Ermineskin v. Canada

Ermineskin v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2006-12-20
Neutral citation
2006 FCA 415
File numbers
A-618-05, A-629-05
Notes
Reported Decision
Decision Content
Date: 20061220
Docket: A-618-05
A-629-05
Citation: 2006 FCA 415
CORAM: RICHARD C.J.
SEXTON J.A.
SHARLOW J.A.
A-618-05
BETWEEN:
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART
LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LESS, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development, and the Minister of Finance
Respondents
A-629-05
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
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Respondents
- and -
THE ATTORNEY GENERAL OF THE PROVINCE OF ALBERTA
Intervener
- and -
THE ATTORNEY GENERAL FOR THE PROVINCE OF SASKATCHEWAN
Intervener
Heard at Ottawa, Ontario, on October 16-19, October 23-26,
October 30-31, and November 6-10, 2006.
Judgment delivered at Ottawa, Ontario, on December 20, 2006.
REASONS FOR JUDGMENT BY: RICHARD C.J. and
SHARLOW J.A.
DISSENTING REASONS BY: SEXTON J.A.
Date: 20061220
Docket: A-618-05
Citation: 2006 FCA 415
CORAM: RICHARD C.J.
SEXTON J.A.
SHARLOW J.A.
A-618-05
BETWEEN:
CHIEF JOHN ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART
LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LESS, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, the Minister of Indian Affairs and Northern Development, and the Minister of Finance
Respondents
A-629-05
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
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Respondents
- and -
THE ATTORNEY GENERAL OF THE PROVINCE OF ALBERTA
Intervener
- and -
THE ATTORNEY GENERAL FOR THE PROVINCE OF SASKATCHEWAN
Intervener
REASONS FOR JUDGMENT
RICHARD C.J. AND SHARLOW J.A.
[1] These two appeals, heard together, are from judgments of the Federal Court rendered on November 30, 2005 after a very long trial of two actions that were heard together. The appeal in A-618-05 (the “Ermineskin appeal”) is from Ermineskin Indian Band and Nations v. Canada, 2005 FC 1623 (Federal Court File T-1254-92). The appeal in A-629-05 (the “Samson appeal”) is from Samson Indian Nation and Band v. Canada, 2005 FC 1622 (Federal Court File T-2022-89).
[2] We have concluded that these appeals must be dismissed. Our reasons are set out below under the following headings:
Paragraph
I. The parties...................................................................................................................... 3
II. Preliminary matters.......................................................................................................... 6
(a) The severance of the actions into phases................................................................. 6
(b) Scope of the judgments under appeal..................................................................... 10
(c) Grounds of appeal relating to evidentiary rulings...................................................... 12
(d) Transfer of Samson trust funds to the control of the Samson Nation........................ 13
III. Reasonable apprehension of bias..................................................................................... 21
IV. General and Historical Phase........................................................................................... 25
(a) Introduction........................................................................................................... 25
(b) Evidence in the General and Historical Phase.......................................................... 28
(c) The reliance of the oral history evidence................................................................. 34
(d) Judge’s determinations relating to evidence in the General and Historical Phase....... 38
(e) Discussion............................................................................................................. 45
V. The facts relevant to the Money Management Phase........................................................ 51
(a) Preliminary Point.................................................................................................... 51
(b) Treaty 6................................................................................................................ 52
(c) The Indian Act – provisions relating to reserves..................................................... 54
(d) The surrender to the Crown of the oil and gas resources on the reserves................. 56
(e) The Crown’s admission – beneficial title to the oil and gas resources
on the reserves...................................................................................................... 61
(f) The Indian Oil and Gas Act................................................................................. 62
(g) The management of the royalties received by the Crown......................................... 63
(1) Financial Administration Act..................................................................... 65
(2) Money management provisions of the Indian Act.......................................... 71
(h) Statutory provisions relating to the investment of the capital money
of Indian bands...................................................................................................... 79
(i) Interest on Indian money in the Consolidated Revenue Fund................................... 90
(j) Discussions and negotiations relating to the handling of Indian money....................... 99
IV. Analysis.......................................................................................................................... 108
(a) Whether the Crown is a trustee of the royalties....................................................... 109
(b) Whether the royalties are “public money” as defined in the
Financial Administration Act.............................................................................. 112
(c) Whether the Crown improperly made use of the capital money............................... 117
(d) Whether the royalties could and should have been invested..................................... 122
(1) The Indian Act........................................................................................... 124
(2) Section 15 of the Charter............................................................................. 129
(3) The Financial Administration Act............................................................. 135
(4) Whether the statutory scheme breaches or results in a breach of Treaty 6...... 143
(e) Whether the Crown was obliged to propose an investment plan.............................. 146
(f) Unjust enrichment.................................................................................................. 150
(g) Rate of return........................................................................................................ 160
(h) Summary............................................................................................................... 171
VII. Conclusion..................................................................................................................... 174
I. The parties
[3] The appellants in the Ermineskin appeal (collectively, “Ermineskin”) are Chief John Ermineskin and the Councillors of the Ermineskin Indian Band and Nations (the “Ermineskin Nation”), acting on their own behalf and on behalf of all of the other members of the Ermineskin Nations. The appellants in the Samson appeal (collectively, “Samson”) are the Samson Indian Nation and Band (the “Samson Nation”), and Chief Victor Buffalo of the Samson Nation, acting on his own behalf and on behalf of all of the other members of the Samson Nation.
