Little Black Bear First Nation v. Kawacatoose First Nation

Little Black Bear First Nation v. Kawacatoose First Nation
Court (s) Database
Federal Court of Appeal Decisions
Date
2024-07-12
Neutral citation
2024 FCA 119
File numbers
A-303-19, A-328-19
Decision Content
Date: 20240712
Dockets: A-303-19
A-328-19
Citation: 2024 FCA 119
CORAM:
GLEASON J.A.
WOODS J.A.
HECKMAN J.A.
Docket: A-303-19
BETWEEN:
LITTLE BLACK BEAR FIRST NATION
Applicant
and
KAWACATOOSE FIRST NATION, PASQUA FIRST NATION, PIAPOT FIRST NATION, MUSCOWPETUNG FIRST NATION, GEORGE GORDON FIRST NATION, MUSKOWEKWAN FIRST NATION, DAY STAR FIRST NATION, STAR BLANKET FIRST NATION, STANDING BUFFALO DAKOTA FIRST NATION, PEEPEEKISIS FIRST NATION, and HIS MAJESTY THE KING IN RIGHT OF CANADA
Respondents
Docket: A-328-19
AND BETWEEN:
STAR BLANKET FIRST NATION
Applicant
and
KAWACATOOSE FIRST NATION, PASQUA FIRST NATION, PIAPOT FIRST NATION, MUSCOWPETUNG FIRST NATION, GEORGE GORDON FIRST NATION, MUSKOWEKWAN FIRST NATION, DAY STAR FIRST NATION, LITTLE BLACK BEAR FIRST NATION, STANDING BUFFALO DAKOTA FIRST NATION, PEEPEEKISIS FIRST NATION, and HIS MAJESTY THE KING IN RIGHT OF CANADA
Respondents
Heard at Regina, Saskatchewan, on September 26 and 27, 2023.
Judgment delivered at Ottawa, Ontario, on July 12, 2024.
REASONS FOR JUDGMENT BY:
WOODS J.A.
CONCURRED IN BY:
HECKMAN J.A.
DISSENTING REASONS BY:
GLEASON J.A.
Date: 20240712
Dockets: A-303-19
A-328-19
Citation: 2024 FCA 119
CORAM:
GLEASON J.A.
WOODS J.A.
HECKMAN J.A.
Docket: A-303-19
BETWEEN:
LITTLE BLACK BEAR FIRST NATION
Applicant
and
KAWACATOOSE FIRST NATION, PASQUA FIRST NATION, PIAPOT FIRST NATION, MUSCOWPETUNG FIRST NATION, GEORGE GORDON FIRST NATION, MUSKOWEKWAN FIRST NATION, DAY STAR FIRST NATION, STAR BLANKET FIRST NATION, STANDING BUFFALO DAKOTA FIRST NATION, PEEPEEKISIS FIRST NATION, and HIS MAJESTY THE KING IN RIGHT OF CANADA
Respondents
Docket: A-328-19
AND BETWEEN:
STAR BLANKET FIRST NATION
Applicant
and
KAWACATOOSE FIRST NATION, PASQUA FIRST NATION, PIAPOT FIRST NATION, MUSCOWPETUNG FIRST NATION, GEORGE GORDON FIRST NATION, MUSKOWEKWAN FIRST NATION, DAY STAR FIRST NATION, LITTLE BLACK BEAR FIRST NATION, STANDING BUFFALO DAKOTA FIRST NATION, PEEPEEKISIS FIRST NATION, and HIS MAJESTY THE KING IN RIGHT OF CANADA
Respondents
REASONS FOR JUDGMENT
WOODS J.A.
I. Introduction [1] The Applicants, Little Black Bear First Nation (Little Black Bear) and Star Blanket First Nation (Star Blanket), seek judicial review of a Decision of the Specific Claims Tribunal (Tribunal) reported as Kawacatoose First Nation v. Canada, 2019 SCTC 3.
[2] The Decision by the Honourable W.L. Whalen determined which First Nations were beneficiaries of Indian Reserve No. IR 80A (IR 80A). The reserve, whose Indigenous name is Kinookimaw, was created in 1889 by Order in Council PC 1151 (PC 1151), and was described simply as a “Fishing Station for the use of the Touchwood Hills and Qu’Appelle Valley Indians.” The Decision turned on the proper interpretation of this phrase.
