Ermineskin v. Canada

Ermineskin v. Canada
Court (s) Database
Federal Court Decisions
Date
2005-11-30
Neutral citation
2005 FC 1623
File numbers
T-1254-92
Decision Content
Date: 20051130
Docket: T-1254-92
Citation: 2005 FC 1623
BETWEEN:
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nations suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS FOR JUDGMENT
TEITELBAUM, J.
I. Introduction
A. Overview
[1] On its face, this case appears to be about money – royalties that were generated by the commercial exploitation of the Bonnie Glen D3A oil and gas field underlying the Pigeon Lake Reserve and the interest that was, in turn, paid on these royalties. If only things were that simple. This case is also about a relationship that is often described as sui generis, that is, unique, unlike any other. The parties to this sui generis relationship are the Plains Cree of Treaty 6 – more particularly, the Ermineskin Indian Band and Nation – and the Crown, or the Canadian Government. In some instances, I will speak of the Plains Cree in a general and wider sense; at other times, I will focus on the Ermineskin Indian Band and Nation. I wish to stress the very important point that I am not attempting to describe or define the Crown’s relationship with all First Nations or aboriginal people; rather, I am concerned with their relationship vis-à-vis Ermineskin.
[2] The origins of this relationship are steeped in history. Treaty 6 was concluded in August and September 1876. The Dominion of Canada came into being on July 1, 1867, with Confederation. While the country was young at treaty time, European presence on the North American continent, and in the Canadian Northwest in particular, dated back centuries. Of course, it is too simplistic to speak of one history. There are many, and they are rich and varied. They include the origins, cultures, and lives of the tapestry of First Nations across the continent; the fur trade and economic history; the political histories of French, British, and American colonies; and of course, the development of Canada.
[3] While at times it felt like the Court had been sent back to school, the historical information and interpretations presented were always interesting and, on many occasions, quite fascinating. It would have been all too easy to wander down the many well-trod avenues, lesser byways, and faint trails of our history.
[4] A vast quantity of evidence and documents was produced at trial. For example, exhibit SEC-427 comprises 48 binders containing 1243 documents. Exhibit EC-429 marks a series of 32 binders housing 969 documents. Then there are several other smaller series of binders consisting of documents tendered by one party but objected to by the other or agreed to by all the parties. Clearly, much ink has been spilled and reams of paper devoured over the course of this action.
[5] I am sure that all counsel believed every bit of this material is important and merits mention. Counsel and their experts obviously went to a great deal of trouble and effort to assemble this information for the Court’s benefit. Much of it has been helpful. I am greatly appreciative and commend all counsel for their efforts in this regard. I do, however, offer this caveat: while I have sought to consider all relevant material, it is not possible to reproduce, or describe, in these Reasons all of the evidence adduced, nor is it necessary. I shall endeavour to present intelligently and succinctly what took 370 days over the course of nearly five years to present at trial. I have attempted to present, for the most part, an historical chronology, as opposed to drifting into any analytical abstractionism, which is best left to academics, not judges.
[6] On February 24, 1994, Jerome A.C.J. ordered that Federal Court Actions T-1254-92 (the “Ermineskin action”), T-2022-89 (the “Samson action”), and T-1386-90 (the “Enoch action”) be heard together. The Enoch action, however, was subsequently severed from the Ermineskin and Samson actions, by Order dated June 20, 1996. On October 1, 1999, MacKay J. ordered that the Ermineskin and Samson actions be heard together, commencing on May 1, 2000 in Calgary.
[7] On June 2, 2000, this Court set out the manner in which evidence was to be treated in these actions. The Federal Court of Appeal amended paragraphs 3 and 4 of that Order, on September 11, 2000, for purposes of clarity. The effect of the Order is that the actions were not conducted on the basis of common evidence. A system was established whereby a plaintiff could elect to adopt a witness’s evidence, before that witness testified, so that the entirety of the witness’s evidence was evidence in that plaintiff’s case. Thus, each plaintiff retained control and discretion over the manner in which it chose to litigate its case, subject, of course, to the Court’s ultimate control over the proceedings. While the two actions were heard together, each maintained its integrity as a separate, discrete action.
