SUPREME COURT
618
LOUIS FRANCIS
1956
APPELLANT
Feb
678
Jun
CANADA
OF
11
AND
HER MAJESTY THE QUEEN
ON APPEAL FROM THE
CrownPetition
claimed-under
Act
and
49The
88
Article
as
No
the
Income
Jay
War
duties
TreatyAn
Act
Tax
of
Act R.S.C
Indian
Canada
customs
of
Act
and
ss
by
taxExerap
Income Tax
the
2nd
1949
U.S.A
from
sales
amend
to
149
1952
OF CANADA
COURT
into
imported
to
subject
tion
the
EXCHEQUER
right-Goods
of
IndianWhether
RESPONDENT
Session
21g 861b
25
87
89
III
the
of
treaty
commonly known
us
ever
either
the
Jay
reads
Treaty
in
part
follows
duty
on
shall
and
shall
entry
by land
or
Indians
the
effects
passing
what-ever
of
But goods
whatever
Indians
be
levied
by
into
the
inland navigation
not
shall
-be
or
said
with
repa.ssing
nature
in bales
for
pay
or
-other
considered
as
party
peitries
own
their
nor
goods
proper
unusual
-packages
brought
respectively
same any impost
the
large
goods
on
territories
bona
belonging
or
duty
among
fide
to
Indians
The appellant
of
Quebec
Indian
adjoining
PRESENT
Fauteux
an
1951
and
29
an
Kerwin
JJ
Abbott
within
resided
Indian
C.J
the terms
on
an
reserve
21
of
Indian
in
Taschereau
the
of
in
reserve
State
Rand
of
the
the
Indian
Province
Act
of
New York U.S.A
Kellock
Cartwright
SUPREME COURT
S.C.R
In
1950 and
1948
certain
articles
respect
thereto
and
the
that
tion
The
duties
no
by reason
goods
The claim was
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Per
articles
right he
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of
privileges
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implemented
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the Jay
of
these
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Canada
of
JJ
The
ects
subj
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of
such
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and
rights
contracting
to
party
treaty has been
the
There
legislation
was
Treaty
Canada
in
Courts only where
by
action
the
the
the
and
no
is
such
legisla
JJ
not
extend
is
in
nothing
860
102
here
of
the Indian
of
only
in this
statutory provision
the
in
are
on
not
Reserve
Canada
into
so
enactment
peace
not
by
far
and
the
as
articles
R.SC
provisions
such
the
as
Jay
by statutory
be
customs
duties
can
to
within
bring
over
effect
149
has been
it
to
R.S.C
Act
1952
municipal
there
century
giving
the Indion
fiscal
tupplement
legislation
for
of
treaty
be
necessary
country
Act
duties
situated
goods
bar
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therefore
claimed
exemption
of
need
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and
was
Legislation
To
treaty
that
customs
Indian
concerned
are
of
case
because
an
of
complete
is
1951
prerogative
does
imposed
not apply
importation
25
Cartwright
in
Treaty
the
upon
1949
and
certainly
There
Court
that
of
the
does
Act
1950
in
imported
no
by
the personal property
imposed
of
law
clear
here advanced
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the
upon
taxes
Per
III
declara-
and
money
by him with
Article
Fauteux
is
sanctioned
or
in
here
tion
49
and
it
enforceable
are
paid
dismissed
and
were
as
treaty
of
Canada
this
by the Exchequer
rejected
Kerwin C.J Taschereau
Treaty
of
payable
part
into
tvere
by the Crown
demanded
By his
sum
the
paid
States
98
1927
that
nor
in
can
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the Indian
Act
constitute
of
and
except
appellant
Per
Kellock
code
and
JJ
Abbott
governing
the
The
provisions
and
rights
of
privileges
Indians
to
the extent that
Act
immunity from general legislation
such as the Customs
or the Customs Tariff Act is to be found in the Indian
Act the
terms
of
citizens
such
of
general
Canada
legislation
No
such
apply
immunity
Indians
to be
equally
found
with
860
in
other
of
the
Act
Indian
APPEAL
from the judgment
Canada Cameron
dismissing
delivered
THE
decision
CHIEF
of
Right of
the
the
of
Olson
for
for
This
JUsTICE
suppliant
is
an
the
an
Indian
Ex
CR
resident
590
right
respondent
and Fauteux
appeal
Court dismissing
Court of
the appellant
Kerwin C.J Taschereau
Exchequer
of
petition
by
09541
7367174
Exchequer
Hewitt
Henry Q.C and
The judgment
the
of
Henderson Q.C and
JJ was
.to
is
1956
Fxs
seized
subsequently
the return
the above
No
619
duties
United
the
U.S.A
the
protest
taxes were
or
