Attorney-General of Canada v. Giroux

Supreme Court of Canada – [1916] 30 D.L.R. 123


Quebec Indian ActLands reserved for IndiansProperty
Summary

This case confirms that an Indian can buy land for himself, even land that used to be a part of a reserve. The Court confirms the fiduciary duty of the Crown, since it must manage Indian’s monies and lands in their best interest.

Issue

Can an Indian buy from the Crown land previously held in benefit for his tribe?

Decision

Yes. It is not forbidden to sell lands that used to belong to Indians to an Indian (unanimous decision, for different reasons).

Parties

Between: Canada

And: Pierre Giroux

Facts

At issue in this case is the rightful ownership of a tract of land situated in the County of Lake St. John, Quebec. In 1851, a statute was adopted by the legislative assembly of the Province of Canada authorizing the creation of Indian reserve under the management of the Commissioner of Indians for Lower Canada (Henderson, 1980: 180).

In 1853, an Order-in-Council set lands apart for the benefit of the Montagnais of Lake St. John, today known as Mashteuiatsh. The reserve lands were vested in the Commissioner, pertaining to the 1851’s statute. In 1869, the Montagnais of Lake St. John band surrendered part of their reserve to the Crown in order to sell the lands for their benefit.

In 1873, Giroux bought half of Lot No. 3 of the former reserve. In 1878, the other half of Lot No. 3 was sold to Philippe, a member of the Montagnais of Lake St John band. In 1889, Philippe’s tract of land was seized by the county sheriff following a court decision against him. Giroux bought the half-lot at an auction. The Crown opposed the sale under the claim that it still was the owner of the lands in question.

Arguments

Canada: Since Philippe was an Indian, the Indian Act forbade him from acquiring tracts of reserve land. Even if the sale to Philippe is considered valid, its effect was to transfer the ownership back to the Crown as the half-lot became part of the reserve again. Therefore, as Indian land, it was preclude from taxation and seizure.

Pierre Giroux: The law did not preclude the sale of already surrendered Indian lands to Indians. The sale to Philippe was valid; therefore he has the rightful half of the Lot No. 3 at the time of the auction.

Decision of the lower courts

Superior Court of Quebec, District of Chicoutimi (1914): The case is dismissed.

Court of King’s Bench (1915): The decision of the lower Court affirmed by the majority.

Reasons for Judgement

Jury

Fitzpatrick, Idington, Duff, Anglin, Brodeur

Reason

Canada’s arguments are rejected.

Fitzpatrick: Canada’s arguments are fallacious. It would have implied the only factor to determine the right of a buyer to purchase a lot was its race. In the same line of reasoning, Philippe, having paid the same amount as the other buyers, would only be allowed to a certificate of occupation, known then as a location-title, instead of full ownership. In addition, there is no prohibition to sell former Indian Lands to an Indian, even though such situation was exceptional at that time. Also, s. 64 of the same Act recognize Indians the capacity to own real estate.

Duff: The Indian Act only exempts property held by an Indian from taxation and from execution if it is located on a reserve. There is no intention in the Act to extend this exemption to Indian’s property outside the reserve. Anglin sided with him. He qualified the interest of a band in its reserve land as a beneficial ownership since it is the Crown that exercise the land-related rights, but must do it accordingly to its fiduciary duty towards Aboriginal. That interest remains in the Crown’s hand as long as the concerned band continues to exist; and even after the surrender of their land to the Crown in trust.

Brodeur: Due to the Crown’s fiduciary obligation to the Montagnais of Lake St. John band, it was duty-bound to sell the surrendered lands to the first buyers who manifested themselves in the band’s best interest. Philippe wanted to purchase half-lot, and nothing in the Indian Act prohibited a band-member to do so. Giroux’s title in the half-lot in question is valid.

Indington wrote another concurring opinion.

Impact

This decision contributed to further define the notion of Aboriginal title by affirming the existence of a beneficial interest in favour of an Aboriginal community even after its traditional lands have been surrender to the Crown. (Burrows, 1996: 635-636).

This Indian interest can be the basis for stronger ownership right for Aboriginal, meaning that in some cases, band members can truly owned part of their original reserve (Brun, 1985: 417 and 426). This more rational approach to the surrender of Indian lands was rejected by the following Star Chrome case (Henderson, 1980: 180-181).

Related Cases

Attorney-General for Quebec v. Attorney-General for Canada Re Indian Lands, [1921] 1 A.C. 401

Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695

Guerin v. The Queen, [1984] 2 S.C.R. 335


Sources

Brun Henri. 1985. “Possession et la réglementation des droits miniers, forestiers et de réversion dans les réserves indiennes au Québec”, in McGill Law Journal 30: 415-457.

Burrows John. 1996. “With of Without You: First Nation in Law (in Canada)”, in McGill Law Journal 43: 629-665.

Henderson William B. 1980. “Canada’s Indian Reserves: The Usufruct in our Constitution”, in Ottawa Law Review 12: 167-194.

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