[8] The parties agreed to proceed with the trial in phases: General and Historical, Money Management, Oil and Gas, Other Oil and Gas Issue (plaintiffs call it the Tax Issue; the Crown refers to it as the Regulated Price Regime Issue), and Programs and Services (including Per Capita Distribution Issue, which I note seems to have morphed into its own phase at some point). By Order, dated June 12, 2000, the Programs and Services phase was severed from the Ermineskin action, but without prejudice to a future resolution of those issues. Soon after the trial of this action began, however, it became readily apparent that all of these phases could not be heard within the 120 trial days originally forecasted by the parties. Indeed, that forecast was completely divorced from reality and may better be described as an example of wishful thinking or perhaps boundless optimism. Accordingly, and on consent of the parties, I ordered, on September 17, 2002, that I would continue as trial judge for the first two phases only and that the other phases be severed off to be heard by another judge at some point in the future.
B. Objections Taken Under Reserve
[9] During the course of most, if not all, trials, one can expect to hear objections by counsel. Given the length and complexity of this particular trial, there were numerous objections. Some were decided at once, while others were taken under reserve, with the evidence objected to being allowed in for the sake of a complete record and any appellate action. I propose now to set out the disposition of those objections, where relevant and necessary for the purposes of these Reasons. Wherever possible, I have tried to pinpoint the objections by reference to transcript volumes and pages numbers. What follows is the disposition of the outstanding objections:
(i) Transcript volume 197, pp. 28008-28023: the Crown’s objection to SE-453 is denied.
(ii) Transcript volume 201, pp. 28407-28409: the plaintiffs’ objection is denied.
(iii) Transcript volume 202, pp. 28565-28576: the plaintiffs’ objection is denied. The question relates to facts and is not seeking to elicit a legal opinion.
(iv) Transcript volume 216, pp. 30946-30953: Ermineskin’s objection is allowed. C-490 is an exhibit in the Samson action only.
(v) Transcript volume 220, pp. 31542-31561: the Crown’s objection is denied. The questions relate to facts within the witness’s direct knowledge and experience.
(vi) Transcript volumes 223-227: the plaintiffs’ objections to the admissibility of the without prejudice privilege documents are denied. Such documents are allowed in solely to contradict facts or assertions made by the plaintiffs and not to show any weakness in their case. Evidence on band spending and investments is also not admissible.
(vii) Transcript volume 255, pp. 37375-37378: plaintiffs’ objection is allowed; the evidence relates to the Ermineskin Heritage Trust proposal and is irrelevant.
(viii) Transcript volume 285, pp. 67-86 and 125-133: plaintiffs’ objection is denied; C-688 and C-692 are admissible.
(ix) Transcript volume 286, pp. 36-83: plaintiffs’ objection is allowed. Evidence pertaining to the Ermineskin Heritage Trust proposal is irrelevant and therefore inadmissible.
(x) Transcript volume 334, pp. 158-162: the plaintiffs’ objection is denied and the question permitted.
(xi) Transcript volume 335, pp. 95-104: the plaintiffs’ objection is denied and questions on the target ratio are allowed.
(xii) Transcript volume 339, pp. 165-168: the Crown’s objection is allowed. Oil and gas valuations are not relevant for the first two phases of this action. Transcript volume 339, pp. 178-182: the Crown’s objection is allowed. The cut-off issue and the Crown’s subsequent settlement of that issue are of no relevance to the ongoing action.
(xiii) Transcript volume 344, pp. 47-63: The Crown’s objections to S-1017 and S-1018 are allowed. These reports are totally irrelevant to the first two phases.
(xiv) The plaintiffs object to the entirety of the reports (C-286 and C-287) and viva voce evidence of Professor Flanagan. The objections are denied.
(xv) The plaintiffs object to the reports (C-341 and C-342) and viva voce evidence of Dr. von Gernet. The objections are denied.
(xvi) The plaintiffs object to the reports (C-910, C-911, and C-912) and evidence of Mr. Ambachtsheer. Their objections raise serious issues. The Court will not consider those passages of Mr. Ambachtsheer’s reports that were shown to arise largely, if not entirely, from the pen of Crown counsel. The Court will permit as admissible Mr. Ambachtsheer’s viva voce evidence; the weight it will be assigned remains to be determined.