should
appeal
in
were
claimed
of
from
brought
by him
under
appellant
of
petition
he
1951
acquired
CANADA
OF
the
in
against
Petition
reserve
of
in
THE QUEEN
SUPREME
620
1956
FRANCIS
THE QUEEN
Kerwin C.J
and
Canada
the
COURT
question
CANADA
OF
whether
is
refrigerator and an
washing machine
by -him into Canada from the United
statutes
were
Petition
of
that
December
the
of
49
25
session
to the
the time -the suppliant
and
mahine-
Act
but
heater
-oil
was
R.S.-C
was
Act in 1949
by
the
-also
The
29
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of
relevancy
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t-o
even
applicable
if
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therefore
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when
force
effect
of -the
importation
referred
refrigerator
the
washing
on behalf
to
revision
of
express -any -opinion
The
appellant
21
of
of that
year
lage in the
westerly
-an India-n
United
States
order to
test
The
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the
to
into
were brought
in
within
R.S.C 1951
adjoins
lay the
-part
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find
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29
of
in
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the
-at
the -State
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foundation
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for
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St
in
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in
times
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vil
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in
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Indians
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relevant
all
Province
Americath-e
St Regis -Tribe
Canada
only
unnecessary
it
of
definition
Indian Reserve
reserve
1951
affect
the matter
upon
on the St Regis
he resided
belonging
falls
and
the
The Indian
of
statutes
provisions
heater
Oil
at
87 of The Indian
of the
its
the
1949 2nd
was assented
which -chapter was brought into force on September
so th-at
is
of
Canada
of
into -Can-ada
in
machine
respondent
in the
enacted
87
the
24 1950 and
April
Furthermore
29
first
The
and
by
pay-able
washing
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brought
imported
respondent
the
Statutes
was not
1951
or
-appellant
money
this
were
1951
10 1949
the
the -Crown
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of
they
detention
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relied
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taxes
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The
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port of entry
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September
that
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articles
return
or
importation
1948
heater
oil
dates
of
-date
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their
the
duties
no
with respect
appellant
The
claims
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relevant
sum demanded
the
paid
Right
declaration
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at
under
placed
in order to
under protest
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into this-country
subsequently
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None was
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were not brought
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to -duties
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articles
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the
-of
provisions
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on behalf
that these imposts need not be paid because
first
of
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of
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Trea-y
of
appellant
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Corn-
SUPREME
S.C.R
meroe and Navigation
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roper
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Land Board
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37
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was
III
97
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where
