Snake v. The Queen

Snake v. The Queen
Court (s) Database
Federal Court Decisions
Date
2001-08-08
Neutral citation
2001 FCT 858
File numbers
T-518-85
Notes
Digest
Decision Content
Date: 20010808
Docket: T-518-85
Neutral Citation: 2001 FCT 858
BETWEEN:
GEORGE KINGFISHER, BEN WEENIE,
LESLIE ANGUS, LARRY CHICKNESS,
LOLA OKEEWEEHOW and DONALD HIGGINS
for themselves and on behalf of the Descendants
of the Chief Chipeewayan Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of the trial of an action commenced by Statement of Claim filed the 15th of March, 1985 in which the plaintiffs claim the following reliefs:
a) an Order declaring the defendant owed a fiduciary duty to the plaintiffs and that there was a breach of that duty;
b) damages;
c) in the alternative, an order declaring that the purported surrender of the Stony Knoll Indian Reserve No. 107 was void ab initio;
d) such additional or alternative relief as is deemed equitable; and
e) the costs of the action.
[2] In a document entitled "Trial Brief of the Plaintiffs" provided to the Court during the course of the hearing of this matter, under the heading "What is the relief sought?", the reliefs sought are amplified in the following terms:
1) A declaration that there has been no lawful surrender of I.R 107 ("Stony Knoll Reserve") and that Order in Council P.C. 1155 [1897] is ultra vires and of no lawful effect by reason of the mandatory surrender requirement under the Indian Act;
2) A declaration that the Defendant owed a pre-surrender fiduciary duty to all Indians having an interest in I.R. 107;
3) A declaration that the Defendant breached its pre-surrender fiduciary obligation by purporting to pass Order in Council P.C. 1155 [1897] and by subsequently transferring possession and title to the lands comprised in I.R. 107 to third parties;
4) A declaration that one or more of the Plaintiffs have standing to bring this action;
5) An Order reserving the issue of damages arising from the breach of the Defendant's fiduciary duty for a future hearing before the Court;
6) An Order directing the Defendant in the interim to provide the Plaintiffs with reasonable funding to prepare and present an assessment of the nature and quantum of damages to be awarded;
7) An Order directing the Defendant to provide an accounting of the disposition of I.R. 107 including full particulars of the terms upon which possession and title were transferred by the Crown.
8) Costs to be spoken to.
BACKGROUND
[3] On the 23rd of August, 1876, at Fort Carleton in what was then part of the Northwest Territories, Chief Chipeewayan and four councillors signed Treaty No. 6 on behalf of themselves and other members of the Chief Chipeewayan Band (the "Band").
[4] By Treaty No. 6, the Government of Canada acquired from the seven bands whose representatives signed the Treaty on the 23rd of August, 1876, and from others who signed the Treaty later, the "independent pre-existing legal title" to 121,000 square miles of land. In return, the Government of Canada promised, in the 13th paragraph of Treaty No. 6, "to lay aside reserves for farming lands... and other reserves for the benefit of the said Indians" and "that the Chief Superintendent of Indian Affairs shall depute and send a suitable person to determine and set apart the reserve for each Band, after consulting with the Indians thereof as to the locality which may be found to be most suitable for them".
[5] Stony Knoll Indian Reserve No. 107 on the south bank of the North Saskatchewan river, ten miles southwest of Carlton House, was determined, surveyed and set apart for the Band in 1879 by Dominion Land Surveyor George A. Simpson and in July, 1888 by Dominion Land Surveyor John C. Nelson. On the 17th of May, 1889, Stony Knoll Reserve was confirmed by Order in Council P.C. 1151/1889. The Reserve consisted of some 30 square miles.
[6] Stony Knoll Reserve was never settled by the Band.[1]
[7] In 1878, members of the Band received their annuity payments pursuant to Treaty No. 6 in the Battleford District. Annuity paylists indicate that at that time the Band consisted of 69 individuals in 19 families. The Band remained in the Battleford District through 1879. Annuity paylists for that year indicate that the Band consisted of 52 individuals in 14 families.