(xvii) The plaintiffs object to the report (C-897) and viva voce evidence of Mr. Bertram. The plaintiffs’ objections are denied.
(xviii) The plaintiffs object to the reports (C-998 and C-999) and viva voce evidence of Mr. Scalf. The objections are denied.
(xix) The plaintiffs object to the report (C-1008) and viva voce evidence of Mr. John Williams. The objections are denied.
[10] If I have failed to include any other objections taken under reserve, it is because it was not necessary to decide them for the resolution of the issues before the Court.
C. Issues
[11] In the first of their two volume closing arguments brief, Ermineskin sets out its view of the issues to be decided in both phases of the action which, for clarity’s sake, are reproduced in full below:
(a) is and was the Crown in breach of its duties as a trustee (or, alternatively, as a fiduciary with obligations identical to those of a trustee) by:
(i) using Ermineskin’s moneys for its own purposes rather than investing them;
(ii) failing to provide a proper return through prudent investment or otherwise;
(iii) failing to monitor the trust fund and its rate of return adequately or at all;
(iv) failing to obtain and to properly consider appropriate investment advice; and
(v) failing to maintain proper accounts, and to report properly to the beneficiary; and
(b) if the Crown is in breach of its duties as a trustee, what is the proper approach to assessing damages or equitable compensation for the breach; that is:
(i) what ought the Crown to have done in terms of investing the moneys, if it had invested them;
(ii) what is the difference between what would have been the value of the fund if properly invested, compared with its actual value at the time of judgment;
(iii) alternatively, if the Crown did not have a duty to actually invest the moneys, what formula or benchmark ought the Crown to have adopted in order to calculate the amount payable to Ermineskin, and by what amount would that calculation have exceeded the amount actually paid by the Crown (in Ermineskin’s submission, the answer to this question ought to be the same as the answer to (ii), above); and
(iv) in the alternative, what is the amount by which the Crown benefited in using Ermineskin’s moneys for its own purposes, rather than borrowing the moneys at arms length from third parties?
(Closing Argument of the Ermineskin Plaintiffs, Volume 1, pp. 3-4)
[12] Ermineskin also filed a Notice of Constitutional Question, dated November 2, 2004, in which it challenges, among other things, what it terms the “Indian Moneys Enactments” insofar as they have been interpreted to preclude investment of its moneys or to provide a rate of return commensurate with the return which a reasonable trustee ought to have obtained by investing the money prudently.
[13] The Crown, for its part, addressed both the Samson and Ermineskin actions in the same closing arguments briefs. As the Crown sees it, Ermineskin has put forth two broad theories of Crown liability. First, the Crown should have adopted a different method of investing Indian moneys or calculating interest, dating back to the mid-1970s. Second, the Crown placed itself in a conflict of interest by depositing Indian moneys to the Consolidated Revenue Fund (CRF); the Crown benefited by paying a lower rate of interest than it would have paid to borrow the same amount of money from arm’s-length third parties.
[14] The following constitutes the Crown’s view of the issues the Court is faced with in the money management phase of the trial (with those portions relevant to the Samson action edited out):
(a) In general terms, how is the relationship between the Crown and the Plaintiffs with respect to their moneys to be characterized? In particular, are there significant differences between this relationship and that between an ordinary private law trustee and beneficiary? The Crown’s position is that there are significant differences. The Crown is a trustee of the Indian moneys, but the only terms of that trust are those set out in the governing legislation. Any other obligations which the Crown has with respect to Indian moneys can only be characterized as fiduciary obligations or as implied statutory obligations – not private trust law obligations.
(b) Are the objectives set by [Ermineskin], the degree of long-range planning in which they engaged, and the pattern of their expenditures, significantly different than those typical of pension and endowment funds generally or the PSSA in particular? The Crown submits that they are.
(c) By virtue of the combination of the Indian Act and the Financial Administration Act (and since 1977 the Indian Oil and Gas Act as well):
(i) Must the Crown deposit Indian moneys in the CRF rather than investing them in the private markets? The Crown submits that it must.
