Watson v. Canada

Watson v. Canada
Court (s) Database
Federal Court Decisions
Date
2020-01-28
Neutral citation
2020 FC 129
File numbers
T-2153-00, T-2155-00
Decision Content
Date: 20200128
Dockets: T-2153-00
T-2155-00
Citation: 2020 FC 129
Docket: T-2153-00
BETWEEN:
PETER WATSON, SHARON BEAR, CHARLIE BEAR, WINSTON BEAR and SHELDON WATSON, being the Heads of Family of the direct descendants of the Chacachas Indian Band, representing themselves and all other members of the Chacachas Indian Band
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA and THE OCHAPOWACE FIRST NATION
Defendants
Docket: T-2155-00
AND BETWEEN:
WESLEY BEAR, FREIDA SPARVIER, JANET HENRY, FREDA ALLARY, ROBERT GEORGE, AUDREY ISAAC, SHIRLEY FLAMONT, KELLY MANHAS, MAVIS BEAR and MICHAEL KENNY, on their own behalf and on behalf of all other members of the Kakisiwew Indian Band
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by THE MINISTER OF INDIAN AND NORTHERN AFFAIRS and THE OCHAPOWACE INDIAN BAND NO. 71
Defendants
REASONS FOR JUDGMENT
TABLE OF CONTENTS
SECTIONS:
PARAGRAPH #
I. Overview
[1]
A. Introduction
[1] - [2]
B. Background
[3] - [12]
II. Parties
[13] - [17]
III. Witnesses
[18]
A. Oral History Evidence
[18] - [21]
(1) Sharon Bear
[22] - [25]
(2) Wesley Bear
[26] - [27]
(3) Sam Isaac
[28] - [29]
(4) Ross Allary
[30] - [32]
(5) Cameron Watson
[33]
B. Lay Witnesses
[34]
(1) Plaintiffs’ Witnesses
[35] - [38]
(2) Ochapowace’s Lay Witnesses
[39] - [43]
(3) Canada’s Lay Witnesses
[44] - [48]
C. Expert Witnesses
[49]
(1) Dr. Kenton Storey
[50] - [52]
(2) Mr. Robert Nestor
[53] - [55]
(3) Dr. Bruce Miller
[56] - [58]
(4) Dr. Derek Whitehouse-Strong
[59] - [61]
(5) Dr. Alexander von Gernet
[62] - [66]
IV. Approach to Oral History Evidence
[67] - [78]
V. Contra Proferentem and the Presumption of Regularity
[79] - [86]
VI. Historical Evidence
[87]
A. Introduction to Historical Figures
[87] - [102]
B. Historic Bands as Signatories to Treaty 4
[103] - [107]
C. Reserve Creation in 1876
[108] - [117]
D. Use of the 1876 Reserves
[118] - [127]
E. Re-survey and Co-location
[128] - [130]
(1) Summary of the historical record on re-location and co-location
[131] - [144]
(2) Conclusions on the Kakisiwew Reserve Re-location
[145] - [151]
(3) Conclusions on the Chacachas Reserve Re-location
[152] - [160]
F. Amalgamation
[161] - [171]
G. Bands after Amalgamation
[172] - [186]
H. Creation of the Indian Registry in 1951
[187] - [190]
I. Order in Council in 1973
[191]
J. Historic Laws, Policies, and Practices
[192]
(1) Reserve creation
[193] - [194]
(2) Reserve surrender and change in location
[195] - [198]
(3) Transfer of members and amalgamation
[199] - [205]
(4) General evidence of conditions of starvation and restrictions on mobility
[206] - [210]
VII. Modern Era
[211]
A. Treaty Land Entitlement and Surrender Settlement Agreements
[211] - [225]
B. Recognition for the Historic Bands
[226] - [234]
C. Section 17 and New Bands/Band Amalgamation Policy
[235] - [239]
D. Plaintiffs’ Connection to Chacachas and Kakisiwew
[240] - [249]
VIII. Procedural History
[250] - [253]
IX. Issues
[254] - [256]
X. Analysis
[257]
A. Were Chief Chacachas’ band and Chief Kakisiwew’s band amalgamated, consolidated, or otherwise joined together? If yes, was it properly done?
[257] - [266]
(1) Creation of 1876 Reserves
[267] - [277]
(2) Surrender of initial reserves and creation of the Joint Reserve
[278] - [286]
(3) Amalgamation
[287] - [289]
(a) Fiduciary Obligations regarding Amalgamation
[290] - [293]
(b) Treaty Obligations and the Honour of the Crown
[294] - [311]
B. Can the Chacachas Band and Kakisiwew Band continue to assert and exercise their treaty rights as distinct treaty bands?
