Constitutional âPropertyâ and Reserve Creation: Seybold Revisited

More documents

Recommendations

Info

20 MANITOBA LAW JOURNAL VOL 32 NO 1made to the First Nation in an effort to induce it to enter into some obligation or to acceptsettlement on a particular parcel of land. 67This analogy between all reserve creation enterprises and treaty making is important.Although LeBel J. sources the reserve creation power to the Royal prerogativethere is an issue of representations and inducements made to First Nationsregarding reserve entitlements. Embedded in this analysis is an idea that when aFirst Nation moves onto a reserve it is almost like a treaty. Moreover, althoughthere may be no s. 35 right to the reserve initially, the honour of the Crown istriggered when a band occupies a reserve. LeBel J. notes that even a “settingaside” short of the Indian Act triggers the fiduciary obligation of the Crown: “theactions of the Crown with respect to the lands occupied by the Band will be governedby the fiduciary relationship which exists between the Crown and theBand.” 68Justice LeBel’s emphasis on the aboriginal perspective, the honour of theCrown and the fiduciary relationship means that a good decision maker will bemindful of this in their analysis of the pith and substance of a federal Order inCouncil relating to reserve creation. Where reserve creation may be characterizedas the fulfillment of treaty obligations, the settlement of land claims or moregenerally triggering the honour of the Crown it is clearly in pith and substanceabout the federal s. 91(24) powers. This is to say that the purpose of a federalOrder in Council setting aside Crown land for the use of an Indian band canonly truly be discovered in light of the relationship between the Crown and aboriginalpeoples. Indeed Justice LeBel J. in Ross River saw it as an elaboration ofthat relationship.4. Impact of the Modern approach to Reserve creation on TreatyNo. 3 IRsIn the case of Treaty No. 3 we clearly have a relationship building exercise. Recallthat it was found in R. v. White and Bob that Treaty obligations go to the “core” ofs. 91(24). 69 We also have the aboriginal perspective of the Treaty signatories whoexpected reserves to be created for their use and benefit. In some cases, treatieseven stipulated that reserves should be “administered by” the Government ofCanada. The courts should be liberal in their approach to treaty interpretation. 70The purpose behind the creation of IR 38B is clearly grounded in unambi-67 Ibid. at para. 65.68 Ibid. at para. 77.69 (1964), 50 D.L.R. (2d) 613 at 618, 52 W.W.R. 193 (B.C.C.A.), aff’d (1965), 52 D.L.R. (2d)481 (S.C.C.).70Nowegijick, supra note 45.
Seybold Revisited 21guous s. 91(24) jurisdiction. The reserve creation is in pith and substance aboutthe exercise of valid s. 91(24) powers and is not colourable, even if the subsequentdisposition of IR 38B might be. Reserve creation clearly goes to the veryessence of s. 91(24) jurisdiction; the honour of the Crown is at stake.Recognizing that the creation of an Indian Act reserve will probably also go tothe basic provincial jurisdiction of s. 109 – the provincial component of thehonour of the Crown must also be a consideration. In Haida Nation v. British Columbia(Minister of Forests) McLachlin C.J. dismissed British Columbia’s argumentthat to read the honour of the Crown into s. 109 would “upset the balance offederalism”:The answer to this argument is that the Provinces took their interest in land subject to“any Interest other than that of the Province in the same” (s. 109). The duty to consultand accommodate here at issue is grounded in the assertion of Crown sovereignty whichpre-dated the Union. It follows that the Province took the lands subject to this duty. Itcannot therefore claim that s. 35 deprives it of powers it would otherwise have enjoyed.71According to Chief Justice McLachlin, s. 109 powers are “subject to” the honourof the Crown in its dealings with aboriginal peoples. Note that this is not thesame exactly as saying that the province’s s. 109 rights are “subject to” aboriginaltitle. In Haida Nation, aboriginal title was not yet proven; the honour of theCrown was triggered in provincial dealings on lands where aboriginal title wasclaimed. In Misikew Cree, 72 the Supreme Court recently confirmed that the honourof the Crown is also triggered in treaty relations. Moreover, the Misikew Creecase is a case that acknowledges that many of the numbered treaties are not “afinished land use blueprint.” 73 The Misikew Cree case relates directly to the use bythe Crown, of public lands surrendered in a treaty.All of this leads inexorably to the conclusion that the provinces’ s. 109 rightsare subject to treaty obligations of the Crown simpliciter towards aboriginal peoples.74 We also know from Ross River that the honour of the Crown is triggered innon-treaty reserve creation, where aboriginal peoples are promised lands or occupylands. The consequence of these modern approaches to relations with aboriginalpeoples in Canada is that the province cannot use s. 109 as a shield toprevent the setting aside of public lands for Indians.71 [2004] 3 S.C.R. 511 at para. 59, 2004 SCC 73 (McLachlin C.J.) [Haida Nation cited to S.C.R.].727374Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] S.C.J.No. 71 (QL) [Mikisew Cree cited to S.C.J.].Ibid. at para. 27.This necessarily rejects the approach taken to this issue in St. Catherines Milling, supra note 6,where Lord Watson argued that because treaty obligations in Treaty 3 didn’t touch the land,they were not part of those subjects which s. 109 was “subject to.”
Page 2 and 3: 2 MANITOBA LAW JOURNAL VOL 32 NO 1T
Page 4 and 5: 4 MANITOBA LAW JOURNAL VOL 32 NO 1I
Page 6 and 7: 6 MANITOBA LAW JOURNAL VOL 32 NO 1f
Page 8 and 9: 8 MANITOBA LAW JOURNAL VOL 32 NO 1f
Page 10 and 11: 10 MANITOBA LAW JOURNAL VOL 32 NO 1

Constitutional âPropertyâ and Reserve Creation: Seybold Revisited

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?

Constitutional âPropertyâ and Reserve Creation: Seybold Revisited