T-1924-74
The Town of Hay River (Plaintiff)
v.
The Queen and Chief Daniel Sonfrere for and on
behalf of the Hay River Band of Indians
(Defendants)
Trial Division, Mahoney J.—Edmonton, April 23
and 24; Ottawa, May 4, 1979.
Practice — Parties — Action by plaintiff regarding legality
of creation of Indian reserve partly located within boundaries
of town — Plaintiff relying on Crown's failure to observe
requirements of Treaty No. 8 in a number of respects
Whether or not plaintiff has locus standi to sue on that cause
of action — Territorial Lands Act, R.S.C. 1970, c. T-6, s.
19(d) — Indian Act, R.S.C. 1970, c. I-6, s. 2.
At issue is the legality of the creation of an Indian reserve in
the Northwest Territories. Some of the land included in the
reserve was within the corporate limits of Hay River when it
was set aside by Order in Council as a reserve in fulfilment of
obligations of the Government of Canada under Treaty No. 8.
Plaintiff relied entirely on the alleged failure of the Crown to
observe and follow the requirements of the Treaty in a number
of respects. Defendants challenge plaintiff's locus standi to sue
on that cause of action. Plaintiff, however, argues that compli
ance with the requirements of the Treaty by the Crown is not
merely a private obligation to Indians but one made public by
the operation of paragraph 19(d) of the Territorial Lands Act
concerning the establishment of reserves.
Held, the action is dismissed. The authority to set apart
Crown lands for an Indian reserve in the Northwest Territories
remains based entirely on the Royal Prerogative, not subject to
any statutory limitation. Since the action is limited to the
Crown's alleged failure to observe and follow the requirements
of Treaty No. 8, the plaintiff is without locus standi to
maintain the action. Treaty No. 8 confers no rights on stran
gers to the Treaty such as the plaintiff. The only basis for
complaint in which the plaintiff might conceivably have locus
standi flows from the fact that lands within its boundaries were
chosen at all. Although the co-existence of a municipality and a
reserve over the same lands might prove vexing, the arrange
ment would not necessarily render the lands unsuitable as a
reserve. The pertinent provision of the Treaty requires that the
location selected be suitable to the Indians and to the Crown. If
its suitability to either can be brought into issue by a munici
pality within whose limits the lands lie, which the Court doubts,
the duty of one or the other to take the municipality's interests
into account would have to be based on a far more substantial
real municipal interest in the lands than established here.
ACTION.
COUNSEL:
H. I. Shandling and D. Jardine for plaintiff.
I. G. Whitehall for defendant the Queen.
A. G. Macdonald, Q.C. for defendant Chief
Daniel Sonfrere for and on behalf of the Hay
River Band of Indians.
SOLICITORS:
Cooke Shandling, Edmonton, for plaintiff.
Deputy Attorney General of Canada for
defendant the Queen.
Macdonald, Spitz, Edmonton, for defendant
Chief Daniel Sonfrere for and on behalf of the
Hay River Band of Indians.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The issue is the legality of the
creation of Hay River Indian Reserve No. 1, com
prising some 52 square miles bounded on the north
by the southerly shore of Great Slave Lake and on
the west by the right bank of the Hay River, all in
the Northwest Territories. Some of the land com
prised in the reserve was within the corporate
limits of the Town of Hay River when, by Order in
Council 1974-387, dated February 26, 1974, it was
set apart as a reserve in fulfilment of obligations of
the Government of Canada under Treaty No. 8.
The reserve is within the territory ceded by the
Indians to Her Majesty under Treaty No. 8 and
legal title to all the land in the reserve, both within
and without the plaintiff's boundaries, was, when
set apart, vested in Her Majesty in right of
Canada. The plaintiff is a municipal corporation
duly incorporated under the laws of the Northwest
Territories.
At the trial, the plaintiff abandoned the causes
of action raised in paragraphs 6 and 7 of the
statement of claim. These related, respectively, to
the alleged invalidity of the provisions of Treaty
No. 8 respecting the establishment of reserves and
to the alleged violation of the Canadian Bill of
Rights, S.C. 1960, c. 44 (R.S.C. 1970, Appendix
III) by the creation of a privileged group of inhabi-
tants within the municipality. In the result, the
plaintiff relied entirely on the alleged failure of
Her Majesty to observe and follow the require
ments of Treaty No. 8 in a number of respects.
