Buffalo v. Canada

Buffalo v. Canada
Court (s) Database
Federal Court Decisions
Date
2005-11-30
Neutral citation
2005 FC 1622
File numbers
T-2022-89
Decision Content
Date: 20051130
Docket: T-2022-89
Citation: 2005 FC 1622
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf
of all the other members of the Samson Indian Nation and Band,
and THE SAMSON INDIAN BAND AND NATION
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER
OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
AND THE MINISTER OF FINANCE
Defendants
and
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH’S BAND OF INDIANS AND THE RESIDENTS THEREOF ON
AND OF STONY PLAIN RESERVE NO. 135
Intervenors
and
EMILY STOYKA and SARA SCHUG
Intervenors
REASONS FOR JUDGMENT
TEITELBAUM, J.
I. Introduction
A. Overview
[1] On its face, this case appears to be about money – royalties that were generated by the commercial exploitation of the Bonnie Glen D3A oil and gas field underlying the Pigeon Lake Reserve and the interest that was, in turn, paid on these royalties. If only things were that simple. This case is also about a relationship that is often described as sui generis, that is, unique, unlike any other. The parties to this sui generis relationship are the Plains Cree of Treaty 6 – more particularly, the Samson Cree Nation – and the Crown, or the Canadian Government. In some instances, I may speak of the Plains Cree in a general and wider sense; at other times, I will focus on the Samson Cree Nation. I wish to stress the very important point that I am not attempting to describe or define the Crown’s relationship with all First Nations or aboriginal people; rather, I am concerned with their relationship vis-à-vis Samson Cree Nation.
[2] The origins of this relationship are steeped in history. Treaty 6 was concluded in August and September 1876. The Dominion of Canada came into being on July 1, 1867, with Confederation. While the country was young at treaty time, European presence on the North American continent, and in the Canadian Northwest in particular, dated back centuries. Of course, it is too simplistic to speak of one history. There are many, and they are rich and varied. They include the origins, cultures, and lives of the tapestry of First Nations across the continent; the fur trade and economic history; the political histories of French, British, and American colonies; and of course, the development of Canada.
[3] While at times it felt like the Court had been sent back to school, the historical information and interpretations presented were always interesting and, on many occasions, quite fascinating. It would have been all too easy to wander down the many well-trod avenues, lesser byways, and faint trails of our history.
[4] A vast quantity of evidence and documents was produced at trial. For example, exhibit SEC-427 comprises 48 binders containing 1234 documents. Exhibit SC-428 marks a series of 90 binders containing a further 3061 documents. Yet another 40 binders, holding 1363 documents, were marked as S-985. Then there are several other smaller series of binders consisting of documents tendered by one party but objected to by the other or agreed to by all parties. Clearly, much ink has been spilled and reams of paper devoured over the course of this action.
[5] I am sure that all counsel believed every bit of this material is important and merits mention. Counsel and their experts obviously went to a great deal of trouble and effort to assemble this information for the Court’s benefit. Much of it has been helpful. I am greatly appreciative and commend all counsel for their efforts in this regard. I do, however, offer this caveat: while I have sought to consider all relevant material, it is not possible to reproduce, or describe, in these Reasons all of the evidence adduced, nor is it necessary. I shall endeavour to present intelligently and succinctly what took 370 days over the course of nearly five years to present at trial. I have attempted to present, for the most part, an historical chronology, as opposed to drifting into any analytical abstractionism, which is best left to academics, not judges.
[6] On February 24, 1994, Jerome A.C.J. ordered that Federal Court Actions T‑2022-89 (the “Samson action”), T-1254-92 (the “Ermineskin action”), and T-1386-90 (the “Enoch action”) be heard together. The Enoch action, however, was subsequently severed from the Samson and Ermineskin actions, by Order dated June 20, 1996. On October 1, 1999, MacKay J. ordered that the Samson and Ermineskin actions be heard together, commencing on May 1, 2000 in Calgary.
