June 3, 1938

CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Then the hon. member for Yale (Mr. Stirling) points out that we use the word "licencee" although there is nothing in the section to indicate who the licencee is, prior to the use of the term there.

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CON

Grote Stirling

Conservative (1867-1942)

Mr. STIRLING:

When the matter was being discussed at the resolution stage I expressed the view that the cart was being put before the horse, in that the lease is being talked about before the prospecting. In the illustration the minister gave ten minutes ago he drew our attention to the probable chain of events. Certainly the prospector would come in before the lessee. It is improbable that an area will be leased or that an application made for the lease of mineral land which has not been prospected. The desirable way to approach this would seem to be to make arrangements for the possibility of granting a licence to prospect. Possibly this reference to a licencee means that. But it appears to me to come after the granting of a lease. From the minister's story just now it would appear that he is in agreement with me on that point. He did not refer to it when I raised the question before, but perhaps he would indicate now whether he thinks it is probable that anyone will want to lease a

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piece of an Indian reserve before there has been some demonstration by someone that there is mineral value on it.

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LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR:

I would think not, but on the other hand the prospector on a reserve wants to have his interest protected for the future should he find minerals. You could not say to a prospector: We will give you a licence to prospect, but we will not give you any right to develop or explore further than merely prospecting. If the prospector found mineral the department might say: Very

well; thank you very much; we now know we have mineral there, and we will put it up for auction.

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CON
LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR:

What is proposed is to set up regulations which will permit of prospecting, and, if the prospecting is successful, lay down the conditions on which development can take place.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

And the royalties, I

take it.

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LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR:

Precisely. So the prospector when he goes on the reserve to prospect has before him a clear picture of what lies ahead as far as his relationship with the department is concerned, should his prospecting result in finding mineral.

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IND

Alan Webster Neill

Independent

Mr. NEILL:

But he cannot go on without a surrender, and getting a surrender by the band means the expenditure of a lot of time and money.

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LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR:

The surrender by the band would have to be prior to his going on the reserve to prospect.

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IND

Alan Webster Neill

Independent

Mr. NEILL:

But what prospector would go to the considerable expense of getting a surrender without knowing whether there is any mineral there?

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LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR :

If we get an application to prospect, or perhaps three or four applications, the matter will be taken up with the Indian band to ascertain if they are willing to give a surrender under the regulations.

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CON
LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR:

And if the prospecting results successfully, the right to develop afterwards.

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IND

Alan Webster Neill

Independent

Mr. NEILL:

How is the man to know there is any mineral there? He cannot go on the reserve to find out; that would be trespassing. If he wants to go on he will

have to go through all the formality and expense of getting a surrender from the band. And it is expensive, because they are scattered all over; he has to get them together, get their consent, and that of the Indian agent. A prospector's means are limited; how will he do that? If he is allowed to prospect in a casual way and then get the surrender, that is different; but on account of the expense I would not seek a surrender until I knew there was some reasonable prospect of finding something.

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LIB

Thomas Alexander Crerar (Minister of Mines and Resources)

Liberal

Mr. CRERAR:

Let me give an illustration. In the Little Long Lac area, if my memory is correct, there are certain well defined geological formations. There is an Indian reserve not far from the district where several mines have been developed. It is known that the same geological formation carries through the reserve. On the strength of that a prospector might say: I should like to prospect on the reserve. The department can then secure the surrender, if the Indians are willing to give it, prior to any prospecting being done at all. The point I am making is that it is not sufficient to have the surrender in the terms of the right to prospect; the surrender must include the right to go on and develop the mineral if the prospecting proves successful.

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CON

Henry Herbert Stevens

Conservative (1867-1942)

Mr. STEVENS:

That raises the point I

mentioned the other day. The bill as drafted, following the general terms of the resolution, is extremely broad. It does say "upon such terms as may be considered proper in the interest of the Indians," but there is nothing in the bill that I see which makes it obligatory upon the Superintendent General of Indian Affairs to protect the rights of the Indians in ease of a discovery of minerals, by providing that they shall, in perpetuity I would say, share by royalty in whatever winnings may result from the discovery. Take subsection (a): the Indians must surrender their rights prior to the property being prospected, and some concern or individual having prospected the area, the superintendent general is free to make any agreement he may think fair for the recovery and taking away of the minerals, the Indians having already completely surrendered their rights. Parliament ought above all things to safeguard the inherent right of the Indians to some definite prescribed return in the form of a royalty or participation in the winnings from any discoveries made. That is a vital point.

