Hyperlawhypertext legal database Attorney-General For Canada v. Giroux (1916) 53 SCR 172

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Attorney-General For Canada v. Giroux

(1916) 53 SCR 172 Court SCC Decision date 1916-05-02 English

Contents
Per Idington J.-Crown lands of the Province Canada, situate Lower Canada; which had not (as provided by the statute 14 and Vict., chap. been surveyed and set apart, as intended to be -vested in the Commissioner Indian Lands for Lower Canada, and appropriated to the use Indians prior the 1st July, do not fall within the definition of "Lands r3served for the Indians" in the 24th item enumerated in section of the "British North America Act, and, consequently, did not pass under the control the Government the Dominion Canada at the time of Confederation.
In regard, therefore, to Charles Fitzpatrick C.J. and Idington, Duff Anglin and Brodeur JJ.
the lands in question the presumption is that they then became vested in the Crown in the right of the Province of Quebec, and, in the absence evidence to the contrary, the Attorney-General for Canada cannot now enforce any claim of title to such lands in right the Dominion.
Per Duff and Anglin JJ.-The order-in-council of authorizing GmoUx. the acceptance of a surrender, and the surrender pursuant thereto by the Indians the "reserve" within which the lands in question are situate are public documents the recitals in which are primd facie evidence the facts stated therein (Sturla v. Freccia (5 App. Cas. at pp. 643-4, referred to).
Evidence is thereby afforded that the band Indians occupied the tract land question as a "reserve" and the principle "omnia presutnuntur rite esse aeta" is sufficient to justify, primd facie, the conclusion that the order-in-council respecting the constitution the reserve, was carried out and that the occupation thereof the Indians was legal.
Consequently, the rights acquired the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control the Government of Canada, at the time of Confederation, virtue the provisions as to "Lands reserved for the Indians" in section the "British North America Act, St. Catherine's Milling and Lumber Co. v. The Queen App. Cas. 46), distinguished.
Judgment appealed from (Q.R. K.B. affirmed.
APPEAL from the judgment of the Court of King's Bench, appeal side (1) affirming the judgment of Letellier J., in the Superior Court, District of Chicoutimi, dismissing the action.
The circumstances of the case are stated in the judgments now reported.
G. G. Stuart K.C. and L. P. Girard for the appellant. L. G. Belley K.C., for the respondent.
THE CHIEF JUSTICE.-The appellant, the Attorney-General for the Dominion of Canada, claims in this suit to have it declared that the Crown is the owner of a certain half-lot of land, being lot No. 3 of the first range, Canton Ouiatchouan, in the Parish of St. Prime and County of Lake St. John.
(1) Q.R. 24 K.B. 433, sub nom. Doherty v. Giroux. In the first paragraph of the amended declaration it is stated that the Crown has always been and still is the owner of the lot No. 3.
This, however, is only inaccurate drafting of which there is much in the record. There is no doubt that the claim of the Crown is only to the south-east half of lot No. 3, and it is not disputed that the respondent has a good title to the northwest half of lot No.
The respondent has been in possession of the whole of lot No. for upwards of a quarter of a century during which time the Government has taken no effective steps to question his right to any part of the lot.
By an order-in-council, dated August 9-11, 1853, approval was given to a schedule shewing the distribution of land set apart under the statute 14 & 15 Vict., ch. 106, for the benefit of the Indian Tribes in Lower Canada. Included in this schedule was a reservation in favour of the Montagnais of Lake St. John. The half-lot in question was comprised in this reservation.
On the 25th of June, 1869, the Montagnais Band of Indians surrendered to the Crown, for sale, a portion of the reservation including lot No. 3. This land so surrendered was put up for sale and it would appear that on the 21st June, 1873, the north-west half-lot No. 3 was sold to the respondent and, on the 7th May, 1878, the south-east half-lot was sold to one David Philippe.
Under a judgment obtained by the mis-en-cause, 0. Bouchard, against D. Philippe the latter's half of lot No. 3 was sold at a sheriff's sale to the respondent on the 7th March, 1889.
The Crown alleges that David Philippe was an Indian, that he was, at the time of the sheriff's sale, in possession of the land on which he had been located by the Crown and that, consequently, the Crown still held the half-lot as "Indian Lands" and as such liable neither to taxation nor to execution.
The fallacy in this argument is in the statement that David Philippe had been located on the land; it involves the proposition that, whilst all the other lots into which Jutiv. the reserve had been divided were sold outright to their purchasers, this particular half-lot was not sold to the purchaser David Philippe, but that, being an Indian, he was only "located"
on the land in the meaning of that term in the "Indian Act."
To shew the impossibility of supporting such a contention it is only necessary to turn to the sections in point in the statute. The Act in force on the 7th May, 1878, the date of the sale to David Philippe, was the "Indian
Act, 1876" (39
Vict., ch. 18). Section 3 is as follows:- The following terms contained in this Act shall be held to have the meaning hereinafter assigned to them unless such meaning be repugnant to the subject or inconsistent with the context.
The term "Indian" means:
First, any male person Indian blood reputed to belong to particular band
The term "Reserve"
means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians which the legal title in the Crown, but The term "Indian Lands" means any reserve or portion a reserve which has been surrendered to the Crown. * * * The term "person"
n-eans an individual other than an Indian, unless the context clearly requires another construction. By Section 5, the Superintendent-General may authorize that the whole or any portion a reserve be subdivided into lots.
In a reserve or portion of a reserve subdivided by survey into lots, no Indian shall be deemed to be lawfully in possession one be located for the same by the band, with the approval the Super- Section 7:
On the Superintendent-General approving 'of any location as aforesaid he shall issue in triplicate a ticket granting a location to such Indian.
The Chief
Justice.
