Benoit v. Canada

Benoit v. Canada
Court (s) Database
Federal Court Decisions
Date
2002-03-07
Neutral citation
2002 FCT 243
File numbers
T-2288-92
Notes
Digest
Decision Content
Date: 20020307
Docket: T-2288-92
Neutral Citation: 2002 FCT 243
BETWEEN:
CHARLES JOHN GORDON BENOIT,
ATHABASCA TRIBAL CORPORATION,
THE LESSER SLAVE LAKE REGIONAL COUNCIL
and KEE TAS KEE NOW TRIBAL COUNCIL
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
- and -
THE ATTORNEY GENERAL OF THE PROVINCE OF ALBERTA
Pursuant to s.57 of the Federal Court Act
- and -
THE CANADIAN TAXPAYERS FEDERATION
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
CAMPBELL J.
[1] The honour of the Federal Crown has been placed in issue respecting its treaty making dealings at the end of the nineteenth century with the Aboriginal People of Northern British Columbia, Alberta, Saskatchewan, and the Southern Northwest Territories.
[2] At the time of entering into a treaty with Aboriginal People, a trust is assumed by the Crown in which it pledges its faith and honour to fulfill the terms and conditions negotiated. If a disagreement later arises, Courts are required to interpret the treaty in a manner which maintains the Honour of the Crown. In the present treaty dispute, the Aboriginal People ask that this be done. This decision meets that request.
Summary of Findings
[3] In the summer of 1899, in order to open the Peace-Athabasca country for settlement and commerce, the Government of Canada made promises to the Cree and Dene People which were to endure as long as the "sun shines and the water runs". In the course of securing agreement to what is Treaty 8, certain assurances were made by the Treaty Commissioners acting for Canada.
[4] After Treaty 8 was negotiated, the Commissioners reported to the Government that, during negotiations, an assurance was made by them to Aboriginal People that the Treaty did not "open the way to the imposition of any tax". The Plaintiffs read these words as a promise which constitutes a treaty right under s.35(1) of the Constitution Act, 1982, that Aboriginal People entitled to the benefits of the Treaty are not to have any tax imposed upon them at any time for any reason. As a result, the Plaintiffs formally question the constitutional applicability of Federal taxation provisions to beneficiaries of the Treaty.
[5] The Treaty Report respecting what was said and done at the time the Treaty was signed constitutes direct evidence that, indeed, a tax assurance was made. It is clear that during the negotiation of the Treaty, Aboriginal People expressed a concern about tax, the tax assurance was given in response to this concern, and the assurance was relied upon by Aboriginal People who took treaty. Thus, for the reasons which follow, I find that the tax assurance is a term of the Treaty.
[6] Because the words used in the Treaty Report to describe the tax assurance are ambiguous, a central issue in the trial of this action has been an attempt to find the reasonable meaning to be put to them at the time of negotiation, both in the minds of the Treaty Commissioners and the Aboriginal People to whom the assurance was made.
[7] Conflicting professional expert evidence has been lead to prove the reasonable interpretation. Aboriginal historical oral evidence has also been called to prove the understanding of the Aboriginal People to whom the tax assurance was made in the summer of 1899. On the analysis which follows, I find that a fundamental misunderstanding occurred between the Treaty Commissioners and the Aboriginal People concerning the intent and content of the tax assurance made and relied upon. It has been proved that there was no intention on the part of the Treaty Commissioners to grant the tax exemption claimed by the Plaintiffs, but the Aboriginal People believed a tax exemption Treaty promise was made. Thus, with respect to the tax assurance term of the Treaty, no intention common to both the Treaty Commissioners and the Aboriginal People can be found. Therefore, the primary question that arises in this action is: who takes responsibility for this misunderstanding?
[8] The central finding in this decision is that, in order for the Honour of the Crown to be maintained, the Defendant is required to recognize and fulfill the tax assurance as it was understood by the Aboriginal People. On the oral evidence, I find that the tax assurance was understood as the tax exemption claimed by the Plaintiffs, and, as such, I find it constitutes an enforceable treaty right.
[9] In my opinion, Canada has not extinguished this treaty right, and there is no justification proved for its infringement. Accordingly, as a matter of constitutional law, I find that Federal taxation provisions are of no force and effect with respect to beneficiaries of Treaty 8.
