruments, some of the comments and analysis with respect to the other reserves w i l l be applicable to the Treaty Eight reserves. The Constitution required the province to convey reserve lands to the Dominion. The term "conveyance" i s not s t r i c t l y appropriate to describe a transfer of property r i g h t s between l e v e l s of Her Majesty's governments. Therefore, c e r t a i n aspects of Crown t i t l e and the transfer of property i n t e r e s t s between l e v e l s of governemnt are examined herein. It i s submitted that, because the Terms of Union required the "conveyance" of Indian reserves, the transaction must be analyzed from a c o n s t i t u t i o n a l law perspective. One of the features of Order i n Council 1036 i s a reservation by the province of a r i g h t to resume up to one-twentieth of any reserve lands. That i s a term of the conveyance that continues to concern Indian bands i n B r i t i s h Columbia. I t i s submitted that t h i s condition of the transfer i s i n v a l i d because i t i s contrary to the requirements of the Terms of Union. The conveyance should not be construed as a grant of r e a l estate, but rather as a transfer of proprietary i n t e r e s t s pursuant to l e g i s l a t i o n . Order i n Council 1036, (and the Federal counterpart, Privy Council Order 208), should be viewed as delegated l e g i s l a t i o n . I t i s further submitted that t h i s delegated l e g i s l a t i o n i s u l t r a v i r e s to the extent that i t purports to give the p r o v i n c i a l government a power of resumption over Indian reserve lands. i v TABLE OF CONTENTS ABSTRACT i INTRODUCTION . 1 CHAPTER I: HISTORICAL BACKROUND 5 Pre-Confederation - Colonial Indian Po l i c y 5 Confederation - Terms of Union, 1871 10 Indian Reserve Commission 1875-1910 12 The McKenna-McBride Agreement and Royal Commission 1913-1916 21 The Indian A f f a i r s Settlement Acts and the Ditchburn-Clark Agreement 22 Scott-Cathcart Agreement 23 The Settlement of the Form of Conveyance - 0/C 1036 29 The P r o v i n c i a l Claim to a "Reversionary Interest" 33 CHAPTER I I : NATURE OF TITLE TO CROWN LANDS 42 Background - "Interests" i n Land . 43 Crown's Proprietary Interest i n Land 45 Crown Lands and Public Lands 46 Crown Lands i n Canada 48 Di s t r i b u t i o n of Property - Constitution Act, 1867 49 Crown Lands i n B r i t i s h Columbia - Terms of Union 53 CHAPTER I I I : TRANSFER OF CROWN LANDS FROM PROVINCE TO DOMINION 58 Transfer of Crown Lands Generally 58 Transfer from Province to Dominion 59 Transfer of Crown Land Pursuant to Terms of Union 61 The Railway Belt Transfer - Precious Metals 62 Waters i n the Railway Belt 64 CHAPTER IV: THE FORM OF CONVEYANCE -ORDER IN COUNCIL 1036 67 The Conveyance "In Trust" 68 The P r o v i n c i a l Interest by Way of the Provisions i n 0/C 1036 72 The Exception of Streets and Roads 73 Use of Sand and Gravel on Reserves 76 Water Rights 79 Waters i n the Railway Belt 90 v CHAPTER IV: THE FORM OF CONVEYANCE -ORDER IN COUNCIL 1036 (Cont'd) The Right to Resume Land 91 What i s Resumption? 94 Limits on the Resumption Power ..101 Calc u l a t i o n of Resumable Portion 105 Procedural Requirements for Resumption I l l Compensation for Lands Resumed 115 Implied Compensation .....120 Past P o l i c y Regarding Compensation 124 Mineral Rights 127 The Indian Reserves Mineral Resources Act 130 CHAPTER V: CONSTITUTIONAL PROBLEMS WITH THE TRANSFER 133 A r t i c l e 13 of the Terms of Union 137 C o n f l i c t with Section 91(24), Constitution Act, 1867 ...142 The Railway Belt Reserves 150 Native Rights and the Constitution Act, 1982 152 Conclusions 155 BIBLIOGRAPHY 159 APPENDIX A .165 APPENDIX B 168 v i 1 INTRODUCTION I n d i a n r e s e r v e s i n B r i t i s h Columbia have a unique and i n t e r e s t i n g h i s t o r y . Most of the reserves i n the province were not e s t a b l i s h e d pursuant to t r e a t i e s , by which the o r i g i n a l inhabitants ceded t h e i r r i g h t to a larger t e r r i t o r y i n exchange for a small area. The absence of t r e a t i e s i n much of B r i t i s h Columbia i s responsible for the current l e g a l claims put forward by most bands concerning t h e i r unsurrendered i n t e r e s t i n t h e i r t r a d i t i o n a l lands. While the a b o r i g i n a l land claims have generated much i n t e r e s t and scholarly works, r e l a t i v e l y l i t t l e has been w r i t t e n about the e s t a b l i s h e d reserve lands i n B r i t i s h C olumbia. The purpose of t h i s work i s t o examine the establishment of Indian reserves i n B r i t i s h Columbia, and to analyze the conveyance of reserve lands from the province to the Dominion, i n t r u s t for the use and benefit of the Indians. When B r i t i s h Columbia joined Confederation i n 1871 i t agreed to convey lands to the Dominion to be used as Indian reserves i n the province. This agreement was noted i n the Terms of Union and consequently became part of the Canadian C o n s i t u t i o n . 1 The c o n s t i t u t i o n a l o b l i g a t i o n was not s e t t l e d u n t i l 1938, when B.C. B r i t i s h Columbia "Terms of Union", being a schedule to an Order of Her Majesty i n Council admitting B r i t i s h Columbia into the union (16 May, 1871), R.S.C. 1970 Appendix II, 279. Hereinafter referred to as the "Terms of Union". 2 f i n a l l y transferred most of the reserves by Order i n Council. 2 Many other reserves were within the boundaries of the Railway Be l t , a s t r i p of land on either side of the Canadian P a c i f i c Railway, which had been previously transferred to the Dominion pursuant to the Terms of Union. By an agreement reached i n 1929, the Railway Belt reserves were to be subjected to the same "form of tenure and mode of administration" 3 as reserves outside the Belt. I t i s t h i s "form of tenure and mode of administration" that i s the subject of ana l y s i s here. The Indian reserves that are governed by the agreed form of tenure expressed i n 0/C 1036 and Privy Council Order 208 comprise most of the reserves i n B r i t i s h Columbia. These Orders are roughly analagous to t i t l e deeds, i n that they purport to convey lands subject to c e r t a i n conditions and reservations. Indeed, the agreed form of conveyance i s very c l o s e to the standard Crown grant of the day. However, an analysis of the transfer can not be achieved simply by reference to concepts of property or conveyancing law. The transaction was not, s t r i c t l y speaking, a conveyance at a l l , but rather a transfer 2 B r i t i s h Columbia Order i n Council No. 1036, July 29, 1938, see appendix. The Order i s sometimes hereinafter referred to as 0/C 1036. 3 The Scott-Cathcart Agreement was embodied i n federal Privy Council Order No. 208, February 3, 1930, see appendix (sometimes h e r e i n a f t e r r e f e r r e d to as P.C. 208). I t contains the draft form of conveyance which ultimately became 0/C 1036. These documents w i l l be discussed i n the following chapters. 3 of administration and control over c e r t a i n lands from the Crown i n r i g h t of B r i t i s h Columbia to the Crown i n r i g h t of Canada. 4 Accordingly the transaction w i l l be examined i n t h i s l i g h t , with p a r t i c u l a r reference to c o n s t i t u t i o n a l issues involved. Following a review of the history leading up to the transfer, the nature of t i t l e to Crown lands w i l l be distinguished from i n d i v i d u a l forms of land tenure. The transfer of Crown lands between l e v e l s of government w i l l be generally reviewed before the p a r t i c u l a r transaction effected by 0/C 1036 i s analyzed i n d e t a i l . The analysis of the transfer instrument w i l l attempt to describe the nature of t i t l e to Indian reserves including water and mineral r i g h t s , i n view of the r e s e r v a t i o n s contained i n 0/C 1036. F i n a l l y , the form of tenure and mode of administration governing Indian reserves w i l l be s c r u t i n i z e d against the dictates of the Constitution. Based on t h i s analysis I w i l l argue that the "form of tenure", expressed i n 0/C 1036 and P.C. 208 i s c o n s t i t u t i o n a l l y flawed. In p a r t i c u l a r , I w i l l attempt to e s t a b l i s h that the right of the province to resume a portion of reserve lands for public purposes i s i n v a l i d . Before proceeding, a word of caution i s i n order. The analysis w i l l be relevant to those reserves which were transferred pursuant to Order i n Council 1036, and to those reserves which are situate This aspect of the transfer i s discussed more f u l l y i n Chapters II and I I I . 4 within the o l d Railway Belt. Other reserves, i n North Eastern B.C., were established pursuant to treaty, and were transferred under separate instrument, i n 1961.5 These reserves have not been included here because of the difference i n the way they were established and because of the difference i n the wording of the transfer instrument. It should also be noted that there are a v a r i e t y of ways i n which reserve lands were set apart. For example, some reserves were purchased by the federal government from i n d i v i d u a l land owners, and consequently the nature of t i t l e might be affected by the o r i g i n a l Crown grant. The h i s t o r y of any p a r t i c u l a r reserve might well a f f e c t the general remarks and a n a l y s i s o f f e r e d here. However, the issues discussed i n the following chapters w i l l have some relevance to a l l Indian reserves i n B r i t i s h Columbia. B r i t i s h Columbia Order i n Council No. 2995, November 28, 1961. These reserves were established pursuant to Treaty No. 8. 5 CHAPTER I HISTORICAL BACKGROUND Pre-Confederation - Colonial Indian Po l i c y According to the Terms of Union, the federal government was to assume the charge of the Indians and the management of Indian lands under a p o l i c y "as l i b e r a l as that hitherto pursued by the B r i t i s h Columbia Government."1 The choice of words was ambiguous, i f not misleading, i n view of the past p o l i c y of the c o l o n i a l government. During the e a r l y years of the colony under the Governorship of James Douglas the word " l i b e r a l " seems almost an appropriate description of Indian p o l i c y . However, i n the seven years immediately preceding Union the p o l i c y might be described as anything but " l i b e r a l " . During h i s tenure as Governor of the colony of Vancouver Island (and l a t e r of mainland B r i t i s h Columbia), Douglas followed the t r a d i t i o n a l B r i t i s h p o l i c y of dealing with native populations i n North America. That policy, which was r e f l e c t e d i n the Royal Proclamation of 1763, recognized the native "i n t e r e s t " i n the land and demanded that i t be respected. Before the Crown could open any land for purchase and settlement, the native i n t e r e s t had to B r i t i s h Columbia "Terms of Union", being a schedule to an Her Majesty i n Council admitting B r i t i s h Columbia into the May, 1871), R.S.C. 1970 Appendix II, 279. Hereinafter refer the "Terms of Union". 6 be f o r m a l l y purchased, or "surrendered", and other s u i t a b l e provisions made for the future welfare of the natives. Between 1850 and 1857, Governor Douglas made a number of t r e a t i e s with the Indians of Vancouver Island, whereby t h e i r i n t e r e s t i n c e r t a i n lands were r e l i n q u i s h e d to the Crown i n exchange for money (actually the cash was converted to blankets) and the promise that t h e i r v i l l a g e s and garden s i t e s would remain undisturbed forever. 2 In response to Imperial i n s t r u c t i o n s to deal humanely with the natives and supply them with an alternate means of subsistence, Douglas began to formulate a p o l i c y not unlike the present reserve system. The Indians were to be s e t t l e d on reserves, with any unused portions of reserve land to be leased to the highest bidder. Any proceeds from l e a s i n g would be credited to the band to help defray the cost of administering the charge of the Indians. 3 Although the formal surrender process begun on Vancouver Island was never completed due to lack of funds, Douglas proceeded to implement h i s reserve p o l i c y . He st i p u l a t e d that reserves were to 2 See copies of t r e a t i e s i n , "Papers Connected with the Indian Land Question", B r i t i s h Columbia L e g i s l a t i v e Assembly. Sessional Papers, 2nd P a r i . , 1st Sess., 1876. The "Papers" have been published separately as, Papers Connected with the Indian Land Question: 1850- 1875 ( V i c t o r i a : Wolfenden, 1875). The t r e a t i e s are reproduced at pages 5-10 of the Wolfenden publication. 3 Robert C a i l , Land, Man, and the Law: The Disposal of  Crown Lands i n B r i t i s h Columbia, 1871 - 1913 (Vancouver: U n i v e r s i t y of B r i t i s h Columbia Press, 1974), 174. be set aside i n a l l areas of the province inhabited by Indians, and that reserves should be defined according to the desires of each p a r t i c u l a r Band.4 Instructions from Douglas to Colonel Moody (Chief Commissioner of Lands and Works) i n 1863 i l l u s t r a t e the l i b e r a l i t y of h i s p o l i c y regarding the s i z e of reserves. The I n d i a n s o f t h e C o q u i t l a m R i v e r r e s e r v e had e x p r e s s e d d i s s a t i s f a c t i o n with the s i z e of the reserve which had been established for them. Douglas wrote to Moody: I beg that you w i l l therefore, immediately cause the e x i s t i n g reserve to be extended i n conformity with the wishes of the Natives, and to include therein an area so l a r g e as to remove from t h e i r minds a l l causes of d i s s a t i s f a c t i o n . Notwithstanding my p a r t i c u l a r i n s t r u c t i o n s to you, that i n l a y i n g out Indian reserves the wishes of the Natives themselves, with respect to boundaries, should i n a l l cases be complied with, I hear very general complaints of the smallness of the areas set apart for t h e i r use. I beg that you w i l l take instant measures to inquire in t o such complaints, and to enlarge a l l the Indian reserves between New Westminster and the mouth of the Harrison River, before the contiguous lands are occupied by other persons. 5 Unfortunately, when Douglas f i n a l l y r e t i r e d i n 1864 he l e f t no d e f i n i t e , c o d i f i e d system for a l l o t t i n g and r e g i s t e r i n g Indian reserves. White s e t t l e r s were by that time exerting more pressure for land grants and the colony's new leaders were a l l too eager to accommodate presumably productive farmers at the expense of the native population. As the colony moved away from a fur trade Ibid., 175. Ibid., 179. 8 economy to an a g r i c u l t u r a l base, the Indians were viewed less as an asset and more as a l i a b i l i t y . Viewed as both " u n c i v i l i z e d " and "unproductive" they were seen as an impediment to the p r o s p e r i t y that would undoubtedly follow the white s e t t l e r s . Accordingly, the Indian p o l i c y began to change. Although the general p o l i c y followed by Douglas remained i n i t s e s s e n t i a l element (reserves were s t i l l set aside for the benefit of the Indians) any l i b e r a l implementation of that p o l i c y ceased. In 1864 Joseph Trutch became Chief Commissioner of Lands for B r i t i s h Columbia. The new administration i n the colony adopted a p o l i c y l i m i t i n g reserves to ten acres per family, which was ostensibly based on past p r a c t i c e . 6 As a r e s u l t of pressure from s e t t l e r s some of the l a r g e r r e s e r v e s a l l o t t e d pursuant to Douglas's general instructions were reduced, and new reserves were r e s t r i c t e d i n accordance with the new p o l i c y . 7 Any notion of a b o r i g i n a l t i t l e was dismissed by the new administration and reserves were to be a l l o t t e d according to the present needs of the Indians o n l y . The then C o l o n i a l Secretary, W.A.G. Young, apparently agreed that reserves should not be too large. In his in s t r u c t i o n s to Trutch he stated that the a l l o t t e d reserves should 6 Ibid., 175 and 202. 7 For a good review of t h i s p o l i c y and examples of Reserve reductions, see C a i l , 180 and Robin Fisher, Contact and C o n f l i c t : Indian - European Relations i n  B r i t i s h Columbia, 1774 - 1890 (Vancouver: University of B r i t i s h Columbia Press, 1977), 163-164. 9 i n no case "be of such an extent as to engender the f e e l i n g i n the mind of the Indian that the land i s of no use to him, and that i t w i l l be to his benefit to part with i t . " 8 The Colonial Secretary may have only intended to discourage Indian bands from s e l l i n g t h e i r land heritage. On another view, his remarks could be seen to support a p o l i c y of l i m i t i n g reserves to a s i z e that would be adequate only for a band's subsistence. By l i m i t i n g the size of reserves another feature of Douglas's p o l i c y was disregarded. I f the reserves were kept small enough there could be no thought of leasing unused portions to derive an income for the maintenance of the band. One of the few common threads i n the c o l o n i a l Indian reserve p o l i c y was that the ex i s t i n g v i l l a g e s i t e s and gardens were included i n a l l reserves, and to t h i s l i m i t e d extent i t may be said that c o l o n i a l p o l i c y respected the Indians' p r i o r i n t e r e s t i n the land. A further common element i n the p o l i c y was that the Indians were prevented from a l i e n a t i n g t h e i r reserve lands, and thereby, presumably, t h e i r future subsistence was also protected. There had also been some progress i n the systematic recording of reserves i n the l a t t e r years of the colony's existence. In 1867 the f i r s t l i s t of Indian reserves appeared i n the B.C. Young to Trutch, l e t t e r dated November 6, 1867, i n "Papers Connected with the Indian Land Question", 205. 10 Gazette. S h o r t l y a f t e r Union, i n 1872, B.W. Pearse (the Province's f i r s t Chief Commissioner of Land and Works) prepared a "Return of A l l Indian reserves (surveyed) i n the Province of B r i t i s h Columbia". This was presented as a "Return to the L e g i s l a t u r e " , 9 and reported a t o t a l of 74 reserves situated i n the D i s t r i c t s of Vancouver Island, New Westminster and Yale. Confederation - Terms of Union, 1871 In 1871 B r i t i s h Columbia joined Confederation pursuant to the "Terms of Union", passed that same year as an Imperial Privy Council Order (May 16, 1871). 1 0 The j u r i s d i c t i o n over Indian A f f a i r s i n the new union was governed by A r t i c l e 13 of the Constitutional document: "13. The charge of the Indians, and the trusteeship and management of the lands reserved for t h e i r use and benefit, s h a l l be assumed by the Dominion Government, and a p o l i c y as l i b e r a l as that hitherto pursued by the B r i t i s h Columbia Government s h a l l be continued by the Dominion Government af t e r the Union. To carry out such policy, t r a c t s of land of such extent as i t has hitherto been the practice of the B r i t i s h Columbia Government to appropriate for that purpose s h a l l from time to time be conveyed by the Local Government to the Dominion Government i n t r u s t for the use and benefit of the Indians, "Return o f I n d i a n Reserves", B r i t i s h Columbia, J o u r n a l s , 1st P a r i . , 2nd Sess. 1872-3, Appendix Sessional Papers. See Note 1, supra. 11 on a p p l i c a t i o n of the Dominion Government; and i n case of disagreement between the two Governments respecting the quantity of such t r a c t s of land to be so granted, the matter s h a l l be referre d f o r the decision of the Secretary of State fo r the Colonies". Thus the Dominion Government assumed l e g i s l a t i v e j u r i s d i c t i o n over Indians and "lands reserved for t h e i r use and benefit". This was a confirmation of the Dominion's j u r i s d i c t i o n contained i n Section 91(24) of the Constitution Act, 1867. The A r t i c l e ' s main purpose was to address the issue of reserve lands. I t did t h i s rather u n s a t i s f a c t o r i l y , to say the l e a s t , due to i t s ambiguous and misleading wording. However, i t did provide that reserve lands were to be "conveyed" by the Province to the Dominion, i n tr u s t for the use and benefit of the Indians. In case of disagreement r e s p e c t i n g q u a n t i t y of land, a remedy was pr o v i d e d . The " a r b i t r a t i o n " procedure set out i n A r t i c l e 13 was never used because the federal and p r o v i n c i a l governments eventually reached a negotiated settlement. However, i t would be over 65 years before any "conveyance" as required by A r t i c l e 13 was effected. The reason that negotiations took so long are many and varied. However, i t may be generally explained as follows. Having agreed to convey lands for the use of the Indians, and give the federal government j u r i s d i c t i o n over those lands, the Province was determined to give up as l i t t l e land as possible. Crown land was valued as the key to prosperity, and jeal o u s l y guarded by the new province. The federal government on the other hand, was shocked when i t r e a l i z e d j u s t how greatly past c o l o n i a l p o l i c y d i f f e r e d from Indian reserve p o l i c y i n the rest of the country. The "ten acre per family" rule of allotment r e l i e d upon by the Province was f a r below what the f e d e r a l government c o n s i d e r e d to be a reasonable and j u s t allotment. As negotiations began, the two p a r t i e s were poles apart. I t seems obvious that the Dominion Government, at least, was unaware of the gulf that separated the two Indian p o l i c i e s when A r t i c l e 13 was written. I t has been suggested by one h i s t o r i a n that Joseph Trutch was personally responsible for the d e l i b e r a t e l y contentious and ambiguous language of the A r t i c l e . 1 1 Indian Reserve Commission 1875-1910 If i t was not c l e a r p r i o r to 1871 that past B r i t i s h Columbia Indian land p o l i c y was quite d i f f e r e n t from Dominion policy, i t quickly became apparent. The years immediately following Union were marked by a kind of "bidding" war between the province and the Dominion. The Dominion took the p o s i t i o n that reserves should be a l l o t t e d on the basis of eighty acres per family, while the province stuck to the "ten acre rule", eventually moving to twenty (for new reserves o n l y ) . 1 2 C a i l , 186. Ibid., 195. 13 F i n a l l y , another approach was suggested by Mr. William Duncan, a l a y missionary, with much experience i n Indian matters i n B r i t i s h Columbia. Duncan proposed that no fixe'd acreage be used when a l l o t t i n g reserves, but that each Indian nation should be dealt with separately according to i t s own p a r t i c u l a r needs. An Indian agent should be appointed to l i v e among each nation and gather the r e q u i r e d information. Duncan's suggestions also included^ the reduction of reserves where the acreage was found to be more than necessary. The P r o v i n c i a l Government adopted Duncan's views and passed them to Ottawa for c o n s i d e r a t i o n . 1 3 Duncan's suggestions ultimately formed the basis of agreement for the appointment of the f i r s t Indian Reserve Commission for B r i t i s h Columbia. I t was hoped that through the work of the Commission the Indian land question would be f i n a l l y s e t t l e d . The fe d e r a l government passed an Order i n council s e t t i n g out the terms of the agreement, and the province accepted the proposal i n a r e c i p r o c a l Order i n council on January 6, 1876. 1 4 "Report of the Government of B r i t i s h Columbia on the subject of Indian Reserves (Aug. 17, 1875)." B r i t i s h Columbia. L e g i s l a t i v e Assembly. Sessional Papers, 2nd P a r i . , 1st Sess. 1876. P r i v y C o u n c i l Order, Nov. 10, 1875, and B r i t i s h Columbia Order i n Council 1138, passed Jan. 6, 1876. The B r i t i s h Columbia Order i s reproduced i n "Papers Connected with the Indian Land Question", 160-163. 14 Under the terms of the agreement the Commissioners were to do the work of gathering information, rather than using Indian Agents, as suggested by Duncan. The notable features of the agreement were: 1) no f i x e d acreage was to be used by the Commissioners when determining reserve size; 2) a " l i b e r a l p o l i c y " was to be pursued i n reserving lands, and the amount of land should r e f l e c t the needs of each Nation based on t h e i r p a r t i c u l a r circumstances and economy. 3) r e s e r v e s were to be p r o p o r t i o n a t e i n s i z e to the population of each Nation, being increased or decreased p e r i o d i c a l l y . The extra land required would be taken from Crown lands and the excess would rev e r t to the province. 4) Portions of e x i s t i n g reserves that were not included i n the o f f i c i a l reserve as determined by the Commissioners were to be returned to P r o v i n c i a l control, upon payment of compensation for any improvements. The requirement that any land, from time to time deleted from a reserve should r e v e r t to the province, was l a t e r viewed as supporting the province's claim to a "reversionary i n t e r e s t " . The province s t e a d f a s t l y maintained, by i t s i n t e r p r e t a t i o n of the Terms of Union, that any lands conveyed to the Dominion for the use and benefit of the Indians would revert to the province should they not be a c t u a l l y r e q u i r e d by the Indians. The federal government's proposals of November 10, 1875 have been interpreted by some writers to be a recognition of the province's reversionary i n t e r e s t . 1 5 Although i t i s doubtful that the federal government viewed t h i s part of the agreement i n the same way as the Province, the wording of the agreement encouraged the province to continue i t s claim. The "reversionary i n t e r e s t " and the problems i t caused w i l l be discussed l a t e r , i n more d e t a i l . The Indian Reserve Commission began i t s work i n 1876 as a j o i n t commission with three members, and continued u n t i l 1910. The Dominion government appointed Alexander Anderson as t h e i r representative to the Commission, while B r i t i s h Columbia appointed Archibald McKinlay. G i l b e r t Malcolm Sproat was chosen to be the chairman of the Joint Commission. The t r i p a r t i t e Commission was short l i v e d because the p r o v i n c i a l government considered i t s operations to be too co s t l y . I t was dissolved at the end of 1877, but G i l b e r t Sproat continued as sole Commissioner u n t i l March, 1880. Sproat resigned amidst controversy and was succeeded by David Borthwick "The Pr o v i n c i a l Reversionary Interest i n I n d i a n R e s e r v e s - A Unique P r o p o s i t i o n , " (unpublished, 1975), Department of Indian A f f a i r s and Northern Development Library Services, Ottawa. Peter O'Reilly, who served from 1880 to 1898. A.W. Vowell, the f e d e r a l Indian Superintendant f o r B r i t i s h Columbia, served as reserve Commissioner from 1898 to 1910. The work of the f i r s t Commission was very controversial, to say the l e a s t . The commissioners were subject to a great deal of c o n f l i c t i n g pressures from the Province, the Dominion and the Indians. The Commission was to meet with the various Indian Nations i n the Province and ascertain the appropriate reserve sizes according to the terms of reference i n the agreement of 1875. N o t i f i c a t i o n of the exact s i z e and l o c a t i o n of a l l o t t e d reserves was forwarded to V i c t o r i a , where i t was to be confirmed by p u b l i c a t i o n i n the Gazette. 1 6 It was at t h i s f i n a l stage where the commission's work bogged down. In fact, none of the reserves a l l o t t e d by eit h e r the j o i n t commissioners, or G i l b e r t Sproat (as sole commissioner) were approved and gazetted. The province complained about the extravagance of the early commissioners and used various excuses to withhold o f f i c i a l approval. 1 7 I t i s s t i l l a matter of some doubt as to whether the reserves a l l o t t e d by the f i r s t J o i n t Commission needed to be formally approved by the p r o v i n c i a l government. Certainly, publication i n the Gazette would provide useful notice that the described lands were reserved from settlement, but i t was not a prerequisite to 1 6 C a i l , 213. 1 7 C a i l , 224, and also Fisher, 197. 17 the establishment of a reserve by the Joint Commission. According to the agreement between the two governments, the Commissioners were to " f i x and determine" the "extent and l o c a l i t y " of each reserve " a f t e r f u l l enquiry on the spot" 1 8 There was no mention of any further approval or r a t i f i c a t i o n that was necessary by either l e v e l of government. Later, when the Joint Commission was dissolved and replaced by a single Commissioner, a r a t i f i c a t i o n procedure was agreed upon. Just p r i o r to the d i s s o l u t i o n of the J o i n t Commission the p r o v i n c i a l government made a proposal designed to reduce the cost of the allotment procedure. It was suggested that the Commission confine i t s work to the more s e t t l e d areas of the province where the settlement of the Indian reserve issue was most urgent. Once work had been done i n these areas, and the Commission dissolved, the Superintendent of Indian A f f a i r s would a l l o t lands to t r i b e s i n remote areas. Those allotments would be subject to the approval of the Chief Commissioner of Lands and Works, and i n case of disagreement the f i n a l a r b i t e r would be the B r i t i s h Columbia Supreme Court. 1 9 The Joint Commission was dissolved i n 1877 but the idea of allotments by the Superintendent of Indian A f f a i r s was never 1 8 B r i t i s h Columbia Order i n Council No. 1138, January 6, 1876. 1 9 B r i t i s h Columbia Order i n Council 279, January 30, 1877; Dominion Order i n Council, February 23, 1877. 18 r e a l i z e d . Instead, G i l b e r t Sproat c a r r i e d on the work of a l l o t t i n g reserves as sole Commissioner. His allotments were subject to the approval of the Commissioner of Lands and Works with a r i g h t of appeal to the Supreme Court of B r i t i s h Columbia. As previously noted, none of the reserves a l l o t t e d by Sproat or the Joint Commission were approved or gazetted by the province. Neither was there any appeal taken to the Supreme Court over any of Sproat's allotments. Perhaps the lack of protest by the federal government may be explained by a desire to negotiate a settlement of the reserve issue. Instead of resorting to the agreed route of appeal i t was ju s t as expedient to carry on with another Commissioner. Af t e r Sproat resigned, under pressure, i n 1880, he was replaced by Peter O'Reilly. Commissioner O'Reilly was the brother-in-law of Joseph Trutch. With t h i s appointment, a new policy, more suited to p r o v i n c i a l views was established. The decisions of the new reserve commissioner were to be subject to the approval of the Indian Superintendent and the Chief Commissioner of Lands and Works. Any disputes were to be s e t t l e d by the Lieutenant Governor. 2 0 O'Reilly was the perfect man from the p r o v i n c i a l point of view, and consequently i n spite of the new approval requirements, the work of the Indian Reserve Commission moved along comparatively quickly. Much of his time was spent r e v i s i n g Fisher, 199, and see Privy Council Order No. 1334, July 19, 1880. (reducing) reserves a l l o t t e d by Sproat. 2 1 By 1885, 621 reserves had been a l l o t t e d , 239 had been approved by the Province ( a l l of these were "O'Reilly reserves") and 477 had been surveyed. 2 2 However, by 1894 federal funds for surveys were exhausted, and O'Reilly had to discharge the survey crews. 2 3 Apparently the disagreements over e a r l i e r reserve allotments were overcome by the subsequent work of Commissioner O'Reilly. However the e a r l i e r allotments may have some si g n i f i c a n c e when determining the issue of when a p a r t i c u l a r reserve became "lands r e s e r v e d f o r the I n d i a n s " , w i t h i n t h e meaning of the C o n s i t i t u t i o n . Although a r e s e r v e a l l o t t e d by the J o i n t Commission may not have been formally approved u n t i l O'Reilly's time, i t might s t i l l be considered to have been an Indian reserve from the date of the e a r l i e r allotment. The precise time when a reserve became "lands reserved for the Indians" i s relevant to the claim of federal l e g i s l a t i v e j u r i s d i c t i o n over the land. Since lands reserved f o r the Indians f a l l under exclusive federal j u r i s d i c t i o n , p r o v i n c i a l laws which would otherwise a f f e c t those lands do not apply. This issue w i l l be discussed further i n another part of t h i s paper. 2 1 2 2 2 3 Fisher, 200-201. C a i l , 224. Ibid., 225. 20 O'Reilly was succeeded i n 1898 by A.W. Vowell. The Laurier government was i n power i n Ottawa and r e l a t i o n s between the f e d e r a l and p r o v i n c i a l governments became strained again. In a d d i t i o n to the usual contentious issue of reserve si z e , the Province re-affirmed i t s "reversionary i n t e r e s t " i n a l l reserve lands. The Indians were pressing the issue of aboriginal t i t l e and the federal government was prepared to take a l l issues to the courts for settlement. On February 26, 1907 the p r o v i n c i a l government passed an Order i n council proclaiming i t s reversionary i n t e r e s t , and recommending action to re-claim any portions of reserve land that had been alienated pursuant to the Indian Act. 2 4 The Federal Government r e p l i e d with i t s own Order which rejected the p r o v i n c i a l position and proposed to have the issue s e t t l e d by the c o u r t s . 