A-777-77
The Queen (Appellant) (Plaintiff)
v.
Gilbert A. Smith (Respondent) (Defendant)
Court of Appeal, Urie and Le Dain JJ. and Kelly
D.J.—Fredericton, November 7 and 8, 1979;
Ottawa, June 24, 1980.
Indians — Information by Crown — Reserve lands —
Appeal from decision of Trial Division dismissing action by
the Queen for possession of surrendered land in an Indian
reserve that has never been sold on the ground that respondent
has title to the Land by virtue of a continuous adverse posses
sion of at least sixty years — Whether, apart from adverse
possession, the appellant has the right to possession —
Whether the right to possession asserted by appellant could be
extinguished by adverse possession — Whether in fact there
was continuous adverse possession for at least sixty years —
Appeal allowed — Indian Act, R.S.C. 1970, c. I-6, ss. 2, 31,
53(1), 88 — The British North America Act, 1867, 30 & 31
Vict., c. 3 (U.K.) /R.S.C. 1970, Appendix II, No. 51, s. 91(24)
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 38(2).
Appeal from a judgment of the Trial Division dismissing an
action by the Queen for the possession of surrendered land in
an Indian reserve that has never been sold or otherwise disposed
of on the ground that the respondent has title to the Land by
virtue of a continuous adverse possession of at least sixty years.
The Land was part of a tract that was set aside by the Province
as an Indian reserve. It was leased to Travis by the Indians
from 1838. In 1841, he unsuccessfully petitioned the Crown for
a grant of the Land. In 1867, the Indian reserves in New
Brunswick came under the jurisdiction of the Dominion Gov
ernment pursuant to section 91(24) of The British North
America Act, 1867. The Land was surrendered to the Domin
ion Government in 1895. By 1898, the Land was occupied by
Travis' grandson, who, in 1901, had a survey made to provide
the basis of a grant. The survey excluded the Land. The
evidence shows that in 1904 or 1905 the Land was occupied by
Mutch, but nothing suggests any connection or continuity
between the occupation of Travis' grandson and its subsequent
occupation by Mutch. Until 1960, Mutch or members of his
family resided on the Land, using it for farming and cutting
wood. Mutch wrote to the Department of Indian Affairs in
1919 requesting a grant of the Land, but a grant was never
made to him. The respondent purchased the Land from Mutch
without searching the title, and was unaware of any Indian
claim to the Land. He built a camp on the Land and sold gravel
from a pit on the Land. In 1958, the federal and provincial
governments entered into an agreement, transferring all provin
cial rights in reserve lands to the federal government. These
proceedings were instituted in 1973. The Information alleges
that the Land forms part of the Red Bank Indian Reserve, that
it is vested in Her Majesty subject only to the conditions of a
surrender of the Land that was made in 1895, that the Land
has never been disposed of pursuant to the surrender and is
"surrendered lands" within the meaning of the Indian Act, that
Her Majesty has the right to possession of the Land, that the
Band claims that the respondent, a non-Indian is claiming
adverse possession of the Land, but has no right to possession.
The Information requests a declaration that the appellant has a
right to vacant possession. The respondent claims that if the
Land was part of the Reserve, it was, as a result of the
surrender of 1895, vested in the Crown in right of the Province
free of the burden of any Indian interest, and that the respond
ent now has title by virtue of continuous adverse possession.
The respondent denies that the Land constitutes "surrendered
lands." Alternatively, he claims compensation for the improve
ments made by him to the Land. The issues are whether, apart
from adverse possession, the appellant has the right to posses
sion; whether the right to possession asserted by the appellant
could be extinguished by adverse possession, and whether in
fact there was continuous adverse possession for at least sixty
years.
Held, the appeal is allowed and the appellant is entitled to
vacant possession upon payment of compensation for improve
ments. The appellant's recourse cannot rest on section 31, both
because the Land is not part of the Reserve within the meaning
of the Act, and because the Band does not have a right to the
occupation or possession of the Land. On the evidence, the
Land was part of the Reserve that passed at Confederation
under the jurisdiction of the federal government as land
reserved for the Indians within the meaning of section 91(24)
of the B.N.A. Act. The federal government took the view, when
it called for the surrender in 1895, that the ungranted lots on
both sides of the river were still part of the Reserve. After the
surrender o11895, the Indians could not claim a right to occupy
the Land. Their interest thereafter in the Land was in its sale
and the application of the proceeds of sale for their benefit. The
Land falls within the definition of "surrendered lands." When
the Indian Act uses the word "reserve" alone, as in section 31,
it does not intend to refer to surrendered lands as well as to the
unsurrendered part of a reserve. The title to the Land was not
affected by the agreement of 1958. As a consequence, an action
for possession of the Land by the Crown in right of Canada
cannot be based on title to the Land. Whether or not surren
dered lands remain part of the reserve as defined by the Indian
Act, they remain, until finally disposed of, lands reserved for
the Indians within the meaning of section 91(24) of the B.N.A.
Act, and as such within federal legislative jurisdiction. Because
of the federal government's continuing responsibility for the
control and management of such land until its final disposition
in accordance with the terms of a surrender, surrendered land
must remain within federal legislative and administrative juris
diction. It is land that is held for the benefit of the Indians,
although they have agreed to accept the proceeds of sale of it in
place of their right of occupation. The Crown in right of
Canada has, as an incident of this power of control and
management, the right to bring an action to recover possession
of surrendered land. Since such land remains reserved for the
Indians within the meaning of section 91(24) of the B.N.A. Act
and continues to be held by the Crown for the benefit of the
Indians because of their financial interest in it, the application
of the provincial statute of limitations so as to give a non-Indi-
an a possessory title to the Land would destroy the status of the
land under the Indian Act and defeat the terms of the trust
upon which it had been surrendered. In any event, the evidence
fails to establish a continuous adverse possession of the Land
for at least sixty years. There is a gap between the Travis
occupation and the Mutch occupation. The evidence concerning
the combined occupation by Ebenezer Travis and his grandson
from 1838 to 1901 is not clear as to when it became an
occupation or possession that was adverse. None of the docu
ments referred to shows the extent of the occupation by Travis
and his grandson, so it is not clear that there was an actual
possession. The activity carried out on the Land by Mutch and
his family constituted an occupation of the character required
for adverse possession, but a problem is created by the letter
which he wrote in 1919, requesting a grant of the Land. The
letter was an acknowledgment by Mutch of the Crown's title,
and the appellant is therefore entitled to possession of the Land.
This is a case in which the Crown must be held, as a result of
its long inaction, particularly from 1919, with knowledge that
the Land was being occupied by non-Indians, to have stood by
and acquiesced in the improvements made by the respondent
and his predecessor in occupation. Also, the respondent
believed himself to be the owner of the Land at the time he
made improvements to it. It would be unconscionable to permit
the Crown to recover vacant possession of the Land without
compensation for the improvements. The measure of compensa
tion is the amount by which the value of the Land has been
enhanced by lasting improvements.
Doe dem. Burk v. Cormier (1890) 30 N.B.R. 142, referred
to. Warman v. Francis (1959-60) 43 M.P.R. 197, referred
to. R. v. Isaac (1976) 13 N.S.R. (2d) 460, referred to. St.
Catherine's Milling and Lumber Co. v. The Queen (1889)
14 App. Cas. 46, (1887) 13 S.C.R. 577, referred to.
Attorney-General for the Dominion of Canada v. Attor-
ney-General for Ontario [1897] A.C. 199, referred to.
Ontario Mining Co., Ltd. v. Seybold (1900) 31 O.R. 386,
[1903] A.C. 73, referred to. Dominion of Canada v.
Province of Ontario [1910] A.C. 637, referred to. Attor-
ney-General for the Province of Quebec v. Attorney-Gen
eral for the Dominion of Canada [1921] 1 A.C. 401,
referred to. R. v. Devereux [1965] S.C.R. 567, referred to.
The Natural Parents v. The Superintendent of Child
Welfare [1976] 2 S.C.R. 751, referred to. Sherren v.
Pearson (1888) 14 S.C.R. 581, referred to. Hamilton v.
The King (1917) 54 S.C.R. 331, referred to. Ramsden v.
Dyson (1886) L.R. 1 H.L. 129, referred to. Montreuil v.
The Ontario Asphalt Co. (1922) 63 S.C.R. 401, referred
to. McBride v. McNeil (1913) 27 O.L.R. 455, referred to.
R. v. Lady McMaster [1926] Ex.C.R. 68, followed. Eas-
terbrook v. The King [1931] S.C.R. 210, aff g [1929]
Ex.C.R. 28, applied. Corporation of Surrey v. Peace Arch
Enterprises Ltd. (1970) 74 W.W.R. 380, applied. Cardi
nal v. The Attorney General of Alberta [1974] S.C.R. 695,
applied. Construction Montcalm Inc. v. The Minimum
Wage Commission [1979] 1 S.C.R. 754, applied. Four B
Manufacturing Ltd. v. United Garment Workers of
America [1980] 1 S.C.R. 1031, applied. Attorney-General
to His Highness the Prince of Wales v. Collom [1916] 2
K.B. 193, applied. St. Ann's Island Shooting and Fishing
Club Ltd. v. The King [1950] Ex.C.R. 185, [1950] S.C.R.
211, distinguished. Attorney-General for Canada v.
Giroux (1916) 53 S.C.R. 172, considered. Mowat, Attor-
ney-General for the Dominion of Canada & Casgrain,
Attorney-General for the Province of Quebec (1897) 6
Que. Q.B. 12, agreed with. Fahey v. Roberts unreported
decision of K.B.D. (N.B.S.C.), agreed with.
ACTION.
COUNSEL:
E. Neil McKelvey, Q.C. and Robert R.
Anderson for appellant (plaintiff).
Horace R. Trites, Q.C., William J. McNichol
and James E. Anderson for respondent
(defendant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (plaintiff).
Anderson, MacLean, Chase, McNichol &
Blair, Moncton, for respondent (defendant).
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a judgment
of the Trial Division [[1978] 1 F.C. 653] dismiss
ing an action by Her Majesty the Queen for the
possession of surrendered land in an Indian reserve
that has never been sold or otherwise disposed of
on the ground that the respondent has title to the
land by virtue of a continuous adverse possession
of at least sixty years.
The Pleadings
The action is by Information exhibited by the
Deputy Attorney General of Canada on behalf of
Her Majesty the Queen following an allegation by
the Red Bank Band of Indians, purporting to be
made pursuant to section 31 of the Indian Act,
R.S.C. 1970, c. I-6, which reads:
31. (1) Without prejudice to section 30, where an Indian or
a band alleges that persons other than Indians are or have been
(a) unlawfully in occupation or possession of,
(b) claiming adversely the right to occupation or possession
of, or
(c) trespassing upon
a reserve or part of a reserve, the Attorney General of Canada
may exhibit an Information in the Federal Court of Canada
claiming, on behalf of the Indian or the band, the relief or
remedy sought.
(2) An Information exhibited under subsection (1) shall, for
all purposes of the Federal Court Act, be deemed to be a
proceeding by the Crown within the meaning of that Act.
(3) Nothing in this section shall be construed to impair,
abridge or otherwise affect any right or remedy that, but for
this section, would be available to Her Majesty or to an Indian
or a band.
In its allegation made on February 15, 1973, the
Band states that the respondent, a person other
than an Indian, is claiming adversely the right to
possession of lands and premises forming part of
lot 6 in the "surrendered portion" of Red Bank
Indian Reserve Number 7 in Northumberland
County, Province of New Brunswick, and requests
"the Attorney General of Canada to exhibit an
information in the Federal Court of Canada,
claiming on behalf of the Red Bank Band of
Indians, possession of the said lands and
premises".
The lands and premises (hereinafter referred to
as "the Land") are described in the allegation and
Information as follows:
In the Province of New Brunswick, in Northumberland
County, in surrendered portion of Red Bank Indian Reserve
No. 7 all that part of Lot 6 more particularly described as
follows:
Beginning at a point made by the intersection of the line of
division between Lot 5A (Patent No. 18726) and Lot 6 with the
northern bank of the Little Southwest Miramichi River. Such
point being distant four hundred eight (408) feet on an astro
nomic bearing referred to the meridian through monument IR
1 as shown on Canada Lands Survey Records Plan No. 52894,
one hundred sixty-two degrees fifty-four minutes eighteen
seconds (162° 54' 18") from a Canada Lands Surveys Stand
ard Post marked L5, L6, 191, 1964, placed on the said line of
division by W.D. McLellan, N.B.L.S. in 1964.
Thence along the said line of division on an astronomic bearing
of three hundred forty-two degrees fifty-four minutes eighteen
seconds (342° 54' 18") a distance of four hundred eight (408)
feet to the said Canada Lands Surveys Post.
Thence continuing along the said line of division three hundred
forty-two degrees fifty-four minutes eighteen seconds (342° 54'
18") a distance of one thousand four hundred ninety-seven and
twenty-nine hundredths (1,497.29) feet to a Canada Lands
Surveys Old Pattern Iron Post marked R on the southern
boundary of the highway leading from Littleton to Halcomb.
Thence along the said boundary one hundred eleven degrees
four minutes zero seconds (111° 04' 00") a distance of one
hundred sixty-six and twenty-six hundredths (166.26) feet to a
Canada Lands Surveys Old Pattern Iron Post marked R.
Thence continuing along the said boundary following a curve to
the left having a radius of five hundred fifty-four and sixty-sev
en hundredths (554.67) feet a distance of four hundred nine
and thirty-four hundredths (409.34) feet to a Canada Lands
Surveys "69" Post numbered 23.
Thence continuing along the said boundary sixty-eight degrees
forty-seven minutes zero seconds (68° 47' 00") a distance of
seven and twenty-two hundredths (7.22) feet to a Canada
Lands Surveys "69" Post numbered 40.
Thence one hundred sixty-three degrees nineteen minutes eight
seconds (163° 19' 08") a distance of one hundred sixty-five and
fifty-two hundredths (165.52) feet to a Canada Lands Surveys
"69" Post numbered 41.
Thence sixty-eight degrees forty-seven minutes zero seconds
(68° 47' 00") a distance of one hundred thirty-two and zero
hundredths (132.00) feet to a Canada Lands Surveys "69" Post
numbered 39.
Thence one hundred sixty-three degrees nineteen minutes eight
seconds (163° 19' 08") a distance of two hundred sixty-one and
ten hundredths (261.10) feet to a Canada Lands Surveys "69"
Post numbered 35.
Thence one hundred fifty-nine degrees forty-two minutes
thirty-two seconds (159° 42' 32") a distance of seven hundred
twenty-four and fifty-nine hundredths (724.59) feet to a
Canada Lands Surveys "69" Post numbered 33.
Thence one hundred sixty-two degrees sixteen minutes thirty
seconds (162° 16' 30") a distance of four hundred seventy-sev
en and twenty-two hundredths (477.22) feet to a Canada Lands
Surveys "69" Post numbered 31.
Thence one hundred sixty-two degrees sixteen minutes thirty
seconds (162° 16' 30") a distance of eleven (11) feet to the
northern bank of the Little Southwest Miramichi River.
Thence in a southwesterly direction along the northern bank of
the Little Southwest Miramichi River to the place of the
beginning.
As shown on Canada Lands Surveys Records Plan No. 57932.
In the Information it is alleged that the Land
forms part of the Red Bank Indian Reserve
Number 7, that it is vested in Her Majesty subject
only to the conditions of a surrender of the Land
that was made in 1895, that the Land has never
been disposed of pursuant to the surrender and is
"surrendered lands" within the meaning of the
Indian Act, that Her Majesty has the right to
possession of the Land, that the Band has made
the allegation referred to above, and that the
respondent, a non-Indian, is claiming adversely the
right to possession of the Land, but has no right to
possession. The Information concludes for the fol
lowing relief:
(a) a declaration that Her Majesty the Queen has the right
to possession of the said lands and premises;
(b) vacant possession of the said lands and premises on
behalf of the Red Bank Band of Indians or alternatively
vacant possession of the said lands and premises;
In his defence, which was amended by leave in
September, 1976, and again by leave at the trial in
May, 1977, the respondent states that if the Land
was part of the Red Bank Indian Reserve, which is
not admitted but denied, it was, as a result of the
surrender of 1895, vested in the Crown in right of
the Province of New Brunswick free of the burden
of any Indian interest, and that the respondent
now has title to the Land by virtue of the "open,
notorious, continuous and adverse possession" of
the Land by himself and his predecessors in title,
both before and after the surrender. The respond
ent denies that the Land constitutes "surrendered
lands" within the meaning of the Indian Act.
In her reply the appellant states that prior to the
surrender the title of Her Majesty the Queen was
"subject only to the personal and usufructuary
right of the Red Bank Band of Indians and that
after such surrender and its acceptance the title of
Her Majesty the Queen was and continues to be
subject only to the conditions of the said surren
der", and the appellant denies that the Land was
prior to or after the surrender in the open, contin
uous, adverse and notorious possession of the
respondent or his alleged predecessors in title.
Alternatively to his defence based on adverse
possession, the respondent claims compensation for
the improvements made by him to the Land.
The Issues
Apart from the question of compensation, the
issues raised by the appeal may be summarized as
follows:
1. Whether, apart from the question of adverse
possession, the appellant has the right to posses
sion of the Land;
2. Whether, as a matter of principle, the right to
possession asserted by the appellant could be
extinguished by adverse possession;
3. Whether there was in fact a continuous
adverse possession of the Land for at least sixty
years.
The Facts
The evidence shows that the Land, which con
sists of some twenty-five acres on which the
respondent has made improvements, was part of a
tract that was recognized in the early 1800's by
the Government of New Brunswick as having been
set aside as a reserve on both sides of the Little
Southwest Miramichi River in the County of
Northumberland for the tribe of Micmac Indians
known as the Julien or "Julian" tribe after the
name of their chiefs. The tract, which was divided
by the river, was some 10,000 acres in extent and
five miles square, which caused it to be referred to
locally as the "Five Mile Block".
The precise date and basis on which the Reserve
on the Little Southwest Miramichi River should be
taken as having been established is not too clear,
but it was unquestionably recognized to be a
reserve before the non-Indian occupation of the
Land on which the respondent bases his defence in
part is alleged to have begun about 1838.
The Crown does not rely for the foundation of
the Reserve on The Royal Proclamation of Octo-
ber 7, 1763 (R.S.C. 1970, Appendix II, No. 1).
There has been difference of opinion as to whether
the Proclamation, in so far as Indian rights are
concerned, applied to the territory that was sepa
rated from Nova Scotia to become the Province of
New Brunswick in 1784. See Doe dem. Burk v.