[312] - [313]
(1) Distinction between an Indian Act band and a “treaty band”
[314] - [321]
(2) Status of Chacachas and Kakisiwew as “distinct treaty bands”
[322] - [326]
(3) Impact of the Indian Act on treaty rights
[327] - [330]
C. Are the Chacachas and Kakisiwew Bands prevented from asserting they are distinct treaty bands by statutory limitation periods, laches and acquiescence, or estoppel?
[331]
(1) Estoppel by Representation
[332] - [345]
(2) Statutory Limitation Periods
[346] - [348]
(a) Application of Limitation Periods to Aboriginal Law Cases
[349] - [352]
(b) Application of Saskatchewan Limitations Statutes
[353] - [364]
(c) Discoverability
[365] - [373]
(d) Continuing Breach
[374] - [375]
(e) Fraudulent Breach of Trust or Fraudulent Concealment
[376] - [381]
(3) Laches and Acquiescence
[382] - [390]
D. Do the Plaintiffs have standing to bring these claims?
[391] - [396]
(1) Standing to seek declaratory relief
[397]
(2) Plaintiffs’ membership in the Ochapowace Band
[398] - [403]
(3) Test for Representative Proceedings
[404] - [412]
(4) Application of the Test for Representative Proceedings
[413]
(a) Standing of Watson Plaintiffs
[414] - [436]
(b) Standing of Bear Plaintiffs
[437] - [443]
E. If the Historic Bands were unlawfully amalgamated, what is the legal status of Chacachas, Kakisiwew and Ochapowace?
[444] - [467]
F. Declaratory Relief
[468] - [478]
(1) Availability of Declaratory Relief
[479] - [485]
(2) Limitations statutes do not bar the declaration
[486] - [504]
(3) Existence of Adequate Alternatives
[505] - [521]
G. Summary
[522] - [524]
XI. Costs
[525] - [526]
XII. Second Phase
[527] - [528]
PHELAN J.
I. Overview
A. Introduction
[1] The central issue in this case is whether two separate treaty signatory bands were wrongfully amalgamated by Canada. The subsidiary issue is whether the events of the past 135 years during which Canada treated the two bands as one, prevent these bands from seeking remedies from the Court if the amalgamation was unlawful. These actions are largely driven by those who identify as members of the Chacachas Band seeking to revert back to that Band in some undefined manner.
[2] Treaties are often described as “sacred promises”. Whether sacred or profane, they are promises made and are to be fulfilled. In amalgamating two Treaty 4 bands, the Chacachas Band and the Kakisiwew Band, without their consent, the Crown breached its fiduciary obligations owed to the two bands and failed to honourably fulfill and uphold the promises in Treaty 4 in accordance with the principle of the honour of the Crown. By causing the two bands to share a reserve, receive treaty annuities together and share a band governance structure without consent, the Crown prevented the bands from exercising their treaty rights as separate rights-bearing collectives.
B. Background
[3] Chief Chacachas and Chief Kakisiwew each fixed their mark on Treaty No 4 between Her Majesty the Queen and the Cree and Saulteaux Tribes of Indians at the Qu’Appelle and Fort Ellice, 15 September 1874 [Treaty 4] on behalf of their respective bands and their members on September 15, 1874. The promises of Treaty 4 included, among other matters, a promise of a reserve for each band as well as farming implements and treaty annuity payments.
[4] I will refer to the historic band led by Chief Chacachas as the Chacachas Band and the historic band led by Chief Kakisiwew as the Kakisiwew Band [collectively, “Historic Bands”]. [1]
[5] In 1876, separate lands were surveyed for the Chacachas and Kakisiwew Bands in the area of the Qu’Appelle River and Crooked Lakes in Southern Saskatchewan. Whether these lands became reserves is a matter of dispute in this action, given the limited documented use of the lands by the Historic Bands between 1876 and 1881.
[6] In 1881, a joint reserve was surveyed for the Kakisiwew and Chacachas Bands. The lands surveyed in 1876 were no longer treated by Canada as reserves for Kakisiwew and Chacachas. The Kakisiwew and Chacachas Bands were combined into one band in 1884, when Chief Ochapowace was elected as Chief of the amalgamated band. This band then became known as the Ochapowace Band.