I. The Law of Treaty Interpretation
A. General principles
[10] The law with respect to treaty interpretation is well settled by the Supreme Court of Canada. An overview of the principles to be followed is provided by Chief Justice McLachlin in R. v.Marshall, [1999] 3 S.C.R. 456 at paragraph 78 as follows:
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.
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.
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.
4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger,supra, at para. 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.
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.
7. A technical or contractual interpretation of treaty wording should be avoided: Badger, supra; Horseman,supra; Nowegijick, supra.
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.
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.
Respecting the general approach to be followed in interpreting a particular treaty, the Chief Justice's statements at paragraphs 82 and 83 are important:
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 [...] "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.
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.
B. Principles important to the present case
1. Oral promises can be treaty terms
[11] The principle that treaty terms are not confined to the terms in the written treaty is definitively stated by Chief Justice Lamer in Badger at paragraph 52:
... when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), at pp. 338-42; Sioui, supra, at p. 1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Friesen, Grant me Wherewith to Make my Living (1985). The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted. [Emphasis added]
[12] The approach directed in Badger is further confirmed by Justice Cory in Sundown at paragraphs 24 and 25 as follows:
Treaties may appear to be no more than contracts. Yet they are far more. They are a solemn exchange of promises made by the Crown and various First Nations. They often formed the basis for peace and the expansion of European settlement. In many if not most treaty negotiations, members of the First Nations could not read or write English and relied completely on the oral promises made by the Canadian negotiators. There is a sound historical basis for interpreting treaties in the manner summarized in Badger. Anything else would amount to be a denial of fair dealing and justice between the parties.
Treaty rights, like aboriginal rights, are specific and may be exercised exclusively by the First Nation that signed the treaty. The interpretation of each treaty must take into account the First Nation signatory and the circumstances that surrounded the signing of the treaty. [Emphasis added]
2. Finding the common intention of the parties is required
[13] Justice Binnie in Marshall, at paragraph 14, explains that the objective of treaty interpretation is to determine the "common intention" of the parties:
"Generous" rules of interpretations should not be confused with a vague sense of after-the-fact largesse. The special rules are dictated by the special difficulties of ascertaining what in fact was agreed to. The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown's approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty (Sioui, supra, at p. 1049), the completeness of the written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement: Simon v. The Queen, [1985] 2 S.C.R. 387, and R. v. Sundown, [1991] 1 S.C.R. 393), and the interpretation of treaty terms once found to exist (Badger). The bottom line is the Court's obligation is to "choose from among the various possible interpretations of the commonintention [at the time the treaty was made] the one which best reconciles" the Mi'kmaq interests and those of the British Crown (Sioui, per Lamer J., at p. 1069). [Emphasis added]
[14] With respect to the need to take particular care in determining the common intention, it is important to note the comment of Justice Lamer (as he then was) in Sioui where at 1069 he says:
With respect, I feel that adopting such a position would go beyond what General Murray intended. Even a generous interpretation of the document ... must be realistic and reflect the intention of both parties, not just that of the Hurons. The Court must choose from among the various possible interpretations of the common intention the one which best reconciles the Hurons' interests and those of the conqueror. [Emphasis added]
3. Treaty interpretation must be based on cogent evidence
[15] Chief Justice McLachlin in Mitchell, [2001] 1 S.C.R. 911, at paragraph 51 states a concern that a trial judge must find cogent evidence of an Aboriginal right before recognizing it:
...claims must be proven on the basis of cogent evidence establishing their validity on the balance of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim. The contradiction between McKeown J.'s statement that little direct evidence supports a cross-river trading right and his conclusion that such a right exists suggests the application of a very relaxed standard of proof (or, perhaps more accurately, an unreasonably generous weighing of tenuous evidence). The Van der Peet approach, while mandating the equal and due treatment of evidence supporting aboriginal claims, does not bolster or enhance the cogency of this evidence. The relevant evidence in this case - a single knife, treaties that make no reference to pre-existing trade, and the mere fact of Mohawk involvement in the fur trade - can only support the conclusion reached by the trial judge if strained beyond the weight they can reasonably hold. Such a result is not contemplated by Van der Peet or s.35(1). [Emphasis added]
The point made is most clearly stated at paragraph 42:
This is not to suggest that an aboriginal claim can never be established on the basis of minimal evidence, direct or otherwise, provided it is sufficiently compelling and supports the conclusions reached. In this case, however, the "little direct evidence" relied upon by the trial judge is, at best, tenuous and scant, and is perhaps better characterized as an absence of even minimally cogent evidence.
