Powder v. Canada

Powder v. Canada
Court (s) Database
Federal Court Decisions
Date
2024-11-28
Neutral citation
2024 FC 1912
File numbers
T-1601-12, T-165-01, T-436-15, T-809-17
Decision Content
Date:
20241128
Dockets: T-436-15
T-1601-12
T-809-17
T-165-01
Citation: 2024 FC 1912
Ottawa, Ontario ,
November 28, 2024
PRESENT: Madam Justice McDonald
Docket: T-436-15
BETWEEN:
JEAN POWDER, ELMER CREE, FLORA POWDER, ALLAN AND FLOYD POWDER AND THEIR CHILDREN AND THE CHILDREN OF LILA POWDER LAFONTAINE, ALL OF THE LIVING MEMBERS OF THE PAUL CREE BAND (ALSO CALLED THE CLEARWATER RIVER BAND #175)
Plaintiffs
and
HIS MAJESTY THE KING IN RIGHT OF CANADA AND HIS MAJESTY THE KING IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT AND FORT MCMURRAY FIRST NATION
Defendants
Docket: T-1601-12
AND BETWEEN:
JOHN MALCOLM, CAROLINE MALCOLM, CELENA MALCOLM, LORRAINE MALCOLM, JANE MALCOLM, HARRY MALCOLM AND WALTER MALCOLM
Plaintiffs
and
HIS MAJESTY THE KING IN RIGHT OF CANADA AND HIS MAJESTY THE KING IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendants
REPRESENTATIVE PROCEEDING
Docket: T-809-17
AND BETWEEN:
CHIEF BERNADETTE DUMAIS, AUGUST CREE AND DAVID CREE ON BEHALF OF ALL LIVING MEMBERS OF THE PAUL CREE BAND NO. 175 (ALSO KNOWN AS THE CLEARWATER BAND)
Plaintiffs
and
HIS MAJESTY THE KING AND FORT MCMURRAY #468 FIRST NATION
Defendants
Docket: T-165-01
AND BETWEEN:
JOHN MALCOLM, “ACTING ON HIS OWN BEHALF AND ON BEHALF OF HIS BROTHERS AND SISTERS, CHILDREN OF WALTER JEAN MALCOLM, SON OF CAROLINE THOMPSON”
Plaintiffs
and
HIS MAJESTY THE KING IN RIGHT OF CANADA AND HIS MAJESTY THE KING IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendants
JUDGMENT AND REASONS
Index
JUDGMENT AND REASONS 4
I. Overview 6
II. Procedural background 10
III. Motions before the Court 10
IV. Historical context 11
A. Jones’ reports 12
B. Treaty 8 14
C. Treaty 8 claims in these actions 16
V. Issues 17
VI. Analysis 18
A. Preliminary matters 18
(1) The evidence 18
(a) Evidence adduced by Canada 19
(b) Canada’s expert reports 23
(c) Objections to Malcolm and Powder evidence 25
(d) Objections to Dumais evidence 27
(i) Carol Hodgson reports 27
(ii) Objections to Bernadette Dumais Affidavit 31
(iii) Traditional Land Use study 31
(iv) August Cree Affidavit 33
(v) Oral history evidence 34
(2) Are the claims barred by a limitation period? 34
(3) Does the Federal Court have jurisdiction? 42
B. Motions for Standing 43
(1) Overview 43
(2) Powder and Malcolm Plaintiffs Standing Motion 44
(a) Is the issue of standing res judicata? 45
(b) Do the Powder and Malcolm Plaintiffs satisfy Rule 114? 47
(c) Do the Plaintiffs have public interest standing? 51
(3) Dumais Plaintiffs Standing Motion 52
(a) Rule 114–application of the test for Representative Proceedings 55
(i) Criteria 1 & 2 - is there a collective with common interests? 55
(ii) Criteria 3 & 4 - are the representative plaintiffs authorized and can they fairly and adequately represent the collective? 57
(iii) Criteria 5 - is this the just, most efficient and least costly manner of proceeding? 57
(b) Do the Plaintiffs have public interest standing? 58
(4) Conclusion on Standing Motions 59
C. Summary Judgment Motions 60
(1) General principles–Summary Judgment Motions 61
(2) Canada’s Motion for Summary Judgment in T-165-01 (Malcolm registration claim) 63
(3) Canada and FMFN Motions for Summary Judgment in T-1601-12 and T-436-15 66
(4) Canada and FMFN Motion for Summary Judgment in T-809-17 (Dumais claim) 73
(5) Malcolm and Powder Plaintiffs Motions for Summary Judgment 79
(6) Conclusion on Summary Judgment Motions 86
VII. Costs 87
JUDGMENT IN T-436-15, T-1601-12, T-809-17, and T-165-01 88
SOLICITORS OF RECORD 90
I. Overview [1] These are the Reasons on a series of Motions for Summary Judgment and Motions for Standing brought by the parties in these four longstanding actions. The Motions were heard together because a common issue among the Plaintiffs was whether (1) there is evidence to support their claim that there once existed a Paul Cree Band or Clearwater Band in the area that is now Fort McMurray First Nation (FMFN); and (2), if so, whether that collective has rights separate and distinct from FMFN under Treaty 8. Treaty 8 was entered in 1899 by Adam Boucher as Chipewyan Headman and Seopotakinum Cree as Cree Headman for “the Chipewyan and Cree Indians of Fort McMurray and the country thereabouts”.
