Negative Capability: Of Provinces and Lands Reserved for the Indians

Canada’s constitution assigns to the provinces general power to govern the lands and resources located within their boundaries but reserves to the federal order of government the authority in relation to “Lands reserved for the Indians” Under Canadian law, the mere existence of this federal power imposes substantial restrictions on provincial authority to regulate these lands and the interests in them. How, then, is one to determine which, if any, provincial measures having to do with land have legal force on, or in application to, such lands? And which lands, in the end, are subject, under mainstream Canadian law, to provincial, and which exclusively to federal, authority? Release of the Delgamuukw decision in late 1997 made the task of answering the first of these questions more urgent and the task of answering the second more difficult. We now know that “Lands reserved for the Indians” include not only Indian reserves set aside deliberately but all lands subject to valid Indian claims of Aboriginal title. We do not yet know which lands those are, but we do know that non Aboriginal people believe they have rights and interests, derived from provincial authorities, in many of the lands that are in dispute. The legal status of those putative rights and interests is now open to question. This article explores these issues from within the matrix of existing Canadian constitutional law. It argues that provinces, acting as such, have no power to determine or to regulate matters relating to the ownership, possession, occupation, use or disposition of Indian lands, even in the absence of countervailing federal measures, and it doubts that any mechanism now exists in Canadian law to extend, for practical purposes, the reach of provincial measures to such lands. It suggests a test for use in ascertaining which provincial measures generally can, and which cannot, apply on lands reserved for the Indians; it wonders, on constitutional grounds, how provincial law can authorize enforcement on such lands of provincial measures that do apply there; and it documents some of the challenges now facing both Aboriginal and non-Aboriginal peoples interested in clarifying which lands are Indian lands and which are not