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GIBOUAKD, Coiiiiscl for Oil dice. T i' 3? y? IN THE MATTER OF THE ARBITRATION BETWEEN THE DOMINION OF CANADA AND THE PROVINCES OF ONTARIO AND QUEBEC. Answer of Quebec to the Claim of Canada for Indian Increased Annuities under the '* Robinson Treaties." Quebec inteuds to deal with this case as presented by the Dominion of Canada against the late Province of Canada. Canada demands from the said Province the sum of $325,440.00, being, as alleged, arrears of annuities under the " Robinson Treaties" from the year 1851 lo the year 1867, made up, about 1875, of the difference between the payments at |1.60 and $4.00 per head, with interest to the first of December, 1892. Quebec does not intend to deal with thb arrears of annuities claimed from the Province of Ontario, as specified in paragraphs 2 and 3 of the " Statement of Case of the Dominion." This case involves several questions of fact and also of law. It is based upon the following clause of the " Robinson Treaties " : " The said William Benjamin Robinson, on behalf of Her Majesty, " who desires to deal liberally and justly with all her subjects, further " promises and agrees that should the territory hereby ceded by the parties " of the second part at any future period produce such an amount as will " enabli the Government of this Province, without incurring loss, to " increise the annuity hereby secured to them, then, in that case, the same " shal.' be augmented from time to time, provided that the amount paid to " each individual shall not exceed the sum of one pound Provincial cur- oa 1 "> '-• "^ " rency in any one year, or such further sum as Her Majesty may be " graciously pleased to order, and provided further that the number of " Indians entitled to the benefit of this treaty shall amount to two-thirds " of their present number, which is fourteen hundred and twenty-two, to " entitle them to claim the full benefit thereof And should they not at " any future period amount to two-thirds of fourteen hundred and twenty- " two, then the said annuity shall be diminished in proportion to their " actual number." The questions of fact may be summed up as follows : I. At any future period from and after the date of the said Treaties 10 did the territories ceded produce an amount -and, if so, what amount- such as would have enabled the Government of the late Province of Canada, " without incurring loss," to increase the annuity or annuities secured to the Indians under the said Treaties ? II. What amount has been paid to each individual Indian every year ? III. What has been the number of Indians at any one time after the making of the said Treaties entitled to the benefit of the said Treaties ? IV. What have been the expenditures and charges in respect of the Territories ceded under the said Treaties, and what have been the receipts 20 in respect of the same ? These are so many questions of fact which should be fully investigated beforo the Board can decide : whether the Territories ceded have produced such an amount as would have enabled the Government to increase the annuities, " without incurring loss." Before adducing evidence, Quebec urges that several questions of law should be first determined by the Board : — I. What is the definition of the word " Indian " within the meaning of these treaties ? What Indians are entitled to the annuities and increase of annuities under the said " Robinson Treaties " V Are they only the 30 Indians named and contemplated by the said treaties, namely: The Ojibeway Indians, inhabiting and claiming the eastern and northern shores of Lake Huron, from Penetanguishene to Sault Ste. Marie and Batchewanaung Bay ; and the northern shore of Lake Superior, together with the islands in said lakes opposite to the shores thereof, and inland to the height of land ? And also the Indians inhabiting French River and Lake Nipissing as stated in the " Huron Treaty." And also the Ojibeway Indians of the Lake Superior district, as stated in the " Superior Treaty." See C. S. L. C, ch. 14, s. 11 ; C. S. U. C, ch. 40 81, s. 20, 25 ; Indian Act, C. R. S., ch. 43 ; 31 V., c. 42, s. 8, 15 ; 32-33 V., c. 6, 8. 6. 1» 3 Will I.ulians not b.>lonjri„. to the .said tribos, or not inhabiting the said district, be entith-d to th.