686 THE FEDERATIONS AND THE UNION [PART Iv
province with laws of its own, difficulty might arise as to
the legal principle to be applied, but the conflict was between
one set of legal principles and another, and in the present
case it did not appear to their lordships that the claim of
the Dominion could be sustained on any principle of law
which could be held to be applicable. The case ought to
be regarded as if what had been done by the Crown in 1873
had been done by the Dominion Government, as it was in
fact done. The Crown acted on the advice of ministers in
making treaties, and in owning public lands held them for
the good of the community. When differences arose between
the two Governments in regard to what was due to the Crown
as maker of treaties from the Crown as owner of public lands,
they must be adjusted as though the two Governments were
separately invested by the Crown with its rights and respon-
sibilities as treaty-maker and as owner respectively. So
regarding it, there did not seem sufficient ground for saying
that the Dominion Government in advising the treaty did
so as agent for the province. They acted in great national
interests in pursuance of the powers given by the Act of 1867
without the consent of the province and in the belief that
the lands were not part of the province. As guardians of
the Indian interest empowered to accept a surrender and to
give equivalents, they had no special duty to the province, and
in regard to the proprietary rights in the lands apart from
the Indian interest which enured to the benefit of the pro-
vince, they had no share in it at all. The only thing in regard
to which the Dominion could conceivably be thought trustees
for the province, namely the dealing with the Indian interest,
was a thing concerning the whole Canadian nation. In
truth, the duty of the Canadian Government was not that
of trustees, but that of ministers exercising their powers and
their discretion for the public welfare.
They also declined to accept the argument that the case
was analogous to that of a purchaser of real estate who pays
money to discharge an existing encumbrance upon it without
notice of an infirmity in his title. The Dominion Govern-
ment were never purchasers of the lands; they had notice
