VOL. XVII.] EXCHEQUER COURT REPORTS. , 517 'IN THE MATTER OF THE REFERENCE RESPECTING , 1 9 Ÿ THE EXPEDIENCY OF THE REMOVAL OF THE INDIANS March 15. FROM THE RESERVE AT THE CITY OF SYDNEY, CAPE BRETON, IN THE PROVINCE OF NOVA SCOTIA. Indians—Removal to new Reserve—Compensation. The Exchequer Court, pursuant to the provisions of sec, 49a of the Indian Act, will. recommend the removal of Indians from their Reserve to a new site, if in the interest of, the public and ,the ''welfare of the Indians such removal seems expedient. Under sec. 2 (4) ,of the Act, they are to be compensated for the special loss or damage ' in respect of their buildings or improvements upon the Reserve from which they are removed. ; . . REFERENCE to the Exchequer Court of Canada under the authority of an Order-in-council passed on April 24th, 1915, pursuant to the provisions of sec. , 4 49a of the Indian Act, as amended by 1 & 2 Geo. V., Ch. 14, sec. 2, for enquiry and report as to whether it was expedient, having regard to thé interest of the public and of the band of Indians then resident on the Sydney (N.S.) Indian 'Réservé to another place outside the limits of the city. of Sydney. ' The proceedings under the`referende were heard before the Honourable Mr. Justice Audette on the 20th, 21st, 23rd and. 24th days of September, 1915. ? k J. A. Gillies, K.C., appeared on behalf of the party. interested in thé removal of the Indians. G. A. R. Rowlings was appointed by the Judge to represent the Indians on the hearing of ' the Reference.
.518 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 AUDETTE, J. (March 15, 1916) made his report to RE INDIAN RE- .SERVE, SYDNEY, the Governor-General-in-Council as follows: CAPE BRETON. Reasons for To His Royal Highness, the Governor-in-Council: Judgment. The question as to whether or not it is expedient —having regard to the interest of the public and of the Indians, that the latter should be removed from the Reserve at Sydney, and for further action under the provisions of the Act—having been referred to the Exchequer Court of Canada for inquiry and report, under both the provisions of the Order-in-Council of April 30th, 1915, and of 1-2 George V., ch. 14,—the undersigned has the honour to report as follows :— The notice, provided by sub-sec. 2 of sec. 2 of the Act, fixing the time and place for the taking of evidence and the hearing of the investigation respecting the above matter, having been published in the Canada Gaz ette and in a local newspaper at Sydney, I assigned counsel to represent and act for the In-dians, who might he opposed to the proposed removal, they having previously declared their unwillingness to surrender. The hearing of the matter was proceeded with at Sydney, on the 20th, 21st, 22nd, 23rd and 24th days of September, 1915, and upon hearing read the pleadings, and upon hearing the evidence adduced both on behalf of the party seeking such removal, and on behalf of the Indians,—and upon hearing J. A. Gillies, K.C., of counsel on behalf of the party seeking the removal, and George A. R. Bowlings, on behalf of the Indians, the undersigned humbly submits the following finding: The Reserve in question, which is numbered .28 in the Official Schedule of Indian Reserves, is located
VOL. XVII.] EXCHEQUER COURT REPORTS. , 519 on the 'eastern shore of Sydney Harbour, and Was 19 acquired bythe Dominion Government on April-28th , RE INDIAN RE- S ERYE SYDNEY 1882, under, a grant from the Province of Nova CAPE BRETON. Reasons for Scotia, fol the use of the Micmac Tribe. • Judgment. It had been surveyed under direction of the Federal Government in 1877, and at that time contained 2 acres; 2 roods and 37 perches,—the area mentioned in the Provincial grant above mentioned. When the Cape Breton Railway was built in 1887, or . 1888, sixty-six hundredths of an acre of the Reserve was expropriated for th.e purposes of that public work, severing the land in two parcels, leaving the Reserve, already of irregular shape, with the contents'of 2 acres and 12 perches, and a small piece of land .on the water side of the track. This small piece of the Reserve, severed by the railway from its main part, is of no value and cannot be utilized for settlement purposes and in the result leaves the Reserve, for practical purposes,' still smaller than, its apparent and real size. Joe Christmas, the present Chief, or Captain, of the band on the Reserve, has lived on the Reserve back and forth since 1875. In 1887 two more Indian families arrived upon the Reserve. • In 1899 there were 85 Indians on the Reserve, and' on February 15th, 1915, as appears by Exhibit "C", there were 23 houses and 115 Indians. At' present' there are between .120 and 122 Indians and 27 houses, with, out counting the school house and the brick building with sanitary closets. The present Reserve is really .an adjunct .of the Eskasoni Reserve, composed of 2,800 acres, and which is about 24, to 25 miles from Sydney. The Grand Chief of the Micmacs resides at Eskasoni, and there is only a sub-chief, or Captain, at the
