Smith v. The Queen

Supreme Court of Canada – [1983] 1 S.C.R. 554

New Brunswick Jurisdiction over IndiansLands reserved for IndiansProperty

The Supreme Court applies St. Catherine’s Milling and confirms that the surrender of lands reserved for Indians extinguishes federal jurisdiction. The federal government has jurisdiction over reserved lands until they are surrendered.


The lands ‘reserved’ for the benefit of Indians, on being released by the Indians for whose benefit the lands had been set aside, cease thereby in law to be within the legislative reach of Parliament under the Constitution. (p. 564 of the case).


Does the 1895 surrender of reserve lands by the Indians to the Crown prevent the application of s. 91(24) of the Constitution Act, 1867, and repeal the rights of the Indians?


The federal government has no power over the surrendered lands. The province was always the owner of the lands, before and after the surrender by the Indians. Section  91(24) of the Constitution Act, 1867 gave the government the burden of managing the reserve lands in the interests of the Indians, but the surrender extinguishes any jurisdiction of the federal government over the reserved lands (unanimous decision).


Between: Gilbert A. Smith

And: the Crown of Canada, acting for the Indian band of Red Bank

Interveners: Ontario and Quebec


In 1783, the Mi’kmaq Indians were given a grant of occupation to an area of land in New Brunswick known as the “Little South West tract”. In 1838, Ebenezer Travis was the first non-Indian to inhabit these lands.

These lands were surrendered by the Indians, along with other lands comprising the Red River Reserve in 1895 on the condition that they receive payment from the Crown. Payment was never received. Mr. Travis and his son, who succeeded him, continued to occupy these lands after the surrender until 1898. The succession then sells the land to the Mutch family. In 1952, Mr. Smith purchased the lands in question from the Mutch family.

In 1958, the Province of New Brunswick and Canada entered into an agreement whereby certain lands were transferred to the federal government. These lands were not subsequently sold or transferred.

In 1973, the federal Crown commenced an action for possession of the lands, on behalf of the Red Bank Band of Indians.


Smith: The long and interrupted occupation of the lands since 1838 makes him the titular owner. The surrender was absolute and extinguished all Indian title on the surrendered lands. The clause regarding the money from sale to be held in trust does not change the essence of the surrender as being unconditional.

 Canada: The Indians surrendered their lands in 1985 and they were not subsequently sold. The Crown, therefore, still retains possession and control over the lands. Furthermore, the surrender was conditional, therefore the federal power of s. 91(24) of the Constitution Act, 1867 continues to apply.

Decision of the lower courts

The Federal Court: The lands were effectively owned by Smith as a result of the continuous occupation from 1838 to 1973. The lands were exempt from federal jurisdiction.

The Federal Court of Appeal: Mr. Smith did not obtain titular ownership of the lands. Evidence is not sufficient to suggest that possession was uninterrupted or long enough. In any case, provincial prescription can not extinguish the federal government’s right on these lands, protected by section 91(24) of the Constitution Act.

Reasons for Judgement


Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.


In 1895, Indians agreed to the unconditional and absolute surrender of the lands to the federal Crown. The fact that the federal government holds the money from the sale and manages it for the benefit of the Indians does not change the nature of this cession.

The federal government has exclusive jurisdiction over Indians and their lands pursuant to s. 91(24) of the Constitution Act, 1867. If Aboriginals would like to sell their lands, they must surrender them to the Crown. However, when reserved lands are thus surrendered, they extinguish the jurisdiction of the federal government over them.

Here, the reserves were created by the colony of New Brunswick and the government of Canada was never the owner. The absolute surrender of the reserve lands represents the surrender of the Indian right to use the lands. Surrendered lands cannot continue to be reserve lands. As a result, the provincial title is free of Indian rights under s. 91(24) the Constitution Act, 1867.

 The 1895 surrender does not change the surrender’s nature of being absolute. The federal government has no power to manage the surrendered lands. The lands cannot be retained under federal jurisdiction.


This case completes St. Catherine’s Milling and Lumber Co. v. The Queen and decides that an unconditional surrender necessarily extinguishes the rights on the surrendered land pursuant to s. 91(24) of the Constitution Act, 1867 (Isaac, 2004).

Consequently, Aboriginal rights on formerly reserved lands are extinguished as well.

Related Cases

St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46

Corporation of Surrey v. Peace Arch Enterprises Ltd. (1970), 74 W.W.R. 380 (B.C.C.A.)


Isaac Thomas. 2004. Aboriginal Law: commentary, cases and materials, 3rd ed. Saskatoon: Purich Pub.

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