Source: Application for Leave to Appeal,
R v. Ignace et al,
September 12, 1997, p. 10
Endorsed "Approved" and signed by the Governor General of Canada, the Lord Dufferin, 25 January 1875.
The Committee of the Privy Council have had under consideration the Report, hereunto annexed, from the Honourable the Minister of Justice, to whom was referred with the other Acts passed by the legislature of the Province of British Columbia in the 37th year of Her Majesty's Reign the following Act, which was assented to by the Lieut Governor on the 2nd March 1874 viz: No 2 intitled: "An Act to ammend and consolidate the Laws affecting Crown Lands in British Columbia" and they respectfully submit their concurrence in the views and recommendations set forth in the said Report, and advise that a copy be transmitted to the Right Honourable H.M. Secretary of State for the Colonies & to the Lieut. Governor of British Columbia.
[P. 1 of Report] Department of Justice. Ottawa, 19th January 1875.
The Undersigned has the honour to report:
That of the Acts passed by the Legislature of the Province of British Columbia in the 37th year of Her Majesty's reign and assented to on the 2nd March 1874 is the following: No. 2 entitled "An Act to ammend and consolidate the Laws affecting Crown Lands in British Columbia." The title of the Act explains its objects. [p. 3]...the words "Crown Lands" may, for the purposes of this memorandum, be considered to mean all lands in the Province vested in the Crown of which no grant has been made. [p. 7] ...The undersigned refers to the Order in Council under which the Province of British Columbia was admitted into the Dominion, and particularly the 13th Section as to the Indians which is as follows:
"The charge of the Indians and the Trusteeship and management of the lands reserved for their own use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion [p. 8] Government after the Union. To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose shall from time to time be conveyed by the Local Government to the Dominion Government, in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be reserved for the decision of the Secretary of State for the Colonies."
[p.9]...having regard to the known existing and increasing dissatisfaction of the Indian Tribes of British Columbia at the absence of adequate reservations of land for their use, and at the liberal appropriation for those other parts of Canada upon surrender by Treaty of their territorial rights, and the difficulties which may arise from the not improbable assertion of that [p. 10] dissatisfaction by hostilities on their part, the undersigned deems it right to call attention to the legal position of the Public Lands of the Province.
The Undersigned believes he is correct in stating, that with one slight exception as to land in Vancouver Island surrendered to the Hudson's Bay Company which makes the absence of others the more remarkable no surrenders of land in that Province have ever been obtained from the Indian Tribes inhabiting it, and that any reservations which have been made, have been arbitrary on the part of the Government and without the assent of the Indians themselves, and although the policy of obtaining surrenders at this lapse of time and under the altered circumstances of the Province [p. 11] may be questionable, yet the Undersigned feels it his duty to assert such legal or equitable claim as may be found to exist on the part of the Indians.
There is not a shadow of doubt that, from earliest times, England has always felt it imperative to meet the Indians in Council and to obtain surrenders of tracts of Canada as from time to time such were required for the purposes of settlements. The 40th article of the Treaty of Capitulation of the City of Montreal, dated 8th September 1760, is to the effect that:
"The Savages or Indian allies of His Most Christian Majesty shall be maintained in the lands they inhabit [p. 12] if they choose to remain there."
The Proclamation of King George III in 1763 erecting within the Countries and Islands, ceded and confirmed to Great Britain by the Treaty of the 10th February 1763, four distinct Governments styled Quebec, East Florida, West Florida and Granada, contains the following clauses:
[Here, at p. 12 to 21 this Report quotes verbatim the "Indian part" of the proclamation reproduced above, from "Whereas it is just and reasonable" to "in order to take their trial for the same." The only parts reproduced now are the parts underlined by the Minister of Justice and Deputy Minister in the original.]
"[p. 13]...such parts of our dominions and territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them as their hunting grounds;..
[p. 14]...or upon any lands whatever, which not having been ceded to or purchased by us, as aforesaid, are reserved to the said Indians, or any of them...
[p. 16]...and we do strictly enjoin and require all persons whatsoever, who have either wilfully or inadvertently seated themselves upon any lands within the Countries above described, or upon any other lands, which not having been ceded to or purchased by us, are reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements."...
[p. 21] It is not necessary now to inquire whether the lands[p.22] to the west of the Rocky Mountains and bordering on the Pacific Ocean form part of the lands claimed by France, and which, if such claim were correct, would have passed by cession to England under the Treaty of 1763; or whether the title of England rests on any other ground; nor is it necessary to consider whether the Proclamation covered the land now known as British Columbia. It is sufficient for the present purposes to ascertain the policy of England in relation to the acquisition of the Indian territorial rights, and how entirely that policy has been followed to the present time, except in the [p.23] instance of British Columbia.