[7] On June 2, 2000, this Court set out the manner in which evidence was to be treated in these actions. The Federal Court of Appeal amended paragraphs 3 and 4 of that Order, on September 11, 2000, for purposes of clarity. The effect of the Order is that the actions were not conducted on the basis of common evidence. A system was established whereby a plaintiff could elect to adopt a witness’s evidence, before that witness testified, so that the entirety of the witness’s evidence was evidence in that plaintiff’s case. Thus, each plaintiff retained control and discretion over the manner in which it chose to litigate its case, subject, of course, to the Court’s ultimate control over the proceedings. While the two actions were heard together, each maintained its integrity as a separate, discrete action.
[8] The parties agreed to proceed with the trial in phases: General and Historical, Money Management, Oil and Gas, Other Oil and Gas Issue (plaintiffs call it the Tax Issue; the Crown refers to it as the Regulated Price Regime Issue), and Programs and Services (including Per Capita Distribution Issue, which I note seems to have morphed into its own phase at some point) (S-221). Soon after the trial began, it became readily apparent that all of these phases could not be heard within the 120 trial days originally forecasted by the parties. Indeed, that forecast was completely divorced from reality and may better be described as an example of wishful thinking or perhaps boundless optimism. Accordingly, and on consent of the parties, I ordered, on September 17, 2002, that I would continue as trial judge for the first two phases only and that the other phases be severed off to be heard by another judge at some point in the future.
B. Objections Taken Under Reserve
[9] During the course of most, if not all, trials, one can expect to hear objections by counsel. Given the length and complexity of this particular trial, there were numerous objections. Some were decided at once, while others were taken under reserve, with the evidence objected to being allowed in for the sake of a complete record and any appellate action. I propose now to set out the disposition of those objections, where relevant and necessary for the purposes of these Reasons. Wherever possible, I have tried to pinpoint the objections by reference to transcript volumes and page numbers. What follows is the disposition of the outstanding objections:
(i) Transcript volume 10, pp. 1740-1762; transcript volume 11, pp. 1783-1786; transcript volume 12, pp. 1835-1836; transcript volume 15, pp. 2081-2086; transcript volume 20, pp. 2479-2483; and transcript volume 21, p. 2598: these objections relate to portions of Treaty 6 oral histories told by Elders Pete Waskahat, Margaret Quinney, and Jacob Bill. The Crown’s objection is denied. It is important for the Court to hear all available evidence as to the making of Treaty 6 and its meaning.
(ii) Transcript volume 20, pp. 2526-2530 and transcript volume 21, pp. 2635-2642: the Crown’s objection is allowed. The elder’s oral history deals with the Northwest Rebellion of 1885 and is therefore irrelevant to the issues in this action.
(iii) Transcript volume 26, pp. 3550-3553: the Crown’s objection is allowed. The disputed references are beyond the scope of the expert’s qualifications.
(iv) Transcript volumes 32-35: the Crown’s objection regarding the off-reserve surrender issue is denied. This objection arises again many other times over the course of the first phase and thus, even if the specific transcript references are not made here, this is a blanket ruling and I have allowed in all such evidence pertaining to the off-reserve surrender issue.
(v) Transcript volume 44, pp. 6369-6407: the Crown’s objection is allowed insofar as Dr. Beal refers to the starvation issue, which is not relevant to the issues in this action. Objections regarding land surrender and reserve surveys are denied.
(vi) Transcript volume 65, pp. 9544-9552 and 9570-9571; and transcript volume 69, pp. 10049-10054: the Crown’s objections to Ms. Louis’s testimony are allowed. No proper foundation was laid as to the reliability of this evidence as oral history evidence. Her answers regarding how she came to know this information were simply too vague to make it reliable.
(vii) Transcript volume 69, pp. 10064-10073; and transcript volume 80, pp. 11760-11761: the Crown’s objections to S-63 and S-63A are allowed. The witness testified in the capacity of a lay witness; consequently, his Masters thesis, which contains opinions and deals with matters not relevant to this action, is not admissible.
(viii) Transcript volume 90, pp. 12615 and 12684-12687: the Crown’s objections are denied regarding the off-reserve surrender issue and the Penner Report (S-94). With regard to the disputed portions of Minister Crombie’s memo (S-95), the objection is denied and the entire memo is allowed in.
(ix) Transcript volume 93, pp. 13071-13088: the Crown’s objection is allowed.