[8] During the early years after the signing of Treaty No. 6, there was a great deal of movement of families between bands. Most of the bands to which Treaty No. 6 extended continued to pursue their traditional ways of hunting and fishing and therefore led a nomadic existence. Once reserves were surveyed for the various bands in the treaty area, members of the bands began to settle but it was a gradual process hampered by the lack of experience in farming of members of the bands, their reluctance to leave behind their nomadic way of life and what can conservatively be described as less than ideal understanding and support from the Government of Canada.
[9] The Band had returned to the Fort Carlton area by 1880 and received annuity payments there. Paylists indicate that the Band then consisted of 46 people in 10 families.
[10] In 1881, members of the Band were among the large group of "Battleford Indians" who travelled to the south. Six families of the Band were paid at Fort Walsh as "stragglers". Two families were paid at Fort Walsh with the Piapot Band.
[11] Only four families returned to the Battleford District with the then Chief, Young Chipeewayan, and received their annuity payments there in 1882. Two families remained in the South and were paid as "stragglers" at Fort Walsh. One family was paid with the Piapot Band.
[12] By 1883, according to pay lists, only two families were paid as members of the Band. Other families that were at one time or another paid as members of the Band, were paid under other band pay lists.
[13] The following is an extract from a memorandum by the Deputy Superintendent of Indian Affairs dated the 15th of November, 1883:
At Fish Creek there are three Reserves belonging respectively to Moosimin, Thunder Child, and Young Chippewayan. None of these except Moosimin appear to be settled on their own reserve, Thunder Child and Young Chippewayan being also on Moosimin's Reserve: the two latter having recently returned from the South with their followers. The Commissioner thought it better to put them upon Moosimin's Reserve, but both are dissatisfied and expressed themselves so to the undersigned, Thunder Child stating that he considered the work he did on Moosimin's Reserve of no value to himself or Band, as it was on this Chiefs' land and that he wanted to set to work and improve his own Reserve. The character given this Chief by the Instructor was a very good one. He is described as very industrious and setting a good example to the other Indians. Moosimin objects very strongly to these Indian Bands being located on his Reserve, and they have no right there strictly speaking, as the Treaty provides a Reserve for each Chief.[2]
As earlier noted, when the above was written, no reserve had been formally confirmed in favour of the Band.
[14] In response to a request for information regarding the Band and its members, the same writer wrote on the 8th of July, 1884 that:
...it would be a most difficult matter to trace them, & efforts are being made to have the few who are still his [Chief Young Chipeewayan's] followers join other bands, as they are a worthless lot.[3]
[15] When members of the Band received their annuity payments on the 17th of October, 1884, they were on the Thunder Child Reserve. They compromised 18 individuals in two families. Other persons who were apparently members of the Band were paid as "stragglers" at other reserves.
[16] In 1885, after the rebellion of that year, despite what immediately follows, members of the Band were listed as "rebels" and did not receive annuity payments. The two families then considered to constitute the Band were living on the Thunder Child Reserve. Neither they nor members of the Thunder Child Band were considered to have taken a direct part in the rebellion. Similarly, other persons more generally considered to be "members" of the Band were not considered to have taken a direct part in the rebellion.
[17] The Band was listed as being on the Thunder Child Reserve for 1886 and 1887.
[18] Annuity payments were reinstated for members of the Band in 1888. Once again, members of the Band were found to be on the Thunder Child Reserve and their annuity payments were made there. The Band was considered to then consist of two families made up of women and children.
[19] When Stony Knoll Reserve was confirmed by Order in Council in May, 1989, as previously noted, the Band was then considered to consist of three women and nine children, in two families, living on the Thunder Child Reserve. Annuity payments for 1889 were made to members of the two families as part of the Thunder Child Band.
[20] No individual was paid an annuity payment, as a member of the Band, after 1889.
[21] By Order in Council P.C. 1155/1897[4], apparently without prior consultation with members of the Band and without efforts being made to identify members of the Band for purposes of consultation, authority was granted "...for the relinquishment by the Department of Indian Affairs, ... of the control of the lands comprising ..." Stony Knoll Reserve. Control passed to the Department of the Interior. In effect, Stony Knoll Reserve ceased to exist as a Reserve for the Band or any other band. No compensation was paid to or otherwise provided for any member of the Band.