It is also true that the Proclamation of 1763 to which allusion has been made, was repealed by the Imperial Statute 14 George III, Ch: 83, known as "The Quebec Act" but that Statute merely, so far as regards the present case, annuls the Proclamation, "so far as the same relates to the Province of Quebec and the Commission and authority thereof, under the authority whereof the Government of the said Province is at present administered" and the Act was passed for the purpose of effecting a change in the mode of the Civil Government of the [p.24] administration of Justice in the Province of Quebec.
The Imperial Act 1821, 1st & 2nd George 4, Ch: 66 for regulating the Fur Trade and establishing a Criminal and Civil jurisdiction within certain parts of North America, legislates expressly in respect to that portion of the Continent which is therein spoken of as "the Indian territories", and by the Imperial Act 1849, 12 & 13 Vic: Ch: 48 "An Act to provide for the Administration in Vancouver's Island", the last mentioned Act is recited and it is added in recital that "for the purpose of the colonization of that part of the said Indian Territories [p. 25] called Vancouver's Island, it is expedient that further provision should be made for the administration of justice therein."
The Imperial Act 1858, 21 and 22 Vic: Ch: 98, "An Act to provide for the Government of British Columbia" recites,
"that divers of Her Majesty's subjects and others have, by the license and consent of her Majesty, resorted to and settled on certain wild and unoccupied territories on the North West Coast of North America now known as 'New Caledonia' from and after the passing of the Act to be named British Columbia and the Islands adjacent &c"
[p. 26] The determination of England, as expressed in the Proclamation of 1763 that the Indians should not be molested in the possession of such parts of the dominions and territories of England as, not having been ceded to the King, are reserved to them, and which extended also to the prohibition of purchase of lands from the Indians, except only by the Crown itself - at a public meeting or assembly of the said Indians to be held by the Governor or Commander in Chief has, with slight alterations, been continued down to the present time, either as the settled policy of Canada [p. 27] or by Legislative provision of Canada, to that effect, and it may be mentioned that, in furtherance of that policy, so lately as in the year 1874, treaties were made with various tribes of Indians in the North West Territories, and large tracts of lands, lying between the Province of Manitoba and the Rocky Mountains, were ceded and surrendered to the Crown, upon conditions of which, the reservations of large tracts for the Indians and the granting of annuities and gifts annually, formed an important consideration: and, in various parts of Canada, from the Atlantic to the Rocky Mountains, large and valuable tracts of land [p. 28] are now reserved for the Indians, as part of the consideration of their ceding and yielding to the Crown their territorial rights in other portions of the Dominion.
* Considering, then, these several features of the case - that no surrender or cession of their Territorial rights, whether the same be of a legal or equitable nature, has been ever executed by the Indian Tribes of the Province; that they allege that the reservations of land made by the Government, for their use have been arbitrarily so made and are totally inadequate to their support and requirements, [p. 29] and without their assent - that they are not averse to hostilities in order to enforce rights which it is impossible to deny them, - and that the Act under consideration not only ignores those rights, but expressly prohibits the Indians from enjoying the rights of recording or preempting Lands, except by consent of the Lieutenant Governor, - the Undersigned feels that he cannot do otherwise, than advise that the Act [No. 2: the BC Public Lands Act] in question is objectionable, as tending to deal with lands which are assumed to be the absolute property of the Province, an assumption which completely ignores, -as applicable to the Indians of [p. 30] British Columbia, - the honour and good faith with which the Crown has in all other cases, since its sovereignty of the territories in North America dealt with their various Indian Tribes.
The Undersigned would also refer to the B.N.A. Act 1867 Sec. 109, applicable to British Columbia, which enacts in effect that, all lands belonging to the Province, shall belong to the Province "subject to any trust existing in respect thereof, and to any interest other than that of the Province in the same." That which has been ordinarily spoken of as the "Indian Title" must, of necessity, consist in some species of interest in the lands of [p. 31] British Columbia. If it is conceded, that they have not a freehold in the soil but that they have an usufruct, - a right of occupation, or possession of the same for their own use, then it would seem that these Lands of British Columbia are subject, if not to a "trust existing in respect thereof," at least to "to an Interest other than that of the Province alone."
The Undersigned, therefore, feels it incumbent upon him to recommend that this Act should be disallowed... [p.35]
[Signed by Deputy Minister of Justice of Canada and endorsed "I concur" and signed by Minister of Justice]
[S.I.S.I.S. note: This was the last time the federal government recognized its duty and recommended disallowance of offending provincial lands legislation. By the year after this report 1876, the federal government fell in with the fraud of the province and applied the genocidal Indian Act to the Indians of unceded BC in contravention of its own recommendations and constitutional law.]