^ bi-nefit ot th." same ? Quebe<. contends that Indians, or their descendants, not beloniriuff to these tribes or not inhabiting these territories, are not entitled to benelit by said treaties. "^miu II. In determining the increased annuities, i,s the value of the territories or htuds, at the date of the treaties, to be considered >. Is such value .settled by the treaties y Should not the amount of the increa.sed annuities be based upon the profit realised, rather than upon the increased 10 Quebec eontends that only the increase in value since the date of the treaties or the prolits, can be taken into consid.'ration III. In considering whether the annuities could be increased, is the Government entitled to charo-o a,nunst receipts all expenditures in respect of the said territories, and especially those mentioned ut page of the Answer ol the Province of Ontario? Quebec; submits that all expenditure and charges in respect to the said territories should be taken into account. IV. The administration of Indian affairs being in the hands of the Imperial aovernment up to the year 1860, is the late Province of Canada 20 responsible for any omission in rendering an account of the said rec-ipts and expenditures in respect to the said territories V Was the said Province bound to render such ae.ount, and if so, when and to whom ? Was the said Irovince bound to prepare and present an account without any dcnnand being made, ether by the Imperial Government or the chiefs of the said Indians :* «-uicia ui Quebec .ontends that there is no law and no agreement which oblio.ed them to keep and present such account; and more particularly so in the absence of any demand for the same. V. Is the Province of Canada responsible for any fault or nen-lio-euceSO m the administration of Indian aflairs by the Imperial Government h respect to the said treaties ? ^oveinment in VI. In 18(J8. the Department of the Secretary of State was oro-ani.ed and^the management of Indian lands was transferred to that department! Before that time and since 18(30, when the Imperial Government ceased to manage Indian affairs, the latter were under the management o he Commissioner of Crown Lands, who was a responsible officer bound to give security for the due discharge of his duties. 2.3 V c 2 s 6 Under such circumstances, how can it beheld that thelate Province .n of^Canada was in any way responsible for the said management of Indian^ VII. Wt'i'o not thf " Cliii'fs and their trib<>M," coiUracting with the Hoiiourabh' William H. llohin.soii /•,< qualite, bound to sm that iho torm.s of thi' treaties Wfro kept ? (^ut'bt'f answtTs in (ho allirmative. VIII. Can inttM-.'st bo chiiint'd on arrears of annuitios, if any, so long as no demand or protest has been made i Quebee answers in the negative. IX. Looking at the nature of the claim, ean interest be demanded? Quebec submits that the nature of the claim does not justify the allowing ot interest, as the transaction is not of a mercantile character ; jo and inasmuch, also, as there has been no default and no promise on the part of the Province, express or implied, to pay interest, and no such promise can be inferred from the cir nimstances of the case, X. Is not the said claim subject to prescription, as it is not due to the (lovernment, but merely to the said " Chiefs and Tribes." Is it not subjeijt to the same prescription as the claim of any other person ? (Quebec contends that it is. XI. Could the Dominion Oovernmert increase the annuities at any time without the consent of the Proviu. ■ or Provinces interested, or with- out at least putting them in default of renderi; -; an account with respect 20 to the said Territories :" Are the said Indians entitled to any increase without " the gracious pleasure " of Iler Majesty— that is, without a vote of Parliament, or at least an Order-in-Council { Can such grant have a retroactive effect without the consent of the Provinces ? Quebec answers in the negative. XII. The lands so ceded under the said " Robinson Treaties " beiu"- in the Province of Ontario, do the said Annuities or increased Annuities constitute " a trust existing in respect thereof , and an interest other thau that of the Province in the same " within the meaning of section 109 of the British North America Act ! on Quebec contends that the said Section 109 of the B. N. A. Act can have no other meaning. All claims of third parties, whether of indi- viduals or of corporations, or of Indians, must be met and liquidated by the Province upon whose lands any trust or claim existed in favor of third parties at the time of Confederation. In the Indian Treaties referred to, it is stated that the Annuities granted to the Indians might be increased to €1 currency per head, provided the value of the lands thus ceded by the Indians would warrant the increase, or, at the pleasure of the Govern- ment. This might happen before or after Confederation, Lnt at all times it was a burden upon the lauds so ceded. This, also, shows that a trust was created on those lands, and that the amount payable from the proceeds of the same might be increased from time to time. * At the time of Confederation, anything du« under the said Treaties had appanuity been already paid, and anything that could be claimed in