EVIDENCE
1) Expert Genealogical Evidence
[22] Two expert reports tracing the genealogy of the plaintiffs and others were filed. On behalf of the plaintiffs, a report prepared by "Four Arrows" and dated the 20th of June, 1995 was filed on the 26th of August, 1999. It is entitled: "The Cree Nation of Chipeewayan: Its Lands and Its People From 1876 to 1995. The History of a Dispersed People Who Reunited. The Genealogy Report." The second report, in two volumes, was prepared on behalf of the defendant by Barbara Shanahan of Shanahan Research Associates Inc., Ottawa and is dated the 15th of January, 1992. A third volume, an addendum to the report, is dated the 31st of January, 1992. The three volumes were received by the Court on the 23rd of December 1999. The defendant's expert report is entitled "Report on the Descendants of the Young Chipeewayan Band as Particularized in the Statement of Claim in the case of Alfred Snake et al v. The Queen[5]. Both reports are very extensive.
[23] During the course of the trial, on the 11th of January, 2000, a third report, prepared by Alexander Dietz and entitled "Alfred Snake v. the Queen - Historical Facts asserted by the Shanahan Report and by the Four Arrows Report" (the "Dietz Summary") was received as an exhibit filed on consent on behalf of both parties. This last report, consisting of only four pages, is described by the author in the following terms:
This summary outlines the historical facts asserted by the Shanahan Report and by the Four Arrows Report in so far as these facts relate to the ancestors of the specific plaintiffs.
[24] None of the authors of the three reports was called as an expert witness at the trial of this matter, this, apparently, by agreement between counsel. Counsel further agreed that the Court could rely on the Dietz summary as accurately reflecting the relevant evidence to be drawn from the Four Arrows and Shanahan Reports regarding the genealogy of each of the plaintiffs.[6]
[25] The substance of the Dietz summary is in the following terms:
Alfred Snake
Shanahan and Four Arrows Reports agree on the following facts:
1. Ispimikkakeetoot (Young Chipeewayan) appear[s] in the annuity paylists of the Band from 1876 to 1886.
2. The annuity paylists in 1876 and 1877 of the Young Chipeewayan Band do not list any sons were [sic] among the children of Ispimikkakeetoot and the paylists for the period 1876 to 1886 inclusive show that no son of Ispimikkakeetoot moved out of the family unit.
3. Starting in 1888, Ispimikkakeetoot himself and one child are paid as members of the Thunderchild Band, and in 1889 they are joined by the rest of his family. The family remains on the paylists of the Thunderchild Band thereafter.
4. A woman named Emma Snake appears for the first time in 1885 on the annuity paylists for the Mistawasis Band (as no. 118), the agent's notation reading "not paid last year, very old with grandson, from the Plains".
5. Albert Snake is given his own annuity ticket no. 133 in 1889, but this time being recorded as Emma Snake's son.
6. In 1890 Albert Snake is transferred to the Ahtahkakoops Band where he is given treaty no. 126 and where [he] remains thereafter.
7. Alfred Snake is the son of Albert Snake.
The Shanahan report makes the following assertions of fact:
8. The paylists for the period 1876 to 1886 inclusive show conclusively that no son of Ispimikkakeetoot moved out of the Band.
9. There is no evidence to support the contention of Alfred Snake that he is the grandson of Ispimikkakeetoot (Young Chipeewayan) and Omamees.
The Four Arrows report makes the following assertions of fact:
10. If Albert Snake is a son of Ispimikkakeetoot (Young Chipeewayan), he must have left his father's household prior to 1876.
Ben Weenie
Shanahan and Four Arrows agree on the following facts;
11. Mahchahchekoos appears on the Young Chipeewayan annuity paylist in the year 1882 under ticket no. 11, where the agent notes that he had been paid at Fort Walsh in 1881.
12. Mahchahchekoos is recorded on the 1883 annuity paylists of the Strike Him on the Back Band (as no. 76).
13. Mahchahchekoos appears on the annuity paylist of the Little Pine Band in 1884 (as no. 78) and remains with that Band until his death in 1892.
14. Winnie Manon is a child of Mahchahchekoos and received his own treaty number no. 159 in 1891.
15. Winnie Manon, together with his family, was transferred to the Poundmaker Band in 1903 (as no. 147), where he remained until his death in 1914.
16. Ben Weenie is a direct descendant of Winnie Manow [sic].
The Shanahan report makes the following assertions of fact:
17. Mahchahchekoos was not admitted to Treaty as a member of the Young Chipeewayan Band, was not a member of the Band when the reserve was surveyed for the Band in 1879, and appears on the paylist of the Band only for one year (i.e. in 1882).