[2] For clarity, throughout these Reasons, the reference to Paul Cree Band or Clearwater Band is a reference to the same Band. The parties use these descriptions interchangeably and I will do the same unless the context requires otherwise.
[3] Below is a brief description of the four actions. For ease of reference, I will refer to the actions by either the Court file number or the description of the claim advanced in the action as noted in the brackets below:
T-165-01 - John Malcolm and his siblings seeks registration under the Indian Act, RSC, 1985, c I-5 (Malcolm registration action)
T-1601-12 - John Malcolm and his siblings claim land in severalty and a trapline as Treaty 8 entitlements on behalf of Harry Malcolm (Malcolm property action)
T-436-15 - the representative Powder Plaintiffs seek Treaty 8 entitlements to Clearwater Indian Reserve No. 175 [IR 175], damages, and loss of Treaty benefits (Powder action)
T-890-17 - the representative Dumais Plaintiffs seek a declaration that the Paul Cree Band No. 175 or Clearwater Band is a “band” within the meaning of Treaty 8, and they seek “band” recognition under the Indian Act (Dumais action)
[4] Canada is a named Defendant in each of these actions, and while FMFN is not a named Defendant in all actions, their interests are directly engaged in light of the relief claimed. Generally, Canada’s position is that FMFN is its Treaty 8 partner, and FMFN is therefore the only party in these actions to whom it owes any obligations under Treaty 8. FMFN has four reserves, three of which are referred to as Gregoire Lake (176, 176A and 176B) and the fourth reserve is IR 175, referred to as the Clearwater reserve.
[5] In the Powder action (T-436-15) and the Dumais action (T-890-17), the determinative threshold issue is whether the evidence establishes that Paul Cree Band is a separate and distinct band from FMFN. The issues of Paul Cree Band membership, the return of IR 175 from FMFN, and Treaty 8 benefits are all secondary to the primary determinative question: does the evidence support the existence of a separate and distinct Paul Cree Band at the time of Treaty 8?
[6] There is no reference to a Paul Cree Band as an independent signatory to Treaty 8. Rather, the collective signatory to Treaty 8 is “the Chipewyan and Cree Indians of Fort McMurray and the country thereabouts”.
[7] The Plaintiffs rely upon references to Paul Cree and Clearwater Band in historical record. Those records relate to the land surveying work undertaken pursuant to the land section and surveying provisions of Treaty 8. A 1921 Order in Council (OIC)—a key document relied upon by the Plaintiffs—sets aside IR 175 “for the Department of Indian Affairs for the purposes and uses of the Indians of the Clearwater Reserve No 175” and the preamble to this OIC refers to the “Paul Cree’s Band of Indians”. For the reasons outlined below, I do not read this as conferring Treaty 8 band status on a Paul Cree Band of Indians. Rather, I interpret the 1921 OIC as setting aside land for “the Chipewyan and Cree Indians of Fort McMurray and the country thereabouts” who entered Treaty 8.
[8] The records from 1951 when the Chipewyan and Cree Indians of Fort McMurray who entered Treaty 8 were divided into Fort McMurray First Nation and Fort McKay First Nation makes no reference to a Paul Cree Band or Clearwater Band.
[9] On the competing Motions for standing filed by the proposed representative Plaintiffs in T-436-15 (Powder) and T-890-17 (Dumais), I have determined that neither the Powder Plaintiffs nor the Dumais Plaintiffs meet the test for standing. Although they seek standing under Rule 114 of the Federal Courts Rules, SOR/98-106 [Rules], to advance a claim on behalf of a collective who seeks recognition as Paul Cree Band or Clearwater Band, I find that they are not authorized to represent a collective with a common interest. In essence, both groups are advancing individual or family claims. I have also concluded that in actions T-1601-12 and T-165-01 John Malcolm does not have standing to represent his siblings.
