Constitutional âPropertyâ and Reserve Creation: Seybold Revisited

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18 MANITOBA LAW JOURNAL VOL 32 NO 1tion power in s. 91(24). There would appear to be no limit to the provincial veto.This is an important issue because provinces have demonstrated an unwillingnessto offer up resource-rich Crown land in settlements for Indians. 58 Sometimesthis is an unwillingness to uphold or implement past confirmation agreements,and sometimes this is an unwillingness to expand those agreements ascircumstances change. As Michael Ignatieff once said, “we should cease believingthat constitutional settlements will end historical arguments. In reality, they canonly produce a new basis for ongoing and unending dialogue.” 59 While it is constitutionallypossible to transfer the administration of land to the federal governmentvoluntarily, this is really anachronistic and contrary to the purpose of s.109 and its intent.2. Wewaykum and confirming provincial reservesIn Wewaykum v. Canada, 60 Binnie J., for the majority of the Supreme Court ofCanada, discussed the issue of reserve confirmation in British Columbia. In theBritish Columbia Terms of Union, 61 British Columbia agreed to convey tracts ofland to the federal government from time to time for Indian reserves. 62 As BinnieJ. described in Wewaykum, henceforth the two governments were largely unableto agree to what lands could be conveyed. Binnie J. examined an inaccurateprovincial Order in Council purporting to convey a reserve to the wrong band.He wrote:We really do not know what intent, if any, the provincial government had. The permissibleconstitutional scope of the provincial “intent” in relation to “Lands reserved forIndians” was limited to the size, number and location of reserves to be transferred by itto the administration and control of the Crown in right of Canada. 63In so putting the answer, Justice Binnie chose to use what is an astonishingly expansiveapproach to provincial competence over s. 109 lands. It is highly questionablethat s. 109 entitles the province to any powers in relation to Indianre-585960616263It is constitutionally possible to “transfer” lands from one jurisdiction to the other. See Higbie,supra note 8, per Rinfret C.J.C.: “After all, there is no real conveyance of property, sinceHis Majesty the King remains the owner in either case and, therefore, it is only the administrationof the property which passes...”.Michael Ignatieff, The Rights Revolution (Toronto: House of Anasasi Press, 2000) at 136.[2002] 4 S.C.R. 245, 2002 SCC 79 (QL) [Wewaykum cited to S.C.R.].British Columbia was admitted into the Union pursuant to section 146 of the ConstitutionAct, 1867, 30-31 Vict., c. 3 (U.K.) by the British Columbia Terms of Union, being Order inCouncil of May 16, 1871, effective July 20, 1871.Similar provisions are included in the Constitution Act, 1930, 20-21 Geo. V, c. 26 (U.K.).Wewaykum, supra note 60 at para.70 (Binnie J.).
Seybold Revisited 19serves.Justice Binnie apparently used a “pith and substance” approach regarding aprovincial Order in Council regarding reserve creation. The province’s decisionabout the “size, number and location” of Indian reserves was seen as incidentalto s. 109, but not apparently going to the core of s. 91(24)! With respect. this isan untenable position in a Constitution where the power to reserve is explicitlygranted to the federal legislature. First, an Order in Council in relation to Indianreserves is straightforwardly in pith and substance a federal purpose and ultravires the province. No attempt is made to establish that this Order in Council isin pith and substance about the disposal or derivation of revenue from publiclands. Second, the implication is that this same Order in Council is not going tothe core of s. 91(24) but no analysis is given of what the core of lands reservedfor Indians actually might be. To offer an alternative to this analysis, it is necessaryto look at the modern approach to treaties and reserves.3. The Modern Approach to Treaties and ReservesIt is argued here that the modern approach to reserve creation and treaty interpretationshould play a key role in the pith and substance analysis used for federalattempts to create reserves. In particular, recent cases on the honour of theCrown lend credence to a view that sees federal reserve creation as valid in theface of provincial s. 109 rights.In Ross River 64 the Supreme Court of Canada was asked to decide whetherlands in the federally administered Yukon Territory which had been transferredto the Department of Indian Affairs and “set aside” under the Territorial LandsAct 65 was a reserve under the Indian Act. In that case there was no treaty just amutual understanding that a reserve should be created. The Supreme Courtfound, among other things, that to create a reserve under the Indian Act, “theband concerned must have accepted the setting apart and must have started tomake use of the lands so set apart.” 66Although there was no treaty in the Ross River case, LeBel J. found that:In both cases, an agent of the Crown, duly authorized, acts in the exercise of a delegatedauthority to establish or further elaborate upon the relationship that exists between aFirst Nation and the Crown. The Crown agent makes representations to the First Nationwith respect to the Crown's intentions. And, in both cases, the honour of theCrown rests on the Governor in Council's willingness to live up to those representations646566Ross River (S.C.C.), supra note 34.1985 R.S.C., c. T-6.Ross River, supra note 34 at para. 67.
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Constitutional âPropertyâ and Reserve Creation: Seybold Revisited