Who Rules the Valley of the Six Nations?
(A discussion of Isaac v. Davey)
Introduction
Next fall the case of Isaac v. Davey” will be appealed before the
Supreme Court of Canada. Given the present high profile and
contentious nature of Native land claims, it is likely that a full Bench
will entertain counsels’ arguments.
It is hoped that the following discussion of the decisions both of
Osler J. in the Ontario High Court and of Schroeder, Jessup and
Arnup JJ.A. in the Court of Appeal, coupled with a brief reference to
the surrounding history, will provide some insight into the “series
of interwoven issues” 3 that comprise this most complex case.
Facts
Briefly, the case deals with the two rival factions of the Six
Nations Indians, both living on the “tract” near Brantford, Ontario.
The plaintiffs (respondents) are adherents of the elective system of
selecting their governing council members pursuant to the Indian
Act,4 while the defendants (appellants) are seeking a return to (or
in their view preservation of), government by “Hereditary Chiefs”.’
The dissidence arose out of the alleged failure of the Elected
Council to maintain contact with the people it was meant to re-
present. The Council reportedly neglected to consult its constituents
on matters such as the closing of the Mohawk Institute (the local
school), and the taking of soil samples by strangers. Since the in-
ception of the Elected Council in 1924, the frustration with the
Council gradually grew to the point where a spirit of passive co-
operation evolved into a tactic of confrontation.
1(1974) 51 D.L.R. (3d) 170.
2(1973) 38 D.L.R. (3d) 23.
3 Supra, note 1, 172.
4 R.S.C. 1970, c.I-6.
G In Logan v. Styres (1959) 20 D.L.R. (2d) 416, 417, the term “Hereditary
Chiefs” was used “to describe the system whereby the Clan Mothers designated
a Chief from the male members of certain families within the Clan”.
0 Isaac v. Davey, supra, note 2, the Examination for Discovery of Elwood
Green, January 10, 1972, 9. It is also interesting to note that in Logan v.
Styres, ibid., 418, the passive yet almost overwhelming attitude of the Six
Nations Band led the court to conclude the following:
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In an attempt to bring matters to a head, the defendants secured
with padlocks the doors of the Council House in which the govern-
ment of the band was conducted, and generally obstructed and
interfered with its use. This action was followed by at least two very
unproductive meetings between the plaintiffs and defendants which
only served to solidify the animosity betwen them. As a result, on
July 15, 1970 the plaintiffs commenced an action for an injunction
restraining the defendants from interfering with the plaintiffs’ use of
the Council House.
Up until 1924 when the provisions of Part II of the Indian Act,
entitled “Indian Advancement” and dealing with the elective system
of chiefs and councillors,7 were made applicable to the Six Nations
Band by Order in Council P.C. 1629,8 the Hereditary Chiefs had the
right to possession of the Council House. However, when the Elected
Council allegedly became the governing body through the operation
of this Order in Council, the possession of the Council House passed
to its members.
The decision to convert the system of government of the Six
Nations Indians from one of Hereditary Chiefs to that of Elected
Council was reached on the basis of the report by Lieutenant Colonel
Andrew Thompson, K.C. commissioned by the Governor General in
Council on March 20, 1923V The report concluded that
“It would appear that many of the Six Nations Indians, a great majority
in fact, do not recognize the authority of the Parliament of Canada to
provide for elected Councillors or to provide for the surrender of
Reserve lands by means of a vote. Such members of the Six Nations
Indians it would appear, simply refrain from voting at all and in the
proposed surrender of the lands in question when a vote was held on
July 27, 1957, only 53 votes were cast … out of about 3,600 eligible voters.”
Even more recently it is reported in the judgement of OslerI. in Isaac v.
Davey, supra, note 2, 34 that:
“In 1969 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 councillor. 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 candidate obtained in
district No. 5, 70 and 62 votes and in district No. 6, 42 and 41 votes”.
7 R.S.C. 1906, c.81, Part II.
8 Order in Council P.C. 1629, September 17, 1924, revoked and replaced by
Order in Council P.C. 6015, November 13, 1951.
9 The report was “to investigate and inquire generally into the affairs of
the Six Nations Indians, including matters relating to education, health,
morality, election of chiefs, powers assumed by the council, administration of
justice, soldiers’ settlement and other matters affecting the management,
life and progress of the said Indians as may be required by the Superintendent
General of Indian Affairs”; see P.C. 1629, supra, note 8, 1.
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… a comparatively small number of old women have the selection of
those who are entrusted with the transaction of the business of the Six
Nations Indians, while the vast majority have nothing whatsoever to say in
the choice of their public servants. 0
It was this which led the Privy Council to attempt to apply Part II of
the Indian Act” to the Six Nations Band of Indians.’
In both the Ontario High Court and the Court of Appeal the
defense to the charges of obstruction and interference were pre-
dicated on the assertion that the Elected Council had no rights in
law to enter the Council House. The defendants argued that the
Elected Council could only be legitimized by P.C. 1629′ a made pur-
suant to section 93 of the Indian Act.’ 4 However, for the Indian Act
to apply, the Six Nations Confederacy must be a “band” as defined
in section 2(d):
… 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….