To come to details, I could visualize this situation. Here is a reserve such as that the minister has cited, Little Long Lac, where it

Indian Act

is known that the geological formation offers a probability of finding mineral. What rule can be designed, other than that which was adopted in the United States in the opening up of the Indian territories in Oklahoma, which would treat fairly different individuals who might go in there and prospect? It appears to me that what is visualized in this bill is that some individual or corporation may go to the government and ask for cooperation in getting the surrender, and then under the regulations may get a prior right to prospect, and acquire the right to mine such minerals as may be found. As I have already stated, the interests of the Indians are not safeguarded, and on the other hand it would shut out the opportunity to others to prospect and stake property. If we are going to follow the principle of surrender then it should be accompanied either by an open right, first come first served, or we should definitely state that the government or superintendent general will enter into an arrangement with the highest bidder, say. That might be one way; or with some corporation, company or individual for a specific right, an individual right, an exclusive right to prospect and recover.

The main point I have in mind, and which I think is quite inadequately dealt with, is the ultimate participation of the Indians in whatever the recovery may be. That is sufficiently defined in the act, and while it is true that for a great many years the superintendent general has satisfactorily administered Indian interests, as the minister has pointed out on several occasions usually those matters have concerned grazing leases, the cutting of hay or in some cases the cutting of timber. They have been comparatively small operations of no very great importance, most of them of very little importance. In this instance, however, it may be of vital importance and ultimately amount to very large sums as development occurs.

Personally I should be loath to see the clause pass in its present form. I think it should be reconsidered and redrafted, and I believe the statute should contain some definite limitation of the power of the superintendent general in the way of leasing, such as a stipulated minimum royalty. That is not a new thing; it is well established in many parts of the United States, particularly in connection with oil. and in Canada as well. There is a well-established principle in regard to royalty, and I see no reason why it should not be adapted to minerals as well as to oil. If such a provision is not included I for one would not be satisfied to have the bill passed in its present form.

fMr. Stevens.]

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IND

James Samuel Taylor

Independent

Mr. TAYLOR (Nanaimo):

I am glad

to see this phase of the situation developing. The instinct of the prospector is very much like that of the homing dove; he will go after his ore wherever he thinks it can be found. Obviously the right thing is to have the Indians determine exactly what their position should be, and that can be done very easily in consultation with the Indian department before any prospecting takes place. Then if a prospector goes on a- certain piece of land or into a certain reserve he knows that if he finds anything it is subject to certain conditions in regard to royalty or percentage of the company formed or something else, and he knows that definitely has to be faced before he proceeds. Then the matters of prospecting, stripping, cross-cutting and all that sort of thing, which are definitely associated with the ultimate development of a mine, can be undertaken in perfect freedom, and the capitalization of any company for such purposes can be proceeded with in the knowledge that those conditions have to be faced.

I feel quite satisfied that this is the only way in which the thing should be done, and I agree with the hon. member for East Kootenay (Mr. Stevens) that those conditions should appear in the act for the protection of the Indians. There will be a disposition, not necessarily at this time but at some later time, to avoid the responsibility of giving the Indians some value out of their wasting resources, and I think we must face that issue.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Before the minister replies I should like to mention another question and he can deal with them both at once. I think now the reason the hon. member for St. Lawrence-St. George asked the questions he did the other day, and the reason certain questions were asked the minister to-day, has become apparent. The hon. gentleman who has just spoken, as well as the hon. member for East Kootenay, was under the impression that the mines and minerals belong to the Indians. In some parts of the country they do not at all. In northwest Canada they belong to the crown in the right of the dominion; the Indians never had any title to them. It was for this reason that the hon. member for St. Lawrence-St. George asked his question the other day. In different parts of Canada the ownership is dissimilar, as was pointed out in the departmental memorandum. We have no power at all to reserve a royalty to the Indians with respect to some parts of Canada, because the grant of the reserve did not give them any right to any of the minerals. But that is not so universally. There are some

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parts of the country in which that is not so, but it is so in western Canada between the lakes and the mountains. I cannot say as to the situation over the mountains, but when the minister mentioned the Little Long Lac reserve, as a matter of fact part of the mine that has been developed in that section of the country is believed to extend on to the Indian reserve, and as I understand it the law is perfectly clear that the mines and minerals under that reserve belong to the crown in the right of the dominion, not to the province of Manitoba or to the Indians. That is the difficulty. They never did belong to them, because when they received title to the reserve they did not get the minerals; that is provided by the statute which was subsequently confirmed by the imperial parliament.

That is the position there, but it is not universally so. I repeat, I do not think it wise or desirable to leave legislation of this kind to the governor in council. The minister was not in the house from 1930 to 1935, but with his well-known studious habits undoubtedly he read every' pearly word of wisdom that escaped the lips of his now Prime Minister; and he realizes that government by order in council certainly is calculated to destroy the very fabric of this young confederation. The very foundations of it are imperilled. And despite the obvious anxiety of the hon. member for Nanaimo (Mr. Taylor) to support Liberal principles, he will find it a little difficult to do so by becoming a confirmed believer in government by order in council. I do suggest to the minister that he is going a very long distance now in substituting the governor in council for the parliament of Canada. It is true that the council of the government now consists of a much more distinguished group of men than was the case then, in the minds of those who spoke so critically of them, but still they are not denied the power of criticism or the right to suggest that after all it was the principle and not the individual that was at stake. I leave it to the minister if he thinks it wise to entrust the governor in council with responsibility for legislation of that kind.