2 5 The Province had also suggested that a conference was necessary to re-adjust the reserves which had been a l l o t t e d to expedite the return of any "surplus" land to p r o v i n c i a l c o n t r o l . The Dominion declined t h i s o f f e r , p r e f e r r i n g to wait u n t i l the contentious issues - aboriginal t i t l e , reversionary i n t e r e s t , reserve s i z e -could be s e t t l e d by the c o u r t s . 2 6 2 4 2 5 2 6 B r i t i s h Columbia Order i n Council No. 125, Feb. 26, 1907. Privy Council Order No. 2739, Dec. 19, 1907. Ibid. 21 The McKenna-McBride Agreement and Royal Commission 1913-1916 The differences between the two governments were not resolved u n t i l the defeat of the Laurier government i n 1911, and the return of a Conservative government, which adopted a more c o n c i l i a t o r y attitude toward B r i t i s h Columbia. The actual work of the Indian Reserve Commission had come to a halt i n 1908 due to the strained r e l a t i o n s between V i c t o r i a and Ottawa, and when Vowell r e t i r e d i n 1910 the p o s i t i o n was abandoned. The new government i n Ottawa appointed Dr. J.A.S. McKenna as Special Commissioner, i n May, 1912, to investigate the issues and negotiate a settlement of the Indian land question i n B r i t i s h Columbia. The three outstanding m a t t e r s t o be r e s o l v e d were: (1) a b o r i g i n a l t i t l e , (2) reversionary i n t e r e s t , (3) reserve s i z e . McKenna agreed to defer re s o l u t i o n of the aboriginal t i t l e issue, thus paving the way to agreement on the other matters. As a r e s u l t of n e g o t i a t i o n s between McKenna and Premier McBride, the "McKenna-McBride Agreement" was signed on September 24, 1912. 2 7 It provided for the appointment of a Royal Commission to adjust the acreage of a l l o t t e d reserves and create new reserves where necessary. In turn, the province agreed to l e g a l l y reserve any additional lands and convey a l l reserve lands as f i n a l l y fixed The. text of t h i s agreement may be found i n the Report  of the Royal Commission on Indian A f f a i r s f o r the  Province of B r i t i s h Columbia ( V i c t o r i a : Acme Press, 1916) Vol. I, 10-11. 22 by the Commission. The p r o v i n c e agreed to convey t h e i r reversionary i n t e r e s t , except i n the case of any Band which might become ext i n c t . Otherwise, the Dominion was free to deal with reserve lands as they saw f i t , for the benefit of the Indians. The McKenna-McBride Agreement was accepted by both governments, subject to the r i g h t of each to approve any report submitted by the Royal Commission. 2 8 The Royal Commission began i t s work i n 1913 and completed i t s report i n 1916. During the course of the Commission's work, 1,000 e x i s t i n g r e s e r v e s ( a l l o t t e d by the v a r i o u s Indian Reserve Commissions, 1876 - 1910) were reviewed and adjusted, and new reserves were recommended.29 The Ind i a n A f f a i r s Settlement Acts and the Ditchburn-Clark  Agreement In order to implement the Commission's Report, both governments passed l e g i s l a t i o n ( v i r t u a l l y i d e n t i c a l i n t h e i r terms) empowering the E x e c u t i v e to do a l l a c t s necessary to c a r r y out the recommendations of the Royal Commission, and i f necessary, to Dominion Privy Council Order No. 3277, November 27, 1912; B r i t i s h Columbia Order i n Council 1341, December 18, 1912. C a i l , 237. 23 enter into further negotiations on the Indian land question. 3 0 The Commission's Report was ultimately reviewed and amended by W.E. Ditchburn (Dominion) and Major J.W. Clark (B.C.) between the years 1920 and 1923. The amendments were not extensive. Several inaccuracies were discovered i n the o r i g i n a l report, and these were r e c t i f i e d . The Report of the Royal Commission, as amended by Ditchburn and Clark was f i n a l l y confirmed by r e c i p r o c a l Orders-in-C o u n c i l . 3 1 The Dominion Order confirmed the Report with the exception of cut-offs recommended i n the Railway Belt. 3 2 I t was mutually agreed that the issue of Indian lands i n B.C. covered by Treaty No. 8 (which lands were dealt with i n a separate Interim Report (No. 91) of the Commission) would be s e t t l e d at a l a t e r date. F i n a l l y , i t was agreed that upon a l l lands being duly surveyed, conveyance would be effected i n accordance with clause 7 of the McKenna-McBride Agreement. Scott-Cathcart Agreement The l e g a l surveys for the reserves a l l o t t e d or confirmed by the Royal Commission would take several years to complete. In the 3 0 B r i t i s h Columbia Indian Land Settlement Act, S.C. 1920, c.51, and Indian A f f a i r s Settlement Act, S.B.C. 1919, c.32, sometimes h e r e i n a f t e r r e f e r r e d to as the "Settlement Acts". 3 1 Privy Council Order No. 1265, July 19, 1924; B r i t i s h Columbia Order i n Council No. 911, July 26, 1923. 32 privy Council Order No. 1265, July 19, 1924. 24 meantime the province and Dominion continued negotiations on another i s s u e which had plagued the two governments since Confederation - the problem of the Railway Belt and Peace River Block lands. Following a 1927 Royal Commission in v e s t i g a t i o n into the problems caused by these f e d e r a l l y administered areas i n B r i t i s h Columbia, i t was agreed that a l l unalienated lands i n these areas would be ret u r n e d to the province. This was eventually done i n 1930. 3 3 However, before the lands i n the Railway Belt and Peace River Block could be re-conveyed to the province, arrangements had to be made regarding the Indian r e s e r v e s contained w i t h i n those areas. The Scott-Cathcart Agreement, of March 22, 1929 s e t t l e d a l l Indian land issues that would be affected by the transfer, and also addressed the issue of conveyance of a l l other reserve lands. The Scott-Cathcart Agreement i s a document of great importance i n the hi s t o r y of Indian reserves i n B r i t i s h Columbia. Together with the r e c i p r o c a l Orders-in-Council which approved i t , the agreement dealt with the "tenure and mode of administration" of Indian reserves both inside and outside the Railway Belt and Peace River Block, and thereby created a c e r t a i n uniformity for most of the reserves i n the province. The C o n s t i t u t i o n Act, 1930, 20 - 21 Geo. V, c.26 (U.K.), reprinted i n R.S.C. 1970, Appendix II, at 365. The memorandum of agreement between the Dominion and B r i t i s h Columbia which pertains to the re-transfer of fe d e r a l l y held lands i n B.C. i s embodied i n the Act, at p. 392. 25 The main provisions of the Agreement are as follows: 1) The form of the conveyance for lands outside the Railway Belt and Peace River Block areas was agreed upon and detailed i n Schedule A, annexed to the Agreement. This form eventually became the form of conveyance used i n 0/C 1036. 2) The Indian reserves inside the Railway Belt and Peace River Block were to be governed by the terms of the conveyance of land outside those areas. That i s , the "tenure and mode of administration" of Railway Belt reserves was to be governed by the terms set out i n Schedule A. 3) The terms of the McKenna-McBride Agreement regarding the d i s p o s i t i o n of "cut-off" lands were amended, allowing the lands to be eit h e r subdivided or sold "en bloc". 4) Any additional lands required for the Indians, not provided for by the McKenna-McBride Commission were to be granted by the province "at a reduced or nominal pr i c e " and would be subject to revert to the province i f the Band should become extinct. 5) Indian claims to the foreshore of t h e i r reserves were l e f t to the "invariable p o l i c y of the Province to consider the rig h t s 26 5) of the upland owners," which " f u l l y protected the ri g h t s of the Indians i n the same way as other upland owners or occupiers of land." 6) I t was recommended that the Province repeal that section of the Land R e g i s t r y Act (R.S.B.C. 1924, s.47) which p r o h i b i t e d r e g i s t r a t i o n of any i n t e r e s t i n land derived from a Dominion patent to Indian reserve lands, without the consent of the p r o v i n c i a l Executive. Perhaps the most important feature of the Scott-Cathcart Agreement was the agreement on the form of conveyance of reserve lands outside the Railway Belt. The reserves inside the Railway B e l t d i d not have to be conveyed by the province, since the railway lands had already passed to the Dominion under the Terms of Union ( a r t i c l e 11) and a formal grant by statute i n 1883. 3 4 An Act Relating to the Island Railway, the Graving Dock  and Railway Lands of the Province, S.B.C. 1884, c.14. There has been some dispute and uncertainty i n the case law as to the exact date that the Railway Belt was a c t u a l l y transferred, or taken out of the control of the B.C. Government. The l e g i s l a t i o n was based on a Dominion/Provincial agreement which was to be r a t i f i e d by both the B.C. l e g i s l a t u r e and the federal Parliament. The P r o v i n c i a l Statute (Dec. 19, 1883) provided the p r o v i n c i a l r a t i f i c a t i o n and the Dominion passed a s i m i l a r Act to r a t i f y the agreement on A p r i l 19, 1884 (See S.C. 1884 c.6). Without deciding the point, the Supreme Court of Canada indicated that the transfer was not complete u n t i l the passage of the Dominion l e g i s l a t i o n . However there was no unanimity among the judges on t h i s point - see for example The Queen v. Farwell (1887), 14 S.C.R. 392 at 417 and 420. In George v. M i t c h e l l (1912), 3 W.W.R. 162, the B.C. Court of Appeal held that the date of the Federal Act was 27 Nevertheless, the Dominion, by t h i s agreement imposed the terms of the p r o v i n c i a l "conveyance" of Indian reserves upon reserve lands which they already owned. This was unfortunate for the bands who had reserves i n the Belt, because the Dominion already owned the lands comprising the "Railway B e l t Indian reserves" under a v i r t u a l l y unrestricted transfer from the province. In 1929 the Dominion agreed to give the province c e r t a i n r i g h t s over these lands such as are contained i n the provisos of 0/C 1036. Perhaps the par t i e s had only uniformity i n mind, but i t i s l i k e l y that the Dominion made concessions on the Railway Belt reserves i n order to get concessions from the province on other reserves and, simply, to get on with the transfer. The Scott-Cathcart Agreement was formally approved by Privy Council Order No. 208, 3 5 i n 1930. In the following year, the agreement concerning the re-transfer of the Railway Belt and Peace River Block was signed, and became part of the Constitution Act, 1930. 3 6 By a r t i c l e 13 of the re-transfer agreement, a l l Indian reserves i n the subject areas were excluded from the re-transfer, c o n c l u s i v e of the t r a n s f e r . P r i v y C o u n c i l Order No. 208, February 3, 1930, see appendix. 20-21 George V, C.26 (U.K.), i n R.S.C. 1970, Appendix II, 365. 28 but the terms and conditions i n the Scott-Cathcart d r a f t form of conveyance (as set out i n P.C. 208) were made applicable to them. The A r t i c l e reads as follows: 13. Nothing i n t h i s agreement s h a l l extend to the lands included within Indian reserves i n the Railway Belt and the Peace River Block, but the said reserves s h a l l continue to be vested i n Canada i n t r u s t f o r the Indians on the terms and conditions set out i n a c e r t a i n order of the Governor General of Canada i n Council approved on the 3rd day of February, 1930 (P.C. 208). 3 7 Thus, the "tenure and mode of a d m i n i s t r a t i o n " of Indian reserves i n the Railway Belt, as set out i n P.C. 208 (and i n terms i d e n t i c a l t o 0/C 1036) became " c o n s t i t u t i o n a l i z e d " , i n the C o n s t i t u t i o n Act, 1930. The s i g n i f i c a n c e of t h i s w i l l be discussed l a t e r . For now i t i s important to remember that the Railway Belt reserves were d i f f e r e n t from other reserves i n that they were not "conveyed" by the province. The Dominion had previously acquired the ri g h t s of ownership over these lands due to the agreement i n A r t i c l e 11 of the Terms of Union and the subsequent grant of the Railway Belt and Peace River Block by statute i n 1883. Therefore, the right s that the province regained over these lands, by vi r t u e of the terms and conditions i n the "form of conveyance" set out i n P.C. 208, were acquired by agreement between the parties, and can not be viewed as rights held back by the province as a "grantor" of l a n d s . 3 8 Because of 3 7 3 8 Ibid., 395. The s i g n i f i c a n c e of t h i s w i l l be noted i n l a t e r chapters. 29 t h i s , and due to the i n c l u s i o n of P.C. 208, by reference, i n the Constitution, the "Railway Belt reserves" continue to be i n a d i f f e r e n t l e g a l p o s i t i o n than other Indian reserves i n the province. The Settlement of the Form of Conveyance - 0/C 1036 I t took a long time f o r the p r o v i n c i a l and the f e d e r a l governments to agree upon the form of conveyance of Indian reserves. The McKenna-McBride Report, as amended by Ditchburn and Clark, had been approved (subject to the completion of surveys) by both governments by 1924. 3 9 I t was not u n t i l 1929 that the Scott-Cathcart form was agreed upon, and subsequent to that, further p r o v i n c i a l wrangling over form delayed the transfer of reserves outside the Railway Belt u n t i l July 29, 1938. David Borthwick has written a b r i e f , but well documented hi s t o r y of the negotiations leading up to the passage of 0/C 1036. Borthwick's h i s t o r y refers t o v a r i o u s correspondence between f e d e r a l and p r o v i n c i a l a u t h o r i t i e s i n the years l e a d i n g up to the Scott-Cathcart Agreement. 4 0 Privy Council Order No. 1265, July 19, 1924: B r i t i s h Columbia Order i n Council 911, July 26, 1923. David Borthwick, "The B i r t h of B.C. Order i n Council 1036" (unpublished, 1975), Department of Indian A f f a i r s and Northern Development Library Services, Ottawa. The correspondence r e f e r r e d to i n Borthwick's paper are attached to i t as "exhibits". 30 In 1926, T.D. P a t u l l o , then M i n i s t e r of lands for B r i t i s h Columbia, provided Duncan Scott (Deputy Superintendent of Indian A f f a i r s ) with a copy of the standard p r o v i n c i a l Crown grant form, which, the province proposed, would govern the transfer of Indian r e s e r v e s . 4 1 This was rejected by Scott, who requested a straight, unrestricted t r a n s f e r . 4 2 This counter-proposal was rejected i n turn by Patullo, who i n s i s t e d on the reservations contained i n the standard g r a n t . 4 3 He f e l t that such reservations were necessary i n the public i n t e r e s t . Scott stood his ground on the issue and refused to waive any r i g h t s to which the Indians were e n t i t l e d by v i r t u e of the McKenna-McBride Agreement and the Terms of Union. 4 4 Later, Scott s p e c i f i c a l l y noted that c e r t a i n reservations i n the standard Crown grant would give the province a voice i n the c o n t r o l and management of Indian r e s e r v e s which would be u n c o n s t i t u t i o n a l . 4 5 This i s an important point, and one which w i l l be developed further i n another chapter. I t i s i n t e r e s t i n g to note that, early i n the negotiations, the Dominion foresaw the p o t e n t i a l for c o n f l i c t between the form of conveyance and the d i v i s i o n of l e g i s l a t i v e powers under the Constitution. Borthwick, "Order i n Council 1036", exhibits A, B. Ibid., exhibit C. Ibid., exhibit D. Ibid., exhibit E. Ibid., exhibit L. 4 1 4 2 4 3 4 4 4 5 31 T h e r e was a b r e a k i n t h e c o r r e s p o n d e n c e w h i l e P a t u l l o s o u g h t l e g a l a d v i c e f r o m t h e O f f i c e o f t h e A t t o r n e y G e n e r a l - P a t u l l o ' s memos t o t h e A t t o r n e y G e n e r a l a r e o f some i n t e r e s t b e c a u s e i n them he c o n f i d e d t h a t t h e p r o v i n c e may be w i l l i n g t o p a y c o m p e n s a t i o n f o r some o f t h e r i g h t s r e s e r v e d i n t h e s t a n d a r d g r a n t . 4 6 What i s more i n t e r e s t i n g i s t h e r e t u r n memorandum f r o m t h e A t t o r n e y -G e n e r a l ' s D e p a r t m e n t . The l e g a l a d v i s e r s f e l t t h a t t h e p r o v i n c e was o n s h a k y g r o u n d i n d e m a n d i n g t h e r e s e r v a t i o n s f r o m t h e g r a n t , s i n c e t h a t was c o n t r a r y t o p r e v i o u s n e g o t i a t i o n s . I n p a r t i c u l a r , t h e r e s e r v a t i o n s w e r e s e e n t o be c o n t r a r y t o t h e Terms o f U n i o n a n d t h e M c K e n n a - M c B r i d e A g r e e m e n t . N e v e r t h e l e s s , a n a r g u m e n t was p u t f o r w a r d t o s u p p o r t t h e p r o v i n c i a l p o s i t i o n . I t was s u g g e s t e d t h a t b e c a u s e t h e P r o v i n c e h a d b e e n a s k e d t o c o n v e y i t s " r e v e r s i o n a r y i n t e r e s t " , s o m e t h i n g w h i c h t h e Terms o f U n i o n d i d n o t r e q u i r e , i t c o u l d p r o p e r l y d e m a nd c o n c e s s i o n s f r o m t h e D o m i n i o n . 4 7 T h i s was a n i n g e n i o u s a r g u m e n t c o n s i d e r i n g t h a t t h e T e r m s o f U n i o n d i d n o t m e n t i o n a n y " r e v e r s i o n a r y i n t e r e s t " . I n d e e d , A r t i c l e 13 r e q u i r e d a " c o n v e y a n c e " o f l a n d , a t e r m w h i c h i s i n d i c a t i v e o f a c o m p l e t e t r a n s f e r o f t h e p r o v i n c i a l i n t e r e s t . The t w o p a r t i e s c o n t i n u e d t o b i c k e r o v e r t h e f o r m o f c o n v e y a n c e u n t i l t h e S c o t t - C a t h c a r t A g r e e m e n t was u l t i m a t e l y s i g n e d o n M a r c h 22, 1929. The f o r m o f c o n v e y a n c e was i n c l u d e d a s S c h e d u l e A o f t h e a g r e e m e n t , a n d i t was a p p r o v e d b y P.C. 208 ( F e b . 3, 1930) and 4 6 I b i d . , e x h i b i t M. 4 7 I b i d . , e x h i b i t 0. 32 B.C. 0/C 1151 (September 24, 1930). 4 8 The Scott-Cathcart form of tenure eventually became 0/C 1036. Order i n Council 1036 was very s i m i l a r to the standard Crown Grant of the day. However there were important differences. There i s p rovision for the Department of Indian A f f a i r s to be n o t i f i e d of any proposed works referred to i n the provisos. Perhaps t h i s was i n s e r t e d t o a l l a y the Dominion's concerns over the c o n s t i t u t i o n a l i t y of u n i l a t e r a l p r o v i n c i a l interference i n the administration of Indian reserves. The usual provisions i n the standard grant reserving minerals, petroleum and natural gas were omitted, along with the provisions c a l l i n g for a re-conveyance of one quarter of any sub-divided lands. Compensation was also s p e c i f i c a l l y provided f o r road b u i l d i n g materials taken from reserves for use outside the r e s e r v e s . 4 9 I t i s not c e r t a i n how the exact form of conveyance was f i n a l l y agreed upon. Perhaps, the parties were under pressure to expedite an agreement on t h i s matter due to i t s r e l a t i o n s h i p with the Railway Bel t re-transfer agreement. I t would also appear that the " n i t t y - g r i t t y " negotiations immediately p r i o r to the signing of the agreement were conducted i n a c o n f i d e n t i a l manner that has l e f t few d e t a i l s recorded. However, the correspondence provides a 4 8 The Scott-Cathcart Agreement was attached as Schedule 4 to Privy Council Order No. 208. 4 9 The terms of the Order i n Council w i l l be analyzed i n Chapter 4. 33 pretty good picture of the process of negotiation. The Scott-Cathcart form of conveyance was a compromise of the former extreme positions, but one which highly favoured p r o v i n c i a l i n t e r e s t s . Even though the form of conveyance for Indian reserves outside the Railway Belt had been agreed upon, the p r o v i n c i a l government continued to drag i t s heels on the formal transfer of reserves. This s t a l l i n g by the province was made possible by continued bickering over the o f f i c i a l surveys of reserves, and the old issue of reserve s i z e . At one point the province re-opened the issues of "cut-offs" i n the Railway Belt and the p r o v i n c i a l "reversionary i n t e r e s t " . 5 0 In conjunction with these claims, the province attempted to re-negotiate the form of conveyance, i n order to strengthen t h e i r water righ t s and mineral r i g h t s i n reserve lands. The newly proposed form of conveyance was r e j e c t e d by the Dominion, and the Indian reserves outside the Railway Belt and Peace River Block were f i n a l l y conveyed by 0/C 1036, on July 29 1938. The form of t h i s "conveyance" i s i d e n t i c a l to the draft form agreed upon by Messrs. Scott and Cathcart, i n 1929. The P r o v i n c i a l Claim to a "Reversionary Interest" As previously noted, the p r o v i n c i a l government was of the view that the Terms of Union did not require them to "convey" a 5 0 Borthwick, "Order i n Council 1036", 5. 34 complete i n t e r e s t (fee simple) i n the Indian reserve l a n d s . 5 1 According to t h e i r i n t e r p r e t a t i o n , they were only obliged to transfer an i n t e r e s t of "use and benefit" over the lands while r e t a i n i n g the underlying t i t l e . In the event that the Indians no longer r e q u i r e d the land f o r t h e i r "use and b e n e f i t " - for example, i n the case of a surrender for sale - the land would "revert" to p r o v i n c i a l control. The Province found support for t h e i r p o s i t i o n i n the o r d e r s - i n - c o u n c i l which established the o r i g i n a l J o i n t Commission on Indian reserves. According to p r o v i n c i a l 0/C 1138, where Indian reserves were found to be i n excess of the Band's needs, that excess would "revert" to the province. I t might be argued that the Dominion approval of t h i s reserve settlement process amounted to an acceptance of the p r o v i n c i a l c l a i m to a r e v e r s i o n a r y i n t e r e s t . However, the reference to a reversion i n favour of the Province must be viewed i n the context of the entire agreement. The Joint Commission was established to s e t t l e the s i z e of Indian reserves. Some reserves had been established p r i o r to 1871 but none had been conveyed to the federal government pursuant to the Terms of Union. It i s l o g i c a l that any lands which were not included i n a reserve, as approved by the Joint Commission, would not need to be "conveyed" by the Province. The reference to a reversion i n favour of the Province may be seen as an agreement by the federal government not Borthwick, "Reversionary Interest", 3. 35 to claim any i n t e r e s t i n p r o v i n c i a l land (under A r t i c l e 13 of the Terms of the Union) that was not ultimately set apart as an Indian reserve. The o r i g i n a l agreement regarding the establishment of Indian reserves also contemplated a continuous adjustment of reserve size based on population. Any land i n excess of a band's need was to revert to the province, from time to time depending on updated data. This feature of the agreement was perhaps the strongest i n d i c a t i o n of a continuing i n t e r e s t held by the Crown i n r i g h t of the province. However, the c o r o l l a r y to that provision was that any e x t r a land r e q u i r e d i n the future would be taken from p r o v i n c i a l Crown lands. If the Province planned to r e l y on the reversionary aspect of the agreement they would also be bound to give up more land i f and when i t was necessary. I t i s doubtful that p r o v i n c i a l authorities seriously considered giving e f f e c t to the "giving" side of the agreement, ad infinitum. Their focus on the "taking" side of the agreement may be more e a s i l y understood, e s p e c i a l l y since the native population was i n d r a s t i c decline due to disease arid other s o c i o l o g i c a l f a c t o r s , at the time the agreement was negotiated. In support of i t s reversionary claim, the province could argue that the i n t e r e s t s that were to be conveyed pursuant to A r t i c l e 13 were only those i n t e r e s t s i n the land that were necessary for the use and benefit of the Indians - a l i m i t e d usufructuary i n t e r e s t . Such a l i m i t e d i n t e r e s t might not include mineral rig h t s nor the r i g h t to s e l l reserve lands for development purposes. A limited i n t e r e s t could r e s t r i c t the ways i n which Indian Bands might develop t h e i r lands. For example, i f a band sought to surrender land, mineral or timber r i g h t s i n exchange for compensation the usufructuary i n t e r e s t would cease to e x i s t immediately upon surrender. The underlying p r o v i n c i a l i n t e r e s t would become unburdened, and hence the province would acquire a l l of the i n t e r e s t i n the surrendered lands. The federal government could not dispose of any i n t e r e s t for the benefit of the band. This was i n essence the s i t u a t i o n i n Ontario, as held by the Privy Council i n St. Catherine's M i l l i n g and Lumber Co. v. The Queen. 5 2 In order to f u l l y develop and manage lands for the benefit of Indian bands, the federal government would require a proprietary i n t e r e s t equivalent to a fee simple. The early p o s i t i o n taken by the Province was that such an i n t e r e s t was never intended to be tra n s f e r r e d . However, t h i s p o s i t i o n may be challenged by the P r o v i n c i a l Government's own statements written i n defence of t h e i r Indian p o l i c y . (1888) 14 App. Cas. 46. 37 In h i s 1875 Report on Indian r e s e r v e s , 5 3 Attorney General Walkem explained and defended the colony's past p o l i c y regarding Indians and reserves. Walkem noted that past c o l o n i a l p o l i c y was aimed at t r e a t i n g the Indians as fellow' s u b j e c t s . 5 4 In the report, Walkem stated the r e a l issue between the province and the Dominion as, "what assistance i n land s h a l l B r i t i s h Columbia now  give to enable the Dominion to carry out her Indian p o l i c y ? " 5 5 In answering t h i s question, the Attorney General noted the d i f f e r e n t pursuits of the Indians of B r i t i s h Columbia and suggested that the land to be provided ought to enhance those p u r s u i t s . 5 6 He divided the Indians into three general categories: (1) fishermen and hunters; (2) stock breeders and farmers; and (3) labourers. He then considered what land was necessary for each group. It i s i n t e r e s t i n g to note his comments with respect to fishermen: No good reason e x i s t s why " f i s h e r i e s , " such as those e s t a b l i s h e d by our merchants... should not be erected i n suitable places for the benefit of the Indians, and be i n time p r o f i t a b l y controlled and conducted by themselves...The establishment of lumber m i l l s and other industries would unquestionably follow success i n t h i s d i r e c t i o n . 5 7 "Report of the Government of B r i t i s h Columbia on the S u b j e c t of I n d i a n Reserves", B r i t i s h Columbia, L e g i s l a t i v e Assembly, Sessional Papers, 2d P a r i . , 1st sess., 1876, 57. Ibid., 60. Ibid., 58. Ibid., 63. Ibid., 63-64. 5 3 5 4 5 5 5 6 5 7 3 8 In the preceding comments, there i s evidence that part of B r i t i s h Columbia's Indian p o l i c y was to integrate the Indians into white society by developing t h e i r t r a d i t i o n a l s k i l l s and pursuits. Such land as was necessary for t h i s goal would be a l l o t t e d to the Indians. I t should also be remembered that early on, Governor Douglas foresaw a system whereby unused Indian lands might be leased, with the proceeds directed to the maintenance of the Band. Ea r l y B r i t i s h Columbia Indian p o l i c y was perhaps not based on p r i n c i p l e s of equality. It may be more properly viewed as a p o l i c y of integration and assimilation. On either view of the basis for the p o l i c y as espoused by Walkem, the Indians, or t h e i r "trustee", would need at least as f u l l an i n t e r e s t i n t h e i r land as white s e t t l e r s enjoyed - a fee simple i n t e r e s t . The reference to Indians eventually founding successful industries out of t h e i r t r a d i t i o n a l s k i l l s and land base i s consistent with an intention to grant f i s h e r i e s , timber, water, and mineral r i g h t s . Indeed, successive reserve Commissions routinely reserved water rights, f i s h e r i e s and s p e c i f i c lands for timber and f i s h i n g stations. Walkem's report was probably written with a view to show the past p o l i c y as enlightened and commendable. But even i f one disregards the puffery, the description of p o l i c y that remains shows the necessity of bestowing a broad i n t e r e s t i n land i n trust for the use and benefit of the Indians i n order to e f f e c t i t s purpose. 39 P r i o r to the resolution of the reversion issue, the province enacted l e g i s l a t i o n to support t h e i r claim. In 1899 the province amended the se c t i o n of the Land Act, which provided f o r the reservation of lands for the purpose of conveying them to the Dominion for the use and benefit of the Indians, by adding the words, and i n t r u s t to re-convey the same to the P r o v i n c i a l Government i n case such lands ceased to be used by such Indians; 5 8 The 1908 Land Act provided that: It s h a l l be lawful for the Lieutenant-Governor i n Council to, at any time, grant, convey, quit-claim, s e l l or dispose of, on such terms as may be deemed advisable the i n t e r e s t of the Province, r e v e r s i o n a r y or otherwise i n any Indian reserve, or any portion thereof... 5 9 This section was c a r r i e d forward i n subsequent editions of the Revised Statutes of B r i t i s h Columbia, u n t i l i t was repealed i n 1970. In conjunction with these enactments, the province amended the Land Registry Act, i n 1910, to proh i b i t the r e g i s t r a t i o n (without the consent of the Lieutenant-Governor) of any t i t l e deriving from the Dominion which formed part of an Indian r e s e r v e . 6 0 As noted 5 8 5 9 6 0 S.B.C. 1899, c. 38, s. 9. S.B.C. 1908, c.30, s.80. S.B.C. 1910, c.27, s.2. 40 e a r l i e r , t h i s section was repealed, following the recommendations i n the Scott-Cathcart Agreement of 1929. 6 1 The province did, on occasion, s e l l i t s reversionary inte r e s t , and d i d sanction the r e g i s t r a t i o n of Dominion patents to reserve lands, sometimes using a Crown grant, and sometimes using an Order i n c o u n c i l . 6 2 The l e g i s l a t i v e a c t i v i t y had both r h e t o r i c a l and p r a c t i c a l purposes. The province could not, by u n i l a t e r a l l e g i s l a t i o n bind the Dominion to re-convey land that i t held. However, the p r a c t i c a l e f f e c t of the l e g i s l a t i o n was that a holder of a Dominion patent to reserve lands would be unable to r e g i s t e r his i n t e r e s t without the sanction of the p r o v i n c i a l Executive. As w e l l , the sale of the reversionary i n t e r e s t would quiet any p r o v i n c i a l claim against a Dominion patentee. Whether or not the p r o v i n c i a l claim to a r e v e r s i o n a r y i n t e r e s t was v a l i d , the l e g i s l a t i o n served the p r a c t i c a l purpose of forcing purchasers of surrendered Indian lands to also pay for the p r o v i n c i a l i n t e r e s t . The province persisted i n t h e i r claim u n t i l , by the terms of the McKenna-McBride Agreement, i t was v i r t u a l l y abandoned. The only remnant of the reversionary i n t e r e s t l e f t i n t h i s agreement was the s t i p u l a t i o n that the Dominion would "re-convey" any una l i e n a t e d Indian lands i n the event of the Band becoming extinct. This condition continued through to become part of the 6 1 See S.B.C. 1931, c.32, s.2. 6 2 Borthwick, "Reversionary Interest", at 10. 41 "conveyance" of Indian reserves i n 0/C 1036. The reversionary c l a i m was f i n a l l y dropped i n 1969 by P r o v i n c i a l Order i n C o u n c i l . 6 3 B r i t i s h Columbia Order i n Council No. 1555, May 13, 1969. 