4. In treaty interpretation, the Honour of the Crown must be maintained
[16] Justice Binnie in Marshall at paragraphs 49-56 goes to some length to explain the very important concept of maintaining the Honour of the Crown as a necessary element of treaty interpretation:
This appeal puts to the test the principle, emphasized by this Court on several occasions, that the honour of the Crown is always at stake in its dealings with aboriginal people. This is one of the principles of interpretation set forth in Badger, supra, by Cory J., at para. 41:
. . . the honour of the Crown is always at stake in its dealings with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned.
This principle that the Crown's honour is at stake when the Crown enters into treaties with first nations dates back at least to this Court's decision in 1895, Province of Ontario v. Dominion of Canada and Province of Quebec; In re Indian Claims (1895), 25 S.C.R. 434. In that decision, Gwynne J. (dissenting) stated, at pp. 511-12:
. . . what is contended for and must not be lost sight of, is that the British sovereigns, ever since the acquisition of Canada, have been pleased to adopt the rule or practice of entering into agreements with the Indian nations or tribes in their province of Canada, for the cession or surrender by them of what such sovereigns have been pleased to designate the Indian title, by instruments similar to these now under consideration to which they have been pleased to give the designation of "treaties" with the Indians in possession of and claiming title to the lands expressed to be surrendered by the instruments, and further that the terms and conditions expressed in those instruments as to be performed by or on behalf of the Crown, have always been regarded as involving a trust graciously assumed by the Crown to the fulfilment of which with the Indians the faith and honour of the Crown is pledged, and which trust has always been most faithfully fulfilled as a treaty obligation of the Crown. [Emphasis added.]
See also Ontario Mining Co. v. Seybold (1901), 32 S.C.R. 1, at p. 2.
In more recent times, as mentioned, the principle that the honour of the Crown is always at stake was asserted by the Ontario Court of Appeal in Taylor and Williams, supra. In that case, as here, the issue was to determine the actual terms of a treaty, whose terms were partly oral and partly written. MacKinnon A.C.J.O. said for the court, at pp. 235-36:
The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted, the honour of the Crown is always involved and no appearance of "sharp dealing" should be sanctioned. Mr. Justice Cartwright emphasized this in his dissenting reasons in R. v. George, [1966] S.C.R. 267 at p. 279, where he said:
We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such a manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty.
Further, if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible: R. v. White and Bob (1964), 50 D.L.R. (2d) 613 at p. 652 . . . (B.C.C.A.); affirmed . . . [1965] S.C.R. vi. . . .
This statement by MacKinnon A.C.J.O. (who had acted as counsel for the native person convicted of hunting offences in George, supra) has been adopted subsequently in numerous cases, including decisions of this Court in Badger, supra, para. 41, and Sparrow, supra, at pp. 1107-8.
I do not think an interpretation of events that turns a positive Mi'kmaq trade demand into a negative Mi'kmaq covenant is consistent with the honour and integrity of the Crown. Nor is it consistent to conclude that the Lieutenant Governor, seeking in good faith to address the trade demands of the Mi'kmaq, accepted the Mi'kmaq suggestion of a trading facility while denying any treaty protection to Mi'kmaq access to the things that were to be traded, even though these things were identified and priced in the treaty negotiations. This was not a commercial contract. The trade arrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown. In my view, with respect, the interpretation adopted by the courts below left the Mi'kmaq with an empty shell of a treaty promise.
II. Factual Background
A. The framing of this action
[17] The Plaintiffs' principal claim against Her Majesty the Queen in Right of Canada ("Canada") is set out in Paragraph 7 of the Plaintiffs' Amended Statement of Claim as follows:
The Treaty Commissioners promised the First Nations that, inter alia, Treaty No. 8 did not open the way to the imposition of any tax (the "subject promise"). The subject promise is a term of Treaty No. 8 and provided a corresponding right to the members of First Nations who are entitled to the benefits of Treaty No. 8, not to have any tax imposed upon them at any time for any reason (the "subject right")
[18] In addition, the Plaintiffs claim that the imposition of any tax by Canada is an unjustified breach of the promise claimed and ask for the Court to agree, and, thus, grant declaratory relief. The Plaintiffs argue that the promise is a treaty right protected by the Constitution. Section 35(1) of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.) reads as follows:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
35. (1) Les droits existants -- ancestraux ou issus de traités -- des peuples autochtones du Canada sont reconnus et confirmés.