One point more arises out of that. I repeat: Why should we suddenly become imbued with the idea that we are no longer trustees for the Indians? You see, as it was we were always trustees for the Indians, until this bill came down. Now we have to be thinking of a man who is the lessee or licencee. What concern have we with him, and how long have we had to be considering the other man when we were dealing with the interests of the Indians for whom we were trustees? As long as our superintendent general does his job. which

is to look after the Indians as trustee, I do not think he should be worrying very much about the interests of the lessee or lessees. But that is one of the amendments proposed by this bill. .

Then there is the next point, which is this, and I am going to take them in order. To whom does the Indian surrender-to the crown or to an individual? Heretofore surrenders to my knowledge have always been to the department-that is, to the crown through the department. The surrender is given by the Indian to the crown. What compensation is he to get? The old statute provided;

Such terms to include provision of compensating any occupant of land from any damage that may be caused thereon as determined by the superintendent general.

That had not to do with this particular phase of it at all. The Indian is asked to surrender. The minister writes a letter to the agent and says, "We have been advised that it is not improbable that a vein of gold or silver may extend under this area. There are men willing to prospect it, but before we can do anything we will have to have a surrender. I want to get a surrender of that from the Indians." He goes out and sees the Indians, saying, "I want you to surrender." He takes the form provided by the department, with which we are all familiar. Those forms are presented to the Indians, some of whom can write and some of whom cannot; others make their mark. They come together. If the prospector is very anxious to see about this surrender being given he usually provides something in the way of liquid refreshments or otherwise, wholly against the law, to lubricate the transaction of business and make it much easier to obtain the surrender. I am sorry to say that this is so.

The surrender is obtained. The crown has the title; what is the compensation to the Indian? It would seem to me that there is a case in which the crown must come in, and in which we should have legislation,-because the Indian has no interest in the minerals, by law. But he should have an interest by agreement. The crown should say, "If you do surrender we will give you in perpetuity or during your lifetime in the mine which may develop there ten per cent, fifteen per cent or twenty per cent, or whatever royalty may be taken from any earnings which may come from the development of the property That is where the crown comes in in connection with the matter. That is where the crown comes in, by reason of the fact that under the law as it now stands the Indian has no interest in the mine or mineral under

Indian Act

the land. He has only surface rights, and they are held in connection with his rights on part of the reserve.

Then, let us come to the next point, which has to do with the question of prospecting. As this bill now proposes, that can come about only after surrender. What starts the ministei to ask for a surrender? Because someone says there is something there, or because a prospector says there is, there is no obligation then, as the hon. member for Kootenay East has pointed out, to give it to him. Somebody else may step in the minute it is done, and say, "I am going to prospect there." But he cannot prospect there unless he has a licence to do so. Therefore the minister gives his prospector's licence to a man and sets the wheels or machinery in motion, in order to get the surrender. That is what happens there.

How could it be done any other way, as it now stands? I suggest to the minister that he take the matter up with his officers and redraft the section so as to express more clearly what I am sure he has in the back of h;s mind, namely a provision that will not retard development but rather assist it, and one which will ensure the Indian getting something through his surrender of something which will accrue to the crown by reason of his parting with his reserve.

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CON
CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

He might get the rent, but it would be a very insignificant sum, relatively. It may be a very valuable mine and the royalties may amount to thousands or perhaps hundreds of thousands of dollars. What strikes me more than anything else, having reference to what was said by the hon. member for Nanaimo, is that in connection with the South Africa diamond mines the crown took sixty per cent of the earnings of the Premier mine, the greatest single diamond mine in the world. Sixty per cent, by way of royalties, to the crown; and they still take fifty per cent of the difference between the old statutory price of gold and the new price established by the United States.

Under these circumstances might it not be well for the minister to consider the redrafting of this section, so as to express what he clearly had in his mind, and something which certainly this section does not express? It would take some time to do it properly, but certainly it is not expressed here. I do wish once more to point out to him that the officer who suggested that the words should be added "and of any lessee or any licencee" 'Mr. Bennett.]

should be told that after all we are the trustees for the Indians, and that we have had no difficulty heretofore in discovering lessees or licencees who are highly competent to take care of themselves, either directly or through the aid of competent and skilled professional men whose services they can always employ.

We must not get away from the one idea which was common to the whole of the legislation affecting the Indians, namely that we are their trustees. Nothing less than that will satisfy the law; and any attempt to make us trustees for somebody else is at variance with the whole theory of our law, as written. I ask the minister to let the section stand, to recast and redraw it so as to provide that at least with regard to some fundamentals we are going to have it in the statute; I entreat him not to depart from all those great traditions upon which our institutions are founded, and substitute for parliament the governor in council, even although it consists of eminent gentlemen, three of whom I see opposite.

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June 3, 1938