Section 91(24) of the Canadian Constitution Act, 1867, allots to the federal level of government the trust of “Protection” confirmed by King George the Third in the Royal Proclamation of 1763:
And whereas it is just and reasonable and essential to our Interest and the Security of our Colonies that the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds — …no Governor or Commander in Chief …do presume, upon any Pretence whatever to grant Warrants of Survey or pass any Patents… upon any Lands whatever which not having been ceded to or purchased by Us as aforesaid are reserved to the said Indians or any of them. [Emphasis added]
The king claimed the bare title or the ultimate fee if and when the land’s reservation status should end in the process of making treaties. This is the import of the phrase “of such Parts of our Dominions and Territories.” All land was claimed by the king to be Crown Land. The unceded portion is Crown land reserved for the several Nations or Tribes and therefore is not subject to survey or grant by the king; the ceded portion is Crown land that is available for disposition as “Public land.” In sum, all land is prima facie reserved unless and until proven to have been ceded and thereby made available for surveys and grants by the king to third parties.
Section 91(24) was not legislatively intended to be a carte blanche permitting the king to derogate from the reservation of all land for the several Nations or Tribes of Indians. It was to be used as a shield to protect the reserved status of the land from being surveyed and granted by the king prior to treaty. This is made apparent in the legislative scheme that was enacted when the Constitution Act, 1867, was passed.
Section 91(24) allotted jurisdiction to the federal government relative to “Indians, and Lands reserved for the Indians.”
The Crown lands vested in the king subject to reservation status continued after confederation to be subject to reservation status with bare title vested in the provinces under section 109. That section enacted that such reserved land remained “subject to an Interest other than that of the Province” in the land. It remained Crown land but did not become Public land available for survey and grant until the treaty.
The idea that confederation repealed the reserve status of all land was not the intent of the Constitution Act, 1867. The only change effected by confederation was that the Protection trust accrued to the newly created federal government, while the claim to Crown land rendered Public land available for grant by treaty accrued to the Provinces.
To ensure that the Provinces did not jump the gun and regard reserved Crown land as Public land available for disposition prior to treaty, the Constitution Act, 1867, included section 90 to permit the federal government to disallow provincial legislation. That power was exercised by federal Order-in-council dated January 23, 1875. British Columbia had enacted a Crown lands act that did jump the gun. It treated all Crown land as available for disposition.
The Attorney General Telesphore Fournier drafted an opinion that said the provincial legislation had to be disallowed. He cited the royal proclamation as still in force and section 109 that confirmed provincial title to unceded Crown land is “subject to” the Indian “Interest” in the land:
Constitution Act (Canada), 1867, s. 90. …Disallowance of Acts, …shall extend and apply to the Legislatures of the several Provinces…. 91(24) …the exclusive Legislative authority of the Parliament of Canada extends to…Indians, and lands reserved for the Indians. S. 92(13). In each Province the Legislature may exclusively make Laws in relation to Property and Civil Rights within the Province. S. 109. All Lands …shall belong to the several Provinces …subject to …any Interest other than that of the Province in the same. (Emphasis added)
Order in Council (Canada) of 23 January 1875. The 40th article of the treaty of Capitulation of Montreal, dated 8th September 1760, is to the effect that:
The Savages or Indian allies of His Most Christian Majesty shall be maintained in the lands they inhabit if they choose to remain there.
The Proclamation of King George III 1763 …such parts of our dominions and territories, as not having been purchased by Us, are reserved to them, or any of them as their hunting grounds; …or upon any lands whatever, which not having been ceded to or purchased by us, as aforesaid, are reserved to the said Indians, or any of them… And we do further strictly enjoin and require all persons whatsoever, who may have either wilfully or inadvertently seated themselves upon any lands within the Countries above described, or upon any other lands, which not having been ceded to or purchased by us, are reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements…
The Undersigned would also refer to the BNA Act 1867 Sec. 109, applicable to British Columbia, which enacts that, all lands belonging to the Province shall, belong to the Province “subject to any trust existing in respect thereof, and to any interest other than the Province in the same.”…
The Undersigned, therefore, feels it incumbent upon him to recommend that this Act [the Public Lands Act of British Columbia] be disallowed.