42 CHAPTER II NATURE OF TITLE TO CROWN LANDS Eventually, B r i t i s h Columbia conveyed reserve lands to the Dominion, i n t r u s t f or the use and benefit of the Indians, by Order i n Council 1036. Prima fa c i e , the terms and conditions under which the transferred lands are held by Canada (found i n Order i n Council 1036) apply to most of the reserves outside the Railway Belt and Peace River Block, 1 as well as to those reserves within the Railway Belt. Recall that Privy Council Order No. 208 concerning reserves i n the Railway Belt, approved the draft form of conveyance i n the Scott-Cathcart Agreement of 1929, which i s i d e n t i c a l i n i t s terms to Order i n Council 1036. The combined e f f e c t of Privy Council Order No. 208 and B r i t i s h Columbia Order i n Council 1036 was to give a common t i t l e to v i r t u a l l y a l l of the Indian reserves i n B r i t i s h Columbia, under the administration and control of the federal government. This was not, s t r i c t l y speaking, a "conveyance", as that term i s normally used to describe a transfer of property from one in d i v i d u a l to another. Rather i t was a transfer of c e r t a i n lands from the Crown i n r i g h t of the province to the Crown i n ri g h t of Canada. Any analysis of the transaction must proceed from the understanding that the "conveyance" of reserve lands was actually The Treaty Reserves i n the North Eastern B.C. were transferred under separate instrument ( B r i t i s h Columbia Order i n Council No. 2995, Nov. 28, 1961). 43 a transfer of the Crown's proprietary i n t e r e s t from one branch of government to another. The transfer instrument cannot simply be i n t e r p r e t e d by reference to the law r e l a t i n g to conveyances. Regard must be had for the nature of the Crown's i n t e r e s t i n i t s lands, and the management and c o n t r o l of that i n t e r e s t by Parliament or the p r o v i n c i a l l e g i s l a t u r e . Because of the d i v i s i o n of l e g i s l a t i v e powers some of the terms of the conveyance may rais e c o n s t i t u t i o n a l problems. These issues w i l l be explored l a t e r . Even i f the v a l i d i t y of the form of conveyance i s accepted, there i s s t i l l some uncertainty as to the e f f e c t of some of the conditions expressed therein. Before these and other matters can be addressed, however, i t w i l l be useful to examine the nature of the Crown's i n t e r e s t i n i t s land generally. It has often been expressed by the highest j u d i c i a l authority that the underlying or ultimate t i t l e to Indian reserve lands i s i n the Crown. Leaving aside, for the moment, the notion of "Provincial Crown" and "Federal Crown", l e t us examine what the t i t l e consists of. Background - "Interests" i n Land Canadian law regarding ownership of land has i t s o r i g i n s i n the common law. Land i t s e l f i s not s t r i c t l y "owned" by the l a n d h o l d e r . Rather, a person may h o l d c e r t a i n r i g h t s i n connection with a piece of land, or to put i t another way, he has 4 4 a c e r t a i n "estate" or "interest" i n a piece of land. Only the Crown's t i t l e may be described as " a l l o d i a l " , or one of absolute ownership. A l l other i n t e r e s t s i n land are " t e n u r i a l " , being i n t e r e s t s held of the Crown.2 The c l o s e s t one may come to "ownership" of land, i n the t r a d i t i o n a l sense of that term, i s to own a "fee simple estate" i n the land. When one purchases a house or l o t , f o r example, he i s described as the owner of the "fee simple" of the described parcel of land. Generally speaking, t h i s i s the highest i n t e r e s t i n land that an i n d i v i d u a l can hold. The holder of a fee simple holds a number of r i g h t s with respect to a c e r t a i n described piece of land. Instead of owning the land i t s e l f , consider the land holder i n fee simple to possess a bundle of r i g h t s connected with the land. For example, he has the r i g h t to exclusively use the land for whatever purpose he may please (subject to any statutes regulating use), the r i g h t to s e l l or lease i t to someone else, the r i g h t to make use of the surface of the land, and any minerals (except gold and s i l v e r ) he may f i n d under the surface. He has the r i g h t to use any trees growing on the land, and a more q u a l i f i e d r i g h t to use water flowing over the land, He can take some of his rights and s e l l or lease them to others. For example, he may s e l l to another the r i g h t to any sand, gravel or other minerals on his land. S i m i l a r l y , one could s e l l v i r t u a l l y a l l of the r i g h t s i n 2 A.H. Oosterhoff and W. B. Rayner, Anger and Hornsberger  Law of Real Property, 2d ed., v o l . 1 (Aurora, Ont.: Canada Law Book, 1985), 80. 45 the "bundle" but reserve or hold back one or more. A common example would be the reservation of mineral r i g h t s from the sale of the land. The buyer would then have bought a smaller bundle of ri g h t s than the purchaser had to s t a r t with. He may pass on that bundle i n t a c t or he may hold some right s back, or dispose of them separately. When we inquire into the "nature of t i t l e " or the nature of an "in t e r e s t " i n land, we are seeking to determine the siz e of the "bundle of r i g h t s " and the kind of r i g h t s included i n the bundle. Crown's Proprietary Interest i n Land Ever since the reign of William the Conqueror (1066 A.D.) the Crown has been deemed to be the owner of a l l unappropriated lands of the realm, including i t s c o l o n i a l possessions. Therefore, i n a l l Crown lands, the Crown has a l l of the i n t e r e s t s that make up the fee simple estate. From the prerogative powers of the Crown flow numerous additional r i g h t s over Crown land and a l l other lands. The Crown's p r o p r i e t a r y i n t e r e s t s flowing from the Royal prerogative include the ownership of a l l mines of gold and s i l v e r ("Royal Mines") wherever situate within the realm, the ri g h t to "bona v a c a n t i a " , being c e r t a i n kinds of abandoned property (personal property rather than land), c e r t a i n f i s h and royal 46 swans.3 Also, the Crown i s e n t i t l e d to a l l previously granted land which has become ownerless due to a lack of heirs (the land i s s a i d to "escheat" to the Crown). Perhaps the most s i g n i f i c a n t of these r i g h t s i s the r i g h t to "Royal Mines". < The Crown also owns, by v i r t u e of i t s prerogative r i g h t s , the foreshore ( a l l lands between high and low t i d a l water mark), the seabed (including a l l minerals thereunder) within i t s t e r r i t o r i a l l i m i t s , and the bed of a l l t i d a l , navigable r i v e r s (including minerals). 4 Crown Lands and Public Lands U n t i l approximately 1700, the King could deal with h i s lands and i n t e r e s t s i n lands as he pleased. The revenue generated therefrom was known as the Crown's o r d i n a r y and h e r e d i t a r y revenues. The revenue from these sources was at one time s u f f i c i e n t to cover a l l the expenses of running the government, but increasingly the King had to c a l l upon Parliament to supply additional funds. Parliament eventually placed c e r t a i n controls on the d i s p o s i t i o n of Crown lands, and f i n a l l y an arrangement was made whereby the King surrendered the major p o r t i o n of h i s 3 H.S. Theobald, The Law of the Land (London: W. Clowes, 1929), 1-5. 4 Ibid., 1-4. 47 hereditary revenues to Parliament i n return for an annual sum known as the C i v i l L i s t . 5 In England, t h i s system continues so t h a t each r e i g n i n g Monarch, upon accession, agrees that a l l o r d i n a r y and h e r e d i t a r y revenues s h a l l be p a i d i n t o the consolidated revenue fund i n return for a f i x e d annual sum. In e a r l i e r times there was no d i s t i n c t i o n drawn between property held by the Crown i n a personal capacity and that held i n a p o l i t i c a l capacity. Under the C i v i l L i s t or consolidated fund arrangement, t i t l e to the revenues i s i n the Crown but the revenues are paid into a fund, to be appropriated by Parliament. The Queen s t i l l has private property ("privy purse") to use as She pleases, but the remainder of Her ordinary and hereditary revenues are under the control and management of Parliament. In other words, the public, through Parliament, now has the b e n e f i c i a l use, control and management of the revenues derived from Crown lands and the other sources of h e r e d i t a r y revenue. 6 However, i n c o n s t i t u t i o n a l theory a l l public lands and revenue are said to be vested i n the Crown.7 Gerard LaForest, Natural Resources and Public Property  Under the Canadian Constitution, (Toronto: University of Toronto Press, 1969), 5. Ibid., 6. See Atty. - Gen. B.C. v. Atty. - Gen. Canada (1889), 14 App. Cas. 295, at 301 (Sometimes h e r e i n a f t e r referred to as the "Precious Metals" case). 48 Crown Lands i n Canada In B r i t i s h c o l o n i a l Canada, the sovereign owned a l l ungranted lands and had prerogative rig h t s and p r i v i l e g e s s i m i l a r to those enjoyed i n the United Kingdom. In practice the Crown held and disposed of a l l revenues generated from c o l o n i a l lands for the benefit of the colonies i n which they were s i t u a t e . 8 However, the l o c a l assemblies lacked control over t h e i r revenues. Eventually, each l o c a l assembly was granted the power to control i t s revenues by l e g i s l a t i o n s i m i l a r to that passed i n England. In his work on natural resources and public property i n Canada, Gerard LaForest (now Mr. Justice LaForest, of the Supreme Court of Canada) reviews the l e g i s l a t i o n granting each of the o r i g i n a l four provinces control over t h e i r resources. He provides t h i s summary of the s i t u a t i o n at Confederation. T h i s , then, was the s i t u a t i o n at Confederation i n the provinces o r i g i n a l l y uniting to form the Dominion of Canada. The entire control, management, and d i s p o s i t i o n of the Crown lands, and the proceeds of the p r o v i n c i a l public domain and casual revenues a r i s i n g i n these provinces were confided to the executive administration of the p r o v i n c i a l governments and to the l e g i s l a t i v e action of the p r o v i n c i a l l e g i s l a t u r e s so that Crown lands, though standing i n the name of the Queen, were, with t h e i r accessories and incidents, to a l l intents and purposes the public property of the respective provinces i n which they were s i t u a t e . 9 LaForest, Natural Resources, 11. Ibid., 14. 49 I t i s not ce r t a i n whether B r i t i s h Columbia had acquired control of a l l hereditary revenues by Imperial statute before i t entered Confederation i n 1871. 1 0 However, a r t i c l e 10 of the Terms of Union had the e f f e c t of achieving t h i s by making the d i v i s i o n of property sections i n the Constitution Act, 1867 applicable to the new province. 1 1 D i s t r i b u t i o n of Property - Constitution Act, 1867 In c o n s t i t u t i o n a l theory and i n law the Crown i s said to be " i n d i v i s i b l e " . 1 2 However, because Canada has a f e d e r a l c o n s t i t u t i o n which divides l e g i s l a t i v e powers between the several provinces and the Dominion, reference i s often made to the Crown " i n r i g h t of Canada", or " i n r i g h t of" a p a r t i c u l a r province. When the res o u r c e s of Canada were d i s t r i b u t e d between the provinces and the Dominion, the "ownership", or t i t l e to the property remained vested i n the Crown i n d i v i s i b l e . What, i n law was d i s t r i b u t e d - was the control, benefit and management of the resources, or more simply, the r i g h t to the b e n e f i c i a l use of the resources. 1 3 Therefore any transfer of property between le v e l s of 1 0 Ibid., 31, footnote 26. 1 1 Ibid. 1 2 See Her Majesty i n Right of the Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61, at 10-11; [1977] 2 A l t a . L.R. (2d) 72, at 79-80 (subnom. In re P a c i f i c Western A i r l i n e s Ltd.) 1 3 LaForest, Natural Resources, 17-18. 50 government i n Canada i s not a transfer of t i t l e , but rather a transfer of the r i g h t to the b e n e f i c i a l use of the property. The d i s t r i b u t i o n of resources at Confederation i s governed mainly by Part VIII of the Constitution Act, 1867. 1 4 The e f f e c t of the sections contained therein i s s i m i l a r to the old C i v i l L i s t s Acts i n that they d i s t r i b u t e Crown property while imposing c e r t a i n charges on the federal consolidated fund, including the salary of the Governor General. 1 5 Property i s d i s t r i b u t e d between the provinces and the Dominion by sections 102, 107, 108, 109, 110, 113, and 117. The most important of these sections for the purpose of t h i s study are sections 109, and 117: 109 A l l Lands, Mines, Minerals and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and a l l Sums then due or payable for such Lands, Mines, Minerals, or Royalties, s h a l l belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick i n which the same are situate or arise, subject to any Trusts e x i s t i n g i n respect thereof, and to any Interest other than that of the Province i n the same. 117 The s e v e r a l Provinces s h a l l r e t a i n a l l t h e i r respective Public Property not otherwise disposed of i n t h i s Act, subject to the Right of Canada to assume any Lands or Public Property required for F o r t i f i c a t i o n s or for the Defence of the Country. C o n s t i t u t i o n Act, 1867, 30-31 V i c t , c.3 (U.K.), i n R.S.C. 1970, Appendix I I . 191. LaForest, Natural Resources, 105. Because B r i t i s h Columbia entered Confederation l a t e r , with i t s own d i s t i n c t terms, these must also be examined. In p a r t i c u l a r , A r t i c l e 13 of the Terms of Union concerns the d i s t r i b u t i o n of property r e l a t i v e to Indian reserves. It should be noted that the Dominion i s a l l o t t e d property i n two s e c t i o n s ( s e c t i o n 107 [stocks, bonds, etc.] and 108) with the p o s s i b i l i t y of assuming more pursuant to Section 117 (property required f o r defence purposes). Bear i n mind that the entity, the Dominion, had no property of i t s own p r i o r to Confederation. Therefore, any property i t acquired came from the provinces - the old colonies. The provinces r e t a i n e d v i r t u a l l y a l l of t h e i r property v i a sections 109 and 117. It should be noted, however, that although the sections r e f e r to property "belonging to" the provinces or, the "public property" of the provinces, these terms ac t u a l l y mean b e n e f i c i a l use and c o n t r o l . This i s due to the nature of " p u b l i c property", d i s c u s s e d e a r l i e r . The P r i v y Council has commented on the d i s t r i b u t i o n of property i n the Constitution Act, 1867: In construing these enactments, i t must always be kept i n view that, wherever p u b l i c land with i t s in c i d e n t s i s described as "the property of" or as "belonging to" the Dominion or a Province, these expressions merely import that the r i g h t to i t s b e n e f i c i a l use, or to i t s proceeds, has been appropriated to the Dominion or the Province, as the case may be, and i s s u b j e c t to the c o n t r o l of i t s l e g i s l a t u r e , the land i t s e l f being vested i n the Crown. 1 6 St. Catherines M i l l i n g and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 at 56, per Lord Watson. 52 Sections 109 and 117 of the Constitution Act, 1867 have been interpreted as residuary clauses, giving the provinces control of a l l p u b l i c p r o p e r t y and prer o g a t i v e revenues not otherwise assigned to the Dominion. Although s e c t i o n 109 does not s p e c i f i c a l l y r e f e r to "public property" j u d i c i a l construction has so l i m i t e d i t . 1 7 In St. Catherine's M i l l i n g , section 117 was considered to be simply a restatement of what was expressed i n section 109. 1 8 The wording of s e c t i o n 109 has been the subject of much j u d i c i a l consideration. The section deals with " A l l Lands, Mines, Minerals and Royalties belonging to the several Provinces ..." . However, i t can be broken down into two subjects: (1) public lands, and (2) r o y a l t i e s . This i s so because the courts have held that the expression "lands" i n section 109 includes mines and minerals but " r o y a l t i e s " has separate legal s i g n i f i c a n c e . In the Precious Metals case, Lord Watson stated: The expression "lands" i n that a r t i c l e [ a r t i c l e 11 of the Terms of Union] admittedly c a r r i e s with i t the baser metals, that i s to say, "mines" and "minerals" i n the sense of s e c t i o n 109. Mines and minerals, i n that sense, are incidents of l a n d . . . 1 9 Atty. - Gen. Ontario v. Mercer (1883), 8 App. Cas. 767, at 775-76 (P.C.). 14 App. Cas. 46, at 57 ( P . C ) . 14 App. Cas. 295, at 305. 53 Lord Watson went on to hold that " r o y a l t i e s " , including precious metals (gold and s i l v e r ) were not "incidents of land". The term " r o y a l t i e s " r e f e r s to those p r o p r i e t a r y r i g h t s of the Crown stemming from the r o y a l p r e r o g a t i v e . A l t h o u g h the term " r o y a l t i e s " i n section 109 has not received an exhaustive legal d e f i n i t i o n , i t has been held to include such prerogative r i g h t s as royal mines (gold and s i l v e r ) , 2 0 and escheats. 2 1 Crown Lands i n B r i t i s h Columbia - Terms of Union As a r e s u l t of a r t i c l e 10 of the Terms of Union the provisions of the Constitution Act, 1867 applied to B r i t i s h Columbia, except those which obviously only concerned the o r i g i n a l four provinces, and except to the extent where the general p r o v i s i o n s were modified by the s p e c i f i c Terms of Union. A r t i c l e 10 reads as follows: 10. The provisions of the " B r i t i s h North America Act, 1867," s h a l l (except those parts thereof which are i n terms made, or by reasonable intendment may be held to be s p e c i a l l y applicable to and only a f f e c t one and not the whole of the Provinces now comprising the Dominion, and except so far as the same may be varied by t h i s Minute) be applicable to B r i t i s h Columbia i n the same way and to the l i k e extent as they apply to the other Provinces of the Dominion, and as i f the colony of B r i t i s h Columbia had been one of the Provinces o r i g i n a l l y united by the said Act. 2 o 2 1 Ibid. Atty. - Gen. Ont. v. Mercer, supra f.n. 17. 54 La Forest has noted that one of the e f f e c t s of a r t i c l e 10 was to apply the property sections (including 109 and 117) of the Constitution Act, 1867 to B r i t i s h Columbia, whether or not the colony had, p r i o r to Confederation, gained control of the Crown's hereditary revenues. 2 2 In t h i s regard La Forest points out: Though i t does not appear that the sovereign ever formally surrendered the t e r r i t o r i a l and casual revenues to B r i t i s h Columbia before Confederation as occurred i n the older provinces, i t has been assumed by the highest authority that t h i s was the case. 2 3 The author c i t e s , among other authorities, the Precious Metals case. It appears that i n a l l of the authorities c i t e d the fact that B r i t i s h Columbia entered Confederation i n control of the Crown's hereditary revenues i s t r u l y assumed, as opposed to being a c t u a l l y proved. However, the i s s u e i s l i k e l y of l i t t l e s i g n i f i c a n c e anymore because of a r t i c l e 10 and the Privy Council's decision i n Atty.- Gen. Alberta v. Atty.- Gen. Canada. 2 4 In that 2 2 2 3 2 4 LaForest, Natural Resources, 31. Ibid., 32, footnote 26. [1928] A.C. 475. 55 case, the court considered section 3 of The Alberta Act, 1905. 2 5 Section 3 was very s i m i l a r i n i t s wording to a r t i c l e 10 of the Terms of Union and the court held that: ...the e f f e c t of t h i s section...(places) the Province of A l b e r t a i n the same p o s i t i o n as the other Provinces i n regard to property, except as varied by the statute, either by express terms or reasonable i m p l i c a t i o n . 2 6 I t seems reasonably cl e a r then that B r i t i s h Columbia was placed i n the same p o s i t i o n as the other provinces with respect to the d i s t r i b u t i o n of property under the Constitution Act, 1867. It i s a l s o c l e a r from the case law that the Terms of Union have Constitutional s t a t u s 2 7 and are capable of modifying or varying the sections of general application i n the Constitution Act, 1867 (including the property sections, 109 and 117). 2 8 There are two a r t i c l e s i n the Terms of Union which appear on t h e i r face to vary the general scheme of property d i s t r i b u t i o n found i n sections 109 and 117. These are A r t i c l e 11 - dealing with the transfer of railway be l t lands - and A r t i c l e 13 - dealing with the transfer of lands for Indian reserves. In fact, A r t i c l e 2 5 4-5 Edw. VII c.3 (Canada), i n R.S.C. 1970, Appendix II, 317. 2 6 [1928] A.C. 475 at 485-6. See also the "Precious Metals Case", 14 App. Cas. 295 at 304. 2 7 Jack v. The Queen, [1980] 1 S.C.R. 294, at 299-300, and 301-302; [1979] 2 C.N.L.R. 24 (S.C.C.) at 27-29. 2 8 See Precious Metals case, 14 App. Cas. 295, 303-4. 56 11 has been described as an exception from section 109. 2 9 The w r i t e r i s unaware of any s i m i l a r j u d i c i a l i n t e r p r e t a t i o n of A r t i c l e 13. 3 0 In the Precious Metals case the Privy Council considered the r e l a t i o n s h i p between A r t i c l e 11 and section 109: The 11th A r t i c l e ... i s a part of a general s t a t u t o r y arrangement, of which the leading enactment i s , that, on i t s admission to the Federal Union, B r i t i s h Columbia s h a l l r e t a i n a l l the rig h t s and i n t e r e s t assigned to i t by the provisions of the B r i t i s h North America Act, 1867, which govern the d i s t r i b u t i o n of property and revenues between the Province and the Dominion; the 11th A r t i c l e being nothing more than an exception from these p r o v i s i o n s . 3 1 I f A r t i c l e 11 can be viewed as an exception from the general property provisions perhaps A r t i c l e 13 could also be so viewed. One possible e f f e c t of t h i s would be that, instead of B r i t i s h Columbia ret a i n i n g " a l l lands", etc. pursuant to section 109, they r e t a i n a l l lands except those lands which are to be reserved for the I n d i a n s pursuant t o a r t i c l e 13. The p o s s i b l e l e g a l implications of t h i s "constitutional exception" w i l l be examined i n chapter f i v e . Ibid., 304. However, i n Jack v. The Queen, [1979] 2 C.N.L.R. 24, the Supreme Court of Canada seemed to accept the proposition that A r t i c l e 13 could vary another Section of general application i n the Constitution Act, 1867, s. 91(24) (Indians and lands reserved for the Indians). 14 App. Cas. 295, 303-304. 57 In summary i t i s noted that B r i t i s h Columbia i s generally i n the same p o s i t i o n as a l l the other provinces with respect to the "ownership" of public property and revenues. The spe c i a l terms under which the province entered Confederation have c o n s t i t u t i o n a l s t a t u s and are capable of varying the prov i s i o n s of general a p p l i c a t i o n i n the Constitution Act, 1867. A r t i c l e 13, which requires the province to convey lands for Indian reserves, may be viewed as an exception or v a r i a t i o n of those general terms, p a r t i c u l a r l y sections 109 and 117. 58 CHAPTER III TRANSFER OF CROWN LANDS FROM PROVINCE TO DOMINION Transfer of Crown Lands Generally There are s i g n i f i c a n t l e g a l differences between a Crown grant to an i n d i v i d u a l and a t r a n s f e r of land between l e v e l s of government. A normal Crown grant to an i n d i v i d u a l would convey the fee simple i n the land l e s s whatever r e s e r v a t i o n s were included i n the grant (usually the Crown reserves mineral rights and other various r i g h t s of way). Once the land i s granted to an i n d i v i d u a l , i t ceases to become public or Crown land. That i s , the fee simple i s no longer vested i n the Crown. I t follows that the Crown (and the government) ceases to have any b e n e f i c i a l i n t e r e s t , management, or c o n t r o l i n or over the land. The p r o v i n c i a l government may, pursuant to l e g i s l a t i o n , have a ce r t a i n regulatory influence over land held by i n d i v i d u a l s i n fee, but i t no longer enjoys benefits related to "ownership". The p r o v i n c i a l Crown would also r e t a i n i t s i n t e r e s t flowing from the Royal prerogative (foreshore, Royal Mines, etc.) unless s p e c i f i c a l l y granted with the fee simple. When land i s transferred from the Crown i n r i g h t of a province to the Crown i n r i g h t of the Dominion, the fee simple i s not conveyed, since i t remains vested i n the Crown " i n d i v i s i b l e " . What i s accomplished i s not a "conveyance" i n law, but rather a 59 transfer of b e n e f i c i a l use and c o n t r o l . 1 But since b e n e f i c i a l use and control i s a l l any government has with respect to Crown lands, when t h i s i s transferred i t leaves v i r t u a l l y no i n t e r e s t i n the land. 2 The government that has the b e n e f i c i a l use of the land i s the only government that can dispose of t i t l e to the land. 3 It i s not c l e a r whether there i s any p r e f e r r e d method f o r t r a n s f e r r i n g public land from a province to the Dominion, or v i c e versa. Transfer from Province to Dominion The Supreme Court has commented on a transfer of land between governments on various occasions. In the Saskatchewan Natural  Resource Reference, 4 the Court considered the e f f e c t of the transfer of Rupert's Land from the Imperial Crown to the Crown i n r i g h t of Canada: See Precious Metals case, 14 App. Cas. 295. Other cases on t h i s point w i l l be referred to l a t e r . The Crown may, depending on the circumstances of the t r a n s f e r , r e t a i n c e r t a i n p r e r o g a t i v e r i g h t s , or " r o y a l t i e s " , intheland. SeePreciousMetalscase,generally. Ontario Mining Co. v. Seybold, [1903] A.C 73. Reference Re Saskatchewan Natural Resources, [1931] S.C.R. 263. 60 It i s objected that, although the T e r r i t o r i e s were made part of the Dominion and became subject to i t s l e g i s l a t i v e control, there was no grant or conveyance of the lands by the Imperial Crown to the Dominion; but that was not r e q u i s i t e , nor was i t the proper method of e f f e c t i n g the transaction. It i s not by grant i n t e r partes that Crown lands are passed from one branch to another of the King's government; the transfer takes e f f e c t , i n the absence of spe c i a l provision, sometimes by Order i n Council, sometimes by despatch. There i s only one Crown, and the lands b e l o n g i n g to the Crown are and remain vested i n i t , notwithstanding that the administration of them and the exercise of t h e i r b e n e f i c i a l use may, from time to time, as competently authorized, be regulated upon the advice of d i f f e r e n t Ministers charged with the appropriate s e r v i c e . 5 Later i n A.G. Canada v. Higbie et a l . , 6 the Supreme Court considered the v a l i d i t y of a t r a n s f e r of land from B r i t i s h Columbia to the Dominion. The Dominion claimed that i t owned the foreshore of Coal Harbour, as a r e s u l t of a p r o v i n c i a l order i n council which purported to transfer the property. There was some doubt as to whether the order i n c o u n c i l was passed with s u f f i c i e n t , or any, l e g i s l a t i v e authority. The Court was divided on the l e g a l e f f e c t of the order. 7 Two members of the Court held Ibid., at 275. [1945] S.C.R. 385. However, i t was unanimously held that the p r o v i n c i a l order-in-council was an "admission of f a c t " that Coal Harbour was a "public harbour" p r i o r to 1871. It followed then, as a matter of law, that the property passed to the Dominion v i a section 108 and Schedule 3 of the Constitution Act, 1867. See the judgments of Kerwin, J. at 426-7, and Rand, J. at 435. 61 the order i n council v a l i d as a "conveyance" noting, however, that i t was not a conveyance i n the s t r i c t l e g a l sense. The Chief Justice stated: The orders i n council may be upheld as v a l i d , because both Governments, i n acting as they did, were exercising powers which are part of the residual prerogative of the Crown, or because the transfer from one Government to another i s not appropriately effected by ordinary conveyance. The King does not convey to himself ...8 Rinfret, C.J. then quoted at length from the Saskatchewan Natural  Resources Reference, the same passage that has been referred to herein. Transfer of Crown Land Pursuant to Terms of Union Under the Terms of Union, B r i t i s h Columbia was obliged to "convey" land to the Dominion i n two instances - f o r Indian reserves ( a r t i c l e 13) and for the Railway Belt ( a r t i c l e 11). The t r a n s f e r of the Railway B e l t lands has been the subject of l i t i g a t i o n and j u d i c i a l c o n s i d e r a t i o n . Since the wording of a r t i c l e s 11 and 13 of the Terms of Union are s u b s t a n t i a l l y the same regarding the obl i g a t i o n to convey, i t i s useful to examine the leading cases concerning the Railway Belt transfer. [1945] S.C.R. 385, at 402. The Railway Belt Transfer - Precious Metals 62 In the f i r s t case, which concerned the ownership of precious metals i n the Railway B e l t lands, 9 the P r i v y Council had to construe the "conveyance" of those lands pursuant to A r t i c l e 11. By A r t i c l e 11, the B r i t i s h Columbia government was obliged to "convey to the Dominion Government, i n t r u s t ...public lands along the l i n e of railway. . ." The 40-mile wide s t r i p of land was a c t u a l l y granted by an Act of the l e g i s l a t u r e i n 1883. 1 0 It i s i n t e r e s t i n g to compare the wording of a r t i c l e 13 which states: "to c a r r y out such p o l i c y [Indian p o l i c y ] t r a c t s of land... s h a l l from time to time be conveyed by the Local Government to the Dominion Government i n t r u s t for the use and benefit of the Indians..." In both cases, the ob l i g a t i o n i s to convey land i n t r u s t for a s p e c i f i e d purpose. Note however, that a r t i c l e 11 r e f e r s to "public lands" a term which the Privy Council focussed on i n t h e i r j udgment. Precious Metals case, 14 App. Cas. 295. An Act Relating to the Island Railway, the Graving  Dock, and Railway Lands of the Province, S.B.C. 1884, c.14. (enacted Dec. 19, 1883). 63 The f o l l o w i n g passage from the P r i v y C o u n c i l d e c i s i o n i l l u s t r a t e s the approach taken i n construing the land transfer: Whether the precious metals are or are not to be held as included i n the grant to the Dominion Government, must depend upon the meaning to be a t t r i b u t e d to the words "public lands" i n the 11th A r t i c l e of Union. The Act 47 V i c t . c. 14, s. 2, which was passed i n f u l f i l l m e n t of the o b l i g a t i o n imposed upon the Province by that a r t i c l e and the agreement of 1883, defines the area of the lands but i t throws no additional l i g h t upon the nature and extent of the i n t e r e s t which was intended to pass to the Dominion. The o b l i g a t i o n i s to "convey" the lands, and the Act purports to "grant" them, neither expression being s t r i c t l y appropriate, though s u f f i c i e n t l y i n t e l l i g i b l e for a l l p r a c t i c a l purposes. The t i t l e to the public lands of B r i t i s h Columbia has a l l along been, and s t i l l i s , vested i n the Crown; but the r i g h t to administer and to dispose of these lands to s e t t l e r s , together with a l l royal and t e r r i t o r i a l revenues a r i s i n g therefrom, had been transferred to the Province, before i t s admission i n t o the f e d e r a l union. Leaving the precious metals out of view for the present, i t seems c l e a r that the o n l y "conveyance" contemplated was a t r a n s f e r to the Dominion of the p r o v i n c i a l r i g h t to manage and s e t t l e the lands, and to appropriate t h e i r revenues. I t was neither intended that the lands should be taken out of the Province, nor that the Dominion Government should occupy the p o s i t i o n of a freeholder within the Province. The object of the Dominion Government was to recoup the cost of constructing the railway by s e l l i n g the land to s e t t l e r s . Whenever land i s so disposed of, the i n t e r e s t of the Dominion comes to an end. The land then ceases to be public land, and reverts to the same p o s i t i o n as i f i t had been s e t t l e d by the P r o v i n c i a l Government i n the o r d i n a r y course of i t s administration. That was apparently the consideration which l e d to the i n s e r t i o n , i n the agreement of 1883, of the condition that the Government of Canada should o f f e r the l a n d f o r s a l e , on l i b e r a l terms, with a l l convenient speed. 1 1 I t i s important to note the Privy Council's consideration of the words "convey" ( i n a r t i c l e 11) and "grant" ( i n the statute which transferred the lands). It i s said that neither term i s 14 App. Cas. 295, at 301-302. 64 " s t r i c t l y appropriate" since the only "conveyance" contemplated was a transfer to the Dominion of the province's r i g h t to manage and s e t t l e the lands. The Court also noted that the statute did not throw any "additional l i g h t upon the nature and extent of the i n t e r e s t which was intended to be passed to the Dominion." The Privy Council looked to the Terms of Union and the 1883 agreement, based on the o b l i g a t i o n i n a r t i c l e 11, i n order to resolve the "nature and extent of the i n t e r e s t " of the Dominion i n the Railway Belt. Based on the above i n t e r p r e t a t i o n of the transfer, the Privy Council reached the following conclusion: I t therefore appears to t h e i r Lordships that a conveyance by the Province of "public lands", which i s an assignment of i t s r i g h t to appropriate the t e r r i t o r i a l revenues a r i s i n g from such lands, does not imply any transfer of i t s i n t e r e s t i n revenues a r i s i n g from the prerogative r i g h t s of the Crown [e.g. revenues from precious m e t a l s ] . 