[4] The Ermineskin Nation and the Samson Nation are “bands” within the meaning of the Indian Act, R.S.C. 1985, c. I-5. They are also “bands” that are entitled to the benefit of Treaty 6, entered into in 1876 between the Crown and the Plain and Wood Cree and other Indians then living in the area covered by Treaty 6.
[5] The respondents are the Crown in right of Canada, the Minister of Indian Affairs and Northern Development, and the Minister of Finance. For ease of reference, we use the expression “the Crown” to refer to the respondents. The Minister of Indian Affairs and Northern Development, who is responsible for the administration of the Indian Act, will be referred to as the “Minister”.
II. Preliminary matters
(a) The severance of the actions into phases
[6] Both actions involve a large number of claims, and both have been divided into phases. In the trials that led to the judgments under appeal, evidence was adduced in respect of only the first two phases, referred to as the “General and Historical Phase” and the “Money Management Phase”.
[7] The evidence presented as part of the General and Historical Phase apparently was intended to provide historical and other background evidence relating to the specific claims in all phases of the actions, including the Money Management Phase. Evidence adduced in relation to the first two phases of the action will be treated as part of the record of the trial in the remaining phases to the extent it is relevant.
[8] The claims made in relation to the Money Management Phase are based on allegations that the Crown has breached one or more of its legal obligations in respect of certain funds held in trust for Ermineskin and Samson.
[9] The trust funds are comprised mainly of accumulated royalties derived from the exploitation of oil and gas resources found beneath the surface of the Samson Reserve (which belongs to the Samson Nation), and the Pigeon Lake Reserve (which is shared by the members of four bands, often referred to as the “Four Bands”: the Ermineskin Nation, the Samson Nation, and two other bands that are not parties to these appeals). The Ermineskin Nation also has its own reserve (the Ermineskin Reserve), but that reserve has not yet produced any royalties. The events that led to the Crown’s receipt of the royalties are described later in these reasons.
(b) Scope of the judgments under appeal
[10] The judgments under appeal state that the actions are dismissed. All parties agree that those judgments must be understood as dismissing only the claims of Ermineskin and Samson in relation to the Money Management Phase, except the claims of Samson that became moot as the result of the transfer of the Samson trust funds pursuant to a series of orders made by the Judge in 2005 (described below).
[11] The claims in the remaining phases of the actions have yet to be heard. All parties agree, as they must, that the judgments under appeal do not dispose of any claims that have not been heard.
(c) Grounds of appeal relating to evidentiary rulings
[12] In the course of the trial, numerous objections were made in relation to the admissibility of evidence, and the Judge made rulings on those objections. Samson and Ermineskin raised several grounds of appeal in relation to evidentiary rulings against them. The Crown responded to those arguments, and also made a number of arguments of its own relating to evidentiary rulings against the Crown. As a result, each memorandum of fact and law contains a detailed review of the many alleged errors of the Judge in relation to those evidentiary rulings, and significant time was spent on oral argument on those issues. However, on the view we have taken of the substantive issues in this case, we have not considered it necessary to express an opinion on the evidentiary issues.