(x) Transcript volume 125, pp. 17422-17423: the Crown’s objection is allowed. This is opinion evidence and thus not the province of a lay witness. Transcript volume 125, pp. 17436-17440, 17512-17513, 17514, and 17516-17519: the Crown’s objections are allowed. Transcript volume 125, pp. 17485-17487: the Crown’s objection is denied; however, the evidence has very little weight.
(xi) Transcript volume 141, pp. 19196-19197: the Crown’s objection is denied. Transcript volume 141, pp. 19201-19203: the Crown’s objection is allowed. Transcript volume 141, pp. 19206-19207: the Crown’s objection is allowed.
(xii) Transcript volume 197, pp. 28008-28023: the Crown’s objection to SE-453 is denied.
(xiii) Transcript volume 201, pp. 28407-28409: the plaintiffs’ objection is denied.
(xiv) Transcript volume 202, pp. 28565-28576: the plaintiffs’ objection is denied. The question relates to facts and is not seeking to elicit a legal opinion.
(xv) Transcript volume 216, pp. 30946-30953: Ermineskin’s objection is allowed. C-490 is an exhibit in the Samson action only.
(xvi) Transcript volume 220, pp. 31542-31561: the Crown’s objection is denied. The questions relate to facts within the witness’s direct knowledge and experience.
(xvii) Transcript volumes 223-227: the plaintiffs’ objections to the admissibility of the without prejudice privilege documents are denied. Such documents are allowed in solely to contradict facts or assertions made by the plaintiffs and not to show any weakness in their case. Evidence on band spending and investments is also not admissible
(xviii) Transcript volume 334, pp. 158-162: the plaintiffs’ objection is denied and the question permitted.
(xix) Transcript volume 335, pp. 95-104: the plaintiffs’ objection is denied and questions on the target ratio are allowed.
(xx) Transcript volume 339, pp. 165-168: the Crown’s objection is allowed. Oil and gas valuations are not relevant for the first two phases of this action. Transcript volume 339, pp. 178-182: the Crown’s objection is allowed. The cut-off issue and the Crown’s subsequent settlement of that issue are of no relevance to the ongoing action.
(xxi) Transcript volume 344, pp. 47-63: The Crown’s objections to S-1017 and S-1018 are allowed. These reports are totally irrelevant to the first two phases.
(xxii) The plaintiffs object to the entirety of the reports (C-286 and C-287) and viva voce evidence of Professor Flanagan. The objections are denied.
(xxiii) The plaintiffs object to the reports (C-341 and C-342) and viva voce evidence of Dr. von Gernet. The objections are denied.
(xxiv) The plaintiffs object to the reports (C-910, C-911, and C-912) and evidence of Mr. Ambachtsheer. Their objections raise serious issues. The Court will not consider those passages of Mr. Ambachtsheer’s reports that were shown to arise largely, if not entirely, from the pen of Crown counsel. The Court will permit as admissible Mr. Ambachtsheer’s viva voce evidence; the weight it will be assigned remains to be determined.
(xxv) The plaintiffs object to the report (C-897) and viva voce evidence of Mr. Bertram. The plaintiffs’ objections are denied.
(xxvi) The plaintiffs object to the reports (C-998 and C-999) and viva voce evidence of Mr. Scalf. The objections are denied.
(xxvii) The plaintiffs object to the report (C-1008) and viva voce evidence of Mr. John Williams. The objections are denied.
[10] If I have failed to include any other objections taken under reserve, it is because it was not necessary to decide them for the resolution of the issues before the Court.
C. Profile of the Plaintiffs
[11] In this section, I shall sketch out a brief profile of the plaintiffs, the Samson Cree Nation, along with some background to the case. I emphasize that this is a sketch, not a portrait. I shall rely on the plaintiffs’ Request to Admit (S-343) and the Crown’s Response to Request to Admit (S-344), two pamphlets produced by the Samson Cree Nation (C-26 and S-52), as well as some of the testimony of Ms. Barbara Louis, who, at the time of her testimony in May 2001 was serving her third term as an elected councillor of the Samson Cree Nation.
[12] The Samson Cree Nation is a part of the larger entity known as the Plains Cree and described in the text of Treaty 6 as the Plains Cree Tribe of Indians (S-343 and S-344, para. 8).