1 2 Waters i n the Railway Belt The P r i v y Council had another opportunity to consider the transfer of the railway lands pursuant to a r t i c l e 11 of the Terms of Union, i n Burrard Power Company v. The K i n g . 1 3 Certain water ri g h t s i n Railway Belt lands had been granted to the appellant Ibid., 303. [1911] A.C. 87. 1 2 1 3 company by the B r i t i s h Columbia Water Commissioner, who purported to act under the B r i t i s h Columbia Water Clauses Consolidation Act,  1897. 1 4 The Court held that, as a r e s u l t of the transfer of the lands, the proprietary r i g h t s therein belonged to the Crown i n r i g h t of the Dominion. The lands were public lands within the meaning of s e c t i o n 91 of the Constitution Act, 1867 and were therefore under exclusive federal j u r i s d i c t i o n . The p r o v i n c i a l statute could not a f f e c t the waters of those lands, because the water r i g h t s were in c i d e n t a l to those l a n d s . 1 5 In the B r i t i s h Columbia Fisheries Reference, t h e i r Lordships had a number of questions r e f e r r e d to them concerning the ownership of f i s h e r i e s i n t i d a l waters and non-tidal waters within the Railway B e l t . 1 6 The Province sought to determine which l e v e l of government had authority to l e g i s l a t e with respect to exclusive f i s h i n g r i g h t s i n the waters. I t was held that, as regards t i d a l waters, the Province had no j u r i s d i c t i o n to l e g i s l a t e . Nor could the Province issue exclusive licences for t i d a l waters since the r i g h t to the f i s h i n t i d a l waters was a public r i g h t . With respect to the non-tidal waters, t h e i r Lordships applied the general p r i n c i p l e that t i t l e to a f i s h e r y derives from t i t l e to the s o i l , and that since the Dominion owned the "whole solum", 1 4 S.B.C. 1897, c.45. 1 5 [1911] A.C. 87, at 94. 1 6 Atty.-Gen. B.C. v. Atty.-Gen. Canada, [1914] A.C. 153. 66 they owned the fishery. 1 7 In reaching t h i s decision the Court again construed the transfer of the Railway Belt from the Province decision, the Court stated: Their Lordships can see nothing i n the judgment above r e f e r r e d to which casts the s l i g h t e s t doubt upon the c o n c l u s i o n t o which they have come from a d i r e c t consideration of the terms of the grant i t s e l f , namely, that the e n t i r e b e n e f i c i a l i n t e r e s t i n everything that was transferred passed from the Province to the Dominion. There i s no reservation of anything to the grantors. The whole solum of the b e l t l y i n g between i t s extreme boundaries passed to the Dominion, and t h i s must include the beds of the r i v e r s and lakes which l i e within the b e l t . Nor can there be any doubt that every r i g h t springing from the ownership of the solum would also pass to the grantee, and t h i s would include such rig h t s i n or over the waters of the r i v e r s and lakes as would l e g a l l y flow from the ownership of the solum. 1 8 The Court had again looked to the terms of the grant to d e t e r m i n e the " i n t e r e s t s " which p a s s e d w i t h the l a n d s . S p e c i f i c a l l y , they noted that there was no reservation of anything to the grantors (the Province). This indicates that i f anything had been reserved or excepted i n the grant - as was done i n Order i n council 1036 - such reservation might have reduced or q u a l i f i e d the i n t e r e s t of the Federal Crown. to the Dominion. R e f e r r i n g to the e a r l i e r Precious Metals 1 7 Ibid at 166. 1 8 Ibid. 67 CHAPTER IV THE FORM OF CONVEYANCE - ORDER IN COUNCIL 1036 Order i n Council 1036 was the instrument of transfer for most of the Indian reserves i n B r i t i s h Columbia. By agreement between the p r o v i n c i a l and fed e r a l governments, and pursuant to Privy Council Order No. 208 the reserves i n the Railway B e l t were subject to i d e n t i c a l terms and conditions to those expressed i n 0/C 1036. Although the form of the Order was very s i m i l a r to the statutory form of a Crown grant, we have seen that the transfer of Indian reserves was not s t r i c t l y speaking, a "conveyance" or "grant". In t h i s chapter the transfer instrument w i l l be analyzed i n order to determine j u s t what i n t e r e s t i n the subject lands passed to the federal government, and what was held back by the province. I t has been noted previously that the wording of the conveyance i n 0/C 1036 i s v i r t u a l l y i d e n t i c a l to the wording of Section 7 of the McKenna - McBride agreement. The operative words of the transfer are as follows: TO HIS HONOUR THE LIEUTENANT - GOVERNOR IN COUNCIL: The undersigned has the honour to RECOMMEND: -THAT under authority of Section 93 of the "Land Act", being Chapter 144, "Revised Statutes of B r i t i s h Columbia, 1936", and Section 2 of Chapter 32, " B r i t i s h Columbia Statutes 1919", being the "Indian A f f a i r s Settlement Act", the lands set out i n schedule attached hereto be conveyed 68 to His Majesty the King i n the r i g h t of the Dominion of Canada i n t r u s t for the' use and benefit of the Indians of the Province of B r i t i s h Columbia, subject however to the r i g h t of the Dominion Government to deal with the said lands i n such manner as they may deem best suited for the purpose of the Indians including a r i g h t to s e l l the said lands and fund or use the proceed for the benefit of the Indians subject to the condition that i n the event of any Indian t r i b e or band i n B r i t i s h Columbia at some future time becoming extinct that any lands hereby conveyed for such t r i b e or band, and not s o l d or disposed of as heretofore provided, or any unexpended fund being the proceeds of any such sale, s h a l l be conveyed or repaid to the grantor, and that such conveyance s h a l l also be subject to the following provisions: 1 The Order i n council purports to convey the land to the King i n r i g h t of Canada " i n t r u s t " for the use and benefit of the Indians. The Conveyance "In Trust" In Guerin v. The Queen,2 the Supreme Court of Canada considered the e f f e c t of the transfer of Indian reserves i n B r i t i s h Columbia. The Court distinguished the reserve s i t u a t i o n i n B r i t i s h Columbia from the s i t u a t i o n i n St. Catherine's M i l l i n g , 3 noting that the province had transferred t i t l e to the reserves to the Crown i n B r i t i s h Columbia Order i n Council 1036, July 29, 1938. See Appendix. [1984] 2 S.C.R. 335; 55 N.R. 161. 14 App. Cas 46 ( P . C ) . 69 r i g h t of Canada.4 Of course the t i t l e was both before and after the transfer vested i n the Crown, but the Crown i n r i g h t of Canada had acquired the r i g h t to the b e n e f i c i a l use and management of the -lands. One important aspect of that r i g h t i s the r i g h t to dispose of the property. The operative words of the transfer c l e a r l y s t i p u l a t e d that Canada had the ri g h t to s e l l the lands. The reason that such express language was used probably r e l a t e s to the o l d dispute over the claimed " r e v e r s i o n a r y i n t e r e s t " . The language i s inconsistent with a p r o v i n c i a l i n t e r e s t , reversionary or otherwise, that would underlie the federal i n t e r e s t . I t i s c o n s i s t e n t with the McKenna-McBride Agreement, wherein the p r o v i n c i a l government conceded to abandon the claimed reversionary i n t e r e s t , except i n the event that a band became extinct. The order also makes i t cle a r that the transfer of the lands to Canada i s i n t r u s t for the use and benefit of the Indians. This does not l i m i t the nature of the i n t e r e s t granted, for example, by r e s t r i c t i n g i t to a usufruct. I t i s simply a statement of the purpose underlying the transaction. 5 In order for the federal government to carry out the terms of the "trust", (that i s , the management, including the sale of reserve lands), i t would be 4 Guerin v. The Queen, [1984] 2 S.C.R. 335, at 380-381; 55 N.R 173. 5 See the discussion of t h i s point by the Federal Court of A Guerin v. The Queen (1982), 45 N.R. 181 at 250. Although th Court of Canada reversed the decision of the Federal Court o the l a t t e r court's discussion of the meaning of the words " was not contradicted. 70 necessary to at least have the fee simple i n t e r e s t i n the lands. 6 Neither does the condition requiring re-conveyance when a band becomes extinct r e s t r i c t the scope of the i n t e r e s t transferred. I t might be viewed as a condition subsequent that does not affe c t the absolute i n t e r e s t granted u n t i l such time as the tri g g e r i n g event may occur. 7 In any event the condition i s no longer of any p r a c t i c a l e f f e c t since i t s repeal by order i n council i n 1969.8 An analogous case on t h i s point i s Re Taxation of  University of Manitoba Lands, [1940] 1 D.L.R. 579 (Man. C.A.). The Manitoba Court of Appeal considered the e f f e c t of a conveyance of land from Canada to the U n i v e r s i t y . The deed r e c i t e d c e r t a i n t r u s t s and conditions under which the lands were to be held by the University. The lands were to be used for the purpose of operating the university, and i n the event of the u n i v e r s i t y ceasing i t s operations, the land was to revert to the federal Crown. The University claimed that under the terms of the conveyance they did not h o l d the fee simple esta t e , but only a power of management and sale over the lands, which were s t i l l vested i n the Crown. The Court rejected t h i s argument, and stated: the expression i n the f i r s t proviso, "subject to the f o l l o w i n g t r u s t s and purposes" does not r e s t r i c t the scope of the grant - a l l the trust s and purposes stated are merely the aims of the U n i v e r s i t y which the U n i v e r s i t y would n a t u r a l l y d i s c h a r g e and ac c o m p l i s h i n i t s own normal operations, (at 592). Re Taxation of University of Manitoba Lands, [1940] 1 D.L.R. 579, at 592. B r i t i s h Columbia Order i n Council No. 1555, May 13, 1969. The stated authority under which the order i s made i s the Land  Act, section 93, chapter 144, R.S.B.C. 1936. That l e g i s l a t i o n empowered the p r o v i n c i a l executive to reserve Crown lands for the purpose of conveying them to the federal government i n tr u s t , for the use and benefit of the Indians. The other noted statutory a u t h o r i t y i s the Indian A f f a i r s Settlement Act. That Act authorized, i n broad and general terms, the Lieutenant-Governor i n Council to do anything necessary to carry out the McKenna-McBride Agreement, i n c l u d i n g such f u r t h e r n e g o t i a t i o n s as might be required f o r the f i n a l settlement of a l l differences between the pr o v i n c i a l and federal governments. 9 If the l a t t e r statute had simply authorized the executive branch to carry out the terms of the McKenna-McBride Agreement, i t would be arguable that the many provisoes included with the transfer were not authorized by the Statute. The e a r l i e r agreement had simply c a l l e d f or a conveyance of the lands i n tr u s t , with a reconveyance i n case any band should become extinct. However, the t h i r d section of the Indian A f f a i r s  Settlement Act gives the p r o v i n c i a l executive the f l e x i b i l i t y to conduct further negotiations and enter into further agreements. S.B.C. 1919, c.32. 72 The P r o v i n c i a l Interest by Way of the Provisions i n 0/C 1036 The order i n council contained several "provisoes" to which the t r a n s f e r was s u b j e c t . Some of these p r o v i s i o n s may be characterized as exceptions or reservations from the grant. A thing which i s "excepted" out of a grant does not form part of the thing granted. That which i s excepted must be something that i s i n being at the time of the grant so that i t can be defined and excluded. A reservation i s some benefit - usually a r i g h t or intangible thing - to be newly created which the grantor desires to be r e t a i n e d f o r h i s b e n e f i t over the thing granted ( f o r example, a r i g h t of way). 1 0 I t has also been s a i d that a r e s e r v a t i o n operates as i f the grantor had granted the whole property to the grantee and the grantee had then granted back to the grantor the p a r t i c u l a r r i g h t which the grantor had bargained f o r . 1 1 Sometimes a thing which i s said to be "reserved out of the grant" may be interpreted as an exception, i n that i t does not become part of the thing granted at any time, or i t does not "run with the l a n d " . 1 2 I t would appear that the only true exception i n 0/C 1036 i s the f i n a l p r o v i s i o n which excepts a l l t r a v e l l e d streets, roads, etc. Therefore, a l l streets, roads, etc. which Rayfuse v. Mugleston, [1954] 3 D.L.R. 360 (B.C.C.A.), at p G. Battersby, ed., Williams on T i t l e , 4th ed. (London: Butterworths, 1975), 548. Rayfuse v. Mugleston, supra, at 368. 1 o I I 1 2 73 come within the language of the exception were not transferred to the Dominion for the use and benefit of the Indians, but remain under the administration and control of the province. The Exception of Streets and Roads The exception i n 0/C 1036 reads as follows: PROVIDED a l s o t h a t a l l t r a v e l l e d s t r e e t s , roads, t r a i l s , and other highways e x i s t i n g over or through said lands at the date hereof s h a l l be excepted from t h i s grant. I t should f i r s t be noted that only those s t r e e t s , e t c . "existing" at the date of 0/C 1036 - July 29, 1938 - are excluded from the grant. The exception does not reach any roads which have come into being a f t e r July 29, 1938. In the case of reserve lands i n the Railway B e l t the date i s that of the Scott-Cathcart Agreement as approved by P.C. 208 - February 3, 1930. Any land which f a l l s within the exception (or any reservation out of the grant which operates as an exception) i s under p r o v i n c i a l l e g i s l a t i v e control. In Prudential Trust Co. v. The 74 R e g i s t r a r , 1 3 the Supreme Court of Canada commented upon the e f f e c t of r e s e r v a t i o n s and exceptions i n a grant from the Crown Dominion: The i n t e r e s t s retained by the Dominion, whether i n the form of reservations or exceptions i n the grant... were beyond the operation of p r o v i n c i a l law; they were property of Canada and under s. 91 of the BNA Act, within the exclusive l e g i s l a t i v e j u r i s d i c t i o n of Parliament. 1 4 By analogy, any i n t e r e s t s r e t a i n e d by B r i t i s h Columbia v i a e x c e p t i o n or r e s e r v a t i o n s i n 0/C 1036 are beyond f e d e r a l l e g i s l a t i v e c o n t r o l and are pr o p e r t y w i t h i n the e x c l u s i v e j u r i s d i c t i o n of the p r o v i n c i a l l e g i s l a t u r e . The main issue with respect to t h i s exception i s what i n fact was a " t r a v e l l e d street, road, t r a i l or other highway" as of July 29, 1938. The p r o v i n c i a l i n t e r p r e t a t i o n of t h i s proviso i s , that a l l roads within the meaning of the B r i t i s h Columbia Highway A c t 1 5 are covered by the exception. That i s , a l l public roads that were 1 3 1 4 1 5 [1957] S.C.R. 658; 9 D.L.R. (2d) 561. Ibid., (S.C.R.) at 660; (D.L.R.) at 562. R.S.B.C. 1979, c.167. i n e x i s t e n c e were excluded from the conveyance. 1 6 I t would be a qu e s t i o n o f f a c t i n any g i v e n case as t o which s t r e e t s and roads were " p u b l i c roads" i n 1938. The " t r a v e l l e d roads e x c e p t i o n " was argued b e f o r e the B r i t i s h Columbia Supreme Court i n Moses v. The Queen 1 7 but the Court d i d not c o n s i d e r the arguments. The f e d e r a l government argued t h a t the word " t r a v e l l e d " meant " i n use" by the p u b l i c w h i l e the pro v i n c e i n s i s t e d t h a t the e x c e p t i o n c o u l d i n c l u d e a road which was not i n use as a p u b l i c r o a d . 1 8 The p r o v i n c e a l s o took the p o s i t i o n t h a t as a r e s u l t o f a 1911 p r o v i n c i a l d e c l a r a t i o n a l l roads and r i g h t s o f way through I n d i a n r e s e r v e s were 66 f e e t i n w i d t h . 1 9 The Dominion c h a l l e n g e d t h i s c o n t e n t i o n on the ground t h a t p r o v i n c i a l l e g i s l a t i o n c o u l d not a f f e c t "lands r e s e r v e d f o r the I n d i a n s " , as such were under e x c l u s i v e f e d e r a l j u r i s d i c t i o n . S i nce the r e s e r v e i n q u e s t i o n had been s e t a p a r t as a res e r v e ( a l l o t t e d ) p r i o r t o 1911 the p r o v i n c i a l d e c l a r a t i o n c o u l d not apply t o roads w i t h i n i t . 2 0 The Court d i d not address e i t h e r the f e d e r a l o r the p r o v i n c i a l p o s i t i o n on t h i s i s s u e . The judgment 1 6 Don MacSween, "Order i n C o u n c i l 1036: The Remnants of C o l o n i a l Rule", i n Indians and the Law (Vancouver: C o n t i n u i n g L e g a l E d u c a t i o n S o c i e t y o f B r i t i s h Columbia, 1985), at 3.1.06. 1 7 [1977] 4 W.W.R. 474 ( B . C . S . C ) . 1 8 See " w r i t t e n argument" o f F e d e r a l Department of J u s t i c e inMoses Supreme Court f i l e , Vancouver R e g i s t r y No. 43319/75. 1 9 Moses, [1977] 4 W.W.R. 474, at 476-477. 2 0 I b i d . 76 was c o n f i n e d t o t h e i s s u e o f w h e t h e r p r o v i n c i a l a u t h o r i t i e s w e r e t r e s p a s s i n g o n t h e r e s e r v e s , o r w h e t h e r t h e y h a d a r i g h t t o e n t e r u p o n r e s e r v e l a n d s b a s e d o n t h e r e s u m p t i o n p o w e r . A l t h o u g h t h e i n t e r p r e t a t i o n o f t h e r o a d s e x c e p t i o n r e m a i n s u n r e s o l v e d , i t may be s a i d t h a t t h e q u e s t i o n o f w h e t h e r a r o a d i s i n c l u d e d i n t h e e x c e p t i o n i s l a r g e l y a q u e s t i o n o f f a c t . F u r t h e r m o r e , t h e a c t u a l w i d t h o f t h e r o a d may d e p e n d o n t h e d a t e when a n y p a r t i c u l a r r e s e r v e was e s t a b l i s h e d . U s e o f S a n d a n d G r a v e l , o n R e s e r v e s A n o t h e r p r o v i s i o n o f 0/C 1036 r e s e r v e s a r i g h t t o u s e s a n d a n d g r a v e l a n d o t h e r r o a d b u i l d i n g m a t e r i a l s . I t r e a d s a s f o l l o w s : PROVIDED a l s o t h a t i t s h a l l be a t a l l t i m e s l a w f u l f o r a n y p e r s o n d u l y a u t h o r i z e d i n t h a t b e h a l f b y U s , Our h e i r s a n d s u c c e s s o r s , t o t a k e f r o m o r u p o n a n y p a r t o f t h e h e r e d i t a m e n t s h e r e b y g r a n t e d , a n y g r a v e l s a n d , s t o n e , l i m e , t i m b e r o r o t h e r m a t e r i a l w h i c h may b e r e q u i r e d i n t h e c o n s t r u c t i o n , m a i n t e n a n c e , o r r e p a i r o f a n y r o a d s , f e r r i e s , b r i d g e s , o r o t h e r p u b l i c w o r k s . B u t n e v e r t h e l e s s p a y i n g t h e r e f o r e r e a s o n a b l e c o m p e n s a t i o n f o r s u c h m a t e r i a l s a s may be t a k e n f o r u s e o u t s i d e t h e b o u n d a r i e s o f t h e h e r e d i t a m e n t s h e r e b y g r a n t e d : The c l a u s e r e s e r v e s a r i g h t o f t h e Crown ( o r t h e i r a u t h o r i z e d a g e n t s ) t o t a k e t h e d e s c r i b e d m a t e r i a l s , b u t o n l y t h o s e w h i c h a r e r e q u i r e d f o r t h e s p e c i f i e d p u b l i c w o r k s . The s p e c i f i e d w o r k s a r e d e f i n e d q u i t e b r o a d l y b u t t h e y must be " p u b l i c w o r k s " . T h e r e i s a p r o v i s i o n f o r c o m p e n s a t i o n t o b e p a i d , b u t o n l y f o r t h o s e 77 materials taken and used outside the boundaries of the reserve. In a normal Crown grant t h i s reservation might be construed as a non-exclusive " p r o f i t a prendre", that i s , "a r i g h t vested i n one man of entering upon the land of another and taking therefrom a p r o f i t of the s o i l . " 2 1 The " p r o f i t " must be something out of the land i t s e l f , as distinguished from making a p r o f i t by using the land. Such things as sand, gravel stone, timber, etc., are " p r o f i t s of the s o i l " . The r i g h t i s non-exclusive because i t does not give the person exclusive possession or property i n the " p r o f i t s of the s o i l " . The owner of the land i s not precluded from dealing with the same materials as he pleases, including the granting of s i m i l a r r i g h t s to others. In e f f e c t , the holder of the reserved r i g h t (the Crown) has no "ownership" of the materials but only a r i g h t to use what s t i l l might remain. 2 2 In the standard Crown grant (which was f i r s t proposed by the province to govern the conveyance of Indian reserves) the r i g h t to take such m a t e r i a l s was e x p r e s s l y s t a t e d t o be without compensation. This i s more l i k e a true " p r o f i t a prendre". However, i n 0/C 1036 the c l a u s e e x p r e s s l y p r o v i d e s f o r compensation, at least for such materials as may be used outside the boundaries of the reserve. This obviously q u a l i f i e s the r i g h t 2 1 John S. James, Stroud's J u d i c i a l Dictionary, v o l . 4, (London: Sweet and Maxwell, 1974) at 2141. 2 2 Bayview Properties Ltd. v. Atty.-Gen. V i c t o r i a , [1960] V.R. 214 (Supreme Court of V i c t o r i a , Aus.) at 216. 78 of the province to take the s p e c i f i e d " p r o f i t s of the s o i l " . The reservation of sand and gravel i s used r a r e l y today. It was inserted i n early Crown grants, when a few wagon loads of g r a v e l s u f f i c e d to maintain a wagon r o a d . 2 3 Presumably the province does not r e l y on t h i s outdated reservation to obtain the large quantities of materials used i n modern major construction works. However, the compensation issue might be considered with a view to minimizing the impact of the use (even i f rare) of t h i s reservation. I f a portion of an Indian reserve was covered by a p r o v i n c i a l , public road (whether that road was o r i g i n a l l y excepted from 0/C 1036, or resumed l a t e r ) should the Band have to provide gravel from other portions of the reserve free of charge to b u i l d or maintain p u b l i c roads "within the boundaries of the reserve"? Even though public roads may be of some benefit to the band, they may also fragment reserves, and subtract from the t o t a l area of band land. Early road building was often aided by the resumption power, without compensation being paid. This reservation, on one reading at least, could have the e f f e c t of causing the Band to further supplement the general public by supplying road materials free of charge. MacSween, at 3.1.06 79 Perhaps one way to avoid such a r e s u l t would be to interpret the "boundaries" of the reserve to not include roads which have passed to p r o v i n c i a l administration and c o n t r o l . This would include a l l roads excepted, resumed, or taken pursuant to section 35 (and i t s predecessors) of the Indian A c t . 2 4 Therefore, i f road materials were needed for the construction or maintenance of roads i n those areas, compensation would be required because the areas no longer form part of the reserve. Water Rights Order i n Council 1036 reserves c e r t a i n water p r i v i l e g e s to the Crown or persons acting under i t s authority, i n the following terms: PROVIDED also that i t s h a l l be lawful for any person duly authorized i n that behalf by Us, Our heirs and successors, to take and occupy such water p r i v i l e g e s , and to have and enjoy such r i g h t s of carrying water over, through or under any parts of the hereditaments hereby granted, as may be reasonably required for mining or a g r i c u l t u r a l purposes i n the v i c i n i t y of the said hereditaments, paying therefore a reasonable compensation: The following points are noted regarding t h i s provision: 1. The p r o v i s i o n i s l i m i t e d to water p r i v i l e g e s f o r the s p e c i f i e d purpose of mining and a g r i c u l t u r a l operations i n the v i c i n i t y of an Indian reserve. Indian Act, R.S.C. 1970, c.I-6, s.35. 80 2. It allows the Crown to have the p r i v i l e g e of using water on the reserve or of carrying water over the reserve as may be reasonably required for the s p e c i f i e d purposes. 3. Compensation must be paid for the use of such p r i v i l e g e s . Apparently t h i s reservation i s not widely used today, as the c a r r i a g e of water by flumes or open d i t c h e s f o r mining or a g r i c u l t u r a l purposes i s f a l l i n g into d i s u s e . 2 5 The reservation does not r e s t r i c t the Indians' use and enjoyment of such water ri g h t s as are attached to the reserve lands, but merely allows the Crown the p r i v i l e g e of using or c a r r y i n g water on or over a reserve for the s p e c i f i e d purposes. I t does not purport to be an exclusive r i g h t to water on the reserve. Perhaps t h i s clause could be used to j u s t i f y the granting of a p r o v i n c i a l water licence (or easement for the purpose of diverting water) f o r waters on Indian reserves. Under the present water l e g i s l a t i o n the p r o v i n c i a l authorities may grant water licences and grant permission to the licensee to cross another person's land with a water l i n e , when d i v e r t i n g water from a d i s t a n t s o u r c e . 2 6 The l e g i s l a t i o n a l s o p r o v i d e s an e x p r o p r i a t i o n procedure i f the parties can not agree on compensation for the water works easement. 2 7 Although the province would not normally be competent to apply these l e g i s l a t i v e p r o v i s i o n s so as to 2 5 MacSween, p. 3.1.06. 2 6 Water Act, R.S.B.C. 1979, c.429, ss.24, 27. 2 7 Water Act, R.S.B.C. 1979, c.429, s.24. 81 i n t e r f e r e with Indian reserve land, t h i s proviso may allow that r e s u l t to a c e r t a i n extent. It i s doubtful, however that the expropriation procedure i n the Water Act could u n i l a t e r a l l y a f f e c t reserve lands. In any event, compensation i s necessary, and an easement could only be authorized i n connection with mining or a g r i c u l t u r a l a c t i v i t i e s i n the v i c i n i t y of the reserve. It i s not cl e a r whether Indian reserves i n B r i t i s h Columbia enjoy the f u l l range of common law r i p a r i a n r i g h t s . This i s because p r o v i n c i a l l e g i s l a t i o n superseded the common law i n t h i s area many years ago. Since 1865 2 8 there has been some system of water l i c e n s i n g i n force i n B r i t i s h Columbia, which system i s c u r r e n t l y governed by the Water A c t . 2 9 Normally p r o v i n c i a l l e g i s l a t i o n cannot a f f e c t lands which are under the exclusive l e g i s l a t i v e j u r i s d i c t i o n of Parliament. However, many of the water licences that were issued pursuant to p r o v i n c i a l l e g i s l a t i o n ante-dated the establishment of Indian reserves. The issue of r i p a r i a n r i g h t s on reserve lands i s further complicated by the f a c t t h a t f l o w i n g water does not r e s p e c t j u r i s d i c t i o n a l boundaries. I t i s perhaps because of such d i f f i c u l t i e s that the federal government has chosen to work within the system provided by the Water Act. A good system of water management can help to ensure that more people benefit from a scarce resource. The 2 8 Land Ordinance, Ordinances of the L e g i s l a t i v e Council of B r i t i s h Columbia, 1865, No. 27 ss.44-50. 2 9 R.S.B.C. 1979 c.429. 82 statutory scheme can also allow for uses of water, such as spray i r r i g a t i o n , that are necessary i n a modern economy, but would not be permitted under th,e common law. 3 0 However there are some problems with the p r o v i n c i a l system of recorded water r i g h t s when that system i s applied to the Indian reserve s i t u a t i o n . The system operates on a f i r s t i n time, f i r s t i n r i g h t basis, and there i s a f i n i t e amount of water which can be recorded for use from any given source. The holder of the r i g h t to use water may lose h i s entitlement to some or a l l of the allotment i f he i s not making s a t i s f a c t o r y use of i t . Because the p r o v i n c i a l l e g i s l a t i o n did not permit Indians to f i l e a claim for water r i g h t s u n t i l 1888, reserve lands were twenty years behind other claimants i n the same area. The statutory scheme does not now, and never did recognize any r i g h t to water based on length of use or aboriginal t i t l e . Although various reserve Commissioners had included a r e s e r v a t i o n of water r i g h t s when e s t a b l i s h i n g reserves, the l e g i s l a t i o n d i d not recognize those records as v a l i d . I t was not u n t i l 1921 that claims were recognized based on the allotment by reserve Commissioners, and even then, the e f f e c t i v e date was deemed to be the date on which the record was f i l e d . 3 1 Since no claims were f i l e d on behalf of Indian bands u n t i l a f t e r 1888, the Indian Water Claims Act did not go very far 3 0 See Rugby Joint Water Board v. Walters, [1966] 3 A l l E.R. 497 (Ch.D.), at 508. 3 1 Indian Water Claims Act, S.B.C. 1921, 2nd Sess., c.19, s s • 2 p 3 • 83 to remedy the l a t e s t a r t of Indian bands i n recording water r i g h t s . The "use i t or lose i t " feature, which q u a l i f i e s water rights under the l e g i s l a t i o n , may be generally viewed as a reasonable one to apply i n a system of water l i c e n c i n g . However i t may cause problems when applied to an Indian reserve. Reserve lands are set apart f o r the b e n e f i t of an entire band, as a land base and heritage for future generations. The on-reserve population, as well as the uses to which the land i s put, may be subject to dramatic change over the years. In t h i s respect a reserve i s more l i k e a m u n i c i p a l i t y , as opposed to a l a r g e ranching operation, or other i n d i v i d u a l enterprise. The need for water i n 1888 may not compare to the need i n 1988. One example of dramatic change i s the recent amendments to the Indian Act, regarding membership. 3 2 As a r e s u l t of these l e g i s l a t i v e changes most bands w i l l see a s u b s t a n t i a l increase i n membership, and perhaps a corresponding increase i n on-reserve population. The federal and p r o v i n c i a l governments should continue to cooperate i n the management of water resources, and i n a way that w i l l address the unique needs of Indian reserve lands. An Act to Amend the Indian Act, S.C. 1985, c.27. 84 In the absence of cooperation between the two l e v e l s of government the j u r i s d i c t i o n over water would be s p l i t i n an unmanageable way. Indian bands would enjoy c e r t a i n r i p a r i a n r i g h t s over waters ac t u a l l y on or adjacent to t h e i r reserves. T h e o r e t i c a l l y these would include the r i g h t to use water for ordinary domestic purposes, the r i g h t to an undiminished flow of water, both i n quantity and quality, r i g h t s of access to a l l waters touching the reserve, and the r i g h t to use ground and surface waters. 3 3 While the r i g h t of access, and r i g h t s to use of ground and surface waters have not r e a l l y been affected by the Water Act, the important r i g h t s , r e l a t i n g to use and flow would c o n f l i c t with p r o v i n c i a l licenses. I t i s d i f f i c u l t to predict how a court might resolve a c o n f l i c t between an Indian band, claiming use pursuant to r i p a r i a n right, and a p r o v i n c i a l water l i c e n s e e . Because of the f e d e r a l l e g i s l a t i v e j u r i s d i c t i o n i n section 91(24) of the Consitution Act,  1867, any p r o v i n c i a l i n t e r f e r e n c e with water or water r i g h t s associated with reserve lands requires f e d e r a l c o o p e r a t i o n . 3 4 However s i n c e the p r o v i n c i a l l e g i s l a t i o n a n t e - d a t e s the establishment of many reserves i n B r i t i s h Columbia, i t may be See Gerard La Forest, Water Law i n Canada: The A t l a n t i c  Provinces (Ottawa: Information Canada, 1973). Chapter 9 provides a good review of the Canadian law regarding r i p a r i a n r i g h t s . LaForest, Water Law, 44. 85 that, despite the exclusive federal j u r i s d i c t i o n , water rights associated with reserve lands are subject to the p r i o r r i g h t s of others, obtained pursuant to p r o v i n c i a l law. J u d i c i a l decisions regarding waters i n the Railway Belt may pro v i d e some i n s i g h t i n t o the r e s o l u t i o n of j u r i s d i c t i o n a l c o n f l i c t over water situate on f e d e r a l l y administered lands within the province. The f i r s t major case to deal with the transfer of the Railway Belt was The Queen v. Farwell. 