Driving On-Reserve

The rules for driving a vehicle on a reserve were once a little muddied.  But through the years, and many court cases later, the law has become much clearer.  

In addition to the aforementioned legislation on driving offences, the Indian Act also determines the laws governing driving on reserve.  

The Big Eagle Case 

The Big Eagle case is important because it decided whether provincial law applied to reserve roads. The issue was whether reserve land was private or public land.  

Back in the 1970s, a man, Mr. Big Eagle, was charged with Driving While Disqualified.  Mr. Big Eagle’s defence was that he was driving on reserve land, which is private land, not public.   

His defence went like this: “…not only are roads on a reserve not public roads, but also members of the public can be charged with trespass for entering the reserve by virtue of the Indian Act, R.S.C. 1970, c. 1-6, s. 30, which reads: 

30. A person who trespasses on a reserve is guilty of an offence and is liable on summary conviction to a fine not exceeding fifty dollars or to imprisonment for a term not exceeding one month, or to both.” 

In the provincial trial, Mr. Big Eagle was acquitted (found NOT guilty) of driving while disqualified.   However, the Crown Prosecutor appealed the case in the Supreme Court of Canada, which decided that “’public highway’ means a road….. designed and intended for or used by the general public for the passage of vehicles…..”  and that “The relevant regulation under the regulations governing the operation of vehicles within Indian Reserves reads:

2.  These regulations apply on all roads within Indian Reserves.

3.  In these regulations, (a) "Road” includes any roadway, driveway, street, land or other place open to the public for the passage of vehicles;

6.  The driver of any vehicle shall comply with all laws and regulations in force from time to time in the province in which the Indian Reserve is situated relating to motor vehicles, except such laws or regulations as are inconsistent with these regulations.” 

The Supreme Court of Canada Decides 

Culliton C.J.S., speaking for the court said: 

“I am satisfied as well that in the determination or whether or not the driver of a motor vehicle on a road in an Indian reserve is required to have an operator’s licence, reference need only be made to The Vehicles Act and the regulations covering the operation of motor vehicles within Indian reserves."

If the road in the Indian reserve is one which is open to the public for the passage of vehicles, under Reg. 6, the driver of that motor vehicle, whoever he may be, must have an operator’s licence as required by s. 63(1)(a) of The Vehicles Act. Sections 20 to 29 of the Indian Act detail the procedure for a [First Nations person] to obtain lawful possession of a parcel of reserve land.   

At the outset, s. 20(1) makes it clear that:

“20.(1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.” 

In no sense can roads on the reserve used in common with other residents be considered the private domain of the respondent. The Indian Act and its regulations expressly provide for the regulation of vehicles on reserve roads.  There is no question here of provincial legislation as it applies to Indians presuming to encroach on federal jurisdiction. 

It is rather a case of the federal legislation and regulations thereunder adopting the provincial laws, without detailed repetition, to the end of ensuring safe travel on roads for reserve residents.  The respondent under these laws has behaved in a manner that has caused him to lose his licence to drive as being a person for the time being unfit to do so.  We have here not so much a question of limiting the rights of the individual as we have a question of protecting the lives and safety of all others. 

The Indians are without question protected from the excesses of some of their number on roads commonly used by outsiders.  If it is only the presence of outsiders that is material, then on roads used primarily or solely by natives chaos could prevail.  This result would more effectively protect outsiders on reserve roads rather than native people, and the regulations’ purpose would be defeated. 

I find that the respondent is bound by these particular licensing laws when driving on reserve roads used in common with other residents even in the absence of evidence of a right of access or use by non-resident members of the “general public.”  Such roads are “public” roads within the meaning of the Indian Act regulations, and the term “general public” in the provincial legislation should not be interpreted to defeat that.” 

Conclusion

The general rule is if you are disqualified from driving in Alberta, that applies to on-reserve roads.

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