R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta
| Jurisdiction | UK Non-devolved |
| Judgment Date | 11 March 1982 |
| Court | House of Lords |
| Date | 11 March 1982 |
Crown - Canada - Treaty obligations to Indian peoples - Whether owed by Crown in right of United Kingdom - Whether Crown separate in respect of self-governing territories -
In 1763 the Crown by Royal Proclamation declared that the lands reserved to the Indians of North America were to be held under the Crown's sovereignty for the use of the Indians. The British North America Act 1867F2 gave the Canadian Dominion Parliament the sole right to legislate for Indians and the lands reserved to them. After 1867 various treaties were made between the Crown and the Indian peoples across Canada which recognised the Indian peoples' rights of enjoyment of the land reserved to them under the dominion of the Crown. Those treaty obligations were recognised by the British North America Act 1930F3; and section 7 (1) of the Statute of Westminster 1931F4 saved the Acts of 1867 and 1930 from the effects of that statute.
In November 1981 a provincial Canadian Indian association applied for judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her Government in the United Kingdom. Woolf J. refused the application. The Court of Appeal granted the association leave to apply to that court for judicial review seeking a similar declaration and two other provincial Canadian Indian unions were granted leave to join in the application.
On the application:—
Held, dismissing the application, that the Crown was not single and indivisible but separate in respect of each self governing territory within the Commonwealth; that although, pending the passing into law of the Canada Bill currently before the United Kingdom Parliament, that Parliament had the power to repeal or amend the
The following cases are referred to in the judgments:
Attorney-General v. Great Southern and Western Railway Co. of Ireland [
Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada [
Bonanza Creek Gold Mining Co. Ltd. v. The King [
Calder v. Attorney-General of British Columbia (
Campbell v. Hall (
Faithorn v. Territory of Papua (
Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd. (
Holmes, In re (
Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick [
Mellenger v. New Brunswick Development Corporation [
New Windsor Corporation v. Mellor [
Reg. v. Isaac (
Reg. v. Polchies (unreported), December 2, 1981; Provincial Court (Criminal Division) of New Brunswick.
Reg. v. Secretary of State for Home Department, Ex parte Bhurosah [
St. Catherine's Milling and Lumber Co. v. The Queen (
Theodore v. Duncan [
Williams v. Howarth [
The following additional cases were cited in argument:
Adams v. Adams (Attorney-General intervening) [
Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd. [
Attorney-General for Dominion of Canada v. Attorney-General for Ontario; Attorney-General for Quebec v. Attorney-General for Ontario [
Attorney-General for the Province of Quebec v. Attorney-General for the Dominion of Canada [
Buck v. Attorney-General [
Buttes Gas and Oil Co. v. Hammer (No. 3) [
Dominion of Canada v. Province of Ontario [
Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development (
Madzimbamuto v. Lardner-Burke [
Mutasa v. Attorney-General [
Ontario Mining Co. Ltd. v. Seybold [
Reg. v. George [
Reg. v. Sikyea (
APPLICATION for judicial review.
On November 23, 1981, the Indian Association of Alberta applied for leave to apply for judicial review in respect of a decision on about November 11, 1980, by the Secretary of State for Foreign and Commonwealth Affairs that treaty obligations entered into with certain Indian people of Canada were not now owed by Her Majesty in right of Her Government in the United Kingdom. The relief sought was declarations that (i) the decision of the Secretary of State that all treaty obligations entered into by the Crown with the Indian peoples of Canada became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931 was wrong in law and (ii) that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her Government in the United Kingdom.
The grounds upon which relief was sought were (i) it was a fundamental principle of the settlement of Canada that lands would only be ceded to the British Crown by the Indian peoples of Canada through a process of fair and open meetings resulting in binding treaties; that principle was given effect to by the Royal Proclamation of 1763 part of which read: “We do, with the advice of our Privy Council strictly enjoin and require that no private person do presume to make any purchase from the said Indians of any lands reserved for the said Indians within those parts of our colonies where we have thought proper to allow settlement; but that, if at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us in our name, at some public meeting or assembly of the said Indians …”; (ii) both before and after the promulgation of the Proclamation of Rights the Crown entered into a large number of treaties both written and oral, with the Indian peoples of Canada, some affecting the applicants; (iii) the decision of the Secretary of State … was that the direct relationship between the Crown in right of the United Kingdom and the treaty peoples came to an end with the attainment of independence by Canada or at the latest with the Statute of Westminster 1931; (iv) that view was wrong in law for the following reasons: (a) the true legal character of the Indian treaties was that they constituted part of the law and custom of the constitution, guaranteeing, inter alia, the continuance of the conduct of Indian affairs or Indian relations with the Crown in formal communal meeting; (b) it followed that the rules and practice of international law respecting succession to treaty obligations were inapplicable; (c) on a true construction of the Statute of Westminster 1931, it was not the intention of the United Kingdom Parliament that the United Kingdom Government and Parliament should cease to have responsibility and jurisdiction in respect of Canada; the United Kingdom Parliament remained free to amend the British North America Acts and thereby to protect the applicants; (d) there was no express statutory provision in the British North America Acts or the Statute of Westminster or elsewhere transferring the obligations owed under the treaties by the Crown in right of the Government of the United Kingdom to Canada; (e) there was no reason to imply such a transfer from the history of constitutional relations between the United Kingdom and Canada; (v) in the premises, the treaty obligations owed by the Crown to the applicants were still owed by Her Majesty in respect of her Government in the United Kingdom.
On December 9, 1981, Woolf J. dismissed the application.
On December 21, 1981, the Court of Appeal granted the association leave to apply for judicial review. By notice of motion of December 23, 1981, the association applied to the Court of Appeal for judicial review seeking the same declarations on the same grounds as on November 23, 1981. The Union of New Brunswick Indians and the Union of Nova Scotia Indians were joined as parties to the application. The Secretary of State for Foreign and Commonwealth Affairs and the Government of Canada were respondents...
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