Cormier (1890) 30 N.B.R. 142, at page 148, in
which Sir John C. Allen C.J. expressed the opinion
that it did not apply; Warman v. Francis (1959-
60) 43 M.P.R. 197, at pages 205 and 211, where
Anglin J. held that it did apply; La Forest, Natu
ral Resources and Public Property under the
Canadian Constitution, c. 7, "Property in Indian
Lands", pages 111, 125-126, who disagrees with
this view; and R. v. Isaac (1976) 13 N.S.R. (2d)
460, at pages 478 and 497, in which MacKeigan
C.J.N.S. and Cooper J.A. of the Nova Scotia
Court of Appeal both held that the Proclamation
applied to Nova Scotia. In the present case the
learned Trial Judge expressed a contrary view. I
propose to consider this question later, to the
extent that it appears to be necessary for the
disposition of the appeal.
The records of the Government of New Bruns-
wick in the early 1800's, as will appear, give
August 13, 1783 as the date that a reserve of some
10,000 acres on both sides of the Little Southwest
Miramichi River was established. The precise
nature of what was done in 1783 is not disclosed
by the evidence, although Professor W. D. Hamil-
ton, who was accepted by the Trial Judge as an
expert on the history of the Little Southwest
Miramichi region and its people, is recorded in the
transcript as having said, apparently with refer
ence to the year 1783, that there had been a "list
[sic] of occupation" without survey or boundaries.
It is possible that this was the reserve that was
referred to by Anglin J. in Warman v. Francis,
supra, at page 202, where, speaking of the situa
tion at the time the Province of New Brunswick
was established in 1784, he said: "There was then
only one Reserve for Micmacs which had been
established on the Northwest Branch of the
Miramichi River by a `Licence of Occupation'
issued by Governor Parr of Nova Scotia in 1783."
It may be noted that the Department of Indian
Affairs and Northern Development in its corre
spondence concerning the Land in 1973 referred to
the reserve as having been established in the late
1700's.
In any event, on September 27, 1804, Dugald
Campbell, Deputy Surveyor, certified (Exhibit
Pa-2) that he had surveyed for "Francis Julien and
the Indians of the Little Southwest River" a
"Tract of Land commencing at the mouth of the
said River, and extending five miles up that
stream". The plan accompanying the return of
survey (Exhibit Pa-1) has written on it the words
"Lands claimed by the Tribe of Indians of which
Francis Julien is the head". Below the Deputy
Surveyor's certificate is the following statement by
George Sproule, Surveyor General, dated Septem-
ber 10, 1805: "The Tract of Land above described
is not to be encroached on nor applied for by any
person until the allotment proposed for the Indians
is made and confirmed in Council." By a declara
tion on July 13, 1806, which appears on the same
document, Francis Julien expressed the wish that
in the event of his death the tract should go to his
two sons, Mitchell and Barnaby. This may reflect
one view of the dispute, which Professor Hamilton
said had existed from 1783 until the early 1840's,
as to whether the right of occupation had been
given to the Julien family or to the Indians of the
Little Southwest as a whole.
On February 28, 1807, the survey made by
Dugald Campbell was laid before the Executive
Council and approved (Exhibit Pa-3), and on Sep-
tember 24, 1808, the Executive Council (Exhibit
Pa-4) approved a report of the Surveyor General
concerning the Indian lands on the Miramichi and
ordered that a licence of occupation be given to the
Indians, in accordance with the report, for the
tract on the Little Southwest. This act of the
executive government of New Brunswick may have
been merely a confirmation, based on the survey
by Campbell, of a claim which had its origin in
some form of recognition in the year 1783, but it
appears to be the act by which the reserve, with
defined boundaries, was formally established.
On January 24, 1838, the New Brunswick
House of Assembly resolved (Exhibit Pa-5) "That
information should be laid before this House of all
tracts of Land reserved for the use of the Indians
in this Province, where situated, the time such
reserves were made, the nature of the reserves and
the particular Tribes of Indians for whose benefit
such reserves were respectively made." Pursuant to
this resolution, a "Schedule of Indian Reserves in
New Brunswick" dated January 31, 1838 (Exhibit
Pa-6) prepared by the Commissioner of Crown
Lands and Surveyor General was laid before the
House, and printed in the Appendix to the Jour
nals of the House of Assembly for the period
December 28, 1837, to March 9, 1838. The
Schedule describes the following reserves, among
others, in the County of Northumberland: "10,000
acres on both sides of the Little South West, at its
confluence with the North West Miramichi, 13th
August 1783; 3,033 acres on the north side of the
North West Miramichi, commencing opposite the
lower end of Beobcar's point, and running up; 10th
January, 1789; for John Julian and the Miramichi
Tribe of Indians." At the end of the Schedule is
the notation: "Nature of the Reserves—To occupy
and possess during pleasure."
It would appear that a few years after receiving
the licence of occupation for the Little Southwest
tract the Julien family entered into various
arrangements to earn revenue from the land. On
August 10, 1820 (Exhibit D-39), Francis Julien
and others leased the grass on "the Indian allot
ment in the Little South West" to Richard
McLaughlin for a period of six years at an annual
rent of £50. The Juliens also purported to sell or
lease homestead-size lots of land along both sides
of the river to non-Indian settlers. What came to
be known as lot 5 on the north side of the river
(and in which the Land was located until the
boundaries of lots 5 and 6 were altered around
1904) was occupied by one Ebenezer Travis, with
the consent of the Indians, from about 1838.
Travis paid rent to the Indians for some time,
but on October 25, 1841 he petitioned the Crown
for a grant of the land which he occupied. The
petition (Exhibit D-20) reads as follows:
TO His Excellency Lieutenant Colonel Sir William McBean
George Colebrook Lieutenant Governor of the Province of New
Brunswick
The Petition of Ebenezer Travis of Northesk in the County
of Northumberland Farmer Most Humbly Showeth
That Your Petitioner is a British Subject and a native of the
Province of New Brunswick and resides on a piece of the Indian
Reserve situate on the north side of the Little South West
between lands leased by the Indian Band John McAllister and
Robert Emerson and extending in the rear to the full extent of
the said Indian Reserve and containing about two hundred
acres.
That Your Petitioner went on the said lands without any
Lease but with the express consent of the said Indians and has
yearly paid a rent of forty shillings argent to the Julien tribe of
Indians and has built a house and a small barn on the said
lands and has cleared about four acres of the said Land.
That Your Petitioner is a very poor man and has a wife and
six children and is labouring hard to support them, and at the
same time to improve the land thus obtained from the said
Indians and is most anxious to have the title of the said Land
confirmed to Your Petitioner.
Your Petitioner would humbly pray your Excellency to take
his Case into Consideration and to order a grant to issue to him
or to do in the premises as Your Excellency in Your wisdom
may think just and right, and on such Terms as may lie within
Your Petitioner's power to accomplish.
And as in duty bound will ever pray
Ebenezer Travis
In 1841, Moses H. Perley, Commissioner of
Indian Affairs, made several reports on the condi
tion of the Indians in New Brunswick, extracts
from which were published as an Appendix
(Exhibit D-21) to the Journal of the Legislative
Assembly in 1842. At pages xcviii to xcix of the
Appendix there are the following passages:
On the 30th we proceeded up the North West Miramichi to
Red Bank, at the mouth of the Little South West. Some
families are settled at Red Bank, and some on the Reserve upon
the opposite side; they amount to 50 souls.
Barnaby Julien resides at Red Bank, where he has a tolerable
house and barn. He succeeded his brother Andre Julien as
Chief of the Micmac Nation, and he obtained a Commission in
regular form, under the hand and seal of His Excellency Sir
Archibald Campbell, countersigned by the Provincial Secre
tary, dated 20th September, 1836, appointing him Chief of the
Micmac Indians of Miramichi and its dependencies and requir
ing them to obey him as their Chief. Under this Commission
Barnaby Julien assumed the right of selling and leasing the
greater part of the Reserve of 10,000 acres on the Little South
West, and I regret to state, that from the best information I
could obtain, he has since then received nearly two thousand
pounds in money and goods from various persons, as consider
ation for deeds and leases, and for rents. His rent roll this year
amounts to a very considerable sum; yet I found him so
embarrassed in his pecuniary affairs, that he dare not come into
Newcastle, save on Sunday, for fear of being arrested by the
Sheriff. His own family have alone benefitted by the money
which came to his hands, none of the other Indians receiving
the smallest portion. In consequence of this misconduct, the
Micmacs, at their last annual meeting at Burnt Church Point,
on Saint Anne's Day, (26th July) solemnly deposed Barnaby
Julien from his situation as Head Chief, and declared that he
had no further authority as such. Nicholas Julien, who was
second in rank to his brother Barnaby, then became principal
Chief of the Micmacs, but had been so short a time in authority
before my visit, that he had not made any change in the
management of affairs.
At page cxi of the Appendix, with reference to
the "Reserve on the Little South West Mirami-
chi", which the report states to be a tract of some
10,000 acres divided by the Little South West, it is
said:
This is the tract over which Barnaby Julien has for some
years past exercised sole control, selling and leasing nearly the
whole of it, and squandering the money, as stated in the first
part of this Report. There are a great number of persons on this
Reserve, under lease, and paying rent regularly, who have made
extensive and valuable improvements. They have in general
conceived that if theirs was not a legal title, yet still it gave
them a good and equitable claim upon the Government, and
that any improvements they might make would be secured to
them. They are in general far above the squatters on the last
mentioned Tract both in character and circumstances. It was
not a little curious to contrast these persons, who supposed they
had fair title, with those who had not a shadow of claim, and to
mark the difference between the lawless squatter and the
honest industrious settler. The superior air and manner of the
latter, the greater degree of comfort in their houses, and the
respectable appearance of their families, were evident proofs of
the advantages of living in obedience to the Laws, and of the
great moral and social superiority of those who did so, over
those who were leading a lawless life.
A report (Exhibit D-21) on Indian reserves by
the Surveyor General dated June 29, 1841 and
printed at page cxxvi of the Appendix containing
the Perley Report described the Reserve on the
Little Southwest Miramichi River as follows:
"10,000 acres on both sides of the Little South
West, at its confluence with the North West
Miramichi-13th August, 1783." Under the head
ing "Return of the Number of Persons who have
settled upon and occupy portions of the Indian
Reserves in the Province of New Brunswick,
1841", the report shows 49 on the "Little South
West Reserve". A "Schedule of Reserved Indian
Lands in the Province of New Brunswick" (Exhib-
it Pa-8), dated April 19, 1842 and printed in an
Appendix to the Journals of the House of
Assembly for the period January 31, 1843, to
April 11, 1843, shows a reserve in Northumber-
land of 10,000 acres on "both sides of the Little
Southwest Miramichi River at its mouth".
In 1844, by.7 Vict., c. 47, the Legislature enact
ed "An Act to regulate the management and
disposal of the Indian Reserves in this Province".
The concern that gave rise to the Act was set out
in its preamble as follows: "Whereas the extensive
Tracts of valuable Land reserved for the Indians in
various parts of this Province tend greatly to
retard the settlement of the Country, while large
portions of them are not, in their present neglected
state, productive of any benefit to the people, for
whose use they were reserved: And whereas it is
desirable that these Lands should be put upon such
a footing as to render them not only beneficial to
the Indians but conducive to the settlement of the
Country ...." The Act provided for the survey of
reserves and for the sale or lease of parts of them
for settlement, as well as for the appointment of
Commissioners in each county in which reserves
were situated "for the purpose of looking after the
Reserves in their respective Counties, and superin
tending the survey and sale thereof, or such part or
parts thereof as may from time to time be directed
by the Lieutenant Governor to be sold under the
provisions of this Act, and also to look after the
interest of the Indians generally of the Counties in
which such Reserves are situate, and to prevent
trespassing thereon." The Act of 1844 was
replaced by chapter 85 of the Revised Statutes of
New Brunswick of 1854, which was entitled "Of
Indian Reserves" and was essentially to the same
effect.
It was apparently pursuant to the Act of 1844
that a survey was carried out in 1845 and 1847 by
David Sadler, Deputy Surveyor, of the part of the
Reserve on the north side of the Little Southwest
Miramichi River. The resulting plan and report
are Exhibit Pa-9. Another version of the plan is
found in Exhibit Pa-10. The plan shows 21 lots on
the north side of the river. Lot 5 is shown as
"Vacant", 35 chains in width, and containing 323
acres. In the report, entitled "Plan and Survey of
part of the Tract of Land reserved for Julian Tribe
of Indians situate on the North side of the Little
South West, a Branch of the North West Branch
of Miramichi River", there is the following
description of lot 5:
Lot No.5 is Vacant the Land in front of it is very poor and
mostly unfit for cultivation—it contains 323 acres there are
about 3 acres improved on it occupied by Ebinezer Travis who
has built a camp on it in which he resides.
In the years following the Sadler survey, steps
were apparently taken to have the settlers pur
chase the lots occupied by them in the Reserve.
Professor Hamilton is recorded in the transcript as
having stated that the land was "put up for option
[sic] in Newcastle in 1849". The record suggests
that certain lots were sold, but that letters patent
were not issued for them pending full payment of
the price. A letter dated September 16, 1898
(Exhibit Pa-19) from the Secretary of the Depart
ment of Indian Affairs confirmed that several of
the lots in the reserve on the north and south sides
of the Little Southwest Miramichi River had been
"patented" by the Government of New Brunswick
in the 1850's and 1860's. Lot 5 on the north side of
the river was never granted to Ebenezer Travis. It
was not until 1901, or some time shortly thereaf
ter, that part of the original lot 5 was granted to
his grandson, Ebenezer A. Travis, but the Land
was not included in this grant.
The New Brunswick Census Returns for 1851,
1861 and 1871 (Exhibit D-27) contain record of
Ebenezer Travis during that period. The returns of
1851 show that he was residing in the area but do
not show the land occupied by him. The agricul
tural schedule to the census returns of 1861, under
the heading "Acres of Land owned or occupied",
shows Ebenezer Travis as having 8 acres of
improved land and 300 acres of unimproved land.
Schedule No. 3 to the census returns of 1871,
under the heading "Grand total of acres of land
owned", shows a total of 325 acres for Ebenezer
Travis.
In 1867, the Indian reserves in New Brunswick
came under the jurisdiction of the Dominion Gov
ernment by virtue of the legislative jurisdiction
conferred on Parliament with respect to "Indians,
and Lands reserved for the Indians" by section
91(24) of The British North America Act, 1867,
30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix
II, No. 5]. In 1868, by 31 Vict., c. 42, Parliament
enacted the first Indian Act, which was entitled
"An Act providing for the organization of the
Department of the Secretary of State of Canada,
and for the management of Indian and Ordnance
Lands". It vested the control and management of
the lands reserved for the Indians in the Secretary
of State as Superintendent General of Indian
affairs. Section 32 of the Act repealed the New
Brunswick legislation respecting Indian reserves
(R.S.N.B. 1854, c. 85) and provided for the trans
fer of jurisdiction over the lands and monies held
for the Indians in New Brunswick as follows:
32. The eighty-fifth chapter of the Revised Statutes of New
Brunswick respecting Indian Reserves is hereby repealed, and
the Commissioners under the said chapter, shall forthwith pay
over all monies in their hands arising from the selling or leasing
of Indian Lands or otherwise under the said chapter, to the
Receiver General of Canada, by whom they shall be credited to
the Indians of New Brunswick, and all such monies now in the
hands of the Treasurer of New Brunswick shall be paid over to
the Receiver General of Canada, to be credited to the said
Indians. And all Indian lands and property now vested in the
said Commissioners, or other person whomsoever, for the use of
Indians, shall henceforth be vested in the Crown and shall be
under the management of the Secretary of State.
In response to a letter dated October 26, 1867,
from the Secretary of State requesting certain
information concerning the Indian lands in New
Brunswick, including the extent of land in the
reserves that had been granted or sold and the
amounts owing on the prices of sale, the Crown
Land Office of the Province, by letter dated
December 2, 1867 (Exhibit Pa-11), stated that it
was furnishing a "Return of all the lands yet
ungranted which are held for the Indians, and A
Return showing what Lots have been sold, but are
not yet granted". Included in the return was a list
of "Indian Lands in New Brunswick" dated
November 12, 1867, which showed the reserve on
both sides of the Little Southwest Miramichi River
as consisting now of 8,124 acres. At the bottom of
the list, which shows a total of 58,594 acres for all
the reserves, it is written, "3,235 1 / 2 acres of the
above have been sold to `White' settlers but are not
yet granted (See Return herewith)". A similar list
of reserves dated May 19, 1870 (Exhibit Pa-12)
shows the same acreage for the reserve on both
sides of the Little Southwest.
In 1895, there were two surrenders purporting
to affect lots in the Big Hole, Indian Point and
Red Bank reserves, one on April 10, 1895 (Exhibit
Pa-15) and one on June 6, 1895 (Exhibit Pa-14).
They are in virtually identical terms, except for the
persons who signed. They may also be found in
Indian Treaties and Surrenders, Vol. III, Nos.
366A and 366B, pages 156-160. The affidavits
attesting to the compliance with the formalities
required for a surrender by section 39 of The
Indian Act, R.S.C. 1886, c. 43, indicate, and,
indeed, I understood it to be common ground on
the appeal, that the surrender of June 6, 1895 was
the one by which the lots in the Red Bank Reserve
were surrendered. The surrender included lot 5 on
the north side of the Little Southwest Miramichi
River, in which, the experts agree, the Land was
then located. The terms of the surrender, with
reference to the lots in the Red Bank Reserve, are
as follows:
KNOW ALL MEN BY THESE PRESENTS, THAT WE, the under
signed Chief and Principal men of the Indians owning the Big
Hole, Indian Point and Red Bank Reserves resident on our
Reserves aforesaid in the County of Northumberland in the
Province of New Brunswick and Dominion of Canada, for and
acting on behalf of the whole people of our said Band in
Council assembled, Do hereby release, remise, surrender, quit
claim and yield up unto Our Sovereign Lady the Queen, her
Heirs and Successors forever, ALL AND SINGULAR, that certain
parcel or tract of land and premises, situate, lying and being in
the Parish of North Esk in the County of Northumberland and
Province of New Brunswick containing by admeasurement
be the same more or less and being com
posed of Lots Number Three, Six, Seven, Fourteen, Sixteen,
Eighteen, Twenty, Twenty Two, Twenty Three on the South
side of the Little South West Miramichi River and Lots One,
Two, Three, Five, Six, Seven, Seventeen on the North side of
the Little South West Miramichi River, all of the above Lots
being in the Red Bank Indian Reserve (so called) ....
