1896. Déchêne & Lacoste, J.C. A quelque point de vue que l'on se place, je crois que cette cour devrait déclarer que la participation du défendeur au contrat illicite, par elle seule, ne le prive pas de ses droits de défense, et, appliquant ces règles à la cause actuelle, je suis d'opinion d'accorder l'appel avec dépens. Jugement infirmé, Blanchet, J., diss. T. E. Bédard, C.R., procureur des appelants. F. X. Drouin, C.R., procureur de l'intimé. (W.C.L.) MONTREAL, 20 January, 1897. Coram SIR ALEXANDRE LACOSTE, C.J., BossÉ, BLANCHET, THE HONORABLE SIR OLIVER MOWAT, Attorney- Constitutional law-Indian lands-Seigniory of Sault St. Louis. HELD:-1. The distribution of powers contained in sections 91 and 92 of the British North America Act, 1867, not only divides the legislative powers between the Parliament of the Dominion and the Legislatures of the Provinces, but it also defines their respective administerial powers and functions whenever the subjects mentioned are capable of being administered by a government. 2. By paragraph 24 of section 91, the government of the Dominion is entrusted and charged with the care and supervision of the Indians and with the control and administration of the property appropriated for their use. 3. Section 109 of the British North America Act, 1867, assigns all lands vested in the Crown to the government of the province in which they are situated, but does so subject" to any trusts existing in respect thereof and to any interest other than that of the province in "the same." " 4. The Seigniory of Sault St. Louis was granted for the use and habitation of the Iroquois Indians and the soil is vested in the Crown, but subject to the enjoyment or usufruct of the Indians. 5. The naked ownership therefore belongs to the Province of Quebec within which the Seigniory is situated, but the control and administration of the Indians' usufruct is entrusted and appertains to the government of the Dominion. 6. The suit for the recovery of the arrears of rent due by the defendant was therefore properly brought by the Attorney-General of the Dominion. The appeal was from a judgment of the Superior Court Montreal, Doherty, J., 30th June, 1896, and the formal judgment of the Court was as follows: "The Court having taken communication of the facta submitted by the parties, plaintiff and intervenant, respectively, upon the merits of the intervention of intervenant, and the contestation thereof by plaintiff, examined the proceedings and proof of record, and deliberated: "Whereas plaintiff in his quality of Minister of Justice and Attorney-General of Her Majesty the Queen for the Dominion of Canada, now represented by the plaintiff par reprise d'instance, (his successor in the said office) by his action seeks to have certain lots of land situate in the Seigniory of Sault St. Louis, in the parish of St. Constant, in the County of Laprairie, and known as numbers 177, 180, 238, 150, and 245, of the plan and book of reference of said Seigniory, whereof he alleges defendant is in possession as proprietor, declared affected in favor of Her Majesty for the payment of a yearly rental of $8.80, payable by privilege, and defendant ordered to abandon the same unless he prefer to pay an annual rental of $8.80, for the past 30 years, amounting to $264, and pass a titrenouvel at his own expense, in favor of Her Majesty, binding himself to pay said rental for the future, he further alleging that said Seigniory and the lands therein, appertain to and are held by Her Majesty the Queen, the Crown in trust, and to be administered for the tribe of Indians known as the Iroquois Indians, and such Indians as may join them upon the Caughnawauga Reserve, and that the Government of the Dominion of Canada acts for and represents and has full control for Her Majesty, of matters 1897. Mowat, Atty.-Gen. Casgrain, Atty.-Gen. 1897. Mowat, Atty.-Gen. & Casgrain, Atty -Gen. relating to Indians, and lands reserved for Indians as proprietor and Seigneur of the said Seigniory of Sault St. Louis; "That there is due on said lands a yearly seigniorial rent of $8.80, which has not been paid for a period exceeding thirty years; that the defendant holds said lands under titles, recognizing the rights of the Crown, as aforesaid, his auteurs having by two titres-nouvels of dates respectively the 30th July, and 8th August, 1828, in favour respectively of Alexis Ménard, and Joseph Pinsonneault, promised to pay to the Crown a certain yearly rental, now fixed under the schedule duly prepared and published by the Seigniorial Commissioners at the sum of $8.80 per annum, for the whole of said lots; that in said titres-nouvels and in other deeds, it was erroneously stated that the said lands formerly formed part of the estates belonging to the religious order of Jesuits, but said property never did so belong, but was originally ceded in favor of and for the use and benefit of the said Iroquois Indians, and since 1762 has been held and administered by the Crown, in trust for said Indians, and defendant has so admitted, and has up to 30 years ago, paid to Her Majesty the obligations