Section 2(i) defines a “reserve” as:
… any tract of land set apart by treaty … for the use or benefit of
or granted to a particular band of Indians, of which the legal title is
in the Crown, and which remains so set apart … .16
Clearly both definitions require that legal title be vested in the
Crown. The contention of the defendants is that title to the Six
Nations lands is not vested in the Crown, from which it follows that
the Indians are not a “band” and do not live on a “reserve”. Assuming
this to be so it is clear that any provisions made pursuant to section
93 of the Indian Act cannot apply to the Six Nations Indians, since
that section reads:
Whenever the Governor in Council deems it advisable for the good
government of a band, to introduce the elective system of chiefs and
councillors … he may provide that the chief and councillors … of any
band shall be elected, as hereinafter provided … .16
Order in Council P.C. 1629 which purported to establish an Elected
Council for the Six Nations Confederacy is such a provision.
10 Ibid., 2.
1 Supra, note 7.
12 Unfortunately, as noted in The Globe and Mail, October 5, 1974: “In effect,
the majority of the Six Nations living on the reserve have refused to re-
cognize the application of the Indian Act to them and to the reserve.”
13 Supra, note 8.
14R.S.C. 1906, c.81, s.93 (subsequently R.S.C. 1952, c.149, s.73(1), now R.S.C.
1970, c.I-6, s.74(1)).
15R.S.C. 1906, c.81, s2(d) and (i) (subsequently R.S.C. 1952, c.149, s.2(1) (a)
and (o), now R.S.C. 1970, c.I-6, s.2(1)).
16 Supra, note 14 (emphasis added).
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Essentially Osler J.’s decision was based on the finding that the
Six Nations Indians had been granted ownership in fee simple of
their lands by the Simcoe Patent of 17931 and thus section 93 of
the Indian Act could not apply to them 8 As a result he ruled in
favour of the defendants and dismissed the action for an injunction.
But if the Six Nations Confederacy is not a “band” on a “reserve”
then what is it? Exactly this question was put to one of the de-
fendants, Elwood Green, by counsel for the plaintiffs during the
examination for discovery. Green, the spokesman for the warriors
at Oshwekan (the location of the demonstration that gave rise to
the action) replied:
It’s not an organization as such. It’s actually the Six Nations Confederacy
as – what remains of it as it was established prior to even the coming
of Columbus. It’s not an organization such as Kiwanis, Knights of
Columbus, or Allied Iroquois Association or anything like that. It’s not
that type of an organization. It’s the actual Government of the Iroquois
people [h]as (sic) it had been established since the formation of the
Iroquois Confederacy. 19
Before discussing the judgment of Arnup J.A. of the Court of
Appeal, it is appropriate to outline the historical events surrounding
the grant of the controversial Simcoe Patent,” since the Court of
Appeal attached some weight to these circumstances. On the ques-
tion of title OslerJ. simply found that “in [his] opinion, the
‘Simcoe grant’ of 1793 was effective to pass title to all members of
the Six Nations Band in fee simple”?’ Arnup J.A., on the other hand,
in overturning Osler J.’s decision stated that:
The task of the Court is to construe the Simcoe Patent to determine
what it was meant to do. In this task the Court must not only look at
the words used in the document, but must construe those words against
the background of the history and the facts existing at the time it was
executed.22
17 See Appendix II, infra.
‘ 8 OslerJ.’s alternative argument based on the Canadian Bill of Rights,
S.C. 1960, c.44 (see R.S.C. 1970, Appendix III), supra, note 2, 34-37, will not be
dealt with here since much of his argument was predicated on cases now
greatly mitigated by Attorney-General of Canada v. Lavell [1974] S.C.R. 1349.
This is not to suggest that the Supreme Court will be unwilling to hear
arguments based on the Bill of Rights, in fact it may well be that leave to
appeal, granted by Laskin CJ.C., Judson and Spence JJ., was based on such
considerations especially in the light of the fact that both Laskin CJ.C. and
SpenceJ. dissented in the Lavell decision and more recently in the case of
Attorney-General of Canada v. Canard (1975) 52 D.L.R. (3d) 548.
19 The Examination for Discovery of Elwood Green, supra, note 6, 3.
2
0 Supra, note 17.
2l Supra, note 2, 30.
22 Supra, note 1, 180.
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He then proceeded to find that the Simcoe Patent vested in the Six
Nations Indians merely a personal and usufructuary right.
History of the Simcoe Patent
On July 6, 1775, almost a year before the Declaration of Inde-
pendence, the Second Continental Congress of what was to become
the United States of America issued its eloquent Declaration of
Cause of Taking Up Arms. By December of that same year colonial
relations had been irrevocably jeopardized by the Crown’s enact-
ment of the American Prohibitory Act. These events led the British
to begin counting their allies in North America so that even before
the Declaration of Independence they had enlisted the alliance of the
Six Nations Tribes.1 It is true not all of the Six Nations rallied to the
King but certainly a significant number fought alongside the British
troops. 23a
Originally, the Six Nations had occupied the northern section of
what is now New York, Pennsylvania and Ohio. In exchange for their
loyalty the British had assured the Six Nations Indians that their
property rights would be fully restored at the end of hostilities. 4
In 1780 and 1781 when “so much depended on the Indians’ ability
and readiness to maintain adequate pressure on the American
Forces”,25 the promises of Sir Guy Carleton, Governor of Quebec,
later reiterated by Sir Frederick Haldimand in 1779, were constantly
stressed. However, as the British position worsened the Indians
became increasingly worried over the validity of the British promises
to restore their property rights “to the condition they were in before
the contest began”2 6 The truth of the matter is that no definite
provision was made, either in the preliminary negotiations or in the
definitive treaty of peace concluded in September 1783, to provide
for the territorial rights of the Six Nations. In short, the British did
not even attempt to make good their promises to their loyal allies. 27
Finally, at the insistence of Chief Joseph Brant and in an attempt
to keep the Six Nations “in Good Humour” and to convince them
that Britain was still strong and capable of protecting their in-
= The Six Nations Tribes included the Cayuga, Mohawk, Oneida, Onondaga,
Seneca and Tuscarora Indians; P. A. Cumming and N. H. Mickenberg (eds.),
Native Rights in Canada 2d ed. (1972), 108-109.