(ii) Must the Crown accord the same rate of interest to all Indian Bands? The Crown submits that it must.
* * *
(d) Does the legislation governing the Crown’s handling of Indian moneys infringe some Treaty or aboriginal right of the Plaintiffs, or does it otherwise offend the Constitution in some way? More specifically:
* * *
(iii) Does the legislative scheme governing the treatment of Indian moneys infringe the right to equality before the law granted to individuals under Section 15 of the Charter? The Crown submits that it does not.
(iv) Is any infringement of constitutionally protected rights of the Plaintiffs a justifiable one in all of the circumstances? The Crown submits that it is.
In summary, the Crown submits that the legislation governing the Crown’s handling of Indian moneys is constitutional. It infringes no Treaty or aboriginal right of the Plaintiffs, and in the alternative is a justifiable infringement in the circumstances.
* * *
(f) Does the Parliament of Canada owe any fiduciary duty to the Plaintiffs with respect to the creation of legislation concerning Indian moneys? The Crown submits that it does not.
(g) Does the Governor-in-Council owe any fiduciary duty to the Plaintiffs in establishing the interest rate to be paid on Indian moneys pursuant to Section 61(2) of the Indian Act? The Crown submits that it does not.
(h) Is the establishment of the interest rate by the Governor-in-Council subject to one or more standards that may be implied in Section 61(2) of the Indian Act, such as an obligation to act in good faith, an obligation to take the Indian interest into account, an obligation to establish a rate not designed to benefit the Crown, or an obligation to establish a rate which is reasonable in all of the circumstances? The Crown does not concede that any such standards can be read into the legislation, but submits that if there are to be, the Crown has met all of them.
(i) In establishing the interest rate to be paid on Indian moneys pursuant to Section 61(2), is the Governor-in-Council entitled to take into account:
(i) the fact that the rate applies to all Indian Bands across the country?
(ii) the fact that Indian moneys are not committed to remain in the CRF for any particular period of time?
(iii) the fact that higher rates benefit Indian Bands but at the expense of increased borrowing costs for Canada?
The Crown submits that the Governor-in-Council is entitled to take into account all of these things.
(j) Is the Indian moneys interest rate formula a reasonable one given all of the circumstances surrounding it, and in particular that:
(i) It includes a risk premium by virtue of the use of a long bond rate;
(ii) At the same time, it involves no risk to [Ermineskin] of any decline in principal value;
(iii) The long bond rate is typically the highest rate paid by the Crown to finance its borrowing requirements;
(iv) The formula applies to all Indian Bands across the country;
(v) Indian moneys are not committed to remain in the CRF for any particular period of time, but instead may be withdrawn at any time upon request by [Ermineskin] and approval by the Minister;
(vi) The Crown has been prepared to work with [Ermineskin] to establish new mechanisms whereby [Ermineskin itself] can pursue higher rates of return by assuming greater risk with [its] moneys?
The Crown submits that it is a reasonable formula in all of the circumstances.
(k) At any point in time, was the prospect of declining interest rates so certain that it was unreasonable for the Crown not to have taken steps to lock-in current rates for the Indian moneys, bearing in mind inter alia the competing risks entailed in doing so, the fact that Indian moneys were not locked in for any particular time period in the CRF, and the aspirations of the Bands to in fact remove them in the near term. The Crown submits that it was not unreasonable in all of the circumstances.
(l) If the Crown had any authority to make investments with Indian moneys:
(i) Was the conservatism inherent in the Indian moneys formula nevertheless appropriate for the Plaintiffs given their level of long range planning, objectives, risk tolerance and spending patterns? The Crown submits that it was.
(ii) Was the Crown entitled to respect the spending decisions of [Ermineskin] in view of [its] demands for increased respect by the Crown for [its] decision-making and increased powers of self-government? The Crown submits that it was, and that it had no obligation to impose upon the Plaintiffs a restricted spending policy contrary to their wishes.
