June 3, 1938 (18th Parliament, 3rd Session)

Hon. T. A. CRERAR (Minister of Mines and Resources):

When the resolution was being considered a few days ago the hon. member for St. Lawrence-St. George asked for certain information as to the position of various Indian reserves with respect to the minerals which might be found in or under them, and suggested it might be desirable to obtain a statement in the matter from the law officers of the crown.
I am not in a position to submit such a statement to-day. The matter has been before the Department of Justice for an opinion for some time, but the question is greatly involved and that opinion has not yet been received. With the permission of the committee however I believe I can outline the situation in the various provinces from a statement prepared by the officials of the department. With the permission of hon. members I shall read the statement, which is as follows:
The ownership of minerals underlying Indian reserves does not appear to have been determined with any finality, except as mentioned hereafter. Some months ago however the Department of Justice was asked for a statement

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as to just what the position of the crown in the right of the dominion is. Although this reference has been studied, when it is realized that there are 2,200 reserves scattered throughout the nine provinces, that these reserves were set aside or acquired at different times under varying conditions, and that the privy council and supreme court decisions on the subject of Indian reserve under-rights were given in connection with definite sets of circumstances that do not apply generally, and further that there seem to be some differences in the judgments, it will be appreciated that the task is by no means a simple one. Consequently it is not possible at this time to make a clear-cut statement as to the ownership of these minerals in all the provinces. In Ontario, the prairie provinces, and the railway belt and Peace river block, British Columbia, the situation is fairly clear, and it is desirable that proper mining regulations be established.
It might be well to make clear at the outset that part (1) of the bill does not involve any change in practice in the administration of Indian mineral lands. Mining regulations have been standing for years and it was only when the government revised the oil and gas regulations for Indian reserves with a view to bringing them up to date and providing for better revenue for the Indians, that the legal foundation for the regulations was questioned.
The justice department expressed doubt as to whether section 54 of the Indian Act was sufficiently wide to authorize the governor in council to pass general regulations of this kind. In other words while a particular lease or sale might be provided for by order in council, general regulations could not properly be set up under which the department might issue leases or otherwise dispose of such rights. The department has prepared new quartz mining regulations for Indian reserves but submission of these regulations to the governor general in council has been withheld pending approval being given by parliament to this bill.
Generally speaking the situation with respect to ownership of Indian reserve underrights appears to be about as follows:
Ontario
An agreement between the dominion and the province of Ontario was entered into on July 19, 1924, for the settlement of certain questions respecting Indian reserve lands. The agreement is set out in full in chapter 48 of the Dominion Statutes, 1924. It provided that Indian reserves should be administered by the dominion for the benefit of the Indians and-
"6. Except as provided in the next following paragraph, one-half of the consideration payable. whether by way of purchase money, rent, royalty or otherwise, in respect of any sale, lease or other disposition of a mining claim staked as aforesaid, and, if in any other sale, lease or other disposition hereafter made of Indian reserve lands in the province of Ontario, any minerals are included, and the consideration for such sale, lease or other disposition was to the knowledge of the Department of Indian Affairs affected by the existence or supposed existence in the said lands of such minerals, one-half of the consideration payable in respect of any such other sale, lease or other disposition, shall forthwith upon its receipt from time to time, be paid to the province of
Ontario; the other half only shall be dealt with by the Dominion of Canada as provided in the paragraph of this agreement numbered 1.
7. The last preceding paragraph shall not apply to the sale, lease or other disposition of any mining claim or minerals on or in any of the lands set apart as Indian reserves pursuant to the hereinbefore recited treaty made in 1873. and nothing in this agreement shall be deemed to detract from the rights of the Dominion of Canada touching any lands or minerals granted or conveyed by His Majesty for the use and benefit of Indians by letters patent under the great seal of the province of Upper Canada, of the province of Canada or of the province of Ontario, or in any minerals vested for such use and benefit by the operation upon any such letters patent of any statute of the province of Ontario."
In effect this means that the dominion deals with the disposal of mining rights in Indian reserves, that the province receives one-half the revenue therefrom and the Indian band concerned the other half, with the exception that in the case of certain reserves in the vicinity of the north-west angle of the Laki of the Woods covered by the Indian Treat) of 1873, the Indians receive all the revenue.
irame Provinces
When the natural resources transfer agreements were entered into with the three prairie provinces and the crown lands transferred from the dominion to the provinces, provision was made in the agreements to avoid the difficulties Which had existed in Ontario prior to the agreement of 1924. Two sections of these agreements read-
U- lands _ included in Indian reserves within the province, including those selected and surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in the crown and administered by the government of Canada for the purposes of Canada, and the province will from time to time upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied crown lands hereby transferred to its administration such further areas as the said Superintendent General may, in agreement with the Minister oi Mines and Natural Resources of the province, select as necessary to enable Canada to fulfil its obligations under the treaties with the Indians of the province, and such areas shall thereafter be administered bv Canada in the same way in all respects as if they had never passed to the province under the provisions hereof.
12. The provisions of paragraphs 1 to 6 inclusive and of paragraph 8 of the agreement made between the government of the Dominion ot Canada and the government of the province of Ontario on the 24th day of March, 1924, which said agreement was confirmed by Statute fol!rteei1 and fifteen George the fifth, chapter forty-eight, shall (except so far as they relate to the Bed of Navigable Waters Act) apply to the lands included in such Indian reserves as may hereafter be set aside under the last preceding clause as if the said agreement had been made between the parties hereto, and the provisions of the said paragraphs shall likewise apply to the lands included in the reserves heretofore selected and surveyed, except that neither the said lands