(d) Transfer of Samson trust funds to the control of the Samson Nation
[13] One of the remedies requested in the Samson pleadings at trial is an order requiring the Crown to transfer all of Samson’s capital money to the control of the Samson Nation. During the submissions at the close of the trial, the Crown indicated its willingness to make such a transfer, subject to certain conditions. Accordingly, the Judge made an order on January 27, 2005 setting out the steps to be taken to effect the transfer, and the conditions to be met before the transfer could occur (see Samson Indian Nation and Band v. Canada, 2005 FC 136).
[14] The conditions were that (1) the Samson Nation execute a trust agreement with certain provisions, subject to the approval of the Court, (2) the Crown be released from any future liability in relation to the Samson capital money, (3) the approval of Samson be obtained by means of a referendum meeting certain conditions, (4) the Council of the Samson Nation submit to the Minister a band council resolution containing certain information, and (5) any capital money received by the Crown for Samson in future was to be transferred to Samson on terms to be agreed between Samson and the Crown, or failing that, as determined by the Court. In the same order, the Judge declared that the transfer would be for the benefit of the Samson Nation, and that it was authorized by paragraph 64(1)(k) of the Indian Act.
[15] Paragraph 64(1)(k) of the Indian Act is discussed later in these reasons. At this point it is convenient to mention parenthetically a minor legal argument about its scope. Section 64 of the Indian Act sets out the conditions that must be met for the “expenditure” of the capital money of a band. Paragraphs 64(1)(a) to (k) list the permitted expenditures. Paragraph 64(1)(k), the most general item of that list, includes as a condition that the Minister be of the opinion that the expenditure is for the benefit of the band. There was some debate in these appeals as to whether the word “expenditure” is broad enough to cover the transfer of capital money to a trust fund as contemplated by the January 27, 2005 order referred to above, or the use of the capital money to purchase an income earning investment. In our view, it is. The word “expenditure” connotes “spending”, and is broad enough to include any use of money to acquire something. Thus, a transfer of the capital money of a band to a trustee or trustees for the purpose of acquiring income earning investments for the band is an “expenditure” within the meaning of section 64. Such a transaction is permitted by paragraph 64(1)(k), if the statutory conditions are met.
[16] On October 17, 2005, the Judge made an order approving the terms of a trust deed dated July 21, 2005 (the Kisoniyaminaw Heritage Trust Deed) under which it was proposed to transfer the Samson capital money to a trust fund (the Kisoniyaminaw Heritage Trust Fund), and the holding of a referendum to approve the transfer. On October 31, 2005, the Judge made (a) an order approving an amendment to the Kisoniyaminaw Heritage Trust Deed, (b) an order approving the terms of Samson’s release of the Crown, to take effect upon the transfer of the money, and (c) an order confirming the appointment of trustees for the Kisoniyaminaw Heritage Trust Fund and the referendum regulations and procedure.
[17] On December 22, 2005, the Judge declared that the conditions for the transfer of Samson’s capital money to the Kisoniyaminaw Heritage Trust Fund had been met, and he approved the transfer, subject to a small holdback and other relatively minor conditions. The transfer was implemented on February 1, 2006.
[18] It was one of the claims of Samson at trial that it has an aboriginal right to manage its own money. Counsel for Samson properly conceded that this claim was rendered moot by the transfer of Samson’s capital money to the Kisoniyaminaw Heritage Trust Fund. The remaining claims of Samson in the Money Management Phase deal only with the acts and omissions of the Crown during the period ending on February 1, 2006.
[19] No appeal was taken from any of the orders of the Judge relating to the establishment of the Kisoniyaminaw Heritage Trust Fund and the transfer of Samson’s capital money to that trust fund.
[20] Ermineskin did not seek an order requiring the transfer of its capital money to its control or to a trust fund, and has not claimed that it has an aboriginal right to manage its capital money. Ermineskin was aware of the orders and transactions involving the Kisoniyaminaw Heritage Trust Fund, but as of the date of the hearing of these appeals, Ermineskin had not chosen to undertake a similar arrangement.
III. Reasonable apprehension of bias
[21] Samson alleges a reasonable apprehension of bias on the part of the Judge. Ermineskin makes no such allegation.