The conferring any such location-title as aforesaid shall not have the effect of rendering the land covered thereby subject to seizure under legal process or transferable except to an Indian the same band.
The statute, it will be observed, makes provision for the conferring of a location-title only on a reserve, that is on unsurrendered lands and then by the band, not by the Crown.
Then after sections 25 and- following, dealing with surrenders of reserves to the Crown, we have sections 29 and following u-nder the caption "Management and Sale of Indian Lands."
There is no suggestion in these sections, or anywhere else in the Act, that Indian lands may not be sold to an Indian.
I suppose it may well be that it would not be a common occurrence for an Indian to be a purchaser at a sale of Indian lands, but it is one thing to say the statute did not contemplate this and quite another to say that it intended to forbid it. I can imagine no reason why an Indian should not purchase such lands; there is no doubt as to his capacity to hold real estate. This is recognized by section 64, which provides that: No Indian or non-treaty Indian shall be liable to be taxed for any real or personal property, unless he holds real estate under lease in fee simple, or personal property, outside the reserve or special reserve, in which case he shall be liable to be taxed for such real personal property at the same rate as other persons in the locality which it is situate.
This really disposes of the appellant's case but, out of respect for the learned judge of the Court of King's Bench who dissented from the majority of the court and one of whose points is taken up in the appellants' factum, a few words may be added.
The whole ground of the dissenting opinion is really in the following paragraph:
I am myself quite unable to appreciate the necessity or occasion for any such condition as the learned judge suggests but it is unnecessary to discuss this because, as far as I have been able to ascertain, it is purely imaginary.
The judge says further on: No reference is given and I know of no such prohibition, positive or otherwise.
The point taken in appellant's factum that a "person," as defined by the "Indian Act," does not include an Indian has reference to the section dealing with certificates of sale which is section 31 of 39 Vict., ch. 18 and section 42 of chapter 43, Revised Statutes of Canada.
There seems to be some obscurity about this section because the marginal note which has been carried through all the amendments and revisions of the Act is "Effect of former certificates of sale or receipts."
The section, however, seems to look to future certificates and, as I apprehend, is designed to meet the inconvenience of delay in the issue of patents.
Be that as it may, the section does not provide that any "person" may purchase these lands but that an Indian may not be one of these "persons": all that it does provide is that a certificate of sale or receipt for money, duly registered as therein mentioned, shall give the purchaser the same rights as he would have under a patent from the Crown.
GV.
The definition of terms is, at the commencement of section 3, said to apply only when not inconsistent with the context and this is emphasized by its special repetition in the 12th item in which the word "person" is defined.
I cannot think that such an accidental use of the word "person"
for "purchaser"
or any other word to indicate him could possibly be held to involve by inference a positive law against an Indian becoming a purchaser for which prohibition there is no other warrant.
I think in such case the context would clearly require another construction.
But this is not all; the appellant has assumed that the case is governed by the "Indian Act," chapter 43 of the Revised Statutes of 1886, but this is not so, and when we look at the "Indian Act" of 1876 we find that the word "person" does not occur at all in the extract quoted by the appellant which sets forth what the certificate of sale or receipt for money shall entitle the purchaser to. The word used is "party" shewing conclusively that the legislature had no intention, even by an inference through the interpretation section, to prevent the acquisition by an Indian of Indian lands put up for sale.
The.word "party" is several times used when distinctly intended to include both "persons" and "Indians."
See sections 12 and 14.
This substitution in the revised statute of the word "person" for the word "party" is an instance of the danger attending such changes in the revision of the statutes. Obviously the revisers had no idea of enacting an important law by the change they made but regarded it simply as a linguistic embellishment; it has, however, misled two of the judges of the Court of King's Bench into finding a positive law against the sale of Indian lands to an Indian.
At the hearing I was considerably impressed with the argument that, even if there had never been a valid sale to David Philippe, the transactions between Euchbre Otis, the local agent of the Superintendent- General, and the respondent constituted a sale to the latter which was also confirmed by the Department Indian Affairs.
If, however, the views that I have previously expressed are correct it is unnecessary to consider this point further.
If the sale to David Philippe, in 1878, was good, the Crown had nothing left to- grant to Giroux in 1889.
Judge Pelletier, delivering the dissenting judgment in the Court of King's Bench, says that he has endeavoured to find in the record the necessary grounds for confirming the judgment, since such confirmation (if it could be legally given) would seem to him more in accordance with equity. With this view I agree and it is therefore satisfactory to be able to conclude that the judgment is in conformity not only with equity in its most general meaning but also with the law. The appeal should be dismissed with costs.
J.-The appellant seeks to have the Crown declared the proprietor of part of a lot of land in Quebec and respondent removed therefrom and ordered to account for the fruits thereof for the past twenty-six years.
The circumstances under which the claim is made are peculiar and some novel questions of law are raised. Much diversity of judicial opinion in the courts below seems to exist relative to some of these questions. To put the matter briefly, the appellant claims that the land in question is part of a tract of land known as an "Indian Reserve," which had become vested by virtue of certain legislation in the Crown, in trust for a tribe of Indians; that part of it was thereafter sur- Ginotx.
rendered by the tribe to the. Crown for purposes of sale for the benefit of said tribe; that this part of the -lot now in question was in course of time sold to an Indian of said tribe; that he paid five 25/100 dollars on account of the purchase; that thereafter, under a judgment got against him, the land was sold by the sheriff to respondent for $500; that thereupon he paid to the Indian Department $164 as the balance of the purchase-money due the Crown, and procured the receipt therefor, which appears hereinafter, from the local sales agent of the Indian Department; that he then went into possession and improved the land and has remained so possessed ever since till, according to assessed values, it has risen from being worth only $500 in 1889, when respondent entered, to be worth $3,200, in 1913, when this litigation was pending; that the Indian purchaser was incapacitated by statute from buying lands in a "Reserve"; and that the sheriff's sale was, as part of the result, null and void and hence that respondent got nothing by his purchase. To realize the force and effect of these several allegations we must examine the statutes upon which the rights of the Indians rested, their powers of surrender thereunder, and the effect of the "British North America Act" under and by virtue of which the claim of the appellant is asserted.