[13] Samson Indian Reserve No. 137 was set aside by the Crown in 1889, pursuant to Treaty 6 and confirmed by Order-in-Council No. P.C. 1151, dated May 17, 1889. The reserve is located near the hamlet of Hobbema, Alberta (S-343 and S-344, para. 27).
[14] Pigeon Lake Indian Reserve No. 138A was set aside by the Crown in 1896, pursuant to Treaty 6 and confirmed by Order-in-Council No. P.C. 2471, dated July 8, 1896. The Pigeon Lake Reserve was set apart for the use and benefit of the Indians of the Hobbema Agency, which include Samson (S-343 and S-344, para. 28).
[15] Samson shares the Pigeon Lake Reserve with three other Cree First Nations: Ermineskin, Montana, and Louis Bull, whose home reserves also neighbour Samson’s. Originally, the Pigeon Lake Reserve was established as a fishing station from which the four bands could provide for themselves. The reserve continues to provide for them, not in the form of fish, but rather through a bounty of oil and gas resources (C-26, p. 6).
[16] On May 30, 1946, a Surrender of Minerals was executed on behalf of Samson. The Surrender reads as follows:
KNOW ALL MEN BY THESE PRESENTS THAT WE, the undersigned Chief and Principal men of the Samson’s Band of Indians, resident on our Reserve 137 and 138A in the Province of Alberta and Dominion of Canada, for and acting on behalf of the whole people of our said band in Council assembled, Do hereby release, remise, surrender, quit claim and yield up unto our Sovereign Lord the King, His Heirs and Successors forever, ALL the land deemed to contain salt, petroleum, natural gas, coal, gold, silver, copper, iron and other minerals, underlying the surface of the area within the boundaries of the Samson Reserve No. 137 ... and such timber contained within the boundaries of any mineral claim staked or leased in accordance with the Regulations, as may be necessary for the development and proper working of such mineral deposits, subject to the payment of stumpage dues thereon; providing however, that a recorded holder of a mineral claim may, free from dues, lop, top or cut down trees growing on the mineral claim, removal of which is necessary for the proper working of the claim.
TO HAVE AND TO HOLD the same unto his said Majesty the King, his Heirs and Successors, forever, in trust to grant in respect of such land the right to prospect for, mine, recover and take away any or all minerals contained therein, to such person or persons, and upon such terms and conditions as the Government of the Dominion of Canada may deem most conducive to our welfare and that of our people; and upon further conditions that money received from the permit proceeds of 10 ¢ per acre to be paid immediately on a per capita distribution.
AND WE, the said Chief and Principal men of the said Samson’s Band of Indians do on behalf of our people and for ourselves, hereby ratify and confirm, and promise to ratify and confirm, whatever the said Government may do, or cause to be lawfully done in connection with the management and operation of the said lands and the disposal and sale of the minerals contained therein.
(S-343 and S-344, para. 43; SEC-427, binder 2, tab 25, document 75)
[17] By Order-in-Council P.C. 2662-1946, dated June 28, 1946, the Crown accepted the Surrender so that the mineral interests and accompanying mining rights could be leased for the benefit of Samson, Ermineskin, Montana, and Louis Bull (S-343 and S-344, para. 46; see also SEC-427, binder 3, tab 5, document 80).
[18] In 1952, commercial quantities of oil and gas reserves were discovered underlying the surface of the Pigeon Lake Reserve – known as the Bonnie Glen D3A pool – and production began in that same year (S-343 and S-344, paras. 51 and 54; S-52, p. 3).
[19] The Crown prepared and executed leases with oil and gas companies with regard to exploration and extraction rights. Since that time, significant royalty moneys have been paid to the Crown on behalf of Samson (S-343 and S-344, paras. 47-48 and 57).
[20] The Samson Cree Nation has an elected council, consisting of a Chief and 12 councillors. Since 1993, elections have been held according to band custom, which mandates a majority of eligible voters (transcript volume 65, pp. 9511-9512). The government administration also maintains the principles of traditional Indian government, involving elders in discussions and consultations (C-26, p. 7). Along with the elected council, the Samson Cree Nation also has myriad divisions, departments, and various commercial enterprises, including Peace Hills Trust Company, the first native owned trust company in Canada.