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that
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the
in
rights
Courts
municipal
in
for India
with
Sutton
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construction
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of
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the
rights of
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statute
of
purpose of
Treaty into execution
consider
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in
put
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so far
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England Although
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under
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authority
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in connection
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are
This is an
by legislation
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Pigeon Timber
continuous
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as
party to
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sanctioned
or
implemented
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by
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effects
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rights
by
raised
imported by the
not
of
have
question
goods and
proper
The Jay Treaty was
in Canada such
of
the
articles
that
advanced
which
at
This
property are concerned
the
whether
question
the
terms of the Jay Treaty were abrogated by the war of 1812
1924 L.R
S.C.R 495
AC
AC
326
1830
Russ
664
FRANcIs
THE
either
repassing with
pay
nature
in
19 1794
Treaty
levied
or
passing
whatever
But Goods
Indians
among
be
and
Majesty
on November
signed
Navigation
Indians
the
whatever
Duty
Inland
or
621
His Britannic
Jay
ever
shall
Entry
Land
by
brought
as the
CANADA
OF
between
America
of
States
COURT
51
md App
308
357
SiREN
KerwinC
SUPREME COURT
622
THE QUEEN
KerwinC.J
Mr
with
agree
FRANCIS
not
are
on
tion of good-s
into
refrigerator and
of the
While
the
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heater
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statutes
true that in
is
most of the
sections
Canada
of
any
deduction
the
-Canada
into the
lant -within
is
Treaty
entitled to
from
on
or
any
the
all
argues
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upon
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For the reasons already
relevant
rights -f the -appel
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under the
his claim
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of
goods
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and
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under any
-cannot
all
Customs Act
the
duty
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by
enacted
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to
words notwithstan-ding
t-he
appellant
arise
given
to
and
for
provides
country
points
the
not
d-o
25
duty or tax imposed by an Act
any
heretofore
which
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throughout
immunity
or
of
certainly
tax
no one
are clear that
exemption
Parliament
appellant
of
50 to Newfoundland
income
with
of
brought
law
deal
and
49
respect
Canada
49
48 there are references
in ss
The words
privilege in
of
that so far as the
concerned
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Indian
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the
is
Newfoundland and
in
also -agree
an
of
property
86
duties
-customs
imposed upon
are-
Canada
the
because
personal
but
of
clause
This is A-n Act to
complete bar
income Tax-Act and the Income War Tax Act
1949
amend
the
Reserve
that
not apply
does
upon
taxes
situated
Cameron
Justice
The Indian Act
of
CANADA
OF
Courts of
the
this
country
The
appeal
should be dismissed
The judgment
of
Rand
with costs
Cartwright JJ was delivered
an-d
by
The
RAND
within
the definition of that
1952
149
21
Reserve
in
of the
is
St Regis
between
The
the
tribe
the
-on
States
two
of
boundary
-oth-er
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is
Indian
an
Indian Act R.S.-C
the
to
part
into
by
of
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United