The Parliament of Old Canada, by 14 & 15 Vict. ch. 106, enacted:
respectively directed to be set apart in any order-in-council, to be made as aforesaid, and the said tracts land shall accordingly, by virtue of this Act, and without any price or payment being required therefor, be vested in and managed by the Commissioner of Indian Lands for Lower Canada, under the Act passed in the session held in the thirteenth and fourteenth years of Her Majesty's Reign, and GiRoux. intituled, An "Act for the better protection of the Lands and Property of Idington J. the Indians in Lower Canada."
In the last mentioned Act, chapter 42 of 13 & 14 Vict., there is enacted:
It shall be lawful for the Governor to appoint from time to time a Commissioner of Indian Lands for Lower Canada in whom and whose successors by the name aforesaid all the lands or property Lower Canada which are or shall be set apart, or appropriated to for the use of any tribe or body Indians, shall be and are hereby vested in trust for such tribe or body and who shall be held in law to be in the occupation and possession any lands in Lower Canada actually or possessed by any such tribe or body in common or by any chief or member thereof or other party for the use or benefit of such tribe or body and shall be entitled to receive and recover the rents issues and profits such lands and property, and shall and may, in and by the name aforesaid, be subject to the provisions hereinafter made, exercise and defend all or any the rights lawfully appertaining to the proprietor, possessor or occupant such land or property. In the evidence in the case there is a certified copy of an order-in-council of August, 1853, which reads as follows:- On the letter from the Honourable Commissioner of Crown Lands, dated 8th June, submitting for approval a schedule shewing the distribution the area land set apart and appropriated under the statute & Vict., ch. for the benefit the Indian Tribes in Lower Canada.
The Committee humbly advise that the said schedule be approved and that the lands referred to be distributed and appropriated as therein proposed.
This is vouched for by a certificate of the Assistant- Commissioner of Crown Lands, in 1889.
The schedule referred to in the said order-in-council does not appear in evidence. Neither does the letter. There does, however, appear a schedule in the case, certified by the same Assistant-Commissioner of Crown Lands and of same date as last mentioned certificate. This on its face cannot be the schedule referred to in said order-in-council.
It is as follows:- Idington J. I 'r H 0~ t Ea w/ S.- A' A' I may remark that the marginal note
Surveyed. Exchanged for a tract on the west shore of Lake St. John. Surveyed.
cannot have formed part of an order-in-council in That note is something evidently written in after the date of the order-in-council and I infer has Idington J. been a note made by someone in reference to an exchange proposed on 4th September, 1856, to which I am about to refer.
Who wrote it?
When was it written?
By what authority?
The certificate seems as presented in the case to be placed higher up than the note -at left hand side and signed by Mr. Wauhebe. It is probable, however, the certificate was intended to present this note as part of the original record purported to be certified to. What then does the date signify in this note? It is of February, 1858. Who was Mr. Wauhebe?
What office did he fill?
What was the purpose of the extract as it left his hands?
Was the marginal note part of what he seems to be certifying to?
The importance of a definite answer to these queries and all implied therein becomes apparent when we find that the title of the Crown, as represented by appellant, depends upon the effect to be given the most indefinite terms of an order-in-council of the 4th September, 1856, which is as follows:- On the application of the Montagnais Tribe of Indians of the Saguenay, thro' David E. Price, Esq'r, M. P. P. for the appointment of Mr. Georges McKenzie as interpreter and to distribute all moneys or goods given to the Tribe; and for the grant of a tract of land on Lake St. John, commencing at the River Ouiatchouanish, to form a township of six miles square; also, that the grant of £50 per annum, may be increased to £100, and continue annually.
The report from the Crown Land Department dated 25th July, 1856, states that the tract of land set apart for the Montagnais Indians, lies in the Township of .Metabetchouan, west side of the river of that name and that this land, together with the tract at Peribonca, north J.
There is nothing in the case to explain what was done pursuant to this order, and when, if anything ever was done.
There is nothing in the printed case shewing any definite survey ever was made of the lands thus recommended to be given in exchange for the lands which had been allotted to some Indians.
The 'Act of 14 & 15 Vict., ch. 106, makes it clear by the above quotation therefrom that orders-in-council setting apart land for the use of Indians should be described, surveyed and set out by the Commissioner of Crown Lands, and that only in such event can such tracts of land be considered as set apart and appropriated for the use of the Indians.
Again, it is clearly intended by the earlier enactment of 13 & 14 Vict. that the lands intended to be vested in the Commissioner of Indian Lands are such as have been set apart or appropriated to the use of Indians. When we consider that the lands to be so vested by virtue of those Acts are to be only lands which have been surveyed and set apart by the Commissioner of Crown Lands, it is very clear that something more than an order-in-council, such as that produced, merely approving of the proposed scheme of exchange, was needed to vest lands at Point Bleue in the Commissioner of Indian Lands.
Yet, strange to say, there is nothing of the kind in the case or anything from which it can be fairly inferred that the necessary steps ever had been taken.
Counsel for the appellant referred to a blue print G . in the record; and I understood him to suggest it was . made in 1866.
Examining it, I can find no date upon it; but I do find another plan purporting to be a survey made by one Dumais, P. L. S., in 1866.
Probably it is by reference thereto he fixed the date of the blue print, if I understood him correctly.
This latter plan has stamped upon it the words "Department of Indian Affairs, Ottawa, Canada"; and inside these, set in a circle, are the words "Survey Branch, True, Reduced Copy, W.