TO HAVE AND TO HOLD the same unto Her said Majesty The
Queen, her Heirs and Successors forever, in trust to sell the
same to such person or persons, and upon such terms as the
Government of the Dominion of Canada may deem most
conducive to our welfare and that of our people.
AND upon the further condition that all moneys received
from the sale thereof, shall, after deducting the usual propor
tion for expenses of management, be placed to our credit and
the interest thereon paid to us and our descendants as to the
Department of Indian Affairs may seem right.
AND WE, the said Chief and Principal men of the said Bands
of Indians do on behalf of our people and for ourselves, hereby
ratify and confirm, and promise to ratify and confirm, whatever
the said Government may do, or cause to be lawfully done, in
connection with the sale of the said lands and the disposal of
the said money.
The surrender was accepted by the Governor in
Council on July 25, 1895. A comparison of the lot
numbers in the surrender with those indicated in
the letter of September 16, 1898 (Exhibit Pa-19)
as having been patented by the Government of
New Brunswick before Confederation shows that
the intention was to surrender the ungranted lots
along the river in the Red Bank Reserve. The
report of the Committee of the Privy Council
recommending the acceptance of the surrenders
(Exhibit Pa-15) stated that the lots surrendered
were "occupied by squatters, the object of the
surrenders being to enable the Department of
Indian Affairs to sell the lots to the parties in
occupation".
In 1898, W. D. Carter, Indian Agent, acting on
the instructions of the Department of Indian
Affairs, investigated the question of "Squatters on
the Red Bank Indian Reserve", and his report to
the Secretary of the Department on July 15, 1898
(Exhibits Pa-17 and Pa-18) shows the occupation
of lots on both sides of the Little Southwest
Miramichi River by non-Indians. The report con
tains the following statement with respect to Lot 5
on the north side of the river:
Lot No. 5. Occupied by Stephen Johnson (away) and Ebenezar
Travis. Mrs. Travis stated to me that they got their possession
from Jared Tozer who got possession of it from the Indians over
60 years ago. Claim it as theirs of right.
The Ebenezer Travis referred to in this statement
would have been Ebenezer A. Travis, the grandson
and successor in occupation of the original
Ebenezer Travis who began the occupation about
1838.
It appears that at this time the Department of
Indian Affairs was exerting pressure on the
"squatters" to purchase the land they occupied.
The Secretary's letter of September 16, 1898 to
W. D. Carter (Exhibit Pa-19) contained the fol
lowing statement:
As regards the price which the Squatters should be called
upon to pay for the land occupied by them on this Reserve, I
beg to inform you that in view of a strong petition received
from the Squatters and of your report in regard to the price to
be charged, the Department has consented to reduce the upset
price to 80 cents per acre and you will be good enough to notify
the Squatters of this fact and call upon them to make payment
of, at least, one fifth of the purchase money this Fall.
A letter dated July 5, 1901 (Exhibit Pa-20) from
the Secretary of the Department to the Deputy
Minister of Justice stated in part as follows:
I am directed to enclose a statement of facts regarding
squatters on the Red Bank Indian Reserve, County of North-
umberland, N.B., and to request that steps be taken to compel
the squatters to make payment for the lands.
In 1901, William E. Fish, Deputy Surveyor,
made a survey of lot 5 for Ebenezer A. Travis to
serve as the basis of a grant to him. The "Plan of a
lot of land surveyed for Ebeneazer Travis in the
Little South West Miramichi Indian Reserve"
dated November 28, 1901 (Exhibit Pa-21), that
was prepared by him shows a lot of 140 acres, 15
chains in width, marked off for Travis and adjoin
ing it, to the east, a strip, in which the Land was
located, marked "Unoccupied Indian land".
In 1904, Fish carried out a survey of the lots on
the north and south sides of the river which result
ed in a realignment of the boundaries of lots 5 and
6 on the north side to form three lots which
became lots 5, 5A and 6. The new boundaries are
shown on a "Plan of Squatter Claims Surveyed in
the Little South West Miramichi Indian Reserve"
dated April 13, 1904 (Exhibit Pa-24). The lots
between lots 4 and 8 on the north side of the river
are shown on this plan as unnumbered. The num
bers are shown on the "Plan of Red Bank Indian
Reserve" dated March 4, 1905 (Exhibit Pa-26),
which appears to have been based on the Fish
survey. On these two plans the new lot 5, 10 chains
in width, is shown as occupied by Stephen John-
ston, the new lot 5A, 15 chains in width and 144
acres in extent, is shown as occupied by Ebenezer
Travis, and the new lot 6 is shown as "unoc-
cupied." The result of the Fish survey of 1904 may
be summed as follows: the westerly 10 chains of
the old lot 5 of some 35 chains in width shown on
the Sadler plan of 1845-47 became the new lot 5
occupied by Stephen Johnston; the middle 15
chains of the old lot 5 became the new lot 5A of
144 acres that was granted to Ebenezer A. Travis;
and the easterly 10 chains of the old lot 5, which
had been shown in the Plan of 1901 (Exhibit
Pa-21) as "Unoccupied Indian land", became the
westerly part of the new lot 6. It is thus that the
Land, which had formerly been part of lot 5, now
became part of lot 6.
It is necessary now to consider the occupation of
lot 6 by the Mutch family. In the Carter report of
1898 (Exhibit Pa-17), the old lot 6 on the north
side of the river is shown as "claimed" by James
Mutch. He is also shown as the occupant of lots 7
and 8 on the south side where he is said to have
lived. In 1904 or 1905, Isaac Mutch, his grandson,
moved an old schoolhouse to the westerly half of
the new lot 6 and set it up there as his home north
of the highway running from Red Bank to Hal -
combe. It was assumed by Isaac's son and others
who had known him for many years that he had
received the property he occupied from his father,
Edmund, who is supposed to have received it from
James. According to local tradition, James got the
property he occupied in the old lot 6 from one
"Moses". It is clear, however, that in 1898 James
could not have been in occupation of the 10-chain
strip, which was still in the old lot 5 and was only
excluded by the Fish plan of 1901 from the land to
be granted to Ebenezer A. Travis. This was the
property that was occupied by Isaac Mutch, begin
ning in 1904 or 1905. The easterly half of the new
lot 6 was later occupied by his brother, William
Mutch. This eastern half would have been part of
the old lot 6 on the Sadler plan of 1847 and
presumably the land claimed by James Mutch
according to the Carter report. Professor Hamilton
expressed the opinion that the Isaac Mutch prop
erty had been created by the Fish survey of 1901.
This is no doubt true in a manner of speaking, but
the evidence is silent as to the occupation of this
land between 1901, when it was excluded by the
Fish survey from the land to be granted to Travis,
and 1904 or 1905, when Isaac Mutch moved onto
it. There is nothing to suggest any connection or
continuity between the occupation of this land by
Ebenezer A. Travis and its subsequent occupation
by Isaac Mutch.
There was considerable testimony concerning
the nature of the occupation by Isaac Mutch of the
west half of the new lot 6, and particularly of the
Land, which is that part of the west half of lot 6
between the highway and the river. The witnesses
included his son, Weldon, his brother William's
son, Vaughan, and several older members of the
community who had known Isaac Mutch for most
of the time that he had been in occupation of lot 6.
The evidence shows that Isaac Mutch was a
farmer and lumberman. He did some farming and
cutting of wood on the land occupied by him north
of the highway. The part of the land between the
highway and the river was mostly wooded but
there was an "interval" or clearing, sometimes
referred to as a meadow, near the river and just
above the present site of the respondent's camp. A
road, said to have been made by Mutch, crossed
the land from the highway to the river and pro
vided access to Hay Island, which lies opposite the
Land. Mutch farmed on Hay Island and also on
the "interval" or clearing. Both were enclosed by a
fence. He and his family cut wood on the Land.
He cut pulpwood and some logs for sale, as well as
firewood for his own use. His sons also cut Christ-
mas trees. At one time the road across the Land
was used to bring horses to and from the river
where rafts were towed down to Red Bank. In the
1940's Mutch and his family operated a small
sawmill north of the highway in connection with
their cutting operations. The evidence shows that
Isaac Mutch paid taxes on the part of lot 6
occupied by him.
On February 24, 1919, Isaac Mutch wrote the
following letter (Exhibit Pa-27) to the Department
of Indian Affairs:
Dear Sirs
I am living on a piece of Indian land which lies on the North
side of the Lyttle South West River the East side of Lot No. 6
x 42 Rods in width Bounded on the West by land claimed by
Ebenezar Traviss
And I-would like to get the grant of it.
I remain yours truly
Isaac N. Mutch
Lyttleton south Esk P.O.
Northumberland Co.
N.B.
I would like to get it as soon as it is possible if you please.
A memorandum dated March 14, 1919 (Exhibit
Pa-28) from H. J. Bury, Timber Inspector, to a
Mr. Orr in the Department of Indian Affairs with
reference "to the application hereunder from Mr.
Isaac Mutch to purchase the East half of lot No. 6
on the north side of the Little South West Mirami-
chi River in the Redbank Reserve", recommended
that Mutch be given an opportunity to purchase
the land for $2 an acre and concluded: "I am of
the opinion that this application is one of the
results of the recent inquiry into trespassing on the
Reserve by whites and that these settlers are real
ising now they must restrict their timber opera
tions to land of their own."
Mutch was required to provide a metes and
bounds description of the land for which he sought
a grant, and a survey was made and a plan pre
pared by William E. Fish. The plan (Exhibit
Pa-33) is dated June 6, 1919, and is entitled as
follows:
I.R. No. 7 (Part of Red Bank)
Little South West Miramichi River N.B.
Indian Reserve
Return of Survey of 107.64 acres in said Reserve
Made for Isaiah N. Mutch
In his letter to the Department, Isaac Mutch had
referred to the "East side" of lot 6, but it is clear
from the Fish plan that what was intended and
what was surveyed for him was the west half of
lot 6, bounded on the west by the lot surveyed for
Ebenezer A. Travis in 1901, and on the east by the
other half of lot 6 occupied by William Mutch.
Isaac Mutch expressed the view (Exhibits Pa-31
and Pa-32), apparently based on something that
had been said to him by Bury, that $2 per acre was
too high and that $1.50 per acre would be a
reasonable price. In any event, a grant was never
made to him for the land.
Mutch lived in the house he had erected on lot 6
until some time in the early 1920's. From then
until 1960 he lived on a property he had bought
nearby called Summers' Farm. During this period
the house on lot 6 was occupied by members of his
family, but he continued to use the property,
including the Land, for farming and the cutting of
wood.
The Land was conveyed by Isaac Mutch and his
wife to the respondent in three parcels by deeds
dated September 26, 1952, September 8, 1958 and
July 16, 1959. The respondent paid Mutch a total
of $1,600 for the Land. When he purchased it, he
did not know of any Indian claim to the Land, but
he did not have the title searched. In 1953, he built
a camp on the Land at a cost of over $8,000. It
consists of a main camp building joined by a
breezeway to a cookhouse or kitchen building. The
respondent and his family have used the camp as a
seasonal dwelling and he has rented it from time to
time to others. There is a gravel pit on the Land
from which the respondent sold gravel for several
years. There is reason to believe that the sale of
the gravel may have provoked the proceedings of
the appellant.
On March 25, 1958, the Governments of
Canada and New Brunswick entered into an
agreement respecting the Indian Reserves in the
Province which was ratified and confirmed by
provincial and federal legislation: S.N.B. 1958, c.
4; S.C. 1959, c. 47. Its purpose is set out in the
recitals as follows:
WHEREAS since the enactment of the British North America
Act, 1867, certain lands in the Province of New Brunswick set
aside for Indians have been surrendered to the Crown by the
Indians entitled thereto;
AND WHEREAS from time to time Letters Patent have been
issued under the Great Seal of Canada purporting to convey
said lands to various persons;
AND WHEREAS two decisions of the Judicial Committee of
the Privy Council relating to Indian lands in the Provinces of
Ontario and Quebec lead to the conclusion that said lands
could only have been lawfully conveyed by authority of New
Brunswick with the result that the grantees of said lands hold
defective titles and are thereby occasioned hardship and
inconvenience;
Now THIS AGREEMENT WITNESSETH that the parties
hereto, in order to settle all outstanding problems relating to
Indian reserves in the Province of New Brunswick and to
enable Canada to deal effectively in future with lands forming
part of said reserves, have mutually agreed subject to the
approval of the Parliament of Canada and the Legislature of
the Province of New Brunswick as follows:
Paragraphs 2, 3 and 6 of the agreement provide
as follows:
2. All grants of patented lands are hereby confirmed except in
so far as such grants purport to transfer to the grantees any
minerals and said minerals are hereby acknowledged to be the
property of the Province.
3. New Brunswick hereby transfers to Canada all rights and
interests of the Province in reserve lands except lands lying
under public highways, and minerals.
6. (1) Canada shall forthwith notify New Brunswick of any
surrender and New Brunswick may within thirty days of receiv
ing such notification elect to purchase the surrendered lands at
a price to be agreed upon.
(2) If New Brunswick fails to elect within such thirty-day
period, Canada may dispose of the surrendered lands without
further reference to New Brunswick.
(3) Where a surrender is made under the condition that the
surrendered lands be sold to a named or designated person at
a certain price or for a certain consideration, New Brunswick
shall exercise its election subject to that price or
consideration.
(4) Subject to subparagraph (3) of this paragraph, should
Canada and New Brunswick be unable, within thirty days of
the date of an election to purchase being made, to reach
agreement on the price to be paid by New Brunswick for any
surrendered lands, the matter shall be referred to arbitrators
as follows:
(a) Canada and New Brunswick shall each appoint one
arbitrator, and the two arbitrators so appointed shall
appoint a third arbitrator;
(b) the decision of the arbitrators as to the price to be paid
by New Brunswick for the surrendered lands shall be final
and conclusive; and
(c) the costs of arbitration shall be borne equally by
Canada and New Brunswick.
Paragraph 1 of the agreement contains the fol
lowing definitions of "reserve lands", "patented
lands" and "surrender":
t....
(b) "reserve lands" means those reserves in the Province
referred to in the appendix to this agreement;
(c) "patented lands" means those tracts of land in the
Province in respect of which Canada accepted surrenders of
their rights and interests therein from the Indians entitled to
the use and occupation thereof and in respect of which grants
were made by Letters Patent issued under the Great Seal of
Canada;
(J) "surrender" means the surrender for sale of reserve lands
or a portion thereof pursuant to the Indian Act but does not
include a surrender of rights and interests in reserve lands for
purposes other than sale;...
The list of reserves in the Appendix to the
agreement includes the Red Bank Indian Reserve
No. 4 and the Red Bank Indian Reserve No. 7, the
locations of which are described respectively as
follows:
In the Parish of Southesk, approximately one mile west of
the Village of Red Bank, and South of the Little Southwest
Miramichi River near its confluence with the Northwest
Miramichi River.
In the Parish of Southesk with a small part in the northeast
corner in the Parish of Northesk. North of the Little Southwest
Miramichi River opposite Red Bank Indian Reserve No. 4.
In 1963 and 1964, W. D. McLelland, land
surveyor in the federal Department of Mines and
Resources, carried out a survey and prepared a
plan (Exhibit Pa-41) entitled "Field Notes of
Resurvey of Artificial Boundaries of Part of Red
Bank Indian Reserve No. 7 and Surrendered
Lots 6 and 17, Northumberland County, New
Brunswick". In February, 1973, he prepared a
description (Exhibit Pa-38) and a plan (Exhibit
Pa-43) of lot 6-1, which he described as being a
portion of surrendered lot 6, Red Bank Indian
Reserve No. 7. This purported to be a description
and plan of the Land and was apparently prepared
for purposes of the proceedings instituted by the
appellant. Mr. McLelland testified as to the loca
tion of the Land on the various plans prepared
over the years. He confirmed that the Land was in
the southeast corner of the old lot 5 shown on the
Sadler plan of 1847 and in the southwest corner of
the new lot 6 shown on the Fish plans of 1904 and
1919.
The respondent testified that no one had said
anything to him about the Land being Indian land
when he built his camp in 1953. He apparently
learned that there might be some claim to the
Land when McLelland made his survey in 1964,
but he heard nothing further. In 1971, the Red
Bank Band objected to the exploitation of the
gravel pit and threatened to obtain an injunction.
The respondent agreed to close the pit as soon as
existing commitments had been met and to place
the money received from sale of the gravel in a
trust account pending settlement of the Indian
claim. At a meeting with the respondent about this
time, representatives of the federal government
proposed that he lease the Land from the govern
ment, but he refused. On February 15, 1973, the
Red Bank Band of Indians made its allegation that
the respondent was claiming adversely the right to
possession of the Land and requested the Attorney
General of Canada to exhibit an Information in
the Federal Court to claim possession of the Land
on behalf, of the Band. On February 23, 1973, a
demand was made upon the respondent on behalf
of the Crown to deliver up vacant possession of the
Land. The respondent refused to do so. The appel
lant's proceedings were instituted on May 11,
1973.
The Judgment of the Trial Division
The Trial Division dismissed the action on the
ground that the Crown's title to the Land, as well
as the Indian right and interest therein, had been
extinguished by a continuous adverse possession of
more than sixty years, and that the respondent had
accordingly a right to possession of the Land. The
conclusions of the learned Trial Judge on the
question of adverse possession are contained in the
following passages from his reasons for judgment
[at pages 670-671]:
In short, after the creation of the Province of New Brunswick
in 1784, the Indians were granted a licence of occupancy in
1808 by the Province, which they neglected to exercise over the
tract of land along the Little Southwest Miramichi River. From
the 1830's to the surrender of 1895 the Indians lost their right
of occupancy through adverse possession. The 1895 surrender
could not, of course, transfer to the Crown in the right of
Canada what the surrenderers had already- lost and adverse
possession throughout that period ran against the Crown in the
right of the Province, the person entitled, up to the agreement
of 1958. The latter agreement could not affect adverse posses
sion already established. The federal statute barring prescrip
tion, the Public Lands Grants Act could not, of course, apply to
the land in question before the agreement of 1958 and by that
time adverse possession had been established and the rights of
prior owners extinguished.
Within that tract of land along the Little Southwest Mirami-
chi River lies the present day non-Indian community of Lyttle-
ton wherein is located the parcel of land possessed in 1838 by
Ebenezer Travis. From that parcel, lot 6 was admittedly
occupied by James Mutch in 1898. His grandson Isaac built on
it in 1904 and sold from it to the defendant in 1952, 1958 and
1959, the property now being claimed in the present
information.
During that whole period, from 1838 to the date of this
information in 1973, or a period of 135 years, adverse posses
sion has not been effectively interrupted by any of the parties
entitled to do so, namely the Province of New Brunswick from
1838 to -1958, the Government of Canada from 1958 to 1973,
and the Red Bank Band with reference to their own rights of
occupancy throughout the period.