[10] On the Motions for Summary Judgment, I have determined that the evidence does not support a finding that there was a distinct band known as Paul Cree Band separate from “the Chipewyan and Cree Indians of Fort McMurray and the country thereabouts” who entered Treaty 8. Further, I agree with Canada and FMFN that the actions cannot succeed as they have been brought long after any applicable limitation period. In addition, some of the claims advanced, such as registration under the Indian Act, are not within the jurisdiction of the Federal Court.
[11] For the reasons detailed below, I am granting the Summary Judgment Motions of Canada in all four actions, and I am granting the Summary Judgment Motions of FMFN in T-436-15, T‑890-17 and T-1601-12. These actions are dismissed. Consequently, I am dismissing the Malcolm and Powder Plaintiffs’ Motions for Summary Judgment in T-436-15, T-1601-12, T‑165-01.
[12] In summary, I am granting the Defendants’ Motions for Summary Judgment and dismissing these actions in their entirety as I have concluded that dismissal of the actions on a summary basis is the proportionate, most expeditious, and less expensive means to achieve a just result.
II. Procedural background [13] By Order dated March 30, 2022, the Motions in T-436-15, T-1601-12, and T‑809-17 were ordered to be heard together because of the common issues, and the Plaintiffs were granted intervenor status in the other claims.
[14] On November 23, 2022, a Confidentiality Order provided that certain materials were to be treated as confidential; however, it is not necessary for me to address any confidential material in these Reasons.
[15] On April 20, 2023, a Bifurcation Order was issued providing that the compensation claims of the Powder and Malcolm Plaintiffs in T-436-15, T-1601-12 and T-165-01 would be determined separately and, if necessary, after the final determination of the Summary Judgment Motions and Standing Motions. Accordingly, these Reasons will not address any of the compensation claims or the evidence filed in support of these claims.
III. Motions before the Court [16] On the Summary Judgment Motions, the parties seek as follows:
In T-436-15, T-1601-12, T-165-01 - the Malcolm and Powder Plaintiffs seek summary judgment against Canada and FMFN.
In T-436-15, T-1601-12, T-809-17, T-165-01 - Canada seeks summary judgment dismissing all the actions.
In T-436-15, T-890-17 and T-1601-12 - FMFN seeks summary judgment dismissing the actions.
[17] The Dumais Plaintiffs (T-809-17) are the only group who do not seek summary judgment. However, they argue that the Motions for Summary Judgment of Canada and FMFN should be dismissed as they claim there are genuine issues for trial.
[18] On the Standing Motions, both the Powder Plaintiffs in T-436-15 (Powder) and the Dumais Plaintiffs in T-890-17 (Dumais) have filed representative actions and on their Motions, they seek standing to represent the interests of the asserted Paul Cree Band.
[19] Finally, in actions T-1601-12 and T-165-01 John Malcolm seeks standing to represent his siblings.
IV. Historical context [20] Before I address the issues arising on these Motions, it is helpful to provide some historical context as the claims relate to events going back over 100 years.
[21] For the historical context, I rely largely on the reports prepared by Gwynneth C. D. Jones, an expert retained by Canada. Ms. Jones is an Historian who has been qualified as an expert on several occasions before the Federal Court. Her reports were not challenged by the other parties. Ms. Jones reports provide a review of the relevant history and development in Fort McMurray. The only competing expert report is that of Carol Hodgson, an expert retained by the Dumais Plaintiffs who provides a different version of the history. The Hodgson reports focus on demonstrating the existence of the Paul Cree Band. Canada and FMFN raised objections to the Hodgson reports which will be addressed later in these reasons; however, for the purpose of some historical background, I prefer Ms. Jones’ reports and, in particular,the executive summary in her revised report of October 20, 2022.
A. Jones’ reports [22] Ms. Jones notes that the Treaty 8 commissioners were “at liberty to undertake to set [Indian Reserves] aside” “or to offer a “severalty” option if that was preferred”. This severalty option allowed an individual family to take land for themselves. This would be instead of sharing in the Indian Reserve of a larger band. This option was included based on advice from Treaty commissioners that the potential treaty 8 adherents in this area:
act rather as individuals than as a nation, and that any tribal organization which may exist is very slight. They live by hunting, and by individual effort, very much as the halfbreeds in that country live. They are averse to living on reserves, and as that country is not one that will ever be settled extensively for agricultural purposes it is questionable whether it would be good policy to even suggest grouping them in the future....