[19] Further, by a formal Amended Notice of Constitutional Question dated February 8, 2000, the Plaintiffs reiterate their principal claim and assert that the beneficiaries of Treaty 8 have been, and continue to be, improperly taxed in violation of the promise, and, thus, question the applicability of the Income Tax Act, R.S.C. 1985 (5th Supp.) by serving notice of the following Constitutional Question pursuant to s.57 of the Federal Court Act:
The application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.
[20] As allowed by being served with notice of the Constitutional Question, the Attorney General of Alberta ("Alberta") has intervened to exercise its right to adduce evidence and make submissions. In addition, the Appeal Division of this Court has granted intervener status to the Canadian Taxpayers Federation to make argument.
B. Agreed facts
[21] In R. v. Badger at paragraph 39, the Supreme Court of Canada concisely summarized the treaty making which took place in the area of Western Canada known as the Peace-Athabaska District:
Treaty No. 8 is one of eleven numbered treaties concluded between the federal government and various Indian bands between 1871 and 1923. Their objective was to facilitate the settlement of the West. Treaty No. 8, made on June 21, 1899, involved the surrender of vast tracts of land in what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and part of the Northwest Territories. In exchange for the land, the Crown made a number of commitments.
[22] The sequence of events respecting the Treaty is not in issue. However, the context that prevailed, and its interpretation, certainly is. By the Agreed Statement of Facts (Exhibit 2), the parties agree as follows:
In 1870, the Hudson's Bay Company surrendered its rights to the North West to the Dominion of Canada. On June 27, 1898 the Privy Council by Order in Council appointed A.E. Forget ("Forget"), J.A.J. McKenna ("McKenna") and another to be appointed later, as commissioners to treat with the Indians north of Treaty Number six for the extinguishment of their title to the land (the Treaty 8 area). On October 4, 1898 the Privy Council by Order in Council advised that David Laird be appointed Indian Commissioner of Manitoba, Keewatin and the North West Territories.
On December 6, 1898, the Privy Council by Order in Council authorized notification to the province of British Columbia of the intention to negotiate a treaty.
On February 3, 1899, David Laird sent a circular letter into the Treaty 8 area by means of the Northwest Mounted Police and the Hudson's Bay Company.
On March 2, 1899, the Privy Council by Order in Council appointed J.H. Ross as the third Commissioner and replaced Mr. Forget with David Laird as Treaty Commissioner. P.C. 1703 is stamped "amended by PC 330.
On May 3, 1899, the Privy Council by Order in Council appointed Father A. Lacombe to accompany the Commissioners.
On May 6, 1899, the Privy Council by Order in Council approved that the claims of the Half-Breeds (Metis) be investigated and dealt with concurrently with the treaty negotiations.
On May 12, 1899, Clifford Sifton, the Superintendent General of Indian Affairs, sent a letter to the Commissioners handing them the Commission and providing the instructions of the Government.
On May 29, 1899, the Commission party left Edmonton, expecting to arrive at Lesser Slave Lake by June 8, 1899. Mr. Laird and Mr. McKenna and their party traveled to Athabasca Landing and then to Lesser Slave Lake, arriving there late on June 19, 1899, because of unfavorable traveling conditions. Mr. Ross and his party, traveled over the Assiniboine trail to Lesser Slave Lake arriving at Lesser Slave Lake on approximately June 5, 1899.
On June 20, 1899, the Commissioners met the Cree of Lesser Slave Lake. On that day the terms of treaty that the Government offered were conveyed in a meeting with the Cree of Lesser Slave Lake.
Treaty Number 8 was drafted and put in written form at Lesser Slave Lake following the meeting with the Cree on June 20, 1899.
On June 21, 1899, Treaty Number 8 was signed by the Commissioners and by representatives of the Cree of Lesser Slave Lake and adjacent territory authorised by their people to agree to the treaty.
The Commission Party then divided to offset the earlier delay in reaching Lesser Slave Lake by Mr. Laird and Mr. McKenna.
Mr. Laird traveled to Peace River Crossing and on July 1, 1899, the Cree of Peace River Crossing and adjacent territory adhered to Treaty Number 8 through their authorised representative.