23a For a history of British relations with the Six Nations Indians, see C. M.
Johnston (ed.), The Valley of the Six Nations (1964).
24Ibid., xxxiv.
25 Ibid.
26 Ibid.
27Ibid.
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COMMENTS – COMMENTAIRES
terests,28 Lord Haldimand, in his capacity as Governor of Quebec,
bought a tract of land for 1,180.7.4 from the Mississagua Indians
and gave it to the Six Nations Indians.2 9
Even today we are not certain of the exact ‘boundaries of the tract
he gave to the Six Nations in exchange for their loyalty;29a what we
do know however, is that out of the Haldimand Proclamation of 1784
came a conveyance which allowed the
… Mohawk Nation, and such other of the Six Nation Indians as wish
to settle in that Quarter to take Possession of, & Settle upon the Banks
of the River … which them & their Posterity are to enjoy for ever.3 o
Apparently a disagreement as to whether or not the Six Nations
Indians could alienate the lands arose at once. The Indian leader
Brant stressed the necessity of allowing the whites to buy up some
of the land:
From the very beginning the chief, obviously a considerably Europeanized
entrepreneur, appears to have realized that the original grant of 1784
was much too large to be managed productively by the Six Nations
alone and that the ingenuity of and examples set by, white merchants and
farmers would be highly desirable assets.3 1
Due to several problems with the Haldimand Proclamation, not
the least of which was its lack of the Great Seal,3 vagueness con-
cerning the physical boundaries of the tractn and uncertainty as to.
the legal nature of the title that was to vest, Lord Simcoe in 1793
attempted to resolve matters by a final and unambiguous deed. It is
the interpretation of the Simcoe Patent of 179311 that is at issue in
this case. If, as Osler J. found, the Patent gave the Six Nations
Indians fee simple ownership in the property, then, as explained
above, the Indian Act cannot be applied to this particular group.
If, however (and only if), the Patent is interpreted as giving the
Six Nations Indians merely the use of the land, then the Indian Act
and all its consequences will apply.
28 Ibid.
29 Supra, note 1, 175.
29a Infra, note 33.
3 0 See Appendix I, infra.
3 1 Supra, note 23a, xliii. It is interesting that the use of land as an economic
base and bargaining lever is part of Indian strategy even today.
32 Doe ex Dem. Jackson v. Wilkes (1851) 4 U.C.Q.B. (O.S.) 142, 146.
33 C. M. Johnston, supra, note 23a, xxxix-xl.
34 C. M. Johnston, Brant County (1967), 7.
35 Supra, note 17.
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The Interpretation of the Simcoe Patent by the Ontario Court of
Appeal
As mentioned above, 6 Arnup J.A. saw the task of the Court as
extending beyond the mere application of the technical language of
the Sincoe Patent; he believed that is was necessary to construe the
words of the Patent against its background and history.
From one point of view, Arnup J.A., is undoubtedly correct in
his formulation of the Court’s duty;37 the problem, of course, is to
construe properly the words of the Simcoe Patent. However, it
appears there are at least three levels of analysis that may be applied
to the Patent. The first is simply to construe the words as they appear
on the face of the document:
We being desirous of showing our approbation of the same and in
recompense of the losses they may have sustained of providing a con-
venient Tract of Land under our protection for a safe and comfortable
Retreat for them and their posterity Have of our Special Grace certain
Knowledge and mere motion given and granted and by these presents
Do 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 ….
IT IS OUR ROYAL WILL AND PLEASURE that no transfer alienation
conveyance sale gift exchange lease property or possession shall at any
time be made or given of the said District or Territory or any part or
parcel thereof by any of the said Chiefs Warriors Women or people …. 38
Initial analysis of the phrase “and their heirs forever” would lead
one to conclude that the conveyance is a fee simple subject to a
restraint on alienation. Since the restriction appears to be one that
36OSupra, note 22.
371n the case of Re Walker (1925) 56 O.L.R. 517, a testator gave property to
his wife, intending her to have all the rights incident to ownership with a
direction that “should any portion of my estate still remain in the hands of
my said wife at the time of [her] decease undisposed of by her such remainder
shall be divided as follows”; (at 518).
MiddletonJ.A. commenting on the duty of the court said:
“When a testator gives property to one, intending him to have all the
rights incident to ownership, and adds to this a gift over of that which
remains in specie at his death or at the death of that person, he is
endeavouring to do that which is impossible. His intention is plain but
it cannot be given effect to. The Court has then to endeavour to give
such effect to the wishes of the testator as is legally possible, by
ascertaining which part of the testamentary intention predominates and
by giving effect to it, rejecting the subordinate intention as being
repugnant to the dominant intention.” (at 522).
