The Error in the Canadian Tsilhquot’in Case

Territory of the Tsilhqot’in people

1. Before the influx of Europeans the Indians of what is now Canada lived in organized societies with exclusive possession and jurisdiction of the land. But according to the Supreme Court of Canada in Tsilhquot’in v. British Columbia, 2014 SCC 44:

[113]… Can the [provincial] legislature have intended that the vast areas of the province that are potentially subject to Aboriginal title be immune from forestry regulation? And what about the long period of time during which land claims progress and ultimate Aboriginal title remains uncertain? During this period, Aboriginal groups have no legal right to manage the forest; their only right is to be consulted, and if appropriate, accommodated with respect to the land’s use: Haida. At this stage, the Crown may continue to manage the resource in question, but the honour of the Crown requires it to respect the potential, but yet unproven claims.

[114] It seems clear from the historical record and the record in this case that in this evolving context, the British Columbia legislature proceeded on the basis that lands under claim remain “Crown land” under the Forest Act, at least until Aboriginal title is recognized by a court or an agreement. To proceed otherwise would have left no one in charge of the forests that cover hundreds of thousands of hectares and represent a resource of enormous value. Looked at in this very particular historical context, it seems clear that the legislature must have intended the words “vested in the Crown” to cover at least lands to which Aboriginal title had not yet been confirmed.

2. This conflicts with the Royal Proclamation of 1763 and the previously established precedents interpreting it and section 109 of the Constitution Act, 1867 read together. They confirmed the continuity of the Indians’ exclusive possession and jurisdiction of the land pending treaty of relinquishment.

3. The proclamation is what is now Canada’s 1st constitution. The proclamation enacted:

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—…therefore…no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…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 whatever who have either wilfully or inadvertently seated themselves upon any…Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

…if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie…

4. Section 109 enacted:

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 for such 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 of the Province in the same.

5. The precedents held:

St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 AC 46, 52-53, 54, 55, 58, 59, 60 (JCPC). [52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.
[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.
[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.
[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. 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; and must now belong to Ontario in terms of that clause,…
[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.
[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever….
The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

AG Canada v. AG Ontario: (Re Indian Claims), [1897] AC 199, 205, 206, 210-11 (JCPC). [205] The effect of the treaties was, that, whilst the title to the lands ceded 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,…
[206] The beneficial interest in the territories ceded by the Indians under the treaties of 1850 became vested, by virtue of s. 109, in the Province of Ontario.
[210-11] On the other hand, “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 in competition with the beneficial interest of the old province.

6. The critical error in the judgement in Tsilhquot’in is the sentence “It seems clear from the historical record and the record in this case that in this evolving context, the British Columbia legislature proceeded on the basis that lands under claim remain ‘Crown land’ under the Forest Act, at least until Aboriginal title is recognized by a court or an agreement.” It is true that “the historical record” consists in British Columbia granting warrants of survey and passing patents for lands throughout the province, before purchasing the lands by treaty with the Indians as stipulated mandatory by the royal proclamation, section 109 and their precedents. But in doing so the province acted unconstitutionally; it could not and did not repeal the previously established law by breaking it, which is what the Tsilhquot’in Court in effect held.

7. In 1874 British Columbia enacted a Crown Lands Act that regarded all crown land as if it were public land available for disposition, even though the land is part of the continental reserve for the Nations or Tribes of Indians, not being “ceded to, or purchased by Us.” In a report to the Canadian Privy Council, Attorney General Télésphore Fournier recommended disallowance under section 90 of the Constitution Act, 1867, on the ground of conflict with the proclamation and section 109. The report was approved in a Minute in Council dated 23rd January 1875 and endorsed by the Governor General.

Section 90. The following Provisions of this Act respecting the Parliament of Canada, namely, — the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada.

8. British Columbia then made a proposal to Canada to resolve the Indian problem by establishing a commission to investigate and “set apart” provincial Crown lands as “reserves” for Indian use. This led directly to the Indian Act, 1876. The Acting Minster of Interior Affairs in a report dated 5th November 1875 recommended approval of the provincial plan, which was done by the Canadian Privy Council pursuant to Minute in Council dated 10th November 1875. This entailed leaving the originally disallowed Crown Lands Act to its operation, i.e., reviving it. Attorney General Fournier was elevated to the Supreme Court and was replaced in office by Attorney General Edward Blake. Blake reported under letter dated 6th May 1876 to the Governor General explaining that “Great inconvenience and confusion might result from its disallowance.” As recommended, on second thought the Governor General did leave the statute to its operation. Treaties were not made thereafter in mainland British Columbia. There was no need, since all Crown land was thereafter unconstitutionally regarded as public land available for disposition. It was as if the Royal Proclamation of 1763 and the “subject to” proviso in section 109 duly had been repealed or had never existed.

9. The Court in Tsilhquot’in overlooked the determinative St. Catherine’s and In re Indian Claims precedents, and also the crucial historical fact that British Columbia’s legislative disregard of Indian Title should have been disallowed pursuant to section 90 of the Constitution Act, 1867, but was not because disallowance might have caused inconvenience and confusion. In consequence Tsilhquot’in is per incuriam, meaning it is a decision taken through inadvertence or want of care, in ignorance of a binding statute or precedent, and of a crucial historical fact, and therefore is itself wrong.

Bruce Clark, Ph.D. in jurisprudence, is an Indigenous rights activist and author of Native Liberty, Crown Sovereignty and Justice in Paradise. He can be reached at: mightisnotright@gmail.com. Read other articles by Bruce.