Mr. Laird then traveled to Vermilion and on July 8, 1899 the Beaver and Cree of Vermilion and adjacent territory adhered to Treaty Number 8 through their authorised representatives.
Mr. Laird then traveled to Fond du Lac (Lake Athabasca) and on July 25 and 27, 1899 the Chipewyan, Fond du Lac and adjacent territory adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross and Mr. McKenna traveled from Lesser Slave Lake to Dunvegan and on July 6, 1899 the Beaver and Dunvegan adhered to Treaty Number 8 through their authorised representative.
Mr. Ross and Mr. McKenna then traveled to Little Red River Post, arriving on July 10, 1899.
Mr. Ross and Mr. McKenna then traveled to Fort Chipewyan and on July 13, 1899 the Chipewyan of Athabasca River, Birch River, Peace River, Slave River and Gull River and the Cree of Gull River and Deep Lake adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross and Mr. McKenna then traveled to Smiths' Landing and on July 17, 1899 the Chipewyan of Slave River and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross and Mr. McKenna then divided their party. Mr. McKenna traveled to Fort McMurray and on August 4, 1899 the Chipewyan and Cree of Fort McMurray and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross traveled to Wapiscow (also know as Wabasca) and on August 14, 1899, the Indian of Wapiscow and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
By way of a report dated September 22, 1899, the Treaty Commissioners, Messrs Laird, Ross and McKenna reported to the Honourable Clifford Sifton, Superintendent General of Indian Affairs.
Treaty 8 was ratified by the Privy Council on February 20, 1900.
On March 2, 1900, the Privy Council by Order in Council appointed J.A. Macrae to take further adhesions to Treaty Number 8.
On May 30, 1900, at Fort St. John, the Beaver of Upper Peace River and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
On June 8, 1900, at Lesser Slave Lake, the Cree of Sturgeon Lake and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
On June 23, 1900 at Vermilion, the Slave of Hay River and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
On July 25, 1900, at Fort Resolution, the Indians inhabiting the south shore of Great Slave Lake, between the mouth of Hay River and old Fort Reliance, near the mouth of Lockhearts river and adjacent territory adhered to Treaty Number 8 through their authorised representatives.
By way of a report dated December 11, 1900, Commissioner Macrae reported to The Honourable Superintendent General of Indian Affairs.
The Adhesions to Treaty 8 made in 1900 were ratified on January 3, 1901. (Exhibit 2)
C. Documentary Evidence
1. The Treaty Report
[23] The " Report of Commissioners for Treaty No. 8" (the "Treaty Report"), directed to the Honourable Clifford Sifton, Minister of the Interior and Superintendent General of Indian Affairs, is in fact dated September 22, 1899, and contains the following quoted passage, the meaning of which is the subject of strong debate in the present case:
As the discussions at the different points followed on much the same lines, we shall confine ourselves to a general statement of their import. There was a marked absence of the old Indian style of oratory. Only among the Wood Crees were any formal speeches made, and these were brief. The Beaver Indians are taciturn. The Chipewyans confined themselves to asking questions and making brief arguments. They appeared to be more adept at cross-examination than at speech-making, and the Chief at Fort Chipewyan displayed considerable keenness of intellect and much practical sense in pressing the claims of his band. They all wanted as liberal, if not more liberal terms, than were granted to the Indians of the plains. Some expected to be fed by the Government after the making of treaty, and all asked for assistance in seasons of distress and urged that the old and indigent who were no longer able to hunt and trap and were consequently often in distress should be cared for by the Government. They requested that medicines be furnished. At Vermilion, Chipewyan and Smith's Landing, and earnest appeal was made for the services of a medical man. There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges, and many were impressed with the notion that the treaty would lead to taxation and enforced military service. They seemed desirous of securing educational advantages for their children, but stipulated that in the matter of schools there should be no interference with their religious beliefs.
