ISAAC ET AL. v. DAVEY ET AL.

(1973), 38 D.L.R. (3d) 23 (also reported: [1973] 3 O.R. 677)

Ontario High Court, Osler J., 11 July 1973

(Appealed to Ontario Court of Appeal, infra p.115)

provisions of the Indian Act which, since its effect is to treat Indians, qua Indians, differently from other people, is inoperative in its entirety.

[The Queen v. Drybones, [1970] S.C.R. 282, 9 D.L.R. (3d) 473, [1970] 3 C.C.C. 355, 71 W.W.R. 161, 10 C.R.N.S. 334; Bedard v. Isaac et al., [1972] 2 O.R. 391, 25 D.L.R. (3d) 551; Canard v. A.-G. Can. et al. (1973), 30 D.L.R. (3d) 9, [1972] 5 W.W.R. 678, apld; Calder et al. v. A.-G. B.C. (1973), 34 D.L.R. (3d) 145, [l973] 4 W.W.R. 1; Sero v. Gault (1921), 50 O.L.R. 27, 64 D.L.R. 327, distd; R. v. St. Catherine's Milling & Lumber Co. (1885), 10 O.R. 196; affd 13 O.A.R. 148; affd 13 S.C.R. 577; affd 14 App. Cas. 46; Logan v. A.-G. Can., [1959] O.W.N. 361, 20 D.L.R. (2d) 416 sub nom. Logan v. Styres, refd to]

ACTION for an injunction restraining the defendants from obstructing and interfering with the plaintiffs' access to the Council House in the Village of Ohsweken on the Six Nations Reserve.

B. H. Kellock, Q.C., for plaintiffs.

J. Sopinka and A. Millward, for defendants other than Joseph Logan.

M. Montgomery, Q.C., for defendant, Joseph Logan.

A. Garneau and J. Beckett, for Attorney-General of Can- ada.

OSLER, J.:--This action was commenced on July 15, 1970, by the plaintiffs who then constituted the elected Council of the Six Nations Band within the meaning of the Indian Act, R.S.C. 1970, c. I-6. They sued on behalf of themselves and all other members of the Six Nations Band except the defendants.

Since the commencement of the action a purported election has intervened and at the opening of trial I was therefore moved to permit the addition of six further plaintiffs, success- ful at the election, as parties. No objection was voiced to this procedure and, accordingly, I permitted these persons to be added, their names being Sydney Henhawk, Victor Porter, Renson Jamieson, Ross Powless, Frank Montour and Vincent Sandy.

The defendants are adherents of a group of Indians, members of the Six Nations Band, who advocate a form of government other than that obtaining under the Indian Act and in particular, a return of the former system of govern- ment by persons referred to as "Hereditary Chiefs".

The defendants raised two issues of some constitutional im- portance, the first being that the plaintiffs have no status to maintain an action as they act under the provisions of the In- dian Act which was unlawfully imposed upon the inhabitants of the Six Nations lands by the Government of Canada and the second being that virtually all provisions of the Indian Act

have been rendered inoperative by the Canadian Bill of Rights. Accordingly, counsel for the Attorney-General of Can- ada appeared and asked to be heard as contemplated by the provisions of s. 36(4) of the Judicature Act, R.S.O. 1970, c. 228, and permission was, of course, given.

The relief claimed in the action is a permanent injunction restraining the defendants and any persons acting under their instructions from watching or besetting at or adjacent to the Council House in the Village of Ohsweken on the Six Nations Reserve, from obstructing or interfering with the plaintiffs or any other persons seeking entrance to or exit from the Council House and from obstructing or interfering with the lawful use of the Council House by the plaintiffs, their servants, agents, employees or any other person.

By admission filed as ex. 4, it is established that the doors of the Council House were padlocked during the period be- tween June 25,1970, and July 10, 1970, and between July 12, 1970, and July 16, 1970, by or on the express instructions of the defendants other than Joseph Logan and that the said de- fendants attended upon the Council House grounds and en- couraged other Indians to attend upon the Council House grounds during that period. Such acts were carried out for the purpose of denying to the plaintiffs the use of the Council House and the defendants other than Joseph Logan offered to refrain from such acts provided that an arrangement was made whereby the Confederacy Council, being the group to which I have already referred as the "Hereditary Chiefs", be allowed to control all conveyances of land upon the lands com- monly known as the Six Nations Reserve.