[7] Whether the Kakisiwew and Chacachas Bands agreed to move on to a joint reserve and become one amalgamated band is the primary historical fact in dispute in this action.
[8] The ability of the Kakisiwew and Chacachas Bands to claim separate reserves under Treaty 4 is also impacted by two settlement agreements entered into by the Ochapowace Band with Canada in the 1990s: an agreement that settled the Ochapowace Band’s claim to land entitlement under Treaty 4 [TLE Settlement Agreement] and a specific claims agreement, which settled the Ochapowace Band’s claim to an alleged improper surrender of lands in 1919 [1919 Surrender Settlement Agreement].
[9] These reasons address the first phase of a consolidated action brought by the Plaintiffs in T-2153-00 [Watson Plaintiffs] and the Plaintiffs in T-2155-00 [Bear Plaintiffs] to answer the following questions set out by Justice Hugessen in 2008 and amended in 2011:
Was there an Indian band led by Chief Chacachas in 1874?
Was there an Indian band led by Chief Kakisiwew in 1874?
Were Chief Chacachas’ band and Chief Kakisiwew’s band amalgamated, consolidated, or otherwise joined together? If yes, was it properly done?
If no, are the Chacachas Band and Kakisiwew Band entitled to be recognized as distinct treaty bands? If so, are the Chacachas Band and the Kakisiwew Band estopped or otherwise prevented from asserting that they are distinct treaty bands?
If Chacachas and Kakisiwew exist as distinct treaty bands, what is their legal status?
Are the named plaintiffs in actions T-2153-00 and T-2155-00 members of either the Chacachas or Kakisiwew bands or are they members of the Ochapowace Indian Band? Do the named plaintiffs properly represent the individuals who are members of either the Chacachas or Kakisiwew Band?
Does the Ochapowace Indian Band No. 71 recognized by the Crown, continue to exist as a treaty band notwithstanding the determination of issues 1 through 6?
[10] I have attempted to focus on the issues that must be addressed in answering the seven questions set out by Justice Hugessen. However, addressing these questions still requires some consideration of the potential next phases of trial. In this first phase, the only relief that is sought is declaratory relief and findings that might support further phases of trial, but I am mindful that the Plaintiffs’ Statements of Claim indicate that they plan to make claims for compensation flowing from breaches of fiduciary duties, breaches of trust, breaches of treaty, and conversion in the next phases of trial.
[11] The parties have agreed to the answers to the first two questions set out by Justice Hugessen that (1) there was a band led by Chief Chacachas and (2) there was a band led by Chief Kakisiwew in 1874, when both chiefs signed Treaty 4.
[12] Overall, I have found that the Plaintiffs are entitled to a declaration that the Historic Bands were unlawfully amalgamated. However, I have declined to make a declaration at this time as to the legal status of the Chacachas, Kakisiwew, and Ochapowace Bands because of the lack of a suitable record as discussed later in these Reasons. That issue will be part of the next phase of this litigation.
II. Parties
[13] The Watson Plaintiffs, Peter Watson, Sharon Bear, Charlie Bear, Winston Bear, and Sheldon Watson, bring their claim as the heads of family of the direct descendants of the historic Chacachas Band, representing themselves and all other members of the Chacachas Band.
[14] The Bear Plaintiffs, Wesley Bear, Freida Sparvier, Janet Henry, Freda Allary, Robert George, Audrey Isaac, Shirley Flamont, Kelly Manhas, Mavis Bear, and Michael Kenny, bring their claim on their own behalf and on behalf of all other members of the historic Kakisiwew Band.
[15] The Ochapowace Indian Band [Ochapowace] is a co-Defendant and Plaintiff in Counterclaim. Ochapowace is the existing band under the Indian Act, RSC 1985, c I-5 [Indian Act] recognized by Canada to be the successor band to both Kakisiwew and Chacachas. Ochapowace has a reserve, Ochapowace Reserve No. 71 [Ochapowace Reserve], south of the Qu’Appelle River in Saskatchewan. All the named Watson and Bear Plaintiffs are members of the Ochapowace Indian Band.
[16] Ochapowace claims it is in the position of involuntary trustee for the members of the Chacachas and Kakisiwew Bands through a constructive trust formed as a result of unilateral Crown action to amalgamate the Chacachas and Kakisiwew Bands. Ochapowace’s counterclaim against Canada seeks full and complete indemnification for damages and costs arising from this action, as well as losses and damages and costs as a result of acting as trustee and which flow from the TLE Settlement Agreement referred to later in these Reasons. These were not issues addressed in the first phase of trial.