[22] The arguments of Samson on the issue of reasonable apprehension of bias are addressed in detail in the memoranda of fact and law submitted by Samson and by the Crown. By way of summary, Samson alleges that the Judge engaged in improper cross-examination of the Samson witnesses, interfered improperly with the cross-examinations conducted by counsel for Samson, made statements indicating that he had prejudged whether certain treaty issues were justiciable, improperly exhorted the parties to settle certain issues raised in the Money Management Phase, prejudged the credibility of Samson witnesses, permitted the Crown to submit late expert reports without regard to the possible prejudice caused to Samson, arbitrarily adjourned the trial at one point, improperly admonished counsel for Samson, awarded costs against Samson on a motion without hearing from counsel for Samson, decided issues against Samson for which Samson did not seek relief and failed to decide issues for which Samson sought relief, found a large number of Samson’s witnesses not to be credible, and failed to criticize or reject the evidence of certain expert witnesses for the Crown.
[23] At the hearing of the appeal, counsel for Samson addressed each of these grounds, with extensive references to the transcript and other relevant documents. We concluded that Samson had not made out an arguable case for the existence of a reasonable apprehension of bias. We did not require counsel for the Crown to make oral submissions on this point.
[24] Many of the factual allegations made by Samson in support of the argument that there was a reasonable apprehension of bias also relate to other grounds of appeal raised by Samson. The rejection of Samson’s argument that there was a reasonable apprehension of bias did not preclude Samson from referring to those factual allegations in the context of those other grounds of appeal.
IV. General and Historical Phase
(a) Introduction
[25] Before dealing with the issues in the Money Management Phase, it is convenient to dispose of a number of issues arising from the argument of Samson and Ermineskin that the Judge erred in law in determining a number of issues that are not relevant to the claims made in the Money Management Phase. Those determinations relate primarily to the claim, asserted by Samson only, that the “cede, release and surrender” clause in Treaty 6 does not mean to the Cree people what it means to the Crown.
[26] Ermineskin and Samson were and are part of the Plains Cree, and are parties to Treaty 6 which was signed in 1876. The geographical area covered by Treaty 6 includes much of what is now Alberta and Saskatchewan, including the area that is the source of the royalties referred to above. The portions of Treaty 6 that are relevant specifically to the Money Management Phase are discussed later in these reasons.
[27] The “cede, release and surrender” clause of Treaty 6 reads as follows:
The Plain and Wood Cree Tribes of Indians, and all [the other] Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors forever, all their rights, titles and privileges, whatsoever, to the lands included within the following limits […].
(b) Evidence in the General and Historical Phase
[28] In support of what Samson claims to be the Cree understanding of the “cede, release and surrender” clause in Treaty 6, Samson adduced a large body of oral history evidence of many Cree elders and other Cree people, and also a large body of expert evidence, including a report by Professor H. C. Wolfart.
[29] The report of Professor Wolfart contains a lengthy analysis of many aspects of the Cree language, including an analysis of a Cree language text containing what is said to be the story of the making of Treaty 6. The Cree text, with an English translation, is found in an appendix to Professor Wolfart’s report.
[30] The English translation of the Cree text seems to suggest that the Cree leaders understood that the Crown was “buying” the Cree homeland for a perpetual stream of payments, but only the surface of the land. According to the English translation, the Crown representatives told the Cree: “No, I do not buy from you what is deep beneath this land, only one foot deep whence the White-Man makes his living, that is what I buy from you. Indeed, from here on, any monies drawn from beneath the ground, let people understand that this is one benefit which the Crees will continue to be paid from their homeland”. Some of the oral history evidence supports that view of Treaty 6.
[31] The Crown objected to the admission of all evidence on this point. The Judge admitted the evidence and reserved his decision on the objection. In the end, it was admitted.
[32] The Supreme Court of Canada has given substantial guidance and direction concerning the admissibility and weight of oral history evidence in aboriginal rights claims. The relevant issues are discussed most recently in Mitchell v. Canada (Minister of National Revenue – M.N.R.), [2001] 1 S.C.R. 911, per Chief Justice McLachlin, building on the teaching of R. v. Van der Peet, [1996] 2 S.C.R. 507 and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. All of these cases are referred to in the Judge’s reasons in Samson at paragraphs 38 to 43.
[33] In our view, the Judge demonstrated in his reasons that he was aware of the principles stated in Mitchell at paragraphs 29 to 39, which we summarize as follows. In determining a claim to an aboriginal right or title, rules of evidence must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation embodied in subsection 35(1) of the Constitution Act, 1982. Evidentiary principles must be sensitively applied to aboriginal claims but they cannot be strained beyond reason. Oral history is admissible if it is both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge. Oral history evidence may meet the test of usefulness if it offers evidence of ancestral practices and their significance that would not otherwise be available, given the absence of contemporaneous written records, or if it provides the aboriginal perspective on the right claimed. In considering the reliability of oral evidence, a trial judge may inquire as to the witness’s ability to know and to testify as to aboriginal traditions and history that have been orally transmitted. Such inquiries may be appropriate on the question of the admissibility of the evidence, and the weight to be assigned to the evidence if admitted.
