ATTORNEY GENERAL for ONTARIO (Respondent) v. BEAR ...

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3. Robinson-Huron Treaty as a Sovereign Act of ExtinguishmentEven if it could be said that the Temagami Band was not a signatory to or did not adhere to theRobinson-Huron Treaty, there is yet another basis upon which it can be said that the treatyoperates to extinguish the aboriginal claims of the appellants. The treaty is an expression of thewill of the sovereign to extinguish aboriginal rights.This proposition must begin with a determination of what land was included in the Robinson-HuronTreaty. The learned trial judge found that the whole of the Land Claim Area was within the landsintended to be covered by the Robinson-Huron Treaty. The treaty itself describes the lands asfollows:. . . the Eastern and Northern Shores of Lake Huron, from Penetanguishene to Sault Ste.Marie, and thence to Batchewanaung Bay, on the Northern Shore of Lake Superior; togetherwith the Islands in the said Lakes, opposite to the Shores thereof, and inland to the Height ofland which separates the Territory covered by the charter of the Honorable Hudson BayCompany from Canada; as well as all unconceded lands within the limits of Canada West towhich they have any just claim . . . .The eastern boundary of Canada West was the same boundary as now exists between Ontarioand Quebec and includes Lakes Temiskaming, Nipissing and Temagami. This interpretation of theland described in the treaty is confirmed by subsequent events. Until the present dispute arose,the Temagami Indians never took the position that their traditional lands were outside the treatyarea. In the beginning (1850 to 1856), they accepted benefits pursuant to the treaty and laterargued that they had been omitted from the treaty and wished to be included. However, theunderlying assumption was always that the Temagami hunting grounds were within the Robinson-Huron Treaty area.It is apparent as well that the province of Canada and later the province of Ontario and the federalgovernment in their subsequent dealings with the Temagami Indians always considered theTemagami lands to be within the area covered by the Robinson-Huron Treaty. We think it obviousthat the Land Claim Area is within the treaty area and that it cannot be reasonably arguedotherwise.On November 9, 1850, the Robinson-Huron Treaty was laid before the Governor General inCouncil of the province of Canada, declared to be "ratified and confirmed," and directed to beregistered in the office of the Registrar General. Thus, in our view, it was clear that the Sovereign,acting through the Governor General in Council, intended to take the lands in question.It is clear that aboriginal rights at common law alone (which may pertain to a small part of the LandClaim Area) and aboriginal rights recognized by the Royal Proclamation (which may apply to mostof the Land Claim Area) exist at the pleasure of the Crown.The relevant part of the Royal Proclamation is as follows:And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid,to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians,all the Lands and Territories not included within the Limits of Our said Three newGovernments, or within the Limits of the Territory granted to the Hudson's Bay Company, asalso all the Lands and Territories lying to the Westward of the Sources of the Rivers whichfall into the Sea from the West and North West as aforesaid.It is also clear that (at least prior to the enactment of the Canadian Charter of Rights and Freedomsin 1982) that the sovereign power can unilaterally extinguish aboriginal rights. In Calder v.Attorney-General of British Columbia, [1973] S.C.R. 313, Mr. Justice Judson, writing for himself,Martland and Ritchie JJ., quoted the United States Supreme Court with approval as follows atpp.334-35:Extinguishment of Indian title based on aboriginal possession is of course a different matter.The power of Congress in that regard is supreme. The manner, method and time of suchextinguishment raise political, not justiciable, issues. Buttz v. Northern Pacific Railroad. Asstated by Chief Justice Marshall in Johnson v. M'Intosh, "the exclusive right of the UnitedStates to extinguish" Indian title has never been doubted. And whether it be done by treaty,by the sword, by purchase, by the exercise of complete dominion adverse to the right ofoccupancy, or otherwise, its justness is not open to inquiry in the courts. Beecher v.
Wetherby, 95 U.S. 517, 525.Mr. Justice Hall, writing in dissent for himself, Spence and Laskin JJ., at p. 393 quoted Americanauthorities to the same effect:Extinguishment can take several forms; it can be effected "by treaty, by the sword, bypurchase, by the exercise of complete dominion adverse to the right of occupancy, orotherwise . . . ." United States v. Santa Fe Pac. R.R., supra, 314 U.S. at 347. While theselection of a means is a governmental prerogative, the actual act (or acts) ofextinguishment must be plain andunambiguous.It follows, therefore, from this general proposition that a sovereign may express the intent toextinguish aboriginal rights through a treaty even though the treaty itself may be imperfect in thesense that not all of the Indian bands or tribes whose lands are involved are signatories.Counsel, whose research has been extensive, were unable to find a Canadian case dealingprecisely with this subject. However, in State of Idaho v. Coffee (1976), 556 P 2d 1185, theSupreme Court of Idaho dealt with this issue. In that case, lands occupied by the Idaho KootenaiIndians were included in a treaty made between a number of Indian tribes and the United States.While the other tribes signed the treaty, the Idaho Kootenai did not. The issue before the SupremeCourt was whether or not the treaty extinguished the aboriginal rights in the Kootenai land. ChiefJustice McFadden, writing for the majority, said at pp.1191-92:It is apparent that the government intended by the 1859 treaty ratification to pay a certainsum of money and assume other obligations, and in return to receive specified lands,including the Kootenai River drainage system occupied by the Idaho Kootenai. Whether theIndians signing the treaty had the power to give the land away is not relevant. The UnitedStates did have the power to take the land, and when it said it was receiving the land, theeffect was that the land was taken. Remembering that the Indian title is only a revocableright of occupancy granted by the United States, it is inferable in any Indian treaty that thegovernment intends to take the land ceded in the treaty. A treaty, when made effectual,becomes the law of the land as much as any legislation. U.S. Const. Art. 6. By ratifying thetreaty and terms of the treaty by which the United States took possession of the relevantland, the Senate put the force of law into the taking of the land. Thus, Indian title wasextinguished on July 16, 1859, when the treaty ratification expressed the congressionalintent to take possession of the land.With respect, we agree with the Supreme Court of Idaho. The reference to the United StatesConstitution and the method of ratification in the judgment does not make the general principle anyless applicable in this country. The ratification of the Robinson-Huron Treaty by the GovernorGeneral in Council was a plain and unambiguous declaration by the Sovereign that the aboriginaltitle was extinguished.E. Extinguishment by Other MeansThe learned trial judge found as alternatives that the appellants' claim to aboriginal rights failed fora number of other reasons. He held that the aboriginal rights were extinguished by the cumulativeeffect of legislation enacted by the province of Canada (until 1867) and the province of Ontario(after 1867), the intent of which was to open up the Land Claim Area for settlement anddevelopment. He further held that the appellants' claim was defeated by the Limitations Act,R.S.O. 1970, c.274 (now R.S.O. 1980, c.240) or the Real Property Limitations Act, C.S.U.C. 1859,c.88., and the doctrines of laches, estoppel and acquiescence. In view of the conclusion we havereached with respect to the effect of the treaty, these issues become moot and we express noopinion with respect to them.III.CONCLUSIONAlthough s.35 of the Constitution Act, 1982 was referred to in passing in this appeal, there hasbeen no state action by either Parliament or the Ontario Legislature since April 17, 1982 whichrelates to this case and as a result s.35 has no application.There is a cross-appeal by the Attorney General for Ontario which challenges neither the judgmentnor the result. It simply takes issue with some of the reasons for judgment. In our view, this is nota proper basis for a cross-appeal. In any event and in light of the basis upon which we have
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ATTORNEY GENERAL for ONTARIO (Respondent) v. BEAR ...

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