the
Between
1948
electric
were
his
delivered
customs
brought
-home
by
office
in the
the
for
Francis
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or
in
district
the
They
-a-nd
by
oil
Unite-d
from the
reserve
seller
the
and
bounda-ry
1951
-and
-refrigerator
over
settlement
-States
international
th-e
washing machine
and an
these
and
in
is
extending
two countries
national
the
latter
south
pu-rchased an -electrical
burner or heater
word
Francis
and resides on the St Regis Indian
Quebec
hounded
Louis
appellant
inter-
Francis
were
not
some
time
SUPREME COURT
S.C.R
$123.66
was
brought
for
The
the return
based
is
1794 which
these
of
to
amounting
duty
was thereupon
right
and
Britain
or
nor
shall the
Goods
and
Effects
whatever
the
of
art
of
United
the
Indians
passing
of
whatever
Jay
of
States
nature
pay
or
other
considered
as
Goods
in
be
the
for
Peitries
Territories
said
saute
respec
own
their
repassing with
or
on
Party
either
the
into
Bales
Goods
not
shall
by
levied
Navigation
But
Indians
be
ever
Inland
proper
unusual
Packages
large
bona
belonging
or
Impost
any
fide
to
Indians
and on the 9th
same
the
states
His
And
the Tribes
all
Nations
the
or
and
been
or
to
to
entitled
that
such
Tribes
His Britannic
against
desist
so
as being
of which
1811
or
Nations
Majesty
treaty the
affected
the
by
by the 9th
the
war
on
liability
1927
98
the
to
Subjeots
such
Tribes
of
true
in
confirma
making
the
peace
here
including
of
the
and was
not
interpretation
be perpetual
to
enact
the
effects
statutory
prerogative
the
1812
of
any event
it
was
restored
1815
of
ground
for
treaty
was intended
article
second
in
exercise of the
function
article
agree
his
to
notified
such
to
shall
or
which
previous
and
the
at
Tribes
Privileges
in
being
War
at
such
and
end
with
accordingly
provision
in
is
legislative
be
to
an
put
hostilities
to
may
he
restore
art
is put as foflows
The contention
ment of substantive
law not requiring
tion
reads
to
part
Rights
the present Tteaty
of
shall
whom
with
forthwith
Possessions
always
hostilities
all
the
enjoyed
Ratification
Nations
and
all
his
of the present Treaty
Indians
of
on
engages
Ratification
Nations
Provided
from
desist
Majesty
Ghent 1815 between
Great BritaIn
as regards
Ratification
have
hostilities
upon
the
respectively
may
they
or
such
of
time
which
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after
immediately
of the Treaty of
article
that
is
duties
the
861
and by
is
appellant
102
of
of
exempted
Indian
the
from
.dct
These
149 R.S.C 1952
of
read
No
102
any
real
under
estate
reserve
such
Indian
or
real
locality
in
or
non-treaty
lease
special
or
or
in
reserve
which
personal property
which
it
is
situate
be
simple
fee
in
Indian
unless
personal property
or
at
or
case
the
be
shall
holds
in
liable
his
same
shall
rate
be
as
be
to
taxed
individual right
personal property
he
FRANCIS
THE QUEEN
moneys
on that clause
first
shall
Entry
tively
among
the
623
stipulates
on
Duty
by Land
Duty
until
petition
of
Great
Treaty between
brought
The
paid
claim
No
held
and
seized
were
later
CANADA
OF
liable
other
outside
to
of
be taxed
persons
in
for
real
the
for
the
RandJ
SUPREME
624
1956
FRANCIS
86
or
the
of
Section
to
THE QUEEN
the
an
of
no
or
band
or
possession
use
or
of
Parliament
Canada
of
subsection
to
subjeot
exempt from taxation
is
band
or
an
subject
is
otherwise
is
or
the
but
in
reserve
namely
surrendered
or
and
Indian
occupation
property
Indian
the personal property
and
of
province
following
interest
lands
RandJ
the
82
of
legislature
CANADA
OF
any other Act
Notwithstanding
Act
any
and
COURT
of
Indian
to
any
subjeot
band
or
taxtion
in
in
taxation
reserve
the
of
mentioned
property
to
on
situated
respect
in
wnership
paragraph
of
respect
such
any
pro.perty
Cameron
required
war of 1812
the
the
of
toms
that
statutes of
sections
none
there was
tinetion in respect
of Sir William
its
waive
the
recognized
and
and against
the
citizens
in
in
confiscation
germane
The
and
United
the
meaning
Ann and
the
oblivion
of Paris 1783
both
of
was
of that
for
prosecution
provided
from the lands
the
the
the Indians
of
question
governments
of
other
and
confederation
the
for the
border
maters
years
with
that
not
problems
tribes
in the
was left untouched
however
followed
of
east
known
British
both