We pointed out that the Government could not undertake to maintain Indians in idleness; that the same means of earning a livelihood would continue after the treaty as existed before it, and that the Indians would be expected to make use of them. We told them that the Government was always ready to give relief in cases of actual destitution, and that in seasons of distress they would without any special stipulation in the treaty receive such assistance as it was usual to give in order to prevent starvation among Indians in any part of Canada; and we stated that the attention of the Government would be called to the need of some special provision being made for assisting the old and indigent who were unable to work and dependent on charity for the means of sustaining life. We promised that supplies of medicines would be put in the charge of persons selected by the Government at different points, and would be distributed free to those of the Indians who might require them. We explained that it would be practically impossible for the Government to arrange for regular medical attendance upon Indians so widely scattered over such an extensive territory. We assured them, however, that the Government would always be ready to avail itself of any opportunity of affording medical service just as it provided that the physician attached to the Commission should give free attendance to all Indians whom he might find in need of treatment as he passed through the country.
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.
We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and there was no fear of enforced military service. We showed them that, whether treaty was made or not, they were subject to the law, bound to obey it, and liable to punishment for any infringements of it. We pointed out that the law was designed for the protection of all, and must be respected by all the inhabitants of the country, irrespective of colour or origin; and that, in requiring them to live at peace with white men who came into the country, and not to molest them in person or in property, it only required them to do what white men were required to do as to the Indians.
As to education, the Indians were assured that there was no need of any special stipulation, as it was the policy of the Government to provide in every part of the country, as far as circumstances would permit, for the education of Indian children, and that the law, which was as strong as a treaty, provided for non-interference with the religion of the Indians in schools maintained or assisted by the Government.
2. Historical records
[24] Filed by consent, some 375 archival records compose the bulk of the historical evidence considered by the experts who testified (Exhibit 3, Documents from Archives, Volumes 1-3). The evidence of oral tradition is independently analysed in Section IV(b) below.
3. Contemporaneous accounts
[25] The expert witnesses suggest that consideration should be given to the contemporaneous accounts of witnesses to the events. It is generally agreed that the account of Mr. Charles Mair ("Mair"), the English secretary to the scrip commission that travelled with the Treaty Commission, is objective and reliable, as found in his book Through the Mackenzie Basic (Edmonton: University of Alberta Press, 1999 [originally published in 1908]) which is Exhibit 5 in the present case.
[26] With respect to accuracy, it is interesting to note that the dedication of the book reads
To
The Hon. David Laird, leader of The Treaty Expedition of 1899
This record is cordially inscribed by his old friend, the author.
Thus, I find it is reasonable to conclude that pains would have been taken by Mair to accurately record Commissioner Laird's words spoken at the time of negotiation.
[27] Excerpts from Mair's account have often been referred to in evidence to reconstruct what happened at the time the Treaty was first framed at Lesser Slave Lake between June 19th and 21st, 1899. However, for the purposes of making findings in this and Sections III and IV below, I believe it is important to consider Mair's account in some detail to gain a useful sense of the relationship that existed between the Commissioners and the Aboriginal People at that critical moment in time.
[28] Accordingly, the following is most of Chapter III: Treaty at Lesser Slave Lake starting at page 53:
On the 19th of June our little fleet landed at Willow Point. There was a rude jetty, or wharf, at this place, below the little trading village referred to, at which loaded boats discharged. Formerly they could ascend the sluggish and shallow channel connecting the expansion of the Heart River, called Buffalo Lake, with the head of Lesser Slave Lake, a distance of about three miles, and as far as the Hudson's Bay Company's post, around which another trading village had gathered. This temporary fall in the water level partly accounted for the growth of the village at Willow Point, where sufficient interests had risen to cause a jealousy between the two hamlets. Once upon a time Atawaywé Kamick was supreme. This is the name the Crees give to the Hudson's Bay Company, meaning literally "the Buying House." But now there were many stores, and "free trade" was rather in the ascendant. In the middle was safety, and therefore the Commissioners decided to pitch camp on a beautiful flat facing the south and fronting the channel, and midway between the two opposing points of trade. A feu de joie by the white residents of the region, of whom there were some seventy or eighty, welcomed the arrival of the boats at the wharf, and after a short stay here, simply to collect baggage, a start was made for the camping ground, where our numerous tents soon gave the place the appearance of a village of our own.
Tepees were to be seen in all directions from our camp--the lodges of the Indians and half-breeds. But no sooner was the treaty site apparent than a general concentration
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took place, and we were speedily surrounded by a bustling crowd, putting up trading tents and shacks, dancing booths, eating-places, etc., so that with the motley crowd, including a large number of women and children, and a swarms of dogs such as we never dreamt of, amounting in a short space by constant accessions to over a thousand, we were in the heart of life and movement and noise.