(m) If Indian moneys had not been deposited in the CRF, how would the Crown have met its incremental borrowing costs, and would it have inevitably involved more cost to the Crown? The Crown submits that no increased cost was inevitable because the Crown could have replaced the Indian moneys with the issuance of additional Treasury Bills at lower cost to the Crown. The Crown further submits that this is in fact what it would have done, and that its overall debt management costs would have been lower under any alternative scenario as well.
(Written Closing Argument of the Crown, Moneys Phase, Volume 1, tab 1, pp. 26-30)
[15] The starting point is Treaty 6. Ermineskin contends that Treaty 6 governs the relationship between the parties and that Treaty 6 is the source, or one of the sources, of the trust and fiduciary relationship between the parties.
[16] I am mindful of the fact that there is a phase that may be heard later, even though Ermineskin had it severed from this action, tentatively called Programs and Services. I will not attempt to define the exact parameters of that phase, but I do note that it will deal with, at least in part, treaty rights and entitlements. It is inescapable that Treaty 6 – the historical context and surrounding circumstances of its creation, as well as its content – has been put into issue in this first phase. Unlike the Samson action, however, Ermineskin have deliberately chosen not to litigate the meaning and interpretation to be given to the surrender clause of Treaty 6. Ermineskin is not, in this action at least, challenging the off-reserve surrender issue.
[17] Ermineskin asserts that there is a trust relationship between Ermineskin and the Crown. Ermineskin contends that the foundation for this trust and its essential terms were laid down in Treaty 6. According to the plaintiffs, the trust corpus comprises the capital received by the Crown, on behalf of Ermineskin, after Ermineskin surrendered its mineral rights in the Pigeon Lake Reserve in 1946.
[18] Ermineskin contends that that there have been serious breaches by the Crown of its trust obligations relating to the control and management by the Crown of Ermineskin’s moneys. The plaintiffs argue that the Crown ought to have conducted itself as a trustee according to standard industry practice – as a commercial trustee. In Ermineskin’s submission, the Crown ought to have invested its royalty moneys in a balanced, diversified portfolio; alternatively, the Crown ought to have paid the plaintiffs an equivalent return, tied to a benchmark or market index.
II. Phase One: General and Historical
A. Witnesses
I. Experts
1. For the plaintiffs
Professor Arthur Ray
[19] Professor Ray tendered a report titled “The Economic Background to Treaty 6" and a rebuttal report titled “Commentary on Report of Dr. Thomas Flanagan” (both filed as S-3). Professor Ray earned his Ph.D. in historical geography in 1971 from the University of Wisconsin for his thesis “Indian Exploitation of the Forest-Greenland Transition Zone in Western Canada, 1650-1860: A Geographical View of Two Centuries of Change.” He has held the rank of Professor and taught in the History Department at the University of British Columbia since 1981. Professor Ray has taught numerous courses in the Department of History, and has published extensively, including the book Indians in the Fur Trade. Professor Ray was qualified at trial as “an expert in the historical geography of the Aboriginal Peoples of Canada, with a particular expertise on the fur trade and the economic history of the Canadian Aboriginal Peoples, including the Plains Cree.”
Professor Douglas Sanders
[20] Professor Sanders, a lawyer and legal historian, tendered an expert report titled “Historical Thinking and Practice on the Relationship Between Indian Tribes and the Crown in Canada” (S-49). Professor Sanders received his Master of Laws from the University of California, Berkeley in 1963. Professor Sanders practised law in Vancouver from 1964 until 1969 and in Victoria from 1975 until 1977. He was an Associate Professor in the Faculty of Law at the University of Windsor from 1969 to 1972. He was director of the Native Law Centre at Carleton University from 1972 until 1974. Professor Sanders acted as legal counsel and research coordinator for the Union of British Columbia Indian Chiefs from 1974 to 1975. At the time of his testimony, in January 2001, he had been a Professor of Law at the University of British Columbia since 1977. His C.V. lists his principal teaching areas as Indigenous Peoples, federalism, international human rights, and sexuality. Professor Sanders was qualified at trial as “an expert legal historian with particular expertise in comparative policy and international developments in relation to indigenous peoples, and with particular attention to the evolution of government policy in Canada relating to aboriginal peoples, including the role of treaties and the development of government policy relating to Aboriginal self-government.”
