Wednesday, July 30, 2014

The purpose of the Indian Act and the intention of Parliament.

Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565:

[53]       There are two legal principles that underpin the assessment of the purpose of the Indian Act and the intention of Parliament.  First, early Canadian jurisprudence relied on the Royal Proclamation (1763), R.S.C., 1985, App. II, No. 1,[2] as the origin of Indian title: see St. Catharine's Milling and Lumber Co. v. The Queen, [1887] 13 S.C.R. 577, affirmed (1888), 14 App. Cas. 46.  It is now clear from more recent authority that Indian title existed in Canada independently of the Royal Proclamation: see Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313.  Although Indian title was recognized by the Proclamation, it actually arises from the prior occupation of Canada by Aboriginal peoples: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 114. In a very recent decision, the Supreme Court of Canada, relying on Dickson J. in Guerin v. The Queen, [1984] 2 S.C.R. 335, identifies the "starting point in characterizing the legal nature of Aboriginal title" as being "[a]t the time of assertion of European sovereignty", which is confirmed by the Royal Proclamation, 1763Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, at para. 69.

[54]       Central to the Royal Proclamation was the separation of Indian lands from those forming parts of the North American colonies; Indian lands were reserved for their exclusive use and possession.  Further, the Royal Proclamationimplemented a process by which Indian lands could be purchased for British settlement and development.  Indians could only transfer lands to the British Crown, not to European settlers or other colonial officials. 

[55]       Legislation that followed, dealing with restraints on the alienability ofIndian lands and the policy that formed the relationship between Indians and the colonists, are the continuation of that which was established by, and at the time of, the Royal ProclamationMitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at p. 130.    Thus, the Indian Act must be interpreted with these origins in mind.

[56]       Clearly then, two intentions and purposes of Indian legislation are: (1) to reflect the colonial common law view of Indian interest in land; and (2) to prevent any sale or transfer of Indian lands to anyone other than to the British Crown.

[57]       Second, the legal principles that govern Indian interest in reserve lands are the same as those that govern Aboriginal title: Guerin, at 379.  That is to say, an Indian band's and an Indian's interest in a reserve under the Indian Act is the same as Aboriginal title in traditional tribal lands: Delgamuukwat para. 120

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