The Four Arrows report makes the following assertions of fact:
18. Mahchahchekoos may be identical to Mahahtikoos whose family is admitted to Treaty with the Young Chipeewayan Band in 1876 and appears continuously on the paylist of that Band until 1880.
19. Mahchahchekoos of the Young Chipeewayan Band appears as Mahchahchecoose (Bad Antelope) in the 1881 annuity paylist for the Lucky Man Band, paid at Fort Walsh (as no. 115).
Leslie Angus
Shanahan and Four Arrows Reports agree on the following facts;
20. Pahpahmootaywin took treaty with the Young Chipeewayan Band in 1877.
21. Pahpahmootaywin appears on the annuity paylists of the Young Chipeewayan Band for the first and last time in 1877.
The Shanahan report makes the following assertions of fact:
22. The annuity paylists of the Bands and stragglers in the records which were examined, did not yield any information as to the whereabouts of Pahpahmootaywin after 1877.
23. There is no recorded evidence whatsoever to show the connection between Pahpahmootaywin and Eliza Watchusk.
The Four Arrows report makes the following assertion of fact:
24. Pahpahmootayin [sic] is likely identical to The Man Who is Walking About (also known as Paymotaywein) who received treaty annuities with the Little Pine Band in 1884 (as no. 2) and continued to be listed with that Band until his death about in 1887. His widow (Keheoquimick) continued to be listed or paid annuities with the Little Pine Band until 1890.
Larry Chickness
Shanahan and Four Arrows Reports agree on the following facts:
25. Keeyewwahkapimwaht (Shooting Eagle) was admitted to Treaty, as a Headman, with the Young Chipeewayan Band in 1876 and received his annuities with the Band until 1882.
26. Keeyewwahkapimwaht was paid as a Headman of the Young Chipeewayan Band in the annuity paylists of the Poundmaker Band for the years 1883 (as no. 66) and 1884 (as no. 67).
27. In 1888 and thereafter, Keeyewwahkapimwaht (also known as David Keokapamot) continued to receive his annuities as a member of the Poundmaker Band (as no. 67).
28. In 1889 one of the daughters of Keeyewwahkapimwaht married Kasokwayo (Sahsookoowayo) of the Poundmaker Band (no. 9) with whom she reportedly went to the United States in 1893, Kasokwayo returning in 1916 to Canada without his wife and children and being transferred to the Sweetgrass Band.
29. In 1896 a second daughter of Keeyewwahkapimwaht married Harry Chickness of the Poundmaker Band (No. 124).
30. Larry Chickness is a direct descendant of Harry Chickness.
Lola Okeeweehow
Shanahan and Four Arrows Reports agree on the following facts:
31. Ookeewahow and his wife were admitted to Treaty with the Young Chipeewayan Band in 1876, and are paid with that Band until 1879 when the addition of one boy is noted.
32. In 1885 a man named Ookeewahow appears as no. 121 in the annuity paylist of the Piapot Band and it is noted that he "drew with no. 43 in ‘84, draws now with his mother widow of the Magpie no. 153 pay sheet 1883".
33. In 1906 annuity paylist of the Piapot Band contains the notation "last paid in 1902, been living at Maple Creek till death of wife is Piapot's son".
34. In 1917 Ookeewahaw was transferred to the Muscowpetung Band (as no. 98).
The Shanahan report makes the following assertions of fact:
35. There is no plausible or compelling reason to think that Okeewahaw of the Young Chipeewayan Band, being a married person with a child paid under his own number as a member of the Band until 1879, would have any reason to spend the next six years of his life as a member of Piapot's Band and to be paid under the annuity number of his father, The Magpie.
36. There is no evidence to suggest that the Ookeewahaw referred to in the annuity paylists of the Piapot Band was at any time paid with the Young Chipeewayan Band or connected in any way to that Band.
Higgins Family
Shanahan and Four Arrows Reports agree on the following facts:
37. Ooseechekwahn (Moving Stone) (also known as Oostiquan) and his wife were admitted to Treaty with the Young Chipeewayan Band in 1876 (as no. 18) and that he continued to be paid or listed on the annuity paylists of the Young Chipeewayan until 1886.
