Robertson v. The Queen

Robertson v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2010-10-29
Neutral citation
2010 TCC 552
File numbers
2004-3561(IT)G
Judges and Taxing Officers
Joe E. Hershfield
Subjects
Income Tax Act
Decision Content
Dockets: 2004-3561(IT)G
2004-3567(IT)G
2004-4573(IT)G
BETWEEN:
RONALD ROBERTSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
AND BETWEEN:
ROGER SAUNDERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeals heard on common evidence on
March 3, 4, 5, 8 and 9, 2010 and May 10, 2010 at Winnipeg, Manitoba
Before: The Honourable Justice J.E. Hershfield
Appearances:
Counsel for the Appellants:
J. R. Norman Boudreau
Counsel for the Respondent:
Gérald L. Chartier
Melissa Danish
____________________________________________________________________
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 1999, 2000, 2001, 2002 and 2003 taxation years, as they pertain to each of the Appellants, are allowed, with costs, and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment, in accordance with and for the reasons set out in the attached Reasons for Judgment.
Signed at Winnipeg, Manitoba this 29th day of October 2010.
"J.E. Hershfield"
Hershfield J.
Citation: 2010 TCC 552
Date: 20101029
Dockets: 2004-3561(IT)G
2004-3567(IT)G
2004-4573(IT)G
BETWEEN:
RONALD ROBERTSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
AND BETWEEN:
ROGER SAUNDERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Hershfield J.
Part 1: Introduction
[1] The Appellants, Ronald Robertson and Roger Saunders are Indians as defined in section 2 of the Indian Act and are members of the Norway House First Nation. The Norway House First Nation is a signatory to Treaty Number 5 signed in 1875.
[2] The Appellants derive income from fishing during the summer months and collect employment insurance during the winter months. The Minister of National Revenue (the “Minister”) has assessed such incomes as taxable as follows:
Taxpayers
1999
2000
2001
2002
2003
Robert Robertson
Income from a Business
EI Benefits
Roger Saunders
Income from a Business
EI Benefits
$24,995
$10,690
$25,990
$ 9,285
$13,282
$12,580
$17,970
$10,325
$11,811$9,615
$19,452 $ 9,912
[3] The Appellants appeal the subject assessments on the basis that:
1. The subject incomes (benefits) are exempt from taxation by virtue of section 81 of the Income Tax Act (the “Act”) and section 87 of the Indian Act and or the provisions of Treaty Number 5.
2. The Application of the Act is an infringement or interference with an existing aboriginal right contrary to subsection 35(1) of the Constitution Act 1982.
[4] A Partial Agreed Statement of Facts (the “Agreed Facts”) was submitted to the Court and is appended to these Reasons as Schedule 1. A summary of the counsels’ submissions is appended as Schedule 2.
[5] The factual circumstances pertaining to each of the Appellants is, for the most part, the same. Indeed the parties have, in general terms at least, acknowledged that the outcome of these Appeals will not depend on any factual differences that might exist between the Appellants. I do note, however, that one potential difference of significance is that the Appellant, Roger Saunders, during the years under appeal, 2002 and 2003, resided off-reserve. At the end of these Reasons, I will make a brief comment in respect of this difference as it impacts on these Appeals.
[6] The Appeals were heard on common evidence although only Mr. Robertson testified at the hearing. Mr. Roger Saunders could not appear for medical reasons. Both parties called two witnesses, including one expert each. A brief overview of their respective reports, testimony and qualifications is attached to these Reasons as Schedule 3.
[7] I will, however, make a few general observations concerning the expert evidence. To do so requires a very brief summary of how the Appeals were framed. That summary in turn requires an understanding of the structure of fishing operations at Norway House.
[8] The Appellants are members of the Norway House Fishermen’s Co-operative (the “Co-op”) which, pursuant to a contractual arrangement with the Freshwater Fish Marketing Corporation (“Freshwater”), handles the dealings between the Co-op members who fish and Freshwater that acquires the fish for distribution in its world wide market. It is admitted that the Co-op acts as the agent for Freshwater in the purchase of fish from the Appellants.