3 8 Supra, note 17 (emphasis added).
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COMMENTS – COMMENTAIRES
substantially deprives the Six Nations Band of its power to alienate, 9
it probably cannot be allowed to stand:
In accordance with the cardinal principle that the power of alienation
is necessarily and inseparably incidental to ownership, it has been held in
a long line of decisions that if an absolute interests is given to a donee …
any restriction which substantially takes that power away is void as
being repugnant to the very conception of ownership. 40
However, should the court decide that the restriction does not sub-
stantially deprive the Band of its power to alienate, the grant in fee
simple would stand until such time as the Band sought to alienate
their lands. Should this occur, the Crown would have a right of
re-entry, not an occurrence uncommon to fee simple estates.
The more likely conclusion however, is that the restriction on
alienation is repugnant to the fee simple conveyance and the two
cannot stand together. Thus in order to determine the precise nature
of the interest presently vested in the Six Nations Band, it would
have to be decided whether the Simcoe Patent grants a fee simple
subject to a condition subsequent or a fee simple determinable.
Should a court hold that it grants the latter, the clause restricting
alienation would invalidate the whole deed: “A determinable interest
fails altogether if the possibility of reverter is invalidated, for to
treat it as absolute would be to alter its quantum as fixed by the
limitation.”41 Should a court come to such a decision, the result
would be the possibility of completely divesting the Six Nations
Indians of any title to the land.
However, due to the composition of the Simcoe Patent, it is
unlikely that the court would find the restriction on alienation to be
anything other than a condition subsequent, since an examination of
the Patent leads one to conclude that the terminating event is not
“an integral and necdssary part of the formula from which the size
of the interest is to be ascertained”, but rather that “the terminating
event is external to the limitation … a divided clause from the
grant”.42
If so, the repugnant condition would be struck down,
leaving the Six Nations with an unencumbered fee simple estate4 3
While it appears clear that of the two possibilities presented
above a court would recognize the Patent as a fee simple with a
39 For an illustration of a court’s attempt to restrict the concept of substan-
tial deprivation, see the much criticized case of Re Macleay (1875) L.R. 20
Eq. 186.
40 E. H. Bum, Chesire’s Modern Law of Real Property lth ed. (1972), 319.
See also R. Megarry, A Manual of the Law of Real Property (1969), 33.
41 Cheshire, ibid., 318.
42 Ibid., 316.
43 Ibid., 319.
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condition subsequent, such a decision is not vital to the determina-
tion of the case at Bar (although it could conceivably have significant
results at a later date), for all that must be shown by the defendant
for the purposes of this case is that the Patent does not convey a
“use” of the land in which the Crown retains title.
While the type of analysis outlined above may be appropriate
in some instances, it is important to remember that a second canon
of interpretation holds that:
The grammatical and ordinary sense of the words is to be adhered to,
unless that would lead to some absurdity, or some repugnance or in-
consistency with the rest of the instrument, in which case the grammatical
or ordinary sense of the words may be modified, so as to avoid that
absurdity and inconsistency, but no further.44
From this viewpoint, the task of the Court is to try and interpret
the words of the Simcoe Patent in a way which avoids the repug-
nancy that apparently exists on the face of the Patent.
In an attempt to do so, the Court of Appeal refers45 to the case of
R. v. St Catharine’s Milling & Lumber Co.,46 for an analysis of the
history of public lands and colonial policy4 7 It is interesting that
among a number of other cases dealing with the extinguishment of
Native title, set out in Appendix “D” of the judgment,48 the most
recent and authoritative Supreme Court decision of Calder v.
Attorney-General of B.C.49 is merely listed and not discussed. It is
significant because Arnup J.A. is satisfied that “[f]or the purposes
of this case… Indian title in Ontario has been a ‘personal and
usufructuary right, dependent on the goodwill of the Sovereign’ “.”
The problem is that such a characterization is vague and imprecise
at best. Even in the St Catharine’s Milling case “there was a great
deal of learned discussion at the Bar with respect to the precise
quality of the Indian right but their Lordships [did] not consider it
necessary to express -any opinion on the point”.”‘ In the Calder
decision Mr Justice Judson stated:
Although I think that it is clear that Indian title in British Columbia
cannot owe its origin to the Proclamation of 1763, the fact is that when the
settlers came, the Indians were there, organized in societies and occu-
44 Re Levy (1881) 17 Ch.D. 746, 751 per Jessel M.R.
45 Supra, note 1, 180.
46 (1885) 10 O.R. 196; aff’d (1887) 13 S.C.R. 577; aff’d (1889) 14 App.Cas.46
47 (1885) 10 O.R. 196, 203-6.
4sSupra, note 1, 188.
49 [1973] S.C.R. 313.
50 Supra, note 1, 180.
61 St Catharine’s Milling and Lumber Co. v. The Queen (1889) 14 App.Cas.46,
54-55.