So far as I can find from the case, or the record from which the case is taken, the foregoing presents all there is entitling appellant to assert a title in the Crown on behalf of the Dominion.
Clearly the order-in-council recommending an exchange, without more, furnishes no evidence of title. It might be said with some force, but for the constitutional history of Canada involved in the inquiry, that what we do find later on furnishes something from which after such lapse of years some inferences might be drawn.
There are two difficulties in the way. All that transpired after the 1st of July, 1867, when the "British North America Act" came into force, can be of no effect unless and until we have established a state of facts, preceding that date, which would enable the "British North America Act" by its operation to give control of the said lands to the Crown on behalf of the Dominion.
By section 91, sub-section 24 of said Act, one of the subject matters over which the Dominion Parlia- -ment was given exclusive legislative authority was "Indians and Lands reserved for Indians."
The question is thus raised whether or not the lands in question herein fall definitely within the term " Lands reserved for Indians."
The Dominion Parliament, immediately after Confederation, by 31 Vict., ch. 42, asserted its legislative authority over such lands as reserved for Indians. . All that took place afterwards relative to the lands in question can be of no effect in law unless the alleged reserve had been duly constituted on or before the 1st July, 1867.
It seems impossible on such evidence as thus presented to find anything bringing the lands in question within the scope of and under the operation of the "British North America Act."
But there is another difficulty created by the enactment, in 1860, by the Parliament of Old Canada of 23 Vict., ch. 151, sec. 4, which provides as follows:- This is followed by two sub-sections which specify the steps which must be taken to enable a surrender to be made.
It is to be observed that this was passed within three years and ten months from the orderin-council recommending the exchange made of the lands on the Peribonca and Metabetchouan rivers held as reserves for the Indians in question.
If the survey and setting apart contemplated by the proposed exchange was not made and fully completed by the 30th June, 1860, when the bill, which had been reserved by the Governor in May, was assented to, the completion of that exchange would require the due observance by the Indians of the form of surrender imperatively required by the last mentioned Act.
There is nothing to indicate this ever was complied with.
Hence surveys made in 1866, or any time after 30th June, 1860, cannot help without evidence of such compliance.
There is no evidence of any Indians in fact having been found on the Pointe Bleue reservation before the year 1869.
If one had to speculate he might infer something took place between 1866 and 1869.
But we are not at liberty do do so, or found a judgment herein for appellant, without evidence or only upon the merest scintilla thereof.
The appeal therefore fails in my opinion.
I think the distinction claimed by Mr. Stewart to exist between reserves duly constituted under the Acts above. referred to, whereby the land became vested in commissioners in trust, and such reserves as involved in the case of St. Catherine's Milling and Lumber Company v. The Queen(1), and some other cases referred to, was well taken.
But, as this case stands, there being no evidence of the land having been duly vested before 1st July, 1867, in commissioners in trust, or otherwise falling within the operation of the "British North America Act," section 91, sub-section 24, the presumption is in favour of the land being vested in the Crown on behalf of Quebec.
Assuming, for argument's sake, that there is any evidence upon which to find the land vested in the Crown on behalf of the Dominion and that there is evidence of a sale by the Crown to David Phillippe, -upon which he paid only five 25/100 dollars, how does that help the appellant?
Admitting the invalidity of the sale and nullity of the sheriff's sale, and discarding both as null, there is evidence which goes far to establish the recognition by the Crown of the respondent as the purchaser. The local agent gave respondent the following receipt:- And the Department of Indian Affairs, at Ottawa, set down in its books a recognition of respondent as purchaser.
.
It would have been, I incline to think, quite competent for the Crown under all the circumstances, and without any detriment either to the trust or anything else, to have taken the position in 1889, as may be inferred was done, that the said receipt and entry in the books should stand forever as a final disposition of the affair. - The reasons against such a course of action being taken by the Crown were of rather a technical character; even assuming Phillippe was debarred from buying, upon which I pass no opinion.
Under the law as it has long existed there was the possibility of recognizing any Indian qualified to be enfranchised and thereby beyond doubt entitled to become a buyer. It may be inferred even at this distance of time that if the questions now raised had, at the time when respondent was set down in the books of the department as purchaser of the lands in question, been viewed in light thereof and the foregoing circum- J. stances and especially having regard to the fact that, in any event, Phillippe alone was to blame, and had no more substantial grievance at least none worth more than $5.25 to set up, and seeing respondent had contributed $500 to pay his debts and paid practically the whole purchase money to the Crown, no harm would have been done by letting the recognition of respondent stand.
I must not be understood as holding that there cannot be discovered abundant evidence to cover the very palpable defects I point out in the proof of title adduced herein.
This is not one of the many cases wherein probabilities must be weighed.
It is upon the record as it presents the title to the lot in question that we must pass. Fortunately the result does justice herein even if the result of blunders in failing to produce evidence which may exist.
The appeal must be dismissed with costs.
J.-The action out of which this appeal arises was brought in the Superior Court for the District of Chicoutimi, in the Province of Quebec, by the Attorney-General of the Dominion on behalf of the Crown claiming a declaration that a certain lot of land was the property of the Crown and possession of the same.
The three questions which it will be necessary to discuss are:- First.-Was the lot in question within the limits of an Indian Reserve constituted under the authority of 14 & 15 Vict., ch. 106?
Second.-If so, is the title vested in His Majesty in right of the Dominion of Canada or has the Attorney-General of Canada, on other grounds, a title to maintain the action?
Third.-Was a professed sale of the lot made in 1878 to one David Philipe, member of the Montagnais tribe by an agent of the Department of Indian Affairs, a valid sale?
