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Traffic Laws On Reserves

"It is the opinion of the legal officers of my Department that the provisions of The Vehicles Act may be applied with respect to offences not specifically covered in the Indian Reserve Traffic Regulations or by band council bylaws. In coming to this conclusion the provisions of section 88 of the Indian Act are relied upon. Further, it is their opinion that the provisions of the Indian Reserve Traffic Regulations might also be applied in that Regulations 6 and 9 create offences; those offences being a violation of the provincial law.

"If this interpretation is correct the enforcement of traffic violations occurring on reserve lands might be dealt with either under The Vehicles Act or under the Regulations. If a choice may be exercised it is felt that it might be in the best interests of everyone to proceed with such charges under The Vehicles Act provisions. The advantages would appear to be as follows:

(1) That persons charged with offences on reserve lands would be subjected to the same laws as all other citizens in the province;

(2) From the point of view of prosecutions in contested cases The Vehicles Act offences would be more easily proved. If the offence were charged under the Regulations the Crown must prove by formal evidence not only that the offence occurred but also that the offence occurred on reserve lands;

(3) Also, from the standpoint of prosecutions, offences are sometimes committed partly on and partly off of reserve lands, and in such cases it would be necessary to proceed only with The Vehicles Act offence.

It is the position of my Department that the Department of Indian and Northern Affairs may be responsible for traffic enforcement on reserve lands.

"The Department has not assumed such responsibility in the past except for the prosecution of cases proceeded with under the provisions of the Regulations. The matter of responsibility will be the subject matter of discussions with the federal department in the future. If responsibility for enforcement should depend upon whether or not proceedings are taken under the Regulations or under The Vehicles Act, our decision as to the policy to be followed might be influenced.

"There remains the question of the traffic enforcement on provincial highways, grid roads and municipal roads in cases where the title to the land on which the road is situate has been granted to the Province of Saskatchewan or to a municipality. It is the opinion of the legal officers of my Department that these are public areas over which the band councils have no control. In the case of these roadways the public has a right of access; a right which is not enjoyed with respect to reserve lands. It is the position of the Department that such lands are not "within Indian Reserves" and that in these cases only provincial law should apply.

"I am informed that prior to the month of May of 1971 traffic offences occurring on reserve lands were dealt with generally under the provisions of The Vehicles Act except where such offence was covered by either the Regulations or the bylaws duly passed by band council. Prior to the month of May of 1971, offences occurring on provincial or municipal roadways were proceeded with under the provisions of The Vehicles Act. In the month of May, 1971, a policy directive was issued by the former Attorney General, instructing the R.C.M. Police not to proceed with charges under The Vehicles Act where the offence occurred either on reserve lands or on any road crossing reserve lands. This directive was apparently made in order that this whole subject might be further considered.

"This matter has received the consideration of our Department since 1971. It is felt that this policy has worked a hardship both upon the Indian people and upon those who are responsibile for law enforcement. This policy has curtailed traffic enforcement generally on reserve lands and on provincial highways crossing such lands. In June of 1972, representatives of my Department received comments from the members of the Federation with respect to traffic control on reserves.

"I would propose that we revert back to the policy followed by this Department prior to May of 1971. This policy would be as follows:

(1) In the case of reserve lands that prosecutions would be proceeded with either under The Vehicles Act or Indian Reserve Traffic Regulations. This policy would involve the charging of The Vehicles Act in a great majroity of the cases. Nothing in this letter is intended to affect the enforcement of bylaws made by band councils.

(2) That in every case the provisions of The Vehicles Act would be used for the enforcement of traffic offences occurring on roadways, where title to such roadways is held by either the Province of Saskatchewan or a municipality.

"The considerations set out in this letter may be altered by changing circumstances or changes in legislation or by directions given by the courts in deciding particular cases. It will be the responsibility of my Department from time to time to formulate policies with respect to these matters. When formulating such policies, we would appreciate having before us the benefit of your views.

Quoted from a letter written by Saskatchewan Attorney General Roy Romanow to the F.S.I. April 17, 1973.