[17] Her Majesty the Queen in right of Canada [Canada or Crown], as represented by the Minister of Indian and Northern Affairs Canada, is a co-Defendant and the Defendant in Counterclaim.
III. Witnesses
A. Oral History Evidence
[18] Four Elders provided oral evidence regarding the history of Kakisiwew, Chacachas and Ochapowace following the signing of Treaty 4 in 1874: Sharon Bear, Wesley Bear, Sam Isaac, and Ross Allary. The examination for discovery transcript of the late Cameron Watson from 2004 was entered into evidence and also contained some oral history.
[19] The oral history testimony was heard on the Ochapowace Reserve in the first week of trial.
[20] Each Elder was introduced by a community member who described how the Elder was recognized in the community. Canada conducted restrained cross-examination on the oral history testimony.
[21] A book recording the stories of Ochapowace Elders, called Kehte-ayak, was also entered into evidence. The book was not created for the purpose of litigation or as a historical record. The Court puts less weight on these stories in the book when determining what happened regarding the amalgamation, given that there was live testimony from Elders which allowed the Court to assess the reliability of the oral history. It is more difficult to assess the reliability of the oral history recorded in the book, especially where the oral history was not necessarily told to create a historical record.
(1) Sharon Bear
[22] Sharon Bear shared her oral history knowledge as a Chacachas Elder. She is also a named Watson Plaintiff. She was introduced by Morley Watson who described the qualities and importance of Elders and oral history in the Chacachas community. Sharon Bear shared her knowledge of the role of Elders, the protocols for sharing oral history, and the history of the Chacachas and Kakisiwew Bands from stories passed down to her from her Elders. She described how her paternal great-grandfather was Kanawashqahum, who was associated with the Kakisiwew Band. She identified as a member of Chacachas because her parents identified as Chacachas through their connection to Sharon’s maternal great-grandfather, Little Assiniboine/Wasimosis [phonetic], who was a headman for Chacachas at the signing of Treaty 4.
[23] She described how Elders told her the Chacachas reserve was selected, occupied by the Chacachas people, and then taken from the Chacachas Band without consultation. She told the story of a woman named Kanipatit who was the last person to live on the Chacachas reserve with her baby when the Chacachas Band was moved to the joint reserve. She outlined how Chief Chacachas continued to be recognized as Chief after his title of Chief was removed following his arrest and incarceration. She described how community members had sent a delegation to ask a lawyer named Garnet Neff in Grenfell for help obtaining this land back, but that Neff discontinued his work for the band after being told that he would be disbarred for assisting the Chacachas delegation.
[24] An issue was raised later in trial when it was discovered that Sharon Bear was recorded discussing the evidence she wanted to give with her family members and others during a break near the end of her oral history testimony. Although the discussions were ill advised, the recorded discussions did not suggest anything that would undermine Sharon Bear’s credibility as an Elder.
[25] Sharon Bear named the Elders who had told her stories about the Chacachas reserve and re-location. She described how she learned oral histories from Elders by listening to their songs and stories, often when people would stop over at her parents’ house. When people would stop over at her parents’ house, they would often be given tobacco, which is part of the Chacachas oral history protocol when asking someone to share their knowledge.
(2) Wesley Bear
[26] Wesley Bear was called to share oral history as a Kakisiwew Elder. He was introduced by current Ochapowace Headwoman, Audrey Isaac. He is also a named Bear Plaintiff.
[27] He explained how he was descended from Jacob Bear, who became a member of the Kakisiwew Band and acted as a translator during Treaty 4 negotiations. Wesley learned about Chacachas and Kakisiwew from Cameron Watson and Chief Denton George once he was on Ochapowace Council. His evidence primarily confirmed that Elders told him that there had been two reserves set aside for Chacachas and Kakisiwew.
(3) Sam Isaac
[28] Sam Isaac was called as a Kakisiwew Elder to give oral history evidence. Sam described how his mother’s family descended from Chief Kakisiwew and his father’s family came from Kahkewistahaw (a neighbouring First Nation). He described how someone became an Elder and how he believed he started learning oral history from when his mother was pregnant with him. He explained the nature of hereditary chiefs in Plains Cree culture.
[29] He explained that his uncle had told him that Chief Chacachas left the reserve to get the Chacachas people to come back to Canada, but he died in the United States. He described how the government did not consult with the people before putting Chacachas on the Kakisiwew reserve. He also described oral history told to him about the hardships suffered by the Band from the pass system, the withholding of rations, and Indian Agents’ abusive conduct.