[3] The Tribunal concluded that of the 11 First Nations purporting to be beneficiaries, either as Indians of the Touchwood Hills or Qu’Appelle Valley, 8 of the 11 were beneficiaries. The two Applicants are among the First Nations who were denied beneficiary status.
[4] The Crown took no position before the Tribunal or this Court on who the proper beneficiaries were. In this Court, submissions were made by the Applicants, as well as two First Nations who were accorded beneficiary status by the Tribunal, those being Kawacatoose First Nation (Kawacatoose) and Standing Buffalo Dakota First Nation (Standing Buffalo).
[5] The primary issue in these applications is whether the Court should set aside the Tribunal’s decision in so far as it excluded Little Black Bear and Star Blanket from the class of beneficiaries. For the reasons that follow, I would dismiss the applications.
II. Background A. Procedural history [6] There is a larger context to the Decision under review. Determining who the beneficiaries of IR 80A were will resolve a larger question of who the Crown owed duties to upon a purported surrender of the reserve in 1918. Alleged breaches of these duties are the subject of a claim (Claim) before the Tribunal.
[7] The Claim was bifurcated into two phases. These judicial review applications concern the Tribunal’s standing sub-phase, in which the Tribunal determined which of the First Nations alleging to be beneficiaries would be accorded standing to pursue the Claim.
B. Parties [8] In these reasons, First Nations are sometimes referred to as “Indian Bands” or “Bands”, and their individual members are occasionally referred to as “Indians”. This terminology corresponds with the historical records that form part of the evidence and is used solely to avoid confusion.
[9] Before the Tribunal, the parties included 11 First Nations (Claimants) who sought to have standing in the Claim. The Crown was the sole respondent.
[10] In this Court, the Applicants are Little Black Bear and Star Blanket, and the remaining 9 First Nations and the Crown are Respondents.
[11] I sometimes refer to the Claimants by the geographic location of their residential reserves. These locations are set out in the chart below, and are reflected in a map of the region appended to these reasons.
Touchwood Hills Bands
Day Star, George Gordon, Muskowekwan, and Kawacatoose First Nations
Qu’Appelle River/Lake Bands
Pasqua, Muscowpetung, Piapot, and Standing Buffalo First Nations
File Hills Bands
Little Black Bear, Star Blanket, and Peepeekisis First Nations
[12] I also sometimes refer to a subgroup consisting of seven First Nations who the Crown historically recognized as being beneficiaries of IR 80A. These were the Bands that the Crown considered as Indians of the Touchwood Hills or Qu’Appelle Valley. This subgroup was referred to by the Tribunal as the “Kawacatoose Group”. I use the same terminology in these reasons. The Bands in this group are the Bands located in the Touchwood Hills and the Qu’Appelle River/Lake area, with the exception of Standing Buffalo who was not recognized by the Crown as being a beneficiary. It is noteworthy that the File Hills Bands, which include the Applicants, are not in the Kawacatoose Group.
C. Treaty 4 [13] Historically, the Claimants were nomadic peoples in what is now southern Saskatchewan who followed a migratory route through the Qu’Appelle region. All but one of the Claimants are Cree and Saulteaux people. The lone exception is Standing Buffalo, who are Dakota/Sioux.
[14] In 1874, all the Claimants except Standing Buffalo entered into Treaty 4 with Canada. Treaty 4 encompasses a large geographic area in parts of what are now Saskatchewan, Alberta and Manitoba.
[15] All of the Claimants were provided with residential reserves in the larger Qu’Appelle region. The Cree and Saulteaux Claimants were entitled to the reserves pursuant to Treaty 4. Standing Buffalo did not enter into any Treaty, and was independently provided with a reserve in consideration of services it rendered to the Crown.
[16] The relevant text of Treaty 4 provides that reserves will be assigned by the Crown, after conference with each Band, and the Indians will have the right to pursue fishing and other avocations throughout the ceded area, except on tracts taken up by the Crown for other purposes. These provisions are reproduced below.