[9] Given this structure, admissions in the Agreed Facts and the testimony of Mr. Robertson, it can be said that the Appellants fished commercially, for commercial purposes. That is not to say, however, that they accept that their fishing activities were in the commercial mainstream. Further, even accepting that the Appellants were in business or self-employed and fishing commercially, for commercial purposes, does not suggest that the personal property at issue, the income from fishing, was other than personal property held qua Indian on the reserve.
[10] Given this framework, the expert evidence was directed primarily at providing opinions as to whether the fishing activities of the aboriginal people on the reserve at the time of entering the Treaty were “commercial”. The objective appears to relate to some extent to the constitutional issue which asks whether the Appellants have a protected right under the Constitution Act[1] to fish in the manner they fished. However, a determination of such right requires examination of the nature of the activity pre-contact and the sufficiency of its continuity to the present. As I will point out later in these Reasons, the expert reports have little value in resolving such issues.
[11] Further, a determination that a constitutional right to fish commercially exists would only beg the question of whether the taxation of the income from that protected activity would constitute an unjustified infringement of that right. This aspect of the Constitutional analysis overlaps, to some extent, with the analysis required under section 87 of the Indian Act. Indeed, evidence that the Appellants’ fishing practices form part of an ancestral custom will, in my analysis, be a important factor in the determining the application of the section 87 exemption. Its importance lies in identifying the income from fishing as property earned qua Indian and, as well, fuels the Appellants’ argument that the commerciality of the activity today, even if in the commercial mainstream, cannot be a disconnecting factor where the income earned is part of the customary way of life of the Norway House Cree First Nation. That is, the debate as to the extent of the activity’s attachment to life on the reserve, as a commercial activity now, compared to the extent its attachment to the economic life on the reserve at the time of and preceding entering into the Treaty, has become an important adjunct to the section 87 analysis in this case. It is in this context that the expert reports and testimony have value.
[12] This aspect of the analysis, has led me to conclude that the property in question, income from fishing, was as integral to life at Norway House at the time of the Treaty, as it is today, in the lives of the people on the reserve. As such, when considered in light of the other factors that connect the income to the reserve, that conclusion favours a finding that it is property earned qua Indian on the reserve. In coming to that conclusion, the expert evidence of the Appellants’ expert, Dr. Lytwyn, was particularly helpful. It supports a finding that, in fact, the aboriginal people of Norway House derived a livelihood and had an income source from fishing that was material to the Native community at Norway House at the time of the Treaty.
[13] Indeed, given the expert evidence, I have been faced with the challenge of dealing with the “commercial mainstream” test in a new light. As these Reasons will suggest, such evidence has persuaded me to find that the Appellants cannot be said to be engaged in an activity that should, in the context of the application of section 87, be swept into the commercial mainstream because a third party, Freshwater, has come to their reserve to acquire fish, and made a traditional livelihood and income source appear to be linked to the external market that Freshwater has developed. Further, even if that linkage tends to prejudice a claim for section 87 protection, it is only one factor to be considered and as these Reasons will also conclude, it is not a factor that I would give much weight in this case. In part, I come to that conclusion based on evidence of sufficient commerciality at the time of the Treaty to the fishing activities of the aboriginal people of Norway House to defuse the relevance of its connection to global markets today.
[14] It is in this context then that I offer a few general observations concerning the expert evidence which have been muddied by different views of what constitutes a commercial activity. Indeed, the Respondent’s expert has come up with her own definition that would condemn any chance of finding a degree of similarity between the activity now and that of the Norway House aboriginal people at the time of and preceding entering into the Treaty. Needless to say, I do not feel bound by any such definitions.