The defendants challenge the plaintiff's locus
standi to sue on that cause of action. The plaintiff
says that compliance with the requirements of the
Treaty by Her Majesty is not merely a private
obligation to Indians but is made public by para
graph 19(d) of the Territorial Lands Act.'
19. The Governor in Council may
(d) set apart and appropriate such areas or lands as may be
necessary to enable the Government of Canada to fulfil its
obligations under treaties with the Indians and to make free
grants or leases for such purposes, and for any other purpose
that he may consider to be conducive to the welfare of the
Indians;
Only the first of the three purposes stipulated in
paragraph 19(d) is in play.
The entire text of the Order in Council, exclu
sive of the Schedule, follows:
WHEREAS the lands described in Part I of the Schedule are
Territorial Lands within the meaning of the Territorial Lands
Act;
AND WHEREAS the said lands are required for the purpose of
enabling the Government of Canada to fulfil its obligations
under Treaty No. 8 with respect to the Hay River Band of
Indians.
THEREFORE, HIS EXCELLENCY THE GOVERNOR GENERAL
IN COUNCIL, on the recommendation of the Minister of Indian
Affairs and Northern Development, is pleased hereby,
(1) pursuant to section 19 of the Territorial Lands Act, to
revoke Orders in Council P.C. 1973-2238 of 24th July, 1973,
and P.C. 1973-2213 of 24th July, 1973, and to set apart and
appropriate the said lands, including all mines and minerals,
for the purpose aforesaid.
(2) pursuant to the Indian Act, to set apart the said lands for
the use and benefit of the Hay River Band of Indians as Hay
River Indian Reserve No. 1, subject to the existing rights and
privileges described in Part 2 of the Schedule, any proceeds
of which shall be credited to the revenue monies of the Hay
River Band of Indians.
The authority of the Governor in Council under
paragraph 19(d) of the Territorial Lands Act to
"set apart and appropriate such areas or lands as
may be necessary to enable the Government of
Canada to fulfil its obligations under treaties with
the Indians" is not the source of authority to set
' R.S.C. 1970, c. T-6.
apart Crown lands as a reserve in that part of
Canada to which the Act applies, i.e. the Yukon
and Northwest Territories. It is, rather, the au
thority to create a land bank for that purpose. The
Indian Act 2 defines "reserve" but nowhere deals
with the creation of a reserve. Notwithstanding the
words "pursuant to the Indian Act" in paragraph
(2) of the Order in Council, the authority to set
apart Crown lands for an Indian reserve in the
Northwest Territories appears to remain based
entirely on the Royal Prerogative, not subject to
any statutory limitation. I therefore conclude that,
the cause of action being limited to Her Majesty's
alleged failure to observe and follow the require
ments of Treaty No. 8, the objection that the
plaintiff is without locus standi to maintain the
action is well taken.
It is not necessary, for this purpose, to attempt a
comprehensive definition of the legal nature of
Treaty No. 8. Clearly, it is not a concurrent
executive act of two or more sovereign states.
Neither, however, is it simply a contract between
those who actually subscribed to it. It does impose
and confer continuing obligations and rights on the
successors of the Indians who entered into it,
provided those successors are themselves Indians,
as well as on Her Majesty in right of Canada. It
confers no rights on strangers to the Treaty such
as the plaintiff.
If I am wrong in the foregoing conclusion, then
the only particular of non-observance alleged, in
respect of which the plaintiff has a peculiar or
special interest beyond that of the general public,
is that to the extent that the lands set aside were
within its municipal boundaries, they were not
suitable for selection. The other particulars of
non-observance were:
1. that the Indians having, by the Treaty, ceded all their right
to the lands specifically covered by the Treaty and "to all other
lands wheresoever situation [sic] in the Northwest Territories",
Her Majesty had no right to create the Reserve without
prejudice to the band's or band members' right to participate in
2 R.S.C. 1970, c. I-6.
2. (1) In this Act
"reserve" means a tract of land, the legal title to which is
vested in Her Majesty, that has been set apart by Her
Majesty for the use and benefit of a band;
any future overall settlement of Indian land claims in the
Northwest Territories;
2. the failure to offer individual band members 160 acres each,
an option provided by the Treaty to Indians who "may prefer to
live apart from band reserves";
3. the failure to contact each individual band member in the
consultative process leading up to selection of the reserve lands,
which was conducted with the band council in meetings open to
all members.