(c) The relevance of the oral history evidence
[34] Samson asserted what it claims to be the Cree understanding of Treaty 6 to support one of the legal theories underlying its claims, which is that the Plains Cree (including Samson) have and have always had aboriginal title to the oil and gas resources underlying the land to which Treaty 6 relates. That would include the land that later came to comprise the Pigeon Lake Reserve and the Samson Reserve. It is implicit in the position of Samson that the Cree aboriginal title to those resources was not surrendered under Treaty 6.
[35] If the argument of Samson on this point is valid, then it is also arguable that Samson’s aboriginal title to the oil and gas resources survived the subsequent creation of the Pigeon Lake Reserve and the Samson Reserve, and perhaps subsists to this day except to the extent it has been validly extinguished. It is also arguable, based on Samson’s theory, that its aboriginal title to the oil and gas resources underlying the Pigeon Lake and Samson reserves obtained the status of a constitutional right upon the coming into force of section 35 of the Constitution Act, 1982.
[36] Another potential consequence of the Samson theory is that the Samson and other Cree people could assert aboriginal title to all of the oil and gas reserves within the area covered by Treaty 6 that comprises any part of the historic Cree homeland, subject to any valid extinguishment of that aboriginal title. That potential consequence (sometimes referred to as the “off reserve surrender question”) prompted the Government of Alberta and the Government of Saskatchewan to intervene in this case in support of the position of the Crown.
[37] It was because of the claim of aboriginal title that the Judge admitted, over the Crown’s objection, the oral history evidence and the expert evidence relating to the meaning of the “cede, release and surrender” clause in Treaty 6. As a claim of aboriginal title may require certain evidence relating to pre-contact history, territory and practices, evidence on those points was also permitted.
(d) Judge’s determinations relating to evidence in the General and Historical Phase
[38] In Samson’s closing argument at trial, counsel for Samson conceded that the meaning of the “cede, release and surrender” clause of Treaty 6 (and by extension, the evidence relating to pre-contact history, territory and practices) was not relevant to Samson’s claims in the Money Management Phase. For that reason, Samson argued that the Judge should not reach any conclusions in the Samson action with respect to the evidence adduced on that point.
[39] In Ermineskin’s closing argument at trial, counsel for Ermineskin argued that, for two reasons, the Judge should not reach any conclusions in the Ermineskin action with respect to the meaning of the “cede, release and surrender” clause of Treaty 6. First, Ermineskin’s pleadings do not put the meaning of that clause in issue. Second, although Ermineskin adopted minor portions of the evidence adduced by Samson on that point, none of that evidence is relevant to the claims of Ermineskin in the Money Management Phase.
[40] In the Crown’s closing argument at trial, counsel for the Crown agreed that this evidence was not relevant to any of the claims of Samson or Ermineskin in the Money Management Phase, but he argued that the Judge should nevertheless make provisional findings on these points because the evidence might be relevant in a subsequent phase, and the Judge who heard the evidence was in the best position to assess it.
[41] The Judge indicated that he would make findings on these points, and he did so. His summary of the evidence and his analysis is lengthy, and results in a number of conclusions. All of his conclusions appear in his reasons in the Samson case, and some appear also in his reasons in the Ermineskin case. We summarize as follows the most important conclusions reached by the Judge :
1.
In assessing the oral history evidence, the approach advocated by Dr. von Gernet (an expert witness for the Crown) is preferable to the approach advocated by Dr. Wheeler (an expert witness for Samson) (Judge’s reasons in Samson, paragraph 453).
2.
The oral history evidence of the Samson elders should be discounted because the story probably was not transmitted to them as they recalled it, and alternatively because it is implausible that the Crown representatives who negotiated Treaty 6 would have agreed to accept a surrender of the land only to a certain depth (Judge’s reasons in Samson, paragraphs 458 to 494).
3.
The evidence represented by the Cree language text attached to the expert report of Professor Wolfart bears little weight because there is little evidence as to the provenance of the story it contains (Judge’s reasons in Samson, paragraph 495).