Joseph Logan does not admit responsibility for the acts described but on the evidence, I find that by virtue of his con- currence in a resolution passed by the council meeting of the Hereditary Chiefs on June 25th, he must be held responsible and is equally liable to be enjoined if judgment is to go against the other defendants.

On July 15, 1970, an interim injunction was granted by His Honour Judge R. W. Reville, Local Judge at Brantford, and on July 22, 1970, sitting in Weekly Court, I made an order on con- sent continuing that injunction until trial.

Since approximately October, 1924, there has been in effect on the Six Nations Reserve what was described in the Indian Act then in force, being R.S.C. 1906, c. 81, as the elective sys- tem of chiefs and councillors and the plaintiffs are all persons elected and holding office under that system. This was ac- complished by Order in Council, P.C. 1629, which applied Part

II of the Indian Act to the Six Nations Band of Indians and to their "Reserve". P.C. 1629 was revoked and replaced on November 12, 1951, by P.C. 6015 to the same effect. A large proportion of the inhabitants of the Six Nations lands have resisted that system from its beginning and take the position that the only persons entitled to govern the Six Nations people have been and continue to be those who become members of the council of traditional chiefs, the body which had governed the Six Nations confederacy since the thirteenth century.

The Council House, the padlocking of which gave rise to the present action, was built in 1886 when the Hereditary Chiefs represented the only form of government on the Six Nations lands. Those lands form part of a tract dealt with by a number of documents of great historic interest and significance. Imme- diately following the Treaty of Paris, a Royal Proclamation was issued on October 7, 1763, by which four distinct and sep- arate Governments were set up styled Quebec, East Florida, West Florida and Granada. Certain lands were reserved to the Indians and the Governors of the new colonies of Quebec, East Florida and West Florida were forbidden to grant warrants of survey or pass any patents for land so reserved and it was further declared to be the Royal will to reserve for the use of Indians all the land and territories not included within the limits of the new Government or within the limits of the terri- tory granted to the Hudson Bay Company. The Proclamation also enacted that no private person could make any purchase from the Indians of lands reserved to them within the colonies where settlement was permitted and that all purchases must be on behalf of the Crown in a public assembly of the Indians by the Governor of the colony in which the lands lie.

In 1784 the Mississagas Indian Nation granted "unto His Britannic Majesty and to his heirs and successors", inter alia, the lands with which this action is concerned. On October 25, 1784, Governor Sir Frederick Haldimand granted permission to the "Mohawk Nation and such other of the Six Nation Indi- ans as wish to settle in that quarter to take possession of and settle upon the banks of the river commonly called Ours (Ouse) or Grand River . . . which them and their posterity are to enjoy forever".

It appears that this somewhat informal document left the Indians with some misgivings and in July, 1792, Governor Clarke, Lieutenant-Governor of Lower Canada, pointed out to Governor Simcoe of Upper Canada that the Indians ap- peared "extremely anxious to have the deeds which have been promised and appear necessary to put them in the unequivocal possession of their lands".

Accordingly, what has been referred to as the Simcoe pat- ent of the Grand River lands to the Six Nations was executed by Governor Simcoe on January 14, 1793. This document in the name of George III did

give and grant to the chiefs, warriors, women and people of the said Six Nations and their heirs forever, all that district or territory of land being parcel of a certain district lately purchased by us of the Mississague Nation... [as described in the grant] to them the chiefs, warriors, women and people of the Six Nations and to and for the sole use and behoof of them and their heirs forever freely and clearly of and from all and all manner of rents, fines and ser- vices whatever to be rendered by them or any of them to us or our successors . . . to be held and enjoyed by them in the most free and ample manner and according to the several customs and usages of them . . . provided always and be it understood to be the true intent and meaning of these presents that for the purpose of assuring the said lands as aforesaid to the said chiefs, warriors, women and peo- ple of the Six Nations and their heirs and of securing to them the free and undisturbed possession and enjoyment of the same.

