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Editors --- "Chingee v Canada (Attorney-General), 2005 BCCA 446 - Case Summary" [2005] AUIndigLawRpr 69; (2005) 9(4) Australian Indigenous Law Reporter 45

CHINGEE v CANADA (ATTORNEY-GENERAL)

Court of Appeal for British Columbia (Southin, Braidwood and Smith JJ)

13 September 2005

2005 BCCA 446

Treaty interpretation — legislative jurisdiction — whether lands conferred in severalty are ‘lands reserved for the Indians’ under the Constitution Act, 1867 (UK), 30 & 31 Vic, c 3, s 91(24)

Facts:

In 1899, Canada entered into a treaty (‘Treaty No 8’) with certain Indian Bands in relation to lands in the British Columbia area. The terms of Treaty No 8 allowed the lands to be set aside as a reservation or provided to the Bands ‘in severalty’. On 27 March 2000, the McLeod Lake Indian Band (‘the Band’), not an original party to Treaty No 8, adhered to the treaty by entering into an Adhesion and Settlement Agreement (‘the Agreement’) with Canada and British Columbia. Pursuant to Treaty No 8 and the Agreement, the Band elected to receive their entitlement to lands in severalty.

The Band disagreed with representatives of Canada and British Columbia over whether the lands under consideration were ‘lands reserved for the Indians’ within the meaning of the Constitution Act, 1867 (UK) 30 & 31 Vic, c 3, s 91(24), and brought an action for a declaration that land was provided in severalty. Canada and British Columbia contended that the lands were fee simple lands subject to Provincial jurisdiction.

In the Supreme Court of British Columbia, Cohen J held that the lands in question were ‘lands reserved for the Indians’ under the Constitution Act, 1867 (UK) 30 & 31 Vic, c 3, s 91(24): Chingee v Attorney General of Canada (2002), 8 BCLR (4th) 149. Canada and British Columbia appealed this decision.

Held, upholding the appeal:

1. The principles of treaty interpretation set out in R v Marshall [1999] 3 SCR 456 (‘Marshall’), as relied upon by the trial judge, do not address the issue of the role played by provincial powers in treaty interpretation when the area of the treaty at the time of its first making lay partly within a province and partly within ‘unorganised’ Dominion lands. Nor does Marshall address the question of interpretation where the relevant treaty adhesion takes place, as here, one hundred years after the first adhesion: [15]–[16], Marshall considered.

2. The Marshall principles of treaty interpretation state that a technical or contractual interpretation of treaty wording should be avoided. However, the phrase ‘in severalty’ cannot be said to be ‘technical’. Its use in the Treaty indicates an intention, at least on the part of the commissioners that drafted it, that the persons who chose land in severalty would be obtaining private enclosed property as opposed to property held in common with other members of the tribe: [15]–[23], Marshall considered.

3. The trial judge emphasised that the proviso in the Treaty and the Agreement as to non-alienation was evidence of the historical fiduciary duty of the Crown. The Crown exercises a power to protect from imposition those who are thought to be unable to protect themselves. However, that jurisdiction is one of the Crown in right of a province and in right of Canada. Nothing should be made of this point in determining where the legislative jurisdiction lies over lands conveyed ‘in severalty’: [24]–[25].

4. Post-treaty communications relating to lands taken up under the Treaty referred to by the trial judge related to lands not within British Columbia. Crown lands in British Columbia, on which any reserve would have to be established, were retained as provincial property: [26]–[28], Wewaykum Indian Band v Canada [2002] 4 SCR 245 applied.

5. There is no evidence to indicate that the Indians at Fort St John, in the negotiations leading up to the signing of the Treaty, gave any thought to the division of legislative jurisdiction between British Columbia and Canada: [29].

6. The lands in severalty conveyed pursuant to the Agreement are not within the legislative jurisdiction of Canada, such lands neither being offered to Canada by British Columbia as ‘lands reserved for the Indians’ nor accepted by Canada as such: [31].