I shall first state the facts bearing upon the first and second of these questions. On the 9th of August, 1853, an order-in-council was passed by which certain tracts of land were severally appropriated for the benefit of the Indian tribes in Lower Canada under the authority of the statute above mentioned. Two tracts were set apart for the benefit of the Montagnais Band, one on the Metabetchouan and one on the Peribonca river in the Saguenay district.
A few years afterwards, on the request of the tribe, the Governor in Council sanctioned an exchange of the Peribonca tract for a-tract at Pointe Bleue, Ouiatchouan, on the western border of Lake St. John.
In August, 1869, the Governor-General in. Council, by order, accepted what professed to be a surrender by the Montagnais Indians of the reserve constituting the Township of Ouiatchouan which admittedly is the tract of land that the order-in-council of 1851 authorized to be substituted for the Peribonca Reserve.
In view of the contention that the exchange was never effected it is desirable to set out this order-in-council and the surrender in full. They are as follows:- Copy of a Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor-General in Council on %_ the 17th August, 1869.
The Committee have had under consideration a memorandum dated 3rd August, 1869, from the Hon. the Secretary of State submitting for acceptance by Your Excellency in Council under the provisions of the Gmorx. 8th section of the Act, 31 Vict., Chap. 42, a surrender bearing date the 25th of June, 1869, executed at Metabetchouan, in the District of Chicoutimi, by Basil Usisorina, Luke Usisorina, Mark Pise Thewamerin and others, parties thereto as chiefs and principal men of the Band of Montagnais Indians, claiming to be those for whose benefit the reserve at Lake St. John, known as the Township of Ouiatchouan, was set apart, executed in the presence of Rev'd Dominique Racine, authorized by the Hon. the Secretary of State to receive said surrender and in that of the Hon. Mr. Justice Roy, Judge of the Superior Court in the District of Chicoutimi, such surrender conveying their interest and right in certain lands on the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ranges of the said Township of Ouiatchouan, indicated on the copy of a map by provincial surveyor P. H. Dumais, dated A.D. 1866, attached to the said surrender and vesting the lands so surrendered in the Crown in trust to sell and convey the same for the benefit of the said Indians, and their descendants, and on condition that the moneys received in payment for the same shall be placed at interest in order to such interest being periodically divided among the said Montagnais Indians.
The Committee advise that the surrender be accepted and enrolled in the usual manner in the office of the Registrar-General. Certified,
Certified a true copy.
(Sgd.) Wm. H. Lee, Clk. P. C. Deputy Superintendent-General of Indian Affairs.
Surrender by the Band of Montagnais Indians for whom was set apart the Reserve of the Township of Ouiatchouan, iD the Province of Quebec, to Her Majesty Queen Victoria, of their lands in the Indian Reserve there, as described below, to be sold fortheir benefit. KNOW ALL MEN that the undersigned Chief and Principal Men of the above mentioned band living on the above mentioned reserve, for and acting on behalf of our people, do hereby remise, release, surrender, quit-claim and yield up to our Sovereign Lady the Queen, Her Heirs and Successors forever, all and singular those certain parcels or tracts of land situated in the Dominion of Canada and in that part of the said Province of Quebec, being composed of concessions one, two, three, parts of four, five, six and the whole of seven and eight, in the said Township of Ouiatchouan, as described and set forth in the map or plan hereunto annexed.
To have and to hold the same unto Her said Majesty the Queen, Her Heirs and Successors forever, in trust, to sell and convey the same to such person or persons and upon such terms as the Government of the said Dominion of Canada shall or may deem most conducive to the interest of us, the said Chief and Principal Men and our people received from the sale thereof shall, after deducting the usual proportion for expense of management, be placed at interest, and that the interest money so accruing from such investment shall be paid annually, GRoux.
semi-annually to us and our descendants.
And we the said Chiefs and principal men of the band aforesaid do, on behalf our people and for ourselves, hereby ratify and confirm and promise to ratify and confirm whatever the Government this Dominion of Canada may do or cause to be lawfully done in connection with the disposal and sale of the said lands.
In WITNESS THEREOF, the said Chiefs and principal men have set our hands and affixed our seal unto this instrument in the said Province Quebec, at Post Metabetchouan.
Done at our Council- House this twenty-fifth day June, in the year of our Lord one thousand eight hundred and sixty-nine.
Signed, sealed and delivered in the presence of:
D. Roy,
Judge of the Superior Court and of the District of Chicoutimi. Signed by the Chief and thirty-six other Indians, members of the Band. Since the acceptance of this surrender the lands have been dealt with by the Department of Indian Affairs as lands surrendered under the provisions of the "Indian Act" and held by the Crown under that Act.
First, then, of the contention that the Ouiatchouan Reserve was never lawfully constituted. The order-in-council and the surrender. registered pursuant to the order-in-council constitute, in my judgment, together, a public document within the meaning of the rule stated in Taylor on Evidence, 1769a, and the recitals in this document are, therefore, primd facie evidence of the facts stated.
(See Sturla v. Frecc a, et al. (1) at 643-4).
Evidence is thereby afforded that the Montagnais Band of Indians did occupy this tract of land as a reserve and the principle omnia prcesumuntur rite esse acta is sufficient to justify, primd facie, the conclusion that the order- (1) 5 App. Cas. 623.
in-council was carried out and that their occupation was a legal one.