the future under the said Treaties was a part of the said Trust which the Province of Ontario was bound to carry out. See also the Indian Act, C- R. S., eh 43, s. 41 ; 29-30 V., c. 20 ; 31 V., c. 42, ss. 6, 7. Such has always been the contention of Quebec, and especially before the first Board, of Arbitrators in 18(39. The Quebec case, which is quoted in full in the Answer of Ontario, says : — " By Section 109 of the above Act, all lands are made over to the Pro- " vince within which they are situated, subject, however, to any trust 10 "existing in respect thereof, and to any interest other than that of the " Province in the same. These annuities being the price unpaid of the '■ lands themselves, are a charge on them. The contract between Govern- " ment and the Indians ought to be governed bj' the same rules as similar " contracts between Individuals. The lands, beinjj within the Province " of Ontario, became, under said Section 109, the property of that Pro- " vince, subjet;t, however, to the interest of the Indians in the same. This " interest is the payment of the annuities stipulated as a compensation for '• the lands ceded. It might also be colled a trust, the administration of "which is left to the Dominion, the legal guardian of the Indians 20 '' Ontario, receiving the lands and the arrears due for those sold, is subject " to all legal and equitable claims which may exist on them. It should " therefore be charged with the principal of the annuities." True, Ontario answered, that in 1840 the Indian annuities were made a special charge, in Schedule B. of 9 V., c. 114, upon the Consolidated Revenue, and that the Indian lands had been released from the same. It is also true that by their award the arbitrators disposed of the Indian annuities as follows : — '• That all lauds in either of the said Provinces of " Ontario and Quebec respectively surrendered by the Indians in t.on- " sideratiod of annuities to them granted, which said annuities aregQ " included in the debt of the late Province of Canada, shall be the absolute " property of the Province in which the said lands are respectively " situate, free from any further claim upon or charge to the said Province " in which they are so situate by the other of the said Provinces." Quebec submits that, in 184G, the Indian lands were not released, as alleged by Ontario, and that at all events the trust and lien existing upon them under the several treaties was never set aside and annulled ; in fact, could not be set aside without the consent of the Indians, parties to the said treaties. As to the award of 1870, Quebec also submits that the arbitrators had 40 no power to declare the Indian lands " free from any further claim upon " or charge to the said Province in which they are sitxiate," as by Section 6 109 of the British North America Act, it is declared that all lands shall be •' subject to any trust existing in respect thereef, and to any interest other " than that of the Province in the same." The award, therefore, is ultra vires in this respect. Qnebec has already submitted, in the case of the Montreal Turnpike Trust Debentures, that the award of 1870 had been sanctioned by the Privy Council only upon certain points of procedure, specially referred to that tribunal, and not upon its merits. It is not, therefore, chose Jitgee, and the validity of the said award can be now questioned upon its merits. In the Montreal Turnpike Trust case, the Arbitrators had 10 declared that the debentures had been guaranteed by the late Province of Canada, but as a matter of fact they were not so guaranteed, and this Board held that the late Province of Canada was not responsible. The award, therefore, is not a bar to Quebec's pretensions as to the Indian "Trust " or " Interest ; " and the present Board has a right to decide that, in dealing with the Indian lands, the former Arbitrators decided against the British North America Act. XIII. At the time of Confederation, all the Indian Annuities were capitalized and charged as a portion of the public debt of the late Pro- vince of Canada, ^ The authorities might have made a misapprehension of the British" North America Act, for, under Section 109, the Trust was recognized as remaining attached to the lands. But whether a mistake or not, can the Dominion now demand more ? Was it not a final settlement of the Annuities, so far as the Provinces were concerned ; and, if not, Quebec contends that anything due under the Robinson Treaties should be charged to Ontario. XIV. In 1873, the excess of debt was fixed at 110,500,033.84. The Dominion Parliament dei'laring that it was " expedient to relieve the said Provinces of Ontario and Quebec from the said charge, and for thatoQ \mrpose hereaffer to consider (he fixed umovnt in their case