they presented
reconciliation
between
New
Generally
York
and the Ohio river and in particular those belonging
port
fixed
States
against
of their property
and
n.ature
former and continuing
countries
States
to
rights
original causes
United
of the
property
the
all
1-to
others
respective
is
words
the
here
during
speaking
dis
prerogative
and legitimate
Eliza
withdrawal of British troops
points
of the
an agreementin
independence
secured
boundaries
in
The Treaty
the
nor apparently the
and power
concerning
and to bury
war
subjects
the
in
discussion
parties
of the
it
all
49
the
and that
Ghent was not
of
Treaty
primary
war
Scott
by
by
negatived
treaty of peace and other treaties
us between
peace treaty in
law
as
quoted did not extend to cus
the
of the scope
treaty concluding
was
1949 2nd Session
of
art
effective
was abrogated
article
to his attention
brought
urged before
the
exemption
Canada
Art
duties
evidently
the
Indian Acts
the
of
that
become
to
that
held
petition
confirmation
statutory
of which
the
dismissing
as the Six Nations
had tended
and the bitterness then aroused
state
to
to
the
sup
continued
the peace
No clear political conception had been
either to the
of the Indians
formulated of the relationship
efter
1873
Dods 244 248
SUPREME COURT
S.C.R
old or
new government
the
the lands
in
will and
their
to transfer
possess
As
the
of
idea
countries
setting
this
such
of
failure
matters
drawal
neutral
return
from
with the events developing
the
for
restoration
of
in
trade
addition
by both
terms ofthe
the
slaves
and
of
with
the
points These
border
fortified
treatyin
confiscation
individuals
of
prosecution
In
made
were
two
the
not appar
did
proposal
the
of
between
this
Europe
and the need
induced
common
both
of
desire to
remove these frictions which eventuated in the treaty of
1794 Jays Treaty
Study in Commerce and Diplomacy
Bemis pp
109
seq
et
broader
Assuming then
tive
in
the treaty of 1794 bring
of
purposes
treaty
states
independent
be seen
will
tive
and
that
give
of
the
or
for
state of
the
of
the
future
depend
upon
transfer
political
peace when
as
of
upon
peace
their
But provisions
these
general
interpretation
rela
more
or
generally
of
the
may
the
according
to
by
Stipula
assume
reason
deemed
to
of
be
on which they
break
impliedly
terms
during
the
muniment
title
condition
the
of
in
over property
they are
or suspension
is
and
relations
expressly or
deal
or
recognition
boundaries
broken by war
considerations
as
do not require
aspects
proprietary
the
but
provisions
sovereignty
commercial
is
or
both legisla
for
of sovereignty
exercise
failure
template continuance
The
or
category
capacities
of
of
nor the
two
as
and the treaty becomes
social
impossibility
abrogated
in
the
that
establishing
call
example
for
establishment
executed
evidence
tions
may
sovereign
exclusively
peace
deemed
are
sovereign
incidents
confirmation
independence
act
recognized
Speaking
to
recognition
legislative
in
acting
action
judicial
in
are
implementation
its
with matters
treaty
what
preroga
the causes
within
it
an executive
primarily
is
between
tionships
under the
authority
peace treaty neither
negotiating
rules
FRANCIS
purported THE QUEEN
British conceived
zone
but
definite
carry out
to
British troops
of
the
countercharges
the
as
the
properties
apart
and
charges
countries
mitigation
of
rights
which they did not
title
settlement
of
respect
British had
the
States
to the point
625
had formerly roamed at
of
Indian
ently develop
to
United
measure
for
that
was
protest
the
to
in
especially
which the natives
over
CANADA
OF
may con
state
that
of
war
govern
RdJ
SUPREME COURT
626
196
FRANcIs
THE QUEEN
RRIIdJ
that
instruments
of
stantial
background
the
and
objects
as
parties
result that
and apart
would
to
executive
to
within
the scope
change
rights
existing
tion
the
of
declaring
as in the
United
provisions
of
the
future
absence
of
and
action
coiistitutiona1
law
the
of
and
organs
by
Geo
37
and
the
the
of
holding
of
Great
vice
versa
subjects
of
shown by
is
respecting
assigns
state
by statu
involvement
joint
1783
States
their heirs
the
to
the
of
the participa
of
judicial
of
treaty
United
the
in
the
instance
legislative
including
is which purport
that
the
matters
affecting
States must be supplemented
executive
lands
adjudica