Mr. Ross, as already stated, had gone on by trail from Edmonton, partly in order to inspect it, and managed to reach the lake before us, which was fortunate, since Indians and half-breeds had collected in large numbers, and he was thus able to allay their irritation and to distribute rations pending the arrival of the other members of the Commission. During the previous winter, upon the circulation in the North of the news of the coming treaty, discussion was rife, and every cabin and tepee rang with argument. The wiseacre was not absent, of course, and agitators had been at work for some time endeavouring to jaundice the minds of the people--half-breeds, it was said, from Edmonton, who had been vitiated by contact with a low class of white men there--and, therefore, nothing was as yet positively known as to the temper and views of the Indians. But whatever evil effect these tamperings might have had upon them, it was felt that a plain statement of the proposals of the Government would speedily dissipate it, and that, when placed before them in Mr. Laird's customary kind and lucid manner, they would be accepted by both Indians and half-breeds as the best obtainable, and as conducing in all respects to their truest and most permanent interests.
On the 20th the eventful morning had come, and, for a wonder, the weather proved to be calm, clear and pleasant. The hour fixed upon for the beginning of negotiations was two p.m., up to which time much hand-shaking had, of course, to be undergone with the constant new arrivals of natives from the forest and lakes around. The Church of England and Roman Catholic clergy, the only missionary
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bodies in the country, met and dined with our party, after which all adjourned to the treaty ground, where the people had already assembled, and where all soon seated themselves on the grass in front of the treaty tent--a large marquee--the Indians being separated by a small space from the half-breeds, who ranged themselves behind them, all conducting themselves in the most sedate and orderly manner.
Mr. Laird and the Commissioners were seated along the open front of the tent, and one could not but be impressed by the scene, set as it was in a most beautiful environment of distant mountains, waters, forests and meadows, all sweet and primeval, and almost untouched by civilized man. The whites of the region had also turned out to witness the scene, which, though lacking the wild aspect of the old assemblages on the plains in the early 'seventies, had yet a character of its own of great interest, and of the most hopeful promise.
The crowd of Indians ranged before the marquee had lost all semblance of wildness of the true type. Wild men they were, in a sense, living as they did in the forest and on their great waters. But it was plain that these people had achieved, without any treaty at all, a stage of civilization distinctly in advance of many of our treaty Indians to the south after twenty-five years of education. Instead of paint and feathers, the scalp-lock, the breech-clout, and the buffalo-robe, there presented itself a body of respectable-looking men, as well dressed and evidently quite as independent in their feelings as any like number of average pioneers in the East. Indeed, I had seen there, in my youth, many a time, crowds of white settlers inferior to these in sedateness and self-possession. One was prepared, in this wild region of forest, to behold some savage types of men; indeed, I craved to renew the vanished scenes of old. But, alas ! one beheld, instead, men with well-washed, unpainted faces, and combed and common hair; men in suits of ordinary "store-clothes," and some even with "boiled" if not laundered shirts. One felt dis-
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appointed almost defrauded. It was not what was expected, what we believed we had a right to expect, after so much waggoning and tracking and drenching, and river turmoil and trouble. This woeful shortcoming from bygone days attended other aspects of the scene. Instead of fiery oratory and pipes of peace--the stone calumets of old--the vigorous arguments, the outbursts of passion, and close calls from threatened violence, here was a gathering of commonplace men smoking briar-roots, with treaty tobacco instead of "weed," and those chiefs replied to Mr. Laird's explanations and offers in a few brief and sensible statements, varied by vigorous appeals to the common sense and judgment, rather than the passions, of their people. It was a disappointing, yet, looked at aright, a gratifying spectacle. Here were men disciplined by good handling and native force out of barbarism--of which there was little to be seen--and plainly on the high road to comfort; men who led inoffensive and honest lives, yet who expressed their sense of freedom and self-support in their speech, and had in their courteous demeanour the unmistakable air and bearing of independence. If provoked by injustice, a very dangerous people this; but self-respecting, diligent and prosperous in their own primitive calling, and able to adopt agriculture, or any other pursuit, with a fair hope of success when the still distant hour for it should arrive.