II. Phase One: General & Historical
A. Issues
[21] During one of the many pre-trial conferences, I asked the parties to submit to the Court briefs with their views of the issues. Only one party did so, and the other promptly disputed it. The parties could not agree on the issues and the matter was dropped until the parties submitted their closing argument briefs, which contained their views of the issues. Ultimately, of course, it is the Court’s responsibility to determine the issues and I have done so, based on the pleadings and materials at hand. I do note, however, that in Book XII of its closing argument briefs, titled The Moneys Returns, Claims, Admissions and Issues, one can find Samson’s articulation of the issues. For the purposes of the first phase, I reproduce parts A and B:
A. Aboriginal Rights
134. Whether Samson Cree Nation has an existing aboriginal (or inherent) right of self-determination?
135. Whether an existing aboriginal or inherent right of self-determination entitles Samson Cree Nation to the control of the trust moneys so that Samson Cree Nation can assume the Crown trust in the place of the Crown in regard to the trust moneys of Samson Cree Nation?
136. Whether Samson Cree Nation existed as a distinct component of the Plains Cree Nation prior to Treaty 6?
137. Whether part of the Plains Cree traditional territory encompassed the Treaty No. 6 area and whether the Crown is estopped by Treaty No. 6 from contesting this?
B. Treaty Rights
138. Whether Treaty No. 6 is a treaty of alliance and partnership?
139. Whether the oral history of the Plains Cree about the negotiations surrounding Treaty No. 6 will be given weight equal to that of the accounts of Lieutenant Governor Morris and Secretary Jackes?
140. Whether the intention of the parties to Treaty No. 6 was to preserve and protect reserve lands and interests therein for the exclusive benefit of the Indian parties to the Treaty for whom the reserves were set aside?
141. Whether trust obligations of the Crown arose from a historical trust?
142. Whether Treaty No. 6 is the source of trust obligations of the Crown?
143. Whether the Crown breached Treaty No. 6 from shortly after the Treaty?
144. Whether the conduct of the Crown respecting Treaty No. 6 has an impact on the treaty obligations of the Crown?
145. What is the nature and extent of the treaty obligations of the Crown in respect to the royalty moneys?
146. Whether ss. 61 to 68 of the Indian Act constitute a breach of Samson’s treaty rights?
147. Whether the Crown can justify the infringement of the treaty rights of Samson Plaintiffs in respect to the royalty moneys of Samson Plaintiffs?
(Samson Written Closing Argument, Book XII, tab 4, pp. 33-34)
[22] The starting point is Treaty 6. Samson contends that Treaty 6 governs the relationship between the parties and is the primary law. Samson also asserts that Treaty 6 is the source, or one of the sources, of the trust and fiduciary relationship between the parties.
[23] I am mindful of the fact that there is a phase to be heard later in the trial – if or when this trial continues – tentatively called Programs and Services. I will not attempt to define the exact parameters of that phase, but I do note that it will deal with, at least in part, treaty rights and entitlements. However, it is inescapable that Treaty 6 – the historical context and surrounding circumstances of its creation, as well as its content – has been put very much at issue in this first phase. Accordingly, I will make the necessary relevant findings pertaining to Treaty 6.
[24] Samson also seeks judicial recognition of its right to self-determination. Samson contends that this is an inherent right, aboriginal right, and treaty right. The right of self-determination, or self-government, claimed by Samson is in regard to the control of its capital and revenue monies, generated by the oil and gas resources of the Pigeon Lake Reserve, and presently under the control and management of the Crown.
[25] Samson asserts that there is a trust relationship between Samson and the Crown. Samson alleges that this includes an historical trust, constitutional trust, express trust, common law trust, a trust arising from the 1946 Surrender, and a statutory trust. Samson also asserts a sui generis trust or fiduciary relationship.
[26] Samson contends that that there have been serious breaches by the Crown of its trust, treaty, fiduciary, and constitutional obligations relating to the control and management by the Crown of Samson’s monies.
[27] Samson also contests the constitutionality, or constitutional inapplicability, of sections 61 to 68 and section 17 of the Indian Act, R.S.C. 1985, c. I-5. In the alternative, Samson submits, these sections are subject to their treaty and aboriginal rights, as well as the trust, fiduciary, or constitutional obligations owed by the Crown.
[28] I note that many of these latter issues stray into Phase Two territory. The trial was divided into separate phases, but there has been unavoidable overlap. These are not, as it has been said on many occasions, watertight compartments.