I therefore find that the defendant and his predecessors have
established adverse possession on the subject property as
against anyone and I dismiss plaintiff's action with costs.
The Grounds of Appeal
The appellant attacks this judgment on two
grounds: (a) the provincial law respecting limita
tion of actions could not validly apply to extinguish
the right to possession asserted by the appellant;
and (b) in any event, the evidence does not support
a finding that there was a continuous adverse
possession of the Land for at least sixty years.
The Appellant's Right to Possession
It is first necessary to consider the nature and
basis of the right to possession asserted by the
appellant. I have found this to be a question of
considerable difficulty because of the particular
circumstances of the case, the allegations and con
clusions of the Information, the terms of the
Indian Act with respect to reserve lands and sur
rendered lands, and the judicial decisions bearing
on the nature of the Indian interest and the rights
of the federal and provincial governments in
respect of such lands. A consideration of this
initial question is essential for two reasons: (a) it
has an obvious bearing on the question whether the
provincial law respecting limitation of actions for
the recovery of land applied during the relevant
period to the right of possession asserted by the
appellant; and (b) it has an obvious bearing on the
respondent's contention that, quite apart from
whether the provincial law applied during the rele
vant period, the appellant's action should fail
because she cannot show a superior right to posses
sion. It involves, in particular, a consideration of
the effect of the surrender of 1895 and the agree
ment of 1958 on the various rights and interests in
the land.
It seems desirable to begin with a reference to
certain general principles concerning the nature of
the various rights and interests in land in Indian
reserves that have been recognized by judicial
authority, notably the decisions of the Privy Coun
cil in the following cases: St. Catherine's Milling
and Lumber Company v. The Queen (1889) 14
App. Cas. 46; Attorney-General for the Dominion
of Canada v. Attorney-General for Ontario [1897]
A.C. 199; Ontario Mining Company, Limited v.
Seybold [ 1903] A.C. 73; Dominion of Canada v.
Province of Ontario [1910] A.C. 637; Attorney-
General for the Province of Quebec v. Attorney-
General for the Dominion of Canada (the Star
Chrome case) [1921] 1 A.C. 401. The legal title to
land in an Indian reserve is in the Crown, with the
beneficial interest, in the absence of an agreement
such as that which was entered into in the present
case in 1958, belonging to the province in which
the land is located by virtue of section 109 of the
B.N.A. Act. The Crown's title is subject to the
Indian right or interest (sometimes referred to as
the "Indian title") which has been characterized
as personal and usufructuary in nature. When the
Indian title is extinguished, the beneficial interest
in the land reverts to the province in the absence of
an agreement that has transferred that interest to
Canada. The exclusive federal legislative jurisdic
tion with respect to "Indians, and Lands reserved
for the Indians" under section 91(24) of the
B.N.A. Act does not confer on the Government of
Canada a right of property in the reserves or a
power to appropriate the provincial interest in land
in a reserve, but it carries by implication a power
of control and management of the reserves. The
continuing jurisdiction of the federal government
with respect to surrendered land, the title to which
remains in the Crown, is a question of some uncer
tainty, which will require further analysis in view
of the facts of the present case, but the effect of
the Privy Council's decisions in the St. Catherine's
Milling and Star Chrome cases, supra, was that
the federal government could not, without the
intervention of the provincial authorities, cause the
Crown to convey a good title to surrendered land.
These are, of course, the decisions and the practi
cal difficulty referred to in the recitals of the
federal-provincial agreement of 1958.
The question, then, is what, in the light of these
various rights, interests and relationships, is the
nature and basis of the right to possession that is
asserted by the appellant's action? It is assumed
that the appellant's action is based, at least in part,
on section 31 of the Indian Act, which was quoted
at the beginning of these reasons. This is a neces
sary inference from the fact that it was instituted
at the instance of the Band, following an allegation
purporting to be made pursuant to section 31, that
the Information refers to the allegation by the
Band, and that the prayer for relief contains a
claim for vacant possession on behalf of the Band.
In his memorandum, counsel for the appellant
stated that the Information was exhibited in the
Federal Court pursuant to section 31, and at the
hearing, in response to a question from the Court,
he reaffirmed that the action was based on section
31. Yet the allegations and conclusions of the
Information give rise, as I read them, to some
ambiguity as to the extent to which the action is to
be considered as entirely based on section 31. The
Information alleges that the Land is vested in Her
Majesty and that Her Majesty is entitled to the
possession of it. It does not allege that the Band is
entitled to possession. It prays for a declaration
that Her Majesty is entitled to possession, and
while it claims vacant possession on behalf of the
Band, alternatively it claims vacant possession
purely and simply. As I read these allegations and
conclusions, bearing in mind the surrender of 1895
and the agreement of 1958, they raise a serious
question as to whether, in addition to a claim for
possession on behalf of the Band, there is not a
claim by Her Majesty for possession in her own
right.
In so far as the action must be considered to be
one based on section 31, it is necessary to consider
the essential conditions and nature of such an
action. The section provides that, where an Indian
or a band makes an allegation of an encroachment
by a non-Indian of the kind described in the
section on a reserve or part of a reserve, the
Attorney General of Canada may by Information
in the Federal Court claim relief on behalf of the
Indian or the band. Section 31 provides a right of
action at the instance of an Indian or the band. It
is an action to assert the rights of the Indian or the
band. The nature of the interest asserted by this
special recourse was more explicit in the corre
sponding provision of section 39 of the Indian Act,
R.S.C. 1927, c. 98 (first introduced as section 37A
of the Indian Act, R.S.C. 1906, c. 81, by S.C.
1910, c. 28, s. 1, and amended by S.C. 1911, c. 14,
s. 4) as follows:
39. If the possession of any lands reserved or claimed to be
reserved for the Indians, or of any lands of which the Indians or
any Indian or any band or tribe of Indians claim the possession
or any right of possession, is withheld, or if any such lands are
adversely occupied or claimed by any person, or if any trespass
is committed thereon, the possession may be recovered for the
Indians or Indian or band or tribe of Indians, or the conflicting
claims may be adjudged and determined or damages may be
recovered in an action at the suit of His Majesty on behalf of
the Indians or Indian or of the band or tribe of Indians entitled
to or claiming the possession or right of possession or entitled to
or claiming the declaration, relief or damages.
2. The Exchequer Court of Canada shall have jurisdiction to
hear and determine any such action.
3. Any such action may be instituted by information of the
Attorney General of Canada upon the instructions of the
Superintendent General of Indian Affairs.
4. Nothing in this section shall impair, abridge or in anywise
affect any existing remedy or mode of procedure provided for
cases, or any of them, to which this section applies.
The nature of the recourse provided by section
31 was considered by the Supreme Court of
Canada in The Queen v. Devereux [1965] S.C.R.
567. An action was brought to recover the posses
sion of land in a reserve on behalf of a Band which
had made the necessary allegation pursuant to the
section. The Exchequer Court of Canada, [1965] 1
Ex.C.R. 602, dismissed the action on the ground
that the Band did not have the right to possession
of the land in question because possession of it had
been allotted, in accordance with the provisions of
the Indian Act, to an individual Indian. Thurlow J.
(as he then was), applying the general principles
governing an action to recover possession of land,
said the issue was [at pages 604-605] "whether the
Six Nations Indian Band, on whose behalf the
action has been brought, is entitled to the posses
sion claimed on its behalf". In his conclusion he
said [at page 611]:
It was also submitted that s. 31(1) confers on a band a
statutory right to the relief claimed in an action brought by the
Attorney General at its request pursuant to the section. As I
read it, however, this subsection confers no new substantive
right but simply provides a procedure for the enforcement of
existing rights of an individual Indian or of a band. In the
present case the action is to enforce a right of possession
asserted by the band and on the facts it has not been estab
lished that the band has any such right in the land in question.
This judgment was reversed by the Supreme
Court of Canada. Cartwright J. (as he then was),
dissenting, agreed with Thurlow J. He said at page
574: "It will be observed that possession is not
claimed by Her Majesty in her own right but only
on behalf of the Band. This is in accordance with
the provisions of s. 31 of the Indian Act ..."; and,
after quoting the section, he said: "I can find no
ambiguity in this section. It contemplates, as do
many other provisions of the Act, that the right to
possession of a parcel of land in a reserve may
belong to the Band or to an individual Indian. The
claim for possession is to be made either on behalf
of the Band if it is entitled to possession or on
behalf of the individual Indian if he is so entitled."
Judson J., who delivered the judgment of the
majority, said at pages 571-572:
The Exchequer Court, in dismissing the action, held, in
effect, that in respect of land allocated to an individual Indian,
an action under s. 31 above quoted would lie only at the
instance of the individual Indian locatee and not at the instance
of the band. In so holding I think there was error. I do not think
that s. 31 requires that an action to put a non-Indian off a
reserve can only, in respect of lands allocated to an individual
Indian, be brought on behalf of that particular Indian. The
terms of the section to me appear to be plain. The action may
be brought by the Crown on behalf of the Indian or the band,
depending upon who makes the allegation of wrongful posses
sion or trespass.
The judgment under appeal involves a serious modification of
the terms of s. 31(1). Instead of reading "Where an Indian or a
band" alleges unlawful possession by a non-Indian, it should be
understood to read "Where an Indian in respect of land
allocated to him or a band in respect of unallocated land"
makes the allegation of unlawful possession. I think that this
interpretation is erroneous and that its acceptance would under
mine the whole administration of the Act by enabling an Indian
to make an unauthorized arrangement with a non-Indian and
then, by refusing to make an individual complaint, enable the
non-Indian to remain indefinitely.
The scheme of the Indian Act is to maintain intact for bands
of Indians, reserves set apart for them regardless of the wishes
of any individual Indian to- alienate for his own benefit any
portion of the reserve of which he may be a locatee. This is
provided for by s. 28 (1) of the Act. If s. 31 were restricted as to
lands of which there is a locatee to actions brought at the
instance of the locatee, agreements void under s. 28(1) by a
locatee with a non-Indian in the alienation of reserve land
would be effective and the whole scheme of the Act would be
frustrated.
In the Devereux case, the action was for the
possession of unsurrendered land in a reserve.
Here it is the contention of the respondent that, if
the Land was land reserved for the Indians within
the meaning of section 91(24) of the B.N.A. Act at
Confederation, which is not conceded, it ceased, as
a result of the surrender of 1895, to be part of the
reserve within the meaning of the Indian Act, and
the Band's right to occupation or possession of the
Land was, to the extent that it still existed at all,
extinguished by the surrender. It is necessary now
to consider these submissions as they bear on the
right of action conferred by section 31.
I am satisfied on the evidence that the Land was
part of the Reserve that passed at Confederation
under the jurisdiction of the federal government as
land reserved for the Indians within the meaning
of section 91(24) of the B.N.A. Act. It was identi
fied by the expert testimony as being in lot 5 on
the north side of the river which was shown on the
Sadler plan as part of the Reserve. Although the
Indians had not exercised or asserted their right to
occupy the Land for many years, their right of
occupation had not been extinguished. Their con
sent to the occupation by Ebenezer Travis could
not have that effect. On the assumption that The
Royal Proclamation of 1763 applied to the territo
ry of New Brunswick, which, in my respectful
opinion, appears to be the conclusion supported by
the weight of judicial opinion to which I referred
earlier in these reasons, such an agreement would
be void under the following provisions of the Proc
lamation (R.S.C. 1970, Appendix II, No. 1 at
pages 127-128):
And We do hereby strictly forbid, on Pain of our Displeas
ure, all our loving Subjects from making any Purchases or
Settlements whatever, or taking Possession of any of the Lands
above reserved, without our especial leave and Licence for that
Purpose first obtained.
And, We do further strictly enjoin and require all Persons
whatever who have either wilfully or inadvertently seated them
selves upon any Lands within the Countries above described, or
upon any other 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 Settle
ments.
It was on the basis of these provisions that the
Exchequer Court of Canada held in The King v.
Lady McMaster [ 1926] Ex.C.R. 68, that a lease of
reserve land made by Indians in 1817 was void and
the Crown in right of Canada was entitled to
recover possession of the land. In Easterbrook v.
The King [1931] S.C.R. 210, all . ' g [1929] Ex.
C.R. 28, it was held on the basis of the same
provisions in the Proclamation that a lease made
by the same tribe in 1821 was void and the federal
Crown entitled to recover possession.
Admittedly, the question of the application of
the Proclamation is a difficult one, but my own
view is that its terms, although not free from
uncertainty at several places, are on the whole
broad enough to include the territory that became
New Brunswick. The Proclamation reserved for
the use of the Indians "all the Lands and Territo
ries not included within the Limits of Our said
Three new Governments, or within the Limits of
the Territory granted to the Hudson's Bay Com
pany, as also all the Lands and Territories lying to
the Westward of the Sources of the Rivers which
fall into the Sea from the West and the North
West as aforesaid." In the St. Catharine's Milling
case, it was held by Strong J. ((1887) 13 S.C.R.
577 at page 628) that the words "all the Lands
and Territories" in this provision must, in view of
the words in the preamble of the Proclamation,
refer to the territory "ceded and confirmed" by the
Treaty of Paris. Even on this narrow view of the
words "all the Lands and Territories", there are
two observations to be made with respect to Nova
Scotia: the first is that while Nova Scotia was a
British colony, by Article IV of the Treaty of Paris
(Shortt & Doughty, Documents relating to the
Constitutional History of Canada, Pt. I, p. 115)
France expressly renounced any claim it might
have to Nova Scotia, which would appear to
include it in territory "confirmed" to Great Britain
by the Treaty. Cape Breton, the part of Nova
Scotia involved in the Isaac case, supra, was ceded
by the Treaty, so the opinion expressed in that case
as to the application of the Proclamation to Nova
Scotia was, in so far as Cape Breton was con
cerned, securely based on the terms of the Procla
mation even if one adopts the narrow view of the
words "all the Lands and Territories". The second
observation with respect to Nova Scotia is that
part of the territory that was ceded by the Treaty
was placed outside the boundaries of the new
Government of Quebec and added to Nova Scotia
(Shortt & Doughty, op. cit., pp. 127 ff., 149). It is
my impression that this would be the territory that
later became New Brunswick. Moreover, in many
of its provisions the Proclamation refers in quite
general terms to the British colonies in North
America and to the territory under British sover
eignty, as well as to the Indians under British
protection. In the St. Catherine's Milling case,
supra, Lord Watson referred to the Proclamation
[at page 54] as having established the rights of
"all Indian tribes then living under the sovereignty
and protection of the British Crown". These other
provisions directed to the protection of Indian
rights reflect what must have been intended by the
actual declaration of reservation in the Proclama
tion. They contain such expressions as "our other
Colonies or Plantations in America", "the Security
of our Colonies" (not "our said Colonies"), "the
several Nations or Tribes of Indians with whom
We are connected, and who live under our Protec
tion", "the Possession ... of Our Dominions and
Territories as, not having been ceded to or pur
chased by Us, are reserved to them, or any of
them, as their Hunting Grounds", "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". From these
provisions I conclude that it was the intention of
the Proclamation to recognize the rights of Indians
in all territory under British sovereignty in North
America that had not been ceded to or purchased
by the Crown, with the exceptions specified,
namely, the territory included within the limits of
the new Governments of Quebec, East Florida and
West Florida, and the territory granted to the
Hudson's Bay Company. Additional to all the
territory so specified as subject to Indian rights in
the East were "all the Lands and Territories lying
to the Westward of the Sources of the Rivers
which fall into the Sea from the West and North
West as aforesaid". The "aforesaid" refers to the
earlier reference to "Lands beyond the Heads or
Sources of any of the Rivers which fall into the
Atlantic Ocean from the West and North West".
In any event, as was observed in the Lady
McMaster and Easterbrook cases, the provisions
in the first federal Indian Act of 1868 (31 Vict., c.
42) to essentially the same general effect as those
which have been quoted from the Proclamation
were really of a declaratory nature. Section 17 of
the Act of 1868 provided that "all leases, contracts
and agreements made or purporting to be made,
by any Indians or any person intermarried with
Indians, whereby persons other than Indians are
permitted to reside upon such lands, shall be abso
lutely void." Section 6 of the Act provided that
"no such lands shall be sold, alienated or leased
until they have been released or surrendered to the
Crown for the purposes of this Act", and section
10 provided that "Nothing in this Act shall con
firm any release or surrender which would have
been invalid if this Act had not been passed; and
no release or surrender of any such lands to any
party other than the Crown, shall be valid."
The Indian right to occupy the Land, which was
a right of occupation at the pleasure of the Crown,
could undoubtedly have been extinguished by the
Crown, but I can find nothing in the acts of the
Government of New Brunswick before Confedera
tion that would have that effect. Undoubtedly a
grant would have had that effect, and did with
respect to several of the lots on the north and south
sides of the river, but the mere adoption of the
policy reflected in the Act of 1844 that land in the
Reserve should be sold to settlers would not by
itself extinguish the Indian right of occupation,
where, as in the case of the Land, a sale and issue
of letters patent did not in fact take place. There is
nothing to suggest in the contemporary documen
tation that all the ungranted land in the Reserve,
including the old lot 5 on the north side of the
river, did not pass to the jurisdiction of the Domin
ion Government at Confederation by virtue of
section 91(24) of the B.N.A. Act as land reserved
for the Indians, and by section 6 of the Act of
1868, which provided: "All lands reserved for Indi-
ans or for any tribe, band or body of Indians, or
held in trust for their benefit, shall be deemed to
be reserved and held for the same purposes as
before the passing of this Act, but subject to its
provisions ...." The correspondence between the
Department of the Secretary of State and the
provincial Crown Land Office in 1867 shows the
assertion of federal jurisdiction with respect to all
ungranted land in the Reserve. The record does
not indicate why the original area of 10,000 acres
was reduced to 8,124 acres, but it is a reasonable
assumption that it was as a result of the grants
that had been made of lots on both sides of the
river. In any event, the federal government clearly
took the view, when it called for the surrender of
1895, that the ungranted lots on both sides of the
river were still part of the Reserve. It is to be noted
that the Reserve on the Little Southwest Mirami-
chi River is referred to in the surrender as one
Reserve—"The Red Bank Indian Reserve (so
called)".
The Effect of the Surrender of 1895
It is necessary now to consider the effect of that
surrender on the Indian interest and the status of
the land as land reserved for the Indians.