The grant goes on to provide that there shall be no transfer, alienation, lease or possession of any part of the said lands other than among the people themselves and it is further provided that if at any time the people of the Six Nations

should be inclined to dispose of and surrender their use and interest in the said district or territory or any part thereof, the same shall be purchased for us, our heirs and successors at some public meeting or assembly of the chiefs, warriors, and people of the said Six Na- tions to be holden for that purpose by the Governor, Lieutenant Gov- ernor or persons administering our government in our Province of Upper Canada...

It is said in argument that the Haldimand Treaty and the Simcoe Grant taken together differentiate the lands in the present action from all other Indian lands dealt with by the Proclamation of 1763.

In R. v. St. Catharines Milling & Lumber Co. (1885), 10 O.R. 196 [affirmed 13 O.A.R. 148; affirmed 13 S.C.R. 577], the history of Indian lands in Canada is exhaustively and helpfully reviewed by Chancellor Boyd. He points out at p. 226 that the Proclamation has frequently been referred to by the Indians as the charter of their rights. He then goes on to point out [at p. 227] that the Quebec Act which provided new ma- chinery of civil government superseded the proclamation which

... no doubt, remained operative as a declaration of sound principles which then and thereafter guided the Executive in disposing of In- dian claims, but as indicating for this century the scope of the In- dian reservations, or the intent with which they have been created under provincial rule, it must be regarded as obsolete.

On appeal to the Privy Council reported in (1888), 14 App. Cas. 46, Lord Watson had this to say [at pp. 54-5]:

Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown... It appears to... [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

In their Lordships view, the treaty shows "that the tenure of the Indians was a personal and usufructuary right dependent upon the goodwill of the sovereign".

The original, and perhaps present, title to these lands becomes of importance. The ancient claim of the Six Nations Indians to be a separate and sovereign people was expressly withdrawn from my consideration in the present case. As was determined by King, J., in Logan v. A.-G. Can., [1959] O.W.N. 361 at p. 362, 20 D.L.R. (2d) 416 sub nom. Logan v. Styres, at p. 422, of which I have taken the trouble to read the full opinion of my late brother:

In each of these deeds [Haldimand and Simcoe] it was made clear that those of the Six Nation Indians settling on the lands therein described, did so under the protection of the Crown. In his opinion, those of the Six Nation Indians settling on such lands, together with their posterity, by accepting the protection of the Crown then owned allegiance to the Crown and thus became subjects of the Crown. Thus, the Six Nations Indians from having been the faithful allies of the Crown became, instead, loyal subjects of the Crown.

By his judgment, King, J., specifically found that P.C. 6015 was not ultra vires.

In Sero v. Gault (1921), 50 O.L.R. 27 at p. 33, 64 D.L.R. 327 at p. 332, it was said by Riddell, J., that:

The land of this band was beyond question the property of the King; the only rights the Indians have in the land came through royal grant, i.e., the "Simcoe deed" of April 1, 1793 -- a grant of "special grace.... and mere motion" of certain land "pur- chased . . . of the Messissague, Nation . . . bounded in front by the Bay of Quinte . . . to be held and enjoyed by them in the most free and ample manner and according to the several customs and usages . . . "

The Simcoe deed there referred to under which the title of the Bay of Quinte Indians was to be judged, was not the Simcoe grant with which I am concerned, which was made in Jan- uary, 1793, rather than in April of that year. It is, however,

another of the very rare examples of specific grants to Indi- an bands which may effectively form a new root of title.

It is submitted to me that while R. v. St. Catharines Milling & Lumber Co. must be accepted as describing the rights of In- dians to the lands dealt with by the Proclamation of 1763 as being of a personal and usufructuary nature, dependent upon the goodwill of the Sovereign, the Judicial Committee was not there concerned with lands which had subsequently been made the subject of specific grants, as were the Grand River lands by the Simcoe Grant of January 14, 1793.

This distinction may be an important one. Leaving aside for the moment any question of possessory title, the application of the Indian Act, assuming it to be valid, to the Six Nations Band and to their lands may depend upon whether or not the Grand River lands are "lands reserved for the Indians" under s. 91, head 24 of the British North America Act, 1867.