(4) Ross Allary
[30] Ross Allary testified as an Ochapowace Elder and shared the oral history passed down to him by his Elders. He was introduced by Petra Belanger, a current Ochapowace Headwoman. Ross Allary described his family history and identified himself as a Kakisiwew member, although he also has relatives descended from Chacachas.
[31] He was told by Elders, especially Ivan Watson and Arthur George, about Treaty 4 and the original Chacachas and Kakisiwew reserves. Ross Allary was able to mark on a map where Elder Ivan Watson had taken him to show him where the original Chacachas and Kakisiwew reserves were located. Ross Allary described how Chief Chacachas had asked Chief Kakisiwew to look after his people when he went looking for the rest of the Chacachas people who had moved away, but Chief Chacachas never came home. When the Ochapowace people later asked what had happened to the Chacachas reserve, the farm instructor had explained it to the band by putting one book on top of another to explain how the Kakisiwew and Chacachas reserves were put together. In the context of this case, the Court understands this to be symbolic of amalgamation.
[32] Ross Allary also described how the lawyer, Garnet Neff, who was hired by Ochapowace members, was told by the government to stop acting on behalf of the former Chacachas members or risk losing his licence. The work performed by Neff occurred at a time when a lawyer could not charge fees to an Indian without the consent of the federal government.
(5) Cameron Watson
[33] Cameron Watson was examined for discovery on January 19-20, 2004 and his entire transcript was admitted into evidence. In the examination for discovery, he described his understanding of the history of Chacachas, which originated from a mix of stories from Elders and his historical research into the documents. In his account of history, Chief Chacachas and Chief Kakisiwew had each been promised a separate reserve under Treaty 4. The Kakisiwew Band moved to a more southern reserve because they did not have enough timber. However, the Chacachas Band never agreed to amalgamate and never stopped recognizing Chief Chacachas as chief.
B. Lay Witnesses
(1) Plaintiffs’ Witnesses
[34] The Watson Plaintiffs called three lay witnesses: Morley Watson, Sharon Bear, and Sheldon Watson. The examination for discovery transcript of Cameron Watson was admitted into evidence and also contained some relevant information. The Bear Plaintiffs did not call any lay witnesses, other than the oral history witnesses described above.
[35] Morley Watson described his understanding of the TLE Settlement Agreement negotiations that began when he was Chief of Ochapowace from 1983 to 1987 – in broad terms a means to compensate for land wrongly taken by federal/provincial governments. He also described his understanding of how the Chacachas/Kakisiwew issue was treated by Chief and Council over the recent years. Morley was elected as the spokesperson of Chacachas in 2017 for this litigation.
[36] Sharon Bear testified as a lay witness based on her own actions and knowledge separate from her oral history testimony. She spoke to her involvement with Cameron Watson in the 1990s in seeking recognition of the Chacachas Band. She was part of the Chacachas group that formed to advocate for recognition. She also was a trustee for the Treaty Land Entitlement [TLE] Land Trust, which purchased some of the original Chacachas reserve lands with the funds from the Ochapowace TLE Settlement Agreement. She spoke to her view that Chacachas membership would be based on a combination of descendancy from an original Chacachas member and members’ choice.
[37] Sheldon Watson testified as a self-identified member of the Chacachas First Nation and a named plaintiff in the Watson action. He is currently an elected headman of the Chacachas Band. He described the steps taken in the 1990s to have Chacachas recognized by the Ochapowace Band and the Department of Indian and Northern Affairs. He explained why the creation of the Chacachas Band under the Indian Act was not desirable for the Chacachas group.
[38] In Cameron Watson’s examination for discovery, he described the commencement of the litigation in the late 1990s and his views on how the memberships of the Chacachas Band and Kakisiwew Band should be based on members’ ancestral connection to people on the original Kakisiwew and Chacachas Band Lists. He also identified which members of the Chiefs and Councils between 1912 to 2004 belonged to Kakisiwew, Chacachas, or to a newer group of members of Ochapowace, not tied to the Historical Bands in his view. He acknowledged that the essential facts about the two bands and their involuntary amalgamation were known to band members throughout the 20th century.
(2) Ochapowace’s Lay Witnesses
[39] Ochapowace called three lay witnesses: Petra Belanger, Ross Allary, and Chief Margaret Bear. The examination for discovery transcript of the late Chief Denton George was also admitted into evidence.