[15] In any event, the Appellants’ expert provided his opinion that the fishing activities of the ancestors of the Appellants, that he referred to as Upland Cree, at the time of the Treaty, were commercial activities. He ultimately relied on a very broad definition of “commercial”. It included not only trading fish for goods but a wider notion of bartering where there was a mutual expectation of consideration being given for fish provided by Upland Cree in the Norway House district to the non-aboriginal community operating (commercially) at Norway House as a Hudson’s Bay Company trading post.
[16] The Respondent’s expert witness report was a rebuttal report. Although she did conclude that the fishing activities of the ancestors of the Appellants at the time of the Treaty were not commercial activities, which she narrowly defined to exclude trade and barter transactions, her report, as a rebuttal, was in many respects devoted to argumentatively pointing out the absence of absolute proofs of who caught what fish, where they were caught, how they were exchanged and for what consideration. For example, by pointing out that the Appellants’ expert could not say for sure that a particular transaction, relied on in his report, was engaged in by an aboriginal person who was actually a resident of Norway House or that fish traded were from a particular area or that the compensation received by the aboriginal person was not from employment (which went beyond her narrow definition of a “commercial” transaction), some of his detailing of factual transactions and conclusions were attacked. However, the attacks were based on her putting a burden of proof on the Appellants’ expert that was well beyond that which was necessary given the nature of the analysis I was undertaking.
[17] On balance then, I prefer the evidence of the Appellant’s expert witness. His expertise is not in issue. That some of his report might be said to have presented some records as factual proofs when it may have been presumptuous to do so, does not persuade me to disregard much of his report and testimony. I believe his report and testimony as a whole demonstrated a much better appreciation of what I needed to know in the context of my analysis. His evidence in that regard was frank, open-minded and on balance much more credible than that of the Respondent’s witness who stayed true to her adversarial role in the defence of her rigid definition of “commercial” which, given the context in which I needed to consider its relevance, was unhelpful.
[18] In addition to those general observations, there is one finding relating to Dr. Lytwyn’s report that warrants particular recognition. I accept his evidence that at the time of entering into the Treaty the trade in isinglass, a product made from the bladder lining of sturgeon, was being carried on by the aboriginal people of Norway House, or at least the Upland Cree in the Norway House district, from sturgeon harvested in the Norway House district. I find as well that such trade was part of what was the commercial mainstream of trade carried on by the Hudson’s Bay Company at Norway House at that time. While this finding alone could result in my allowing the Appeals, given the way in which the parties have directed the issue before me, it is not the main thrust of these Reasons or my conclusion.
[19] With that background in mind, I will now divide these Reasons into 4 further parts:
Part 2: Historical Overview
1. Pre-Treaty: The interaction of the Norway House Cree and the Hudson’s Bay Company;
2. Treaty Number 5;
3. Post-Treaty: The demise of the Hudson’s Bay post and the introduction of commercial fisheries;
4. More recent developments: Agreements and Enactments affecting the Norway House First Nation.
Part 3: Current Fishing Practises
1. The evidence of L. Saunders, President of the Co-op;
2. The evidence of Ronald Robertson, Appellant;
3. The evidence of David Bergunder, Director, Field Operations for Freshwater.
Part 4: Analysis
1. The Natural Resource Transfer Agreement;
2. Section 87; The Erosion of the Entitlement of the Appellants qua Indians; The Connecting Factors
i) the location of the activities;
ii) the engager of the services and debtor; and
iii) the commercial mainstream.
3. Distinguishing authorities relied on by the Respondent
i) Southwind v. Canada;
ii) Bell v. Canada;
iii) Ballantyne v. Canada .
4. Subsection 87(2);
5. Section 35.
Part 5: Conclusions
Part 2: Historical Overview
1. Pre-Treaty; The interaction of the Norway House Cree and the Hudson’s Bay Company
[20] Unlike what I presume to be the case of other reserves, Norway House grew from a non-aboriginal trading post settlement, namely a Hudson’s Bay Company post. It served as a major transhipment post moving goods northeast to York Factory where they were shipped by sea to England. Similarly, supplies from England destined for Hudson’s Bay posts in central Canada and west arrived at York Factory and made their way by waterway to Norway House located on the northern end of Lake Winnipeg near the mouth of a waterway system that allowed for the shipment of goods to and from the southeast and west, as well as north, to and from York Factory.