38. Ooseechekwahn died about 1886 and that his widow and family were transferred in 1888 to the Thunderchild Band (as no. 111).
39. A daughter of Ooseechekwahn, named Emma Apistatim, withdrew from Treaty in 1890 after her marriage to Peter Higgins.
[26] As noted in footnote 5 to these reasons, Alfred Snake was one of the original plaintiffs in this action. At the time of trial, Alfred Snake was deceased. By Court Order, Alfred Snake's son, George Kingfisher was substituted as a plaintiff. Counsel agreed that the portion of the foregoing summary report relating to Alfred Snake applies fully to George Kingfisher.
2) Testimony at Trial
a) George Kingfisher
[27] In his testimony before the Court, George Kingfisher identified his position on the "Chipewayan Snake Alexander Family Group Chart"[7] and confirmed that the children named on that Chart as his are his. He then corrected the chart, noting that Alfred Snake and Eva Kingfisher were his parents and Albert Snake and Jemima Starblanket were his grandparents.
[28] George Kingfisher related conversations he had as a teenager with his grandfather, Albert Snake. During these conversations, Albert Snake had spoken of a "reserve they had lost" named Stony Knoll, of going "south on a hunting trip," and of how "times were hard" during his own childhood. He related how his great, great grandfather, Chief Chipeewayan, and other band members including Albert and his grandmother, Chief Chipeewayan's wife, had gone south from the Fort Carlton area to hunt buffalo because the Indian Affairs agency had given them meat that was "unfit to eat". It was on this trip that Chief Chipeewayan passed away, around Maple Creek. The remaining band members then moved back to the Fort Carlton area, but their land was already settled when they arrived, and so they scattered. According to Albert Snake, his grandmother had looked after him on this trip.
[29] George Kingfisher testified that he is registered at the One Arrow Reserve, his mother's reserve, and that he had lived there for some ten (10) months in the early 1980's. He also confirmed that he had lived on the Sandy Lake Reserve[8] for some time, as did his father, Alfred Snake, and his grandfather, Albert Snake, but he did not think either was registered there. He related how his grandfather, Albert Snake, did a little farming and had haying grounds, but that the then Chief, Alan Ahenakew, took the haying grounds, saying that Albert Snake "didn't belong from there". George Kingfisher testified to a similar personal experience when he was young, when he was refused assistance by the Chief of the Sandy Lake Reserve on the ground that he "didn't belong from there".
[30] Mr. Kingfisher and his children live off-reserve. He could not remember there being a process in 1951, when he was about six years of age, whereby band lists were posted on the reserves and Indian people were registered.
b) Harry Michael
[31] Harry Michael[9] confirmed that he witnessed statements by Albert Snake and Alfred Snake.[10] Harry Michael indicated that he had many conversations with Albert Snake about the "land they have lost" and testified that everyone knew that "something went wrong with that reserve that was taken away". He expressed the belief that young Chipeewayan was Albert Snake's father and Maria Standingwater was Alfred Snake's cousin, apparently having been told this by Albert Snake himself. Mr. Michael also testified to an event that occurred when he was Chief of Beardys Reserve, sometime between 1951 and 1954, when Albert Snake apparently met with the Prime Minister of Canada, the Right Honourable Mr. Diefenbaker and told him, "I am the chief".[11]
[32] Harry Michael could not remember there being a process in 1951 whereby band lists were posted on the reserves and Indian people were registered.
c) Doris Chickness
[33] In her testimony before the Court, Doris Chickness identified her position on the "Chickness Family Group Chart"[12] and confirmed that the children and grandchildren named are hers and that the plaintiff Larry Chickness is her nephew, is shown on the Chart merely as "Larry", and is the son of her brother Alphonse and his wife Hazel Brown. She testified that John and Louisa Weenie were her parents and Harry Chickness and Ashlee, listed as "Second Daughter of Kee Yew Wah Ka Pim Waht", were her grandparents. She identified Harry and Ashlee in a family photo.[13] Doris Chickness testified that she stayed with her grandparents "off and on" when she was about 7 or 8 years of age. She indicated that her grandfather, Harry Chickness, was from the Poundmaker Reserve, and her grandmother, Ashlee's father, was Shooting Eagle or Kee-Yew-Wah-Ka-Pim-Waht.[14]
[34] Doris Chickness could not remember there being a process in 1951 whereby band lists were posted on the reserves and Indian people were registered.