Professor H.C. Wolfart
[21] Professor Wolfart, a linguist, tendered an expert report titled “Linguistic Aspects of Treaty Six” and a surrebuttal report titled “Aspects of Linguistics” (S-68). Professor Wolfart earned an M.A. in 1966, M. Phil. in 1967, and Ph.D. in 1969 from Yale University. Since 1969, Professor Wolfart has been at the University of Manitoba. From 1969 to 1972, he was an Assistant Professor; and from 1972 until 1977, he was an Associate Professor, both positions in linguistics / anthropology. From 1977 to 1984, he was a Professor in linguistics / anthropology, and he served as head of the Anthropology Department from 1977 to 1978. Professor Wolfart was a Professor of Linguistics from 1969 to 1987, and was head of the Linguistics Department from 1987 until 1996. Since 1993 until at least the time of his testimony in March and April 2001, he has held the rank of University Distinguished Professor in Linguistics. His C.V. (S‑66) demonstrates that he has published rather extensively in, among many other things, the area of Algonquian linguistics, and more particularly, the Cree language. Professor Wolfart was qualified at trial as “an expert in general and historical linguistics, the history of linguistics, with an emphasis on linguistic and philological methods, the linguistic analysis of Cree, and the analysis of texts and their structures.”
2. For the defendants
Dr. Thomas Flanagan
[22] Dr. Flanagan, a political scientist, tendered a report titled “Analysis of Plaintiffs’ Experts’ Reports in the Case of Chief Victor Buffalo v. Her Majesty the Queen et al.” (C‑286) and a rebuttal report to Professor Wolfart’s report (C-287). Dr. Flanagan earned his Ph.D. in political science from Duke University in 1970 for his dissertation “Robert Musil and the Second Reality.” He has been with the University of Calgary’s Department of Political Science since 1968 and until at least the time of his testimony in January and March 2002. He became a Professor in 1979 and served as department head from 1982 until 1987. He was academic policy advisor to the president from 1988 to 1990. Dr. Flanagan served as the director of policy, strategy, and communications, then director of research for the Reform Party of Canada from 1991 to 1992. At the time of his testimony in May 2002, he indicated he would be seeking a secondment from the University of Calgary so as to become the director of operations for the Office of the Leader of the Opposition in Ottawa. Dr. Flanagan has published extensively, including the book First Nations? Second Thoughts (C-277). Dr. Flanagan was qualified at trial as “a political scientist and historian whose expertise includes Western Canadian Political History generally and, in particular, the history of aboriginal and government relations, including treaties and the administration of government programs. He also has expertise in the use of historical research methodologies, including the analysis and interpretation of historical primary source documents.”
Dr. Alexander von Gernet
[23] Dr. von Gernet, an anthropologist, tendered the following reports: “Aboriginal Oral Documents and Treaty Six” (C-341); “An Assessment of Certain Evidence Relating to Plains Cree Practices” (C-323), which serves as a rebuttal to Ms. Holmes’s report; “Cree Territory at the Time of First European Contact” (C-322); “Comments on Winona Wheeler’s ‘Indigenous Oral Tradition Histories, An Academic Predicament’” (C-321); and “Treaty Six: An Assessment of the Written and Oral Documents” (C-320), which, I note, replaces and updates an earlier report (C-342) (I did not consider those portions of his reports that deal with witnesses not adopted by Ermineskin). Dr. von Gernet received a Ph.D. in anthropology from McGill University in 1989, where he specialized in ethnohistory and archaeology of Aboriginal peoples in North America. Since 1989, he has been at the Department of Anthropology, University of Toronto, Mississauga campus, where he is an Adjunct Professor. He has consulted for the Government of Canada on various occasions on aboriginal issues; he has also testified as an expert witness, including in Benoit v. Canada, [2002] F.C.J. No. 257. Dr. von Gernet was qualified at trial as “an anthropologist and ethnohistorian specializing in the use and analysis of archaeological evidence, written documentation and oral traditions to reconstruct the history and past cultures of Aboriginal peoples (including the Cree), as well as the history and past cultures of Aboriginal peoples and European newcomers throughout Canada.”
ii. Lay Witnesses
For the plaintiffs
John Ermineskin
[24] Mr. Ermineskin was born and raised on the Ermineskin reserve at Hobbema, Alberta. He served as Chief of the Ermineskin Indian Band and Nation for two terms, from 1990 to 1996. He also served as an elected councillor from 1988 to 1990 and 1998 to 2001.