[40] Petra Belanger holds the Administration, Finance, and Justice Portfolio as a headwoman on Ochapowace Band Council. She spoke about the Ochapowace Band’s finances before and after the settlement agreements including the use of settlement funds to purchase land. She also spoke about her own understanding of the settlement agreements and membership in the Historic Bands. She did not identify as a member of Chacachas or Kakisiwew, but took the position that she should be able to determine her band membership later if the Historic Bands were to split from Ochapowace.
[41] Ross Allary testified as to events in his lifetime as both a resident of the Ochapowace Reserve and as a member of Ochapowace Council during the time of negotiations of the settlement agreements in the 1990s. He testified as to the process of negotiating the TLE Framework Agreement, the Band-Specific TLE Surrender Agreement, and the 1919 Surrender Settlement Agreement. He stated that the Ochapowace Band would not divide according to the Department’s band division policy because this policy would not recognize that the Kakisiwew and Chacachas were Treaty bands and because of the “no costs” nature of the policy. He did not accept Cameron Watson’s descendancy-focussed determination of band membership. Parts of Ross Allary’s testimony about his understanding of the settlement agreement became unclear, especially as he refused to speak about what Ochapowace was seeking in the second phase of litigation.
[42] Chief Margaret Bear described her experience working with the Department of Indian Affairs [Department] [2] while on Ochapowace Council, first as a councillor and then later as Chief. She described how she learned about the historic treaty bands issue. She had some general knowledge of the negotiation of the settlement agreements in the 1990s. She indicated that she thought that membership in the Historic Bands and Ochapowace should be determined by the individual choice of band members, She identifies as a Kakisiwew member. She also generally described her knowledge of the Ochapowace Band finances and investments, although she became evasive when questions were asked about band finances and plans for the Ochapowace Band’s future as had Ross Allary.
[43] The late Chief Denton George was examined for discovery in 2004. His whole discovery transcript was admitted into evidence. He was examined mostly on his knowledge of the TLE and Specific Claims settlement agreement negotiations as Chief during this period. He was able to identify and explain several of the letters that were sent between Ochapowace and the Department in the time leading up to and following the Settlement Agreements.
(3) Canada’s Lay Witnesses
[44] Canada called four lay witnesses: Graham MacDonald, Alois Gross, Violet Kayseass, and Andrew Doraty.
[45] Graham MacDonald is a senior policy advisor at Crown-Indigenous Relations and Northern Affairs, working on Specific Claims Tribunal files and providing policy advice on the application of the 1998 TLE Policy. He provided useful background information on TLE and the various arrangements negotiated with different First Nations over the years. He provided no specific evidence on the impact of the TLE Settlement Agreement on Ochapowace, Chacachas or Kakisiwew.
[46] Alois Gross retired in 1996, but worked at the Department of Indian Affairs for approximately 30 years. He worked as the Chief Negotiator for Canada in the Saskatchewan TLE Framework Agreement and the 1919 Surrender Settlement Agreement as well as being an advisor during the negotiations of the TLE Settlement Agreement. He described the process of negotiating the TLE Framework Agreement and the Soldier Settlement Board Settlement Agreement. Gross understood the issue of the Kakisiwew and Chacachas amalgamation to have been set to the side during TLE and Soldier Settlement negotiations.
[47] Violet Kayseass is an employee of Indigenous Services Canada and has worked in the Department since 1995. She testified regarding the Department’s New Bands/Band Amalgamation policy, which allows for the creation of new bands or the division of bands under section 17 of the Indian Act if certain criteria are met.
[48] Andrew Doraty works in the Office of the Indian Registrar within Indigenous Services Canada. He has worked for the Department for 30 years. He provided background information on the Office of the Indian Registrar. He had overseen research into the Indian Register and found that no protests were filed by Ochapowace, Kakisiwew or Chacachas members in 1951 when the Indian Register was established.
C. Expert Witnesses
[49] The parties put forward a total of five expert witnesses who addressed aspects of the historical record and oral history evidence. I have summarized their qualifications and areas of comment here, but will address more substantively the experts’ evidence throughout my analysis of the historical background of this case.
(1) Dr. Kenton Storey
[50] Dr. Storey was called by the Plaintiffs and Ochapowace and was qualified as an expert in the research and analysis of historical documents with particular emphasis on events in Western Canada during the time periods relevant to the action. He has a PhD in History, has worked as a historic researcher, and has taught western Canadian history at Brandon University as a sessional instructor. His academic research has primarily focussed on Aboriginal title and treaties in New Zealand and British Columbia, but he has written a few articles on the history of the prairies. This was his first time writing an expert report and testifying as an expert in Court.