under said titles, and subsequently the seigniorial rents provided by the Seigniorial Act of 1854; 66 Whereas intervenant in his quality of Attorney-General of Her Majesty for the Province of Quebec, now represented by the intervenant par reprise d'instance, his successor in said office, intervenes, by his petition in intervention, as amended by leave of the Court, alleging that, as appears by the declaration and the titres-nouvels therein recited and therewith produced as exhibits, the defendant is indebted to Her Majesty in the sum of $264, under authentic deeds passed in 1828; that it appears also by said exhibits, that the lands for which said sum is claimed, as seigniorial rents, are situate in the Seigniory of Sault St. Louis, and heretofore formed part of the property of the order of Jesuits in this Province; that under the British North America Act, the Seigniorial rents of said Seigniory belong to the Province of Quebec, and can only be claimed by intervenant; that assuming said Seigniory not to belong to the Province but to form part of the property of the Indians, the sum claimed cannot be so claimed by plaintiff, but by intervenant,-the Provincial Government, under the terms of the British North America Act, having alone the administration and control of the cens et rentes which may accrue in the said Seigniory, which Seigniory, even were it the property of the Indians, would nevertheless be held in trust by the said Province, and the Government of the Dominion has no control in the said property; that it is true that, under the British. North America Act the Government of the Dominion has power to legislate concerning Indians and Indian reserves, but that it is not true that said Government has the administration of the properties reserved for Indians— and intervenant in consequence concludes that it be declared that the sum claimed is not the property or under the control of the Federal Government, but belongs to the Province of Quebec, subject to any trust attaching to said Seigniory, and that defendant be condemned to pay the same to him; "Whereas plaintiff contests said intervention, reiterating the allegation of his declaration, that the lands in question formed no part of any property that ever belonged to the Jesuit order, and reciting in support of said assertion the original deeds of concession of the land in question, granted in 1680, by the king of France; a judgment of General Gage and his military council, of date 22nd March, 1760, and the fact that in said judgment, which declared the lands in question as forming part of a larger extent of land in said deeds referred to, and described to have been conceded to the Iroquois Indians, and not to the Rev. Fathers of the Society of Jesus, the latter acquiesced, and that in no list of their properties made by said Rev. Fathers, or by public authority, were said lands included; that by said judgment it was ordered that as regards any portion of said lands conceded 1897. Mowat, 1897. Mowat, Atty.-Gen. & Casgrain, by the said Rev. Fathers of the Society of Jesus prior to said judgment, the concessionnaires should not be disturbed, provided they appeared before the proper authorAtty.-Gen. ities, and executed titres-nouvels, and that the revenues of the lands so conceded should be received by Her Majesty for the benefit of said Indians; plaintiff further, by said answer alleges that under the provisions of the Act, 18 Victoria, chapter 3, the conceded portion of the lands granted under the original deeds above referred to, was included as coming under said Act, and styled the Seigniory of Sault St. Louis, and the balance of the territory remains as an Indian Reserve, known as the Caughnawauga Indian Reserve; that of said conceded portion of said territory a schedule and Seigniorial cadastre was duly made and published, showing the amounts that would be due by the various cessionnaires under the terms of the Seigniorial Act, which cadastre and schedule was made and proclaimed, and came into force on the 17th December, 1860; that from 1762 to 1830 the management and administration of Indians and of Indian affairs, including the lands and rents thereof, were under the control of, and vested in, the Governor-General for Canada, or Lower Canada, for the time being, and thereafter the same was transferred to the Governments of the respective Provinces of Upper and Lower Canada until Confederation, since which time the Government of Canada has control of Indians and Indian affairs, and said rents have been by said Government collected; that under the B. N. A. Act of 1867, all matters respecting Indians, and lands reserved. for Indians come within the jurisdiction, control and legislation of the Government of Canada; that the rents in question are rents and revenues on the property belonging to the Indians, reserved for them and to be administered by the Government of Canada for their behalf, and that intervenant and the Province of Quebec have no right or authority to claim or collect said rents, or anything to do with them, or any powers of administration in respect thereof; |