[29] Finally, there remains the issue of aboriginal title. A great deal of evidence was led on what became known as the off-reserve surrender issue. The Crown vigorously objected to this evidence from the start. Given the complexity of this trial and the inability of the parties to agree on the issues, I allowed in evidence on this matter under reserve of the Crown’s objection. In its closing argument, Samson contends that it has proved aboriginal title, in common with other aboriginal nations, to significant parts of the area contemplated by Treaty 6, but that it is not necessary for the Court to pronounce upon this issue. If it is not necessary, then why was so much time spent and evidence adduced on it? The Court will indeed pronounce upon this issue in these Reasons.
B. Legal Framework
[30] Counsel for Samson submitted ten volumes, containing 96 tabs, of authorities back in May 2000, at the outset of the opening statements. During the course of the trial – and indeed after it closed in January 2005 – counsel for all parties have continued to supply the Court with jurisprudence they believe is helpful. I thank counsel for their Herculean efforts and excellent arguments. However, I think it is unnecessary to refer to many of the cases insofar as this particular section is concerned because the Supreme Court of Canada has, in recent jurisprudence, lessened the work of trial judges somewhat by summarizing and listing the relevant legal principles and tests for treaty interpretation, oral history evidence, and aboriginal rights. Thus, I need not review the long development of the case law, but instead I defer to the Supreme Court’s wisdom on the current state of the law in these areas.
I. Treaty Interpretation
[31] Treaty 6 is part of a series of treaties the government made with various aboriginal peoples often referred to as the numbered treaties, or western numbered treaties. Samson plaintiffs led a great deal of evidence on the making of Treaty 6, as well as historical events and circumstances preceding the treaty. A contentious issue in the trial of this action was what the Cree understood they were giving up when they took treaty. Samson tendered a vast amount of evidence on what is referred to as the land surrender clause, or the off-reserve surrender issue. The Crown disputed the relevance of this evidence as there is no claim for any off-reserve aboriginal rights or aboriginal title. In their closing argument, Samson appears to ask the Court to refrain from making any findings on this point. I will be discussing this issue in greater detail further in these Reasons. I mention it now only as a prelude to laying out the general principles of treaty interpretation, as set out by the Supreme Court of Canada. The meaning and interpretation of Treaty 6 have been put in issue in this trial and I intend to make certain, specific findings, based on the evidence tendered in Court.
[32] In R. v. Marshall, [1999] 3 S.C.R. 456, McLachlin J., as she then was, set out the principles governing treaty interpretation. While her opinion was in dissent, the overview she provided was based on a survey of past jurisprudence. I note also that the list is not exhaustive. The following are the principles as set out in paragraph 78 of R. v. Marshall:
1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation: R. v. Sundown, [1999] 1 S.C.R. 393, at para. 24; R. v. Badger, [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 404. See also: J. (Sákéj) Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman, “Defining Parameters: Aboriginal Rights. Treaty Rights, and the Sparrow Justificatory Test” (1997), 36 Alta. L. Rev. 149.
1. Les traités conclus avec les Autochtones constituent un type d’accord unique, qui demandent l’application de principes d’interprétation spéciaux: R. c. Sundown, [1999] 1 R.C.S. 393, au par. 24; R. c. Badger, [1996] 1 R.C.S. 771, au par. 78; R c. Sioui, [1990] 1 R.C.S. 1025, à la p. 1043; Simon c. La Reine, [1985] 2 R.C.S. 387, à la p. 404. Voir également: J. (Sákéj) Youngblood Henderson, «Interpreting Sui Generis Treaties» (1997), 36 Alta. L. Rev. 46; L. I. Rotman, « Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test» (1997), 36 Alta.L.. Rev. 149.
2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories: Simon, supra, at p. 402; Sioui, supra, at p. 1035; Badger, supra, at para. 52.
2. Les traités doivent recevoir une interprétation libérale, et toute ambiguité doit profiter aux signataires autochtones: Simon, précité, à la p. 402; Sioui, précité, à la p. 1035; Badger, précité, au par. 52.
3. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69.
3. L’interprétation des traités a pour objet de choisir, parmi les interprétations possibles de l’intention commune, celle qui concilie le mieux les intérêts des deux parties à l’époque de la signature: Sioui, précité, aux pp. 1068 et 1069.