[21] Distinct from the post itself, a relatively small area, there are vast tracks of land to the north, east and west that were the hunting and fishing grounds of what are known as the Upland Cree. These aboriginal people hunted and fished for their subsistence throughout this larger area referred to by Dr. Lytwyn as the Norway House district. Such district has more recently been identified by the Government of Manitoba as the Norway House Resource Management Area.[2] It encompasses the boundaries of the Upland Cree trap lines and includes the traditional ancestral fishing areas of the Nation of aboriginal people who became the Norway House Band.
[22] Given its role as a major transhipment post, there was considerable coming and going by Upland Cree at Norway House since its inception in about 1796.[3] Indeed, the movement of aboriginal people generally tends to blur, to some extent, distinctions sought to be made among different First Nations. It is difficult to pinpoint the identity of the aboriginal people that hunted and fished in the Norway House district. Dr. Lytwyn described the movement of the Native people, the non-sedentary nature of their lifestyle prior to the treaties and the mixing that blurs distinctions. Still, any such movement and mixing does not distract from the conclusion that the ancestral practices of the Upland Cree, as I will refer to them, mixed or otherwise, involved a certain interaction with the Hudson’s Bay Company. That interaction is pivotal to the part of my analysis that focuses on the commercial nature of the fishing activities of the Native people of Norway House at the time of and before entering into the Treaty.
[23] While the Hudson’s Bay Company journals and account books are a treasure of historical records and information it was impossible for even the learned and expert witnesses, who testified at the hearing of these Appeals, to say with certainty, how much trade was taking place between the Company and the Upland Cree residing at Norway House and the Upland Cree who lived and sought out their way of life within the Norway House district but did not reside at Norway House, versus the trade that was taking place with other First Nations people from the northeast, southeast and west, who were known to trade at Norway House, given its role as a major transhipment post.
[24] At this point, suffice it to say that Dr. Lytwyn was adamant and earnest in his testimony that at least the Upland Cree hunting and fishing in the larger Norway House district, which as I have said I take to be essentially the same as the Norway House Resource Management Area, were trading fish at Norway House in a commercial sense in significant quantities. They were also trading fish by-products such as fish oil and more particularly isinglass that had a market in Europe in the manufacture of other products such as glue.
[25] Dr. Lovisek, the Respondent’s expert witness, who was retained as a rebuttal witness, expressed her opinion that the Native residents of Norway House would have only assisted the Hudson’s Bay’s employed non-Native fishers. She maintained, as well, that such resident aboriginal people were “employed” by the Hudson’s Bay Company and as such they could not be considered as having been engaged in trade in a commercial sense as she narrowly defined that activity. As to trade in isinglass, in the commercial quantities uncovered by Dr. Lytwyn, she maintained that there was no evidence that it was produced by residents of Norway House. According to her, the quantities reported in Hudson’s Bay accounts could have come through Norway House in transit from the southeast, from the Rainy River and Lake of the Woods areas, where records of isinglass production were associated with a different First Nation.
[26] I touch again on this difference in the approaches of the two experts as it gives some context to this historical overview. It is not disputed that Norway House, when it operated as a post, was never largely dependent on fish for food acquired by barter or otherwise from aboriginal people. Nor does the evidence suggest that fish per se was being marketed by the Company as food for other destinations. The food supply at the post was for the most part provided by non-aboriginal fishers employed by the Company. They were sufficiently accomplished in performing their role as to suggest that the post was not, for the most part, dependant on a fish trade with the Native residents at Norway House or elsewhere. Dr. Lovisek went so far as to suggest that the non-aboriginal employees would not have relied on the local aboriginal people for assistance in locating local fisheries. There is no evidence of that suggestion being reliable or not, but regardless, I accept, as I have said and as I believe Dr. Lytwyn ultimately admitted, it is likely that the Hudson’s Bay Company did not rely to a major extent on trade with the aboriginal residents of Norway House for fish, for food or export. That is not to say it did not trade with the aboriginal residents of Norway House or the Upland Cree of the Norway House district to obtain fish.