The second question depends upon the character of the Indian title to this reserve at the time the Gioux. "British North America Act" came into force. If at that time there was vested in the Crown in right of -the Province of Canada an interest in these lands which properly falls within the description "land," as that word is used in section 109 of the "British North America Act," or within the word "property" within the meaning of section 117, then that interest (as it is not suggested that section 108 has any application), passed to the Province of Quebec. It is necessary, therefore, to consider the nature of the Indian title and, as that depends upon the meaning and effect of certain parts of chapter 14, C.S.L.C., it will be convenient to set out these provisions in full. They are as follows:- Le gourverneur pourra nommer, au besoin, un Commissaire des terres des Sauvages pour le Bas-Canada, qul, ainsi que successeurs, sous le nom susdit, sera mis en possession, pour et au nom de toute tribu ou peuplade de sauvages, toutes les terres ou propri6t6s dans le Bas-Canada, affect6es a l'usage d'aucne tribu ou peuplade de Sauvages, et sera cens6 en loi occuper et posseder aucune des terres dans le Bas-Canada, actuellement possed6es ou occup6es par toute telle tribu ou peuplade, ou par tout chef ou membre d'icelle, ou autre personne, pour l'usage ou profit tells tribu ou peuplade; et il tura droit de recevoir et recouvrer les rentes, redevances et profits, provenant de telles terres et propri6tis, et sous le nom susdit; mais eu egard aux dispositions ci-dessous 6tablies, it exercera et maintiendra tous et chacun les droits qui appartiennent 16gitimement aux propri6taires, possesseurs ou occupants de telles terres ou propridt6s.
Toutes les poursuites, actions ou proc6dures portdes par ou contre le dit commissaire, seront intenties et conduites par ou contre lui, sous le nom susdit seulement, et ne seront pas p6rim6es or discontinudes par son ddcas, sa destitution ou sa resignation, mais seront continudes par ou contre son successeur en
Tel commissaire aura, dans chaque district civil du Bas-Canada, un bureau qui sera son domicile et oAi tout ordre, avis on autre proc~dure pourra lui 6tre 16galement signifi6; et il pourra nommer des d~putes, et leur d616guer tels pouvoir qu'il jugera exp6dient de leur ddl6guer de temps A autre, ou qu'il recevra ordre du gouverneur de. leur d6lguer.
& V., moins le proviso.
Le dit commissaire pourra conceder ou loner, ou grever toute telle terre ou propri6t6, comme susdit, et regevoir ou recouvrer les rentes, redevances et profits en provenant, de m~me que tout propri& taire, possesseur ou occupant 16gitime de telle terre pourrait le faire; mais il sera soumis, en toute chose, aux instructions qu'il pourra regevoir de temps A autre du gouverneur, et il sera personnellement responsable h la couronne de tons ses actes et plus particulibrement de tout acte fait contrairement & ces instructions, et il rendra compte de tons les deniers par lui regus, et les emploiera de telle maniare, en tel temps, et les paiera A telle personne ou officier qui pourra 6tre nomm6 par le gouverneur, et fera rapport, de temps , autre, de toutes les matiares relatives h sa charge, en telle manidre et forme, et donnera tel cautionnement que le gouverneur prescrira et 4xigera; et tous les deniers et effets mobiliers qu'il regevra ou qui viendront en sa possession, sa qualit6 de commissaire, s'il n'en a pas rendu compte, s'ils ne sont pas employ6s et payds comme susdit, s'ils ne sont pas remis par toute personne qui aura commissaire A son successeur en charge, pourront 6tre recouvr6s de toute personne qui aura 6t6 commissaire, et de ses cautions, conjointement et solidairement, par la couronne, on par tel successeur en charge dans aucune cour ayant juridiction civile, jusqu'a concurrence du montant ou de la valeur. 13 & 14 V., c. 42, s. 3.

12. Des 6tendues de terre, dans le Bas-Canada, n'exc6dant pas en totalit6 deux cent trente mille acres, pourront (en autant que la chose n'a pas encore 6t faite sous l'autorit6 de l'acte 14 & 15, V., c. 106), en vertu des ordres-en-conseil emands A cet 6gard, 6tre d~sign6es, arpenties et reservies par le commissaire des terres de la couronne; et ces 6tendues de terre seront respectivement reservies et affectdes A 1'usage des diverses tribus sauvages du Bas-Canada, pour lesquelles, respectivement, ii est ordonn6 qu'elles soieut reserv6es par tout ordre-en-conseil eman6 comme susdit; et les dites 4tendues de terre seront, en consdquence, en vertu du present acte, et sans condition de prix ni de paiement, transferies au Commissaire des terres des Sauvages pour le Bas-Canada, et par lui administr6es conformement au pr6sent acte.

14 & V., c. 106, s. 1.
The tract in question was set apart under the authority of section 12.
Our inquiry concerns the effect of sections 7, 8 and 9 as touching the nature of the Indian interest.
First. It may be observed that the Commissioner is to hold the Indian lands "pur et au nom" of the tribe or band and that he is deemed in law to occupy and to possess them "pour I'usage et au profit de'telle tribu ou peuplade."
These appear to be the dommating provisions and they express the intention that any ownership, possession or right vested in the Commissioner is vested in him for the benefit of the Indians. Therefore, the rights which are expressly given him are rights which are to be exercised by him for them as by tutor for pupil.
Looking at the ensemble of the rights and powers expressly given I can entertain no doubt that in the sum they amount to ownership.
By paragraph 7 he is given a right to receive and to recover the rents and profits
By section 9:- This in the sum, I repeat, is ownership; and none the less so that in the administration of the property the Commissioner is accountable to the Governor. The Governor in this respect does not represent the Crown as proprietor but as parens patrice.
It seems to follow that, on the passing of the "British North America Act," this ownership passed under the legislative jurisdiction of the Dominion as falling within the subject "Indian Lands," and I see no reason to doubt that the provisions of the Act of 1868 (sec. 26, ch. 42), by which the Secretary of State, as Superintendent-General of Indian Affairs, was substituted for the Commissioner provided for by the enactments just cited as the trustee of the Indian title were well within the authority of the Parliament of Canada; nor can I see on what ground it could be contended that the provisions of the "Indian Act" (ch. 43, R.S.C.), providing for the surrender of Indian lands or the provisions relating to the sale of the same after the surrender are not within the .
ambit of that authority.