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COMMENTS – COMMENTAIRES
pying the land as their forefathers had done for centuries. This is what
Indian title means and it does not help one in the solution of this
problem to call it a ‘personal or usufructuary right.52
Whatever expression the courts eventually adopt to designate the
Indian land title deriving from occupation from time immemorial, 53
it is clear that Native title arising from the Royal Proclamation of
17635- results from an established right. 4a The Proclamation, some-
times referred to as the “Charter of Indian Rights”, “[llike so many
great charters in English history … does not create rights but rather
affirms old rights” 5 5 The view that the Proclamation of 1763 did
not create new rights is further strengthened in an article by
Professor J. C. Smith” (to which we are thoughtfully directed by
the Court of Appeal). Professor Smith expounds the rationale behind
the concept of Native title:
In exchange for a voluntary recognition of sovereignty, active support in
its wars to acquire and retain territory in North America, the peaceful
opening up of land for settlement by members of the dominant society, the
crown recognized the property of the native peoples of Canada to their
land which they historically occupied and possessed. This recognition,
along with the development and adoption of certain rules and practices,
constituted an institution of property between the native peoples of
Canada and the crown.57
As a result of the above statements, it is submitted that the Royal
Proclamation of 1763 cannot apply to the Six Nations Indians in the
determination of their property interests, since it was not a question
of recognizing pre-existing rights in the land, but of granting a tract
hitherto unowned and unpossessed by the Six Nations Band as a
reward for fighting with the British.
However, Mr Justice Arnup does not in fact maintain that the
Royal Proclamation should apply to the Six Nations Indians per se.
Rather he takes the Proclamation as an indication of the British
policy towards the Indians at the time of Simcoe Patent and in
doing so adopts a third level of interpretation which looks not only
to the context of the words of the deed under construction, but also
to the wider context of surrounding circumstances. He states:
6 Supra, note 49, 328 (emphasis added).
63 Arnup JA. uses the phrase “a personal and usufructuary right” noting
that “[flor the purposes of this case it is sufficient”; supra, note 1, 180.
64 The Royal Proclamation, 1763, R.S.C. 1970, Appendix II.
54a It
is likely that as a result of the Calder case, supra, note 49, the Royal
Proclamation of 1763 is not the only source of aboriginal title in Canada.
‘5 R. v. Koonungnak (1963) 45 W.W.R. 282, 302 (N.W.T. Terr.Ct.) per Sissons J.
56 J. C. Smith, The Concept of Native Title (1974) 24 U.of T. L. 1.
57 Ibid., 16.
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The words of the Simcoe Patent prohibiting alienation by the Indians
to anyone not of the band are also in keeping with the policy of the times
and the understanding of both the Indians and the Crown even prior to
the Haldimand Proclamation, and enunciated in 1763.58
As to exactly what British policy towards the Six Nations Indians
prior to the Simcoe Patent was we shall probably always be in doubt.
For Lord Haldimand did not see fit to restrict alienation, and even
more ironically Lord Dorchester, Lord Simcoe’s titular superior
… publicly expressed the opinion that despite the lack of conventional
legal sanctions
the ‘advantages’ Haldimand had conferred upon the
Confederacy –
including presumably the right of alienation –
should be
unconditionally reaffirmed.5 9
As further evidence towards proving the British policy of giving
Native People a “communal use” of the land they occupied at the
time of the white man’s arrival rather than an outright grant, the
cases of Amodu Tijani v. Secretary, Southern Nigeria,0 Sunmonu v.
Disu Raphael,”‘ Sakariyawo Oshodi v. Moriamo Dakolo,0 and Oyekan
v. Adele,0 are listed by the Court of Appeal without discussion. All
refer to a communal usufruct or a similar interest being communally
vested in the Native people of Nigeria0 4 The Court comes to the
conclusion that under circumstances such as those surrounding the
Simcoe Patent, British policy was to give a personal and usufruc-
tuary right, and that this is what was granted to the Six Nations
Indians –
because they were Indians and regardless of the fact that
they had not occupied the land from time immemorial. The four
Nigerian cases mentioned above, coupled with the 1885 case of St
Catharine’s Milling & Lumber Co. 2 and a reference to Professor
Smith’s article The Concept of Native Titles0 form the body of
authority which the Court believes is sufficient to arrive at this
conclusion. It
is interesting to note however that Profesor Smith
‘s Supra, note 1, 181. R. v. Lady McMaster [1926] Ex. C.R. 68 was listed in
Appendix “D” to the judgement in Isaac v. Davey, ibid., 188, presumably as
authority for saying that British policy was not to allow Indians any right
of alienation, but in that case, the Regis Indian tribe was assumed to have
been in occupation prior to 1763 and presumably since time immemorial:
see R. v. Lady McMaster, ibid., 69.
59 C. M. Johnston, supra, note 23a, xlvi.
,0 [1921] 2 A.C. 339, 402.
61 [1927] A.C. 881.
02 [1930] A.C. 667.
63 [1957] 2 All E.R. 785, 789.
4 For a much more comprehensive study of the aboriginal land question
6
throughout the world see the judgement of Blackburn J. in Milirrpum v.
Nabalco Pty Ltd (1971) 17 F.L.R. 141.
65Supra, note 46.
6 Supra, note 56.
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COMMENTS – COMMENTAIRES
rejects all blanket statements regarding the nature of Indian title.
After dismissing the proposition that Indian title is to be viewed as
possessing all of the qualities of a fee simple estate he points out
that it is not “really correct to say categorically that native title is
a usufructuary interest”P7
The characterization of Native title in the United States is
similar to that in Canada08 so far as discussion is limited to an
investigation of aboriginal land title arising from continued occupa-
tion from time immemorial. Nowhere is there authority in the
cases cited by the Court of Appeal for the proposition that when
Native peoples are given land for purposes other than that of
extinguishing aboriginal title, the court is to assume that the Native
people have vested in them a mere use of the land.