[27] Indeed, it must be acknowledged that the dependency of the Hudson’s Bay Company on the Upland Cree is not the heart of the question before me. More important to my mind is seeing how the ancestral tradition of fishing of the Upland Cree, which is not denied, impacted the lives of this nation of people prior to the Treaty. From their perspective, was it an integral part of their livelihood? [4]
[28] Consider first, the number of aboriginal people that lived at Norway House. The evidence suggests that in the 1820s it was 5 families. There is no evidence before me that suggests how much it grew by 1875 but it seems to be acknowledged that it was a small group of families.[5] I also accept Dr. Lytwyn’s evidence that the Hudson’s Bay Company first began to employ the aboriginal people of Norway House in 1847 to assist the non-aboriginal fishers. Regardless of the nature of the engagement and the nature of the assistance provided, we have a number of employed aboriginal people living in a very small Native community on a non-aboriginal post deriving some part, a good part, of their livelihood from fishing. Indeed the scale of support from fishing that the Norway House Native people depended on in the 1800s might well have exceeded the extent of such dependency today. Regardless, it is irrefutable that from their perspective, being involved in the fishing activities that kept the post at Norway House fed, was an integral part of their livelihood.
[29] As well, I accept Dr. Lytwyn’s general thesis that there would inevitably have been trading of one sort or another, small barter transactions with some expected consideration for fish brought to the post, between Upland Cree, hunting and fishing in the Norway House district, and the Company. In this sense there were commercial transactions occurring as an integral part of the life and livelihood of the ancestors of the Norway House Band members today.
[30] That is not to suggest however, that even in today’s terms, large scale fishing was not being engaged in by Upland Cree in the Norway House district. Indeed, there is a report in 1828 of aboriginal people bringing in thousands of fish from a nearby fishing weir. It is accepted that such weirs were traditionally constructed and fished by aboriginal people and could produce catches in quantities of commercial significance even in today’s terms. Such catches would have value to the post.
[31] Further, in accepting this evidence, I have considered some outside sources referred to by Dr. Lytwyn. Of some influence are historical reports of vast fisheries existing in Playgreen Lake, one of the very lakes a short distance from the reserve where the Appellants fish today. Of the fish documented to be plentiful are sturgeon, a fish used not only for food but also for oil and isinglass both of which were by-products traded commercially by the aboriginal people of the area. Indeed, in respect of the trade in isinglass, Dr. Lytwyn noted recorded trade accounts at Norway House from 1813 to 1819 and then again from 1831 to 1876 when it appears the demand for the product made it worthwhile again for the aboriginal people to produce it for trade. The records sourced the trades from various posts. Accounts between 1870 and 1873 record almost 600 pounds of isinglass acquired at Norway House. At an estimate of 10 sturgeon to produce 1 pound of isinglass, that equates to 6000 sturgeon harvested as part of this local economy.[6]
2. Treaty Number 5
[32] The Norway House First Nation was a signatory to Treaty Number 5 with the Crown. This Treaty evidences that certain fishing practices of the Norway House Cree Nation were recognized by the Crown as being an entitlement that required protection. The relevant portion states:
Her Majesty further agrees with Her said Indians, that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes, by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefore by the said Government. [7] [Emphasis added.]