The surrender was made necessary by the provi
sion in section 38 of The Indian Act, R.S.C. 1886,
c. 43 (to the same effect as section 6 of the Act of
1868) that "No reserve or portion of a reserve
shall be sold, alienated or leased until it has been
released or surrendered to the Crown for the pur
poses of this Act ...." As the report recommend
ing the acceptance of the surrender indicated, the
purpose was to permit the sale of the surrendered
lots to the "squatters" who were in occupation of
them. It was made pursuant to section 39 of the
Act which stipulated the formalities by which the
will of the Band was to be expressed. There is no
issue as to compliance with these formalities. The
issue is the effect of a surrender of this kind on the
Indian title to the Land and on the status of the
Land under the Indian Act.
The Trial Judge held that the surrender of 1895
was conditional, and by implication, that it would
not have extinguished the Indian title to the Land,
although, as appears from the passage that has
been quoted from his reasons for judgment, he was
of the opinion that the Indian title had already
been extinguished by adverse possession. He put
the argument of the respondent as to the effect of
the surrender as follows [at page 657]: "Defendant
submits that the St. Catherine's decision is appli
cable to the instant case and is authority of the
highest order for holding that, upon surrender of
the lands by the Red Bank Band in 1895, the
beneficial interest and title in the subject property
vested in the Crown in right of the Province of
New Brunswick free of any Indian burden or
interest. The Queen in right of Canada would
therefore, defendant alleges, have no standing to
maintain this action." After reviewing certain of
the authorities he concluded as follows [at page
660]: "In my view the 1895 surrender was not a
definite, final surrender by the Red Bank Band to
the Crown, but merely a conditional surrender
which became absolute only upon completion of
the sale and placing of the monies to the credit of
the Band."
The conclusion of the Trial Judge on this point
was based essentially on what was said by Rand J.,
delivering the judgment of himself and Estey J. in
St. Ann's Island Shooting and Fishing Club Lim
ited v. The King [1950] S.C.R. 211, and what was
said by Maclean J.A., delivering the judgment of
the British Columbia Court of Appeal in Corpora
tion of Surrey v. Peace Arch Enterprises Ltd.
(1970) 74 W.W.R. 380. In both of these cases
there was a surrender of land in an Indian reserve
for the purpose of lease rather than sale. In the St.
Ann's case the issue was whether a lease made by
the Superintendent General of Indian Affairs was
invalid in the absence of a direction by the Gover
nor in Council as required by section 51 of the
Indian Act, R.S.C. 1906, c. 81. In the Exchequer
Court [1950] Ex.C.R. 185, Cameron J. had
expressed the opinion that the surrender was an
absolute one. With reference to this question,
Rand J. said at page 219:
I find myself unable to agree that there was a total and
definitive surrender. What was intended was a surrender suffi
cient to enable a valid letting to be made to the trustees "for
such term and on such conditions" as the Superintendent
General might approve. It was at most a surrender to permit
such leasing to them as might be made and continued, even
though subject to the approval of the Superintendent General,
by those having authority to do so. It was not a final and
irrevocable commitment of the land to leasing for the benefit of
the Indians, and much less to a leasing in perpetuity, or in the
judgment of the Superintendent General, to the Club. To the
Council, the Superintendent General stood for the government
of which he was the representative. Upon the expiration of the
holding by the Club, the reversion of the original privileges of
the Indians fell into possession.
That there can be a partial surrender of the "personal and
usufructuary rights" which the Indians enjoy is confirmed by
the St. Catherine's Milling Company Limited v. The Queen
((1888) 14 App. Cas. 46), in which there was retained the
privilege of hunting and fishing; and I see no distinction in
principle, certainly in view of the nature of the interest held by
the Indians and the object of the legislation, between a surren
der of a portion of rights for all time and a surrender of all
rights for a limited time.
But I agree that s. 51 requires a direction by the Governor in
Council to a valid lease of Indian lands.
In the Peace Arch case, lands in a Reserve were
surrendered in 1963 by the Band to the Crown "in
trust" for the purpose of leasing them, and they
were in fact leased to Peace Arch Enterprises Ltd.
The issue was whether municipal zoning and
building by-laws and provincial health regulations
applied to the leased land. The Trial Judge held
that as a result of the surrender and leasing the
land had ceased to be part of the "reserve" as
defined by section 2 of the Indian Act, R.S.C.
1952, c. 149, and as a consequence had also ceased
to be "Lands reserved for the Indians" within the
meaning of section 91(24) of the B.N.A. Act. He
accordingly concluded that the municipal by-laws
and provincial health regulations applied to the
land. In the British Columbia Court of Appeal,
Maclean J.A., basing himself in part on what was
said by Rand J. in the St. Ann's case and on
section 38(2) of the Indian Act, which provides
that "A surrender may be absolute or qualified,
conditional or unconditional", held that the sur
render was a qualified or conditional one, that it
did not extinguish the Indian title, and that it did
not have the effect of making the land cease to be
land reserved for the Indians within the meaning
of section 91(24) of the B.N.A. Act. He held that,
since the municipal zoning by-laws and provincial
health regulations would restrict the use of land
reserved for the Indians, they could not validly
apply to such land.
In characterizing the effect of the surrender,
Maclean J.A. emphasized the words "in trust" and
the particular purpose of the surrender. At pages
384-385 he said:
In my view the surrender here, a surrender to Her Majesty
"in trust to lease the same to such person or persons, and upon
such terms as the Government of Canada may deem most
conducive to our Welfare and that of our people" falls into the
class of a qualified or conditional surrender.
Under this form of surrender, "in trust" and for a particular
purpose that is "to lease the same" it seems to me that it cannot
be said the tribal interest in these lands has been extinguished.
In my respectful opinion the learned Judge below was in error
when he held that the surrender was an "unconditional" one.
After quoting the passage from the judgment of
Rand J. in the St. Ann's case, which is quoted
above, he said further at page 385:
In my view the "surrender" under the Indian Act is not a
surrender as a conveyancer would understand it. The Indians
are in effect forbidden from leasing or conveying the lands
within an Indian reserve, and this function must be performed
by an official of the Government if it is to be performed at all:
See sec. 58(3) of the Indian Act. This is obviously for the
protection of the Indians. Further, it is to be noted that the
surrender is in favour of Her Majesty "in trust". This obviously
means in trust for the Indians. The title which Her Majesty
gets under this arrangement is an empty one.
Expressing the view that the land remained land
reserved for the Indians within the meaning of
section 91(24) of the B.N.A. Act, he said at page
386:
This land was reserved for the Indians in 1887, and the Indians
still maintain a reversionary interest in it.
At page 387 there are these words:
It might well be (but it is not necessary for me to decide)
that if an absolute surrender were made by the Indians under
the Indian Act, and this surrender was followed by a convey
ance from the Government to a purchaser the land would cease
to be a reserve under the Indian Act and would also cease to be
"lands reserved for the Indians" under sec. 91(24) of the
B.N.A. Act, 1867, but that is not the case here.
Although I confess to considerable perplexity on
this issue, I strongly doubt that the conclusion in
the Peace Arch case as to the effect of the surren
der on the Indian title is applicable to a surrender
in trust for the purpose of sale rather than lease.
The whole purpose of such a surrender is to permit
title to the land to be conveyed free of the burden
of the Indian title. Whereas it is possible to speak
of a reversionary interest in the case of a surrender
for the purpose of lease, since upon termination of
the lease the Indian right of occupation will revive,
the same cannot be said, in my opinion, of a
surrender for the purpose of sale. After the surren
der of 1895 I do not see how the Indians could at
any time claim a right to occupy the Land. Their
interest thereafter in the Land was in its sale and
the application of the proceeds of sale for their
benefit. It was a financial interest. The surrender
of 1895 appears to have been the form of surren
der for the purpose of sale generally used in the
1880's and 1890's: see Indian Treaties and Sur
renders, Vol. II, pages 96, 122, 170, 229, 258, 264;
Vol. III, pp. 31, 163, 175, 180, 209, 227, 250, and
303, for examples of surrenders "in trust" for the
purpose of sale and the application of the proceeds
for the benefit of the Band. If that form of surren
der did not have the effect of extinguishing the
Indian title then I am unable to conceive of one
that would have that effect. The whole point of the
Privy Council decisions in the St. Catherine's
Milling case and in the Star Chrome case was that
the surrender had the effect of extinguishing the
Indian title before any further disposition of the
property. It was not the subsequent disposition, the
validity of which was in issue, that extinguished
the Indian interest.
In St. Catherine's Milling the surrender was by
treaty in return for certain monetary consideration
and undertakings by the Crown, including an
undertaking to set aside certain reserves and an
agreement that the Indians should continue to
have the right to hunt and fish on the surrendered
land, subject to certain conditions. It was the
reservation of the privilege of hunting and fishing
that apparently led Rand J. in the St. Ann's case
to refer to the surrender as a partial one, but
subject to this qualification there was no question
that the Privy Council held the Indian title to have
been extinguished and the beneficial interest in the
land to have vested in the Province. As Lord
Watson put it at page 55—"there has been all
along vested in the Crown a substantial and para
mount estate, underlying the Indian title, which
became a plenum dominium whenever that title
was surrendered or otherwise extinguished." The
issue was the right of the Dominion Government to
appropriate the beneficial interest in the timber on
the surrendered land, and Lord Watson said at
page 60: "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 bound
aries of Ontario being the property of that Prov
ince. The fact, that it still possesses exclusive
power to regulate the Indians' privilege of hunting
and fishing, cannot confer upon the Dominion
power to dispose, by issuing permits or otherwise,
of that beneficial interest in the timber which has
now passed to Ontario."
In the Star Chrome case there was a surrender
"With the object of the lands in question being
sold for the benefit of our said Band, and the
money received from the sale being expended for
the purchase of land in a more suitable locality, or
the money otherwise invested for our benefit": see
Indian Treaties and Surrenders, Vol. II, page 108.
Duff J., who delivered the judgment of the Privy
Council, said at page 406: "On the other hand, if
the view advanced by the Province touching the
nature of the Indian title be accepted, then it
follows from the principle laid down by the deci
sion of this Board in St. Catherine's Milling and
Lumber Co. v. The Queen ... that upon the sur
render in 1882 of the Indian interest the title to
the lands affected by the, surrender became vested
in the Crown in right of the Province, freed from
the burden of that interest." The provincial con
tention based on St. Catherine's Milling was
upheld, with the consequence that the Dominion
Government could not convey a valid title to the
surrendered land. The surrender of 1882 did not
contain the words "in trust", but I cannot think,
given its declared purpose, which was essentially
the same as that of the surrender of 1895, that
that circumstance can make a difference.
In the Seybold case, supra, which held that the
Dominion Government did not have the power by
virtue of its legislative jurisdiction under section
91(24) of the B.N.A. Act to appropriate provincial
land for the purposes of a reserve, Lord Davey said
at page 79 that in the St. Catherine's Milling case
it had been decided "that prior to that surrender
the province of Ontario had a proprietary interest
in the land, under the provisions of s. 109 of the
British North America Act, 1867, subject to the
burden of the Indian usufructuary title, and upon
the extinguishment of that title by the surrender
the province acquired the full beneficial interest in
the land subject only to such qualified privilege of
hunting and fishing as was reserved to the Indians
in the treaty." A part of the Indian Reserve 38B
that had been set apart by the Dominion Govern
ment to carry out the terms of the treaty had been
subsequently surrendered by the Indians to the
Crown in trust for the purpose of sale and the
application of the proceeds for the benefit of the
Indians. In the Ontario High Court, (1900) 31
O.R. 386, Chancellor Boyd had expressed the
opinion that this surrender had again extinguished
the Indian title in the land. He said at pages
395-396: "The treaty land was, in this case, set
apart out of the surrendered territory by the
Dominion: that is to say, the Indian title being
extinguished for the benefit of the Province, the
Dominion assumed to take of the Provincial land
to establish a treaty reserve for the Indians. Grant
ed that this might be done, yet when the subse
quent surrender of part of this treaty reserve was
made in 1886, the effect was again to free the part
in litigation from the special treaty privileges of
the land and to leave the sole proprietary and
present ownership in the Crown as representing
the Province of Ontario. That is the situation as
far as the title to the lands is concerned." In the
Privy Council Lord Davey said at page 84 with
reference to this opinion: "It is unnecessary for
their Lordships, taking the view of the rights of the
two Governments which has been expressed, to
discuss the effect of the second surrender of 1886.
Their Lordships do not, however, dissent from the
opinion expressed by the Chancellor of Ontario on
that question."
In The Attorney-General for Canada v. Giroux
(1916) 53 S.C.R. 172, the issue was whether land
in a reserve that had been surrendered could be
validly sold to an Indian. The Supreme Court of
Canada held that it could. The surrender was to
the Crown in trust for the purpose of sale and the
application of the proceeds for the benefit of the
Band. Duff J., with whom Anglin J. concurred,
said at page 197: "The surrender of that ownership
in trust under the terms of the instrument of 1868
cannot be held, without entirely defeating the
intention of it, to have the effect of destroying the
beneficial interest of the Indians." But that conclu-
sion was based on the view that under the legisla
tion with respect to Indian reserves that was appli
cable in Lower Canada before Confederation the
interest of the Indians in the reserves was one of
beneficial ownership. Duff J. distinguished that
interest from the right under The Royal Proclama
tion of 1763 that had been characterized in St.
Catherine's Milling as a personal and usufructu-
ary one dependent upon the goodwill of the Crown.
That view of the nature of the Indian interest
created by the pre-Confederation legislation in
Lower Canada would appear to have been rejected
by the Privy Council in the Star Chrome case.
With reference to the nature of the right created
by the pre-Confederation legislation the Privy
Council said—"their Lordships think the conten
tion of the Province to be well founded to this
extent, that the right recognized by the statute is a
usufructuary right only and a personal right in the
sense that it is in its nature inalienable except by
surrender to the Crown." In my respectful opinion
it is a clear implication of the decision in the Star
Chrome case that what was said by Duff J. in
Giroux concerning the nature of the Indian inter
est and the effect of the surrender on it is not to be
taken as expressing the law.
In view of the conclusion in the Star Chrome
case, I do not see how it is possible to hold that the
surrender of 1895 did not have the effect of extin
guishing the Indian right of occupation or posses
sion in respect of the Land. Although on the
appeal the appellant understandably adopted the
view that was taken by the Trial Judge on this
point, it will be recalled that in the reply to the
defence the position that was taken was that prior
to the surrender the title of the Crown was subject
only to the personal and usufructuary right of the
Red Bank Band of Indians "and that after such
surrender and its acceptance the title of Her
Majesty the Queen was and continues to be sub
ject only to the conditions of the said surren
der ...". In the result, it is my conclusion that in
so far as the appellant's action purports to assert
the Band's right to possession of the Land it is
without foundation.
Further to the application of section 31 of the
Indian Act, there is also in my opinion a serious
question as to whether the Land remains part of
the Reserve as defined by the Act, or put another
way, whether the word "reserve" in section 31
includes "surrendered lands" within the meaning
of the Act. The relevance of this question is that
section 31 contemplates an encroachment on the
"reserve" and by implication the recovery of
possession of land in a reserve.
From 1876 the federal Indian legislation has
distinguished between the "reserve", as defined by
the Act, and surrendered land in a reserve, former
ly known as "Indian lands" and now known as
"surrendered lands". The definitions of "reserve"
and "Indian lands" in The Indian Act, 1876, S.C.
1876, c. 18, section 3(6) and (8), were as follows:
3....
6. The term "reserve" means any tract or tracts of land set
apart by treaty or otherwise for the use or benefit of or granted
to a particular band of Indians, of which the legal title is in the
Crown, but which is unsurrendered, and includes all the trees,
wood, timber, soil, stone, minerals, metals, or other valuables
thereon or therein.
8. The term "Indian lands" means any reserve or portion of a
reserve which has been surrendered to the Crown.
These were the definitions of "reserve" and "Indi-
an lands" in The Indian Act, 1880 (43 Vict., c. 28,
section 2(6) and (8)). In The Indian Act, R.S.C.
1886, c. 43, which applied when the surrender of
1895 took place, the express exclusion of surren
dered land was removed from the definition of
"reserve" in section 2 (k.) which read as follows:
2....
(k.) The expression "reserve" means any tract or tracts of
land set apart by treaty or otherwise for the use or benefit of or
granted to a particular band of Indians, of which the legal title
is in the Crown, and which remains a portion of the said
reserve, and includes all the trees, wood, timber, soil, stone,
minerals, metals and other valuables thereon or therein;
The express exclusion of surrendered land was
restored to the definition of "reserve" in the Indian
Act, R.S.C. 1906, c. 81, section 2(i) which read as
follows:
2....
(i) `reserve' means any tract or tracts of land set apart by
treaty or otherwise for- the use or benefit of or granted to a
particular band of Indians, of which the legal title is in the
Crown, and which remains so set apart and has not been
surrendered to the Crown, and includes all the trees, wood,
timber, soil, stone, minerals, metals and other valuables thereon
or therein;
This was the definition of "reserve" in the Indian
Act, R.S.C. 1927, c. 98, section 2(j), which
remained in force until the present Indian Act was
adopted in 1951.
The expression of opinion, express or implied, in
the Giroux case, supra, at pages 176, 199 and 201,
that the surrendered land had ceased to be part of
the reserve was based on the definition of
"reserve" in the Act of 1876. In the St. Ann's case,
at pages 212 and 215 there was a similar expres
sion of opinion based on the definition of "reserve"
in the Act of 1906.
The definitions of "reserve" and "surrendered
lands" in section 2 of the present Act are as
follows:
2. (1) ...
"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;
"surrendered lands" means a reserve or part of a reserve or any
interest therein, the legal title to which remains vested in Her
Majesty, that has been released or surrendered by the band
for whose use and benefit it was set apart.
There is no doubt that the Land falls within the
definition of "surrendered lands". It will be noted
that the definition of "reserve" does not expressly
exclude surrendered land as it did until 1951. This
might appear to decide the question. Moreover, the
definition of reserve might be read so as to mean
that, so long as land has in the past been set aside
for the use and benefit of a band and the legal title
to it remains vested in Her Majesty, it remains
part of the reserve as defined by the Act. "Surren-
dered lands", which are defined as "a reserve or
part of a reserve . .. the legal title to which
remains vested in Her Majesty ..." would in
effect be merely a particular part of a reserve as
defined by the Act. This view is, however, exclud
ed in my opinion by other provisions of the Act
which indicate that when the Act uses the word
"reserve" alone, as in section 31, it does not intend
to refer to surrendered lands as well as to the
unsurrendered part of a reserve. I draw this con
clusion from the provisions of the Act in which the
words "surrendered lands" are used in addition to
the words "reserve" or "reserve lands". See, for
example, section 2(2)—"The expression `band'
with reference to a reserve or surrendered lands
means the band for whose use and benefit the
reserve or the surrendered lands were set apart";
section 4(2)(b)—"any reserve or any surrendered
lands or any part thereof"; section 57(a) —
"authorizing the Minister to grant licences to cut
timber on surrendered lands, or, with the consent
of the council of the band, on reserve lands";
section 59(a)—"reduce or adjust the amount pay
able to Her Majesty in respect of a sale, lease or
other disposition of surrendered lands or a lease or
other disposition of lands in a reserve ..."; section
64(b)—"... water courses on the reserves or on
surrendered lands"; section 64(i)—"... the man
agement of lands on a reserve, surrendered lands
and any band property"; section 87(a)—"the in
terest of an Indian or a band in reserve or surren
dered lands ...." The administrative authority
with respect to reserve and surrendered lands is
separately provided for in the Act: see sections 18
and 53. Section 21, under the heading "Possession
of Lands in Reserves", provides that "There shall
be kept in the Department a register, to be known
as the Reserve Land Register, in which shall be
entered particulars relating to Certificates of
Possession and Certificates of Occupation and
other transactions respecting lands in a reserve."