None of those, if indeed they give rise to a cause of
action, are causes of action that could properly be
advanced by the plaintiff. The plaintiff did not
pursue the claim alleged in paragraph 5(c). That
was to the effect that lands, once appropriated to
the Northwest Territories under section 46 of the
Northwest Territories Act, 3 could not be
reclaimed by Her Majesty. That contention was
not consistent with the express terms of Order in
Council 1973-294 whereby the original appropria
tion had been made.
The Treaty does require, inter alia, that the land
set apart be selected
... after consulting with the Indians concerned as to the
locality which may be found suitable and open for selection.
The plaintiff does not contend that, by reason of
their being within its municipal boundaries, the
lands selected were not open for selection; only
that they were not suitable because:
1. they were within an established municipality;
2. they were already occupied by "numerous non-band
members";
3. they are "not contiguous but contain large parcels of pri
vately owned land";
4. they are not intended to be used by the band for settlement
but rather the band intends to derive revenue from leasing
them;
5. they are intended to be used for harbours and public works
"which should not form part of the reserve".
While no evidence was, in fact, adduced in
support of points 4 and 5, it is clear that they
reflect the real reason for this action. The plaintiff,
understandably, wants the entire control and ben
efit of future development within its boundaries
and particularly that on the river front. That
development, no doubt, appeared both imminent
3 R.S.C. 1970, c. N-22.
and substantial when the action was commenced in
view of the prospect of construction of a natural
gas pipeline and associated works along the Mac-
kenzie River valley and the town's location as a
highway, rail and waterway terminus. That said, I
have no basis, in the absence of evidence, for
concluding that lands suitable for the purposes
mentioned in Items 4 and 5 are not suitable within
the contemplation of the Treaty.
As to non-members of the band the evidence is
that, as of December 31, 1977, 15 non-treaty
Indians and 14 treaty Indians not of the Hay River
Band resided within the limits of the reserve along
with 123 band members. The "large parcels of
privately owned land" within the global bound
aries of the reserve, but excluded from it, aggre
gate something under 250 acres most of which is
made up of parcels patented to the Hudson's Bay
Company and the Roman Catholic and Anglican
churches. None of the non-members or private
owners complain and the plaintiff, by the mere
fact of it being the municipality in which they
reside or their land is located, has no right to bring
this action for them.
The only basis for complaint in which the plain
tiff might conceivably have locus standi flows
from the fact that lands within its boundaries were
chosen at all. This is based on the notion that the
provisions of the Municipal Ordinance, 4 on the one
hand, and the Indian Act, on the other, dealing
with such matters as the legislative authorities
vested in the band council and municipal council,
the obligation to provide services and liability to
and exemption from property taxes are incompat
ible. I accept that co-existence of a municipality
and Indian reserve over the same territory could
prove vexing to all concerned but that is not
necessarily to say that the arrangement would
render the lands unsuitable as a reserve.
The Town of Hay River has a population of
about 3,500. Its geographic area, as appears from
Exhibit P-8, is only slightly less than that of the
4 R.O.N.W.T. 1974, c. M-I5.
reserve. Between a quarter and a third of each is
within the limits of the other. The reserve includes
all that portion of the town, other than some
private property, east of the river as well as a 15
acre island in the river. Except when frozen over,
the river must be crossed by private boat or a
bridge seven miles upstream. The municipal ser
vices actually provided to the portion of the Town
within the reserve were, prior to its creation, mini
mal and have since been reduced to the level of
non-existence. Municipal facilities within the de
veloped town site, to which reserve residents have
access, are heavily subsidized by senior govern
ments. It is fortunate that, whatever the situation
might be in theory, in fact the coincidence of
municipality and reserve, in this instance, results
in no significant burden on the municipal
ratepayers.
The pertinent provision of the Treaty requires
that the location selected be suitable to the Indians
and to Her Majesty. If its suitability to either can
be brought into issue by a municipality within
whose limits the lands lie, which I doubt, the duty
of one or the other to take the municipality's
interests into account would have to be based on a
far more substantial real municipal interest in the
lands than is established here.
The action is dismissed with costs.
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