4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, supra, at para. 41.
4. Dans la recherche de l’intention commune des parties, l’intégrité et l’honneur de la Couronne sont présumées: Badger, précité, au par. 41.
5. In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901, at p. 907.
5. Dans l’appréciation de la compréhension et de l’intention respectives des signataires, le tribunal doit être attentif aux différences particulières d’ordre culturel et linguistique qui existaient entre les parties: Badger, précité, aux par. 52 à 54; R. c. Horseman, [1990]1 R.C.S. 901, à la p. 907.
6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, at paras. 53 et seq.; Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36.
6. IL faut donner au texte du traité le sens que lui auraient naturellement donné les parties à l’époque: Badger, précité, aux par. 53 et suiv.; Nowegijick c. La Reine, [1983] 1 R.C.S. 29, à la p. 36.
7. A technical or contractual interpretation of treaty wording should be avoided: Badger, supra; Horseman, supra; Nowegijick, supra.
7. Il faut éviter de donner aux traités une interprétation formaliste ou inspirée du droit contractuel: Badger, précité, Horseman, précité, et Nowegijick, précité.
8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic: Badger, supra, at para. 76; Sioui, supra, at p. 1069; Horseman, supra, at p. 908
8. Tout en donnant une interprétation généreuse du texte du traité, les tribunaux ne peuvent en modifier les conditions en allant au-delà de ce qui est réaliste ou de ce que « le language utilisé [...] permet»: Badger, précité, au par. 76; Sioui, précité, à la p. 1069; Horseman, précité, à la p. 908.
9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402.
9. Les droits issus de traités des peuples autochtones ne doivent pas être interprétés de façon statique ou rigide. Ils ne sont pas figés à la date de la signature. Les tribunaux doivent les interpréter de manière à permettre leur exercice dans le monde moderne. Il faut pour cela déterminer quelles sont les pratiques modernes qui sont raisonnablement accessoires à l’exercice du droit fondamental issu de traité dans son contexte moderne: Sundown, précité, au par. 32; Simon, précité, à la p. 402.
[33] Chief Justice McLachlin discussed the matter of extrinsic evidence of the historical and cultural context of a particular treaty and concluded that courts have allowed such evidence, even absent any ambiguity (see paragraph 81). The Chief Justice set out a two step approach to treaty interpretation:
The fact that both the words of the treaty and its historic and cultural context must be considered suggests that it may be useful to approach the interpretation of a treaty in two steps. First, the words of the treaty clause at issue should be examined to determine their facial meaning, in so far as this can be ascertained, noting any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possible interpretations of the clause. As noted in Badger, supra, at para. 76, “the scope of treaty rights will be determined by their wording”. The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical context inquiry, taking into account the need to avoid an unduly restrictive interpretation and the need to give effect to the principles of interpretation.
Le fait qu’il faille examiner tant le texte du traité que son contexte historique et culturel tend à indiquer qu’il peut être utile d’interpréter un traité en deux étapes. Dans un premier temps, il convient d’examiner le texte de la clause litigieuse pour en déterminer le sens apparent, dans la mesure où il peut être dégagé, en soulignant toute ambiguité et tout malentendu manifestes pouvant résulter de différences linguistiques et culturelles. Cet examen conduira à une ou à plusieurs interprétations possibles de la clause. Comme il a été souligné dans Badger, précité, au par. 76, «la portée des droits issus de traités est fonction de leur libellé». À cette étape, l’objectif est d’élaborer, pour l’analyse du contexte historique, un cadre préliminaire – mais pas nécessairement définitif – qui tienne compte d’un double impératif, celui d’éviter une interprétation trop restrictive et celui de donner effet aux principes d’interprétation.
At the second step, the meaning or different meanings which have arisen from the wording of the treaty right must be considered against the treaty’s historical and cultural backdrop. A consideration of the historical background may suggest latent ambiguities or alternative interpretations not detected at first reading. Faced with a possible range of interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties’ common intention. This determination requires choosing “from among the various possible interpretations of the common intention the one which best reconciles” the parties’ interests: Sioui, supra, at p. 1069. Finally, if the court identifies a particular right which was intended to pass from generation to generation, the historical context may assist the court in determining the modern counterpart of that right: Simon, supra, at pp. 402-3; Sundown, supra, at paras. 30 and 33.