d) Jimmy Myo
[35] Jimmy Myo, a Cree elder from Saskatchewan, related some of his understanding of the marriage custom in the late 1800's and early 1900's, which he had learned from conversations with his parents, aunts, and uncles. There was no formal marriage ceremony, though, in many areas there would be a feast, and the parents would give the young couple a new tent or teepee or other possessions to aid in their living. Jimmy Myo attested that couples were quite free to live where they wanted, according to their circumstances. Although frequently the new husband would go off to the area of residence of the new bride, sometimes they would go back to the husband's reserve, as was the case in respect of Jimmy Myo's parents and of Doris Chickness' grandparents.[15]
e) Leslie Angus
[36] In his testimony before the Court, Leslie Angus identified his position on the "Angus Family Group Chart"[16] and confirmed his relationship with the siblings, children, and grandchildren named. He attested that Julia Tootoosis and Harry Angus were his parents and that Mary Louise Favel and John Tootoosis were his grandparents. Leslie Angus' mother told him that he had been born on the Poundmaker reserve and that his great grandmother's name was Eliza Watchusk, or "Muskrat" in Cree,[17] and his great grandfather's name was Basil Favel. The witness attested that his mother also used to tell him since he was a child, about his uncle, John Tootoosis,[18] who used to "wander around" just like Leslie Angus' great great grandfather, Pah Pah Mootawin which, in Cree, apparently means "Walking Man". He attested that his mother used to tell him that he was related to Pah Pah Mootawin on her side of the family.
[37] The family of Leslie Angus' father was originally from Beardys, but one family member had married a woman from the Thunder Child Band. He attested that his family on his mother's side, both grandparents and great grandparents, were from Poundmaker. He recalled how his family was not always welcome on the Thunder Child reserve. For example, on one occasion, some people on the reserve collected names for a petition to have his family leave. More recently, Leslie Angus was asked to write a letter explaining whether he planned to stay on the reserve "...because [his] descendants were not originally from Thunder Child."[19]
[38] Leslie Angus testified about how he learned of the claim to the Stony Knoll Reserve. He referred to his brother, who was articling with a Regina law firm, and to old provincial maps which showed the old reserve. Moreover, he related how everyone spoke about the situation, because there were "...quite a few families from Thunder Child that are from Young Chipeewayan Band" and "...Young Chipeewayan is buried in ThunderChild".[20] These stories came down through his parents, uncles, and his grandfather Joe Angus, or after soccer games and such when "...the old people would sit together...".[21] According to Leslie Angus, it was common knowledge on the reserve who was related to whom. "Like, Old Alfred Snake used to come and visit Mrs. Standingwater. That was her relative".[22]
f) Ben Weenie
[39] In his testimony before the Court, Ben Weenie identified his position on the "Weenie Family Group Chart"[23] and confirmed his relationship with the siblings and children named, as well as with Doris Chickness, who is his father's cousin. He attested that Charles Weenie and Emma Paskimin are his parents and Ada Atcheynum and John Weenie are his grandparents, who, together with his grandparents on his mother's side, had helped raise him. Ben Weenie's grandfather, John Weenie, told him stories of the lost reserve or land claim and of traditional teachings and relationships. John Weenie, who was admitted to the Sweetgrass reserve in 1918, told him of the fear that many had of being ousted from a reserve that was not traditionally theirs, and how they would hide their origins to protect themselves. A struggle developed between traditional treaty Indians on their reserve, descended from treaty signatories, and others called "squatters". Ben Weenie's family on his grandfather's side was not from the Sweetgrass traditional group, but had come from a different area, though his grandmother was a traditional member of the Sweetgrass Band. He mentioned "talk" about his family not being allowed to be in the leadership at Sweetgrass because they belonged, traditionally, to a different Band.
[40] Ben Weenie testified that he learned from his grandfather that he was a descendent of a member of the Chief Chipeewayan Band, through Mah Chah Che Koos, or "Big Caribou",[24] and believed that he was the "...fifth descendent in a male line of the name". He further testified that his great grandfather, Weenie Mahon, and great grandmother, Betsy Chatsees, resided on the Poundmaker reserve.