520 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 Sydney Reserve. There are in the vicinity of 155 Ra INDI RE. SERVES SAYND NEY, Indians at Eskasoni, who do some agricultural work. BRETON. When these Eskasoni Indians come to Sydney to sell ._ Reasons for Judgment. their handicrafts and products, they reside on the Sydney Reserve. There is also the Cariboo Marsh Reserve, of about 5,385 acres. The land on that Reserve is so poor that no Indians reside upon it, but as there is considerable timber upon it they use it to cut their supply for fuel and for making ties, which they sell to the Steel & Coal Company. There are also Indians residing at North Sydney and Little Bras d'Or who, like the others when they come to Sydney, put up at the Indian Reserve. Now, this Reserve abuts on King's Road, which is one of the principal arteries of the city, a highway very much travelled and used by the public, and upon which a large number of fine residences are built. No one cares to live in the immediate vicinity of the Indians. The overwhelming weight of the evidence is to the effect that the Reserve retards and is' a clog in the development of that part of the city. On this branch of the case I may say I would have come to a final decision with more satisfaction, had I heard the present Mayor of the city, some representatives from the Board of Trade, and some prominent public-spirited citizens. It is worth passing notice to mention that the two medical doctors who respectively held the position of Indian Agent for this Reserve since 1899, favour the removal of the Indians, provided larger and better quarters are given them. Dr. McIntyre says, he thought the Reserve congested with 20 houses and 100 Indians, and there are now 27 houses and 122 Indians. The removal would make the property in that neighbourhood more valuable for assessment
VOL. XVII.] EXCHEQUER COURT REPORTS. ' 521 purposes,—and it is no doubt an anomaly to have 1916 the Indian Reserve in almost the centre of the city, RE;NDIAN RE- 5 6 &VEE SnYDti6Y or on one of its principal thoroughfares. CAPE gRETQN. I • Reasons for The racial inequalities of the Indians as compared .Tudgment. with the white man, check to a great extent any move towards social development, a state of affairs which under the system now obtaining can only grow worse • every day as the number of Indians is increasing.' . F I do, therefore, without hesitation, come tô the conclusion, on this branch of the case, that the removal of the Indians from the Reserve is 'obviously in the interest of the public. Coming to the second branch' of the case, as tô whether it is in the interest of the Indians, to be removed .to a larger place, I may say that during' the • trial or. investigation, I had occasion ; accompanied by. counsel on both sides, to view and examine the Reserve in question. It was on that day quite clean and in good sanitary condition; but it is established that this condition did not -always obtain. , The majority of the Indians is opposed: to .the removal. They find their present Reserve well located, close to the place where they earn their livelihood, and it suits their methods of life. They want to stay where they,are, and do not wish to' accept any place • offered to them. However, if a better,, larger .andi more, suitable place is found it will be acceptable to • , some of them. This state of things carries us thus far and no. further. But the Reserve is getting too V • small, too congested and too limited, to accommodate its increasing population, besides the fact that the sanitary conditions are unsatisfactory and can only grow worse with an increase in population on the, settlement.
522 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 The brick sanitary closet on the Reserve has been RE INDIAN RE- SERVE, `JYIINEY, closed as a result of misuse, and the several draught- CAPE BRETON. houses, now in use to replace it, have proved to be Reasons Judgment. very objectionable to the neighbourhood. Although provided with a number of such draught-houses, the Indians have not been always considerate and mindful of their neighbours in respect of cleanliness. They are also charged with disturbance, but that part of the evidence is meagre and not very reliable, and in that respect they may not be any worse than white men of certain classes. And while it can be said in one sense they may be undesirable neighbours in that locality, they could be considered as reasonably well-behaved Indians. They are healthy Indians and the Reserve is free from tuberculosis. These Indians have abandoned the nomadic life of their ancestors, and are now employed as labourers all over the city at different works, while the women do some charring and washing. This Reserve has become too small for the present requirements. There are too many buildings upon it, and the band of Indians has become too numerous to be located under the present conditions fo r sanitation on such a small area. An undesirable and objectionable congestion is the necessary result. Moreover, the band is growing, the young men are marrying and desire to settle there. And. while the Reserve is too small for the Indians actually in occupation, we must not overlook that all the Indians of Cape Breton who come to Sydney, resido on the Reserve during the time of their visit. And looking to the future, made wise by looking on the past of this Reserve, it appears that the desirability of a larger Reserve, a matter of expediency now, will become imperative in the near future.