Dans un deuxième temps, le ou les sens dégagés du texte du droit issu de traité doivent être examinés sur la toile de fond historique et culturelle du traité. Il est possible que l’examen de l’arrière-plan historique fasse ressortir des ambiuités latentes ou d’autres interprétations que la première lecture n’a pas permis de déceler. Confronté à une éventuelle gamme d’interprétations, le tribunal doit s’appuyer sur le contexte historique pour déterminer laquelle traduit le mieux l’intention commune des parties. Pour faire cette détermination, le tribunal doit choisir, «parmi les interprétations de l’intention commune qui s’offrent à [lui], celle qui concilie le mieux» les intérêts des parties: Sioui, précité, à la p. 1069. Enfin, si le tribunal conclut à l’existence d’un droit particulier qui était censé se transmettre de génération en géneration, le contexte historique peut l’aider à déterminer l’équivalent moderne de ce droit: Simon, précité, aux pp. 402 et 403; Sundown, précité, aux par. 30 et 33.
[34] The third principle enumerated in Marshall is that of determining the common intention of the parties at treaty time. I quote also from Justice Binnie’s opinion in Marshall, at paragraph 14, on common intention:
“Generous” rules of interpretation should not be confused with a vague sense of after-the-fact largesse. The special rules are dictated by the special difficulties of ascertaining what in fact was agreed to. The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty (Sioui, supra, at p. 1049), the completeness of any written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement: Simon v. The Queen, [1985] 2 S.C.R. 387, and R. v. Sundown, [1999] 1 S.C.R. 393), and the interpretation of treaty terms once found to exist (Badger). The bottom line is the Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the Mi’kmaq interests and those of the British Crown (Sioui, per Lamer J., at p. 1069 (emphasis added)).
Il ne faut pas confondre les règles «généreuses» d’interprétation avec un vague sentiment de largesse a posteriori. L’application de règles spéciales est dictée par les difficultés particulières que pose la détermination de ce qui a été convenu dans les faits. Les parties indiennes n’ont à toutes fins pratiques pas eu la possiblilité de créer leurs propres compte-rendus écrits des négociations. Certaines présomptions sont donc appliquées relativement à l’approche suivie par la Couronne dans la conclusion des traités (conduite honorable), présomptions dont notre Cour tient compte dans son approche en matière d’interprétation des traités (souplesse) pour statuer sur l’existence d’un traité (Sioui, précité, à la p. 1049), le caractière exhaustif de tout écrit (par exemple l’utilisation du contexte et des conditions implicites pour donner un sens honorable à ce qui a été convenu par traité: Simon c. La Reine, [1985] 2 R.C.S. 387, et R. c. Sundown,
[1999] 1 R.C.S. 393), et l’interprétation des conditions du traité, une fois qu’il a été conclu à leur existence (Badger). En bout de ligne, la Cour a l’obligation «de choisir, parmi les interprétations de l’intention commune [au moment de la conclusion du traité] qui s’offrent à [elle], celle qui concilie le mieux» les intérêts des Mi’kmaq et ceux de la Couronne britannique (Sioui, le juge Lamer, à la p. 1069 (je souligne)).
[35] A generous interpretation must be realistic and reflect the intentions of both parties, not just the aboriginal side: see Lamer J., as he then was, in R. v. Sioui, [1990] 1 S.C.R. 1025 at 1069.
[36] Treaty interpretation also involves the principle of the honour of the Crown. This principle derives from the Crown’s assertion of sovereignty in the face of prior occupation by aboriginal people: see Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] S.C.J. No. 69, 2004 S.C.C. 74 at paragraph 24. The honour of the Crown is a “core precept” that finds its application in concrete practices: see Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.J. No. 70, 2004 S.C.C. 73 at paragraph 16. Moreover, the honour of the Crown is always at stake in its dealings with aboriginal people: see R. v. Badger, [1996] 1 S.C.R. 771 at paragraph 41.
[37] Chief Justice McLachlin further elaborated on the honour of the Crown in Mitchell [2001] 1 S.C.R. 911, at paragraphs 17 and 19:
17. The second factor, t