And Her Majesty the Queen hereby agrees, through the said Commissioners, to assign reserves for said Indians, such reserves to be selected by officers of Her Majesty’s Government of the Dominion of Canada appointed for that purpose, after conference with each band of the Indians, and to be of sufficient area to allow one square mile for each family of five, or in that proportion for larger or smaller families …
…
And further, Her Majesty agrees that Her said Indians shall have right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining or other purposes, under grant or other right given by Her Majesty’s said Government.
D. Process of reserve creation [17] The boundaries of the Claimants’ reserves were determined by surveys. Much of the surveyors’ work, which began on the ground around 1876, ultimately translated into the confirmation of the Claimants’ reserves in PC 1151.
[18] PC 1151 was an omnibus Order in Council, which formally approved a great many reserves. It comprised a total of 84 residential reserves for individual Bands, two fishing stations, one hay ground and two timber limits (Decision at para. 52).
[19] Fishing station reserves were first developed in 1881 to replace a system of designating entire lakes for the exclusive use of First Nations for fishing. The reserves were tracts of land along bodies of water for the exclusive use of designated Bands so as to provide access to fishing (Decision at para. 28). Whereas residential reserves were set aside for a particular Band, these special use reserves were sometimes for more than one Band.
[20] PC 1151 contained copies of all the reserves’ plans of survey, with the name of the surveyor and the signature of John C. Nelson indicating that, as the person in charge of reserve surveys, he had checked and approved them. Mr. Nelson, himself a Dominion Land Surveyor, had also surveyed many of the Claimants’ reserves, including IR 80A.
E. Creation of IR 80A [21] The first reference in the record to a fishing station at IR 80A was in a list of as yet unsurveyed reserves dated January 1, 1883 and prepared by Mr. Nelson. It identified the reserve as a “fishing station of 320 acres for Qu’Appelle and Touchwood Indians” to be surveyed at Last Mountain Lake.
[22] On June 5, 1884, Mr. Nelson reported to the Office of the Commissioner of Indian Affairs that he had visited the Long or Last Mountain Lake to set aside “fishing stations for the Touchwood Hills and Qu’Appelle Valley Indians.” While he identified the location for the fishing station, he did not survey it at that time. The location was near Last Mountain Lake and the Qu’Appelle River.
[23] The survey for IR 80A was completed in 1885, at which time Mr. Nelson reported to the Indian Commissioner that he had surveyed “a fishing station for the Touchwood Hills and Qu’Appelle Valley Indians.” This description matched the wording in PC 1151, which is at issue in these applications.
F. Purported surrender of IR 80A [24] In the early 1900s, the Department of Indian Affairs (Department) began considering a disposition of IR 80A. Surrender documents were purportedly signed by the seven chiefs of the Kawacatoose Group, and the surrender was confirmed in 1918 by PC 1815.
[25] Subsequent to the purported surrender, the land was subdivided and a number of lots were sold. The distribution of the proceeds to the Kawacatoose Group sparked a discussion within the Department on entitlement as some of the Claimants expressed dissatisfaction with the outcome. One concern that resonated with some Department officials was that the File Hills Bands should have been included as “Qu’Appelle Valley Indians” and beneficiaries of IR 80A because their reserves were not in close proximity to fishing lakes (Decision at para. 70). However, the Department’s position that the Bands belonging to the Kawacatoose Group were the only intended beneficiaries of IR 80A did not change. Some of the Bands continued to express dissatisfaction at least up until 1954.
G. Decision of the Tribunal [26] As mentioned earlier, when a Claim was instigated against the Crown regarding its administration of IR 80A’s surrender, the Tribunal had to first decide which of the Claimants were beneficiaries of the reserve and therefore had standing to continue in the litigation.
[27] The Tribunal concluded that, in addition to the seven First Nations in the Kawacatoose Group, the only other beneficiary was Standing Buffalo. None of the File Hills Bands were included. Little Black Bear and Star Blanket seek to set aside the Decision in so far as it determined that they were not beneficiaries.
[28] The Decision is described more fully below.
III. Issue [29] The issue is whether the Decision should be set aside with respect to the Tribunal’s finding that the Applicants were not beneficiaries of IR 80A. The issue is not whether the Applicants should have been included as beneficiaries, but is whether they actually were.
IV. Standard of review [30] The Decision will be reviewed on the deferential standard of reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]; Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 [Williams Lake]).