In the St. Catharines Milling case, the meaning of that heading is examined by Lord Watson at p. 59. After examin- ing various arguments, it is there said that:

. . . the words actually used are, according to their natural meaning, sufficient to include all lands reserved, upon any terms or condi- tions, for Indian occupation. It appears to be the plain policy of the Act that, in order to ensure uniformity of administration, all such lands, and Indian affairs generally, shall be under the legislative control of one central authority.

In dealing with an argument put forward by the Dominion Government, however, their Lordships state in the next sen- tence but one that:

There can be no Á priori probability that the British Legislature, in a branch of the statute which professes to deal only with the dis- tribution of legislative power, intended to deprive the Provinces of rights which are expressly given them in that branch of it which relates to the distribution of revenues and assets. The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

As I read that language, the Judicial Committee is there as- serting simply that what power a Government has over lands is given by head 24 to the Dominion rather than to the provin- cial Government. This is true whether lands are simply re- served under the Proclamation of 1763, in which case the fee is in the Crown and a usufructuary right of occupation is given to the Indians, or whether, as in the present case, a special in- terest was acquired by the Indians "by treaty or otherwise".

The statute does not of itself affect or change any interest in land. It simply gives to the Dominion rather than to the Prov- ince the right to legislate about land, as for example in plan- ning legislation or conveyancing enactments.

The decision of King, J., to which I have referred, therefore seems to accord with the interpretation placed by their Lord- ships upon the British North America Act, 1867 to the extent that it implied power in Parliament to deal with "Indian lands".

The question of status of the plaintiffs to bring this action and to ask for an injunction is not, however, determined by the question of title. In my opinion, the "Simcoe grant" of 1793 was effective to pass title to all members of the Six Na- tions Band in fee simple. Difficult questions concerning joint tenancy and tenancy in common no doubt arise in the minds of conveyancers. However, the Crown, as represented by Lord Haldimand in 1784, was content to accept a grant from "the Sachems, war chiefs and principal women of the Mississagues Indian Nation", as a granting party and to refer to that grant as a purchase. The same tract of land, or a portion thereof, was dealt with by Haldimand in his proclamation of 1784, the true nature of which was probably closer to a licence than any other known form of conveyance, and by Lord Simcoe in 1793 in the form of an outright grant "to the chiefs, warriors, women and people of the said Six Nations and their heirs for- ever".

Subsequent events, including the passing of the Indian Act and of P.C. 6015, have not, in my view, affected the quality of that grant or the title held under it. Regardless of the prob- lems faced by conveyancers in dealing with lands held jointly or in common by some thousands of persons, for practical pur- poses the question must be determined whether in dealing with lands so held, as the Council House undoubtedly is, the leaders selected by the old system or those "elected" under the provisions of the Indian Act are to be recognized.

Perhaps it would be useful to state at this point that I have had the benefit of reading the judgments delivered in the Supreme Court of Canada in the case of Calder et al. v. A.-G. B.C. (1973), 34 D.L.R. (3d) 145, [1973] 4 W.W.R. 1. Three members of the Court, for reasons delivered by Judson, J., were of the view that the appeal should be dismissed on its merits and the decision of the Court of Appeal for British Columbia thereby approved. Three members would have al- lowed the appeal for the reasons given by Hall, J., while Pigeon, J., felt the appeal had to be dismissed for want of a

fiat, apparently necessary still in the Courts of British Colum- bia. In the result the action, which claimed a declaration "that the Aboriginal title, otherwise known as the Indian title, of the plaintiffs has never been lawfully extinguished", was dismissed. Because of the late admission of British Columbia to Confederation, the early days of colonization and its impact upon the Indian followed a somewhat different course from that followed in the area covered by the Simcoe grant and for that reason the case is of very little assistance in the case at bar. The Calder case contains much learned and profitable dis- course on the subject of aboriginal rights, but that is not at issue here. The Calder case did not claim under a specific grant, as do those here claiming to represent the Six Nations Band, and that decision can stand only with respect to those lands and those bands of Indians having similar historic backgrounds.

For the reasons I have indicated, I feel that I must follow the decision of King, J., so far as his conclusion that the Six Nations Band was not a sovereign people is concerned. The members of the band are subjects of the Crown and bound by the laws of Canada, in the broadest sense. Regretfully, how- ever, I am unable to reach the same conclusion respecting P.C. 6015 of 1951. That Order in Council revoked and replaced an earlier one, P.C. 1629 of 1924.