The proceedings began with the customary distribution of tobacco, and by a reference to the competent interpreters who had been appointed by the Commission, men who were residents, and well known to the Indians themselves, and who possessed their confidence. The Indians had previously appointed as spokesman their Chief and head-man, Keenooshayoo and Moostoos, a worthy pair of brothers, who speedily exhibited their qualities of good sense and judgment, and, Keenooshayo in particular, a fine order of Indian eloquence, which was addressed almost entirely to his own people, and which is lost, I am sorry to say, in the account here set down.
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Mr. Laird then rose, and having unrolled his Commission, and that of his colleagues, from the Queen, proceeded with his proposals. He spoke as follows :
"Red Brothers! we have come here to-day, sent by the Great Mother to treat with you, and this is the paper she has given to us, and is her Commission to us signed with her Seal, to show we have authority to treat with you. The other Commissioners, who are associated with me, and who are sitting here, are Mr. McKenna and Mr. Ross and the Rev. Father Lacombe, who is with us to act as counsellor and adviser. I have to say, on behalf of the Queen and the Government of Canada, that we have come to make you an offer. We have made treaties in former years with all the Indians of the prairies, and from there to Lake Superior. As white people are coming into your country, we have thought it well to tell you what is required of you. The Queen wants all the whites, half-breeds and Indians to be at peace with one another, and to shake hands when they meet. The Queen's laws must be obeyed all over the country, both by the whites and the Indians. It is not alone that we wish to prevent Indians from molesting the whites, it is also to prevent the whites from molesting or doing harm to the Indians. The Queen's soldiers are just as much for the protection of the Indians as for the white man. The Commissioners made an appointment to meet you at a certain time, but on account of bad weather on river and lake, we are late, which we are sorry for, but are glad to meet so many of you here to-day.
"We understand stories have been told you, that if you made a treaty with us you would become servants and slaves; but we wish you to understand that such is not the case, but that you will be just as free after signing a treaty as you are now. The treaty is a free offer; take it or not, just as you please. If you refuse it there is no harm done; we will not be bad friends on that account. One thing Indians must understand, that if they do not make a treaty they must
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obey the laws of the land--that will be just the same whether you make a treaty or not; the laws must be obeyed. The Queen's Government wishes to give the Indians here the same terms as it has given all the Indians all over the country, from the prairies to Lake Superior. Indians in other places, who took treaty years ago, are now better off than they were before. They grow grain and raise cattle like the white people. Their children have learned to read and write.
"Now, I will give you an outline of the terms we offer you. If you agree to take treaty, every one this year gets a present of $12.00. A family of five, man, wife and three children, will thus get $60.00; a family of eight, $96.00; and after this year, and for every year afterwards, $5.00 for each person forever. To such chiefs as you may select, and that the Government approves of, we will give $25.00 each year, and the counsellors $15.00 each. The chiefs also get a silver medal and a flag, such as you see now at our tent, right now as soon as the treaty is signed. Next year, as soon as we know how many chiefs there are, and every three years thereafter, each chief will get a suit of clothes, and every counsellor a suit, only not quite so good as that of the chief. Then, as the white men are coming in and settling in the country, and as the Queen wishes the Indians to have lands of their own, we will give one square mile, or 640 acres, to each family of five; but there will be no compulsion to force Indians to go into a reserve. He who does not wish to go into a band can get 160 acres of land for himself, and the same for each member of his family. These reserves are holdings you can select when you please, subject to the approval of the Government, for you might select lands which interfere with the rights or lands of settlers. The Government must be sure that the land which you select is in the right place. Then, again, as some of you may want to sow grain or potatoes, the Government will give you ploughs or harrows, hoes, etc., to enable you to do
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so, and every spring will furnish you with provisions to enable you to work and put in your crop. Again, if you do not wish to grow grain, but want to raise cattle, the Government will give you bulls and cows, so that you may raise stock. If you do not wish to grow grain or raise cattle, the Government will furnish you with ammunition for your hunt, and with twine to catch fish. The Government will also provide schools to teach your children to read and write, and do other things like white men and their children. Schools will be established where there is a sufficient number of children. The Government will give the chiefs axes and tools to make houses to live in and be comfortable. Indians have been told that if they make a treaty they will not be allowed to hunt and fish as they do now. This is not true. Indians who take treaty will be just as free to hunt and fish all over as they now are.
"In return for this the Government expects that the Indians will not interfere with or molest any miner, traveller or settler. We expect you to be good friends with everyone, and shake hands with all you meet. If any w