3 5 The p l a i n t i f f , Farwell, claimed ownership of a t r a c t of land inside the Belt based on a p r o v i n c i a l grant made i n 1885. The Supreme Court of Canada held that, after the date of transfer the province ceased to have any control over the lands within the Belt, and therefore the p l a i n t i f f ' s t i t l e was i n v a l i d . Following the p r i n c i p l e stated i n Farwell, and other subsequent decisions of the Privy Council, the B r i t i s h Columbia Court of Appeal l a t e r r u l e d that p r o v i n c i a l water records issued to landholders i n the Belt p r i o r to the transfer (1884) were v a l i d . 3 6 The Privy Council had ju s t e a r l i e r held that the province could 3 5 3 6 The Queen v. Farwell (1887), 14 S.C.R. 492. George v. M i t c h e l l (1912), 3 W.W.R. 162 (B.C.C.A.) 86 not issue water licences over water included i n the Belt a f t e r the t r a n s f e r , since the land and the water r i g h t s were under the exclusive j u r i s d i c t i o n of the Dominion. 3 7 In the Burrard Power case, the Court held that the e f f e c t of the transfer of "public lands" by the province to the Dominion was to g i v e the Dominion e x c l u s i v e l e g i s l a t i v e and e x e c u t i v e j u r i s d i c t i o n over the lands under what i s now s. 91 (IA) of the C o n s t i t u t i o n Act, 1867 (public p r o p e r t y ) . 3 8 The province had argued that even i f the proprietary r i g h t s to the land and water had passed to the Dominion, the province maintained l e g i s l a t i v e j u r i s d i c t i o n . The reasoning used by the Court i n r e j e c t i n g t h i s argument has great s i g n i f i c a n c e to the issue of j u r i s d i c t i o n over waters on Indian reserves i n B.C. A f t e r r e f e r r i n g to the "agreement" embodied i n a r t i c l e 11 of the Terms of Union, Lord Mersey stated: To hold that the Province a f t e r the making of such an agreement remained at l i b e r t y to l e g i s l a t e i n the sense contended for would be to defeat the whole object of the agreement, for i f the Province could by l e g i s l a t i o n take away the water from the land i t could also by l e g i s l a t i o n resume posses s i o n of the land i t s e l f , and thereby so derogate from i t s own grant as to u t t e r l y destroy i t . 3 9 3 7 3 8 3 9 Burrard Power Co. v. The King, [1911] A.C. 87 ( P . C ) . Ibid., 94. Ibid. 87 If the reasoning i n the above noted cases i s applied to Indian reserves i t would appear that the r i p a r i a n r i g h t s of use and flow w i l l be subject to ri g h t s of licensees who acquired t h e i r right p r i o r to the establishment of the reserve. Any licences which a f f e c t the supply or qu a l i t y of waters on reserve lands, and which were issued subsequent to the establishment of the reserve may be regarded as unlawful i n t e r f e r e n c e with f e d e r a l l y administered waters. An a l t e r n a t i v e argument might be t h a t the p r o v i n c i a l l e g i s l a t i o n had abolished c e r t a i n r i p a r i a n r i g h t s by declaring ownership of a l l waters to be i n the Crown i n r i g h t of the province. Hence the only way i n which water r i g h t s can be obtained i s through the Crown, pursuant to the statutory scheme. That seems to be the e f f e c t of the current water l e g i s l a t i o n . By the time that the reserves were conveyed to Canada, the common law water r i g h t s normally associated with land ownership had been superseded by l e g i s l a t i o n , and therefore could not be passed along as part of the land transfer. However, the p r o v i n c i a l l e g i s l a t i o n respecting water r i g h t s did not purport to apply to waters under federal j u r i s d i c t i o n . 4 0 When i n 1939 the water l e g i s l a t i o n was re-enacted i n i t s modern form, there was no express exclusion of See, for example, the Water P r i v i l g e s Act, 1892, S.B.C. 1892 c.47, s.2. 88 waters under federal j u r i s d i c t i o n . 4 1 The Act simply vested the property i n a l l waters i n the Crown p r o v i n c i a l . However the conveyance of most of the reserves i n B r i t i s h Columbia was effected i n 1938. If a court was to look to the terms of the conveyance, as i n the Railway Belt cases, i n order to determine whether water r i g h t s passed, there i s nothing i n 0/C 1036 to suggest that waters were not included with the transferred land. The only reference to water rig h t s i s the proviso, noted above, which reserves c e r t a i n " p r i v i l e g e s " to the province. The negotiations preceding the passage of 0/C 1036 indicate that the proviso does not give the province exclusive r i g h t s to, or ownership of water on reserves. Just before 0/C 1036 was passed, i n July 1938, the p r o v i n c i a l negotiators attempted to change the form of conveyance that had been agreed upon i n the Scott-Cathcart Agreement of 1929. The province attempted to strengthen t h e i r water rig h t s i n reserve lands by replacing the second proviso with the following clause: 2. That a l l water r i s i n g , being or flowing i n , on, under or through the s a i d lands be exempted from t h i s conveyance and that i t s h a l l be lawful for the Province or f o r any person authorized i n that behalf by the Province to take and use so much of the said lands as Water Act, 1939, S.B.C. 1939, c.63, s.3. This was the f i r s t time that the vesting provision did not expressly exclude federal waters. The 1892 Act, noted above, was the f i r s t Act which s p e c i f i c a l l y vested a l l waters, except those under federal jurisdiction, i n the Crown provincial. 89 may be required f o r the construction, maintenance and operation of works for storing, d i v e r t i n g and conveying water, paying therefore a reasonable compensation. 4 2 The province attempted, unsuccessfully to exempt a l l water r i g h t s from the conveyance. The r e j e c t i o n of the above noted clause i s evidence that the common law water r i g h t s i n reserve lands were preserved for the benefit of the Indians, subject only to the p r i v i l e g e of the Crown to use and carry water over the lands on payment of reasonable compensation. Also, as previously noted, the r i g h t s of a band may be subject to r i g h t s acquired by others p r i o r to the establishment of the reserve. I t should f i n a l l y be noted that since the federal government i s competent to l e g i s l a t e with respect to waters on reserve land, i t would be t h e o r e t i c a l l y possible to have a federal statutory scheme that would operate exclusively on reserve lands. The Indian Act c u r r e n t l y empowers band co u n c i l s to enact by-laws concerning waters on reserves, and so the p o t e n t i a l for c o n f l i c t between the federal and p r o v i n c i a l j u r i s d i c t i o n s i s apparent. 4 3 In view of a l l the circumstances i t appears that the only practicable way of p r o p e r l y and e f f e c t i v e l y managing water re s o u r c e s i s . the cooperative approach which i s currently being pursued. B o r t h w i c k , " O r d e r i n C o u n c i l 1036", e x h i b i t F - l . I n d i a n A c t , R.S.C. 1970, c . I - 6 , s . 8 1 ( l ) ( f ) , ( 1 ) , ( o ) . 90 Waters i n the Railway Belt Before leaving the subject of water r i g h t s on reserve lands, the unique p o s i t i o n of reserves within the o l d Railway Belt must be addressed. The f e d e r a l government moved to remedy the p r a c t i c a l problems caused by t h e i r exclusive j u r i s d i c t i o n over waters i n the Belt by adopting the p r o v i n c i a l water l e g i s l a t i o n as t h e i r own. The Railway Belt Water A c t 4 4 was f i r s t enacted i n 1912 i n response to the decision i n the Burrard Power case. The Dominion moved s w i f t l y a f t e r the Burrard Power decision, passing an order i n council (December 20, 1911) which purported to t r a n s f e r the administration of water r i g h t s i n the Belt to the p r o v i n c e . 4 5 The l e g a l i t y of t h i s d e l e g a t i o n of power was strengthened with the passage of the Railway Belt Water Act, i n 1912. The Act vested a l l ungranted water r i g h t s i n the Crown, pr o h i b i t e d further a c q u i s i t i o n of r i p a r i a n r i g h t s and provided that the waters i n the Belt were to be administered under the B r i t i s h Columbia Water Act, 1909. The act of 1912 contained some serious d r a f t i n g mistakes, since the p r o v i n c i a l statute of 1909 had been repealed. The Railway B e l t Water Act was therefore amended i n 1913 4 6 to allow for 4 4 4 5 4 6 R.S.C. 1927, c.211, o r i g i n a l l y enacted by S.C. 1912, c.47. C a i l , 122. Railway Belt Water Act, 1913, S.C. 1913, c.45. p r o v i n c i a l a d m i n i s t r a t i o n pursuant to any p r o v i n c i a l water l e g i s l a t i o n i n force from time to time. The Act was amended again i n 1926 4 7 and consolidated i n the Revised Statutes of Canada, 1927. 4 8 I t was not included i n subsequent consolidations, but neither was i t repealed. 4 9 I t remains i n force and s t i l l applies to Indian reserves i n the old Railway B e l t . 5 0 The most important e f f e c t of the Act was to put a l l land and water i n the Railway Belt under the same system of water righ t s administration as a l l other lands i n B r i t i s h Columbia. That i s , the Water Act of 1913, and i t s successors applied to the waters of the Railway Belt, including waters on Indian reserves. The Right to Resume Land Perhaps the most controversial of the provisions i n 0/C 1036 i s the f i r s t one, which gives the province the r i g h t to resume up to l/20th of reserve lands. The p r o v i n c i a l government claims the r i g h t to take land from Indian reserves pursuant to t h i s clause 4 7 Railway Belt Water Act, 1926, S.C. 1926, c.15. 4 8 Railway Belt Water Act, R.S.C. 1927, c.211. 4 9 However there were some minor amendments created by the Railway Belt Water Act, 1928, S.C. 1928, c.6. 5 0 The Act s t i l l applies to Indian Reserves i n the Railway Belt because they were excepted from the general re-transfer of the Belt. 92 without payment of compensation. I t i s a very troublesome provision for Indian bands i n B r i t i s h Columbia and i t w i l l be examined here i n d e t a i l i n an e f f o r t to determine i t s l e g a l e f f e c t , including whether compensation i s required. The proviso i s as follows: PROVIDED NEVERTHELESS that i t s h a l l at a l l times be lawful for Us, Our heirs and successors, or for any person or persons acting i n that behalf by Our or t h e i r authority, to resume any part of the said lands which i t may be deemed necessary to resume fo r making roads, canals, bridges, t o wing p a t h s , or o t h e r works of p u b l i c u t i l i t y or convenience; so, nevertheless that the lands so to be resumed s h a l l not exceed one-twentieth part of the whole of the lands aforesaid, and that no such resumption s h a l l be made of any lands on which any buildings may have been erected, or which may be i n use as gardens or otherwise for the more convenient occupation of any such buildings: I t can be seen that the proviso allows the province to resume any part of the "said lands", but only up to l/20th of the whole. There i s a further exception to the resumption power, that any land upon which any building has been erected or that i s i n use as garden or "otherwise for the more convenient occupation of any such b u i l d i n g " may not be resumed. There i s no mention of compensation being paid, nor i s i t expressly stated that no compensation i s necessary. I t i s also unclear whether the l/20th l i m i t i s to be calculated i n r e l a t i o n to each reserve, or to the t o t a l area of a l l reserves i n the Schedule to 0/C 1036. 93 T h i s p r o v i s i o n , l i k e most of the others, was reproduced verbatim from the standard form Crown grants of the time. 5 1 It has received minimal j u d i c i a l consideration i n r e l a t i o n to Indian lands, and there are very few cases where the clause has been considered i n p r i v a t e grants. In the Moses case the B r i t i s h Columbia Supreme Court held that the resumption power was v a l i d and the province had a r i g h t to enter upon Indian lands for the purpose of making surveys i n furtherance of exercising the ri g h t to resume. 5 2 I t was held that the Orders i n Council ( B r i t i s h Columbia 0/C 1036 and P.C. 208) were v a l i d l y passed pursuant to the authority of the p r o v i n c i a l Indian A f f a i r s Settlement Act and the f e d e r a l B r i t i s h Columbia Indian Lands Settlement A c t . 5 3 Although the Court did not give any detailed reasoning, i t further construed the provision as being a "reservation to the province of a r i g h t to resume possession of a portion of each reserve for purposes of p u b l i c works", and that such reservation did not constitute a taking of lands or an a l i e n a t i o n of lands as provided for i n the Indian A c t . 5 4 See for example the Land Act, R.S.B.C. 1924, c.131, Schedule, Forms 9 and 11. Moses v. The Queen, [1977] 4 W.W.R. 474, at 485, and 490-91. Ibid., 490. Ibid. 94 What i s a Resumption? The Court i n Moses d e s c r i b e d the r i g h t to resume as a " r e s e r v a t i o n " i n the g r a n t . I t c o u l d not have been an "exception", as the thing to be excepted was not i d e n t i f i e d at the time of the grant. The reservation was of a r i g h t to take back any part of the land up to a s p e c i f i e d amount. On the basis of the holding i n Moses and on the p l a i n reading of the provision t h i s i s a reservation of a r i g h t to claim a c e r t a i n i n t e r e s t i n the land at some future date. The Moses case does not provide any d e t a i l s on what a resumption i s and how i t operates i n law. Similar resumption provisions were used i n A u s t r a l i a i n the l a s t c entury and ther e i s a l a r g e r body of case law from that j u r i s d i c t i o n . Before reviewing the jurisprudence from Canada and A u s t r a l i a r e g a r d i n g the resumption power of the Crown, some l e g a l d e f i n i t i o n s should be noted. A resumption has been defined as follows: 1) Resumption i s a word used i n the statute of 31 Hen. 6., c.7, and i s there taken for the taking a g a i n i n t o the King's hands such l a n d s or tenements as upon f a l s e suggestion or other error he had made l i v e r y of to an heir, or granted by patent unto any man".55 John S. James, Stroud's J u d i c i a l Dictionary, 4th ed., v o l . 4, 2387. 95 2) The ac t i o n on the part of the Crown or other a u t h o r i t y , of reassuming possession of lands, r i g h t s , e t c . , which have been bestowed on others. 5 6 In A u s t r a l i a the term "resumption" i s today used i n the same context as we use the term "expropriation". 5 7 However, i t seems that i n the o l d Crown grants of that colony the reservation of a r i g h t to resume lands was used i n the same way as i t was i n B r i t i s h Columbia. There were no expropriation statutes i n e f f e c t , and the Crown preferred to use the reservation to provide for future contingencies rather than having to bargain for the land back at a time when the value had greatly increased. The purpose of the reservation has been noted i n the case law. In a d i s s e n t i n g opinion i n Caine v. Corporation of S u r r e y 5 8 McPhillips, J.A. commented upon the need for municipalities to r e a l i z e upon the r i g h t of resumption i n Crown grants: Roads are es s e n t i a l i n the development of any country and the Legislature i n i t s wisdom and with proper regard to economy and future administration provided for event u a l i t i e s and safeguarded the municipal authority from undue exactions upon the part of the owners of land for compensation for rights-of-ways f o r roads. Were t h i s not foreseen the retarding of settlement would be greater than i t now i s and 5 6 S i r James A.H. Murray, ed. A New English Dictionary on  H i s t o r i c a l P r i n c i p l e s , Vol. 8 (Oxford: Clarendon Press, 1914), 559. 5 7 Douglas Brown, Land Ac q u i s i t i o n (Sydney: Butterworths, 1972), see Chapter 4, generally, 12-19. 5 8 [1920] 2 W.W.R. 681. 96 would leave s e t t l e r s without roads of necessity owing to the extensive outlay consequent upon expropriation proceedings and purchase of land for road purposes. I t may be assumed, t h a t roads w i l l not be unduly e s t a b l i s h e d and, i f established, i t reasonably may be assumed as well that they are roads of benefit and advantage to the adjoining lands. The allowance of capricious objection to resumption would be destructive of the declared public p o l i c y of the Legislature and the present action i s an objection of that character and i s wholly without m e r i t . 5 9 In Cooper v. S t u a r t 6 0 the Privy Council considered the v a l i d i t y of a resumption power i n an Australian Crown grant. The appellant had, amongst other points, argued that the reservation was void for being contrary to the rule against perpetuities. The court rejected that argument with the following reasoning: Assuming next (but for the purposes of t h i s argument only) that the rule has, i n England, been extended to the Crown, i t s s u i t a b i l i t y , when so applied, to the necessities of a young Colony raises a very d i f f e r e n t question. The object of the Government, i n giving o f f public lands to s e t t l e r s , i s not so much to dispose of the land to pecuniary p r o f i t as to a t t r a c t other c o l o n i s t s . It i s simply impossible to foresee what land w i l l be required for public uses before the immigrants a r r i v e who are to constitute the public. Their prospective wants can only be provided for i n two ways, eithe r by reserving from settlement portions of land, which may prove to be useless for the purpose for which they are reserved, or by making grants of land i n settlement, r e t a i n i n g the r i g h t to resume such parts as may be found necessary for the uses of an increased population. To adopt the f i r s t of these methods might tend to defeat the very objects which i t i s the duty of a c o l o n i a l governor to Ibid., 688. (1889), 14 App. Cas. 286 ( P . C ) . 97 promote; and a rule which rests on considerations of public p o l i c y cannot be said to be reasonably applied when i t s appl i c a t i o n may probably lead to that r e s u l t . Their Lordships have, accordingly, come to the conclusion that, assuming the Crown to be affected by the rule against perpetuities i n England, i t was nevertheless inapplicable i n the year 1823, to Crown grants of land i n the Colony of New South Wales, or to reservations or defeasances i n such grants to take e f f e c t on some contingency more or less remote, and only when necessary for the public good. 6 1 The case of Cooper v. Stuart appears to be the leading case on the v a l i d i t y of a reservation i n a Crown grant of a r i g h t to resume. The appellant i n Cooper challenged the v a l i d i t y of the following reservation i n a Crown grant: reserving to His Majesty, his heirs and successors... such parts of the said land as are now or s h a l l hereafter be required . . . for a highway or highways; and, further, any quantity of land, not exceeding ten acres, i n any part of the s a i d grant, as may be required for public purposes... 6 2 He sought a d e c l a r a t i o n that the reservation to the Crown to resume any quantity of land not exceeding ten acres was i n v a l i d because i t was, (a) void for repugnancy to the grant, and (b) that i t v i o l a t e d the rule against perpetuities. Several "private law" conveyancing cases were c i t e d i n support of the appellant's f i r s t argument but the Court r e j e c t e d t h e i r a p p l i c a b i l i t y with the following reasoning: Ibid., 293-94. Ibid., 288. 98 Assuming these a u t h o r i t i e s , and the very tec h n i c a l rule which they establish, to be applicable to a Crown grant of pu b l i c property i n a Young Colony, i t appears to t h e i r Lordships that the reservation i n the grant of 1823 does not constitute an exception within the meaning of the ru l e . An exception i s that by which the grantor excludes some part of that which he has already given, i n order that i t may not pass by the grant, but may be taken out of i t and remain with himself. A v a l i d exception operates immediately, and the subject of i t does not pass to the grantee. Their Lordships are of op i n i o n that the grant to Hutchinson c a r r i e d to him the whole 1400 acres, but subject to a defeasance as to 10 acres. The whole and every part of the lands granted vested, and have, from the 27th of May, 1823, to November, 1882, been i n the ownership and possession of the grantee or h i s r e p r e s e n t a t i v e s , s u b j e c t to th a t provision, which the p l a i n t i f f describes i n h i s statement of claim as a "reservation of a r i g h t to resume any quantity of land, not exceeding ten acres, i n any part of the said grant". It i s obvious that such a provision does not take e f f e c t immediately, i t looks to the future, and possibly to a remote future. I t might never come into operation, and when put i n force i t takes e f f e c t i n defeasance of the estate previously granted, but not as an exception. 6 3 A c c o r d i n g t o t h e P r i v y C o u n c i l t h e n , t h e r e s e r v a t i o n o f a r i g h t t o r e s u m e a c e r t a i n a m o u n t o f l a n d o u t o f a g r a n t o p e r a t e s a s a " d e f e a s a n c e " o f t h a t p a r t o f t h e g r a n t . I t i s n o t a n " e x c e p t i o n " f r o m t h e g r a n t b e c a u s e i t d o e s n o t o p e r a t e i m m e d i a t e l y . I t o p e r a t e s i n t h e f u t u r e , i f a t a l l . T h e i n s e r t i o n o f s u c h a p r o v i s i o n i n a g r a n t d o e s n o t t a k e a n y t h i n g a w a y f r o m t h e e s t a t e g r a n t e d , a s t h e w h o l e p a r t o f t h e l a n d s p a s s e s i n t o t h e o w n e r s h i p a n d p o s s e s s i o n o f t h e g r a n t e e f r o m t h e d a t e o f t h e g r a n t , b u t s u b j e c t t o a " d e f e a s a n c e " o f t h e s p e c i f i e d a m o u n t . I bid., 289-90. 99 A defeasance has been defined as some thing which defeats the operation of a deed or document, and i f contained i n the same deed i t i s c a l l e d a c o n d i t i o n . 6 4 I t has a l s o been noted that before a defeasance can be consummated any conditions must be s t r i c t l y performed. 6 5 Relating t h i s to 0/C 1036, i t could be argued that a l l conditions contained i n the t h i r d proviso (notice to the Department of Indian A f f a i r s ) are conditions precedent to the operation of the r i g h t to resume. As well, i t could be argued that the province would have to show that t h e i r planned resumption did not exceed l/20th of the reserve lands, and d i d not f a l l i nto any of the other exceptions. U n t i l t h i s i s done, there i s no o b l i g a t i o n on the federal government nor on the Indians to y i e l d up possession of the resumed l a n d . 6 6 Support for the above proposition i s found i n Power v. The  King, 6 7 a decision of the Supreme Court of Canada. In that case the Court construed a r i g h t of resumption contained i n the grant of a water l o t . The Crown patent contained a provision which 6 4 Re Storey; ex p. Popplewell (1882) 21 Ch.D. 23, at 81, (Eng.C.A.). 6 5 John Blake, ed., Jewitt's Dictionary of English Law, 2nd ed. v o l . 1 (London: Sweet & Maxwell, 1977), 579. 6 6 Note, however, the decision i n Moses, supra, wherein the Court held that the p r o v i n c i a l a u thorities could not be charged with trespass, due to the necessity of making surveys p r i o r to complying with the notice provisions i n 0/C 1036. 6 7 (1918), 56 S.C.R. 499; 42 D.L.R. 387 100 reserved the r i g h t to resume a l l or part of the l o t upon giving twelve months notice and upon payment of compensation for any improvements. 6 8 The court r e f e r r e d to t h i s p r o v i s i o n as a "condition i n the grant". 6 9 The appellant t r i e d to argue that according to the law of Quebec ( C i v i l Code) the Crown's ri g h t to resume had been p r e s c r i b e d (barred by passage of time). In re j e c t i n g t h i s argument the Court described the operation of the ri g h t to resume: Had the condition entailed an o b l i g a t i o n on the part of the g r a n t e e , t h a t o b l i g a t i o n would, perhaps, have been susceptible of negative p r e s c r i p t i o n under ar t . 2210 C C . by nonfulfillment of i t during a period of 30 years, or during a shorter period under some other p r e s c r i p t i o n provision. But I i n c l i n e to think that the Crown's r i g h t of resumption did not impose any ob l i g a t i o n upon the holder of the land. I f there was anything that could properly be c a l l e d an o b l i g a t i o n c o n t r a c t e d by the grantee and binding h i s successors i n t i t l e i t was to surrender or d e l i v e r up possession of the property. That o b l i g a t i o n would arise, however, only when 12 months had elapsed a f t e r notice had been duly given of i n t e n t i o n to exercise the r i g h t of resumption and the other terms of the c o n d i t i o n , i f applicable, had been complied w i t h . 7 0 The Crown Patent i s set out i n the decision of the Exchequer Court, at (1916), 16 Ex.C.R. 104, at 114. See Supreme Court of Canada decision, 42 D.L.R. 387, at 388. Ibid., 390. 101 Note the comments with respect to the grantee's o b l i g a t i o n to surrender possession of the property. That o b l i g a t i o n would arise only when a l l applicable terms of the "condition" - i . e . the right to resume - had been complied with by the Crown. Limits on the Resumption Power As noted above, some of the l i m i t a t i o n s on the power to resume are i n c l u d e d i n the p r o v i s o - the l/20th l i m i t a t i o n , non-resumability of gardens and land upon which any buildings have been erected. The case law on resumptions i s scarce, but the exceptions to the r i g h t have been considered by the B r i t i s h Columbia Court of Appeal i n one old case. In Caine v. Corporation  of Surrey 7 1 the municipality had attempted to exercise the r i g h t to resume up to l/20th of the p l a i n t i f f ' s land (the Municipal Act, allowed m u n i c i p a l i t i e s to exercise t h i s r i g h t which was reserved out of Crown grants to i n d i v i d u a l s ) . The p l a i n t i f f (Respondent i n the Court of Appeal) claimed that the required land could not be resumed once i t f e l l within the exception "gardens or otherwise for the more convenient occupation of any such buildings". The evidence as to what actual use the land was put does not appear i n the report, however, i t i s c l e a r that there was no building that was affected by the resumption. The t r i a l judge gave a broad [1920] 2 W.W.R. 681. 102 i n t e r p r e t a t i o n to the exception and concluded that, on the evidence, the proposed road a c t u a l l y encroached upon "garden land". The b r i e f judgment on t h i s point i s as follows: S t r i c t l y speaking, i t may seem erroneous to speak of any land outside of the four walls of a b u i l d i n g as being i n use for the more convenient occupation of the building, but to my mind the word "occupation" has here a much wider meaning. I would say that regard must be had to the uses to which the bu i l d i n g i s put and so having regard I would say that a driveway to a house i s i n use f o r the more convenient occupation of the house and the ordinary farm barnyard i s i n use for the more convenient occupation of stable and barn. In my view, i t i s not a question as to the extent of the ground so used, whether a r e s t r i c t e d or a generous area the question i s one of f a c t . Was i t so used? One guide to a decision on t h i s question of fact or, perhaps I should say, one element which should enter into the c a l c u l a t i o n , i s t h i s : Is the land withdrawn from the larger purposes of the farm, the growing of grain, the depasturing of c a t t l e , and the l i k e , and kept for use i n connection with the house and farm building? Looking at the matter i n t h i s l i g h t , I have no h e s i t a t i o n i n holding that a l l the land to the south of the p l a i n t i f f ' s house, of h i s stable, and of h i s barn, r i g h t up to the south boundary of h i s land was land i n use for the more convenient occupation of these buildings. I need not, therefore, go into d e t a i l s , but I should add that, i n my opinion, the evidence shows that the proposed road a c t u a l l y encroaches i n d e t a i l upon garden l a n d . 7 2 The municipality appealed, but the Court of Appeal agreed with the t r i a l judge. The Court of Appeal judgment i s also b r i e f but nevertheless deals e x c l u s i v e l y with the i n t e r p r e t a t i o n of the exception to resumption. One of the Justices on appeal simply agreed with the t r i a l judge and another dissented. In the Ibid., 682-83. 103 deciding opinion Mr. Justice Martin elaborated on the issue what might be included as garden land i n a s s o c i a t i o n with bu i l d i n g : I am of the opinion that the important word "gardens" should not be held to mean i n t h i s country, as was strongly urged upon us, supported by E n g l i s h a u t h o r i t i e s , only areas i n c l o s e d by walls, fences, etc., for i t i s an open and notorious f a c t even i n our own c i t i e s there are innumerable gardens f r o n t i n g on the streets which have no inclosure towards the highway, but simply a boundary curb (and often not even that between the grass and the pavement) as i s indeed the case i n the spacious garden which on a l l sides surrounds the Parliament buildings i n V i c t o r i a . There are, of course, various kinds of gardens, such as kitchen or flower, or tree, etc. or nursery, which vary i n s i z e and kind i n urban or suburban residences, or farms or c a t t l e or chicken ranches, etc. "Garden" i s a wide and h i s t o r i c a l l y popular word, and the f i r s t one which we have authentic information from holy writ, was "planted" by the Almighty, "Eastward i n Eden" ( i i Gen. 8), and He "took the man and put him into the Garden of Eden to dress i t and keep i t " (15); i t was a tree garden, for i n i t : grew every tree that i s pleasant to the sight and good for food; the tree of l i f e also i n the middle of the garden, and the tree of knowledge of good and e v i l ; Nothing else i s mentioned as growing i n i t , and though i t was watered by four r i v e r s and guarded by cherubim and a flaming sword, a f t e r Adam and Eve were ejected there i s no word of any wall or other inclosure surrounding i t . Second, a d i f f i c u l t question arose under said sec. 325 of the Municipal Act, 1914, ch. 52, regarding the exception against the resumption of lands "which may be i n use as gardens or otherwise for the more convenient occupation of any such buildings". The language i s open doubtless to extremes of construction i n either d i r e c t i o n , as i l l u s t r a t e d by counsel at the Bar, but broadly and simply i t means, I think, that i f there are buildings upon "the whole (area) of the lands granted as aforesaid" (here o r i g i n a l l y 160 acres) which are subjected to the power of resumption, then any part of that land which i s " i n use as gardens or other wise for the more convenient occupation of *** such buildings" i s excluded from resumption. 104 As to whether or not the use of a piece of land as "a garden or otherwise" i s a "convenient occupation" i n connection with any "building", or the many buildings of a farmstead or otherwise, that i s a matter of f a c t dependent upon the circumstances of each case. 7 3 One f i n a l point should be noted about the Caine case. At t r i a l , the p l a i n t i f f had s u c c e s s f u l l y sought a permanent injunction forbidding the municipality from exercising the right of resumption. The B r i t i s h Columbia Court of Appeal simply dismissed the appeal by the municipality. On further appeal to the Supreme Court of Canada Surrey's appeal was dismissed without a d d i t i o n a l reasons, but the Supreme Court varied the o r i g i n a l r u l i n g . I t was held that the p l a i n t i f f was not e n t i t l e d to a permanent i n j u n c t i o n covering a l l of h i s lands. Rather, the municipality was free to attempt resumption of some other part of the p l a i n t i f f ' s land, or to obtain the required parcel by regular expropriation proceedings. 7 4 In the Caine case the v a l i d i t y of the reserved r i g h t to resume i n the Crown grant was not challenged and a l l courts seemed to assume i t s v a l i d i t y . However, that case provides the basis for some i n t e r e s t i n g p r a c t i c a l s t r a t e g i e s to be employed against resumption proceedings. If a Band wanted to defeat the u n i l a t e r a l action of the province, i t appears that t h i s could be done by 7 3 Ibid., 683-84. 7 4 Corporation of Surrey v. Caine (1920), 60 S.C.R. 654. 