Brian Wildcat
[25] Mr. Wildcat is a member of the Ermineskin Indian Band and Nation. Mr. Wildcat earned a Bachelor of Physical Education from the University of Calgary in 1987. He received his M. Ed. from the University of Alberta in 1995. At the time of his testimony, on December 11, 2001, Mr. Wildcat had spent the past two decades working as an administrator, primarily in the field of education, with Ermineskin. As well, since 1994, he has been the director of education for Miyo Wahakowtow Community Education Authority, which runs and operates the Ermineskin schools.
B. Legal Framework
[26] Counsel for Ermineskin submitted two volumes, containing 25 authorities back in May 2000, at the outset of the opening statements. During the course of the trial – and indeed after it closed in January 2005 – counsel for all parties have continued to supply the Court with jurisprudence they believe is helpful. I thank counsel for their Herculean efforts and excellent arguments. However, I think it is unnecessary to refer to many of the cases insofar as this particular section is concerned because the Supreme Court of Canada has, in recent jurisprudence, lessened the work of trial judges somewhat by summarizing and listing the relevant legal principles and tests for treaty interpretation, oral history evidence, and aboriginal rights. Thus, I need not review the long development of the case law, but instead I defer to the Supreme Court’s wisdom on the current state of the law in these areas.
Treaty Interpretation
[27] Treaty 6 is part of a series of treaties the government made with various aboriginal peoples often referred to as the numbered treaties, or western numbered treaties. A contentious issue in the trial of this action was what the Cree understood they were giving up when they took treaty. The meaning and interpretation of Treaty 6 have been put in issue in this trial and I intend to make certain, specific findings, based on the evidence tendered in Court.
[28] In R. v. Marshall, [1999] 3 S.C.R. 456, McLachlin J., as she then was, set out the principles governing treaty interpretation. While her opinion was in dissent, the overview she provided was based on a survey of past jurisprudence. I note also that the list is not exhaustive. The following are the principles as set out in paragraph 78 of R. v. Marshall:
1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation: R. v. Sundown, [1999] 1 S.C.R. 393, at para. 24; R. v. Badger, [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 404. See also: J. (Sákéj) Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman, “Defining Parameters: Aboriginal Rights. Treaty Rights, and the Sparrow Justificatory Test” (1997), 36 Alta. L. Rev. 149.
1. Les traités conclus avec les Autochtones constituent un type d’accord unique, qui demandent l’application de principes d’interprétation spéciaux: R. c. Sundown, [1999] 1 R.C.S. 393, au par. 24; R. c. Badger, [1996] 1 R.C.S. 771, au par. 78; R c. Sioui, [1990] 1 R.C.S. 1025, à la p. 1043; Simon c. La Reine, [1985] 2 R.C.S. 387, à la p. 404. Voir également: J. (Sákéj) Youngblood Henderson, «Interpreting Sui Generis Treaties» (1997), 36 alta. L. Rev. 46; L. I. Rotman, « Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test» (1997), 36 Alta.L.. Rev. 149.
2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories: Simon, supra, at p. 402; Sioui, supra, at p. 1035; Badger, supra, at para. 52.
2. Les traités doivent recevoir une interprétation libérale, et toute ambiguité doit profiter aux signataires autochtones: Simon, précité, à la p. 402; Sioui, précité, à la p. 1035; Badger, précité, au par. 52.
3. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69.
3. L’interprétation des traités a pour objet de choisir, parmi les interprétations possibles de l’intention commune, celle qui concilie le mieux les intérêts des deux parties à l’époque de la signature: Sioui, précité, aux pp. 1068 et 1069.
4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, supra, at para. 41.
4. Dans la recherche de l’intention commune des parties, l’intégrité et l’honneur de la Couronne sont présumées: Badger, précité, au par. 41.