After giving the matter the most earnest consideration, I am persuaded that certain provisions of the Indian Act as it stood in 1924, the date of passage of P.C. 1629, and as it stood in November, 1951, the date of passage of P.C. 6015, had the effect of making those orders ultra vires. The earlier version, enacted in 1906, contained in s.2 thereof definitions of "band", "reserve", "special reserve" and "Indian lands". P.C. 1629 provided that "this band [i.e., the Six Nations Indians] is considered fit to have Part II of the Indian Act, entitled 'In- dian Advancement' applied to it" and it was so decided. Ac- cording to s.2 (d) of the Act, a "band" means any tribe, band or body of Indians who own or are interested in a reserve or in Indian lands in common, of which the legal title is vested in the Crown. . . ". I have already found that the members of the Six Nations Band are and were interested in lands in common but, contrary to almost all other lands in eastern Canada resided upon by lndians, the legal title is not vested in the Crown. Similarly, s.2(i) defines "reserve" as meaning "any tract or tracts of land set apart for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown . . . ". Similarly, s.2(j) defines "special

reserve" as lands "the title of which is vested in a society, cor- poration or community legally established, and capable of suing and being sued or in a person or persons of European descent".

Part II of the Act, as purportedly applied by P.C. 1629, may, by s. 173, be made applicable to any band of Indians and s. 174 contemplates the declaration of a band of Indians as fit to have Part II apply to it. However broad the power of the Dominion Government, Parliament has, by the portions of the Indian Act to which I have referred, defined the way in which those powers are to be exercised and the Act may only be applied in accordance with its own terms. Having decided that this land, perhaps uniquely, is vested not in the Crown but in the Indians themselves, those sections under which the Gover- nor in Council purported to act had no application to the lands in question and I cannot agree that P.C. 1629 represented a valid exercise of power.

P.C. 6015 was passed in November, 1951, and purported to revoke P.C. 1629. The Act later known as the Indian Act, R.S.C. 1952, c. 149, was proclaimed in force September 4, 1951, and it was therefore under that statute that the Gover- nor in Council purported to act. The 1951 statute defines "band" in s. 2(1) (a) as a body of Indians for whose use and benefit in common, lands, "the legal title to which is vested in Her Majesty, have been set apart . . . " or for whose use moneys are held by Her Majesty or "declared by the Governor in Council to be a band for the purposes of this Act".

Again, "reserve" by s. 2 (1) (o) means a tract of land, "the legal title to which is vested in Her Majesty, that has been set apart . . . for the use and benefit of a band". For reasons al- ready given, the Six Nations group of Indians do not comprise a band by virtue of their landholdings, there is no evidence that at the time of the passage of the Indian Act of 1951 moneys were held by Her Majesty for their use and benefit and it could only be said that the Act applied to this group if it was declared to be a band for the purposes of the Act as con- templated in s. 2(1) (a) (iii).

P.C. 6015 in its first operative section reads as follows:

(1) It is hereby declared that after the 15th day of November, 1951 the Council of the Six Nations Indian Band in the Province of On- tario, consisting of a chief and councillors, shall be selected by elec- tions to be held in accordance with the Indian Act.

This declaration follows minutely the provisions of s. 73 (1) of the Act which provides that:

73(1) Whenever he deems it advisable for the good government of

a band, the Governor in Council may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accor- dance with this Act.

The Order in Council is, in my view, a plain exercise of the power contemplated by s.73(1) to apply certain portions of the Act to an existing band. It does not, however, constitute a declaration that a certain body of Indians is a band for the purposes of this Act as contemplated by s. 2(1) (a) (iii). That declaration must be separately made and cannot be implied simply because action is taken under s. 73(1). As the Six Na- tions Indians do not qualify by virtue of the vesting of title to their land in Her Majesty and as they have not been declared by the Governor in Council to be a band for the purposes of the Act, the purported exercise by P.C. 6016 of the powers given by s. 73(1) was of no effect. I can only conclude that the attention of my late brother King in Logan v. A.-G. Can., [1959] O.W.N. 361, 20 D.L.R. (2d) 416 sub nom. Logan v. Styres, was not drawn to those provisions of the Act which I have thus reviewed.