[31] The approach to reasonableness review articulated by the Supreme Court in Vavilov is concerned with both the decision-making process as well as the outcome reached (Vavilov at para. 83).
[32] The following principles from Vavilov are particularly useful in reviewing this Decision:
(i)The “burden is on the party challenging the decision to show that it is unreasonable.” “[A]ny shortcomings or flaws relied on by the party challenging the decision [must be] sufficiently central or significant to render the decision unreasonable.” (Vavilov at para. 100);
(ii)A decision will be unreasonable if the reasoning process is not rational or logical. In particular, “a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis …” (Vavilov at para. 103);
(iii)A decision will also be unreasonable when the “decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.” (Vavilov at para. 101); and
(iv)With respect to factual determinations, generally the court must “refrain from ‘reweighing and reassessing the evidence considered by the decision maker’.” However, “[t]he decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them. … The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” (Vavilov at paras. 125, 126).
[33] The reasonableness standard of review as applied to decisions of the Specific Claims Tribunal was considered by the Supreme Court in Williams Lake, which was decided a year prior to Vavilov. The Court commented that reviewing judges should be aware of the particular challenges faced by the Specific Claims Tribunal when it resolves legal issues arising from the application of legal principles and doctrines to historical claims and noted that the Specific Claims Tribunal is particularly suited to adjudicate these issues (Williams Lake at paras. 34-35).
V. Analysis [34] This analysis is divided into two parts. First, I set out the relevant findings made by the Tribunal. Then, I analyze whether the Decision is reasonable.
A. Tribunal’s findings [35] The relevant findings of the Tribunal are set out below under the following headings used by the Tribunal:
Overview of law
Conclusions on oral history evidence
Analysis of the documentary record
Changes in Agency administration and later administrative confusion
Use of IR 80A and the pass system
Concluding comments
(1) Overview of law [36] The Tribunal provided an overview of the legal principles which, in its view, bore on the issues before it. The overview also commented on how some of the legal principles should be applied in the case. Below, I summarize central aspects of this overview.
[37] The Tribunal first set out general principles of interpretation. Relying on Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85 [Osoyoos], the Tribunal concluded that an Order in Council should be interpreted based on principles of statutory interpretation. It then stated the well-known approach to statutory interpretation: “[W]ords of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 54 D.L.R. (4th) 193 at para. 21, citing Driedger, Construction of Statutes, 2nd ed. (Toronto, Butterworths, 1983) at 87).
[38] The Tribunal also considered principles applicable in determining whether a reserve has been created. In one authority, Ross River Dena Council Band v. Canada, 2002 SCC 54, at paragraph 67, the Supreme Court instructed that the Crown must have an intention to create a reserve. The Tribunal concluded that the jurisprudence places great emphasis on Crown intent in resolving questions about reserve creation.
[39] The Tribunal also reviewed a decision with an issue similar to these applications: Canada (Attorney General) v. Anishnabe of Wauzhushk Onigum Band, [2003] 1 C.N.L.R. 6, 2002 CanLII 15761 (ON SC) [Anishnabe], aff’d [2004] 1 C.N.L.R. 35, 2003 CanLII 13835 (ON CA) [Anishnabe OCA]. In Anishnabe, the Court interpreted an Order in Council setting aside a reserve under Treaty 3 “for the Saulteaux Tribe, generally” in order to determine which specific Bands were the beneficial owners of the reserve. The Tribunal noted that, in this context also, the Court in Anishnabe focused its analysis on determining the Crown’s intention in creating the reserve.
[40] The Tribunal also discussed interpretive principles applicable to statutory provisions that impact Indigenous interests. These are to generously interpret ambiguous provisions, and to approach such provisions in a manner that upholds the honour of the Crown. The Tribunal (at paragraph 145) reproduced the general description of these principles from R. v. Badger, [1996] 1 S.C.R. 771 at paragraph 41:
[41] First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. … Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. … Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed.
[41] With respect to the interpretation of ambiguous provisions, the Tribunal also set out the principle of generous interpretation from Osoyoos at paragraph 68, which involved the interpretation of an Order in Council:
[68] … if two approaches to the interpretation and application of an enactment are reasonably sustainable as a matter of law, then the interpretation or application that impairs the Indian interests as little as possible should be preferred, so long as the ambiguity is a genuine one, and the construction that is favourable to the Indian interests is one that the enactment will reasonably bear, having regard to the legislative purposes of the enactment …
[42] With respect to honour of the Crown, at paragraph 147 of the Decision the Tribunal referred also to the following excerpts from Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 [Manitoba Metis]:
[147] . . . “The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples . . .” (para 73(4)). The Court continued that the “honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation”, and the “honour of the Crown requires it to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests”.