Other cases were referred to by the Court merely through being
included in Appendix “D” of the judgementplsa The cases of Brown
v. West 9 and Doe ex Dem. Jackson v. Wilkes 0 are presumably listed
in an attempt to show that the British policy towards the Six Nations
Indians, as it should have been reflected in the Haldimand Pro-
clamation of 1784, was “to protect the Indians, so far as they could,
in the enjoyment of their property, and to guard them against being
imposed upon and dispossessed by the white inhabitants”.7’
No mention of the Simcoe Patent is made in either case. In fact
Robinson C.J. in Doe ex Dem. Jackson v. Wilkes,7 2 which dealt with
the significance of the Great Seal73 in the Haldimand Proclamation,
refers to a letter written by Mr Goulburn, Under-Secretary of State
for the colonies in 1816, to an Indian agent, Captain Norton, in which
it was stated that:
… there is no difficulty on the part of his Majesty’s government, to admit
that the grant on the Grand River, which was after the peace of 1783 made
to the Five Nations and their posterity forever, is a grant as full and as
binding upon the government as any other made to individual settlers.7 4
07 Ibid., 14.
68In R. v. White and Bob (1964) 50 D.L.R. (2d) 613, 631, (B.C.CA.), aff’d
(1965) 52 D.L.R. (2d) 481 (S.C.C.) NorrisJ. reviewed Johnson v. McIntosh 8
Wheaton 543, 21 U.S. 240 (1823)
(U.S.S.C.) and concluded “[t]he judgement
of the learned Chief Justice is entirely consistent with the Privy Council in
St Catharine’s Milling & Lumber Co. v. The Queen!” (supra, note 46).
OaSupra, note 1, 188.
0 (1846) 1 Gr.E. & A. 117.
70 (1851) 4 U.C.Q.B. (O.S.) 142.
71 Supra, note 69, 118.
7 Supra, note 70, 149.
73 Doe dem. Sheldon v. Ramsay (1853) 9 U.C.Q.B. 105 dealt with essentially
the same problem.
74Supra, note 70, 143 (emphasis added).
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Robinson C.J. admits this letter’s possible significance, offering that:
It states very openly and candidly what effect the Government are willing
to concede to it, so far as their rights and the rights of the Indians are
concerned, and would be a very strong document in support of the Indians
if anything had been since done by the Government inconsistent with the
frank avowal contained in that letter.75
However, he felt that the letter could not be allowed to affect the
Court’s construction of the document under consideration.
There is, however, one case listed by the Court in Appendix “D”,
Sero v. Gault,76 which does deal with a specific grant to an Indian
Band. It concerns a grant by Lord Simcoe to the Bay of Quinte
Indians77 “to be held and enjoyed by them in the most free and
ample manner and according to the several customs and usages” 7a
The Ontario Supreme Court decided that the words “customs and
usages” were “words of tenure, setting out the estate of the grantees
in the land”78 and did not, as the Indians contended, exempt them
from section 4 of the Game and Fisheries Act,7 9 which prohibited
fishing with nets without a license.
Even if Sero v. Gaultso had expressly stated that the Indians were
only to get the use of the land, we would still be wise to be very
cautious in applying the case to the Simcoe Patent concerning the
tract near Brantford. As Jessel M.R. said in Aspen v. Seddon, “I
think it is the duty of a Judge to ascertain the construction of the
instrument before him, and not to refer to the construction put by
another Judge upon an instrument, perhaps similar, but not the
8 1
same”.
Furthermore, even assuming that a British policy towards In-
dians not coming under the Proclamation of 1763 could be ascer-
tained, there would still be great difficulty in construing the Simcoe
Patent:
[T]he question is not what the parties to a deed may have intended to do
by entering into that deed, but what is the meaning of the words used in
75 Ibid., 149.
76 (1921) 64 D.L.R. 327.
7 These Indians were originally part of the Six Nations Band but on being
forced from the United States chose to break with Chief Joseph Brant and
settle in the Bay of Quinte; supra, note 1, 174.
77aSupra, note 76, 332.
78 Ibid.
79 R.S.O. 1914, c262.
80 Supra, note 76.
81 (1874) L.R. 10 Ch.394, 397.
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COMMENTS – COMMENTAIRES
that deed: a most important distinction in all cases of construction and
the disregard of which often leads to erroneous conclusions. 82
While it is true that the literal meaning of a deed may be discerned
by extrinsic evidence where the deed is unclear, it should also be
noted, as was pointed out by Lord Cranworth in Attorney-General v.
Clapham,83 that such evidence may not be received if it contradicts
the actual terms of the deed; it is only admissible in so far as it
aids the court in understanding the sense in which the words were
used, for example “as a dictionary for a foreign language or a book
of science”.”‘
The question that now must be asked is: can an intention on
the part of the Crown to give a personal and usufructuary right to
the Six Nations Indians be construed from the wording of the deed?
The wording of the Simcoe Patent is not similar to the Royal Pro-
clamation of 1763 which reads: “to reserve under our Sovereignty,
Protection, and Dominion, for the use of the said Indians….,a
The Simcoe Patent uses the phrases “Do Give and Grant to the Chiefs,
Warriors, Women and people of the said Six Nations and their heirs
for ever” and “no transfer, alienation … shall at any time be made
or given”. 5 As suggested above, a strict construction of these phrases
indicates the grant of a fee simple with a restriction on alienation.
that the Simcoe
However, the Court of Appeal has decided
Patent vests a personal and usufructuary right by construing it in the
lights of its historical context. This raises two serious questions.