But it is argued that, on the surrender being made, the lands, under the authority of St. Catherine's Milling and Lumber Co. v. The Queen(1), became vested in the Crown and fell under the control of the province. There are two answers.
First: The Indian interest being, as I have pointed out, ownership is by the terms of the surrender a surrender to Her Majesty in trust to be dealt with in a certain manner for the benefit of the Indians.
The Dominion Parliament, having plenary authority to deal with the subject of "Indian Lands" and having authorized such a transfer of the Indian title, it is difficult to see on what ground the transfer could be held not to take effect according to its terms or on what ground the trusts, upon which the transfer was accepted, can be treated as non-operative. Secondly.
If I am right in my view as to the character of the Indian title, it is obvious that any interest of the Crown was a contingent interest to become vested only in the event of the disappearance of the Indians while the lands remained unsold.
If that event had taken place, it may be that there would have been a resulting trust in favour of the Crown and if the lands in such an eventuality remained unsold in the hands of the Dominion the question might arise whether as a "royalty" the Crown in the right of the province would not be entitled to the benefit of them. But all this has no application here. So long as the band exists the band is the beneficial owner of the land in question or of the monies arising out of the sale of them. The distinction between this case and the case of the St. Catherine's Milling Company(l), is not difficult to perceive. The Privy Council held in that case that the right of the Indians, resting on the proclamation of 1873, was a "personal and unsufructuary right" depending entirely upon the bounty of the Crown. The Crown had a paramount and substantial interest at the time of Confederation, which interest remained within the province.
The surrender of the Indian right to the Crown (which was not, it may be observed, a surrender to the Dominion Government), left the interest of the province unincumbered.
There is no analogy between that case and this, if I am right in my view that the Indian interest amounted to beneficial ownership, the rights of ownership, in some respects, being exercisable not by the Indians but by their statutory tutor, the Commissioner. The surrender that ownership in trust under the terms of the instrument of 1868 cannot be .held, without entirely defeating the intention of it, to have the effect of destroying the beneficial interest of the Indians.
The third question arises in this way. Professing to act under the authority of the "Indian Act" (ch. 18 of 1876), the Indian agent, in May, 1878, sold the lot in question to one David Philippe, a member of the Montagnais Band. On the 7th March, 1889, this land was sold by the sheriff under a judgment against Philippe, and adjudged to the respondent Giroux. The appellant alleged that Philippe was not a competent purchaser and that, by certain provisions of the statutes relating to Indians, the sale to Philippe was forbidden and that the sale was contrary to law. Two distinct points are made by Mr. Stuart. First, he says that the effect of section 42 of the "Indian
Act"
(ch. 43, R.S.C.,
1886), taken with section 2, sub-secs. c and h, precludes an Indian, . within the meaning of the Act, from becoming the u- ~ purchaser of any part of a surrendered reserve. Section 42, on the literal construction of it might, no doubt, be held to confine the benefits of the certificate of the sale or receipt for the money received on the sale of Indian lands to a "person"
within the meaning of section 2 (c), that is, to some individual other than an Indian. But the conclusive objection to this line of argument is to be found in the Act of 1876 (ch. 18), which was in force when Phillipe purchased. Section 31 of that Act dealt with the effect of a certificate of sale or a receipt for money received on the sale of Indian lands. It is to the "party to whom the same was or shall be made or granted" that the section refers and the definition of "person" in the interpretation section. is without effect. The second point made rests upon sub-section 3 of section 77 of the Act, R.S.C. 1886, ch. 43, as amended by 51 Vict., ch. 22, sec. 3.
It will be convenient to set out sections 77 and 78 incorporating that amendment.
They are as follows- Sec.
No Indian or non-treaty Indian shall be liable to be taxed for any real or personal property, unless he holds, in his individual right, real-estate under a lease or in fee simple, or personal property outside of the reserve or special reserve in which case he shall be liable to be taxed for such real or personal property at the same rate as other persons in the locality in which it is situate:
No taxes shall be levied on the real property of any Indian, acquired under the enfranchisement clauses of this Act, until the same has been declared liable to taxation by proclamation the Governor in Council, published in the Canada Gazette:
land vested in the Crown or in any person, in trust for for the use any Indiah or non-treaty Indian or any band or irregular band Indians or non-treaty Indians, shall be exempt from taxation, except those lands which, having been surrendered by the bands owning them, though unpatented, have been located by or sold The argument is that "any Indian located on the land " excludes an Indian purchaser under section 31 of the Act of 1876. I think that argument fails. meaning of "located Indian," I think, is made sufficiently clear by reference to sections 16, 17, 18 and 20 of the Act of 1886 and, in my judgment, clearly refers to an Indian located under those provisions, that is to say, an Indian who has been permitted to occupy part of the reserve in respect of which he has a location ticket and continues to occupy it notwithstanding the surrender of the reserve. The scheme of these sections appears to be that real estate held by an Indian within the reserve where he resides shall not be subject to taxation or to be charged by mortgage or judgment, but it does not appear to be within the scheme to exempt property purchased by an Indian as purchaser outside of the reserve on which he is living. "Reserve," it may be observed, by reference to the interpretation clause, does not apply to a surrendered reserve. I may add that the Act does not appear to contemplate the disabling of the Indians from acquiring property and engaging in transactions outside the reserve.
See section 67, for example, in addition to sections 64, 65 and 66.