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nor the proceeds of the disposition thereof shall in any circumstances become administrable by or be paid to the province."
British Columbia
Section 13 of the agreement respecting the union of British Columbia with the dominion reads:
"13. The charge of the Indians, and the trusteeship and management of the lands reserved for their 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 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 referred for the decision of the secretary of state for the colonies."
The dominion and the province entered into an agreement on the 24th September, 1912 (McKenna-McBride), which provided for the setting up of a commission to adjust the acreage of Indian reserves in British Columbia. The agreement contemplated the conveyance by the province to the dominion of additional areas for Indian reserves with full power to deal with the lands in such manner as it deemed best suited for the purposes of the Indians, including the right to sell the lands for the benefit of the Indians. This agreement was approved by the governments of the dominion and the province. The commission's report was received on 30th June, 1916, and in 1920 a dominion act was passed (Chapter 51) enabling the governor in council to give effect to the report in whole or in part. A similar act was passed by the province in 1919 (Chapter 32). The report was approved by provincial order in council on 26th July, 1923, and by dominion order in council on 19tli July, 1924, excepting suggested "cut-offs" in railway belt.
On 22nd March, 1929, a supplementary agreement was entered into in connection with the reconveyance to the province of the railway belt anil Peace river block and with respect to the form of conveyance to be used in transferring the additional reserves to the dominion. This agreement provided in part for the exclusion from the general transfer of the railway belt and Peace river block of reserves previously set aside by the province or the dominion and for the administration of such reserves in accordance with the conditions of the McKenna-McBride agreement. The lands were excluded from the general transfer by section 13 of the natural resources transfer agreement which forms a schedule to the Railway Belt and Peace River Block Act. chapter 37, statutes of Canada 1930. Clause 3 of the agreement of 22nd March, 1929, reads:
"3. We have considered clause 4 of the document known as the McKenna-McBride agreement, which reads as follows:
'4. The lands which the commissioners shall determine are not necessary for the use of the Indians, shall be subdivided and sold by the

province at public auction/ It is considered that this provision might beneficially be varied so that it be provided that on agreement between the two governments, through their respective departments, the lands may be either subdivided for sale, or disposed of en bloc, as may appear most advantageous in the circumstances of each particular case, but that such sale and disposal shall be by public auction; and as to disposal of timber, mineral and similar rights, the same should be dealt with by agreement between the respective governments through their proper departments, and we shall recommend accordingly to our respective governments."
The forms of conveyance agreed upon in 1929 reads in part:
". . . the lands set out in schedule attached hereto be conveyed to His Majesty the King in the right of the Dominion of Canada in trust for the use and benefit of the Indians of the province of British Columbia, subject however to the right of the dominion government to deal with the said lands in such manner as they may deem best suited for the purpose of the Indians including a right to sell the said lands and fund or use the proceeds for the benefit of the Indians subject to the condition that in the event of any Indian tribe or band in British Columbia at some future time becoming extinct that any lands hereby conveyed for such tribe or band, and not sold or disposed of as heretofore provided, or any unexpended fund being the proceeds of any such sale, shall be conveyed or repaid to the grantor. ..."
For years the department has been endeavouring to secure a conveyance of title to the reserves agreed upon by the McKenna-McBride commission but without much success. The matter has been discussed more than once within recent months with Premier Pattullo and he has given his assurance that it would be adjusted without further undue delay.