105 erecting a b uilding (apparently any building would do) and perhaps p l a n t i n g a garden on the required land. The province cannot resume u n t i l i t has provided notice and plans of the proposed work to the Department. It would l i k e l y be f a i r l y easy to anticipate which lands were required before the r e q u i s i t e pre-conditions to resumption had been met. I f a Band wanted to "play hardball" with the province over the issue of compensation, some advantage could be gained by employing such a strategy, and thereby n e u t r a l i z i n g the threat of resumption. Calculation of Resumable Portion Due to the wording of 0/C 1036 i t might be possible for the province to argue that the r i g h t to resume r e l a t e s to the t o t a l acreage of a l l reserves scheduled to 0/C 1036. The resumption provision r e f e r s to the "said lands" and the only description of the "said lands" i s found i n the preceding de s c r i p t i o n of the lands to be conveyed: "the lands set out i n Schedule A attached hereto..." . The province contends that they are e n t i t l e d to resume up l/20th of the t o t a l acreage of a l l reserves conveyed by 0/C 1036. 7 5 Therefore, i f they have reached the l/20th l i m i t i n any one p a r t i c u l a r reserve they could l e g a l l y T h i s i n t e r p r e t a t i o n has been noted by p r o v i n c i a l a u t h o r i t i e s , see, MacSween, 3.1.07. 106 exceed that l i m i t i n that reserve so long as the t o t a l of t h e i r resumptions pursuant to 0/C 1036 does not exceed l/20th of the t o t a l area of reserves included i n the schedule. This i s an extreme argument indeed, and one which would not l i k e l y f i n d favour i n a court of law. On t h i s i n t e r p r e t a t i o n the province could take back an e n t i r e reserve or more v i a the resumption power and thereby t o t a l l y defeat the i n t e r e s t of the p a r t i c u l a r Band for whose use and benefit the reserve was set apart and conveyed. Undoubtedly, the province must know t h i s i s not a strong argument, but due to the wording of the Order i n council i t could be raised as a l e g a l issue. In the Moses case, n e i t h e r the Supreme Court of B r i t i s h Columbia nor the Court of Appeal ruled on the issue, but both courts indicated that the resumption was l i m i t e d to l/20th of  each reserve. In the Supreme Court, Mr. Justice Andrews referred to the provision as a "reservation to the province of a r i g h t to  resume possession of a portion of each reserve f o r purposes of public works". 7 6 (my emphasis). By the time the case reached the Court of Appeal the issue of trespass was moot, since the roadwork had been completed. The Court of Appeal decision was b r i e f , but there was an i n t e r e s t i n g q u a l i f i c a t i o n whereby the province agreed not to r a i s e the decision of the Court i n any future proceedings i n s t i t u t e d to determine whether the province had resumed more land 7 6 Moses v. The Queen, [1977] 4 W.W.R. 474, at 490. 107 than i t should have, i n the event that the Court decided that the province had the r i g h t to resume some l a n d . 7 7 Speaking for the Court, Mr. Justice Craig went on to dismiss the appeal saying, "... I am of the opinion that the t r i a l judge was r i g h t i n concluding that the province has the r i g h t to resume up to l/20th of the lands i n each r e s e r v e " . 7 8 (my emphasis). The present p o l i c y of the p r o v i n c i a l government i s to take land pursuant to section 35 of the Indian Act when i t requires land for public purposes. 7 9 The present p o l i c y regarding resumptions has been described as follows: Where a resumable allowance remains using Order i n council 1036/208 or other and an agreement can be consummated, the Province w i l l accept the section 35 Indian Act transfer: "For highway purposes and other works of public u t i l i t y or convenience." Where the resumable allowance has already been expended, a section 35 Indian Act transfer i s desirable but a section 37 Indian Act surrender may prove necessary. A change i n current p o l i c y with respect to the current i n t e r p r e t a t i o n that only one-twentieth of any one reserve i s resumable, may be necessary should the resumable allowance i n respect of the i n d i v i d u a l reserve have been "spent", the Band not wish to consummate an amicable agreement and a determination made by the province that the project must proceed. 8 0 7 7 Moses v. The Queen, [1979] 5 W.W.R. 100 (B.C.C.A.), at 101. 7 8 Ibid., 102. 7 9 MacSween, 3.1 .07. 8 0 Ibid. 108 The p o l i c y statement reveals that even though a resumable allowance remains, the province w i l l accept a s.35 transfer as opposed to the u n i l a t e r a l exercise of the resumption power. Supposedly t h i s i s a sign of good f a i t h on the part of the province, not to take land without some compensation. But can the province r e t a i n i t s r i g h t to resume a f u l l l/20th part of a reserve while accepting a transfer of reserve lands pursuant to section 35 of the Indian Act? Even though a section 35 transfer i s used to provide the province with the lands i t needs, such lands should be included i n the computation of the l/20th l i m i t . It i s suggested that a l l lands taken by any p r o v i n c i a l authority, whether v i a section 35 or 0/C 1036, should be included i n the c a l c u l a t i o n of the l/20th l i m i t . Support f o r the foregoing proposition i s found i n the B r i t i s h Columbia Highway A c t 8 1 and the case law dealing with compensation f o r any t a k i n g of land pursuant to the Act. The issue of compensation for lands taken under the Highway Act, p a r t l y under the power of resumption, was considered by a Board of A r b i t r a t i o n i n the case of B r i t i s h P a c i f i c Properties Ltd. v. Minister of  Highways and Public Works. 8 2 The a r b i t r a t o r s considered the e f f e c t of the then s e c t i o n 16(l)(b) of the Highway Act (now section 14(l)(b)) which reads as follows: Highway Act, R.S.B.C. 1979, c.167. See ss. 6 and 14. (1978), 14 L.C.R. 299. 109 16.(1) Compensation s h a l l be p a i d i n respect of lands entered upon and taken possession of under t h i s Part for the following matters only: (b) Lands which were o r i g i n a l l y granted to some person by the Crown, either i n r i g h t of the Province or Canada, and by the taking of which the t o t a l area taken for the purpose of highways from the lands comprised i n the o r i g i n a l Crown grant i s found to exceed one-twentieth of the t o t a l area of the lands comprised i n the Crown grant, and then only for the area i n excess of one-twentieth of that t o t a l area; but, where the lands comprised i n the Crown grant have been sub-divided into parcels by any registered conveyance or plan of subdivision the area of land which may be so taken from any parcel without the payment of compensation s h a l l not exceed one-twentieth of the area of that parcel, and where lands are being taken from two or more of the parcels at the same time the t o t a l area to be so taken without the payment of compensation s h a l l be appointed among those parcels on the basis of t h e i r respective areas. 8 3 The claimant ( B r i t i s h P a c i f i c Properties) sought c r e d i t for past dedications of roads, to be included i n the c a l c u l a t i o n of the non-compensable l/20th area. The claim was expressed as follows: In computing the value of those portions of the said lands which may be taken by the Minister without compensation by v i r t u e of the provisions of s. 16(1) of the Highway Act, the Claimant has included the area of road dedications to the Crown of land parcels which have been subdivided by the Claimant, and i t i s the p o s i t i o n of the Minister that the Claimant i s not e n t i t l e d to claim such road dedications as part of the statutory non-compensable resumption. 8 4 Ibid., 302. Ibid., 303. 110 I t was argued that by "dedication" such lands had been "taken" under Part I of the Act and, therefore, pursuant to section 16(l)(b), they should be credited to the non-compensable l/20th p o r t i o n . 8 5 The Board agreed with t h i s i n t e r p r e t a t i o n s t a t i n g : I t would seem therefore that "dedication" may be one of the means of taking encompassed by the language of s.16. The A r b i t r a t o r s are of the view, that at the very least, there i s ambiguity as to whether use of the word "taken" i s to be l i m i t e d simply to "expropriated" i n the context of t h i s s ection, or whether i t must be given some broader meaning. I t seems w e l l s e t t l e d i n law t h a t any ambiguity i n l e g i s l a t i o n which authorized expropriation must be resolved i n favour of those whose property, or r i g h t s , are being encroached upon:... 8 6 S e c t i o n 107(1) of the Land T i t l e s Act, R.S.B.C, c.219, provides that upon r e g i s t r a t i o n of a subdivision plan any portion of the land shown as a highway or for public use i s automatically dedicated to public use for the purposes shown. Sub-section (2) provides f o r a q u a l i f i c a t i o n of the operation of some of the provisions i n sub-section (1), where the Crown i n r i g h t of Canada, i n t r u s t for an Indian Band, i s the owner of the subdivision. In view of the B r i t i s h P a c i f i c Properties case i t appears that i f an Indian Band decides to sub-divide and dedicate c e r t a i n portions of the land for public use, then such lands should be included i n the c a l c u l a t i o n of the l/20th resumption power i n 0/C 1036. 8 5 8 6 Ibid., 303-304. Ibid., 304. I l l Procedural Requirements for Resumption Apart from the notice requirement contained i n 0/C 1036 there are no procedures s t i p u l a t e d to govern the exercise of the province's r i g h t to resume. The notice provision i n 0/C 1036 reads as follows: PROVIDED also that the Department of Indian A f f a i r s s h a l l through i t s proper o f f i c e r s be a d v i s e d of any work contemplated under the preceding provisoes that plans of the loc a t i o n of such work s h a l l be furnished for the information of the Department of Indian A f f a i r s , and that a reasonable time s h a l l be allowed for consideration of the said plans and f o r any necessary adjustments or arrangements i n connection with the proposed work. In accordance with t h i s p r o v i s i o n , and pursuant to i t s own pro c e d u r e s the p r o v i n c e c u r r e n t l y observes the f o l l o w i n g requirements: 1. The i n i t i a l n o t i f i c a t i o n to Canada of the intention to carry out such surveys as are necessary to define the project. 2. The o f f i c i a l n o t i f i c a t i o n to Canada of the project accompanied by complete plans and the i n t e n t i o n to resume pursuant to the p e r m i t t i n g document g i v i n g Canada a reasonable time to consider the plans and suggest changes. 3. To make such changes to plans as may prove necessary to proceed with the resumption of the land pursuant to the permitting document and i t i s now P r o v i n c i a l practice to give the f u l l e s t P r o v i n c i a l support possible, ( i . e . 112 by order i n council) to n o t i f y Canada by a copy of the resuming document, a f t e r which entry can be made for the purposes of c o n s t r u c t i o n . 8 7 In the past the resumption has been effected by p r o v i n c i a l order i n council, and that appears to be the present p r a c t i c e . 8 8 Also, i n the past, the Dominion has passed an order i n council acknowledging the province's r i g h t to resume and "conveyed" the subject lands to the province. 8 9 Band Council Resolutions have also been obtained to give up possession of the land to the province i n recognition of the r i g h t to resume. 9 0 To summarize, the procedures followed i n the past have been i n c o n s i s t e n t . According to the Moses case the province does not require a federal order i n council, or a surrender i n order to resume land pursuant to 0/C 1036 (the s i t u a t i o n may be d i f f e r e n t i n the old Railway Belt where Dominion P.C. 208 i s r e l i e d upon, but t h i s w i l l be dealt with l a t e r ) . MacSween, 3.1.08. This was the procedure followed i n the Moses case. See, for example, Privy Council Order No. 1399, March 25, 1949, Department of Indian A f f a i r s Reserve General Regsitry No. 12412. See, for example, Band Council Resolution of the Lower Nico l a Band, August 29, 1962, Department of Indian A f f a i r s Reserve General Registry No. X13790. 113 In a r u l i n g of the B r i t i s h Columbia Supreme Court i t was held that the exercise of the r i g h t to resume land i s subject to the review of the Court under the J u d i c i a l Review Procedure A c t 9 1 and that the resuming authority must comply with the administrative law doctrine of f a i r n e s s . 9 2 In the case of Moser v. The Queen, Mr. J u s t i c e Hinds dealt with a preliminary o b j e c t i o n to h i s j u r i s d i c t i o n . The pr o v i n c e argued that because they were exercising the r i g h t of resumption found i n the Crown grant, they were not acting pursuant to a "statutory power", so as to bring the case within the j u r i s d i c t i o n of the Court under the J u d i c i a l  Review Procedure Act. The Court noted that neither the Crown grant nor the Land Act (R.S.B.C. 1936, c.144, and i t s successors) s t i p u l a t e d how a decision to resume land pursuant to a reservation i n a Crown grant should be effected. I t was noted further, that the Minister of Highways, i n t h i s case, obtained h i s authority to resume land, based on the reservation i n the grant, from Section 8 (now s.6) of the Highway A c t . 9 3 Mr. Justice Hinds dismissed the preliminary objection with the following reasoning: In any event, the d e c i s i o n of the Minister to resume a p o r t i o n of the subject property, while founded on the reservation contained i n the Crown grant, was exercised or made under the powers or righ t s conferred by s.8(l) of the Highway Act. 9 1 9 2 9 3 R.S.B.C. 1979, c.209 Moser v. The Queen (1981), 24 L.C.R. 226. Moser v. The Queen (1981), 24 L.C.R. 226, at 232. 114 . . . i t therefore follows that the Minister's decision was-to paraphrase s.2(2)(b) of the J u d i c i a l Review Procedure Act - i n r e l a t i o n to the exercise, or r e f u s a l to exercise of a statutory power. 9 4 The P l a i n t i f f i n the case had complained about the a r b i t r a r y manner i n which the resumption power was exercised. It was held that the Minister's exercise of h i s d i s c r e t i o n to resume the land v i o l a t e d the doctrine of fairness because, i n the circumstances, i t amounted to an abuse of d i s c r e t i o n . 9 5 In t h i s regard, i t was also noted that the Ministry's methods of negotiation regarding the l o c a t i o n of the land to be resumed deprived Mr. Moser of an opportunity to suggest alternative l o c a t i o n s . 9 6 With respect to Indian reserve land, such an opportunity appears to be safeguarded by the t h i r d proviso i n 0/C 1036. The Moser case i s nonetheless an i n t e r e s t i n g example of how a Court might deal with a "high-handed" approach on the part of the province, when exercising a r i g h t to resume. Ibid., 233. Ibid., 234-235. Ibid., 235. 115 Compensation for Lands Resumed The i s s u e of whether compensation must be paid f o r lands resumed pursuant to 0/C 1036 or P.C. 208 has never been decided by the Courts. The issue was raised and argued i n the Moses case but was never adjudicated nor commented upon by the Supreme Court or Court of Appeal of B r i t i s h Columbia. Arguably the s i t u a t i o n i s unique when the r i g h t to resume i s reserved i n a document t r a n s f e r r i n g administration and c o n t r o l between l e v e l s of Her Majesty's government, as compared to a Crown grant to an i n d i v i d u a l . However, before t h i s s i t u a t i o n i s analyzed, reference w i l l be made to the case law regarding compensation for lands resumed, and the g e n e r a l common law p r i n c i p l e s r e g a r d i n g compensation for lands compulsorily acquired. I t would appear from the case law that no compensation i s necessary when a r i g h t to resume reserved i n a Crown grant, i s exercised. Although t h i s exact point was not i n issue i n Power v. The K i n g , 9 7 the decision necessarily implies t h i s . In that case the Crown elected to i n s t i t u t e expropriation proceedings i n order to acquire land, instead of exercising i t s r i g h t to resume, which i t had r e s e r v e d i n the o r i g i n a l Crown patent. The Crown nevertheless contended that the value of the subject land for (1918), 42 D.L.R. 387 (S.C.C.). compensation purposes, was g r e a t l y reduced because the whole It i s incontestable that i t i s the value of the owner's i n t e r e s t immediately before the expropriation for which he i s e n t i t l e d to compensation. Upon a l l the evidence I should in c l i n e , to the view that the i n t e r e s t , i f subject to t h i s condition of resumption, had no substantial v a l u e . 9 8 I t should be noted, however, that the wording of the resumption i n Power s p e c i f i c a l l y allowed for compensation for improvements to the land. This i s d i f f e r e n t from the resumption power i n 0/C 1036 which i s s i l e n t on compensation altogether. The Court i n Power did not go into d e t a i l why the land, subject to resumption, had "no substantial value", but perhaps the reasoning was based on a reading of the grant, that because compensation was expressly referred to i n one instance i t i s necessarily excluded i n a l l others. In the Moser case, 9 9 although the point was not i n issue, the Court made the following comments regarding compensation: It i s noted with i n t e r e s t that s. 16(1 )(b) of the Highway  Act, R. S.B.C. 1960 (now s. 14(l)(b) of the Highway Act, R.S.B.C. 1979), deals with the matter of compensation to be p a i d f o r lands taken under Part I of the Act - which i n c l u d e d s.8. As the po r t i o n of the subject property pa r c e l was resumable. The Court agreed with t h i s argument, st a t i n g : 9 8 Ibid 389. 9 9 Moser v. The Queen (1981), 24 L.C.R. 226. 117 resumed d i d not exceed one-twentieth of the t o t a l area contained i n the Crown grant, no compensation i s payable to the p e t i t i o n e r . 1 0 0 This case cannot be said to stand for the proposition that no compensation i s ever payable i n the case of a resumption. The C o u r t ' s view was based on the Highway Act which l i m i t s compensation, not the reservation i n the Crown grant. The case law, as well as the Highway Act indicates that a resumption i s treated d i f f e r e n t l y than an expropriation, i n that no compensation i s paid for resumed lands. According to the Privy Council i n Cooper v. S t u a r t 1 0 1 and the B r i t i s h Columbia Supreme Court i n Moses 1 0 2 a resumption i s something reserved out of a grant. In Cooper i t was said to operate as a defeasance, while i n Moses the Court d i d not s p e c i f y how the r e s e r v a t i o n took e f f e c t . 1 0 3 I f such a r i g h t i s reserved out of the grant-notwithstanding that i t actually takes e f f e c t , i f at a l l , i n the future - i t may be that compensation for such reservation i s 1 0 0 Ibid., 232-33. 1 0 1 (1889), 14 App. Cas. 286. 102 [1977] 4 W.W.R. 474. 1 0 3 However, the Court i n Moses perhaps i m p l i c i t l y rejected the reasoning i n Cooper v. Stuart, that the resumption operates as a defeasance. The Dominion had argued that the resumption took e f f e c t as a defeasance, while the province argued that i t was a reservation from the grant. Without commenting upon how the resumption worked, the Court characterized the r i g h t to resume as a reservation from the grant. 118 r e f l e c t e d i n the price paid for the land. That i s , the parties have already bargained for t h e i r respective i n t e r e s t s and rights over the land at the time of the grant. Normally, i n a sale to an i n d i v i d u a l , the re s e r v a t i o n of such a r i g h t would reduce the purchase p r i c e . An o r i g i n a l grantee, undoubtedly acquired land at a bargain rate, as the early land p o l i c y was aimed at att r a c t i n g s e t t l e r s who would improve the land and, eventually the economy. But i n order to purchase the land at such a low, or nominal price, the grantee agreed to take the property subject to the condition that the Crown might i n the future take back up to 5 percent (l/20th) of the land. To successors i n t i t l e , the exercise of the r i g h t to resume, without compensation, may not seem as reasonable. However, they would have been aware of the condition when they purchased, and no doubt would have bargained accordingly. Of course, there was no analogous bargaining with respect to 0/C 1036. At least the Indian Bands did not bargain with the province. To some extent the Federal Government did, but there was no purchase price, nor any r e a l quid pro quo involved. The federal government negotiated with the province over the form of the conveyance, ultimately agreeing to the condition. Since the federal government agreed to the condition, perhaps i t should be ultimately responsible for payment of compensation, i f the province i s not l e g a l l y required to pay. 119 There are two cases from A u s t r a l i a , which are included here for reference, on the issue of compensation. 1 0 4 In both cases the Courts decided that pursuant to the reservation of the r i g h t to resume i n the Crown grant no compensation was necessary. I t i s i n t e r e s t i n g to note, however, that i n each case the Crown grant expressly stated the r i g h t to resume without compensation. F i n a l l y , i t has been said to be the law i n A u s t r a l i a that since the power to resume under a Crown grant i s contractual i n nature, that power i s to be determined according to the express or implied terms of the g r a n t . 1 0 5 This makes much sense, e s p e c i a l l y i n l i g h t of the preceding comments regarding the resumption as one of the things included i n the "bargain" for the land. I t might be argued that since 0/C 1036 does not expressly state that no compensation w i l l be paid, the reverse should be implied. Such an implied term - f o r reasonable compensation - would be reasonable i n view of the common law presumption i n favour of compensation f o r lands compulsorily acquired by the state for public purposes. Thomas v. Sherwood (1893), 9 App. Cas. 142 ( P . C ) , see pp. 143 and 149; Worsely Timber Co. Ltd. v. Minister  for Works (1933), 36 W.A.L.R. 52 (Aus). Brown, 29. 120 Implied Compensation There i s a common law presumption against the taking of private property without compensation. 1 0 6 However, the common law i s subject to be superseded by an Act of the l e g i s l a t u r e , and there are now statutes i n operation i n a l l j u r i s d i c t i o n s i n Canada which allow for various expropriations. Any r i g h t to expropriate must be based upon a statute and, i n common law j u r i s d i c t i o n s any right to compensation must a l s o be based upon the s t a t u t e which authorizes the taking. However, due to the common law rules of statutory i n t e r p r e t a t i o n , the Courts w i l l i n v a r i a b l y imply a ri g h t to compensation i n the statute that authorizes the taking unless the contrary intention i s expressed i n unequivocal terms. This r u l e a p p l i e s most strongly to the construction of a statute delegating l e g i s l a t i v e powers. 1 0 7 However, these common law presumptions may have no application to the exercise of a r i g h t to resume contained i n a Crown grant. The courts have recognized a d i s t i n c t i o n between a power of resumption and a power of expropriation, although there does not appear to be any case where t h i s d i s t i n c t i o n i s expressly George S. Ch a l l i e s , The Law of Expropriation, 2d ed. (Montreal: Wilson & Lafleur, 1963), at 3. Ibid., 82-83. See also 44 Halsbury's Laws, (4th), para. 906, at 557. See also Newcastle Breweries Ltd. v. The King, [1920] 1 K.B. 854, at 866. 121 c o n s i d e r e d . 1 0 8 There does seem to be good reason for t r e a t i n g the two powers d i f f e r e n t l y i n law, i f the resumption power i s viewed as a r e s u l t of the parties contractually bargaining for t h e i r respective r i g h t s . Perhaps the r i g h t to resume land i n 0/C 1036 and i n P.C. 208 could be construed as a compulsory taking of land authorized by statute, as opposed to a reservation or condition contractually bargained f o r i n a Crown grant. C e r t a i n l y the lands i n the Railway b e l t (governed by P.C. 208) are not the subject of a "conveyance" which reserves a r i g h t of resumption. Rather, the r i g h t of resumption i n the p r o v i n c i a l government stems from a f e d e r a l - p r o v i n c i a l agreement - The Scott-Cathcart Agreement of 1929. The province could not reserve t h i s r i g h t out of a conveyance of lands since the province was not the grantor of the Indian reserves i n the Railway Belt. According to the re-transfer agreement, which was embodied i n the Constitution Act, 1930, the Indian reserves were not included i n the re-transfer of the lands by the Dominion to the p r o v i n c e . That agreement f u r t h e r s t i p u l a t e d that the Indian lands would continue to be vested i n the Dominion on the conditions expressed i n the Scott-Cathcart Agreement and embodied i n P.C. 208. Privy Council Order 208 was enacted pursuant to the B r i t i s h Columbia Indian Lands Settlement But see, for example, Power v. The King, supra, and Thomas v. Sherwood, supra. 122 A c t . 1 0 9 Therefore, the r i g h t to resume - and a l l the other c o n d i t i o n s - i s based upon the agreement of 1929 and the "Settlement Act". I t i s also embodied i n the Constitution Act,  1930. It i s apparent that the resumption power over the "Railway Belt reserves" i s based on a statute and not upon the terms of a grant. The same could be said of the resumption power i n 0/C 1036. It has been noted that a transfer of property between l e v e l s of Her Majesty's Government i s not, s t r i c t l y speaking, a conveyance i n law. Although the Terms of Union c a l l for a "conveyance" of lands, the Courts have h e l d t h a t t h i s term i s not r e a l l y appropriate f o r such a transfer. The transfer of Indian reserves has always been based upon a statute - beginning with the Terms of Union. In Moses, the B r i t i s h Columbia Supreme Court held that the authority of the Executive to pass 0/C 1036 was based upon a P r o v i n c i a l Statute - the Indian A f f a i r s Settlement Act - and was therefore v a l i d l y made. The Court also held that P.C. 208 was authorized by federal statute, The B r i t i s h Columbia Indian Lands  Settlement Act ( 1920 ) . 1 1 0 The Orders i n Council should be characterized as delegated l e g i s l a t i v e enactments. As such they are subject to the common law rules of statutory i n t e r p r e t a t i o n . 1 0 9 S.C. 1920, c.51. 1 1 0 Moses v. The Queen, [1977] 4 W.W.R. 474, at 490. 123 Among these rules i s the presumption that compensation must be paid for land compulsorily acquired unless the statute expressly provides otherwise. There i s nothing i n the two statutes referred to above that authorizes a taking of land without payment of compensation. The Orders i n Council are s i l e n t on the issue of compensation r e l a t i v e to the exercise of the resumption power. Even i f 0/C 1036 and P.C. 208 expressly excluded compensation they might be attacked as u l t r a v i r e s , since the enabling statutes-the "Settlement Acts" - do not so expressly p r o v i d e . 1 1 1 Since the Orders i n Council are r e a l l y l e g i s l a t i v e enactments, and not Crown grants the reference to resumption should not be viewed i n a s t r i c t property law sense, but rather i n i t s ordinary sense, as a "taking back" of something which had previously been given. In t h i s sense the r i g h t to resume may be viewed as a right to "expropriate", or "take" pursuant to s t a t u t o r y authority. Hence the presumption against the taking of property r i g h t s without compensation should apply. I t should f i n a l l y be noted that the r i g h t to compensation has been held to apply to any person with any " i n t e r e s t " i n the land, including a usufructuary i n t e r e s t . 1 1 2 See footnote 107, supra, and p a r t i c u l a r l y , Newcastle  Breweries Ltd. v. The King, [1920] 1 K.B. 854, at 866. See C h a l l i e s , 73, and Commissaries d'Ecoles de Ste Rose v. Charbonneau, [1953] S.C. 477 (Que.S.C). Past P o l i c y Regarding Compensation 124 The p o l i c y of both the p r o v i n c i a l and Dominion governments r e g a r d i n g compensation f o r lands resumed has been somewhat inc o n s i s t e n t , although f o r the most part there appears to be agreement that no compensation i s required. Before the form of conveyance was agreed upon i n 1929 the Dominion opposed any reservation or r e s t r i c t i o n s i n the transfer. The correspondence which preceded the agreement sheds some l i g h t on the issue of compensation, but i s inconclusive. In a l e t t e r dated June 18, 1926 1 1 3, Duncan Scott, Deputy Superintendent of Indian A f f a i r s r e j e c t e d the d r a f t form of conveyance offered by T.D. Patullo (then Minister of Lands for B r i t i s h Columbia). He advised that section 46 of the Indian Act (now s.35) provided f o r the taking of land from reserves for public purposes. In h i s r e p l y , 1 1 4 Patullo i n s i s t e d that c e r t a i n reservations contained i n the standard grant must be kept, i n the public i n t e r e s t . He expressed doubts regarding the s u f f i c i e n c y of section 46 (now section 35) of the Indian Act to protect that public i n t e r e s t . Borthwick, "Order i n Council 1036", Exhibit C. David Borthwick has appended copies of correspondence between p r o v i n c i a l and federal o f f i c i a l s to h i s paper, and referred to them as "exhibits". Borthwick, "Order i n Council 1036", Exhibit D. 125 Clearly, the p r o v i n c i a l government did not want to be dependent upon the Dominion Executive for i t s consent to construct roads independent power to take lands as r e q u i r e d f o r the public i n t e r e s t . Apparently P a t u l l o was concerned that pursuant to section 46 of the Indian Act, compensation would have to be paid, but h i s main concern seemed to be the lack of an independent authority to expropriate lands when needed for public purposes. There followed a number of exchanges between these two men. Patullo sought the advice of his Attorney-General i n a memorandum dated 13 January 1928. 1 1 5 In the memo Patullo explained that he did not want to give up the r i g h t to resume but suggested that the province might well agree to give compensation. The leg a l opinion which f o l l o w e d 1 1 6 did not s p e c i f i c a l l y address the compensation issue. The suggestion made by Patullo i n the above-noted memo i s the only i n d i c a t i o n that the province would be w i l l i n g to pay compensation for resumptions i n the case of Indian reserve lands. The suggestion was apparently never r a i s e d i n correspondence between the two governments. The d r a f t form of conveyance, agreed upon i n the Scott-Cathcart Agreement, eventually became 0/C 1036. As previously noted, the document i s s i l e n t on the issue of compensation. There through reserves. They saw the ri g h t to resume as a necessary 115 Ibid., Exhibit M. 116 Ibid Exhibit 0. / 126 was i n s e r t e d i n the o r d e r the p r o v i s i o n f o r n o t i c e and consultation with the Department of Indian A f f a i r s . This would appear to be a compromise to s e t t l e the concerns of the Dominion regarding the a b i l i t y of the province to u n i l a t e r a l l y deal with Indian lands v i a the reservations i n the conveyance. Perhaps the s i l e n c e of the document regarding compensation for land resumed was also a compromise. However, there was no change i n t h i s provision from the o r i g i n a l proposal, which came str a i g h t from the standard forms of the p r o v i n c i a l Land Act (1924). 1 1 7 Ever since the "conveyance" i n 1938 the province has taken the p o s i t i o n that no compensation i s required for lands resumed, and the Dominion has, f o r the most part, agreed with that view. However, i n the Moses case the federal government argued that compensation was necessary for resumed lands, although that issue was not r e a l l y before the Court. The issue of compensation was not dealt with by either the Supreme Court or the Court of Appeal for B r i t i s h Columbia. It i s curious that the federal government agreed to allow the province to resume land for public purposes without payment of any compensation, for that was a major departure from past p o l i c y . The Indian Act required compensation to be paid for lands taken for public purposes. 1 1 8 As well, i n most of the numbered t r e a t i e s 1 1 7 R.S.B.C. 1924, c.131, schedule, Form No. 9. 1 1 8 Indian Act, R.S.C. 1927, c. 98, s.48. 127 made between Canada and various Indian t r i b e s , compensation was required for lands resumed by Canada for public purposes. 1 1 9 Some t r e a t i e s only required payment for improvements on appropriated reserve lands, while others st i p u l a t e d that either compensation would be paid for the value of the area l o s t , or an equivalent area would be added to the r e s e r v e . 