Date: 20051108
Docket: T-66-86A and T-66-86B
Citation: 2005 FC 1501
Ottawa, Ontario, this 8th day of November, 2005
Present: The Honourable Justice James Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
TABLE OF CONTENTS
Page
THE MOTION.............................................................................................................................. 3
BACKGROUND .......................................................................................................................... 3
ISSUES .......................................................................................................................................... 7
ARGUMENTS .............................................................................................................................. 8
The Crown........................................................................................................................... 8
The Plaintiffs..................................................................................................................... 11
ANALYSIS .................................................................................................................................. 16
The Law ............................................................................................................................ 16
Sovereignty and Nationhood ......................................................................................... 16
North American Aboriginal Groups ............................................................................... 19
Context and Specificity..................................................................................................... 20
ORDER...................................................................................................................................... . 28
REASONS FOR ORDER AND ORDER
THE MOTION
[1] This is the second of two motions brought by the Crown and heard in Edmonton during the week of September 19, 2005. As with the first motion, we are dealing with important issues of pre-trial disclosure, scope of pleadings, and relevance. This time, however, the focus is the expert report of Dr. Miguel Alfonso Martinez that was served by the Plaintiffs on July 15, 2004. The report, in fact, is extremely voluminous and consists of a series of five reports that Dr. Martinez prepared for a committee of the United Nations over a period of eight (8) years.
[2] In this motion, the Crown is seeking an order striking all of Dr. Martinez's reports because, the Crown says, they:
(a) Are irrelevant to the action in this law suit;
(b) Are unnecessary because they do not speak to the issues in the litigation, or even the parties in these proceedings; and
(c) Would unduly increase the length and costs of the trial for no valid purpose.
BACKGROUND
[3] The background to this motion is long and convoluted. I have already set it out in some detail in the Reasons I have given on the first motion that was heard during the week of September 19, 2005. I will not repeat it here. Underlying the dispute between the parties in this second motion are the same fundamental disagreements, or "philosophical differences," over what this law suit is really about, and what evidence is truly relevant and appropriate to the issues raised in the pleadings.
[4] I have already, in the Reasons for the first motion, given the Court's general view of the scope of pleadings and relevance. Once again, I do not intend to repeat those findings here, but they are adopted, mutatis mutandis, for purposes of this motion.
[5] The submission of Dr. Martinez's reports by the Plaintiffs was done pursuant to the Pre-Trial Order of March 26, 2004, of Mr. Justice Hugessen that was intended as a road map to take the parties to trial. The Pre-Trial Order required that "All expert reports for use at trial are to be served by July 15, 2004."
[6] On July 15, 2004, the Crown was served with the "expert report" of Dr. Miguel Alfonso Martinez which consisted of five reports prepared for a committee of the United Nations over a period of eight years. The Statement of Evidence was signed by Sharon Venne on behalf of Dr. Martinez.
[7] On July 26, 2004 the Plaintiffs served on the Crown a revised Statement of Evidence, dated July 19, 2004, this time signed by Dr. Martinez. The Martinez reports were entitled "The Study of Treaties, Agreements and Other Constructive Agreements between States and Indigenous Populations." The reports included:
a. Preliminary Report dated July 30, 1991;
b. First Progress Report dated August 25, 1992;
c. Second Progress Report dated July 31, 1995;
d. Third progress report dated August 15, 1996
e. Final Report dated June 22, 1999.
[8] In 1987 the Working Group on Indigenous Populations ("WGIP") recommended to its parent group, the United Nations' Sub-Commission on Prevention of Discrimination and Protection of Minorities, to undertake a study analysing the general outline of treaties concluded between indigenous peoples and states. The Sub-Commission, upon the recommendation of the Commission on Human Rights, appointed Dr. Martinez as Special Rapporteur with a mandate to prepare such a study.
[9] On May 27, 1988, the Sub-Commission adopted Resolution 1988/56, which became the terms of reference for the study.
[10] Resolution 1988/56 considerably broadened the scope of the study originally envisaged by the Sub-Commission. Dr. Martinez was now instructed to prepare "an outline on the possible purposes, scope and sources of a study to be conducted on potential utility of treaties, agreements and other constructive arrangements between indigenous populations and governments for the purpose of ensuring the promotion and protection of human rights and fundamental freedoms of indigenous populations."