[23] The Treaty commissioners also note:
The conditions in [future Treaty] country are altogether different from those which prevailed here on the plains when the treaty [the earlier number Treaties] were made. They are very small bands or families and can make a good livelihood by hunting and fishing for many years to come.
[24] According to Ms. Jones, the records indicate that the “Metis” were to be compensated for their rights in the territory at the same time the treaty was signed with “Indians”. Each Metis resident was to receive a certificate or scrip, for 240 acres of Dominion homestead lands or $240 worth of Dominion homestead lands which were priced at one dollar per acre as well as a patent for any lands of which they were in possession of 260 acres.
[25] On June 21, 1899 Treaty 8 was signed with representatives from Lesser Slave Lake.
[26] On August 4, 1899 Adam Boucher as Chipewyan Headman and Seopotakinum Cree as Cree Headman adhered to Treaty 8 at Fort McMurray. The records note that the two headmen and 130 Indigenous people were paid as “Indians” on the paylist for the Cree Chipewyan Band at Fort McMurray. The Treaty commissioners paid out a gratuity of $12 each (more for chiefs and headman) creating paylists for each stop on their itinerary.
[27] Ms. Jones writes at page 11 of her October 22, 2022 report:
c) It appears that the information provided to the Treaty Commissioners, including that sent by the North West Mounted Police, the HBC [the Hudson’s Bay Company] and the Geological Survey, identified Indigenous people only by the HBC trading post that claimed them as trading partners, or by places where they could be met by Europeans, without attempting any further identification of constant family groups or other relationships.
d) Taken together, the records of the Hudson’s Bay Company prior to and immediately after the treaty described two major categories in the clients of the post: Cree and Chipewyan speaking people. These two collectivities were not completely airtight, but clearly frequented different areas within reach of the post. Within these two groups, members of different nuclear family sometimes camped or travelled together, but were recorded more frequently as camping and travelling separately. Prior to the Treaty, post employees did not describe hierarchical distinctions among these families or recognize individuals as having authority, leadership or representation over their family heads. The information about the Cree and Chipewyan peoples recorded by post employees in the Fort McMurray and Fort McKay post journals seems to accord with the information given to the Treaty Commissioners before and during their Treaty travels, to the effect that “the Indians there act rather as individuals than as a nation, and that any tribal organization which may exist is very slight.” If the paylists are understood simply as documents recording the names of people who took Treaty benefits at each trading post rather than extensively-researched anthropological documents, it is plausible that a paylist could contain several smaller groups.
B. Treaty 8 [28] Relevant here are the following Treaty 8 provisions regarding chiefs and headmen and the setting aside reserves or lands in severalty:
AND WHEREAS, the Indians of the said tract, duly convened in council at the respective points named hereunder, and being requested by Her Majesty’s Commissioners to name certain Chiefs and Headmen who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon, and to become responsible to Her Majesty for the faithful performance by their respective bands of such obligations as shall be assumed by them, the said Indians have therefore acknowledged for that purpose the several Chiefs and Headmen who have subscribed hereto.
…
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves, the same not to exceed in all one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families; and for such families or individual Indians as may prefer to live apart from band reserves, Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each Indian, the land to be conveyed with a proviso as to non-alienation without the consent of the Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to be made in the manner following, namely, the Superintendent General of Indian Affairs shall depute and send a suitable person to determine and set apart such reserves and lands, after consulting with the Indians concerned as to the locality which may be found suitable and open for selection.
Et considérant que les indiens de la dite étendue du pays se sont dûment réunis en conseil aux différents endroits ci-après nommés, et qu'étant requis par les Commissaires de Sa Majesté de présenter leurs chefs, sous-chefs ou conseillers, qui seraient autorisés en leur nom, à conduire ces négotiations et à signer un traité d'après elles, et à devenir responsables envers Sa Majesté du fidèle accomplissement de la part de ces bandes des obligations qu'elles contracteront, les dits indiens ont en conséquence nommé à cette fin les divers chefs et conseillers qui y ont apposé leur nom;
…
Et Sa Majesté la Reine par les présentes convient et s'oblige de mettre à part des réserves pour les bandes qui en désireront, pourvu que ces réserves n'excèdent pas en tout un mille carré pour chaque famille de cinq personnes pour tel nombre de familles qui désireront habiter sur des réseves, ou dans la même proportion pour des familles plus ou moins nombreuses ou petites; et pour les familles ou les indiens particuliers qui préféreront vivre séparément des réserves des bandes, Sa Majesté s'engage de fournir une terre en particulier de 160 acres à chaque indien, la terre devant être cédée avec une restriction quant à l'inaliénation sans le consentement du Gouverneur général du Canada en conseil, le choix de ces réserves et terres en particulier devant se faire de la manière suivante, savoir: le Surintendant général des Affaires indiennes devra députer et envoyer une personne compétente pour déterminer et assigner ces réserves et terres après s'être consulté avec les indiens intéressés quant à la localité que l'on pourra trouver convenable et disponible pour le choix.
