Constitutional âPropertyâ and Reserve Creation: Seybold Revisited

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22 MANITOBA LAW JOURNAL VOL 32 NO 1The result is that the creation of a reserve is definitively and squarely in pithand substance federal, either because it is part of a treaty relationship or becauseit is analogous to one. It is impossible to read this power into the limited s. 109powers conferred on the provinces. Even if it were, this power is subject to anyhonour of the Crown which arises by dealings inducing aboriginal people to liveon a particular tract of land or by treaty promises to allow them to select reservesto be administered by Canada.In contrast, Binnie J.’s judgment in Wewaykum implies that when lands areheld by the province pursuant to s. 109, without any other interest ‘burdening’the land, they are immune from federal treaty and fiduciary obligations to theextent of being able to determine what the size and location of those reservesought to be. Moreover Binnie J. explains that there are no fiduciary obligationsarising from the creation of “new” Indian interests in land. 75This implies that a province has a veto over the reservation of land in pursuanceof treaty or other constitutional obligations. Consider for example s. 11 ofthe Constitution Act, 1930All lands included in Indian reserves within the Province, including those selected andsurveyed but not yet confirmed, as well as those confirmed, shall continue to be vestedin the Crown and administered by the Government of Canada for the purposes of Canada,and the Province will from time to time, upon the request of the SuperintendentGeneral of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferredto its administration, such further areas as the said Superintendent General may,in agreement with the Minister of Mines and Natural Resources of the Province, selectas necessary to enable Canada to fulfil its obligations under the treaties with the Indiansof the Province, and such areas shall thereafter be administered by Canada in the sameway in all respects as if they had never passed to the Province under the provisionshereof. 76With respect, the conclusion that the province has a veto over reserve creationunder this provision is rather extraordinary. It amounts to giving the provinceand the federal government jurisdictional smokescreens behind which to hidefrom honour of the Crown obligations to aboriginal people! 77In light of the fact that the provinces’ s. 109 rights are subject to the honourof the Crown, any stipulations in the Terms of Union that the province of BritishColumbia must “agree” to allow Canada to set aside lands for Indians must be757677Supra note 60 at para. 81.Constitution Act, 1930, 20-21 Geo. V, c. 26 (U.K.), s. 11.In R v. Jack (1979), [1980] 1 S.C.R. 294, it was held that because Article 13 of the BritishColumbia Terms of Union, 1871 requiring the province to “transfer” lands to Canada for reserveswas constitutionalised and therefore third parties could rely on it. See Nigel Bankes,“Constitutionalized Intergovernmental Agreements and Third Parties: Canada and Australia”(1992) 30 Alta. L. Rev. 524.
Seybold Revisited 23read narrowly. Moreover, in light of the Terms of Union provision above, it isCanada not the province who does the actual “selection” of the land. JusticeBinnie’s approach in Wewaykum is difficult to reconcile with the Terms of Union,s. 109, s. 91(24), the indivisibility of the Crown, the near contemporaneous decisionin Ross River, and the honour of the Crown doctrine generally. It should alsobe noted that Wewaykum ignores the consequences of any possible aboriginal titleclaim to the same reserve land and that, having determined that the provincecould not allocate selected lands to a particular band, the question of whetherthe province must concur in setting aside generally was not really at issue and sothe discussion is obiter.It is time to move on from the era of Seybold, and the casual remarks in Wewaykumought to be disregarded as adding nothing to the doctrines relating tothe relationship between s. 109 and s. 91(24).VIII. CONCLUSIONIt might be argued that over 100 years, and numerous intergovernmentalagreements later it is hard to be convinced that overturning Seybold and allowingthe federal government to reserve s. 109 land in the province for Indians is desirableor possible.First, I have argued here that Seybold and Wewaykum did not actually havereserve creation itself at issue before them and so the question has not been trulyyet decided. Thus it is the distinguishing rather than the overturning of thosecases that is necessary to apply the approach suggested above. There is nothingradical about forcing s. 109 jurisprudence in relation to aboriginal lands, to conformto the general approach taken in other s. 109 cases.Second, while the passage of time and the presence of agreements which resolvesome of the issues raised by Seybold are significant, the approach offered inthis paper relates to the interpretation of s. 109 generally. What exactly s. 109purports to give the provinces will become increasingly important the instantthere is any kind of successful aboriginal title claim to any land that was acquiredby the province or granted post-confederation. 78 Thus establishing the appropriatepurposive approach to s. 109 in relation to aboriginal lands is crucial.Moreover, the agreements themselves are attempts to reach the same conclusionthat this paper did – that is to recognize that reserving lands for Indians is properlya federal power.Third, the federal government is in the middle of a complex process of attemptingto engage in the settlement of land claims – at the prompting of thecourts - that was stalled for the first 75 years of the last century and the ability for78See Kent McNeil, “Aboriginal Rights, Resource Development, and the Source of the ProvincialDuty to Consult in Haida Nation and Taku River” 29(2) Sup. Ct. Law. Rev. 447 at 452.
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