[43] Finally, the Tribunal considered precedents on the use of oral history evidence in the adjudication of historical claims. The Tribunal employed the term “Indigenous perspectives” to describe the perspectives of the First Nation Elders and life speakers (Elders) who appeared as witnesses, regardless of whether or not the information was passed down by ancestors or these witnesses had personal knowledge.
[44] The Tribunal noted that the oral history authorities referred to by the parties arose in a different context – Indigenous rights and title litigation. However, it observed that “the principles of necessity, reliability, relevance, and reconciliation are not logically restricted to that setting.” (Decision at para. 153).
[45] Ultimately, the Tribunal concluded that since the interpretation of the Order in Council turns on the Crown’s intent, the oral history evidence should be considered from the perspective of whether it had a bearing on the intent of the Crown. Paragraph 166 of the Decision provides an example of where the Tribunal adopted this approach:
[166] . . . If, however, the Crown’s intent was found on the facts to include some but not all of the Claimants in PC 1151, then a Claimant’s sense of itself as belonging to, or having belonged to, the “Qu’Appelle Valley Indians” would not change that intention. Nor can the law relating to treaty interpretation, honour of the Crown and fiduciary obligations retroactively revise an order in council that the evidence clearly established had a more limited focus.
(2) Conclusions on oral history evidence [46] The Tribunal heard evidence from 14 Elders called by some of the Claimants to testify as to their First Nation’s use of, sense of entitlement to, and historical relationship with IR 80A.
[47] The Tribunal found that, in sharing their Indigenous perspectives, the Elders had “accurately recounted the information passed down to them” (Decision at para. 250). However, the Tribunal also concluded that the Elders had different understandings regarding the entitlement of their First Nations and other First Nations to IR 80A. The oral history evidence of the witnesses “conflicted from one First Nation to another as well as internally among witnesses from the same First Nation” (Decision at para. 245). The Tribunal comments that the differences, variations and inconsistencies “undermined their evidence, both on an individual and overall basis” (Decision at paras. 249, 251). This finding included the Applicants’ witnesses (Decision at paras. 245-246).
[48] In addition to its comment concerning inconsistencies, the Tribunal expressed skepticism about the testimony of some of the Claimants that their entitlement to IR 80A stemmed from an oral promise that was part of, or related to, Treaty 4. The Tribunal stated that this testimony came “with little elaboration or underlying factual basis” and the evidence as presented “was not sufficiently developed to support a finding that a promise of fishing station reserves was made at the time of Treaty adherence…” (Decision at para. 252).
[49] Finally, the Tribunal discussed evidence to the effect that all Claimants used IR 80A. The Tribunal found that this evidence demonstrated all Claimants had a strong attachment to IR 80A through their historical use and cultural perspective. However, it added that this attachment would not be enough to establish entitlement to IR 80A “unless it can be shown that the Crown was aware of it and was motivated to act upon it.” (Decision at para. 262).
(3) Analysis of the documentary record [50] The Tribunal commenced its consideration of the documentary record by stating that its focus was to determine the Crown’s intent in enacting PC 1151 (Decision at para. 264). To undertake this task, the Tribunal meticulously reviewed a large number of documents.
[51] From this review the Tribunal made two important findings. First, “[Mr. Nelson’s] intention in creating the [IR 80A] survey and describing it must surely govern in the sense that his work was the basis for PC 1151, which was in turn the stamp of approval of the content he had generated.” Second, Mr. Nelson did not intend to include the File Hills Bands as beneficiaries of this reserve. “His intention was that IR 80A would be for the shared benefit of the bands residing in the geographic area known as the Touchwood Hills, and also in the Qu’Appelle Valley itself along the shores of the Qu’Appelle River or Lakes.” (Decision at paras. 268, 289, 293, 300).
