On the creation of “reserves” in Canada

How does the the federal state define and create a reserve?

The Indian Act defines reserves as:

… a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band

It doesn’t however provide a mechanism for the creation of reserves. We know from section 91(24) of the Canadian constitution that this is a federal power; the provinces cannot create reserves even if it falls within their borders.

The Supreme Court decided that though there is no unique procedure, the creation of a reserve requires two things: (i) the land must be set apart and (ii) the federal need to have intention to create a reserve.

In Ross River Dena Council Band v. Canada (2002), the judges write:

“…in Canada, there appears to be no single procedure for creating reserves, although an Order-in-Council has been the most common and undoubtedly best and clearest procedure used to create reserves. Whatever method is employed, the Crown must have had an intention to create a reserve. This intention must be possessed by Crown agents holding sufficient authority to bind the Crown. For example, this intention may be evidenced either by an exercise of executive authority such as an Order-in-Council, or on the basis of specific statutory provisions creating a particular reserve. Steps must be taken in order to set apart land. The setting apart must occur for the benefit of Indians. The Band concerned must have accepted the setting apart and must have started to make use of the lands so set apart… In any case, whether the authority to create a reserve is derived from the royal prerogative or from statute, the Governor in Council is the holder of the power in both cases.

By the“the benefit of the Indians” the Court seems to mean that it is to be for the exclusive use of a nation/community.

Proving that the federal has the intention of creating a reserve might get tricky. In Jeddore v. Canada, a 2003 decision from the Federal Court of Appeal (for which appeal to the Supreme Court was denied), judges refused to give weight to oral history evidence to establish that intention. A group of of Mi’kmaq tried convincing the court that Conne River lands were set apart by the government around 1870 for their exclusive use. The judges weren’t convinced:

… oral history evidence very vague about identifying government officials—Most specific aspect of evidence relates to Mi’kmaq’s belief that Murray has told them that land had been or would be set aside for them supported by report written in 1872 by Henry Camp, Warden of River Fisheries—Neither witness traced source of Mi’kmaq’s belief to someone alive in 1869—To extent oral tradition evidence said to support creation of reserve under colonial law, evidence irrelevant …Oral history evidence falls far short of what would be required to demonstrate