First, under what authority does the Court justify recourse to
extrinsic evidence?
It is to be noticed that extrinsic evidence here does not mean evidence
of the writer’s intention but evidence to enable the court to interpret the
language used. It is only admissible, as so often with this subject of
construction, when there is some doubt as to what the words mean or
how they are to be applied to the circumstances of the writer.86
In interpreting the Simcoe Patent, therefore, the Court must find
words in the Patent itself which show an intention to vest in the
grantees something other than a fee simple subject to a restriction
on alienation. It can no doubt be persuasively argued that the very
existence of a fee simple with a restriction on alienation should put
the interpreter of the Patent on notice. However, being put on notice
per Lord Wensleydale.
8 2Monypenny v. Monypenny 11 E.R. (H.L.) 671, 684, (1861) 9 H.L.C. 114, 146
8343 E.R. (Ch.), 638, 653, (1855) 4 De G.M. & G. 591, 627.
84G. Dworkin, Odger’s Construction of Deeds 5th ed. (1967), 47-48.
84a Supra, note 54 (emphasis added).
8 Supra, note 17.
86 G. Dworkin, supra, note 84, 43-44.
McGILL LAW JOURNAL
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that the grantors may have had an intention other than that expressed
on the face of the deed is clearly not enough to decide this case in
favour of the plaintiffs. To achieve such a result the Court must
find that there is wording in the Patent itself which would indicate
an intention on the part of Lord Simcoe to vest in the Six Nations
Indians a personal and usufructuary right. There appears to be no
such indication unless one resorts to the actual collateral statements
of Simcoe himself. To permit this would clearly contravene the basic
rules of interpretation set out above and would seriously jeopardize
the reliability of deeds in general and particularly those made under
the Great Seal.
Following from this a second question, relating to the Court’s
contention that a personal and usufructuary right was given to the
Six Nations Indians, arises. How can a deed, by indirect historical
reference alone, and lacking any specific words to this effect, create
an interest in the grantees that does not even exist at common law?
Surely for the Court to-find a personal and usufructuary interest in
such a deed, where none exists at common law, transcends the point
of merely interpreting the language of the Patent to the extent that
it approaches a complete rewriting of the document by the Court.
Summary
From the above it is clear that the Simcoe Patent lends itself to
three possible levels of analysis:
1. The first is to construe strictly the words of the Patent and to
find a fee simple with a restriction on alienation. It is submitted
that this is too simplistic an approach and does not give adequate
recourse to the circumstances surrounding the deed.
I
2. The second is to read the document as a whole and through
recourse to past usage of the words attempt to reconcile the
repugnancy in the Patent. It is submitted that this is the correct
approach and that the Court found no custom allowing the words
of this -deed to be interpreted as conveying a mere personal and
usufructuary right to the Six Nations Indians.
3. The third is to interpret the deed in the light of Lord Simcoe’s
intention and British policy as revealed not only through referen-
ce to the deed itself, but also by considering extrinsic evidence as
to what the Patent was supposed to accomplish. It is this third
level of analysis which was adopted by the Court of Appeal.
However, even taking this broader view, it is submitted that there
is little evidence to show that the British custom towards Indians
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COMMENTS – COMMENTAIRES
not falling under the terms of the Royal Proclamation of 176387
was to vest in the grantees a personal and usufructuary right.
It is important to remember that for the purposes of this case
the plaintiffs must show that the tract given to the Six Nations
Indians falls under the definition of a “reserve”, that is:
… any tract or tracts of land set apart by treaty … for the use or benefit
of or granted to a particular band of Indians, of which the legal title is
in the Crown, and which remains so set apart….88
The case is indeed complicated and not every issue that will be
before the Supreme Court has been canvassed in this comment.
Nevertheless, the Bill of Rights89 argument aside,90 the case must
turn on the interpretation the Supreme Court decides to give the
Simcoe Patent.
Strictly speaking there is no opportunity for the Supreme Court
to take judicial consideration of the method of govermnent the Band
itself wishes to live under. Instead, the Court is unfortunately
restricted to deciding the case on the basis of an interpretation of
the Simcoe Patent, which will either confirm or deny that the Six
Nations Indians have an interest in the land other than that des-
cribed in section 2(i) of the Indian Act.91 Should the Court decide
that the Indian Act applies to the Six Nations tract, the Elected
Council will remain the legally sanctioned government of the Six
Nations: if not, the Indians will be allowed to carry on with their
six-hundred year old traditional form of government by Hereditary
Chiefs.
Peter Maxwell Jacobsen*
APPENDIX I
The Haldimand Proclamation, 1784
Whereas His Majesty having been pleased to direct that in Consideration
of the early Attachment to His Cause manifested by the Mohawk Indians,
& of the Loss of their Settlement they thereby sustained that a Convenient
Tract of Land under His protection should be chosen as a Safe & Com-
87 Supra, note 54.
88 Indian Act, supra, note 15, s.2(i) (emphasis added).
89 Supra, note 18.
!O Supra, note 18; supra, note 1, 176.