[51] He testified that the Chacachas and Kakisiwew Bands had likely accepted their original 1876 reserves. Dr. Storey found there was likely no consultation of the Kakisiwew and Chacachas Bands with respect to the re-survey of their reserves, their co-location, or amalgamation. He also found it unlikely that the Chacachas Band would have consented to a re‑survey and co-location when Chief Chacachas and two headmen were not present.
[52] Although some of Dr. Storey’s speculation went too far, I overall found him a credible witness whose conclusions were well-explained and are consistent with other evidence.
(2) Mr. Robert Nestor
[53] Mr. Nestor was also called as an expert historian by the Plaintiffs and Ochapowace and qualified as an expert historian to answer questions related to Plains Cree protocols for movement between bands, the recognition of Chacachas and Kakisiwew Bands, the government policy and legislation regarding reserve creation, surrender, amalgamation, and band transfer, and what occurred with the re-survey and amalgamation of Chacachas and Kakisiwew. He has a Master’s Degree in Canadian Plains Studies, but has not completed his PhD. He has taught as a sessional instructor for 22 years in Indigenous Studies at a variety of institutions in Western Canada and has worked as a contract researcher, including for Ochapowace in other litigation.
[54] Mr. Nestor concluded that there was no consultation with the Historic Bands about the re‑survey, co-location, or amalgamation. Importantly, he found that the practice of the government in the 1880s was to seek the consent of bands for transfer of membership as well as amalgamation. He also concluded that no Order in Council was required to create a reserve at the relevant time.
[55] Although some of Mr. Nestor’s evidence regarding historical policies and legislation was helpful, some of it also bordered on legal conclusions or argument. His conclusions and attention to the details of the historical documents appeared to have less depth than Dr. Storey or the expert called by Canada, Dr. Whitehouse-Strong. As a consequence, I have tended to put less weight on Mr. Nestor’s opinion.
(3) Dr. Bruce Miller
[56] Ochapowace called Dr. Bruce Miller as a reply expert to Dr. von Gernet, the expert called by Canada to provide an opinion on the oral history evidence received in trial. Dr. Miller was qualified as an expert in the ethnography and ethnohistory of Indigenous peoples in North America and oral history, theory, and methods. Dr. Miller has a PhD in anthropology and is a Professor at the University of British Columbia. He authored a book on the use of oral history in Canadian courts where he critiqued Dr. von Gernet’s previous work as an expert. He has previously written expert reports or testified as an expert in a number of courts.
[57] Dr. Miller critiqued Dr. von Gernet’s lack of fieldwork experience and lack of appreciation of the cultural lens through which oral history should be assessed. He disagreed that “feedback” - the effect of external sources on the telling of Indigenous oral history - provided a significant problem in oral histories because Indigenous oral historians can separate out knowledge they gain from within their communities from knowledge from external sources. He also took issue with viewing oral histories merely as repositories of facts to be assessed only on their “facticity”; he encouraged a more holistic approach that looked for the core of stories when determining what to draw from oral histories.
[58] Although some of Dr. Miller’s points about the need to appreciate cultural context of an oral history were helpful, most of his evidence was not that helpful to the Court as neither he nor Dr. von Gernet had specific knowledge of Qu’Appelle Cree stories or oral history traditions. Dr. Miller and Dr. von Gernet’s evidence functioned more as a display of academic theoretical disagreement rather than anything helpful to the Court in interpreting the oral histories presented by the Elder witnesses.
(4) Dr. Derek Whitehouse-Strong
[59] Dr. Whitehouse-Strong was called by Canada and was qualified as an expert historian and independent research consultant with extensive expertise in the areas of historical research, research methodologies, First Nation, Metis, and Canadian history, government-Indigenous relations, treaties, settlement on the prairies, and Aboriginal claims and rights on the prairies. He has a PhD in History, which focussed on religious organizations and Indigenous Peoples in Western Canada. He has worked as a sessional instructor and has written published articles on the negotiation of the numbered treaties.
[60] Dr. Whitehouse-Strong responded to both Dr. Storey and Mr. Nestor’s expert reports. He differed mostly in his interpretation of the historical record regarding whether there was 1) evidence of dissatisfaction or non-acceptance of the Chacachas and Kakisiwew reserves in 1876 and 2) evidence of consultation with the Chacachas and Kakisiwew Bands during re-location, co-location, and amalgamation.