1 2 0 The issue of compensation w i l l be examined again i n the next chapter. Mineral Rights The Scott Cathcart Agreement and subsequent Orders i n Council were s i l e n t on the issue of mineral r i g h t s . In the Precious  Metals case, the P r i v y Council a p p l i e d the usual r u l e s of construction governing conveyances to the transfer of the Railway Belt and Peace River Block lands. I t was held that since the transfer instrument was s i l e n t on the issue of mineral right s , the base metals passed to the grantee (Dominion) as incidents of "land", while the precious metals remained with the province. As Alexander Morris, The Tr e a t i e s of Canada with the  Indians (Toronto: Belfords, Clarke & Co., 1880; Coles, 1979), 313-370. Treaties No. 3 through 9 a l l reserved a r i g h t to Canada to appropriate lands from reserves for public purposes, paying due compensation for any improvements. See Treaty No. 4 (1874), i n Morris, 333, and Treaty No. 9 (1905) for examples requiring compensation for land and improvements. The clause i n t r e a t y No. 9 i s r e p r i n t e d i n , Brad f o r d W. Morse, ed., A b o r i g i n a l  Peoples and the Law (Ottawa: Carleton University Press, 1985), 293-4. 128 noted previously, the Privy Council's decision was influenced by what they termed a "commercial arrangement" expressed i n A r t i c l e 11, and the o b l i g a t i o n of the p r o v i n c e to convey " p u b l i c l a n d s " . 1 2 1 The transaction was described as a transfer of the r i g h t to manage and s e t t l e the lands and to appropriate the t e r r i t o r i a l revenues. The r i g h t s to precious metals, which derive from the royal prerogative were said to d i f f e r i n l e g a l q u a l i t y from the ordinary t e r r i t o r i a l r i g h t s . In the absence of language i n d i c a t i n g that the precious metals were also to be conveyed, they did not pass with the transfer of the l a n d . 1 2 2 Based on the decision i n the Precious Metals case i t i s l i k e l y that the lack of s p e c i f i c reference to minerals i n 0/C 1036 has the e f f e c t of t r a n s f e r r i n g the base minerals with the land. This would include o i l and gas, but would exclude gold and s i l v e r . It i s arguable that because the transfer of Indian reserves pursuant to A r t i c l e 13 i s d i f f e r e n t from the "commercial agreement" embodied i n A r t i c l e 11, the decision i n the Precious Metals case should not be applied to mineral r i g h t s on Indian reserves. The reserve lands were to be transferred for the use and benefit of the Indians. Unlike the Railway Belt lands i t i s c l e a r that Indian reserves were intended to be permanently removed from p r o v i n c i a l t e r r i t o r i a l j u r i s d i c t i o n . They were not "public lands" placed at the disposal of the federal government for the 1 2 1 (1889), 14 App. Cas. 295, at 301-302. 1 2 2 Ibid., 303. 129 purpose of r a i s i n g revenue. Any revenue that might be generated from the management of Indian reserves i s to enure to the benefit of the band for whose use and benefit the lands were set apart. If the Indian bands are to benefit from t h e i r reserve lands why should they not also benefit from any minerals that may ex i s t on those lands? A r t i c l e 13 expressed the intention that the Dominion would carry on a p o l i c y as l i b e r a l as that previously followed i n the province, and to a s s i s t i n that purpose, reserve lands were to be conveyed to the Dominion. The past p o l i c y of the c o l o n i a l government does not provide much insight into the issue of whether Indian bands were to benefit from any minerals on t h e i r reserves. However, because lands were reserved out of the public domain, for the e x c l u s i v e use and b e n e f i t of the Indians, i t might be reasonable to assume that any minerals would have also been managed for the benefit of the Indians. I t was only a f t e r B r i t i s h Columbia j o i n e d confederation that the p r o v i n c i a l government became concerned with separate property r i g h t s that may have been connected with reserve lands, such as mineral r i g h t s . The underlying t i t l e was always viewed as being i n the Crown, but because the lands were reserved from the p u b l i c domain, the b e n e f i c i a l use of the lands was reserved for the Indians. A t r u l y l i b e r a l p o l i c y would have included the b e n e f i c i a l use of a l l minerals i n c l u d i n g " r o y a l t i e s " which might be found on Indian reserves. According to the summary of c o l o n i a l p o l i c y made by the 130 p r o v i n c i a l Attorney General i n 1875, (referred to i n Chapter 1) i t was envisioned that bands might become s e l f - s u f f i c i e n t through the e x p l o i t a t i o n of resources connected with t h e i r reserves. If that was the p o l i c y , i t should not matter whether the p a r t i c u l a r resources available were timber, f i s h , copper, o i l or gold. The l e g a l d i s t i n c t i o n between base metals and precious metals should not a f f e c t a general p o l i c y that Indian reserves should be developed for the benefit of the band. The Indian Reserves Mineral Resources Act Shortly a f t e r the conveyance of reserve lands by Order i n Council 1036, the federal and p r o v i n c i a l governments reached an agreement concerning the management of minerals on reserve l a n d s . 1 2 3 The agreement was embodied i n r e c i p r o c a l statutes passed i n 1943. 1 2 4 The parties apparently proceeded from the understanding that the base metals had been transferred to the Dominion but the precious metals had not. This view was probably a r e s u l t of the Precious Metals decision. The preamble to the agreement i s as follows: "Crerar-Carson Agreement" The agreement i s reproduced i n the r e c i p r o c a l l e g i s l a t i o n , noted below. Indian Reserves Mineral Resources Act, S.B.C. 1943, c.40, and The B r i t i s h Columbia Indian Reserve Mineral  Resources Act, S.C. 1943-44, c.19. 131 Whereas from time to time t r e a t i e s have been made with the Indians f o r the surrender f o r various considerations of t h e i r personal and usufructuary r i g h t s to t e r r i t o r i e s now i n c l u d e d i n the P r o v i n c e of B r i t i s h Columbia, such considerations including the set t i n g apart for the exclusive use of the Indians of c e r t a i n d e f i n i t e areas of land known as Indian reserves; And whereas the said Indian reserves were conveyed to the Dominion Government as trustee for the Indians under the terms and conditions set forth i n an agreement dated the 24th day of September, 1912, between the Dominion Government and the Province of B r i t i s h Columbia; And whereas the precious metals i n , upon or under the lands comprising such reserves are not incidents of such lands but belong b e n e f i c i a l l y to the Crown i n the r i g h t of the Province of B r i t i s h Columbia with the r e s u l t that the development of a l l the minerals i n , upon or under such lands i s at present impractical since the precious and base metals are c l o s e l y associated and cannot be mined separately; And whereas i t has been agreed between the Governments of the Dominion of Canada and the Province of B r i t i s h Columbia, that as a matter of p o l i c y and convenience and for the development of such minerals and without thereby a f f e c t i n g the c o n s t i t u t i o n a l or leg a l r i g h t s of either of the said Governments, the Province of B r i t i s h Columbia should have charge of the development of a l l minerals and mineral claims both precious and base, i n , upon or under the said Indian reserves. The Agreement provides the procedure by which claims are to be staked, the method for ca l c u l a t i n g , d i s t r i b u t i n g , and c o l l e c t i n g r o y a l t i e s and other fees, and generally allows f o r the province to administer those d e t a i l s . In paragraph 3, the term "mineral" i s defined to include gold and s i l v e r but exclude coal, petroleum and natural gas, etc. Therefore, the related l e g i s l a t i o n does not af f e c t any ri g h t s to o i l and gas that the Indians could otherwise claim. The main point of the Agreement was to provide some way of administering mineral rig h t s on Indian reserves based upon the 132 assumption that ownership of the minerals was s p l i t between the province, owning the precious metals, and the Dominion, owning the base m e t a l s . The l e g i s l a t i o n attempted t o s i m p l i f y the administration of mineral claims by allowing the province to c o l l e c t a l l revenue from any mineral r i g h t s . The proceeds were to be divided equally between the two governments (the Dominion share to be held for the benefit of the Indians). The l e g i s l a t i o n i s s t i l l i n e f f e c t and governs the management of minerals on Indian reserves. 133 CHAPTER V CONSITUTIONAL PROBLEMS WITH THE TRANSFER If the t r a n s f e r of reserve lands i s viewed s t r i c t l y as a conveyance, and construed as any other grant of land, then the reservations contained i n Order i n Council 1036 might not be subject to challenge on c o n s t i t u t i o n a l grounds. The many terms and c o n d i t i o n s might be construed as p r o v i d i n g a s p e c i a l d e f i n i t i o n of Indian r e s e r v e s f o r the province of B r i t i s h Columbia. On t h i s view, the exercise of the resumption power would have the e f f e c t of changing the character of the resumed lands from reserve lands to p r o v i n c i a l lands. Because the resumed lands would no longer be defined as "lands reserved f o r the Indians," the requirement of surrender, imposed by the Indian Act, would not apply. However, the a b i l i t y of the two governments to reach such an agreement regarding reserves i n B r i t i s h Columbia may have been r e s t r i c t e d by the dictates of the Terms of Union and the C o n s t i t u t i o n Act, 1867. P a r t i c u l a r l y , i f the t r a n s a c t i o n i s viewed as a p r i c e of delegated l e g i s l a t i o n , the powers of the respective governments are r e s t r i c t e d by any enabling l e g i s l a t i o n and the d i v i s i o n of powers set out i n the Constitution. These c o n s t i t u t i o n a l aspects of the transfer w i l l now be examined. P r i o r to Union the colony of B r i t i s h Columbia had reserved some land for Indians but many bands were without reserves. Except for the e a r l y Douglas t r e a t i e s there had been no attempt by the 134 c o l o n i a l government to obtain surrenders of Indian t i t l e . There was apparently no cl e a r c o l o n i a l Indian p o l i c y . Part of the deal which was struck between B r i t i s h Columbia and the Dominion was that the Dominion would take over the "charge of the Indians". On i t s part, the province agreed to convey c e r t a i n lands to the Dominion to be used as Indian Reserves. Had the Dominion o f f i c i a l s been f u l l y aware of the unsettled state of Indian A f f a i r s i n the province, i t i s l i k e l y that more thought and d e t a i l would have gone into the expression of t h i s agreement i n the Terms of Union. As i t was, the agreement was expressed i n the ambiguous language of A r t i c l e 13. The f i r s t paragraph of A r t i c l e 13 i s an assumption by the Dominion of the "charge" of the Indians and the trusteeship and management of t h e i r reserved lands. The a r t i c l e must be viewed as having more s i g n i f i c a n c e than simply r e s t a t i n g the f e d e r a l government's c o n s t i t u t i o n a l r e s p o n s i b i l i t y for Indians and lands reserved f o r the Indians. A r t i c l e 10 of the Terms of Union already s t i p u l a t e d that the provisions of the B r i t i s h North  America Act, 1867 would govern the union. This, of course, would have made section 91(24) applicable. Without the o b l i g a t i o n to convey lands to the Dominion, B r i t i s h Columbia would have been i n the same p o s i t i o n as the o r i g i n a l four provinces with respect to 135 the underlying i n t e r e s t i n reserve lands, and the p r i n c i p l e s i n St. Catherine's M i l l i n g 1 would be applicable to Indian lands i n B r i t i s h Columbia today. One must assume then that A r t i c l e 13 was intended to do more than simply confirm the a p p l i c a b i l i t y of section 91(24) of the Constitution Act, 1867. Indeed the second paragraph of A r t i c l e 13 requires a conveyance of lands reserved f o r the Indians from B r i t i s h Columbia to the Dominion. The expressed reason that the province was to convey reserve lands was so that the Dominion could carry out "a p o l i c y as l i b e r a l as t h a t h i t h e r t o pursued by the B r i t i s h Columbia Government". A dispute soon arose over the " l i b e r a l i t y " of the c o l o n i a l government's past policy, but that early dispute was focused on the quantity of lands to be reserved, rather than the q u a l i t y of the proprietary i n t e r e s t that was to be conveyed. As noted i n Chapter one, the c o l o n i a l p o l i c y i n B r i t i s h Columbia apparently would require a f u l l proprietary i n t e r e s t to be held by the government i n t r u s t for the Indians. St. Catherine's M i l l i n g and Lumber Co. v. The Queen (1888), 14 App. Cas. 46, held that the Crown i n r i g h t of the Province of Ontario held the b e n e f i c i a l t i t l e to Indian Reserve Lands, subject to the "usufructuary i n t e r e s t " of the Indians. When the Indian i n t e r e s t was surrendered, the p r o v i n c i a l t i t l e became unburdened and complete, leaving the federal government with no r i g h t to dispose of the lands. 136 Out o f the e a r l y n e g o t i a t i o n s c o n c e r n i n g the s i z e o f r e s e r v e s t h e r e emerged the novel c l a i m by the p r o v i n c i a l government o f a r e v e r s i o n a r y i n t e r e s t i n a l l I n d i a n r e s e r v e s . The n o t i o n of a c o n t i n u i n g p r o v i n c i a l i n t e r e s t i n r e s e r v e lands runs c o n t r a r y t o the language o f A r t i c l e 13, which a p p a r e n t l y r e q u i r e s the p r o v i n c e t o r e l i n q u i s h i t s p r o p r i e t a r y i n t e r e s t i n favour of the Dominion, i n o r d e r t h a t the f e d e r a l government may assume the " t r u s t e e s h i p and management" o f I n d i a n lands. The f e d e r a l government's l a t e r e x p e r i e n c e w i t h lands r e s e r v e d f o r the Indians i n c e n t r a l and e a s t e r n Canada i l l u s t r a t e d how unmanageable these lands were when p r o v i n c i a l governments h e l d an u n d e r l y i n g p r o p r i e t a r y i n t e r e s t . 2 By r e q u i r i n g a conveyance o f Indian r e s e r v e s from B r i t i s h Columbia t o the Dominion, the Terms o f Union a p p a r e n t l y addressed t h i s problem. On i t s f a c e , A r t i c l e 13 r e q u i r e s a t r a n s f e r o f the p r o v i n c e ' s p r o p r i e t a r y i n t e r e s t i n r e s e r v e l a n d s upon the a p p l i c a t i o n o f the f e d e r a l government. A l t h o u g h the A r t i c l e a llowed f o r a d i s p u t e s e t t l i n g mechanism r e g a r d i n g the i s s u e of r e s e r v e s i z e , t h e r e i s n o t h i n g i n i t s terms t o suggest t h a t the p r o v i n c e should r e t a i n any p r o p r i e t a r y i n t e r e s t i n r e s e r v e lands. See, S t . C a t h e r i n e s M i l l i n g and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) - Dominion c o u l d not d i s p o s e o f timber r i g h t s on s u r r e n d e r e d l a n d ; a l s o , O n t a r i o Mining Co. v. Seybold, [1903] A.C. 73 (P.C.) -The Dominion c o u l d not a p p r o p r i a t e a p o r t i o n of lands f o r making r e s e r v e s out o f a l a r g e r area surrendered by t r e a t y ; a l s o , Atty.-Gen. Quebec v. Atty.-Gen. Canada, [1912] 1 A.C. 401 (P.C.) - Dominion c o u l d not dispose of m i n e r a l s f o l l o w i n g a surrender. 137 The p r o v i n c i a l g o v e r n m e n t l a t e r g a v e up t h e i r c l a i m t o a n u n d e r l y i n g i n t e r e s t i n r e s e r v e l a n d s , b u t t h e i r " g e n e r o s i t y " o n t h i s i s s u e was u s e d a s a b a r g a i n i n g c h i p d u r i n g t h e n e g o t i a t i o n s o v e r t h e f o r m o f c o n v e y a n c e . The t r a n s f e r , w i t h c o n d i t i o n s a t t a c h e d , was t h e q u i d p r o quo f o r t h e p r o v i n c e g i v i n g up i t s r e v e r s i o n a r y i n t e r e s t . A l t h o u g h t h e " r e v e r s i o n a r y i n t e r e s t " may h a v e s e r v e d t h e p u r p o s e o f e x t r a c t i n g c e r t a i n c o n c e s s i o n s o u t o f t h e f e d e r a l g o v e r n m e n t , t h e s u r r e n d e r o f t h i s c l a i m c a n n o t j u s t i f y t h e t e r m s o f t h e u l t i m a t e c o n v e y a n c e i f t h o s e t e r m s a r e i n c o n f l i c t w i t h t h e r e q u i r e m e n t s o f t h e c o n s t i t u t i o n . A r t i c l e 13 o f t h e Terms o f U n i o n I f A r t i c l e 13 r e q u i r e s a t r a n s f e r o f t h e e n t i r e p r o p r i e t a r y i n t e r e s t i n r e s e r v e l a n d s , t h e m o s t o b j e c t i o n a b l e f e a t u r e o f 0/C 1 0 3 6 , i s t h e r e s e r v a t i o n o f a r i g h t t o r e s u m e l a n d a n d o t h e r i n c i d e n t s o f l a n d , s u c h a s s a n d , g r a v e l a n d t i m b e r . T h r o u g h t h e s e r e s e r v a t i o n s t h e Crown i n r i g h t o f t h e p r o v i n c e h a s r e t a i n e d a c e r t a i n c o n t r o l o v e r t h e l a n d s . By e x e r c i s i n g t h e p o w e r t h e p r o v i n c e r e g a i n s a b e n e f i c i a l i n t e r e s t i n I n d i a n r e s e r v e l a n d s . Does A r t i c l e 13 p r e c l u d e s u c h a c o n t i n u i n g p o w e r o f management a n d c o n t r o l i n t h e p r o v i n c e ? 138 No court has passed judgment on the nature of the "conveyance" which i s required by A r t i c l e 13. However, A r t i c l e 11 of the Terms of Union, which i s s i m i l a r i n i t s wording to A r t i c l e 13 has been j u d i c i a l l y considered. The leading cases regarding the transfer of the Railway Belt lands have been noted i n Chapter I I I . In the Precious Metals case the Privy Council described A r t i c l e 11 as an o b l i g a t i o n to convey c e r t a i n lands. Presumably A r t i c l e 13 may also be viewed as an o b l i g a t i o n on the part of the province to convey r e s e r v e lands. In the B r i t i s h Columbia F i s h e r i e s  Reference 3 the Privy Council again referred to the conveyance i n A r t i c l e 11 as a c o n s t i t u t i o n a l obligation, and one which could not be altered by either the p r o v i n c i a l or federal government. It was there stated: By the second clause of paragraph 11 the Government of  B r i t i s h Columbia became bound to convey to the Dominion Government, or rather to the Crown i n r i g h t of the Dominion, i n t r u s t , to be appropriated i n such manner as the Dominion Government should deem advisable i n furtherance of the construction of t h i s railway, a c e r t a i n extent of public lands,...Neither the Legislature of the Province of B r i t i s h  Columbia nor that of the Dominion has power by l e g i s l a t i o n  to a l t e r the terms of t h i s Order i n Council (which i s i n  e f f e c t an Imperial statute), or to r e l i e v e themselves from  the obligations i t imposes upon them.4 (emphasis added). 4 Atty.-Gen. B r i t i s h Columbia v. Atty.-Gen. Canada, [1914] App. Cas. 153 (P.C.) Ibid., 164. 139 In the Precious Metals case, A r t i c l e 11 was described as an "exception" to s e c t i o n 109 of the C o n s t i t u t i o n Act, 1867. 5 Section 109 declares the general rule that the provinces own a l l of the lands within t h e i r geographic boundaries. I t i s the p r i m a r y s e c t i o n o f the C o n s t i t u t i o n which governs the d i s t r i b u t i o n of property. However, because the Railway Belt and most Indian reserves were undetermined at the date of union, they could not be excepted out of the general lands which remained vested i n the province pursuant to section 109. I f the lands had been determined at the date of union i t i s quite possible that the Terms of Union would have simply excepted them out of p r o v i n c i a l Crown lands. There would have been no need for a conveyance by the province. Because the extent and l o c a t i o n of the lands were not s e t t l e d , a conveyance at some future date was necessary. If A r t i c l e 13 operates as an exception to section 109, then i t s e f f e c t should be to adjust the d i s t r i b u t i o n of property under the c o n s t i t u t i o n . Based on the reasoning i n the Railway Belt cases, the combined e f f e c t of A r t i c l e 13 and section 109 would be as follows: a l l lands which belonged to B r i t i s h Columbia before the union continued to belong to B r i t i s h Columbia a f t e r the date of union, except Indian reserves, which were to be transferred to the Crown i n r i g h t of the Dominion, upon application by the Dominion. Atty.-Gen. B r i t i s h Columbia v. Atty.-Gen. Canada (1889), 14 App. Cas. 295, at 304. 140 Once the quantity and location of the lands was s e t t l e d , A r t i c l e 13 imposed an o b l i g a t i o n on the province to transfer i t s entire proprietary i n t e r e s t i n the lands to the Dominion. By reserving c e r t a i n i n t e r e s t s , such as the r i g h t to resume a p o r t i o n of the lands, B r i t i s h Columbia has not f u l f i l l e d i t s c o n s t i t u t i o n a l o b l i g a t i o n . I t was noted e a r l i e r that a r i g h t to resume operates, when exercised, as a defeasance. 6 I t i s doubtful that A r t i c l e 13, on any interpretation, contemplates a reversal of the conveyance i n whole or i n part. Yet t h i s i s the p r a c t i c a l e f f e c t of a resumption. In the Burrard Power7 case i t was held that the obligation, i n A r t i c l e 11, to convey land normally implied an o b l i g a t i o n to convey waters associated with the land. The Attorney General for B r i t i s h Columbia had argued that the waters were not included with the Railway B e l t lands and were t h e r e f o r e s u b j e c t to the p r o v i n c i a l water l e g i s l a t i o n . In r e j e c t i n g t h i s argument the Board commented: To hold that the Province a f t e r the making of such an agreement remained at l i b e r t y to l e g i s l a t e i n the sense contended for would be to defeat the whole object of the agreement, for i f the Province could by l e g i s l a t i o n take away the water from the land i t could also by Cooper v. Stuart (1889), 14 App. Cas. 286 ( P . C ) , at 289-90. Burrard Power Co. v. The King, [1911] App. Cas. 87 141 l e g i s l a t i o n resume possession of the land i t s e l f , and thereby so degrogate from i t s own grant as to u t t e r l y destroy i t . 8 Pursuant to the resumption r e s e r v a t i o n i n 0/C 1036, the p r o v i n c i a l government has, by l e g i s l a t i o n , resumed possession of some of the lands that i t previously transferred. The power of resumption was purportedly reserved out of the "grant" and so i t may not be considered to be l e g i s l a t i o n i n derogation of the grant. However the terms of the "grant" i t s e l f may be viewed as a derogation of the o b l i g a t i o n imposed on the province by A r t i c l e 13. The f a c t that the federal government agreed to the terms and conditions i n Order i n Council 1036 cannot cure a c o n s t i t u t i o n a l i n v a l i d i t y i n the transfer. It i s not open to governments i n a federal state to amend the c o n s t i t u t i o n by simple agreement. The federal government had o r i g i n a l l y i n s i s t e d upon a straightforward transfer without conditions. Perhaps the federal negotiators were persuaded that the conditions attached to 0/C 1036 were not contrary to the dictates of A r t i c l e 13. I t i s quite possible that a f t e r 65 y e a r s of w r a n g l i n g with i n t r a n s i g e n t p r o v i n c i a l governments the compromise was struck simply to get on with the transfer. Whatever the reason was for the agreement, the Indian b e n e f i c i a r i e s ought not t o be bound by i t , i f i t i s unconstitutional i n some of i t s aspects. Ibid., 94. 142 C o n f l i c t with Section 91(24), Constitution Act, 1867 If the form of transfer i s not contrary to A r t i c l e 13 and the d i s t r i b u t i o n of property under the constitution, the resumption power i s c e r t a i n l y i n c o n f l i c t with the Indian Act and the e x c l u s i v e l e g i s l a t i v e j u r i s d i c t i o n of Parliament over lands reserved f o r the Indians. The power of resumption which the province holds over a l l Indian reserves i n B r i t i s h Columbia allows the p r o v i n c i a l government to have a continuing l e g i s l a t i v e and administrative power over "lands reserved for the Indians". The power may apparently be exercised by the u n i l a t e r a l action of the p r o v i n c i a l government over the objections of both the Indian band and the federal government. The p r o v i n c i a l a u thorities are of the view that no compensation i s required when lands are resumed, and i t appears that that view i s consistent, at least, with the law c o n c e r n i n g resumptions i n grants to i n d i v i d u a l s . I f the resumption power i s v a l i d , i t i s apparently separate from and paramount to the provisions i n the Indian Act which otherwise govern the taking or other d i s p o s i t i o n of reserve lands for public and other purposes. 9 While there i s some i n d i c a t i o n that the f e d e r a l n e g o t i a t o r s were aware of the c o n s t i t u t i o n a l , or j u r i s d i c t i o n a l problems that the resumption power posed, they nevertheless acceded to the p r o v i n c i a l demands.10 Perhaps the 9 See, f o r e x a m p l e , R.S.C. 1970 c . I - 6 , s.35 (expropriation), and s.37. (surrenders). 1 0 See discussion of negotiations i n Chapter I. 143 notice provision i n 0/C 1036 was seen as a compromise which would allow the federal authorities some voice i n the exercise of the resumption power. However the notice clause does not give the Dominion a veto over the p r o v i n c e ' s r i g h t t o resume, and consequently the u n i l a t e r a l nature of the p r o v i n c i a l power remains open to objection on c o n s t i t u t i o n a l grounds. As previously noted, the v a l i d i t y of the r i g h t to resume was upheld i n the Moses case. 1 1 However i t i s not c l e a r whether the B r i t i s h Columbia courts considered the c o n s t i t u t i o n a l issues which are raised here. If si m i l a r issues were raised they were not dealt with i n any s a t i s f a c t o r y manner i n ei t h e r the Supreme Court, or the Court of Appeal. The Judgment of Mr. Justice Andrews i n the Supreme Court i s remarkable for i t s lack of explanation of the conclusions reached. After s e t t i n g out the h i s t o r i c a l background to the passage of both 0/C 1036 and P.C. 208, Andrews, J. concluded: The B r i t i s h Columbia Indian Lands Settlement Act (Canada) and the Indian A f f a i r s Settlement Act ( B r i t i s h Columbia) gave the Governor i n Council and the Lieutenant-Governor of B r i t i s h Columbia i n Council, respectively, broad powers for the purpose of s e t t l i n g a l l d i f f e r e n c e s between the governments of the Dominion and the province. Privy Council 0. 208 and order i n council 1036 were v a l i d l y made pursuant to the authority established by these two statutes. In my view, the sections of the Indian Act then i f force regarding taking lands for public purposes and alienating land had no application to the provisions of Privy Council 0. 208. The draft form of conveyance approved by Privy Moses v. The Queen, [1977] 4 W.W.R. 474, affd, [1979] 5 W.W.R. 100 (B.C.C.A.) 144 Council 0. 208 established the terms on which Indian lands i n the province were to be held by the Dominion and i n t h i s regard provided for a reservation to the province of a r i g h t to resume possession of a p o r t i o n of each reserve f o r purposes of public works. The reservation of such a r i g h t to the province did not constitute a taking of lands or an a l i e n a t i o n of lands, as provided f o r i n the Indian Act (R.S.C. 1927, c.98, ss.48 and 50). Neither does the present exercise of t h i s r i g h t come within s.35(l) of the Indian Act now i n force, regarding the taking of land for public purposes pursuant to statutory powers, or s.37 of the Act, requiring a surrender of lands before they may be alienated or otherwise disposed o f . 1 2 By the time the case reached the Court of Appeal i t was v i r t u a l l y moot, since the case had been based on a trespass which had already occurred. The Court of Appeal affirmed the judgment of Andrews J., that the province has the r i g h t to resume, without further reasons. The Court did not deal with a l l of the issues which had been raised, as the parties had apparently agreed to s e t t l e c o l l a t e r a l i s s u e s . 1 3 I t i s unfortunate that the Moses case stands as a Court of Appeal precedent, for the proposition that the p r o v i n c i a l r i g h t to resume i s v a l i d . The c o n s t i t u t i o n a l issues do not appear to have been before eit h e r court, or i f they were they were not addressed. [1977] 4 W.W.R. 474, at 490. See Moses v. The Queen, [1979] 5 W.W.R. 100, at 101 (B.C.C.A. ). 145 Mr. Justice Andrews held that the executive orders (P.C. 208 and 0/C 1036) were v a l i d l y made pursuant to the B r i t i s h Columbia  Indian Lands Settlement Act (Canada), and the Indian A f f a i r s  Settlement Act (B.C.). He noted that these two statutes bestowed broad powers on the executive branches of government to s e t t l e a l l differences concerning Indian A f f a i r s i n the Province. That i s e v i d e n t from the language of the s t a t u t e s . However, the l e g i s l a t i o n , expressed i n very general terms, purports to delegate decision making powers. The exercise of the delegated power must be s c r u t i n i z e d according to the rules which apply to delegated l e g i s l a t i o n . Just because a statute of Canada authorizes the executive to do whatever i s necessary to achieve a c e r t a i n r e s u l t , that does not bestow unfettered powers. Their broadly expressed powers must be subject to the enabling statute, other s p e c i f i c acts of Parliament, and the Constitution. In Moses, Andrews J., held that the sections of the Indian Act regarding the taking or a l i e n a t i o n of reserve lands "had no appl i c a t i o n to the provisions of Privy Council Order 208", 1 4 which established the terms on which Indian lands i n B.C. would be held by the Dominion. The reservation of the r i g h t to resume did not constitute a taking or al i e n a t i o n of lands as provided f o r i n the Indian Act. Neither did the exercise of the power come within section 35 or 37 of the A c t . 1 5 According to the judgment the 1 4 [1977] 4 W.W.R. 474, at 490. 1 5 Ibid. 146 resumption power apparently arises independently from the agreed form of conveyance established by the Scott-Cathcart Agreement, and confirmed by P.C. 208. While that may be so, i t should not resolve the issue of the v a l i d i t y of the resumption reservation. I t i s the agreed form of conveyance and supporting executive orders that are arguably u l t r a v i r e s . In fact the reasoning i n Moses highlights the c o n s t i t u t i o n a l c o n f l i c t . Regardless of whether the reservation of the r i g h t to resume i s a "taking" within the meaning of the Indian Act, the exercise of that r i g h t does i n fact r e s u l t i n a taking of reserve lands. Privy Council Order 208 has established an alternate method for t a k i n g reserve lands f o r p u b l i c purposes. I t i s i n d i r e c t c o n f l i c t with the Indian Act, a statute of Parliament which provides s p e c i f i c procedures for any d i s p o s i t i o n of reserve lands, including the taking of lands for public purposes. Is i t possible that an executive order, issued pursuant to the most generally phrased enabling l e g i s l a t i o n can overrule a s p e c i f i c Act of Parliament? Surely Parliament could not have intended to grant such a power to the executive branch by the general language of the B r i t i s h Columbia Indian Lands Settlement Act. Even i f Parliament had passed s p e c i f i c l e g i s l a t i o n granting the province the resumption power, that could s t i l l be subject to challenge on c o n s t i t u t i o n a l grounds. Because the e f f e c t of the power i s to give the province a l i m i t e d but exclusive j u r i s d i c t i o n 147 over lands reserved for the Indians, i t i s apparently i n c o n f l i c t with the d i v i s i o n of l e g i s l a t i v e powers i n the Constitution Act,  1867. Of course methods have been found to avoid the s t r i c t u r e s imposed by sections 91 and 92 of the Constitution. In a s p i r i t of "cooperative federalism", the federal and p r o v i n c i a l governments have managed to enact complementary l e g i s l a t i o n to govern such c r o s s - j u r i s d i c t i o n a l f i e l d s as, i n t e r - p r o v i n c i a l trade and t r a n s p o r t . 