[52] At paragraph 301 of the Decision, the Tribunal discussed the role played by Indigenous perspectives in the selection of the beneficiaries of IR 80A. In this regard, the Tribunal acknowledged that the Claimants had self-identified as Indians of the Qu’Appelle region. However, the Tribunal stated that “Mr. Nelson’s perspective and underlying intent were informed by geography and a professional surveyor’s mandate in relation to situating bands on particular land within a particular time frame. The Indigenous perspectives were informed by the broad sweep of their histories and traditions. … The Indigenous and non-Indigenous perspectives apparently developed and thrived separately from each other, without connection or adoption by one culture or the other.” The Tribunal concluded that there was no evidence that “Mr. Nelson took a more inclusive view of ‘Qu’Appelle Valley Indians’.”
(4) Changes in Agency administration and later administrative confusion [53] The Government set up Agencies to administer groups of Bands located in a particular area. The Tribunal noted that, during and following the period of reserve creation, the Agencies which administered the Claimants were reorganized on several occasions. This resulted in the names of the Agencies that administered the File Hills Bands and the Touchwood Hills Bands being changed from time to time. For example, the File Hills Bands were at times administered by the Qu’Appelle Agency and at other times by the File Hills Agency. Similarly, the Touchwood Hills Bands were sometimes administered by the Qu’Appelle Agency and at other times by the Touchwood Hills Agency.
[54] The Tribunal commented that these changes might have caused confusion and misunderstanding among the Claimants and some government officials as to the meaning of “Touchwood Hills and Qu’Appelle Valley Indians” in PC 1151. However, the Tribunal concluded that the names of the Agencies did not affect the Crown’s intent with respect to IR 80A. The Crown adopted Mr. Nelson’s perspective, which was geographic, not administrative (Decision at paras. 298-299).
[55] The Tribunal also considered events that took place after IR 80A was confirmed by PC 1151. In the early 1900s, a decade after IR 80A was created, the government decided to seek a surrender of the reserve. In 1913, the Crown sought surrenders from the Bands that now comprise the Kawacatoose Group. They did not seek surrenders from the File Hills Bands. (Decision at paras. 67, 303).
[56] A debate then developed within the Department as to who the beneficiaries of IR 80A were. The Touchwood Hills Bands had voiced the view that the File Hills Bands also had an interest in the reserve. Some Department officials had sympathy for this view because the File Hills Bands, like the Touchwood Hills Bands, did not border on a fishing lake. However, the Department did not accept this view. (Decision at para. 304).
[57] The Tribunal noted that, despite the differing views described above, the Department never changed its view that the beneficiaries were the seven First Nations comprising the Kawacatoose Group, and this view was consistently maintained by senior Department officials and surveyors (Decision at para. 304).
[58] The Tribunal concluded that the Department’s view was the correct one, and it was consistent with Mr. Nelson’s intent, with the exception of the exclusion of Standing Buffalo. The Tribunal determined that Standing Buffalo had been improperly excluded by the Department on the basis that the Band was American Sioux. As Standing Buffalo’s reserve was in the Qu’Appelle Valley, it had a beneficial interest in IR 80A. (Decision at paras. 307-309).
(5) Use of IR 80A and the pass system [59] The Tribunal considered that several Bands used IR 80A after it was surveyed and formally set aside. It found that the Claimants did not pay great attention to boundaries at the time and they moved about each other’s reserves. The Tribunal determined that this did not confer beneficiary status under PC 1151 (Decision at paras. 311-312).
[60] The Tribunal also commented on the relevance of the pass system, a brutal and illegal policy brought in by the Department around 1885 following the Riel Rebellion. The effect of the policy was that the government at its discretion could restrict the movement of First Nations’ people outside their assigned reserves. The Tribunal noted that the overall use of IR 80A was diminished by both the imposition of the pass system and the forced transition of Indigenous people from a nomadic way of life to a controlled, stationary and agrarian existence. Nevertheless, the Tribunal found that the pass system had no effect on the entitlement to benefit from IR 80A (Decision at para. 313).
(6) Concluding comments [61] The Tribunal provided concluding comments in its reasons. The relevant comments at paragraphs 315-323 include important findings which are outlined below.
[62] First, as “the authorized surveyor,” Mr. Nelson was attentive to the nature and character of the land he surveyed. He consulted with the leadership of the Bands for which he was surveying reserves. He also “tried to understand the needs of the communities he was serving and he was consistently accommodating in this region.” (Decision at para. 315).