VOL. XVII.] EXCHEQUER COURT REPORTS. 523. The Indians, in their .own interest, should be re-1 moved to a larger place, where they would be given IND IAN SREER VE, S Y DN ERYE-, . a small plot of land to cultivate. But this removal, CAPE BRETON. while it should be to a place outside' of the city, to Reaso nsft o . r Judgmen avoid a further removal in the future, must be con- sistent with and considerate of the interest of the Indians. They should remain às close as possible to the city, although outside its limits, to allow them to pursue the same manner of earning their liveli ; - hood by doing work in the city, where, indeed, they, have become quite a factor in the labour market. They must also be kept close to their Church, be- cause it is insisted upon, in the evidence, that their priest has a very salutary influence over them, and when the Indian loses the influence of his church, he goes on the down grade. These Indians are labourers of all classes; bricklayers, masons, plas- terers, carpenters, pick and shovel men, and , some of them work on the Cape Breton Electric Tram- way. They are much employed during the winter, for the removal of snow from the tramway. They also make pick handles, tubs and baskets. The evidence establishes in the result that the re-, moval would be in the interest of the Indians, pro- vided they are given a better and larger Reserve in some place convenient to their church and their work. And in doing. so, to place, them in the neigh- bourhood of the Coke Ovens district must be.avoid- ed--that locality is undesirable in many' respects-- and occasion for intemperance is sure to arise there. F Both the unsatisfactory condition of the present Reserve with respect to sanitation, and the advantage to be derived by ,the Indians from, larger grounds; make it expedient to recommend their removal to a better and larger place, consistent with \ •
524 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 the relatively close proximity to their work and RE INDIAN RE- SERVE, SYDNEY, church. CAPE BRETON. Reasons for What the Indian, on the one hand, may lose from Judgment. the convenience of close neighbourhood to his place of labour, in the future perhaps made costly by the expense of a ferry or car-fare,—which with that class must be reckoned,—will be offset by the advantage of a larger territory for his Reserve, where he can have his little plot of ground under cultivation giving him a vegetable garden, helping materially in support of his family. The removal of this band of Indians from the Reserve will open to improvement at once that part of the city of Sydney, while the Indian, in the result, will not suffer anything serious, save perhaps a disadvantage in the degree of convenience in going to and from . his work, and his morals can be looked after just as well upon the new Reserve. He will be able to attend his church just the same, and he will, moreover, be perhaps further away from the temptation in the way of intemperance and kept busy and interested in his Reserve by attending to his vegetable garden. Having each a small plot of land would also be an incentive to keep it in proper condition. Having found the removal of the Indians from this Reserve expedient and advisable, it becomes my duty now, under the provisions of sub-sec. 4 of sec. 2 of the Act, "to ascertain the amounts of compensation, "if any, which should be paid respectively to in- dividual Indians of the band for the special loss or "damages which they will sustain in respect of the "buildings or improvements to which they are en-"titled upon the lands of the Reserve."