J. concurred with J.
J .- I1 s'agit d'une action pititoire institu6e par le Procureur-G6n6ral de la Puissance du Canada demandant que la Couronne soit d6clar6e propri6taire de la moiti6 sud-est du lot No. 3 dans la .
premibre concession du canton de Ouiatchouan. Les faits qui ont donn6 lieu au present litige sont les suivants:
Le terrain en question faisait partie d'une reserve sauvage 6tablie en vertu de l'acte 14 & 15 Vict. c. En 1869, la Bande des Sauvages Montagnais qui poss6dait la reserve a d~cid6 de c6der et abandonner entr'autres la premibre concession du canton de Ouiatchouan.
Plus tard, le 7 mai, 1878, le surintendantg6n6ral des affaires des sauvages a vendu A un nomm6 David Philippe, pour la somme de $26.25, la propri6td en question dans cette cause, qui faisait partie originairement de la r6serve des sauvages mais qui 6tait tomb6e dans le domaine de la Couronne A la suite de la cession faite par la bande.
David Philippe, ayant encouru certaines dettes, jugement fut rendu contre lui et la propri6t6 fut vendue par le sh6rif. Le terrain fut adjug6 au d6fendeurintim6, Giroux, qui en prit possession, le d6fricha compl6tement et en fit une propridt6 de bonne valeur. Des doutes ayant 6t0 soulev6s par la Couronne sur la validit6 du d6cret, I'acqu6rerur Giroux, pour 6viter un prochs avec le Gouvernement, pr~f6ra prendre un titre de ce dernier et obtint de 'agent un regu qui se lit comme suit:
Cette nouvelle vente fut confirm6e et approuv6e par le Ministare des Sauvages; elle fut 6galement approuv6e par le D6parteinent de la Justice. Plus tard, cependant, nous voyons par la correspondance ex. au dossier que le D6partement des Sauvages ayant demand6 l'opinion du D6partement de la Justice sur la validit6 de la vente, en all6guant que le nomm6 Philippe 6tait un sauvage localis6 sur la riserve et qu'il y avait lieu de s'enqu6rir si ce fait n'affectait pas la validit6 de la vente judiciare, le D6partement de la Justice a r6pondu que dans les circonstances, en vertu de la section 79 de "I'Acte des Sauvages," telle que amend6e par 51 Victoria, ch. 12, sec. 75, la terre ne pouvait pas 6tre hypoth6quie 16galement et que la propridt6 ne pouvait pas 6tre vendue par autorit4 de justice.
Malgr6 cette opinion du Ministare de la Justice aucune action ne parait avoir td prise par le D~partement que vingt-deux ans apris la vente judiciaire. La premibre question qui se soulive est de savoir si un sauvage peut acheter du Gouvernement un terrain qui 6tait originairement dans une riserve mais qui a 6t abandonn6.
Lorsque les r6serves sont abandonnies ainsi par les sauvages, la Couronne voit A administrer, A vendre ou A louer ces terrains pour le bin6fice et avantage des sauvages. En vertu de la loi, elle est oblig6e de vendre ces terrains aux personnes qui se pr6sentent les premi& re et suivant les prix qu'elle d~termine.
IL y avait du doute de savoir si le nomm6 David Philippe 6tait un sauvage ou non. Un certain doute a m~me t exprim6 sur la bande A laquelle il pouvait appartenir. Les uns pr6tendent qu'il 6tait Ab6naquis, les autres Montagnais.
Mais en supposant mime qu'il 6tait un sauvage de la tribu des Montagnais, qu'il eitt le droit comme tel de vivre sur la r6serve sauvage de la Pointe Bleue, il n en est pas moins vrai que du moment que cette rserve ou une partie de cette r6serve 6tait abandonn6e -- Ala Couronne, rien n'empchait un sauvage d'acheter J.
un de ces terrains ainsi abandonnis.
Les sauvages ont, relativement aux r~serves, des droits et des obligations restreintes; mais, du moment que ces r6serves sont abandonn6es A la Couronne, il me semble qu'un sauvage pourrait avoir le droit d'acheter un de ces terrains, de le cultiver, d'en faire les fruits siens et de jouir sous ce rapport des mimes droits et des m~mes priviliges que les blancs. Pr&tendre le contraire serait, suivant moi, nier A ces sauvages le droit de se d~velopper et de faire partie d'une civilisation plus avanc6e.
L'appelant all6gue qu'il n'y a que les blanes cependant qui peuvent acheter ces terrains de la Couronne. Il n'y a pas de doute, je crois, qu'un sauvage pourrait acheter, comme n'importe quel autre colon, des terres de la Couronne; et il faudrait, suivant moi, un texte bien plus formel que celui de la section 42 qui nous a t6 cit6 pour pr~tendre que dans le cas d'une r6serve qui a appartenu jadis aux sauvages ces derniers seraient empich6s de pouvoir s'y 6tablir comme colons. La section 42 de "I'Acte des Sauvages" de 1886, cite par M. Stuart, ne peut pas Atre interpr6t6e comme excluant les sauvages du droit de pouvoir acheter.
Je considbre done que Philippe avait le droit d'acheter ce terrain de la Couronne et que la vente j udiciaire qui a 6t6 faite est valable et que Giroux est devenu acqu6reur par bon titre de la propri6t6 r6clam6e par l'appelant.
Mais il y a plus. En supposant que la Couronne n'avait pas le droit de vendre la propri6t6 A Philippe il n'y a pas de doute qu'elle pouvait et qu'elle devait la vendre h Giroux.
Or, en 1889, la Couronne ellem~me s'est fait payer par Giroux une somme de 8164.32 pour prix d'achat de la propridt6 en question et le Brou J. d~partement a lui-m~me confirm6 cette vente qui avait td faite par son agent. - Je considire done que, dans les circonstances, il ne peut pas y avoir de doute sur le droit de propri6t6 de Giroux au terrain en question et, par consequent, le jugement des cours inf6rieures qui a renvoy6 Faction doit 6tre confirm6 avec d6pens.
Appeal dismissed with costs.

Statutes and regulations cited