Fournier was upheld in his analysis by the two leading cases of the Judicial Committee of the Privy Council when it was still the highest court of appeal for Canada:
St. Catherines Milling and Lumber Company Ltd. v. The Queen, (1888), 14 AC 46, 53-55, 60 (JCPC). Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest surrendered by the treaty. The ceded territory was at the time of the Union land vested in the Crown, subject to “an interest other than that of the Province in the same” within the meaning of sect. 109;…the [treaty’s] legal consequences …opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit…there has been all along vested in the Crown a substantial and paramount estate underlying the Indian title, which became a plenum dominium [plenary jurisdiction] whenever that title was surrendered or otherwise extinguished.
AG Ontario v. AG Canada: In re Indian Claims, [1897] AC 199, 210-11 (JCPC). The beneficial interest in the territories ceded by the Indians under the treaties became vested, by virtue of s. 109, in the Province of Ontario.… The effect of the treaties was, that, whilst the title to the lands continued to be vested in the Crown, all beneficial interest in them, together with the right to dispose of them, and to appropriate their proceeds, passed to the Government of the Province.
“An interest other than that of the province in the same” appears to them [their Lordships] to denote some right or interest in a third-party, independent of and capable of being vindicated when in competition with the beneficial interest of the old province.
When the sections of the Constitution Act, 1867, are read together, as a legislative scheme, it is apparent that section 91(24) was subject to sections 90 and 109, and that the proclamation’s prohibition of surveys and grants therefore survived confederation.
Nevertheless in the year following the dis-allowance Order-in-council the Indian Act, 1876, was enacted. It purported to act as a sword to negate the Protection trust reposed in the federal government. In it and the amendments of it in succeeding years, the several Nations or Tribes of Indians were regarded as if the proclamation had been repealed. The British Columbia Crown lands act was not disallowed. It took effect as if it were a legitimate Public lands act following a treaty. Ever since then titles to unsurrendered Indian land have been surveyed and granted as if the proclamation and section 109 did not exist any longer; as if they had been repealed. But the proclamation and section 109 were not repealed. They are still in full force and effect.
In the result there exists a conflict of laws between the constitution and the Indian Act. And it is the essence of constitutional democracy that the constitution is the supreme law. Correspondingly the Indian Act and all its interference with the indigenous right not to be molested or disturbed in the Possession is itself unconstitutional and void.
Nevertheless the courts of Canada will not address the conflict of laws issue. Instead, they look to the Indian Act and refuse to resolve, with reasons, the argument going to its unconstitutionality. In terms of the proclamation this massively molests and disturbs the several Nations or Tribes of Indians in the Possession:
And whereas it is just and reasonable and essential to our Interest and the Security of our Colonies that the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds — …no Governor or Commander in Chief …do presume, upon any Pretence whatever to grant Warrants of Survey or pass any Patents… upon any Lands whatever which, not having been ceded to or purchased by Us as aforesaid are reserved to the said Indians or any of them. [Emphasis added]
Correction (2 April 20016)
The text above states: “The British Columbia Crown lands act was not disallowed” with reference to the provincial lands act of 1874. That is an error. The disallowance was in fact implemented by federal order-in-council dated March 16, 1875. British Columbia then enacted, also in 1875, the “Free Grant Act.” It defined all ungranted land in the province as held by the province “in fee simple” (free and clear of any Indian interest), thereby evading the reason for the previous disallowance based upon the royal proclamation and section 109 of the Constitution Act, 1867. Rather than disallow this fresh act for the same reasons, the new attorney general, Edward Blake, decided to leave the new provincial act in operation because “great inconvenience and confusion might result from its disallowance.” Hodgins, comp., Dominion and Provincial Legislation, Ottawa, Government Printing Bureau, 2 vols., I:1039.