VOL. XVII.] EXCHEQUER COURT REPORTS. On that branch Of the case, Exhibit "E' , testified to by 3 w itnesses, establishes the value of each build- spER ing upon the Reserve, with the'name of the proprie- for opposite the figures. This valuation, however, aua has been arrived at on a basis of re-instatement value. That is, it does not show the actual market value of the buildings, taking into consideration the depreciation for wear and tear. That document shows what it would cost to build these, however, anew to-day. While the Indian,. the ward of the nation, should be treated as well as possible, it is quite conceivable that a great part of the _old buildings could be used in the erection of the buildings on the new Reserve. The total value of the buildings, owned by the In- • dians on the Reserve, is placed by these three wit-. nesses at $8,850, subject to what has just been said. This is exclusive of the value of the brick sanitary closet and the school-house: Passing now to the. question.of the selection of the site for a new Reserve, it may be said that a deal of evidence has been adduced in that respect. • Indeed, the selection of a site is a question not free from difficulty, and upon which a deal of evidence has been adduced. A large plan of the city, Exhibit "D", has been filed, and upon it has been shown as prospective or available sites, the places marked respectively "A", "B", "C", "D", "E"-, "F", "C+,", and "H". On that plan is also shown the site of 'the present Reserve. Besides these sites so indicated on the plan, there _ is also across the harbour at Westmount, 'almost opposite the present Reserve, a place recommended by some of the witnesses. It is .entirely outside of the limits of the city, and quite accessible to the city ' 525 , 91 1 s S V E Irr D S IA Y N DN R E E Y_ CAPE BRETON. Reasonsf or gment. ~
526 EXCHEQUER COURT REPORTS. [VOL. XVII. 19 16 for the most part of the year. However, in the RE INDIAN RE- SERVE, SYDNEY, autumn and in the spring the ice makes the crossing CAPE BRETON. quite impossible at times for a period varying from r Judgment one week to three weeks and perhaps more. Were it not for that last difficulty the place would be ideal. The Murphy farm of 50 acres is there available— and there is also a large quantity of land in that neighbourhood which could easily be secured at a reasonable price. The soil is very good, the site beautiful and abutting on the harbour. If the In-dians were established at Westmount on really a good farm, would it not be possible for them to keep a few horses, and when the ice on the river prevents them from coming across, they could drive to town, a distance of only 5 or 6 miles. They would be there away from the liquor shops and the undesirable foreigners settled at the Coke Ovens, where they often get liquor—always a source of trouble to them. Of all the other sites above mentioned and referred to by the letters "A" to "H", I would only recommend in the alternative, either "A" or "E". The "A" site lies outside of the eastern part of the city between the Grand Lake Road and the Sydney and Glace Bay Railway Company's line; and "E", which is also outside the eastern part of the city, at the top of the Cow Bay Road. Jos. Christmas, one of the Indians, although objecting to the removal, says if they must be removed, he would prefer the Westmount site to any other. Ben Christmas, another Indian, speaking for himself, says "E", at the top of the Cow Bay Road, would meet with his approval if they are given a little assistance in building and larger grounds. The soil there, however, seems to be of doubtful character for farming purposes.
VOL. XVII.] EXCHEQUER COURT REPORTS. 527 Under all the circumstances, I would humbly re .19 commend, as r p o ro s s e p c e t c i t v iv e e ' ' a lternative sites, "A" at IND SER I V A E, N SYD R NE g X . ~ the top of the Grand Lake Road, or "E" at .the top CAPE BRETON. Reasons for of the Cow Bay Road, or Westinount. The prospective sites within the limits of the city,should be dis carded, because the same question of removal would arise again at some future date. The price at which these prospective properties could be acquired, has been estimated by some cif the witnesses. It may be said that while the present'site can only be sold at public auction, Mr. J. A. Gillies, K.C., has offered to purchase it at $5,000. If the sale is made this amount may be ,used as an upset price. Agent Parker valued • the land at $4,800,—witnesses Ross and Midgley at $5,000,—Rev. Father Cameron at $150 an acre,—and Rev. Father McDonald, in his letter of January 8th, 1914, at $12,000. The valuation of $5,000 would appear to ,be about fair 'and right. Therefore, the undersigned has the honour to report he finds it is expedient, having regard to the interest of the public and of the Indians located on the small Sydney Reserve, that the said Indians should be removed from such Reserve. Furthermore, it is found that the compensation above set forth should be paid respectively to the. individual Indians of the band for the special loss or damages sustained -by them in respect of their buildings or improvements upon the Reserve, or an adjustment be mp,de for their claims in respect thereto, and a suitable new Reserve be obtained for them before they be removed from or disturbed in the possession of the present Reserve.
528 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 The undersigned would further recommend that RE INDIAN RE- SERVE, SYDNEY, the Indians should on their removal be treated with CAPE BRETON. great consideration and kindness, and that such re- Reasons for Judgment. moval should be made quietly without undue haste, trouble or inconvenience, to the Indians. The site to be first selected and the compensation for their buildings or improvements adjusted on the basis above mentioned. IN WITNESS WHEREOF I have set my hand this 15th day of March, A.D., 1916. (Sgd.) L. A. AUDETTE, J. E. C.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.