[63] Second, Mr. Nelson was not aware of the File Hills Bands’ need for a fishing station at any relevant time, including when he surveyed IR 80A and supervised its confirmation. “Had he been [aware], or had he been asked for a fishing station or inclusion in IR 80A, I think it probable that he would have tried to accommodate.” In addition, “there was no evidence that the File Hills Bands experienced difficulty obtaining fish, other than the interference created by the pass system and imposed on all Bands in the District.” (Decision at paras. 316-317).
[64] Third, the perspective of the File Hills Bands did not change Mr. Nelson’s “motivation and intent” with respect to IR 80A. “None of the principles of interpretation, applied liberally and to the best advantage of the File Hills Bands, can expand Mr. Nelson’s intent …” Mr. Nelson understood the Touchwood Hills, File Hills and Qu’Appelle Valley as three distinct geographic locations. (Decision at para. 318).
[65] Fourth, “Canada treated the benefits of IR 80A as Mr. Nelson had intended them, and it was consistent in doing so.” (Decision at para. 319).
[66] Fifth, the Tribunal had difficulty accepting some Elders’ testimony that there were oral promises of fishing stations around the time Treaty 4 was negotiated. The concluding comments provide three reasons for this: the evidence of such promises was “limited and conflicting”; there was nothing to indicate that the device of the fishing station had been conceived of at the time of the signing of Treaty 4; and the Tribunal believed that the oral promise of a fishing station would have been a more prominent, common and consistent feature of the Elders’ testimony if such promises had been made. (Decision at para. 320).
[67] Sixth, there was no evidence that the Indigenous community had difficulty accessing fishing grounds or catching adequate amounts of fish. While the pass system controlled access, it did not eliminate it. All of the Claimants used IR 80A; they were not excluded by the Crown or the First Nations in the Kawacatoose Group. Further, how the Crown administered the surrender of IR 80A was beyond the scope of the standing sub-phase (Decision at para. 321).
[68] Seventh, the pre-contact perspective of the Claimants does not directly assist in the interpretation of PC 1151 and the wording used in IR 80A. Unlike Treaty 4, which was a joint framework, “reserves were entities devised by the Crown according to Anglophone common law legal structures.” (Decision at para. 322).
[69] Eighth, as for whether ambiguities around the Crown’s intentions regarding entitlement to IR 80A should be resolved in favour of the Applicants because the Crown’s records were poor, there was no evidence that the records were of such a state to engage this principle. In any event, “the subject ambiguity was capable of clarification on the basis of the evidence adduced.” (Decision at para. 323).
B. Is the Decision unreasonable? (1) Introduction [70] The Applicants have the burden to show that the Decision is unreasonable. In general, a decision may be unreasonable if it is untenable in light of the relevant factual or legal constraints, or if it fails to reveal a rational chain of analysis.
[71] Accordingly, the analysis below considers the submissions of the Applicants. As far as I am able to discern, the Applicants do not submit that the Decision is irrational. They only allege that it contains factual and legal flaws.
[72] Before proceeding further, I would mention that it is not enough for the Applicants to demonstrate that the Decision contained a legal or factual flaw. In light of the principles from Vavilov summarized above, they must also show that the flaw is significant enough to render the Decision unreasonable.
[73] I have tried to read the Decision holistically, and find that the Tribunal’s concluding comments are helpful in understanding the reasoning process. These comments appear to summarize how the Tribunal reached its conclusion after a meticulous consideration of the evidence and the law.
[74] Although the Tribunal considered a number of issues, the outcome of the case is predicated on two central conclusions. First, the beneficiaries of IR 80A as described in PC 1151 should be determined in accordance with the intention of the Crown. Second, the Crown did not intend that the beneficiaries of IR 80A include the Applicants. If the Decision is unreasonable, it is likely because one of these findings is unreasonable.
[75] I turn now to the Applicants’ arguments.
(2) Did the Tribunal unreasonably find that PC 1151 was not ambiguous? [76] The Applicants submit that the Tribunal unreasonably found that the phrase “the Touchwood Hills and Qu’Appelle Valley Indians” is not ambiguous. They submit that the term “Qu’Appelle Valley Indians” is ambiguous and that the Tribunal should have interpreted it in their favour by finding it included the File Hills Bands.