[29] On the same date as Treaty 8 was entered (August 4, 1899), a paylist was created for the “Cree-Chipewyan Band at Fort McMurray”. This paylist notes Seopotakinum Cree as Cree Headman and Adam Boucher as Chipewyan Headman. Paul Cree is not listed as a Headman.
C. Treaty 8 claims in these actions [30] Treaty 8 is a central historical event in these claims; however, the issues raised by the Plaintiffs do not require the Court to interpret the provisions of Treaty 8. To be clear, the claims advanced in these actions are not in relation to the exercise of Treaty 8 rights such as hunting, trapping, or fishing as was the case in R v Badger, [1996] 1 SCR 771 [Badger]. Nor are the claims for the allocation of additional band lands under Treaty 8–the lands claimed by the Plaintiffs (IR 175) are currently held by FMFN.
[31] As well, with the one exception of the Plaintiff John Malcolm, the claims are not for recognition of Indian status. The Plaintiffs in all of the actions have status as Indians and have been or are current members of FMFN. As such, they have received Treaty 8 entitlements through FMFN.
[32] There is separate and ongoing litigation between Canada and FMFN regarding Treaty 8 entitlements and a partial settlement of this litigation was reached in 2017. In that settlement, August Cree, one of the named Plaintiffs in the Dumais action, acted on a FMFN committee to determine how the settlement funds should be used by FMFN.
[33] Taking into account this historical and contextual background, I will now move to the issues for consideration on these Motions.
V. Issues [34] These Motions raise numerous issues for consideration, to avoid overlap and repetition, I will address the issues as follows:
A. Preliminary matters
(1) The evidence
(a) Evidence adduced by Canada
(b) Canada’s expert reports
(c) Objections to Malcolm and Powder evidence
(d) Objections to Dumais evidence
(i) Carol Hodgson reports
(ii) Objections to Bernadette Dumais Affidavit
(iii) Traditional Land Use study
(iv) August Cree Affidavit
(v) Oral history evidence
(2) Are the claims barred by a limitation period?
(3) Does the Federal Court have jurisdiction?
B. Motions for Standing
(1) Overview
(2) Powder and Malcolm Plaintiffs Standing Motion
(a) Is the issue of standing res judicata?
(b) Do the Powder and Malcolm Plaintiffs satisfy Rule 114?
(c) Do the Plaintiffs have public interest standing?
(3) Dumais Plaintiffs Standing Motion
(a) Rule 114–application of the test for Representative Proceedings
(i) Criteria 1 & 2 - is there a collective with common interests?
(ii) Criteria 3 & 4 - are the representative plaintiffs authorized and can they fairly and adequately represent the collective?
(iii) Criteria 5 - is this the just, most efficient and least costly manner of proceeding?
(b) Do the Plaintiffs have public interest standing?
(4) Conclusion on Standing Motions
C. Summary Judgment Motions
(1) General principles–Summary Judgment Motions
(2) Canada’s Motion for Summary Judgment in T-165-01 (Malcolm registration claim)
(3) Canada and FMFN Motions for Summary Judgment in T-1601-12 and T‑436-15
(4) Canada and FMFN Motion for Summary Judgment in T-809-17 (Dumais Claim)
(5) Malcolm and Powder Plaintiffs Motions for Summary Judgment
(6) Conclusion on Summary Judgment Motions
VI. Analysis A. Preliminary matters (1) The evidence [35] The parties helpfully prepared a joint book of documents for the assistance of the Court, and they filed extensive records containing affidavit evidence and supporting documentation.
[36] Canada has provided an extensive historical record. The Plaintiffs do not contest the reliability of the documents in this record, and they did not conduct cross examinations disputing the historical record adduced by Canada. Similarly, the Plaintiffs have not identified any gaps in the evidence produced by Canada. To the extent that the Plaintiffs advance positions that are contradicted by the historical record produced by Canada, I rely on the historical record as providing an accurate record.
[37] I will summarize some of the historical record produced by Canada, followed by a consideration of the evidentiary issues raised.