1 6 The Railway Belt Water A c t 1 7 , noted e a r l i e r , i s a s p e c i f i c example of federal l e g i s l a t i o n which adopts p r o v i n c i a l law i n order to overcome j u r i s d i c t i o n a l problems. The B.C. Indian  Lands Settlement Act d i d not purport to adopt p r o v i n c i a l law regarding the taking of lands for public purposes. The "Settlement Act" did s p e c i f i c a l l y r e f e r to the McKenna-McBride Agreement, and authorized the executive to do anything necessary to carry out that agreement. There i s no reference to a r i g h t of resumption i n the McKenna-McBride Agreement. That agreement addressed the issue of the conveyance i n terms that are inconsistent with any reservations from the conveyance. In clause 7 i t i s declared that Indian reserves s h a l l be conveyed by the province to the Dominion: . . . subject only to a condition that i n the event of any Indian t r i b e or band i n B r i t i s h Columbia at some future time becoming e x t i n c t , then any lands within the t e r r i t o r i a l 1 6 See, g e n e r a l l y , Canada, 2d ed., ( Peter Hogg, C o n s t i t u t i o n a l Law of Toronto: Carswell, 1985), 295-303. 1 7 R.S.C. 1927, c.211 148 boundaries of the Province which have been conveyed to the Dominion as aforesaid for such t r i b e or band, and not sold or disposed of as herinbefore mentioned, or any unexpended funds being the proceeds of any Indian Reserve i n the Province of B r i t i s h Columbia, s h a l l be conveyed or repaid to the Province, (my emphasis) 1 8 Clause 8 of the Agreement s p e c i f i c a l l y dealt with the issue of t a k i n g r e s e r v e lands f o r p u b l i c purposes while the Royal Commission was s i t t i n g . The commissioners were to hear any applications f o r such takings and f i l e an interim report setting out t h e i r recommendations. The r e s p e c t i v e governments were obliged to "do everything necessary to carry the recommendations of the Commissioners into e f f e c t " . 1 9 This part of the agreement was c o n s i s t e n t with the p r o v i s i o n s of the Indian Act which permitted the taking of reserve lands for public purposes, upon payment of compensation. Although the "Settlement Acts" did not bind the executive branches to follow the l e t t e r of the McKenna-McBride Agreement, i s cl e a r that they were to be guided by the agreement i n exercising t h e i r broad delegated powers. I t i s worth noting that the f e d e r a l statute s p e c i f i c a l l y empowered the executive to carry out the recommendations of the Commissioners concerning cut-offs, without obtaining surrenders from the affected bands "notwithstanding any provisions of the Indian Act to the contrary". The Act did not s i m i l a r l y specify 1 8 "McKenna - McBride Agreement", supra, Chapter I, footnote 27. 1 9 Ibid. 149 that the Governor i n Council could, by order, create an alternate method of t a k i n g lands f o r p u b l i c purposes, notwithstanding provisions of the Indian Act to the contrary. The i n c l u s i o n of the s p e c i f i c clause regarding cut-offs i l l u s t r a t e s that Parliament had considered the potential c o n f l i c t between the settlement of the Indian land question i n B.C. and c e r t a i n provisions of the Indian Act. I t was foreseen that most bands would not consent to the c u t - o f f s , which the p r o v i n c i a l government i n s i s t e d the Commissioners be empowered to recommend. The Indian Act prohibited any sale or a l i e n a t i o n of reserve lands u n t i l the land had been surrendered i n accordance with the procedures set out i n the A c t . 2 0 The Act also provided a s p e c i f i c procedure for taking reserve lands for public purposes. "Expropriation" of reserve lands i s permitted subject to the consent of the Governor i n C o u n c i l , and compensation must be paid to the band. 2 1 The expropriation provisions of the Act were apparently not viewed, at that time, as an impediment to settlement of the Indian lands question. Once i t became apparent that the province i n s i s t e d on a separate method of taking lands for public purposes, the federal "Settlement Act" ought to have been amended to allow the r i g h t of resumption, notwithstanding the Indian Act. This would have been the only way i n which the Governor i n Council could conceivably 2 0 Indian Act, R.S.C. 1927 c.98 s. 50. 2 1 Indian Act, R.S.C. 1970, c.I-6, s.35 i s the relevant section governing "expropriation" of reserve lands. At the time that the Scott-Cathcart Agreement was reached, the relevant provision was found i n R. S. C. 1927, c.98, s.48. 150 have the power to override a statute of Parliament. That i s because the exercise of the power resides with the p r o v i n c i a l government, and therefore i s contrary to the d i v i s i o n of powers under the c o n s t i t u t i o n . The Railway Belt Reserves The foregoing discussion regarding the c o n s t i t u t i o n a l i n f i r m i t y of the transfer agreement may not be applicable to Indian Reserves within the Railway Belt and Peace River Block. The Railway Belt and Peace River Block, which had been transferred unconditionally to the Dominion were re-transferred i n 1930 to the province. The re-transfer took the form of a c o n s t i t u t i o n a l amendment, i n the Constitution Act, 1930. 2 2 Section 1 of t h i s Imperial Statute states: 1. The agreements set out i n the schedule to t h i s Act are h ereby c o n f i r m e d and s h a l l have the f o r c e of law notwithstanding anything i n the B r i t i s h North America Act, 1867, or any Act amending the same, or i n any Order i n Council or terms or conditions of union made or approved under any such Act as a f o r e s a i d . 2 3 20-21 George V c. 26 (U.K.), i n R.S.C. 1970, Appendix II, p. 365 and pp. 392 et seq. Ibid., 366. 151 In other words, the 1930 agreement concerning the re-transfer of the Railway and Peace River lands superseded the Terms of Union and the Constitution Act, 1867. Section 13 of that agreement reads as follows: 13. Nothing i n t h i s agreement s h a l l extend to the lands included within Indian reserves i n the Railway Belt and the Peace River Block, but the said reserves s h a l l continue to  be vested i n Canada i n tr u s t for the Indians on the terms  and conditions set out i n a c e r t a i n order of the Governor  General of Canada i n Council approved on the 3rd day of  February, 1930 (P.C. 208) . 2 4 (emphasis added) This means that the terms and conditions under which the Dominion holds Indian Reserves i n the Railway Belt and Peace River Block have been entrenched i n the Constitution. The terms and conditions i n P.C. 208 are the same as those found i n Order i n Council 1036. In the re s u l t , although i t may be possible to challenge the c o n s t i t u t i o n a l v a l i d i t y of the reservations and c o n d i t i o n s i n Order i n Council 1036 lands, those i d e n t i c a l provisions may be immune from challenge with respect to Railway Belt and Peace River Block reserves. Ibid., 395. 152 Native Rights and the Constitution Act, 1982 Section 35 of the Co n s t i t u t i o n Act, 1982 2 5 recognizes and affirms e x i s t i n g aboriginal r i g h t s . I t may be open to argument, that the Indian i n t e r e s t i n reserve lands i s protected by Section 35. The Supreme Court of Canada held, i n the Guerin case, that aboriginal t i t l e was a recognized l e g a l r i g h t i n Canada, and that the Indian i n t e r e s t i n reserve land was the same as aboriginal t i t l e i n t r a d i t i o n a l t r i b a l l a n d s . 2 6 The Court further described the Indian i n t e r e s t as a unique i n t e r e s t i n land, which i s at least a r i g h t of occupation and possession s i m i l a r to b e n e f i c i a l ownership. 2 7 It has been suggested that because aboriginal t i t l e i s a recognized "interest" i n land, i t benefits from the common law presumption i n favouring the payment of compensation upon a compulsory t a k i n g . 2 8 The notion that a b o r i g i n a l t i t l e i s a compensable r i g h t i s deeply rooted i n the past practice of the Crown i n extinguishing aboriginal t i t l e . Brian S l a t t e r y suggests that t r a d i t i o n a l Crown p r a c t i c e has required a surrender of aboriginal t i t l e p r i o r to the purchase of that i n t e r e s t by the Crown. This practice may be described as part of the "common law 2 5 Constitution Act, 1982, as enacted by Canada Act, 1982, (U.K.), 1982 c . l l . 2 6 Guerin v. The Queen, [1984] 2 S.C.R. 335; 55 N.R. 161, at 171-172. 2 7 Guerin, 55 N.R. 161, at 174. 2 8 B r i a n S l a t t e r y , "Understanding A b o r i g i n a l R i g h t s " (1987), 66 Canadian Bar Review 727, at 751. 153 of a b o r i g i n a l r i g h t s " . 2 9 Because Parliament has l e g i s l a t i v e j u r i s d i c t i o n over Indians and lands reserved for the Indians, i t has been competent to pass l e g i s l a t i o n which varies the common law of a b o r i g i n a l r i g h t s . The provision i n the Indian Act which permits the taking of reserve lands for public purposes without surrender i s an example of s p e c i f i c l e g i s l a t i o n which overrides the common law. But the common law of aboriginal r i g h t s can only be amended by s p e c i f i c federal l e g i s l a t i o n . The Indian A f f a i r s  Settlement Act which i s the purported enabling l e g i s l a t i o n for 0/C 1036 i s a p r o v i n c i a l statute, and therefore could not authorize the compulsory taking of reserve lands without compensation. The rec i p r o c a l federal l e g i s l a t i o n i s not s p e c i f i c enough to override the common law requiring compensation for aboriginal t i t l e . Nor does i t provide for the amendment of the Indian Act provisions concerning compulsory a c q u i s i t i o n of reserve lands. This l a t t e r point has been addressed above. Sla t t e r y argues that the ef f e c t of s. 35 of the Constitution Act, 1982 i s to make even the federal expropriation power inapplicable to aboriginal l a n d s . 3 0 Whether or not the provision goes that far, i t might very well protect reserve lands from the exercise of the resumption power. At the very l e a s t , the power of resumption ought to be construed as re q u i r i n g compensation to be paid for the aboriginal interest taken, because of the common law presumption i n favour of compensation. 2 9 Ibid., 751-2. 3 0 Ibid., 766. 154 The B r i t i s h Columbia Court of Appeal has recently interpreted section 35 of the Constitution Act, 1982 as being a l i m i t a t i o n on the l e g i s l a t i v e powers of Parliament i n so f a r as l e g i s l a t i o n may i n t e r f e r e with e x i s t i n g aboriginal r i g h t s . 3 1 In the Sparrow case i t was held that federal f i s h e r i e s regulations which alloca t e the r i g h t to take f i s h must be subject to the aboriginal r i g h t to f i s h for food. In a l l o c a t i n g r i g h t s to take f i s h among various persons or groups, p r i o r i t y must be given to the Indian food f i s h e r y . 3 2 Although not s p e c i f i c a l l y relevant to the issues addressed here, the case i s s i g n i f i c a n t because i t found aboriginal r i g h t s to be paramount to f e d e r a l l e g i s l a t i o n due to the a f f i r m a t i o n of aboriginal r i g h t s i n the c o n s t i t u t i o n . That general p r i n c i p l e might be used to protect the Indian i n t e r e s t i n reserve lands from the executive action of the p r o v i n c i a l government i n case of an attempted resumption of reserve lands. The Scott-Cathcart Agreement, and the ensuing t r a n s f e r of reserve lands might be viewed as a binding agreement between the two l e v e l s of government with respect to the underlying i n t e r e s t of the Crown i n reserve lands. However, since most of the Indian bands i n B r i t i s h Columbia have never surrendered t h e i r aboriginal i n t e r e s t i n t h e i r reserve lands, that i n t e r e s t should be protected by s e c t i o n 35 of the C o n s t i t u t i o n Act, 1982. I f i t was permissible f o r the federal government to agree to a resumption of 3 1 Sparrow v. The Queen, [1987] 2 W.W.R. 577 (B.C.C.A.) 3 2 Ibid., 607-608. 155 the Crown's underlying i n t e r e s t i n reserve lands, the power to resume lands may not be applicable to the Indian i n t e r e s t i n those lands. That i n t e r e s t , which i s the same as an a b o r i g i n a l i n t e r e s t , may well be protected by the Constitution Act, 1982. That does not mean that i t would be impossible for the province to obtain lands for public purposes from Indian reserves i n B.C. The I n d i a n A c t has, f o r many y e a r s , p r o v i d e d a method f o r a p p r o p r i a t i n g reserve lands f o r p u b l i c purposes, without a surrender of the Indian i n t e r e s t . 3 3 Presumably t h i s method would s t i l l be open to p r o v i n c i a l authorities, since the "existing" aboriginal i n t e r e s t i n reserve lands had been q u a l i f i e d by the expropriation provisions of the Indian Act p r i o r to the enactment of the Constitution Act, 1982. Conclusions The agreement concerning the "form of tenure and mode of administration" f o r Indian reserves i n B.C., and the eventual transfer of reserves by Order i n Council 1036, may well suffer from c o n s t i t u t i o n a l i n f i r m i t i e s . This does not mean that the t r a n s f e r i s v o i d or voidable, but r a t h e r c e r t a i n terms and conditions of the transfer may be u l t r a v i r e s . In p a r t i c u l a r , the reservation by the province of a r i g h t to resume one-twentieth of 3 3 Indian Act, R.S.C. 1970, c.I-6, s.35. The subject was f i r s t dealt with i n the 1886 Indian Act, R.S.C. 1886, c.43, s.35 156 each reserve apparently i n t e r f e r e s with the d i s t r i b u t i o n of l e g i s l a t i v e powers under the C o n s t i t u t i o n Act, 1867. The agreement reached by Messrs. Scott and Cathcart may have resolved an impasse i n n e g o t i a t i o n s , but the compromise of 1929 has resulted i n a continuing unsettled state of a f f a i r s . Indian bands i n B r i t i s h Columbia resent the resumption power claimed by p r o v i n c i a l a u t h o r i t i e s . They have good reason to object. Not only were they never treated with regarding t h e i r t r a d i t i o n a l t e r r i t o r i e s , but the p a l t r y reserves that were established for t h e i r benefit are i n danger of being reduced by the u n i l a t e r a l action of the p r o v i n c i a l government, without compensation. As n o t e d above, th e agreement r e g a r d i n g t e n u r e and administration may be viewed as an attempt to create a kind of j o i n t administration of Indian reserves i n B.C. Surely t h i s attempt, which was born of compromise between the two governments, can not succeed i n a l t e r i n g the d i v i s i o n of powers i n the Constitution Act, 1867. The transfer of reserve lands pursuant to 0/C 1036 can not be viewed as a normal conveyance. The terms and conditions found i n the Order cannot be interpreted i n the same way as i d e n t i c a l terms i n Crown grants. The transfer was required by the Terms of Union and ought to be considered as part of the d i s t r i b u t i o n of property under the C o n s i t i t u t i o n . The resumption power should not be viewed as a reservation from a grant, but rather a condition of a 157 transfer which was effected pursuant to l e g i s l a t i o n . Indeed, a l l of Order i n Council 1036 can be s c r u t i n i z e d as a piece of delegated l e g i s l a t i o n . P r i v y Council Order 208, which subjected the Railway Belt r e s e r v e s to the same c o n d i t i o n s as the other reserves, i s c e r t a i n l y a piece of delegated l e g i s l a t i o n . The Railway Belt reserves were already owned unconditionally by the Dominion before the Scott-Cathcart agreement was reached. The provisos i n the form of conveyance can not be viewed as reservations from a grant by the province. However, the Railway Belt reserves are affected by the Constitution Act, 1930, and the adoption therein of the Scott-Cathcart "form of tenure and mode of administration". In many respects i t was fortunate that Indian reserve lands were transferred by the province to the Dominion, i n t r u s t for the Indians. The transfer makes i t cle a r that there i s no underlying i n t e r e s t which i s i n c o n f l i c t with the Indian i n t e r e s t . The transfer instrument allows a r e l a t i v e l y c e r t a i n analysis of the nature of t i t l e to Indian reserves, or the kinds of property r i g h t s that are associated with reserve lands. Although the problems created by the St. Catherines M i l l i n g case were not apparent at the time that the Terms of Union were struck, the required "conveyance",of reserve lands ensured that those problems would not plague the administration of Indian a f f a i r s i n B r i t i s h Columbia. However, the "form of tenure" that was ultimately 158 chosen created some d i f f e r e n t problems for Indian bands i n the province. They are faced with the prospect of l o s i n g a portion of t h e i r reserve lands without surrender and without compensation. This s i t u a t i o n , which i s unique i n Canada, ought to be r e c t i f i e d . 159 BIBLIOGRAPHY Books and A r t i c l e s Battersby, G., ed. Williams on T i t l e . 4th ed. London: Butterworths, 1975. Blake, John, ed. Jewitt's Dictionary of English Law. 2nd ed., v o l . 1. London: Sweet & Maxwell, 1977. Borthwick, David. "The B i r t h of B.C. Order i n Council 1036." Ottawa: Department of I n d i a n A f f a i r s and Northern Development, Library Services, 1975. . "The P r o v i n c i a l Reversionary Interest i n Indian Reserves - A Unique Proposition." Ottawa: Department of Indian A f f a i r s and Northern Development, Library Services, 1975. B r i t i s h Columbia. L e g i s l a t i v e Assembly. 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J u d i c i a l Review Procedure Act, R.S.B.C. 1979, c. 209. Land Act, S.B.C. 1899, c. 38. Land Act, S.B.C 1908, c. 30. Land Act, S.B.C 1924, c. 131. Land Ordinance, Ordinaces of the L e g i s l a t i v e Council of B r i t i s h Columbia, 1865, No. 27. Land Registry Act, S.B.C 1910, c. 27. Land Registry Act, S.B.C 1931, c. 32 Water Act, 1939, S.B.C. 1939, c. 63 Water Act, R.S.B.C. 1979, c. 429. Water Clauses Consolidation Act, 1897, S.B.C 1897, c. 45. Water P r i v i l e g e s Act, 1892, S.B.C. 1892, c. 47. 163 B r i t i s h Columbia Orders i n Council No. 1138, January 6, 1876; No. 279, January 30, 1877; No. 125, February 26, 1907; No. 1341, December 18, 1912; No. 911, July 26, 1923; No. 1036, July 29, 1938; No. 2995, November 28, 1961; No. 1555, May 13, 1969. Canada Alberta Act, 1905, 4-5 Edw. VII, c. 3 (Canada), i n R.S.C. 1970, Appendix I I . An Act to Amend the Indian Act, S.C. 1985, c. 27. B r i t i s h Columbia Indian Reserve Mineral Resource Act, S.C. 1943-44, c. 19. 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APPENDIX A 165 Reproduction of Order i n Council 1036. I hereby c e r t i f y that the following i s a true copy of a Minute of the Honourable the Executive Council of the Province of B r i t i s h Columbia, approved by His Honour the Lieutenant-Governor on the 29th day of July, A.D. 1938. To His Honour The Lieutenant-Governor in Council: The undersigned has the honour to RECOMMEND:— THAT under authority of Section 93 of the "Land A c t " , being Chapter 144, "Revised Statutes of B r i t i s h Columbia, 1936", and Section 2 of Chapter 32, " B r i t i s h Columbia Statutes 1919", being the "Indian A f f a i r s Settlement A c t " , the lands set out i n schedule attached hereto be conveyed to His Majesty the King i n the rig h t of the Dominion of Canada i n t r u s t for the use and benefit of the Indians of the Province of B r i t i s h Columbia, subject however to the r i g h t of the Dominion Government to deal with the said lands i n such manner as they may deem best suited for the purpose of the Indians including a ri g h t to s e l l the said lands and fund or u s e 166 (ORDER IN COUNCIL No. 1036... Continued) the proceeds f o r the b e n e f i t of the Indians subject to the condition that i n the event of any Indian t r i b e or band i n B r i t i s h Columbia at some future time becoming e x t i n c t that any lands hereby conveyed for such t r i b e or band, and not sold or disposed of as heretofore provided, or any unexpended fund being the proceeds of any such sale, s h a l l be conveyed or repaid to the grantor, and that such conveyance s h a l l also be subject to the following provisions:-PROVIDED NEVERTHELESS that i t s h a l l at a l l times be lawful for Us, Our heirs and successors, or for any person or persons acting i n that behalf by Our or t h e i r authority, to resume any part of the said lands which i t may be deemed necessary to resume for making roads, canals, bridges, towing paths, or other works of public u t i l i t y or convenience; so, nevertheless that the lands so to be resumed s h a l l not exceed one-twentieth part of the whole of the lands aforesaid, and that no such resumption s h a l l be made of any lands on which any buildings may have been erected, or which may be i n use as gardens or o t h e r w i s e f o r the more convenient occupation of any such buildings: PROVIDED also that i t s h a l l be lawful for any person duly authorized i n that behalf by Us, Our heirs and successors, to take and occupy such water p r i v i l e g e s , and to have and enjoy such r i g h t s of carrying water over, through or under any parts of the hereditaments hereby granted, as may be reasonable required for mining or a g r i c u l t u r a l purposes i n the v i c i n i t y of the said h e r e d i t a m e n t s , p a y i n g t h e r e f o r a r e a s o n a b l e compensation. PROVIDED also that the Department of Indian A f f a i r s s h a l l through i t s proper o f f i c e r s be advised of any work contemplated under the preceding provisoes that plans of the lo c a t i o n of such work s h a l l be furnished for the information of the Department of Indian A f f a i r s , and that a reasonable time s h a l l be 167 (ORDER IN COUNCIL No. 1036... Continued) allowed for consideration of the said plans and for any necessary adjustments or arrangements i n connection with the proposed work: PROVIDED also that i t s h a l l be at a l l times lawful for any person duly authorized i n that behalf by Us, Our heirs and successors, to take from or upon any part of the hereditaments hereby granted, any gravel, sand, stone, lime, timber or other material which may be required i n the construction, maintenance, or repair of any roads, f e r r i e s , bridges, or other public works. But nevertheless paying therefor reasonable compensation for such m a t e r i a l as may be taken f o r use outside the boundaries of the hereditaments hereby granted: PROVIDED also that a l l t r a v e l l e d streets, roads, t r a i l s , and other highways ex i s t i n g over or through said lands at the date hereof s h a l l be excepted from t h i s grant. AND TO FURTHER RECOMMEND THAT a c e r t i f i e d copy of t h i s minute, i f approved, be transmitted to the Registrar i n each Land Registry O f f i c e i n the Province of B r i t i s h Columbia to the intent that such c e r t i f i e d copy be accepted by him as a conveyance of the said land to His Majesty the King i n the r i g h t of the Dominion of Canada as represented by the Department of Indian A f f a i r s of Canada, without f u r t h e r formal instrument of t r a n s f e r subject to the s a i d provisoes and conditions. AND TO FURTHER RECOMMEND THAT a c e r t i f i e d copy of t h i s minute, i f approved, be forwarded to the Superintendent General of Indian A f f a i r s at Ottawa. DATED t h i s 29th day of July A.D. 1938. 168 APPENDIX B Reproduction of Privy Council Order 208  and the Scott-Cathcart Agreement,  being Schedule Two of P.C. 208. P.C. 208 C e r t i f i e d to be a true copy of a Minute of a Meeting of the Committee of the Privy Council, approved by His Excellency the Governor General on the 3rd FEBRUARY 1930 The Committee of the Privy Council have had before them a Report, dated 24th January, 1930, from the Superintendent General of Indian A f f a i r s , submitting that, pursuant to c e r t a i n Statutes of Canada and of the Province of B r i t i s h Columbia (Ca. 1920, Chapter 51, B.C. 1919, Ch. 32) Your Excellency i n Council and His Honour the Lieutenant-Governor of B r i t i s h Columbia i n Council were respectively authorized to take such action as might be necessary to c a r r y out a c e r t a i n agreement made on the 24th day of September, 1912, with respect to the administration of Indian lands i n the said Province, a copy of which sai d agreement i s attached as schedule One hereto. The Minister states that i n pursuance of the said agreement a Royal Commission was c o n s t i t u t e d to report on the matters aforesaid, and duly reported on the 30th of June, 1916, whereupon the Lieutenant-Governor i n Council, on the 26th day of July, 1923, made an Order (No. 911) approving of the said report, and Your Excellency i n Council, on the 19th day of July, 1924, (P.C. 1265) made an Order approving thereof except as to cut-offs i n the Railway Belt . The Minister further states that on the 22nd day of March, 1929, a further agreement with respect to Indian lands i n the P r o v i n c e o f B r i t i s h Columbia was e n t e r e d i n t o between representatives of the Governments of Canada and of the Province of B r i t i s h Columbia respectively, a copy of which said agreement with schedules containing a l i s t of the reserves i n the Railway 169 Belt and Peace River Block and a draft of the form of conveyance i n the said agreement referred to are hereto attached as schedules Two, Three and Four. The M i n i s t e r a c c o r d i n g l y recommends that the s a i d l a s t mentioned agreement and the schedules aforesaid be approved and the agreement directed to be c a r r i e d out according to i t s terms upon the approval thereof by the Lieutenant-Governor of B r i t i s h Columbia i n Council. The M i n i s t e r f u r t h e r recommends that the Superintendent General of Indian A f f a i r s be authorized, pursuant to Section 48 of the Indian Act (R.S.C. 1927, Ch. 98), to agree to the taking for any such p u b l i c work as i s mentioned i n the d r a f t form of conveyance attached hereto as schedule Four an area i n excess of the one-twentieth therein provided for on payment of the Province of B r i t i s h Columbia for the benefit of the Indians of such sum by way of compensation for the land so taken as the Superintendent General of Indian A f f a i r s my determine. The Committee concur i n the foregoing recommendations and submit the same for Your Excellency's approval. 170 Schedule 2 MEMORANDUM OF AGREEMENT ARRIVED AT BETWEEN DR. DUNCAN C. SCOTT AND MR. W. E. DITCHBURN ON BEHALF OF THE DOMINION GOVERNMENT, AND MR. HENRY CATH-CART AND MR. 0. C. BASS ON BEHALF OF THE PROVINCIAL GOVERNMENT. The undersigned having been designated by t h e i r respective Governments to consider the in t e r e s t of the Indians of B r i t i s h , Columbia, the Department of Indian A f f a i r s and the Province of B r i t i s h Columbia, a r i s i n g out of the proposed transfer to the Province of the lands i n the Railway Belt and the Peace River Block; and to recommend conditions under which the transfer may be made with due regard to the int e r e s t s affected beg to report as follows:-As the tenure and mode of administration of the Indian Reserves i n the Railway Belt and the Peace River Block would, we thought, be governed by the terms of the conveyance by the Province to the Dominion of the Indian Reserves outside those areas i t was thought advisable to agree i f possible upon a form of conveyance p a r t i c u l a r l y as that question had been before the Governments for some time and remained undecided and furthermore to consider a few important matters germane to Indian a f f a i r s i n the Province with the hope of making recommendations which would promote the ease and harmony of future administration. 171 1. We have agreed to recommend the form of conveyance from the Province to the Dominion of the Indian reserves outside the Railway Belt and the Peace River Block hereunto annexed marked "A" . 2. We have agreed that, the provisions of section 47 of the "Land Registry Act" (R.S.B.C 1924, chapter 127) being no longer necessary i n view of the settlement now ar r i v e d at, the said s e c t i o n should be repealed, and the r e p r e s e n t a t i v e s of the Province undertake to so advise and recommend, and, pending such repeal, w i l l recommend that i n proper cases a r i s i n g , r e g i s t r a t i o n may be permitted by Order i n Council as provided i n sa i d section 47. 3. We have considered clause 4 of the document known as the McKenna-McBride agreement, which reads as follows:-"4. The lands which the Commissioners s h a l l determine are not necessary for the use of the Indians s h a l l be subdivided and sold by the Province at public auction." It i s considered that t h i s provision might b e n e f i c i a l l y be vari e d so that i t be provided that on agreement between the Governments, through t h e i r respective Departments, the lands may be either subdivided for sale, or disposed of en bloc, as may appear most advantageous i n the circumstances of each p a r t i c u l a r case, but that such sale and disposal s h a l l be by public auction; and as to disposal of timber, mineral and s i m i l a r r i g h t s , the same 172 s h o u l d be d e a l t with by agreement between the r e s p e c t i v e Governments through t h e i r proper Departments, and we s h a l l recommend accordingly to our respective Governments. 4. It was brought up by the Dominion representatives that a necessity e x i s t e d f o r additional lands for Indians i n various portions of the Province, not provided for by the Royal Commission on Indian A f f a i r s , and i t was suggested that such lands be granted by the Province at a reduced or nominal price, apart from the p r i c e s f i x e d by the Land Act, the P r o v i n c e t o have i t s reversionary i n t e r e s t i n such lands, or the proceeds of sale or disposal thereof, as i n Indian Reserves proper, on the extinction of the Indian i n t e r e s t . In such event, the Province to re-imburse the Dominion the purchase price paid by i t for said lands. It i s , with great respect, considered good p o l i c y to have t h i s question of Indian lands f i n a l l y s e t t l e d , and that some consideration be given by the Pr o v i n c i a l Government to a reduction i n price. 5. It was urged by the Dominion representatives that the Indian claims to the foreshore of t h e i r reserves be recognized by the Province, but the Provincial representatives pointed out that i t has been and i s the i n v a r i a b l e p o l i c y of the Province to consider the righ t s of the upland owners, and that t h i s p o l i c y f u l l y protected the righ t s of the Indians i n the same way as other upland owners or occupiers of land. 173 In t h i s connection the following l e t t e r from the la t e Premier O l i v e r , dated the 23rd. of A p r i l , 1924, was b e f o r e the representatives:-"Ottawa, A p r i l 23, 1924. The Honourable, The Superintendent General of Indian A f f a i r s , Ottawa. Dear S i r : -Re: Indian Reserves i n B r i t i s h Columbia. R e f e r r i n g to our conversation of yesterday and having reference to the fears expressed by the Indians that where t h e i r reserves fronted on the water, access to t h e i r lands might be in t e r f e r e d with by construction of wharfs, docks, booms or other obstructions erected or placed along any foreshore being i n the Province, as I expressed myself yesterday, I would favour a p o l i c y t r e a t i n g the Indians on exactly the same footing as I would treat the whites, and would i f necessary advise the Government of the Province to give the Indian Department a written assurance to that e f f e c t . I am, however, of the op i n i o n that no such assurance i s necessary, as I think the p r i n c i p l e of Riparian Rights would apply to any Indian reserves having water frontage to the same extent as Riparian Rights would apply to the same lands were such lands subject to the p r i v a t e ownership of any person other than an Indian. In other words, R i p a r i a n Rights would accrue to the Indians (through the Indian Department) to the same extent as they would apply to a white owner. I should be pleased i f you would obtain the advice of your le g a l Department on t h i s phase of the s i t u a t i o n . I am, Yours f a i t h f u l l y , John Oli v e r " . 174 I t was considered by the representatives of the Province that t h i s l e t t e r expressed the p o l i c y which i n the past has been followed, and w i l l be followed by the Province i n the future. 6. Regarding Indian Reserves i n the Railway Belt and Peace River Block, we have agreed that the Indian Reserves set apart by the Dominion Government i n the Railway Belt and i n the Peace River Block (as shown i n Schedule hereto annexed), and also the Indian Reserves set apart before the transfer of the Railway Belt and the Peace River Block by the Province to the Dominion s h a l l be excepted from the reconveyance of the Railway Belt and the Peace River Block, and s h a l l be held i n t r u s t and administered by the Dominion under the terms and conditions set f o r t h i n the Agreement dated 24th, September, 1912, between Mr. J.A. McKenna and the Hon. S i r Richard McBride, (as confirmed by Dominion Statute, Chapter 32 of the Statutes of 1919) i n the Dominion Order i n Council Number 1265, approved 19th. July, 1924, and P r o v i n c i a l Order i n Council Number 911, approved 26th. of July, 1923, and i n the form of conveyance marked "A" of the Indian Reserves outside the Railway Belt and the Peace River Block. Respectfully submitted. DATED at V i c t o r i a , B r i t i s h Columbia, t h i s 22nd. day of March, 1929. 

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