5. In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901, at p. 907.
5. Dans l’appréciation de la compréhension et de l’intention respectives des signataires, le tribunal doit être attentif aux différences particulières d’ordre culturel et linguistique qui existaient entre les parties: Badger, précité, aux par. 52 à 54; R. c. Horseman, [1990]1 R.C.S. 901, à la p. 907.
6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, at paras. 53 et seq.; Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36.
6. IL faut donner au texte du traité le sens que lui auraient naturellement donné les parties à l’époque: Badger, précité, aux par. 53 et suiv.; Nowegijick c. La Reine, [1983] 1 R.C.S. 29, à la p. 36.
7. A technical or contractual interpretation of treaty wording should be avoided: Badger, supra; Horseman, supra; Nowegijick, supra.
7. Il faut éviter de donner aux traités une interprétation formaliste ou inspirée du droit contractuel: Badger, précité, Horseman, précité, et Nowegijick, précité.
8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic: Badger, supra, at para. 76; Sioui, supra, at p. 1069; Horseman, supra, at p. 908
8. Tout en donnant une interprétation généreuse du texte du traité, les tribunaux ne peuvent en modifier les conditions en allant au-delà de ce qui est réaliste ou de ce que « le language utilisé [...] permet»: Badger, précité, au par. 76; Sioui, précité, à la p. 1069; Horseman, précité, à la p. 908.
9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402.
9. Les droits issus de traités des peuples autochtones ne doivent pas être interprétés de façon statique ou rigide. Ils ne sont pas figés à la date de la signature. Les tribunaux doivent les interpréter de manière à permettre leur exercice dans le monde moderne. Il faut pour cela déterminer quelles sont les pratiques modernes qui sont raisonnablement accessoires à l’exercice du droit fondamental issu de traité dans son contexte moderne: Sundown, précité, au par. 32; Simon, précité, à la p. 402.
[29] Chief Justice McLachlin discussed the matter of extrinsic evidence of the historical and cultural context of a particular treaty and concluded that courts have allowed such evidence, even absent any ambiguity (see paragraph 81). The Chief Justice set out a two step approach to treaty interpretation:
The fact that both the words of the treaty and its historic and cultural context must be considered suggests that it may be useful to approach the interpretation of a treaty in two steps. First, the words of the treaty clause at issue should be examined to determine their facial meaning, in so far as this can be ascertained, noting any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possible interpretations of the clause. As noted in Badger, supra, at para. 76, “the scope of treaty rights will be determined by their wording”. The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical context inquiry, taking into account the need to avoid an unduly restrictive interpretation and the need to give effect to the principles of interpretation.
Le fait qu’il faille examiner tant le texte du traité que son contexte historique et culturel tend à indiquer qu’il peut être utile d’interpréter un traité en deux étapes. Dans un premier temps, il convient d’examiner le texte de la clause litigieuse pour en déterminer le sens apparent, dans la mesure où il peut être dégagé, en soulignant toute ambiguité et tout malentendu manifestes pouvant résulter de différences linguistiques et culturelles. Cet examen conduira à une ou à plusieurs interprétations possibles de la clause. Comme il a été souligné dans Badger, précité, au par. 76, «la portée des droits issus de traités est fonction de leur libellé». À cette étape, l’objectif est d’élaborer, pour l’analyse du contexte historique, un cadre préliminaire – mais pas nécessairement définitif – qui tienne compte d’un double impératif, celui d’éviter une interprétation trop restrictive et celui de donner effet aux principes d’interprétation.
At the second step, the meaning or different meanings which have arisen from the wording of the treaty right must be considered against the treaty’s historical and cultural backdrop. A consideration of the historical background may suggest latent ambiguities or alternative interpretations not detected at first reading. Faced with a possible range of interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties’ common intention. This determination requires choosing “from among the various possible interpretations of the common intention the one which best reconciles” the parties’ interests: Sioui, supra, at p. 1069. Finally, if the court identifies a particular right which was intended to pass from generation to generation, the historical context may assist the court in determining the modern counterpart of that right: Simon, supra, at pp. 402-3; Sundown, supra, at paras. 30 and 33.
Dans un deuxième temps, le ou les sens dégagés du texte du droit issu de traité doivent être examinés su