4.
The evidence of Professor Wolfart that the Cree leaders who signed Treaty 6 could not have understood the “cede, surrender and release” clause bears little weight because his evidence does not explain how he reached that conclusion (Judge’s reasons in Samson, paragraph 503, and in Ermineskin, paragraph 195).
5.
The contemporaneous accounts of the signing of Treaty 6 that were written by Alexander Morris, A. G. Jackes, Peter Erasmus and John McDougall are reliable (Judge’s reasons in Samson, paragraphs 504 to 508, and in Ermineskin, paragraphs 196 to 200).
6.
The Cree leaders were aware that, for the Crown, the purpose of Treaty 6 was to secure the surrender of aboriginal title to a vast tract of land so as to open it up for settlement and development, and that the land surrender clause was absolutely non-negotiable, unlike certain other clauses such as those relating to money, agricultural implements and livestock (Judge’s reasons in Samson, paragraph 509, and in Ermineskin, paragraph 201).
7.
Alexander Morris, who represented the Crown at the negotiation of Treaty 6, assured the Cree that they could continue to hunt and fish as before except on land taken up for settlement, that reserves would be set aside for the Cree, that no one could take their homes from them, that if they wanted to sell all or part of their reserves, this could be done only by the Crown with their consent, and that the proceeds would be kept by the Crown and “put away to increase” (Judge’s reasons in Samson, paragraph 510, and in Ermineskin, paragraph 202).
8.
The evidence does not justify interpreting the “cede, release and surrender” clause as being limited to the land only to a certain depth (Judge’s reasons in Samson, paragraph 512).
9.
It is likely that the theory relating to such a limitation has emerged within the past few decades as a motif within the Cree oral traditions, and may represent a present day reconstruction of what current generations wished had happened, or thought should have happened, in 1876 (Judge’s reasons in Samson, paragraph 513).
10.
The “cede, release and surrender” clause in Treaty 6 was explained to the Cree leaders in 1876, and they understood that clause when they signed Treaty 6 (Judge’s reasons in Samson, paragraph 532).
11.
For the purposes of the test in R. v. Van der Peet (cited above), the date of contact between the Cree and the European settlers is 1670 (Judge’s reasons in Samson, paragraph 550).
12.
Before European contact, the Cree people occupied what is now Manitoba and Saskatchewan, but they are not indigenous to central Alberta and were not present there until sometime after European contact (Judge’s reasons in Samson, paragraph 576).
13.
The evidence does not establish pre-contact trade by the Cree in any particular item. Specifically, there is no evidence of any trade by the Cree in minerals, including salt, oil, gas, or anything analogous (Judge’s reasons in Samson, paragraph 588).
[42] The arguments of the parties in these appeals are similar to their closing arguments at trial. Ermineskin argues that the Judge erred in law in considering and determining the meaning of the “cede, release and surrender clause” in Treaty 6 in relation to the Ermineskin action, because that issue was not raised in the Ermineskin pleadings. Ermineskin emphasizes the importance of these issues, and also emphasizes the unfairness of an adverse finding that, for practical purposes, might be considered binding on Ermineskin although it was not an issue raised in the pleadings in its case.
[43] Samson argues that the Judge erred in law in the Samson case in stating the conclusions summarized above because, although they relate to issues raised in the pleadings in the Samson case, they are not relevant to any of the claims made by Samson in the Money Management Phase. Samson also argues that in any event the conclusions are incorrect because of a number of errors of law and in the assessment of the credibility and reliability of significant portions of the evidence.
[44] The Crown argues that although it is true that these conclusions are not relevant to any of the claims made by Ermineskin or Samson in the Money Management Phase, the Judge made no error in reaching or stating these conclusions because they may be relevant in future phases and because, as the Judge heard all of the evidence, he is in the best position to assess it. The interveners generally support the position of the Crown, and emphasize that the findings are potentially of critical importance to Alberta and Saskatchewan.
(e) Discussion
[45] We have considerable sympathy for the difficult position in which the Judge found himself at the close of the trial. Early in the trial he had acceded to Samson’s request to hear an enormous body of controversial evidence, the admissibility of which was the subject of lengthy and intense debate. According to the Samson memorandum of fact and law, the evidence relating to the General and Historical Phase (including the evidence relating to the meaning of the “cede, release and surrender” clause) took 174 hearing days out of a total of 370 hearing days (of which 19 days consisted of oral submissions at the conclusion of the trial).