[77] The Tribunal reasoned that, although the words by themselves are ambiguous, the ambiguity is resolved by the evidentiary record. The Tribunal did not express any doubts about this. It stated that it was “quite satisfied” with the conclusion. (Decision at paras. 300, 323).
[78] I will first address a submission of Little Black Bear that the Tribunal did not apply the proper principle in determining whether there is an ambiguity sufficient to engage the interpretive presumption in favour of the Applicants. Little Black Bear submits that the ambiguity is obvious since Mr. Nelson never articulated the individual Bands for which IR 80A was intended and this was never definitively resolved.
[79] I do not agree. The essence of Little Black Bear’s submission is that an ambiguity on the face of PC 1151 is sufficient to warrant applying a presumption in its favour. However, the Tribunal did not adopt this view and reasonably supported its approach at paragraphs 139-141 of the Decision.
[80] At paragraph 141 of the Decision, the Tribunal referred to the principle discussed in Osoyoos at paragraph 68. There, the Supreme Court stated that the presumption that courts should prefer the interpretation of an enactment that “impairs the Indian interests as little as possible” will apply only “if two approaches to the interpretation and application of an enactment are reasonably sustainable as a matter of law” [emphasis added]. The ambiguity must be “a genuine one” and the construction favourable to Indian interests must be “one that the enactment will reasonably bear, having regard to the legislative purposes of the enactment.” As for whether an interpretation should be considered sustainable as a matter of law, the Supreme Court recently confirmed the proper test in La Presse inc. v. Quebec, 2023 SCC 22 [La Presse]. At paragraph 24 of La Presse, Wagner C.J. stated:
[24] Second, a provision is only “ambiguous” in the sense contemplated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, if its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear and of the purpose of the provision (paras. 29-30). This is to say that there is a “real” ambiguity — one that calls for the use of external interpretive aids like the principle of strict construction of penal laws or the presumption of conformity with the Canadian Charter of Rights and Freedoms — only if differing readings of the same provision cannot be decisively resolved through the contextual and purposive approach set out by Driedger (ibid.).
[81] The Tribunal’s approach took into account the text, context and purpose surrounding PC 1151 for the purpose of construing the description of IR 80A and assessing whether there was a genuine ambiguity. This approach was reasonable when viewed in light of these authorities.
[82] The Applicants also submit that, even if the proper principles were applied, the evidentiary record does not resolve the ambiguity. In my view, the Tribunal’s finding to the contrary was also reasonable. In its interpretation of PC 1151, the Tribunal undertook an extensive consideration of the evidence and provided cogent reasons for its conclusion that the evidentiary record clearly resolves the ambiguity. There is no reasonable basis for this Court to reweigh or reassess this evidence.
[83] I would examine in particular three of the Applicants’ arguments that the evidentiary record does not resolve the ambiguity. My focus will be on whether the Tribunal has “fundamentally misapprehended or failed to account for the evidence before it.” (Vavilov at para. 126).
[84] First, the Applicants submit that “the Touchwood Hills and Qu’Appelle Valley Indians” could be a reference to Indian Agencies rather than geographic areas as the Tribunal had found. I disagree. The Tribunal reasonably rejected this submission at paragraphs 299-300 of the Decision when it found that, as a surveyor and the individual with the governing perspective with respect to IR 80A, Mr. Nelson used the words in their geographic sense, not an administrative one.
[85] The Applicants also suggest that the geographic bounds of the “Qu’Appelle Valley” were not clear. Again, the Tribunal’s consideration of this, and its conclusion at paragraph 293 that Mr. Nelson and the Department regarded the Touchwood Hills, File Hills and Qu’Appelle Valley as separate and distinct geographic locations, were grounded in the evidentiary record and are therefore reasonable. The Applicants have not demonstrated that this finding fundamentally misapprehends or fails to account for the evidence.
[86] The Applicants further submit that the ambiguity is demonstrated by the fact that certain government officials and the Touchwood Hills Bands advocated a different interpretation of “the Touchwood Hills and Qu’Appelle Valley Indians”. In my view, the Tribunal reasonably rejected this submission at paragraph 304 when it found that the position taken by fron