immunities
certain
treaty itself to be
the
An
action
tory
law
restrict
and
Crown
provision
and
status
under our constitution
legislature including
the
say as to abrogation
treaty provisions
or
between
of an international
of municipal
law
such
be undesirable
diplomatic
belligerent
the
of
When
organ must act but
judicial
branches
question
to say the least
as
Except
and
the
from any
intention
about non-concurrence
brought
judicial and
the
with
dealt
used
language
circum
entire
matters
the
gather
the
in
expressed
touch individuals
matters
tion
nature of the
view we
in
the
from
generally
the
CANADA
OF
Britain
These
97 which was declared
were supplemented
by
to continue
as the treaty should do so and no longer
so long
In Sutton
Leach
the
that
that
1812
of
Sutton
held
III
provision
the
so far
are so
at the
far
To
treaty not
extend
and
only
be brought
of
fiscal
to
necessary
the
clause
held
war
that
lands
Act of 37
peace
by
legislation
into
the
in
Geo
not
as
question
that
ER
255
be
to
agree
legislation
exemption
that
effect
in
39
the
under which goods
affected
municipal law the
Legislation
in
does not
customs duties
condition
in holding
certainly
prerogative
can
country be
this
within
the
Upper Canada by 41 Geo III
Geo IV
11 in Lower Canada by
enacted
by
bring
in
who
provisions
treaty
with Cameron
therefore
by
in force and
the
in
the
lands to be treated
these
imposed or removed or can
may
remained
John
.Sir
subjects
enactment
the
case of
Rolls
annulled
American
time mentioned
as regards
aliens but as native
of the
was not
statute
of every
heirs and assigns
Great Britain
Master
the
this
III
was
of
was
repealed
the
enabling
SUPREME
S.C.R
Geo
36
statute
up
renewals
tion
is
vision
the
ordEinarice
been
have been passed
to
country giving
this
made
1796
of
by annual
No
lapsed
it
by
legisla-
other province
a.ny
been no statutory
century then there has
in
627
continued
when
1813
to January
suggested
For over
and
III
CANADA
OF
former having
the
thereunder
COURT
effect
that
to
pro-
of
clause
the
article
The
nature
its
relations between
was not viewed
lowing the
from the
This was
the
of
treaty
United
fined
the
to
inhabited
the
claimed
early
advance
south
lands
the
granted
tion
the
and
to
that
within
the
thus
to
695
and
et
the
Canada
they
and the
ter
within
were
to
Sir
1763
seq
that
they have
America
as
from the
in
1867 and
few
relation to
the
Continuing
for
and
the
their lands
1777 and
the
the
the
until
the
1818
Con
later
drew
Pacific
and
Indians
was
administration
1744 and extended
in
Its
of
1846
the
the
The see
Lake
years
to
territory reaching
Canada
within
fixed
until
ocean
William Johnson
of
not
in
The
Ohio river
at the
was
Pacific
in
was
of
boundary
Bay Company
the
ordinances
protection
early
that
had been made with
boundary
Government
by
as
Hudsons
extended
in
less
western
Mountains
Rocky
orbit all the
greatly
the
Great Lakes
the
to
north
Quebec
Detroit
and west of those lakes were
succeeded
inaugurated
con
not
were
these
North
of
treaty
placed
of the
beyond
its
far
Canada
settlement
international
the
federation
materially
and
them much
to
In 1768
north
charter
Woods
Lake Erie
privilege
had
that
of
of
boundary
Montreal
central
of
significant
its
stages
to
to
took
tribes
affect
north
maritime provinces
eastern
In 1794 European
Indians
Fol
Indians
language but there has been no suggestion
the treaty was
its
lands
the
of
between
west
the
general
ever
north
district
also the
to
of
instigating the clause
Indians
the
ritories
transfers
and more western
to
from
and
to be perpetual
large scale
States
of settled
states
sovereign
major step which was bound
circumstances
But
structure
as intended
1783
Six Nations
to the
belonging
place
privilege lay within
particular
international
Vol
Provinces
welfare
were
of
passed
the
in
IV
Indians
Lower
partial consolidation
was
FRANCIS
THE
QtTEEN
RdJ
SUPREME COURT
628
1956
FRANCIS
THR QUEEI
made
and
Vict
RSIIdJ
lands
their
by
their
the
to
These
affairs
28 and
this
Indian
Act
Indian
enactments
affairs
what
now
the
the
is
In
urgency
1897
repealed
in
States
Garrow
on
engaged
In that
themselves
to
itself
no
United
century
and
States
Champlain and
slow
this
In the
had been
the
tribes
the
reached
living
march
of
free
and
fruits lands
which
that
its
life
in
war
1811
