Constitutional âPropertyâ and Reserve Creation: Seybold Revisited

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4 MANITOBA LAW JOURNAL VOL 32 NO 1It is impossible to read s. 109 purposively, that is in light of its constitutionaland historical context, without recognizing that the Crown is indivisible for thepurpose of land ownership. Lord Watson confines the provincial interest to therevenues from Crown lands and the disposal of Crown lands. This is a limitedinterest granted to the legislature in Canada after the rebellions of the 1830s andthe controversies over land that surrounded them. It entitled the then coloniallegislatures of British North America to administer and derive revenues fromCrown lands without authorization from the Crown that had been requiredsince the fall of Quebec. 11 It was this same power which was incorporated intothe British North America Act in 1867. Section 109 of that Act reads:All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada,Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable forsuch Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario,Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise,subject to any Trusts existing in respect thereof, and to any Interest other than that ofthe Province in the same. 12The first part of s. 109 deals with provincial capacity to dispose of land (the landshall “belong” to the provinces), while the second part deals with the ability toderive revenue (all sums due or payable) and gain Royalties. Read purposively s.109 grants provinces the power to derive revenues and make grants, while the“royalty” power provides for tenures like escheat. 13 This interest of the provincediffers fundamentally from a “radical” or “underlying” or legal title in the land.The term “belonging to” the provinces must be read in light of the purpose ofthe Constitution Act, 1867. For example, the words “between the Dominion andthe provinces, all powers executive and legislative, and all public property andrevenues which had previously belonged to the provinces” 14 refer to the provincial capacitiesunder the Union Act. The Privy Council confirmed that s. 109 must beread in light of the indivisibility of the Crown when it first discussed the independenceof provinces in Maritime Bank:The first of these clauses deals with "all lands, mines, minerals, and royalties belongingto the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union,"which it declares "shall belong to the several Provinces of Ontario, Quebec, Nova Scotia,and New Brunswick, in which the same are situate or arise." If the Act had operatedsuch a severance between the Crown and the provinces, as the appellants suggest, the1112See the excellent discussion in Chester Martin, Natural Resources Question, (Winnipeg: Kingsprinter for the province of Manitoba, 1920) at 17-22.Constitution Act, 1867, supra note 1, s. 109.13Attorney General of Ontario v. Mercer (1883), 8 App. Cas. 767 (P.C.) [Mercer]. Also refer encedas the Reference re: The Escheat Act, R.S.O. c. 94.14Maritime Bank, supra note 4 at para. 4.
Seybold Revisited 5declaration that these territorial revenues should "belong" to the provinces would hardlyhave been consistent with their remaining vested in the Crown. Yet…their Lordshipsexpressly held that all the subjects described in sect. 109, and all revenues derived fromthese subjects, continued to be vested in Her Majesty as the sovereign head of each Province.15That s. 109 must be read in light of the indivisibility of the Crown is a point thatremains well settled. Surprisingly, the issue has not been raised very frequently inthe last fifty years in the context of aboriginal law. 16What s. 109 gives the provinces is certain powers over the revenue and disposalof lands vested in the indivisible Crown. This is not the same as ownership.The legislature of a province does not own any Crown property or lands, it simplyhas certain rights and powers over that property and land belonging to it or inother words, within its boundaries. Neither does the province have a legal title tos. 109 land. All Crown land is vested in the Crown simpliciter and the provinciallegislature has those rights over that land which is set out for it in s. 109. Otherrights over that same land may still be powers held by other levels of government.III. ADMINISTRATION OF PUBLIC LANDS-GENERALLYIn the Fisheries Case 17 Lord Herschell held that s. 91(12) of the Constitution Act,1867 which granted the federal government powers over the “sea coast andinland fisheries” did not permit the federal government to dispose of Crownfisheries by lease. He also remarked that, “the fact that such jurisdiction in respectof a particular subject-matter is conferred on the Dominion Legislature, forexample, affords no evidence that any proprietary rights with respect to it weretransferred to the Dominion.” Lord Herschell found that s. 91(12) conferred jurisdictionover fisheries only on the Dominion, not ownership over fisheries,which was provincial. What flowed from provincial ownership was that the abilityto “lease” or dispose of, the fish was outside Dominion jurisdiction. Thismakes sense, because the power of disposal is a clear s. 109 power. Thus theDominion government lacked the power to dispose of Crown fish via a leaseholdinterest.On the other hand, so long as the Dominion refrained from disposing of anyinterest in fish of the Crown, it appears that its jurisdictional authority over fisherieswas wide in scope. For example, Dominion jurisdiction did include inter-15161719Ibid. at para. 8.For recent aboriginal law jurisprudence affirming this point see Ossoyos, supra note 6 andgenerally see Higbie, supra note 6.Fisheries Case, supra note 6 at para. 11.Ward, infra note 21.
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Constitutional âPropertyâ and Reserve Creation: Seybold Revisited