[33] Dr. Lovisek’s Rebuttal Report includes documents that explain that the intention of Treaty Number 5 was to provide suitable settlements as a means for the Native people to adapt to new economic and social conditions. These conditions included a significant decline in the fisheries causing a major disruption in the Native people’s lives; people who held themselves to be fishermen by trade and culture.[8]
[34] The Treaty and Dr. Lovisek’s observation appear to shape a view that reflects the perspective of the members of the Norway House Band today, a view that surfaces again and again, as will be noted below, in my discussion of post- Treaty events. That view is that at the time of entering into the Treaty, it was and continues to be unequivocally recognized that the Norway House Cree fished as an avocation and as a trade.[9]
3. Post-Treaty: The demise of the Hudson’s Bay post and the introduction of commercial fisheries
[35] While the evidence does not pinpoint the exact details and time of the demise of the Hudson’s Bay Company’s post at Norway House, in approximate terms it seems to pretty much coincide with the signing of Treaty Number 5. By this time or within a short time after this event, Norway House ceased to be of importance to the Hudson’s Bay Company. The aboriginal people at the post, who historically had made no formal claim of ownership of lands on which the post was, or was previously, located, or of their traditional hunting and fishing grounds, were granted the small track of land where they lived as a reserve. In spite of the fact that negotiations included demands for arable lands, the track granted was limited to what appears to be lands where the post was located and from which they could pursue their acknowledged avocations of hunting and fishing.[10]
[36] That restricted grant of reserve status had promises of further grants which have since been revisited. Pursuant to an agreement with the federal and provincial governments that I will expound on shortly, such promises are now being acted upon and reserve status is in the process of being extended to include much of the lands that are relevant to these Appeals.
[37] Before dealing with the expansion of reserve lands more than a century after the Treaty, a brief comment on the conditions at the time of the Treaty is warranted.
[38] Although there is evidence of a significant decline in the fisheries at around the time of the Treaty, within a short time thereafter, in the mid 1880s, the residents of Norway House found they could trade with the commercial fishers from the south who had begun to exploit northern Lake Winnipeg and its nearby lakes to satisfy markets south of the lake. There was no structured relationship between aboriginal fishers and these commercial enterprises but even the Crown’s expert, Dr. Lovisek, acknowledged that that relationship was one that engaged Norway House fishers in commercial fishing by her definition. That the Norway House fishers might be seen, from their own perspective, as using their existent and historical fishing know-how and the knowledge of their traditional fisheries once again as a means of pursuing a livelihood, did not impress her as relevant. It was not what the aboriginal people did that mattered to her but rather it was the commercial context brought to the picture by the buyers of their catches and the nature of their relationship with those buyers. They were now paid as independent contractors for fish caught and sold to commercial enterprises that in turn marketed them in the commercial mainstream. That is, in her view, it not until a short time after the Treaty, that the aboriginal people of Norway House began a commercial activity.
4. More recent developments: Agreements and Enactments affecting the Norway House First Nation
[39] The next series of events that lead up to the present, involve the flooding of traditional lands of the Norway House people for which compensation was sought and given (Compensation Lands) and, as well, the settlement of land entitlement claims (Treaty Land Entitlement or TLE Lands). As a result of these claims, agreements were entered into that led to, amongst other things, the promise of new reserve lands and the recognition of the Norway House Resource Management Area referred to earlier in these Reasons (the Resource Management Area).
[40] These agreements deal with areas that are relevant to the question of whether the Appellants' fishing activities take place on the reserve or are sufficiently connected to the reserve to be of relevance to the required analysis. In this case, fishing activities that do not take place on the reserve are undertaken within the Resource Management Area and more particularly, primarily on lands and waters adjacent to lands that are either Compensation Lands or TLE Lands earmarked for reserve status.