iii
The
article
of
1812
decade of the
the
United
Lake
There followed
events
paralleled
by
the
that
and today there remain along the border
country
the
posses
between
generally
The
fragmentary reminders of that past
over
last
out
merely
enjoyed
between
river
Mississippi
but inevitable
Indians
been abrogated by the
States
peace
United
of
the
legislation
had been passed
enactment
was held to have
Karn.uth
18th
such
by
was
pointed
parties
contracting
the
of
case
was
it
provision
Indians
by
in
case also
restore
enact
local
statutory
This appears from the
sions rights and priveleges
but that
last
brought
goods
cen
through
meet an immediate
to
the
under the Ghent treaty the
that
the
superseding
States
ancient
hunting
mode
original
strife
grounds
and
in
only
had waged
and
their
two powers but
between
divided
were
for
their
over
for
administration
treaty designed
with duties
dealing
have
therefore
of expanding
United
the
made
by 43 Vict
become the present
has now
Dominion
and
State
of
of
consolidated
were
generally
ments following
out
of
was
and the management
with modifications
tury been the subject
civiliza
management
the
comprehensive provision
enfranchisement
gradual
the
intro
their gradual
of the Secretary
Department
Vict
32-33
and
42
view
in
of life of western
42 committed
Vict
Vict
13-14
26 had
20 Vict
customs and mode
31
similar safeguards
Canada
of
of their settlements
to the
Then
tion
and
Wil
In Upper Canada
15 provided
province
106
preservation
duction
Vict
the
of
Legislation
14-15
44
1840 by 3-4 Vict
in
ham IV
OF CANADA
has
scope
long
since
disappeared
These
considerations
seem
to justify
both the Crown and Parliament of
the
provisional
an exclusive
88
Fed
accommodation
code
of
2nd
new
318
at
this
the
conclusion
that
country have treated
as having
been replaced
by
and special rights and privileges
321
279
U.S
231
S.C.R
SUPREME COURT
Appreciating
fully
wards
the
of
there can be no doubt
state
That
radical
such
cesser of
378-381
change
available
Assuming
that
which by
it
could
itself
expiration
has
to
it
decide
now
been reached
is
sufficient
1927
of
861
and
which was repealed
ing
these
in
taxed
as
at
by
locality
refers
property
under
it
and
in
and
unequivocal
country
or
made
argument
the
the
be
special
appears
to
The
me
appeal
to be
must
under
reserve
sufficient
therefore
102
the
of
former
noth
find
To be
in
or
personal
the
real
to
on importation
situated on
property
reserve
this
entering
On
boundary
is
the
would be limited to situa
bounded
indulgence
living on such
legislation
cannot be construed
international
exemption
Indians
no
appellant
to
only
it
mean
not
an
which that boundary
tions in
would
property
does
passing
is
rate as other persons
taxation
861
its
stipulation
extend to customs duties imposed
Similarly
of
not here necessary
is
there
assists
obviously
to
the
action
time
the
149 R.S.C 1952
June 20 1951
can
same
local
then
of exemption
the
102
Ghent
engagement
of
that
provisions
of
and supplementary
or not
as of
dis-
of Treaties
Treaty
was oniy an
to say that
There remains the question
time
do no more than to revive
in force implementing the
98
The Law
the
Whether
envisaged
clearly
and THE QUEEN
were
to be supported
appears
of
clause in its original treaty effect
was
clause
FRANCIS
condi-
nature brings about
this
art
the
foreseeable
in
McNair
extended to the exemption
restore
of
treaty provision
the authorities
by
as would
such
toward these
that
raison dŒtre of the
the
have been considered
629
of good faith
the obligation
tions constituting
appear
OF CANADA
to
also
the
the
small
consequence
and
reserve
fraction
which
of
itself
answer
be dismissed
and with
costs
if
demanded
of Kellock
The judgment
and Abbott
JJ was
delivered
by
The
KELLOCK
petition
herein
the
Indian
all
material
Act
as
an
appellant
Statutes
times
who
Indian subject
resided
of
at
Canada
the
is
described
to
the
1951
in
the
provisions
of
29
at
Chapter
St Regis Indian Reserve
RdJ
SUPREME COURT
630
Cornwall Island
FRANCIS
THR QUEEN
Art
trary to
It
1794 between
contended
is
the
of
Jay
on
his
behalf
of
the
19th
Treaty
His Britannic
CANADA
OF
that
November
and the United
Majesty
con-
States
America he was improperly charged customs duty on
certain articles
brought into Canada on or subsequent to
of
KelIockJ