Section 55(1), under the heading "Management of
Reserves and Surrendered Lands", provides that
"There shall be kept in the Department a register,
to be known as the Surrendered Lands Register, in
which shall be entered particulars in connection
with any lease or other disposition of surrendered
lands by the Minister or any assignment thereof."
In view of this use of the expressions "reserve" and
"surrendered lands" in the Act, I find the conclu
sion unavoidable that when the Act uses the word
"reserve" in section 31 it does not include surren
dered lands.
The result is that the appellant's recourse cannot
rest on section 31, both because the Land is not
part of the Reserve within the meaning of the Act,
and because the Band does not have a right to the
occupation or possession of the Land. It remains to
be considered whether the appellant's recourse can
exist apart from that section. Section 31 is not
intended to limit the recourses of the Crown in
respect of land governed by the Act, as appears
from subsection (3) thereof which provides,
"Nothing in this section shall be construed to
impair, abridge or otherwise affect any right or
remedy that, but for this section, would be avail
able to Her Majesty or to an Indian or a band."
The Information alleges that the Land is vested
in Her Majesty. I read this not as an indication
that the action is based on title to the Land being
in the Crown in right of Canada, but as an indica
tion that the Land meets one of the essential
conditions of the definitions of "reserve" and "sur-
rendered lands" in the Act—that the legal title to
it remains vested in Her Majesty. But in so far as
the action could be based on title to the Land it
would have to rest on the effect of the agreement
of 1958 between New Brunswick and Canada. The
effect of that agreement, in so far as the Land is
concerned, must be considered now.
Effect of the Agreement of 1958
The agreement has a bearing not only on the
basis of the appellant's action but on the question
whether title to the Land could be acquired by
adverse possession after 1958. If the agreement
transferred the provincial right and interest in the
Land to Canada the Land would fall within the
definition of "public lands" in section 2 of the
Public Lands Grants Act, R.S.C. 1970, c. P-29
and would be subject to section 5 of the Act which
reads:
5. No right, title or interest in or to public lands is acquired
by any person by prescription.
The relevant provisions of the agreement were
quoted earlier in these reasons. The issue is wheth
er it was intended in paragraph 3 to transfer all
right and interest of the Province in land in a
reserve that had been surrendered for the purposes
of sale but never sold or otherwise disposed of. The
paragraph transfers the right and interest of the
Province in "reserve lands", which are defined by
the agreement as "those reserves in the Province
referred to in the appendix to this agreement."
The Appendix, as indicated earlier, contains refer
ence to the Red Bank Indian Reserve No. 4, the
location of which is described as being "South of
the Little Southwest Miramichi River", and to the
Red Bank Indian Reserve No. 7, the location of
which is described as being "North of the Little
Southwest Miramichi River". The respondent
points out that these descriptions show the two
Reserves as not being bounded by the river and not
being contiguous. He also points out that these
descriptions generally conform to the location of
the Reserves shown on contemporary government
maps, such as Exhibit D-1. This was conceded by
Mr. McLelland in his testimony. The respondent
contrasts the descriptions of the location of the two
Red Bank Reserves with the descriptions of the
location of other Reserves in the Appendix to the
agreement which show them as having a boundary
on a river: No. 3—Eel River; No. 10—St. Basile;
No. 15—Richibucto; No. 16—Buctouche; No. 2—
Eel Ground; No. 8—Big Hole Tract; No. 9—
Tabusintac; No. 14—Burnt Church; and No. 12—
Renous. From these circumstances the respondent
argues that the Red Bank Indian Reserve Number
7, in which the Province intended to transfer its
right and interest, did not include the lots that
extend to the river, and in particular, lot 6, which
includes the Land. There is in my opinion much
force in this contention.
It is quite clear that at some point in time the
original Reserve, which was divided by the river
and which was referred to in the surrender of 1895
as a single Reserve—"The Red Bank Indian
Reserve (so called)"—became two distinct and
separate Reserves: the Red Bank Indian Reserve
Number 4 and the Red Bank Indian Reserve
Number 7. The land between them, consisting of
the lots that had been occupied by settlers on both
sides of the river, had either been granted or was
surrendered land that had not been sold. The
southern boundary of what came to be known as
the Red Bank Indian Reserve Number 7 was the
northern boundary of the lots on the north side of
the river, known to local residents as the "Indian
line" or "base line". The surrendered land that
had not been sold fell between 1895 and 1951
within the definition of "Indian lands" and after
wards within the definition of "surrendered lands"
in the Indian Act. Although a part of what had
originally been set aside as the Reserve, and thus
for some purposes still referred to as being in the
Reserve (as in the Carter Report of 1898 and the
Fish survey plans of 1901, 1904 and 1919), it was
no longer part of what was meant by "reserve" in
the Act.
The purpose of the agreement of 1958 was
twofold: to confirm the title to surrendered land
that had been conveyed by federal letters patent in
the past; and to permit the federal government in
the future to convey good title to surrendered land.
Its purpose was to resolve the practical problem
that had been created by the decisions of the Privy
Council in the St. Catherine's Milling and Star
Chrome cases. In the words of the agreement, the
parties entered into it "to settle all outstanding
problems relating to Indian reserves in the Prov
ince of New Brunswick and to enable Canada to
deal effectively in future with lands forming part
of said reserves ...." It was this avowed purpose
that led the learned Trial Judge to conclude that
there was an intention to transfer the provincial
right and interest in surrendered land that had not
been sold.
There is, of course, much force in this position
from a practical point of view. On the other hand,
the agreement specifically provides in paragraph 6
for the disposition of surrendered lands. It is clear
that it is referring there to land that is surrendered
after the signing of the agreement since the Prov
ince is to have the right to purchase such land.
Surrendered land which the Province might elect
to purchase is necessarily land in which the provin
cial right and interest has been transferred by the
agreement. In view of this special and limited
provision for the disposition of land surrendered
for the purpose of sale, I am unable to infer from
the terms of the agreement as a whole, an inten
tion to provide for the disposition of land that had
been surrendered for sale but not yet sold before
the agreement. In my view, it is a reasonable
conclusion from the terms of the agreement and
the description of the Red Bank Reserves, as well
as the surrounding circumstances, that the govern
ments did not intend to provide in the agreement
for the disposition of the lots fronting on the river
that were surrendered in 1895 but had not been
granted at the time of the agreement. Their future
disposition, if any, was left in effect to special
agreement or cooperation between the two govern
ments. Indeed, there is no reason to conclude from
the circumstances of this case that at the time of
the agreement in 1958 the two governments would
be concerned about the disposition of land that
had been surrendered in 1895 but never sold. In
the result, the title to the Land was not in my
opinion affected by the agreement of 1958. As a
consequence an action for possession of the Land
by the Crown in right of Canada cannot be based
on title to the Land.
It remains to be considered whether the Crown
in right of Canada may bring an action for the
possession of surrendered lands based on the con
tinuing jurisdiction and responsibility of the feder
al government with respect to such lands under the
Indian Act. In my opinion, the answer to this
question must be in the affirmative. I agree with
the conclusion of the British Columbia Court of
Appeal in the Peace Arch case that, whether or not
surrendered lands remain part of the reserve as
defined by the Indian Act, they remain, until
finally disposed of, lands reserved for the Indians
within the meaning of section 91(24) of the B.N.A.
Act, and - as such within federal legislative jurisdic
tion. The category of surrendered lands is a cate
gory created by Parliament in the exercise of its
exclusive legislative jurisdiction with respect to
lands reserved for the Indians. Because of the
federal government's continuing responsibility for
the control and management of such land until its
final disposition in accordance with the terms of a
surrender, surrendered land must remain within
federal legislative and administrative jurisdiction.
It is land that is still held for the benefit of the
Indians, although they have agreed to accept the
proceeds of sale of it in place of their right of
occupation. The continuing federal control and
management of surrendered land has since 1876
been reflected in the provisions of the Indian Act.
Section 41 of The Indian Act, R.S.C. 1886, c. 43,
which applied to the surrender of 1895, read as
follows:
41. All Indian lands, which are reserves or portions of
reserves, surrendered or to be surrendered to Her Majesty, shall
be deemed to be held for the same purposes as before the
passing of this Act; and shall be managed, leased and sold as
the Governor in Council directs, subject to the conditions of
surrender and the provisions of this Act.
Section 53(1) of the present Indian Act provides:
53. (1) The Minister or a person appointed by him for the
purpose may manage, sell, lease or otherwise dispose of surren
dered lands in accordance with this Act and the terms of the
surrender.
I do not think there can be any question as to
the constitutional validity, at least in so far as
continuing control and management are con
cerned, of section 53. The terms of the correspond
ing provision in section 51 of the Indian Act,
R.S.C. 1906, c. 81, were applied by the Supreme
Court of Canada in the St. Ann's case, supra.
There is, of course, a question as to the validity of
the purported authority to sell where there has not
been a transfer of the provincial interest in the
land to Canada. Speaking of the result of the St.
Catherine's Milling case Lord Davey said in
Ontario Mining Company, Limited v. Seybold,
supra, at page 79: "Their Lordships think that it
should be added that the right of disposing of the
land can only be exercised by the Crown under the
advice of the Ministers of the Dominion or prov
ince, as the case may be, to which the beneficial
use of the land or its proceeds has been appropriat
ed, and by an instrument under the seal of the
Dominion or the province." But this issue does not
affect the existence and validity of the continuing
power of control and management of land that has
been surrendered for sale and the application of
the proceeds for the benefit of the band, but has
not yet been sold.
There is authority to support the conclusion that
the Crown in right of Canada has, as an incident
of this power of control and management, the right
to bring an action to recover the possession of
surrendered land. The principle has been affirmed
in decisions involving land in a reserve within the
meaning of the Indian Act but, in my opinion, it
must logically be equally applicable to surrendered
lands within the meaning of the Act, since essen
tially the same federal power and responsibility is
involved.
The general principle that the Crown in right of
Canada has the right to sue in respect of land in a
reserve although the title to the land is in the
Crown in right of a province was enunciated by the
Quebec Court of Appeal in Mowat, Attorney-
General for the Dominion of Canada & Casgrain,
Attorney-General for the Province of Quebec
(1897) 6 Que. Q.B. 12. The case involved an
action by the Attorney General of Canada for
arrears of seigneurial rent owing in respect of land
reserved for the Indians. The Attorney General for
Quebec intervened and contended that the rent
could only be claimed by the Province. Wurtele J.,
who delivered the reasons of the Court of Appeal,
said at page 24 that "the power and right of
legislating respecting Indians and land reserved for
the Indians entrusts the Government of the
Dominion with the administration and control of
the affairs and of the lands and property of the
Indians", and at page 26 he said:
The question to be decided does not relate to the ownership
of these constituted Seigniorial rents but is as to whom it
appertains to sue for, recover, and collect the arrears? By the
Union Act, the Government of the Dominion is entrusted with
the administration of the affairs and property of the Indians in
Canada, and under the Indian Act the control and management
of their lands and property is confided to the department of
Indian affairs, under the charge and direction of the Superin
tendent General of Indian affairs, who is authorized, as was the
Commissioner of Indian lands before Confederation, to collect
and receive the rents, issues and profits of the lands and
property appropriated for Indians and to apply the same to
their use. The Government to which such control and manage
ment is entrusted must necessarily have as a corollary the right
to sue whenever the affairs of the trust require such action.
In The King v. Lady McMaster, supra, Maclean J.
said at page 75:
The power of the Crown to manage and legislate in respect of
Indian lands, surely implies the right to bring action to recover
or protect any interest of the Indians in such lands. The Indian
Act, chap. 81, R.S.C. 1906, sec. 4, states that the Minister of
the Interior shall be Superintendent General of Indian Affairs
and shall have the control and management of the land and
property of the Indians in Canada. The corresponding legisla
tion, in force at the time the defendant went into possession of
Thompson's Island, contained a similar provision. To seek
recovery of possession of the lands in question, believed to be
improperly in the defendants, is incident to the control and
management of such lands, and is not I think to be confused
with a claim on the part of the Crown asserting title to such
lands either in the right of the Dominion or of a province.
Mowatt, Attorney General v. Casgrain, Attorney General ... .
In conclusion, then, I am of the opinion that the
right to possession of the Land which is claimed by
the Crown in right of Canada in its own right is
one which rests on the power of control and man
agement of the Land which the Government of
Canada has by virtue of the legislative jurisdiction
conferred by section 91(24) of the B.N.A. Act and
the terms of the Indian Act. It is necessary to
consider now whether that right to possession can
be validly affected by the provincial law with
respect to the limitation of actions for the recovery
of land.
Application of Provincial Statute of Limitations
The respondent invokes the provisions of the
New Brunswick legislation with respect to the
limitation of actions for the recovery of land by the
Crown, which, as sections 1 and 26 of chapter 139
of the Revised Statutes of New Brunswick of
1854, entitled "Of the Limitation of Actions in
Real Property", read as follows:
1. No claim for lands or rent shall be made, or action
brought by Her Majesty, after a continuous adverse possession
of sixty years.
26. At the determination of the period limited by this Chap
ter to any person for making an entry or bringing an action or
suit, the right and title of such person to the land for the
recovery whereof such entry, action, or suit respectively might
have been made or brought within such period, shall be
extinguished.
The numbering of these sections was changed at
one point, but the provisions remained unchanged
throughout the period in question and may be
traced through successive consolidations of the
statutes of New Brunswick as follows: C.S.N.B.
1877, c. 84, ss. 1 and 26; C.S.N.B. 1903, c. 139, ss.
1 and 26; R.S.N.B. 1927, c. 145, ss. 1 and 26;
R.S.N.B. 1952, c. 133, ss. 30 and 60; R.S.N.B.
1973, c. L-8, ss. 30 and 60. Prior to 1854 there was
an Act of 1836 (6 William IV, c. 43) which
established a twenty-year limitation period for
actions for the recovery of land but it did not apply
to actions by the Crown. Counsel for the appellant
submitted that the Nullum Tempus Act of 1769 (9
Geo. III, c. 16), which provided a sixty-year period
of limitation of actions by the Crown for the
recovery of land, was not in force in New Bruns-
wick. Based on the date which the Courts of New
Brunswick have held to be the date of reception of
English statutes in the Province, namely, 1660,
this would indeed appear to be the case. See Scott
v. Scott (1970) 2 N.B.R. (2d) 849. For the differ
ence of opinion that has existed as to the correct
date of reception in New Brunswick see Bell, "A
Note on the Reception of English Statutes in New
Brunswick" (1979) 28 U.N.B.L.J. 195. I note that
in Emmerson v. Maddison [1906] A.C. 569, Sir
Alfred Wills, delivering the judgment of the Privy
Council, referred at page 574 to the applicable
limitation of actions law in New Brunswick as the
"Nullum Tempus Act", but that would appear to
have been simply a general reference to the char
acter of the legislation. There is no doubt, as that
case indicates, that the earlier statute with respect
to the recovery of land by the Crown, 21 Jac. 1, c.
14, was in force in the Province, but that statute is
not in issue in the present case.
I should also observe that there was no reference
in argument to section 38(2) of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, which pro
vides that except as expressly provided by any
other Act, the laws relating to prescription and
limitation of actions in force in any province be
tween subject and subject apply to any proceedings
brought by the Crown. In effect, it is the conten
tion of the respondent that the foundation of the
appellant's action was removed by the application
of the provincial law long before section 38 of the
Federal Court Act took effect on June 1, 1971.
The respondent claims that he has title to the
Land by virtue of a continuous adverse possession
of at least sixty years by himself and his predeces
sors in title. What this amounts to is a claim that
the title to the Land of the Crown in right of the
Province was extinguished by adverse possession,
and with it the Indian title and the right to posses
sion of the Crown in right of Canada, which are
based on the status of the Land as reserve land or
surrendered land under federal jurisdiction. If the
title of the Crown was extinguished then the Land
ceased by definition to be reserve land or "Indian
lands" or "surrendered lands" subject to the
Indian Act. The issue, then, is whether this could
validly take place by operation of the provincial
statute of limitations.
The extent to which provincial laws of general
application may apply within Indian reserves has
been the subject of commentary by the Supreme
Court of Canada in recent years, although the
right to possession of land in a reserve was not in
issue. In Cardinal v. The Attorney General of
Alberta [ 1974] S.C.R. 695, Martland J., deliver
ing the judgment of the majority of the Court, said
at page 703:
A Provincial Legislature could not enact legislation in rela
tion to Indians, or in relation to Indian Reserves, but this is far
from saying that the effect of s. 91(24) of the British North
America Act, 1867, was to create enclaves within a Province
within the boundaries of which Provincial legislation could have
no application. In my opinion, the test as to the application of
Provincial legislation within a Reserve is the same as with
respect to its application within the Province and that is that it
must be within the authority of s. 92 and must not be in
relation to a subject-matter assigned exclusively to the Canadi-
an Parliament under s. 91. Two of those subjects are Indians
and Indian Reserves, but if Provincial legislation within the
limits of s. 92 is not construed as being legislation in relation to
those classes of subjects (or any other subject under s. 91) it is
applicable anywhere in the Province, including Indian Reserves,
even though Indians or Indian Reserves might be affected by it.
My point is that s. 91(24) enumerates classes of subjects over
which the Federal Parliament has the exclusive power to legis
late, but it does not purport to define areas within a Province
within which the power of a Province to enact legislation,
otherwise within its powers, is to be excluded.
In reviewing the cases with respect to the
application of provincial laws to activity within a
reserve, Martland J. referred to the decision of the
British Columbia Court of Appeal in the Peace
Arch case, supra. He said at pages 704-705:
In Corporation of Surrey v. Peace Arch Enterprises Ltd.