[41] The best overview of these areas can be seen on Exhibit A-4. The Resource Management Area encompasses the Compensation Lands and the TLE Lands and is defined and set out in what is labeled “The Master Implementation Agreement” (the “MIA”). It is an agreement between Canada, the province of Manitoba, the Norway House Cree Nation and Manitoba Hydro-Electric Board (“Hydro”). [11]
[42] The purpose of the MIA was to resolve issues that remained outstanding from the Northern Flood Agreement (“NFA”) signed in 1977.[12] In doing so, it incorporates the transfer of provincial lands to Canada to enable the creation of reserves; that is, it identifies specific parcels of land set aside as part of the compensation package to be a part of the Norway House reserve. Although not dealt with in the MIA, the Resource Management Area is acknowledged to encompass the specific additional parcels of land, as shown on Exhibit A-4, that are also set aside to be part of the Norway House reserve in recognition of the federal Crown’s obligations arising from entitlements under the Treaty, as acknowledged by a document called the Treaty Land Entitlement Framework.[13]
[43] Schedule 5.1 of the MIA provides a map of this resource area. It includes the rivers and lakes and the new "reserve lands".[14] Under section 5.5.3 of the MIA, Manitoba agrees to grant priority right to Norway House Cree over wildlife resources that constitute a source of food supply, income-in-kind and income that fall within the Resource Management Area. The resources covered by the agreement include the fish.[15] The circumstances surrounding the development of the MIA support the view that historical fishing entitlements were critical issues to the Norway House community in negotiating the agreement.[16]
[44] The selection process for Compensation Lands and TLE Lands is relevant to note.
[45] Areas to be designated as Compensation Lands were proposed by the province in consultation with Hydro and required acceptance by Norway House Cree Nation as suitable Compensation Lands.[17] The community was then required to request the lands be set aside as reserve lands. Canada was obliged to make reasonable efforts to fulfill the request within 12 months. In anticipation of the transfer of lands, Manitoba is required not to dispose of lands that comprise the Compensation Lands and must grant a Land Use Permit to the Norway House Cree Nation on terms agreeable to the community.
[46] Areas designated as TLE Lands totaled 106,434 acres and were, according to the evidence of Mr. L. Saunders, a witness called by the Appellants who I will introduce momentarily, areas considered to be within the communities’ traditional territory. He described the process, in which he was personally involved, by which the Norway House community participated in selecting these lands. His uncontradicted testimony was to the effect that the land selections were made with the purpose of fulfilling economic, social and community development needs and were selected on the basis that they were lands of historical significance to the Norway House Cree Nation, including lands traditionally used for fishing.[18]
[47] The Manitoba Claims Settlement Implementation Act (the "Claims Act")[19] that received Royal Assent in 2000, recognizes the foregoing understandings. Part I of the Claims Act relates to the MIA and ensures that the Norway House Cree will have control over the funds and lands that are granted to them under the MIA. Part II of the Claims Act addresses the expansion of the reserve land base as was intended under the Treaty Land Entitlement Framework.
[48] The last government involvement that needs mention is The Natural Resource Transfer Agreement Manitoba.[20]
[49] The Natural Resource Transfer Agreement Manitoba ("NRTA") was enacted to transfer certain rights over resource management from the Federal Crown to the province of Manitoba. The provision of the NRTA that relates to Norway House Cree fishing rights is stated in paragraph 13 as follows:
13. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence. Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.
Part 3: Current Fishing Practises
1. The evidence Mr. L. Saunders, President of the of Co-op
[50] Both the testimony of the Appellant and Mr. L. Saunders reflect the sense of pride and respect that the community has for its fishers and for the vocation they pursue.
[51] The pride it seems derives from the community’s own conviction that it is rooted in their heritage, a heritage that they want so earnestly to preserve and which they seem to have so much need to protect.
[52] It seems clear from the evidence and authorities that this need is fostered by Canada; indeed the honour of the Crown appears to require recognition of this same heritage.
[53] It is clear that the fishers of this community support their families through the pursuit of their vocations as their ancestors did even 140 years ago when the small community of Norway House fishers assisted the Hudson’s Bay Company and the non-aboriginal fishers employed by that company.