[41] Ben Weenie had no direct memory of the process in 1951 whereby band lists were posted on the reserves and Indian people were registered. However, he later learned of this process, which he described as "housecleaning".
g) Joanne Gude
[42] In her testimony before the Court, Joanne Gude indicated that she considered herself a part of the Okeeweehow family group and identified her position on the "Okeeweehow Family Group Chart"[25]. She confirmed her relationship with the siblings, children, and grandchildren named on the chart and stated that Lola Gabriella Okeweehow, known as "Louise-Anne Larose", and Frank Larose were her parents and Lola Gabriella Dubois and Norman Okeeweehow were her maternal grandparents.
[43] Joanne Gude related some of the things that her mother Louise-Anne had told her. When Louise-Anne was four and a half years old, she had witnessed the funeral of her grandfather, who was identified to her as "moosum Okeeweehow". Louise-Anne remembered the people who were at the funeral and apparently helped direct traffic. When she was older, about 12 or 13, Louise-Anne learned from her own mother, Lola Gabriella, that "moosum had land up north".
[44] Joanne Gude attested that her grandfather, Norman Okeeweehow, was born at Maple Creek but moved to the Piapot Reserve because there was no more land up north. Later, he married Lola Gabriella Dubois from the Musquopeeting Reserve, and so he moved to that reserve with his father.
h) Donald Higgins
[45] In his testimony before the Court, Donald Higgins identified his position on the "Higgins Family Group Chart"[26] and stated that Harris Colin Leonard Higgins was his father and Emma Apistatim was his grandmother. He expressed the belief that his grandfather, Peter A. Higgins, was in the Northwest Mounted Police, his grandmother was a member of the Chief Chipeewayan Band, and that they were married sometime in the 1880s. Thereafter, his grandmother was taken off the treaty list and worked around a residential school, where she was later buried.[27] Donald Higgins attested that he learned much of this information from a Mr. Bullard, an elderly historian, who owned a museum in Battleford. Mr. Higgins attested that he also met Alfred Snake, sometime in the 1970's, who gave him more information and filled in some of the "gaps", though "not to a great extent".
i) Joseph Albert Angus
[46] Joseph Albert Angus, Barrister and Solicitor and a member of the Saskatchewan Bar, is a brother of Leslie Angus. He grew up on the Thunder Child Reserve and studied at the University of Saskatchewan and the University of Winnipeg. Mr. Angus testified that, while he was articling with Griffin, Beke, Thorson and Maddigan in Regina in February 1984, a delegation came to the law firm's offices seeking legal representation concerning a Stony Knoll Reserve claim. Apparently, they had previously attempted to negotiate with the Government of Canada, but were told that they had no provable claim. Thus, having no alternative, they sought legal representation to proceed before this Court and this action followed.
j) Sidney Fineday
[47] Sidney Fineday, who was approaching 76 years of age at the time he testified, and lived on the Sweetgrass Reserve, attested to his association with the elders of his "group" since he was about 17 years of age. By reference to the example of his grandfather, who married in or about 1885, he described the marriage customs of that time and how the usual practice was for the new husband to live with the group of the bride. "The usual exercise of that, after the initiation of the marriage was that the bride be left with her parents, her brothers, her sisters", he testified.[28] It seems that this practice developed in part because the husband would leave to hunt, or as a warrior, and the wife would be able to stay with her own family while he was away. He agreed that this practice might be different if the husband was not "a gatherer" of food or a warrior. However, he indicated that, of 1500 people on the Sweetgrass Reserve at the time of the trial of this matter, only four (4) were viable farmers, and the rest were required to wander and to take up trades and leave the reserve to survive.
[48] Sidney Fineday described the place of children in the community, saying that they "...were the most valued possession of the band..." and that they "...represented the future and success of that particular band or camp...". The band would care for the children regardless of who their parents were.[29]
[49] Sidney Fineday spoke about his grandmother, Emma, who died and was buried at Battleford at the industrial school. He testified that she was the grandmother of Donald Higgins.
THE ISSUES
[50] The following statement of issues is drawn largely from the defendant's written submissions although it overlaps very substantially with the issues as identified in written submissions on behalf of the plaintiffs. The reference in the first issue question to descendants "...in an unbroken line..." was not used by counsel at trial, in evidence or in written submissions, although the concept was alluded to throughout submissions on behalf of the defendant.