((1970) 74 W.W.R. 380), the situation was different. It
involved lands in an Indian Reserve which had been "surren-
dered" in trust to the Federal Crown for the purpose of leasing.
The issue was as to whether the lands were subject, in their use
by the lessees, who were non-Indians, to certain municipal
by-laws and to regulations under the Provincial Health Act.
The Court found that the lands in question were still "lands
reserved for the Indians" and, that being so, only the Federal
Parliament could legislate as to the use to which they might be
put. The Morley case is not mentioned in the judgment and I
presume that this was so because the cases were not considered
as parallel. Once it was determined that the lands remained
lands reserved for the Indians, Provincial legislation relating to
their use was not applicable.
Laskin J. (as he then was) said in the same case at
page 715:
Apart entirely from the exclusive power vested in the Parlia
ment of Canada to legislate in relation to Indians, its exclusive
power in relation also to Indian Reserves puts such tracts of
land, albeit they are physically in a Province, beyond provincial
competence to regulate their use or to control resources there
on. This is not because of any title vested in the Parliament of
Canada or in the Crown in right of Canada, but because
regardless of ultimate title, it is only Parliament that may
legislate in relation to Reserves once they have been recognized
or set aside as such.
In The Natural Parents v. The Superintendent
of Child Welfare [1976] 2 S.C.R. 751, Laskin
C.J.C., speaking of the kind of case in which
exclusive federal legislative jurisdiction with
respect to a particular subject-matter will exclude
the application of provincial laws of general
application, said at pages 759-760:
There was no challenge in this Court to the general and
long-established proposition found in Union Colliery Co. of
British Columbia Ltd. v. Bryden ([1899] A.C. 580), at p. 588
that "the abstinence of the Dominion Parliament from legislat
ing to the full limit of its powers could not have the effect of
transferring to any provincial legislature the legislative power
which had been assigned to the Dominion by s. 91 of the Act of
1867". It cannot be said therefore that because a provincial
statute is general in its operation, in the sense that its terms are
not expressly restricted to matters within provincial compe
tence, it may embrace matters within exclusive federal compe
tence. Thus, to take an example, it has been held by this Court
that general mechanics' lien legislation of a province could not
be enforced against the property of an interprovincial pipe line:
Campbell-Bennett Ltd. v. Comstock Midwestern Ltd. ([1954]
S.C.R. 207). Again, provincial minimum wage legislation was
held inapplicable to the employees of an interprovincial com
munications enterprise: see Minimum Wage Commission v.
Bell Telephone Co. of Canada Ltd. ([1966] S.C.R. 767), and,
similarly, inapplicable to employees of a local contract post
master: see Reference re Saskatchewan Minimum Wage Act
([1948] S.C.R. 248). This is because to construe the provincial
legislation to embrace such activities would have it encroaching
on an exclusive federal legislative area. On the other hand,
provincial hours of work legislation was held applicable to
employees of a hotel owned and operated by a railway company
but not as an integral part of its transportation system: see
C.P.R. v. Attorney General of British Columbia ([1950] A.C.
122).
In the same case Martland J. spoke to similar
effect at pages 774-775:
There have been cases in which it has been held that some
provincial legislation of general application would not be appli
cable to a corporation or institution subject to exclusive federal
control. In Campbell-Bennett Limited v. Comstock Midwest-
ern Ltd. ([1954] S.C.R. 207), it was held that a federally
incorporated company which was incorporated for the purpose
of transporting oil by means of interprovincial and international
pipe lines, and thus was a work or undertaking within the
exclusive jurisdiction of Parliament, was not subject to a
mechanic's lien registered under provincial legislation, because
such legislation would permit the sale of the undertaking
piecemeal and thus nullify the purpose for which it was
incorporated.
The case of Minimum Wage Commission v. The Bell Tele
phone Company of Canada ([1966] S.C.R. 767), held that a
company which had been declared to be a work for the general
advantage of Canada was not subject to having its employer-
employees relationships affected by a provincial minimum wage
statute. Similarly, in Reference re Saskatchewan Minimum
Wage Act ([1948] S.C.R. 248), it was decided that provincial
minimum wage requirements would be inapplicable to an
employee who was a part of the Postal Service.
McKay v. Her Majesty The Queen ([1965] S.C.R. 798) held
that a municipal zoning regulation governing the erection of
signs on residential properties could not preclude the erection of
a sign to support a candidate in a federal election.
Each of these cases was concerned with a particular statute
which had the effect of restricting an enterprise or activity
within exclusive federal jurisdiction. The Adoption Act is not
legislation of this kind. It does not restrict the rights of Indians.
In subsequent decisions the Court has empha
sized that Indian reserves are not federal enclaves
that are totally immune from the application of
provincial law. In Construction Montcalm Inc. v.
The Minimum Wage Commission [ 1979] 1 S.C.R.
754, Beetz J., delivering the judgment of the
majority, said at pages 777-778:
The enumeration of exclusive federal powers in s. 91 of the
Constitution, including the power to make laws in relation to
the public debt and property, operates as a limitation ration
materiae upon provincial jurisdiction, not as a territorial limita
tion. The impugned provisions relate neither to federal property
nor to any other federal subject but to civil rights and, in my
view, they govern the civil rights of Montcalm and its
employees on federal property. Federal Crown lands do not
constitute extra-territorial enclaves within provincial bound-
aries any more than indian reserves. What Martland J. wrote
for the majority of this Court in Cardinal v. Attorney General
of Alberta ([1974] S.C.R. 695), at p. 703, with respect to
indian reserves is equally applicable to federal Crown lands:
In my opinion, the test as to,the application of Provincial
legislation within a Reserve is the same as with respect to its
application within the Province and that is that it must be
within the authority of s. 92 and must not be in relation to a
subject-matter assigned exclusively to the Canadian Parlia
ment under s. 91. Two of those subjects are Indians and
Indian Reserves, but if Provincial legislation within the limits
of s. 92 is not construed as being legislation in relation to
those classes of subjects (or any other subject under s. 91), it
is applicable anywhere in the Province, including Indian
Reserves, even though Indians or Indian Reserves might be
affected by it. My point is that s. 91(24) enumerates classes
of subjects over which the Federal Parliament has the exclu
sive power to legislate, but it does not purport to define areas
within a Province within which the power of a Province to
enact legislation, otherwise within its powers, is to be
excluded.
In Four B Manufacturing Limited v. United
Garment Workers of America [1980] 1 S.C.R.
1031, Beetz J., again delivering the judgment of
the majority of the Court, said at pages
1049-1050:
Counsel for appellant has also stressed that the civil rights in
issue are not only the civil rights of Indians, but Indian civil
rights exercised on a reserve. The import of this submission, as
I understand it, is that the exclusive character of federal
jurisdiction is somehow reinforced because it is derived from
two related heads of federal authority instead of one, federal
authority over Indians and over Lands reserved for the Indians.
In my view, this submission is an attempt to revive the
enclave theory of the reserves in a modified version: provincial
laws would not apply to Indians on reserves although they
might apply to others. The enclave theory has been rejected by
this Court in Cardinal v. Attorney-General for Alberta ([1974]
S.C.R. 695) and I see no reason to revive it even in a limited
form. Section 91.24 of the British North America Act, 1867
assigns jurisdiction to Parliament over two distinct subject
matters, Indians and lands reserved for the Indians, not Indians
on lands reserved for the Indians. The power of Parliament to
make laws in relation to Indians is the same whether Indians
are on a reserve or off a reserve. It is not reinforced because it
is exercised over Indians on a reserve any more than it is
weakened because it is exercised over Indians off a reserve.
(See Kenneth Lysyk, "The Unique Constitutional Position of
the Canadian Indian" (1967), 45 Can. Bar Rev. 513, at p. 515).
None of these cases deals with the right to
possession of a part of a reserve or surrendered
lands within the meaning of the Indian Act so they
do not determine the issue before us, but the
conclusion that I draw, with respect, from the
observations I have quoted is that provincial laws
of general application will apply to "lands reserved
for the Indians" within the meaning of section
91(24) of the B.N.A. Act unless in such applica
tion they would have an effect analagous to that
found in the cases, such as Campbell-Bennett,
referred to by Laskin C.J.C. and Martland J. in
The Natural Parents case or would be in conflict
with valid federal legislation.
Before considering the application of these prin
ciples to the issue in the present case reference
should be made to section 88 of the Indian Act
which makes provincial law applicable to Indians
as follows:
88. Subject to the terms of any treaty and any other Act of
the Parliament of Canada, all laws of general application from
time to time in force in any province are applicable to and in
respect of Indians in the province, except to the extent that
such laws are inconsistent with this Act or any order, rule,
regulation or by-law made thereunder, and except to the extent
that such laws make provision for any matter for which provi
sion is made by or under this Act.
It has been observed that in its terms this provi
sion applies to Indians and not to lands reserved
for the Indians: see, for example, Laskin J. (as he
then was) in the Cardinal case, supra, at page 727;
Lysyk, op. cit. at page 518; R. v. Isaac, supra.
Since the issue in this case is the right to posses
sion of land governed by the Indian Act, it relates
to lands reserved for the Indians within the mean
ing of section 91(24) of the B.N.A. Act rather than
to Indians, as such, and section 88 need not,
therefore, be considered.
The right to possession of land that forms part
of a reserve or surrendered lands within the mean
ing of the Indian Act falls in my opinion within
exclusive federal legislative jurisdiction with
respect to lands reserved for the Indians under
section 91(24) of the B.N.A. Act. It is of the very
essence of this jurisdiction. The so-called Indian
title or right of occupation is really a right of
possession. This is recognized by the provisions of
the Indian Act (now sections 20 and following
under the heading "Possession of Lands In
Reserves") which prescribe the manner in which
"possession" of land in a reserve may be allotted to
individual Indians and the circumstances under
which the right to possession of land may revert to
the band. The right of the Crown in right of
Canada to claim the possession of land that is part
of a reserve or of surrendered lands within the
meaning of the Indian Act exists, as an incident of
the federal government's power of control and
management of such land, for the protection of the
Indian interest in the land. While the land is under
federal legislative and administrative jurisdiction,
it is the Crown in right of Canada that must act
for the protection of that interest, whether it con
sists of the right of occupation or possession itself,
or the "Indian moneys" (see section 62 of the Act)
which are to be accepted in return for its surren
der. Indeed, it would appear that so long as the
land is under federal legislative and administrative
jurisdiction, the Crown in right of the province in
which the underlying legal title to the land is
vested would not have the right to claim the
possession of it. On this view of the matter, I am of
the opinion that the provincial law respecting the
limitation of actions for the recovery of land could
not constitutionally apply so as to give the
respondent or his predecessors in occupation a
possessory title good against either the Indian
right of occupation or the right of the federal
Crown to claim possession for the protection of the
Indian interest.
What is really involved is the existence of land
as part of a reserve or surrendered lands within the
meaning of the Indian Act. If provincial law
respecting the limitation of actions could apply so
as to have the effect of extinguishing the Indian
title or the right of the federal Crown to recover
possession of land for the protection of the Indian
interest, it could have a dismembering effect
analogous to that which was held in the Camp-
bell-Bennett case to be beyond provincial legisla
tive competence. It would have the effect of
destroying or eliminating a part of the very
subject-matter of federal jurisdiction. If provincial
legislation of general application cannot constitu
tionally apply to restrict the use of land reserved
for the Indians within the meaning of section
91(24) of the B.N.A. Act, as was held in the Peace
Arch case (a conclusion that appears to have been
impliedly approved by the Supreme Court of
Canada in the Cardinal case), then a fortiori must
this be true of legislation that would have the
effect of extinguishing the right to possession of
such land.
Such an effect would also be in conflict with or
repugnant to the legislative scheme which has
existed from the earliest federal enactment for the
protection of the Indian interest. There have been
three fundamental features of this scheme: the
provision that the Indian right of occupation or
possession can only be validly given up or lost by
surrender to the Crown in accordance with the
formalities prescribed by the Indian Act; the provi
sion that any agreement made by the Indians to
permit the occupation of Indian land by non-Indi-
ans is void; and the prohibition of the unauthorized
occupation of or trespass on Indian land by non-
Indians, with special recourses for its suppression.
These provisions vary somewhat in their particular
form or expression through the successive versions
of the Indian Act but they remain in substance as
a central feature of the legislation. They exhibit a
special regime for the protection of the Indian
interest from the impact of the ordinary law of
contract and property. The Indians are not permit
ted to become divested of their rights in a reserve
by the ordinary legal methods applicable to other
individuals. This characteristic of the legislation
was emphasized by Judson J. in the Devereux case,
supra, when he said [at page 572], "The scheme of
the Indian Act is to maintain intact for bands of
Indians, reserves set apart for them regardless of
the wishes of any individual Indian to alienate for
his own benefit any portion of the reserve of which
he may be a locatee."
In Fahey v. Roberts, an unreported judgment of
the King's Bench Division of the Supreme Court of
New Brunswick on December 1, 1916, McKeown
C.J. held that these provisions of the Act of 1868
(31 Vict., c. 42), in particular sections 6 and 17,
prevented the provincial limitation of actions law
from operating so as to permit a non-Indian to
acquire title to land in a reserve by adverse posses
sion. Sections 6 and 17 read as follows:
6. All lands reserved for Indians or for any tribe, band or
body of Indians, or held in trust for their benefit, shall be
deemed to be reserved and held for the same purposes as before
the passing of this Act, but subject to its provisions; and no
such lands shall be sold, alienated or leased until they have
been released or surrendered to the Crown for the purposes of
this Act.
17. No persons other than Indians and those intermarried
with Indians, shall settle, reside upon or occupy any land or
road, or allowance for roads running through any lands belong
ing to or occupied by any tribe, band or body of Indians; and all
mortgages or hypothecs given or consented to by any Indians or
any persons intermarried with Indians, and all leases, contracts
and agreements made or purporting to be made, by any Indians
or any person intermarried with Indians, whereby persons other
than Indians are permitted to reside upon such lands, shall be
absolutely void.
Chief Justice McKeown held that the acquisi
tion of a possessory title by operation of the pro
vincial statute of limitations would be contrary to
the prohibition against the unauthorized occupa
tion of land in a reserve by a non-Indian. He
further held that "the provisions of the New
Brunswick statutes of limitations are not operative
against the Crown, acting through the Dominion
Government in its management of those Indian
lands" and that "the Indians themselves being
under disabilities and unable to convey, or even to
surrender the land, except by the provisions of the
statute, no possession can run against them."
These considerations apply equally in my opin
ion to land in a reserve that has been surrendered
to the Crown in trust for the purposes of sale and
the application of the proceeds for the benefit of
the band, but has not been sold. Since such land
remains land reserved for the Indians within the
meaning of section 91(24) of the B.N.A. Act and
continues to be held by the Crown for the benefit
of the Indians because of their financial interest in
it, the application of the provincial statute of
limitations so as to give a non-Indian a possessory
title to the land would destroy the status of the
land under the Indian Act and defeat the terms of
the trust upon which it had been surrendered.
Whether There Was In Fact A Continuous
Adverse Possession of Sixty Years
This conclusion is sufficient to dispose of the
appeal, but assuming that the provincial statute of
limitations could validly apply to extinguish the
appellant's right to possession of the Land, I am of
the opinion that in any event the evidence fails to
establish a continuous adverse possession of the
Land for at least sixty years.
There is first of all, as indicated in the statement
of the facts earlier in these reasons, a gap or
discontinuity between the alleged occupation of
the Land by Ebenezer Travis and his grandson,
Ebenezer A. Travis, and the occupation of the
Land by Isaac Mutch and the respondent. As a
result, the Travis occupation cannot be added or
tacked to that of Mutch in order to establish the
necessary sixty years. See Robinson v. Osborne
(1913) 27 O.L.R. 248. The combined occupation
by Travis and his grandson runs from 1838 to
1901, when, it is reasonable to conclude, the
grandson abandoned the occupation of the Land
since it was excluded by the Fish survey of 1901
from the property that was to be granted to him.
In any event, the evidence does not show any
connection between the occupation of the Land by
Ebenezer A. Travis and its occupation by Isaac
Mutch beginning around 1904 or 1905. Nor, for
the reasons indicated earlier, is it logical to con
clude that the occupation of the Land by Isaac
Mutch was a continuation of the occupation of the
old lot 6 begun by his grandfather, James. In my
opinion, the Trial Judge was in error in assuming a
continuity in the occupation of the Land by reason
of the fact that James Mutch was shown in the
Carter report of 1898 as claiming the old lot 6. He
appears to have overlooked or misapprehended the
relationship of the old lots 5 and 6 and the new lots
5A and 6, in so far as the location of the Land is
concerned. The finding of the Trial Judge that the
occupation of the Land by Travis and his successor
was continued without interruption by the Mutch
family is unsupported by the evidence. There is no
evidence of a connection between the occupation
by Ebenezer A. Travis of the ten chain strip that
was formerly on the eastern side of the old lot 5,
but became part of the western side of the new lot
6, and the occupation of the old lot 6 by the Mutch
family. There is no evidence that between 1901
and 1904 or 1905 there was occupation by the
Mutch family of the ten chain strip. Indeed, the
survey plans of 1904 and 1905 (Exhibits Pa-24
and Pa-26) show the new lot 6 as unoccupied. The
testimony was that James Mutch and his son,
Edmund, did not live on the old lot 6 but on the
other side of the river. According to the same
testimony Isaac did not trace his occupation to
Travis but rather to his father, Edmund, and his
grandfather, James. The gap between the Travis
occupation and the Mutch occupation of the Land
was conceded by counsel for the respondent at the
hearing of the appeal. He acknowledged that the
claim of adverse possession had to be based on two
separate periods of occupation.
The evidence concerning the combined occupa
tion by Ebenezer Travis and his grandson from
1838 to 1901 does not establish that it was a
continuous adverse possession of the Land for at
least sixty years. The evidence is not clear as to
when it became an occupation or possession that
was adverse to that of the Crown, as well as the
Indian right of occupation. The occupation began
around 1838 under a kind of lease or permission
from the Indians for which Travis paid rent for a
few years. Such an occupation was clearly not
adverse. The petition of Travis in 1841 for a grant
of the land occupied by him was an acknowledg
ment of both the Indians' right of occupation and
the Crown's title. Although Travis said that he
sought to have "the title of the said Land con
firmed to" him, he obviously at that time could not
claim to have a possessory title to the Land. The
petition is inconsistent with a conclusion that he
was at that time possessing the land as owner or
adversely to the Crown. The census returns of
1851, 1861 and 1871 show that Travis continued
to reside and occupy land in the Parish of North-
esk, but they do not establish the nature of his
claim to the land occupied by him. The fact that
the return of 1871 shows the number of acres
occupied by him under the general heading,
"Grand total of acres of land owned", is not
sufficient in my opinion to establish that his par
ticular occupation was one that was adverse to the
Crown. It is not until the Carter report of 1898
that the records show that Travis' grandson was
claiming to own the old lot 5 by virtue of adverse
possession. Thus the evidence does not clearly
establish a continuous period of sixty years in
which the occupation by Travis and his grandson
was adverse to the Crown.