It follows that the plaintiffs, whether original plaintiffs or those added by order, have no authority under the Indian Act to occupy or control the Council House to the exclusion of any others. Even assuming the validity of P.C. 6015, it is pointed out that s. 81 (h) of the current Act which gives a band coun- cil under the Act the power to make by-laws for "the regula- tion of the construction, repair and use of buildings, whether owned by the band or by individual members of the band", has not been followed and no effort has been made by the plain- tiffs to control the use of the building through the only method by which the Act purports to give them power to do so. It is admitted by all parties that the Council House was built in 1886 at a time when beyond all question the Heredi- tary Chiefs had the management and control of the lands.

It is claimed by the plaintiffs that even if they have no stat- utory rights they do represent all other members of the Six Nations Band except the defendants. Some showing of the right to such a claim must be made if it is to be sustainable. In the present instance not only is there no showing of such a right, but such evidence as there is indicates conclusively not only that the system imposed by the Indian Act is not sup- ported by more than a small fraction of the population of the lands in question, but that at least certain of the plaintiffs were elected by a very small fraction of those eligible. Mrs. Mary Bloomfield, the secretary to the Six Nations Council for

about the last five years, produced exs. 16 and 17 photostatic copies of the official reports of the band elections in 1969 and 1971. In 1969, out of some 10,000 band members of whom about 5,000 are in actual residence, a total of 547 votes were cast. Of these 315 were cast for Richard Isaac as chief coun- cillor. Acclamations apparently occurred in all other districts but Nos. 5 and 6. In those districts totals of 225 and 156 votes were cast respectively and the winning candidates obtained in district No. 5, 70 and 62 votes, and in district No. 6, 42 and 41 votes. Their representative character is therefore seriously in doubt. In my view, the defendants as representing the Council of Hereditary Chiefs have by far the better claim to the man- agement of the premises in question and the action of the plaintiffs should be dismissed and the interlocutory injunction dissolved.

On the assumption that I am wrong in my conclusions regarding the application of the Indian Act to the Six Nations Band and hence the right of the plaintiffs, I should go on and deal with the question of the Indian Act itself, the challenge to which constituted the principal defence of the defendant Joseph Logan.

It is provided in the Canadian Bill of Rights [by s. 1] that "It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race . . the following human rights and fun- damental freedoms, namely. . . (b) the right of the individual to equality before the law and the protection of the law".

A consideration of these provisions of the Canadian Bill of Rights has led to a number of decisions that specific sections of the Indian Act are inoperative by reason of discrimination, by reason of race or sex. The general question of the manner in which the Canadian Bill of Rights should be applied was considered in The Queen v. Drybones, [1970] S.C.R. 282, 9 D.L.R. (3d) 473, [1970] 3 C.C.C. 355. The argument that the Canadian Bill of Rights should be treated merely as a rule of construction was rejected by the majority and it was declared by Ritchie, J., with whom the majority of the Court agreed, that if a law of Canada cannot be "sensibly construed and applied" so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Ca- nadian Bill of Rights then such law is inoperative, unless expressly declared by an Act of Parliament that it shall operate notwithstanding the Canadian Bill of Rights.

Ritchie, J., held that the word "law" in s. 1 (b) of the Cana- dian Bill of Rights is to be construed as meaning "the law of

Canada", which is itself defined in s. 5(2) of Part II of the Canadian Bill of Rights. The specific finding in the Drybones case was that if a law or regulation enacted by the Parlia- ment of Canada discriminates in a manner prohibited by the Canadian Bill of Rights that law is to be declared inoperative. He there found that what is now s. 95(b) of the Indian Act made it an offence for an individual, on account of his race, to do something which his fellow Canadians were free to do without having committed any offence.

In Bedard v. Isaac et al., [1972] 2 O.R. 391, 25 D.L.R. (3d) 551, I found that s. 12(1) (b) of the Indian Act must be de- clared inoperative for the reason that within the Indian Act itself females were treated differently than males with respect to certain property rights and hence were discriminated against on grounds of sex.