1) On the evidence before the Court, have the plaintiffs, or any of them, established that they are descendants in an unbroken line of members of the Chief Chipeewayan Band?
2) If so, are the plaintiffs, or any of them, entitled to bring this action, not only on behalf of themselves, but also on behalf of those described in the style of cause as "...the Descendants of the Chief Chipeewayan Band?
3) Does participation in recent treaty land entitlement settlement agreements affect the right of the plaintiffs, or any of them, to claim the relief sought in this action?
4) Is the claim by the plaintiffs barred by The Limitation of Actions Act[30] or by laches?
5) Is Order in Council P.C. 1155 of 1897, which purported to transfer the administration of the lands comprising Stony Knoll Reserve, valid?
ANALYSIS
1) On the evidence before the Court, have the plaintiffs, or any of them, established that they are descendants in an unbroken line of members of the Chief Chipeewayan Band?
a) Evidentiary Concerns - Proving Aboriginal Rights
[51] In Squamish Indian Band v. Canada[31], my colleague Madame Justice Simpson summarized in the following terms in paragraphs 29 to 34 of her reasons the guidance that had been provided by the Supreme Court of Canada, at the time she wrote her reasons, on the issue of oral history evidence:
In Delgamuukw v. British Columbia, ... ("Delgamuukw"), at para. 80, the Supreme Court of Canada repeated a direction it had given in R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 68. There, the Court said:
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.
In Delgamuukw, the court described oral history by making reference to the Report of the Royal Commission on Aboriginal Peoples ... where oral history was said to comprise "...legends, stories and accounts handed down through the generations in oral form". As well, the Supreme Court referred ... to Dickson J.'s description of oral history in Kruger v. The Queen ... . There he said that oral history consisted of "out of court statements, passed on through an unbroken chain across the generations of a particular aboriginal nation to the present day".
The Supreme Court in Delgamuukw indicated that oral history evidence of this description is to be placed on an equal footing with other types of historical evidence in reaching a determination about an historical truth. This, the Court said, is to be the case even though the oral history evidence may not meet the requirements of an exception to the rule against hearsay, may not be historically accurate, may lack detail, and may only be verified by the community which tenders it as evidence.
Accordingly, in spite of its potential failings, oral history relating to pre-sovereignty practice, customs and traditions has been accepted of necessity because it is the only evidence Indian plaintiffs have been able to offer in litigation which profoundly affects their interests. This acceptance was entirely reasonable in cases such as Delgamuukw in which the issues or historical truths being addressed were broad questions which covered a long period of time. In Delgamuukw, the historical truths sought were answers to questions about which bands used and occupied lands, about the internal boundaries between the bands' lands, and about the Indians' land tenure practices prior to and at the assertion of British sovereignty.
In R. v. Marshall, ... ("Marshall") and R. v. Badger ... ("Badger"), the Supreme Court of Canada considered oral history evidence relating to historical truths in post-contact and post-sovereignty times. In both cases, the truth sought was information about the historical or cultural context in which treaties were negotiated and signed (in 1760-61 and 1899 respectively). Oral history evidence on those topics was accepted to enable the court to reach conclusions about the intention of the Indians. The evidence was directed to the situation before and at the date the treaties were signed. The subject matter concerned long-standing customs and practices.
In contrast to cases such as Marshall, Badger and Delgamuukw, precise historical accuracy is important in this case. ... [emphasis added, citations omitted]
[52] As in the case before Madame Justice Simpson, precise historical accuracy is important in this case where the ability of the plaintiffs to succeed is contingent upon their establishing, on a balance of probabilities, that they are descendants in unbroken lines of members of the Band.
[53] As Madame Justice Simpson noted in paragraph 39 of her reasons, "...the historical truths sought in this case are narrow, specific questions." Such is also the case here.
[54] More recently, in Mitchell v. Canada (Minister of National Revenue - M.N.R.)[32], Chief Justice McLachlin revisited the issue of evidentiary concerns in proving aboriginal claims. She wrote at paragraphs 27 and 28:
Aboriginal right claims give rise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records. Recognizing these difficulties, this Court has cautioned that the rights protected under s. 35(1) [of the Canadian Charter of Rights and Freedoms] should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection (Simon v. The Queen, ... ). Thus in Van der Peet, ... the majority of this Court stated that "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 t