the
19th
Art
1951
October
of
of
the
by
either
reads
treaty
in
as follows
part
No
Duty
on
tively
nor
shall
Goods
and
Effects
Duty
Entry
whatever
Indians
among
Goods
not
shall
nature
be
considered
Party
said
or
other
as
Goods
respec
own
their
same
the
for
Peltries
on
Territories
repassing with
pay
Bales
in
the
into
or
passing
whatever
But
levied
Navigation
the Indians
of
be
ever
shall
by Land or Inland
brought
proper
Impost
any
bona
belonging
or
unusual
Packages
large
fide
to
Indians
The
municipal law
the
of
any
that
which
consider
liament
the
of
the
Statute
of
became
article
without
the
part
of
necessity
it
or confirmatory
legislation
subsequently
conclusion
The
which
to
do not
point
have
find
it
thereof
enacted
1931
was
it
with respect
the
to
at least
with
to
since
Par
to
competent
right claimed
Indian Act R.S.C 1952
the
come
necessary
admits that
appellant
Westminster
legislate
861
no
is
second
first
of
to
canada
in
this
right claimed
the
the
to
respect
the
there
affects
view
that
either authorizing
legislation
and
In
contends
appe1lant
149
reads
as
follows
861
Act
any
to
Notwithstandiig
of the
section
the following
82
property
no
Indian
occupation
or
no
death
of
be taken
if
Succession
Duty
Act
of
to
any
inheritance
of
respect
to
an
determining
on
is
or
in
the
Parliament
to
exempt from
Indian
or
taxation
in
or
any
such
estate
other
the
of
of
in
any
duty
property
nor
Indian
Canada
is
or
namely
under
property
reserve
ownership
paragraph
such
property
on
payable
the
the succession
any such
shall
or
and
band situated on
the duty payable
respect of
taxation
in respect
respect
tax
of
subsection
mentioned
property
to taxation
passes
in
account
use
in
the property
into
an
of
subject
subject
duty
Indian
any
is
or
otherwise
succession
thereto
hand
possession
is
or
and
or
of
but subject
province
the personal property
and
other Act
any
of
legislature
the
property
Dominion
passing
to
am
Indian
Before
situated
at the
other
the
on
border
tax
property
reserve
it
here
in
could
question
had become
liable
become
to customs duty
There has been no attempt
to
impose any
SUPREME COURT
S.C.R
891
Section
890
For
the
and
purposes
631
as follows
reads
of
CANADA
OF
86
sections
and
88
prderty that
personal
was
by
purchased
by
deemed
this
property
sent
of
the
between
It
is
It
force
Act
to
or
in
to
think
only
section
this
my
terms
are
on
any property
or any
entered
into
members
or
of
that
the
reserve
the
Customs
such
made
situa
Act
Indiana
of
and
matter
the
time
in
with
inconsistent
any
of
to
the
this
exoept
for
which
section
does
Act
this
that
treaty
in
this
treaty such as the Jay Treaty
Indians
which
that
privileges
immunity from
Act or the Customs
Act
the
terms
of
mentioned
are
with costs
Appeal
the
appellant
of
is
to
be
legisla
Canada
with costs
Cowling
Varcoe
and
legislation
Act
general
citizens
dismissed
constitute
Indians
Tariff
Henderson
the respondent
of
general
such
with other
for
situa
from time
thereunder
for
equally
Solicitor
other
any
are
provision
rights and
Indians
for
or
section
in respect
laws
would dismiss the appeal
Solicitors
band
actual
provisions of the Indian Act
the
found in the Indian
Osborne
of
statute
to the extent
to
the
contemplated
is
application
or by-law
with
treaties
the
and
treaty
to and
that
clear
in
con
with
notional
that
of
general
make
under
that
interest
87 that
any
applicable
laws
quite
is
governing
apply
laws
all
such
opinion
as the
of
to an international
to
throughout
tion
to
reserve
between
into
rule regulation
that
it
but
except
.a
is
intendment
the extent
to
made by
extend
code
on
provided
the
order
between
agreement
thereOf
property
the
Canada
extent
not
such
from
title
pass
transaction
member
any province
is
or
reserve
to
situated
entered
is
plain
except
provision
In
or
and
within
of
any
the
be
to
personal
Subject
province
Indians
of
or
and that any argument suggesting
Parliament
moneys
or
benefit
treaty
on
situated
purporting
unless the
is moreover
87
in
band
not
is
void
is
the
86
tion
moneys
the use and
band under
to
be
to
deemed
quite
tion of
bys
always
Minister
the
or
transaction
section
such
for
Indian
Her Majesty
and
Every
is
Indians
to
band
be
with
Majesty
Parliament
or
given
shall
Tns QUEEN
Her
by
appropriated
bands
FRANCIS
Mac
Tavish
Kellock