[46] And yet, at the conclusion of the trial, the Judge was faced with arguments that were the opposite of the arguments made at the outset. Counsel for Samson had been responsible for the evidence being presented, but he argued that it should be disregarded because it was irrelevant. Counsel for the Crown maintained his argument that the evidence was irrelevant to the Money Management Phase but, despite his earlier objection to the evidence being admitted, urged the Judge nevertheless to assess the evidence and reach conclusions about it.
[47] Given those circumstances, and the amount of time and resources invested in the General and Historical Phase evidence, it is not difficult to understand why the Judge considered himself obliged to undertake the difficult task of assessing that evidence.
[48] Nevertheless, all parties agreed at the close of the trial, and still agree, that the conclusions summarized above are not relevant to any of the claims made in the Money Management Phase. We agree also. For that reason we express no opinion as to whether those conclusions are correct. As a matter of legal analysis, they are obiter dicta. It follows that the “off reserve surrender question” remains unresolved.
[49] It appears to be common ground that some or all of the evidence presented during the General and Historical Phase, including the evidence relating to the meaning of the “cede, release and surrender” clause of Treaty 6, may be relevant to one or more of the claims of the subsequent phases of the Samson and Ermineskin actions (although we did not obtain from counsel a clear picture of exactly how it might be relevant).
[50] However, none of the conclusions summarized above are binding on any judge who hears the subsequent phases. If, during the trial of the subsequent phases, a party wishes to refer to any of the evidence from the General and Historical Phase, the relevance of that evidence to those phases will have to be determined anew, and fresh consideration will have to be given to its credibility, reliability and weight.
V. The facts relevant to the Money Management Phase
(a) Preliminary point
[51] This section contains a factual summary. It includes references to statutes and legal principles, and also descriptions of the position taken by the Crown on certain legal issues, where those references are necessary to appreciate the factual context of these appeals. That is because the acts and omissions of the Crown of which Samson and Ermineskin complain were premised on the Crown’s belief that it was acting throughout in a manner that was mandated by law. In reviewing these facts, it must be borne in mind that Samson and Ermineskin take issue with many of the Crown’s legal conclusions. Nothing in this factual summary is intended to be read as an expression of the opinion of this Court on any of the disputed legal issues. Our analysis of the legal debate is set out later in these reasons.
(b) Treaty 6
[52] In 1889, the Samson Reserve was established pursuant to Treaty 6 for the Samson Nation. In 1896, the Pigeon Lake Reserve was established pursuant to Treaty 6 for the Four Bands (including, as stated above, the Samson Nation, the Ermineskin Nation, and two other bands).
[53] The portion of Treaty 6 that is most relevant to the claims in the Money Management Phase reads as follows (our emphasis):
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for farming lands, due respect being had to lands at present cultivated by the said Indians, and other reserves for the benefit of the said Indians, to be administered and dealt with for them by Her Majesty's Government of the Dominion of Canada, provided all such reserves shall not exceed in all one square mile for each family of five, or in that proportion for larger or smaller families, in manner following, that is to say : that the Chief Superintendent of Indian Affairs shall depute and send a suitable person to determine and set apart the reserves for each band, after consulting with the Indians thereof as to the locality which may be found to be most suitable for them;
Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any Band as She shall deem fit, and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty's Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained; and with a view to show the satisfaction of Her Majesty with the behavior and good conduct of her Indians, She hereby, through Her Commissioners, makes them a present of twelve dollars for each man, woman and child belonging to the Bands here represented, in extinguishment of all claims heretofore preferred.
(c) The Indian Act – provisions relating to reserves
[54] The Indian Act contains a number of provisions relating to reserves which, in relation to the Pigeon Lake Reserve and the Samson Reserve, must be understood to be subject to the provisions of Treaty 6. The following provisions of the Indian Act relating to reserves appear to be generally relevant to the claims in the Money Management Phase:
2. (1) In this Act,
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
[…]
“reserve” […] means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band […]
« réserve » Parcelle de terrain dont Sa Majesté est propriétaire et qu’elle a mise de côté à l’usage et au profit d’une bande […].
[…]
[…]
“surrendered lands” means a reserve or part of a reserve or any interest therein, the legal title to which remains vested in Her Majesty, that has been released or surrendered by the band for whose use and benefit it was set apart