[61] I found Dr. Whitehouse-Strong to be a credible expert witness, although like Dr. Storey I found some of his theories to be speculative. I approached each of their disagreements on an issue by issue basis, and have favoured each of their opinions in different parts of this judgment.
(5) Dr. Alexander von Gernet
[62] Dr. von Gernet was called as an expert by Canada and was qualified as an expert in the area of anthropology and ethnohistory, specializing in the use of archaeological data, written documentation and oral evidence to reconstruct the past cultures of Indigenous Peoples, as well as the history of contact between Indigenous Peoples and European newcomers throughout Canada and parts of the United States. He has a PhD in the ethnohistory and archaeology of Indigenous Peoples in North America with a focus on the use of tobacco. He has taught courses on Indigenous history and culture at the University of Toronto. He has previously been qualified as an expert witness on a methodology for approaching oral history evidence in Court. He has primarily written expert reports for the federal or provincial Crowns.
[63] Dr. von Gernet described his skeptical case by case approach to oral history evidence, which focussed on assessing the “historicity” of an oral history, or the ability of an oral history to reflect the actual past. He noted some of the risks of oral history evidence: they may reflect a current reflection of the past rather than the past itself, they may arise out of communities filling in gaps in their understanding of history, and some may not be independent sources of information because they may draw from external sources, such as the historical written record. Dr. von Gernet suggested that the archival record provides a baseline with which to assess the historicity of oral evidence. Dr. von Gernet also offered his own limited interpretation of the historical written record. Dr. von Gernet concluded that the historical record indicated that the Historic Bands were likely consulted regarding the re-location of their reserves and amalgamation, contrary to the oral history evidence.
[64] I found Dr. von Gernet’s evidence generally unhelpful. Dr. von Gernet did little to describe what went into a skeptical case by case approach, which is already the Court’s approach to oral history evidence (see Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 87, 153 DLR (4th) 193 [Delgamuukw]). Dr. von Gernet’s concerns about the potential for oral histories to reflect present views, rather than the past, were merely helpful reminders. However, I am concerned about Dr. von Gernet’s idea that the archival record provides a baseline from which to assess oral history. The idea of an archival record providing a historical “baseline” is problematic because the Court is to place oral history and documentary evidence on equal footing (Delgamuukw at para 87). If the Court accepted the premise that one type of evidence can provide a baseline for another, it would assume without proof in the particular instance, that the baseline evidence is inherently better or more reliable. His near insistence on corroborating documentary evidence is not workable or consistent with the law.
[65] Such a premise, particularly in aboriginal litigation, would tend to undermine the history of a people who relied on oral rather than documentary communications. The task of the Court is to take the multiple sources of evidence and reach conclusions from the whole of the evidence.
[66] In addition, Dr. von Gernet’s review of the historical evidence was based on a narrow selection of documents that could not capture the complicated history and contradictions within the full documentary record, which was more fully addressed by both Dr. Storey and Dr. Whitehouse-Strong.
IV. Approach to Oral History Evidence
[67] Prior to summarizing my factual findings based on the documentary, expert, and oral history evidence provided at trial, I will explain my approach to oral history evidence, based partially on the comments made by Drs. Miller and von Gernet, as well as case law.
[68] Justice Zinn in Jim Shot Both Sides v Canada, 2019 FC 789 at para 94 [Shot Both Sides] recently summarized the difficulties a First Nation faces in presenting oral history evidence:
The challenge a Band has in presenting oral history evidence in matters such as that before the Court is obvious. Those with memory of the Band’s history are not first-hand observers; often their stories are third or fourth-hand recitations of events that occurred more than a century earlier. The challenge for the Court is how to assess and assign weight to such evidence. In R v Van Der Peet, [1996] 2 SCR 507, Chief Justice Lamar [sic] at paragraph 68 recognized these difficulties and instructed courts that these difficulties cannot prevent the acceptance of and reliance on oral history evidence:
In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of a practice, custom or tradition integral to a distinctive aboriginal culture, a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.
[69] Oral history evidence is to be accommodated and placed on an equal footing with historical documentary evidence, which means that it can be given independent weight even if not corroborated by other historical or archaeological sources: Delgamuukw at paras 87, 98. The Court therefore cannot accept Dr. von Gernet’s opinion that documentary historical evidence can provide a baseline from which to assess the ability of oral history to describe the past, as a gen