Moreover, the evidence does not show, in my
opinion, that there was an actual possession by
Travis and his grandson of the Land, as distinct
from other parts of the old lot 5. It shows that
Travis was in occupation of some part of lot 5 but
it does not show the extent of the occupation. In
particular, it does not show that Travis occupied
the southeast part of the lot that lay between the
settlement road and the river. None of the docu
ments in which the occupation by Travis is
referred to—the petition for a grant in 1841, the
Sadler return of survey of 1845 and 1847, the
census returns of 1851, 1861 and 1871, the Carter
report of 1898, and the Fish survey of 1901—
shows the extent of the occupation by Travis and
his grandson of the old lot 5. Professor Hamilton
stated in his affidavit and oral testimony that the
Land was part of the lot occupied by Travis from
about 1838, but since his opinion was based on the
documents referred to, it does not throw any fur
ther light on the extent of the land actually
occupied by Travis, and specifically, as to whether
there was an actual physical occupation by him of
the whole of the land for which adverse possession
is claimed. With reference to the Sadler return of
survey, which stated that there were three acres of
improved land occupied by Travis on the old lot 5,
Professor Hamilton testified that he could not
determine the location of Travis' house on the lot.
For these reasons, I am of the view that the
evidence does not establish a continuous adverse
possession of at least sixty years by Ebenezer
Travis and his grandson, Ebenezer A. Travis,
which could extinguish the Crown's title to the
Land.
The evidence is clearer as to the nature and
extent of the occupation of the Land by Isaac
Mutch. The appellant contended that Mutch's ac
tivity on the Land consisted of mere isolated acts
of trespass which could not be the basis of an
adverse possession by which title could be
acquired. He cited Doe d. Des Barres v. White, 1
Kerr N.B. 595, and Sherren v. Pearson (1888) 14
S.C.R. 581, in which the nature of the occupation
required to constitute an adverse possession of
wilderness land was considered. In the Sherren
case, in which the decision in the earlier case was
approved, Ritchie C.J. said at page 586:
The mere acts of going on wilderness land from time to time in
the absence of the owner, and cutting logs or poles, are not such
acts, in themselves, as would deprive the owner of his posses
sion. Such acts are merely trespasses on the land against the
true owner, whoever he may be, which any other intruder might
commit. ... An entry and cutting a load of poles or a lot of
wood, being itself a mere act of trespass, cannot be extended
beyond the limit of the act done, and naked possession cannot
be extended by construction beyond the limits of the actual
occupation, that is to say, a wrongdoer can claim nothing in
relation to his possession by construction.
In my opinion, the farming and lumbering, or
cutting, activity carried out on the Land by Isaac
Mutch and his family, which was described earlier
in these reasons, went beyond mere isolated acts of
trespass and constituted an occupation of the char
acter required for adverse possession. I agree with
the finding of the Trial Judge [at page 667] on this
point when he said, "The acts carried out by
Mutch before he deeded the subject property to
the defendant appear to me to be the type of acts
that would normally and suitably be performed by
a lumberman farmer in those days on the Mirami-
chi River." The appellant disputed the fact that
Mutch was a lumberman, but I do not see how it
can be denied in the face of the evidence that he
engaged in driving operations, cut and sold logs
and pulpwood, and at one time had a small saw
mill. The evidence is not too clear as to the extent
and regularity of the cutting, but it would appear
that a significant amount was done over the years.
It appears that the Trial Judge accepted the evi
dence of Weldon Mutch as to the extent of the
cutting and farming that was done on the Land,
and I see no reason to differ from his conclusion.
The serious problem with respect to Mutch's
occupation is that created by the letter which he
wrote to the Department of Indian Affairs on
February 24, 1919. The question is whether that
letter was an acknowledgment of the Crown's title
to the Land and would thus interrupt the adverse
possession by virtue of section 14 of the Act
Respecting Limitation of Actions in respect to
Real Property, C.S.N.B. 1903, c. 139, which reads
as follows:
14. When any acknowledgment of the title of the person
entitled to any land shall have been given to him or his agent in
writing, signed by the person in possession, or in receipt of the
profits of such land, then such possession or receipt of or by the
person by whom such acknowledgment shall have been given,
shall be deemed, according to the meaning of this Chapter, to
have been the possession or receipt of or by the person to whom
or to whose agent such acknowledgment shall have been given,
at the time of giving the same, and the right of such last
mentioned person, or any person claiming through him, to
make an entry or to bring an action to recover such land, shall
be deemed to have first accrued at and not before the time at
which such acknowledgment, or the last of such acknowledg
ments, if more than one was given.
In the letter, which was quoted in full earlier in
these reasons, Mutch said that he was "living on a
piece of Indian land which lies on the North side
of the Lyttle South West River the East side of
Lot No. 6 x 42 Rods in width Bounded on the
West by land claimed by Ebenezar Traviss" and
that he "would like to get the grant of it." Counsel
for the respondent stressed the fact that the letter
referred to the "East side" of lot 6, whereas the
Land was on the west side, but, as I have indicated
earlier, the plan dated June 6, 1919 prepared for
Mutch by the surveyor Fish shows that what was
intended and what was surveyed for him to serve
as the basis of the grant he was seeking was the
west half of lot 6. That was the part of lot 6 that
was occupied by Isaac Mutch. It was bounded on
the west by the lot that had been surveyed for
Ebenezer A. Travis in 1901 and on the east by the
other half of lot 6 which was occupied by Isaac's
brother, William.
The Trial Judge held that the letter did not bar
the defence based on adverse possession. He
appears to have disposed of this issue, at least to
some extent, on the assumption that a title by
adverse possession had already been acquired
when the letter was written and the letter simply
sought a grant to confirm that title. On this issue
he said [at page 6691:
The Crown in the instant case having waited more than 50
years after the alleged acknowledgment to launch this action is
hard put to show now exactly what the 1919 letter meant.
Bearing in mind that the land in question lies within a non-
Indian community, the description "Indian land" used by the
settler conceivably meant land outside the Indian reserve, land
on which he lived and for which he wanted to "get" a Crown
grant, an official paper to confirm his own title. The evidence is
that he did not pay for it, thus presumably did not attach much
value to the legal document.
I cannot accept Mutch's letter as being an acknowledgment
sufficient to extinguish the adverse possession already estab
lished at the time, which amounted to some 15 years in the case
of Isaac Mutch on the specific piece of land, and to at least half
a century more by his predecessors over the area, including
lot 6. Moreover the letter was not addressed to the Province,
the person then entitled, but to a federal department.
With respect, I am of the view that the letter
cannot be regarded as other than an acknowledg
ment by Mutch of the Crown's title to the land
occupied by him. There is no doubt that if a
possessory title to the Land had been acquired as a
result of the occupation by Ebenezer Travis and
his grandson the Crown's title could not be revived
by a subsequent acknowledgment of title, as was
held in Hamilton v. The King (1917) 54 S.C.R.
331, to which the Trial Judge made reference. But
for the reasons I have indicated, a possessory title
cannot be held to have been acquired as a result of
the occupation by Travis and his grandson, nor
could their occupation be tacked to that of Mutch.
As I have already observed, there is nothing in the
evidence to suggest that Isaac Mutch claimed at
any time to be the successor of Ebenezer A. Travis
in the occupation of the Land. There is nothing in
the letter of 1919 nor in the surrounding circum
stances to indicate that Mutch was claiming a
possessory title to the Land and was merely seek
ing a grant to confirm such a title. Although the
evidence does not show precisely what prompted
him to write the letter, the memorandum from H.
J. Bury, Timber Inspector, states that in his opin
ion the "application is one of the results of the
recent inquiry into trespassing on the Reserve by
whites". The reasonable inference from the docu
ments is that if Mutch did not obtain the grant he
sought it was because of a difference of opinion as
to the price that should be paid for the land and
not because he did not attach importance to the
grant. The testimony of his son, Weldon, tends to
confirm the impression that at the time he wrote
the letter he did not consider that he had title to
the Land. The testimony is as follows:
Q. The letter is dated February 24, 1919. Have you ever
seen that letter before?
A. No.
Q. Your father never mentioned this to you?
A. He mentioned about him and Mr. Irving having some
dealing over the ground.
Q. What kind of a dealing?
A. Well, bargaining for the ground.
Q. In other words, you did know there some question as to
the title of the land?
Q. In other words, you were aware there was some problem
as to the title?
A. There has to be a title.
Q. That's not what I asked you, are you aware definitely
that there had been some problem with the title to the
lands?
A. Oh, definitely, yes.
Q. And you have been for quite some time, isn't that so?
A. Well, I know we didn't have a deed.
HIS LORDSHIP: Did you not just testify to the effect that you
were under the impression that your father had obtained the
land from your grandfather?
THE WITNESS: Yes.
HIS LORDSHIP: If that was the case why would there be a
problem with reference to Indian land?
THE WITNESS: Well, I used to hear stories going back and forth
once in a while and I know they didn't have no title.
The letter was addressed to the Department of
Indian Affairs, which was charged with the control
and management of the Land and was acting on
behalf of the Crown in holding the Land as part of
the Indian lands subject to the terms of the surren
der of 1895. While the Indian lands remained
under federal jurisdiction it was the federal
authorities who had the right to make an entry on
the Land or to bring an action to recover posses
sion of it. For this reason, it is my opinion that the
letter was an acknowledgment of title to an agent
of the person entitled to the Land within the
meaning of section 14 of the provincial statute of
limitations.
Since the adverse possession of Isaac Mutch was
interrupted in 1919, the respondent cannot claim a
continuous adverse possession of the Land of at
least sixty years before the institution of the appel
lant's proceedings in 1973.
The appellant is, therefore, entitled to possession
of the Land. It is necessary now to consider the
respondent's claim for compensation by reason of
the improvements made to the Land.
The Claim for Compensation
The right to compensation is raised in paragraph
11 of the defence where it is said that the respond
ent has made improvements to the Land and the
appellant would be "unjustly enriched" if given
vacant possession of the Land. In reply the appel
lant states that if the respondent made improve
ments to the Land he did so at his own risk and
that he knew or ought to have known that the title
to the Land was at all times vested in Her Majesty
the Queen. In paragraph 14 of his defence the
respondent claims the market value of the property
as a whole, and alternatively the value of the
improvements. At the trial, evidence was adduced
of the market value of the property, and the Trial
Judge made the following findings as to value [at
page 671] in his reasons for judgment:
Both parties adduced expert evidence at the hearing with a
view to establish the market value of the subject property. In
the event that my findings in the matter become useful in
further proceedings, I find that the value of the Gilbert A.
Smith property is as follows: land and site improvements
$12,000; buildings $16,000; gravel reserves $8,000. Total,
$36,000.
Although these findings were not part of the
formal judgment, the respondent cross-appealed,
asking that the value of the property be increased
to $62,600, which was the value placed on it by the
respondent's expert.
The issue is whether, in the circumstances of
this case, the appellant should be required as a
condition of obtaining vacant possession of the
Land to compensate the respondent for the
improvements which he has made to the Land, and
if so, how the value of those improvements is to be
determined.
The statute law of New Brunswick does not
contain a provision concerning compensation for
improvements to land under mistake of title such
as that which is found in section 38(1) of the
Ontario The Conveyancing and Law of Property
Act, R.S.O. 1970, c. 85, which reads as follows:
38. (1) Where a person makes lasting improvements on land
under the belief that it is his own, he or his assigns are entitled
to a lien upon it to the extent of the amount by which its value
is enhanced by the improvements, or are entitled or may be
required to retain the land if the court is of opinion or requires
that this should be done, according as may under all circum
stances of the case be most just, making compensation for the
land, if retained, as the court directs.
There is, however, a general principle of equity,
referred to as estoppel by acquiescence, governing
improvements made to the land of another which
is set out in Halsbury's Laws of England, 4th ed.,
vol. 16, para. 1475, page 997 as follows:
Similarly, where a person who mistakenly believes that he has
an interest in land, being ignorant of his want of title, expends
money on it in buildings or other improvements or otherwise
dealing with it, and the true owner, knowing of the mistaken
belief and the expenditure, raises no objection, equity will
protect the person who makes the expenditure, as by confirm
ing that person's supposed title, or by requiring that he be
compensated for his outlay, or by giving him such a charge or
lien. This equity is available against the Crown.
This statement of the principle is based in part
on the case of Ramsden v. Dyson (1866) L.R. 1
H.L. 129, in which Lord Cranworth L.C. said at
pages 140-141:
If a stranger begins to build on my land supposing it be his
own, and I, perceiving his mistake, abstain from setting him
right, and leave him to persevere in his error, a Court of equity
will not allow me afterwards to assert my title to the land on
which he had expended money on the supposition that the land
was his own. It considers that, when I saw the mistake into
which he had fallen, it was my duty to be active and to state my
adverse title; and that it would be dishonest in me to remain
wilfully passive on such an occasion, in order afterwards to
profit by the mistake which I might have prevented.
But it will be observed that to raise such an equity two things
are required, first, that the person expending the money sup
poses himself to be building on his own land; and, secondly,
that the real owner at the time of the expenditure knows that
the land belongs to him and not to the person expending the
money in the belief that he is the owner. For if a stranger builds
on my land knowing it to be mine, there is no principle of
equity which would prevent my claiming the land with the
benefit of all the expenditure made on it. There would be
nothing in my conduct, active or passive, making it inequitable
in me to assert my legal rights.
The same principle was expressed by Lord
Wensleydale at page 168 as follows:
If a stranger build on my land, supposing it to be his own,
and I, knowing it to be mine, do not interfere, but leave him to
go on, equity considers it to be dishonest in me to remain
passive and afterwards to interfere and take the profit.
The application of this principle to an action by
the Crown for the possession of land in an Indian
reserve was considered in the Easterbrook case,
supra. It was held that since the defendant and his
predecessor occupied the land under a lease from
the Indians they could not have believed that they
owned the land, and that the Crown had not given
them any reason by act or representation for such
a belief. In the Exchequer Court Audette J. held
that the doctrine of acquiescence did not apply to
the Crown, but that view does not appear to have
been adopted by the Supreme Court of Canada.
As indicated in the passage from Halsbury quoted
above, it was held in Attorney-General to His
Highness the Prince of Wales v. Collom [ 1916] 2
K.B. 193, that the equitable doctrine of estoppel
by acquiescence applies to the Crown. I do not
read the decision of the Supreme Court in the
Easterbrook case as taking a contrary position on
this issue. The reverse, if anything, is implied by
the judgment of Newcombe J., who said at page
219: "I agree with the learned judge that the
defendant has entirely failed to establish any act
or representation, for which the Crown is respon
sible, whereby he was misled to believe that he had
a title which could be vindicated in competition
with that of the Crown." There was further con
sideration by Newcombe J. as to whether there
was representation by or on behalf of the Crown to
the defendant's predecessor in title. It is my con
clusion from the judgment of Newcombe J. that
the equitable doctrine of estoppel by acquiescence
was considered to be applicable in proper circum
stances to a claim for the value of improvements to
land in an Indian reserve.
Counsel for the appellant contended that the
doctrine is not applicable to a case in which the
plaintiff is not seeking equitable relief but is
asserting his legal rights and cited in support of
this contention the decision of the Supreme Court
of Canada in Montreuil v. The Ontario Asphalt
Company (1922) 63 S.C.R. 401. As I read the
opinions in that case, and particularly the majority
opinion of Anglin J., at pages 433 to 436, a
distinction is drawn between the case where an
improver relies on a "standing by", or what
amounts to an acquiescence, by the owner and the
case where he does not. In the latter case, apart
from statute, the equitable defence can only be
raised if the owner is himself seeking the aid of
equity.
In the present case the respondent believed him
self to be the owner of the Land at the time he
made the improvements to it. In the first deed
which he obtained from Isaac Mutch dated Sep-
tember 26, 1952 the recital stated that the "Gran-
tors herein have been in possession, open and
undisputed, of the within described lands and
premises for more than twenty (20) years", which
is the ordinary period required for the acquisition
of a possessory title. The respondent, as he testi
fied, was not aware of any claim to the Land by or
on behalf of the Indians. The respondent did not
search the title to the Land, but while that would
undoubtedly have been more prudent the failure to
do so cannot in my opinion defeat his equitable
claim for his improvements. In the Montreuil case,
supra, at page 429 Anglin J. said:
Nor does the fact that they were undoubtedly careless in
making such expenditure without a proper investigation of their
lessor's title disentitle them to such relief. So long as the
mistake was bona fide the fact that it may have been due in
part to carelessness does not debar the defendants from redress.
In my opinion, this is a case in which the Crown
must be held, as a result of its long inaction,
particularly from 1919, with knowledge that the
Land was being occupied by non-Indians, to have
stood by and acquiesced in the improvements
made by the respondent and his predecessor in
occupation. The Crown, whether represented and
advised by the provincial government or the feder
al government, knew of the occupation of the Land
by non-Indians from 1838 but never took positive
steps to regularize the situation one way or the
other. In view of the Crown's conduct, it would be
unconscionable to permit it to recover vacant
possession of the Land without compensation for
the improvements. If there were any doubt about
the application of the equitable principle of estop-
pel by acquiescence in the circumstances of this
case, I would be prepared to rest the respondent's
right to compensation for his improvements on the
general basis of unjust enrichment or restitution.
The measure of compensation in a case such as
this is the amount by which the value of the Land
has been enhanced by lasting improvements. See
Montreuil, supra, at pages 433, 434; McBride v.
McNeil (1913) 27 O.L.R. 455 at page 457. As
indicated above, the evidence was directed to
determination of the market value of the property
as a whole, and the Trial Division made a finding
as to such value. In the circumstances, it is not
possible for this Court to determine the amount by
which the value of the Land has been enhanced by
the improvements.
I would allow the appeal, declare that the appel
lant is entitled to vacant possession of the Land
upon payment to the respondent of the amount by
which the value of the Land has been enhanced by
the lasting improvements made by the respondent
and his predecessors in occupation, and I would
return the matter to the Trial Division for the
determination of this amount, with power to order
a reference for such purpose should it be deemed
advisable, unless in the meantime the parties are
able to come to agreement as to the amount.
Because of the very special circumstances of the
case there should be no costs in this Court and in
the Trial Division.
* * *
URIE J.: I concur.
* * *
KELLY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.