Constitutional “Property” and Reserve Creation: Seybold Revisited

2 MANITOBA LAW JOURNAL VOL 32 NO 1This paper attempts to answer the question of whether the federal governmenthas the authority to settle agreements and meet treaty and other constitutionalobligations unilaterally with respect to the creation of “lands reserved forthe Indians” under s. 91(24) of the Constitution Act 1867.In this paper I argue for a purposive reading of s. 109 in light of the indivisibilityof the Crown. Second, I argue against a proprietary approach to resolvingconflict between federal powers over Indian lands and provincial s. 109 rights. 3 Iconclude that federal actions which regulate the use of public lands “belonging”to the province under s. 109 are valid unless they are a colourable attempt to disposeof or derive revenue from public lands, and so long as they manifest the “essenceof” federal jurisdiction under s. 91(24). This should mean that the federalgovernment can reserve public lands for use by Indians, regardless of whether ornot they are s. 109 lands of a province. It should also render provincial “confirmation”of reserves unnecessary.II. INDIVISIBILITY OF THE CROWNWithin Canada public lands are vested in Her Majesty the Queen. The Crown isvested with public lands and is indivisible for the purposes of land ownership. 4One might complain that Canada is a sovereign nation and moreover, a federalone, and that therefore the Crown must be divisible. This is to miss the point ofCrown indivisibility, for it serves to unite the “sovereignties” of the respectiveprovinces and the federal government into one state, under one “sovereign.” 5The very idea that there are multiple sovereignties, that the provinces are notsubordinate to or delegates of the federal government, is based on the idea thatboth have a direct relationship to the single, indivisible Crown. 6 While theCrown in the United Kingdom is divisible from the Crown in the Dominions,this is merely a description of the political independence of the former colonies. 734567Kerry Wilkins, “Negative Capability: Of Provinces and Lands Reserved for the Indians”(2002) 1 Indigenous L. J. 57 at 75.See Maurice Sunkin & Sebastian Payne, The Nature of the crown, a legal and political analysis(Oxford: Oxford University press, 1999) at 59-61.See the Royal Styles and Titles Act, R.S. 1985, c. R-12, s. 2.Maritime Bank of Canada (Liquidators of) v. Reciever-General of New Brunswick, [1892] A.C. 437at 441-442, [1892] J.C.J. no.1 (P.C.), [Martime Bank].Regina v. Secretary of State for Foreign and Commonwealth Affairs Ex. Parte Indian Association ofAlberta and Others, [1982] 1 Q.B. 892 (C.A.) at 916-917 (Denning M.R.). In a separate judgmentKerr L.J. at 919-926, felt that it is merely a territorial constraint on Crown liability.The discussion in this case and others regarding liability of the Crown is a separate issue –relating to which revenue fund the liability applies and as such is not really about the Crownbut the legislature.