(a) Evidence adduced by Canada [38] Canada relies upon the following Affidavits with corresponding exhibits to establish the historical record related to these actions:
Affidavits of Jean Pierre Morin, sworn on March 30, 2021 and June 28, 2021, respectively. Morin was a departmental historian in the Historic and Policy Research unit of the Strategic Policy Directorate at Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC).Attached to Mr. Morin’s Affidavit are official historical government documents including a 1915 land survey report prepared by Donald Robertson DLS, historical band paylists, and census documents related to the now-FMFN land.
Affidavit of Chander Avasthi, affirmed on April 7, 2021. Avasthi was an Indians Moneys Officer, Indian Monies, Estates and Treaty Annuities, Regional Operations, Alberta Region of the Department of Indigenous Services Canada, responsible for recording election results and analysis of Band Council Resolution requests received from First Nations in Treaty 8.Exhibits to Avasthi’s Affidavit included a copy of a Band Council History Report dated March 29, 2021, for Fort McMurray #468 First Nation (FMFN) listing, among other information, the dates of FMFN elections and the names of elected Chief and Council for the years 1991 to present.
Affidavits of Kierra Tyo, sworn on March 31, 2021 and April 8, 2021, respectively. Tyo was a Litigation Case Manager at the Office of the Indian Registrar (OIR).Attached to Tyo’s Affidavit are records in possession of OIR pertaining to the Malcolm, Powder, and Dumais Plaintiffs registration under the Indian Act.
Affidavit of Jennifer O’Neill, sworn on May 17, 2021.O’Neill was a Manager, Federal Negotiations in the Specific Claims Branch of the Department of Crown-Indigenous Relations and Northern Affairs (CIRNA). O’Neill was assigned as federal negotiator for treaty land entitlements specifically the claim of FMFN regarding Treaty 8.O’Neill attached several exhibits, some of which are confidential.These exhibits include documentation between Robert Cree and Government officials demonstrating Robert Cree’s intent to establish Paul Cree Band as a band separate from FMFN as early as 1991, and Robert Cree’s acknowledgement that Government officials had not recognized the Paul Cree Band as separate and distinct from FMFN. These exhibits also established that R. Peter Newton of Campbell & Company was retained in 1994 to support research related to a land claim presentation from the Paul Cree Indian Group in the Fort McMurray region.
Affidavit of Michelle Nouch, sworn on June 23, 2021. Nouch was a paralegal employed by the Department of Justice Canada, Prairie region, in the Edmonton Regional Office.Nouch attached as exhibits to her Affidavit several land-related documents from the Indian Land Registry System (ILRS Report), demonstrating historical record of official documents including Privy Council Orders, Orders in Council, permits, leases, and assignments related to Clearwater IR 175 spanning from 1921 to 1977.
Affidavit of Kevin Payne, affirmed June 28, 2021. Payne was employed as a Band Moneys Advisor with the Trust Moneys, Estates and Treaty Annuities team, Indigenous Services Canada (ISC).Payne attached as exhibits to his Affidavit several historical documents within the possession of ISC including Orders in Council, Treasury Board Minutes, and Manuals relating to Clearwater IR 175.These documents span from 1917 to the 1990’s.
[39] I will also refer to some of the key historical documents relied upon by the Plaintiffs.
[40] In a document dated January 2, 1914, addressed to A. Norquay, Agent Dom. Lands, Edmonton, Alberta, Paul Cree makes the following request:
I am the Cree Indian Paul Cree who writes. I am writing to ask you about the place I have been living on at the Pembina River for the last twenty years.
I would like very much to have a place there for myself and my two boys name Alexis and Raphael, ages 25 and 18 years old.
I have lived so long at this place now I would not like to go away, and I promise never to draw any more treaty money from now on if I get this place…
[41] The May 12, 1921 Governor General In Council Order states:
WHEREAS the Minister of the Interior reports that the Department of Indican Affairs has applied for the setting apart of a tract of land surveyed and known as Clearwater Indian Reserve No. 175 at the junction of the Clearwater and Christina Rivers…selected by the Department of Indian Affairs for Paul Cree’s Band of Indians under the provisions of Treaty 8;
…
THEREFORE, His Excellency the Governor General in Council, on the recommendation of the Minister of the Interior, is pleased to order and it is hereby ordered that the above tract of land containing 2,261.80 acres more or less be set apart for the Department of Indian affairs for the purposes and uses of the Indians of the Clearwater Indian Reserve No. 175.
[42] On October 29, 1957, W.C. Bethune, the Superintendent, Reserves and Trusts sends a letter to G.S. Lapp, Esq. who is the Superintendent, Indian Agency stating:
The Clearwater I.R. was set aside in 1921 by P.C. 1570 dated May 12th, 1921. The Order in Council sets aside this reserve for the Paul Cree’s Band of Indians under the provision of Treaty No. 8.