In Canard v. A.-G. Can. et al. (1973), 30 D.L.R. (3d) 9, [1972] 5 W.W.R. 678, Dickson, J.A., for the Manitoba Court of Appeal, found that s. 43 of the Indian Act, which gives the Minister power to appoint executors and generally authorize and deal with the administration of estates, discriminated against Mrs. Canard by denying to her [at p.20] "a civil right which other Canadians, not of her race, enjoy--the right to administer the estate of her husband. The denial of that right is a negation of the principle of equality and places Mrs. Canard in a state of inferiority vis-á-vis other Canadians." Dickson, J.A., recognizes the concern expressed by Pigeon, J., where at p. 303 S.C.R., p. 489 D.L.R., of the Drybones case, he states with reference to the Indian Act that:

This legislative authority is obviously intended to be exercised over matters that are, as regards persons other than Indians, within the exclusive legislative authority of the Provinces. Complete uniformity in provincial legislation is clearly not to be expected, not to mention the fact that further diversity must also result from special legisla- tion for the territories. Equality before the law in the sense in which it was understood in the Courts below would require the Indians to be subject in every province to the same rules of law as all others in every particular not merely on the question of drunkenness.

Dickson, J.A., also recognizes the point made by W. S. Tar- nopolsky in an article "The Canadian Bill of Rights from Diefenbaker to Drybones", 17 McGill L.Rev. p.437 (1971), wherein he states, in commenting on the Drybones case that:

. . . an inequality which arises because of different provisions in a federal statute as contrasted with a provincial statute, would not be covered by the present "equality before the law" clause in the Cana- dian Bill of Rights. Thus, although the Indian Act limits the tes- tamentary rights of Indians in a way that no provincial laws limit the testamentary rights of any other person, this provision in

theIndian Act could not be declared inoperative merely on the strength of the Drybones decision. It cannot apply to an inequality which arises because of the operation of a federal law and a provin- cial law.... The decision is limited to an inequality which arises by operation of two or more provisions in federal statutes or regula- tions.

Dickson, J.A., goes on as follows [at pp. 22-3]:

I accept that this case cannot be decided merely on the strength of the Drybones decision. I also recognize the validity of the argument advanced in the Drybones case that the question of whether a piece of federal legislation has been rendered inoperative should not rest upon the law of any Province or territory, for its operation would then vary from Province to Province and from time to time. But I do not think that is the situation with which we are faced in the present case. In the present case we have a situation in which the Parliament of Canada has said in effect "because you are an Indian you shall not administer the estate of your late husband". Parlia- ment has thereby in a law of Canada placed a legal road-block in the way of one particular racial group, placing that racial group in a position of inequality before the law.

I agree that the test of discrimination cannot be whether those said to be discriminated against are treated differently from persons in a similar situation within the various Prov- inces or territories. In our system of divided legislative juris- diction, there can be as many ways of treating people as there are Legislatures.

Dickson, J.A., as I read his conclusions, really founded him- self upon the following sentence [at p. 23]: "The Bill of R ights has capacity to render inoperative, racially discrimina- tory legislation, whether or not there be provincial legislation touching the subject-matter."

Ritchie, J., in the Drybones case was careful to state that the decision in that case must not be taken as extending beyond its own particular context, namely, discrimination by reason of race as between citizens of a territory with respect to which the Dominion has power to enact laws. It would, no doubt, be possible to examine in detail each section of the In- dian Act as it became relevant in specific litigation and to decide seriatim upon the validity of such sections. In my view, however, the reasoning of Dickson, J.A., and indeed of Pigeon, J., in his dissenting judgment in the Drybones case compels the conclusion that for all practical purposes the entire Act must now be held to be inoperative. By virtue of head 24 of s. 91 of the British North America Act, 1867, the whole pur- pose of the statute is to deal with Indians and lands reserved for the Indians. Whether the specific subject-matter is tes- tamentary capacity, rights of administration, restraint on

alienation, enfranchisement or municipal or local Govern- ment, the effect is to treat Indians qua Indians differently from other people. In each specific instance an Indian covered by the Canadian Bill of Rights has his rights affected in a manner applying only to him and to others of his race and hence he is deprived of equality before the law by reason of race. Applying the Drybones case in the manner in which it was approved by the majority in that case, it must be declared that the Indian Act is inoperative by virtue of its discrim- ination by reason of race.

For these reasons, the application will be dismissed with costs.

Judgment for defendants.