[54] As well, the pursuit of that vocation today is still a significant part of the community of Norway House. While the community consists of some 5,000 people[21] and only 52 are members of the Co-op and fish for a living, there are another 160 or so Co-op employees who are Band members and live on the reserve working in various capacities in this local enterprise, including staffing the packing stations.[22] While the packing stations are situated off-reserve, short distances from the fishing camps and the reserve, they are both on lands designated as future reserves.
[55] As to the importance of this enterprise, I found Mr. L. Saunders to be a knowledgeable and credible witness. He is the president of the Co-op and has been since January 2009. Prior to 2002, he had served in that office as well, for two and a half terms of three years each. He resigned in 2002 to become a Band counselor for the Norway House Cree Nation. He held portfolios that included the Environmental portfolio which had some responsibility over the land selections under the Treaty Lands Entitlement process.
[56] Although he was not an expert on the history of the people of Norway House, he did convey what I believe to be an accurate sense of what this community believes and understands to be a true reflection of their history and that is that Norway House is a community rich in traditional culture that included fishing. Further, his testimony clearly reflected the economic significance of fishing to the local economy today.
[57] Indeed, he was quick to observe that fishing was the largest, if not the only, economy of the reserve other than federal funds and trusts that had been established to support schools and other programs. Hunting has not stood up as a viable economic alternative.
[58] He described the Co-op as the Band’s fishers’ representative, giving the reserve a place in the industry. The Co-op represents the fishers, ensuring that they are dealt with honestly and fairly. I accept this evidence. The Co-op certainly plays a roll well beyond that as acting as an agent or intermediary between the fishers and Freshwater. Indeed, its main role was to represent the fishers of the community. It extended the fishers credit for everything from financing boats and fishing supplies to personal and home shopping needs. It obtained fishing quotas and was responsible to divide those quotas up amongst its members. On this point, his testimony was clear: the Co-op was created to help the fishermen. He said, “We treat our fishermen well.”
[59] As noted above, he also testified as to his community’s understanding of the framework of the Treaty Land Entitlement negotiations. They were to address unfulfilled Treaty promises for further treaty lands. New reserve areas were mapped out and agreed upon on the basis that, like the Resource Management Area, they were wildlife and fish areas that had been traditionally available to and used by the Norway House Cree Nation as a source of food and income. This is also reflected by Article 5 of the MIA in respect of the Compensation Lands.
[60] Mr. L. Saunders testified that the locations of the new reserve areas include traditional camp sites that are still the camps used today by the Co-op members and include the areas where the Co-op’s fish packing stations are located.[23] All such areas are within the Resource Management Area which he described as an area that was intended to encompass the trap lines on traditional hunting grounds and also contained or circumscribed traditional ancestral fishing grounds.[24] Furthermore, he testified that all things required to be done by the Band in terms of identifying future reserve lands under both the Northern Flood Agreement and the Treaty Lands Entitlement had been finished. He said that they were reserve lands in principle and that the only reason for delays in finalizing their status as reserves related to transmission line easements and right-of-way easements required by Hydro. The Crown took no issue with this uncorroborated testimony except to point out that these designated areas were not yet reserves and that there was no recognized status in respect of these areas that would suggest that they be treated as reserves in principle.
[61] Still, Mr. L. Saunders maintained that treating these areas and locations as reserves is supported in the Northern Flood Agreement in Article 15.1 where Manitoba agreed, as a matter of policy, to grant Norway House Cree Nation first priority rights to the wildlife resources in the Norway House area traditionally available to and used by Norway House Cree Nation as a source of food supply, income-in-kind and income. That Article provides as follows
15.1 Manitoba agrees to grant to the residents of the Reserves first priority to all the wildlife resources within their Trapline Zones, and in the rivers and lakes which were traditionally available to and used by them as a source of food supply, income-in-kind and income ("the Resource Area").[25]
[62] While Mr. L. Saunders would acknowledge that the lands designated as future reserves require an official act of government to constitute them as reserves, I sensed that there was a genuine frustration with the officious and legalistic nature of the analysis and that it was seen as a betrayal of the spirit of the undertakings that gave rise to the de