A careful review was made of the Treaty Pay Lists and also of the correspondence dealing with the request submitted to the Department of Interior in setting apart these reserves for the Indians. We find very little information from our correspondence here that would indicate precisely the Band for whom each of these reserves were set apart. We do think that Gregoire Lake Indian Reserves offers little difficulty, however, we are not too clear with respect to Clearwater Indian Reserve because when a request was made to set this apart for a reserve, the correspondence on file here makes reference to the Paul Cree Band consisting of Paul Cree and his sons, Alexis and Raphael.
[43] The Plaintiffs also rely upon a letter dated December 17, 1957, from J.W. Stewart, Superintendent stating:
I note in the list of reserves that the Clearwater Reserve was named for Paul Cree Band and why it was never kept that way is a mystery.
(b) Canada’s expert reports [44] Canada also relies on the reports of the following experts who have sworn affidavits and prepared reports.
Nicole Marion Patola holds a PhD, History, from Carleton University, a Master of Arts, History, from the University of Ottawa, and a Bachelor of Arts, History, from Carleton University.She works as a Research Director with Know History in Calgary and is responsible for genealogical and archival research.She states that from February 2018 to March 2021 she completed 2,230 hours of genealogical work.She has developed two custom genealogical databases for Indigenous clients, which has data for over 175,000 individuals, and nearly 175,000 documents.Dr. Patola prepared a report dated September 17, 2021, titled “Historic and Contemporary Ancestral, Marital, and Kinship Relationships Related to the Powder, Malcolm, and Dumais actions”.On August 31, 2022, she prepared a Sur-Reply report.
Gwynneth C. D. Jones holds a Master of Arts (History), York University, a Master of Public Administration, Queen's University and a Bachelor of Arts (History, First Class Hons.) from Queen's University.She is a self-employed Historian.Since 1996, she has been engaged in research for First Nations, Crown and other Indigenous clients on a range of issues relating to Indigenous claims to recognition, land, natural resources, rights and moneys.She conducts original historical research in primary sources, analyzes historical documents and data, and writes reports providing an exposition and analysis of the historical record as requested and provides copies of all supporting documents.She has been qualified as an expert witness on nine occasions in the Federal Court and Provincial courts.Ms. Jones prepared a report dated September 7, 2022.An edited report was prepared on October 20, 2022.
Robert Irwin holds a PhD, History from the University of Alberta, an MA in History from the University of Saskatchewan and a BA (Hon) in History also from the University of Saskatchewan.Currently he is an Associate Professor of History at MacEwan University in Edmonton, Alberta where he teaches courses on Alberta history, First Nations and Canada, and Historical Method and Theory. He has published scholarly papers, presented papers at academic conferences, and given expert historical opinion in court on the history of the Athabasca district prior to treaty, the making of Treaty 8, treaty hunting and fishing rights, and the surrender of Indian Reserves.Dr. Irwin prepared a report dated June 23, 2021 and a Sur-Reply report dated September 8, 2022.
(c) Objections to Malcolm and Powder evidence [45] Canada and FMFN made objections to the evidence adduced by the Plaintiffs in support of their Standing Motions and the Summary Judgment Motions in T‑436-15, T-1601-12 and T‑165-01. Specifically, they object to documents included in the Amended Motion Record and to various statements made and exhibits attached to the Affidavit of John Malcolm.
[46] I will first address the objections to the Affidavit of John Malcolm sworn on October 24, 2020, on the grounds that many of the statements made in this Affidavit are not within his personal knowledge as required by Rule 81.1(1).
[47] Mr. Malcolm’s Affidavit recounts events that took place well over 100 years ago. This is obviously not information within his personal knowledge. Although he claims to have informed himself based upon review of “books and articles on the area and its history” that is not a proper manner by which to introduce historical information. I accept that he has personal knowledge of his own family history, however the information he includes on other family groups, the fur trade settlement, Hudson Bay records, paylists, and actions of the government in the early 1900s is not information within his personal knowledge. Furthermore, his statements and the exhibits attached to his Affidavit relating to oil and gas resources at IR 175 is not information within Mr. Malcolm’s personal knowledge and will, therefore, be disregarded.