Ol Supra, note 15.
* LL.B. III (McGill). I would like to thank the Editorial Board of the McGill
Law Journal for their help in preparing this article for publication.
McGILL LAW JOURNAL
[Vol. 22
fortable Retreat for them & others of the Six Nations who have either lost
their Settlements within the Territory of the American States, or wish to
retire from them to the British –
I have, at the earnest Desire of many of
these His Majesty’s faithfull Allies purchased a Tract of Land, from the
Indians situated between the Lakes Ontario, Erie, & Huron and I do hereby
in His Majesty’s name authorize and permit the said Mohawk Nation, and
such other of the Six Nation Indians as wish to settle in that Quarter to take
Possessions of, & Settle upon the Banks of the River commonly called Ours
[Ouse] or Grand River, running into Lake Erie, allotting to them for that
Purpose Six Miles deep from each Side of the River beginning at Lake Erie,
& extending in that Proportion to the Head of the said River, which them &
their Posterity are to enjoy for ever.
Given under my Hand & Seal &c &c
25th Oct. 1784
(Signed) Fred: Haldimand
APPENDIX II
The Simcoe Patent, 1793
J. GRAVES SIMco.
George the third by the Grace of God of Great Britain, France and Ireland,
King, Defender of the Faith and so forth. To all to whom these presents shall
come Greeting – Know ye that whereas the attachment and fidelity of the
Chiefs, Warriors and people of the Six Nations to Us and our Government
has been made manifest on divers occasions by their spirited and zealous
exertions and by the bravery of their conduct and We being desirous of
showing our approbation of the same and in recompense of the losses they
may have sustained of providing a convenient Tract of Land under our
protection for a safe and comfortable Retreat for them and their posterity
Have of our special Grace certain Knowledge and mere motion given and
granted and by these presents Do Give and Grant to the Chiefs, Warriors,
Women and people of the said Six Nations and their heirs for ever All that
District or Territory of Land being parcel of a certain District lately purchased
by us of the Mississague Nation lying and being in the Home District of Our
Province of Upper Canada, beginning at the mouth of a certain River formerly
known by the name of Ours or Grand River now called the River Ouse,
where it empties itself into Lake Erie and running along the Banks of the
same for the space of six miles on each side of the said River or a space
co-extensive therewith conformably to a certain survey made of the said
Tract of Land and annexed to these presents and continuing along the said
River to a place called or known by the name of the forks and from thence
along the main stream of the said River for the space of six miles on each
side of the said stream or for a space equally extensive therewith as shall
be set out by a survey to be made of the same to the utmost extent of the
said River as far as the same has been purchased by Us and as the same is
bounded and limited in a certain Deed made to us by the Chiefs and people
of the said Mississague Nation, bearing date the seventh day of December
in the year of our Lord one thousand seven hundred and ninety-two to Have
and to Hold the said District or Territory of Land so bounded as aforesaid of
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COMMENTS – COMMENTAIRES
Us our Heirs and successors 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 for ever freely and clearly of and from all and all manner of Rents,
fines and services whatever to be rendered by them or any of them to Us
or Our Successors for the same and of and from all conditions stipulations
and agreements whatever except as hereinafter by Us expressed and declared
Giving and Granting and by these presents confirming to the said Chiefs
Warriors Women and people of the Six Nations and their heirs the full and
entire possession Use benefit and advantage of the said District or Territory to
be held and enjoyed by them in the most free and ample manner and according
to the several customs and usages of them the said Chiefs Warriors Women
and people of the said Six Nations 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
people of the Six Nations and their heirs and of securing to them the free
and undisturbed possession and enjoyment of the same.
IT IS OUR ROYAL WILL AND PLEASURE that no transfer alienation conveyance
sale gift exchange lease property or possession shall at any time be made or
given of the said District or Territory or any part or parcel thereof by any of
the said Chiefs Warriors Women or people person or persons whatever other
than among themselves the said Chiefs Warriors Women and people, but
that any such transfer alienation conveyance sale gift exchange lease or
possession shall be null and void and of no effect whatever. And that no
person or persons shall possess or occupy the said District or Territory or
any part or parcel thereof by or under pretence of any such alienation Title
or conveyance as aforesaid or by or under any pretence whatever under
pain of our severe displeasure And that in case any person or persons
other than them the said Chiefs Warriors Women and people of the said Six
Nations shall under pretence of any such title as aforesaid presume to
possess or occupy the said District or Territory or any part or parcel thereof
that it shall and may be lawful for us our Heirs and Successors at any time
hereafter to enter upon the Lands so occupied and possessed by any person
or persons other than the people of the said Six Nations and them the said
intruders thereof and therefrom wholly to dispossess and evict and to resume
the part or parcel so occupied to Ourselves, our heirs and successors Provided
always that if at any time the said Chiefs Warriors Women and people of
the said 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
Nations to be holden for that purpose by the Governor, Lieutenant-Governor
or person administering Our Government in our Province of Upper Canada,
IN TESTIMONY whereof, We have caused these our Letters to be made patent
and the great seal of our said Province to be hereunto affixed.
Witness, John Graves Simcoe, Esquire, Lieutenant-Governor and Cclonel
commanding our forces in Our said Province.
Given at Our Government House at Navy Hall this fourteenth day of
January in the year of our Lord, One thousand seven hundred and ninety-
three, in the thirty-third year of Our Reign.