[48] Exhibit 32 to the Affidavit of John Malcolm consist of the transcript of an interview with Raphael Cree and Exhibit 36 is a report prepared by lawyers Campbell & Company in 1995 titled The Clearwater Indian Reserve No. 175 or the Paul Cree Reserve. This report was prepared for the Department and Indian Affairs and Northern Development. These are not documents prepared by Mr. Malcolm or prepared for him and they are, therefore, not within his personal knowledge. Although legal counsel for Mr. Malcolm urged the Court to use these documents as a proxy for “oral history evidence”, they are not evidence of oral history and this is not the appropriate manner to introduce oral history evidence.
[49] In various paragraphs throughout his Affidavit, Mr. Malcolm provides his opinion on various matters. It is well accepted that lay witnesses may not give opinion evidence but may only testify to facts within their knowledge, observation, and experience (Choudhry v Canada (Attorney General), 2023 FC 1085 at para 39 citing White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at para 14). Mr. Malcolm’s opinion evidence will be disregarded.
[50] Generally, the Defendants object to documents that have been attached to Mr. Malcolm’s Affidavit as an attempt to enter the documents as evidence. I agree with their objection that a document does not become “evidence” by the mere act of attaching it to an Affidavit. At best, that demonstrates that the document exists, but it does not establish the truth of the contents of the document. Further, it is not appropriate for Mr. Malcolm to repeat the evidence of another witness and adopt that evidence as his own–he attempts to do that in a number of paragraphs of his Affidavit.
[51] I have not addressed each of the objections made to the evidence put forward by John Malcolm, but I have determined that much of the evidence both in his Affidavit and the exhibits attached to his Affidavit is evidence that is not within Mr. Malcolm’s personal knowledge. It will, therefore, be given little evidentiary weight.
[52] Finally, it is inappropriate for counsel to attempt to introduce documents as evidence by attaching them to the Motion record or to the written submissions without otherwise formally entering them into evidence through an affidavit. Accordingly, I will disregard the documents attached to the Powder and Malcolm Record on Motion and written submissions.
(d) Objections to Dumais evidence [53] Canada and FMFN object to evidence tendered by the Dumais Plaintiffs in T-809-17. I will address objections to their expert reports first.
(i) Carol Hodgson reports [54] In a pre-hearing Motion, Canada sought to exclude the Hodgson expert reports on the grounds that Ms. Hodgson was not a properly qualified expert and that her research had been influenced by legal counsel. In my decision of December 15, 2023, I declined to strike the reports noting that the reliability of the Hodgson’s interpretation of historical record was a question of weight rather than admissability.
[55] At the hearing of these Motions, Canada reiterated its objection to the reports of Carol Hodgson.
[56] Ms. Hodgson is a research analyst retained by the Dumais Plaintiffs to prepare an expert report regarding the history and existence of the Clearwater First Nation. She prepared a report titled “Clearwater First Nation Historical Report”. Canada argues that as a “research analyst” Ms. Hodgson is not properly qualified to give opinion evidence. They also argue that she narrowed and limited the historical record considered in her research. They point to the fact that she focuses on the existence of Paul Cree’s Band only from 1899-1915, without exploring other possibilities such as the band may have been just a family group.
[57] Ms. Hodgson prepared two reports. First the “Clearwater First Nation Historical Report” dated July 2019, and second a report dated February 2022 in reply to the Canada’s expert reports. Her key conclusions are:
the Hudson’s Bay Company (HBC) trading journal for the Fort McMurray trading post in the pre-treaty period from 1877-1892 document various family groups using the land around Fort McMurray. Hodgson opines that the HBC journals reference to “Baptiste” was one of Seopotakinum’s two sons and that Baptiste Cree was documented as travelling and hunting with Paul Cree.It is also her opinion that at the time of the adhesion to Treaty 8, there were four groups which were Fort McKay, Willow Lake (also known as Gregoire Lake), Pembina River (now known as Christina River), and Janvier Band.
Seopotakinum and Paul Cree headed an independent 1899 Indian band when Treaty 8 was signed at Fort McMurray that included IR 175.
The first survey for IR 175 was in July 1915 and counted 17 people.
In 1921 an Order in Council confirmed that Clearwater Reserve was set aside for “Paul Cree’s Band of Indians”.
Jean Baptiste Cree was the son of Seopotakinum Cree, to whom August Cree and Bernadette Dumais are directly descended from.
[58] Dr. Robert Irwin, an Associate Professor of History at MacEwan University, was retained by Canada to review the Hodgson reports. Dr. Irwin notes that the Hodgson reports are grounded on an unfounded premise that the “Clearwater Band” exists. In his report of June 23, 2021, he states as follows at page 7 regarding the initial Hodgson research report:
It is a useful report. It is a report, however, that is focused upo