[11] On May 24, 1989, the Commission on Human Rights confirmed the appointment of Dr. Martinez and authorized him to proceed with the broadened study.
[12] On July 30, 1991, Dr. Martinez submitted his Preliminary Report to the WGIP.
[13] On August 25, 1992, Dr. Martinez submitted his First Progress Report to the WGIP and the Sub-Commission.
[14] On July 31, 1995, Dr. Martinez submitted his Second Progress Report to the WGIP and the Sub-Commission.
[15] On August 15, 1996, Dr. Martinez submitted his Third Progress Report to the WGIP and the Sub-Commission.
[16] At its forty-ninth session, the Sub-Commission, in its decision 1997/110 of August 22, 1997, urged Dr. Martinez to submit his Final Report before the end of 1997.
[17] On June 22, 1999, Dr. Martinez submitted his Final Report to the WGIP and the Sub-Commission.
[18] The Crown thinks that Dr. Martinez's reports should be excluded from these proceedings because they simply don't meet the tests for relevancy or necessity enunciated by the Supreme Court of Canada in the relevant case law. In addition, admission of the reports would unnecessarily increase the time needed for, and the costs of, this law suit for no valid reason.
[19] It is important to consider these issues at this stage in the proceedings because of the widely divergent views held by the Crown and the Plaintiffs over the scope of the pleadings. Dr. Martinez's reports are so extensive (they deal with Aboriginal peoples across the whole globe) that their admission as evidence would require enormous amounts of work to provide a full response. If they are simply irrelevant and/or unnecessary to the issues raised in the pleadings, there will be a significant waste of effort and money on both sides if we move into the trial without addressing the points of concern now. In fact, the whole conduct and timing of the trial will be very different if the parties proceed on the understanding that the reports are admissible. The inevitable result of admitting the reports will, in all likelihood be that further adjournments to the trial will be necessary to allow the Crown and the Interveners the time it will take to address all of the matters that the Plaintiffs now seek to raise. While this is not decisive, it means that the Court needs to address these issues now in a careful way, to ensure that significant resources are not expended unnecessarily.
ISSUES
[20] The issues raised by the Crown in this motion are simply whether the reports of Dr. Martinez:
(a) Meet the test or relevancy;
(b) Meet the test of necessity in assisting the trier of fact; or
(c) Would, if admitted, unduly increase the costs and extend the length of the trial for no valid purpose.
ARGUMENTS
The Crown
[21] The Crown argues, generally, that the Martinez reports do not satisfy the tests for relevance and necessity set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 at page 20.
[22] In addition, the Crown believes that the admission of the reports will unnecessarily increase the time and costs of the trial for no valid reason.
[23] Alternatively, the Crown says that even if it could be said that the reports touch on matters of relevant historical context or background, the authorities are clear that where such information is only of "minimal relevance," or is used to illustrate opinions that are irrelevant to the issues pled, they should not be allowed. See Squamish Indian Band v. Canada, [1998] 144 F.T.R. 106 at para 23.
[24] The Crown points out that the mandate given to Dr. Martinez to compile the reports, and the stated goals of the reports themselves, are extremely broad. While the mandate included the study of any treaty or constructive agreement in any part of the world, and at any time in history, the reports do not deal in any way with the treaties referred to in the pleadings or with the specific issues raised in this law suit.
[25] It is also clear from their terms, the Crown says, that the reports were not intended to be used by the Plaintiffs in this case to provide the Court with any expert opinion evidence that would be of assistance in determining the issues before it.
[26] As regards necessity, the Crown points out that the Court is free to review any United Nations material (including the Martinez reports) of its own record, and does not require the assistance of an alleged expert to do so. Counsel, also, subject to the Court's approval, can reference any relevant material in argument without the need to call what purports to be expert evidence.
[27] Unless evidence is so technical that it is outside the experience and knowledge of the Court, there is no need to call an expert. See, for example, Fairford First Nation v. Canada, [1998] F.C.J. No. 47.
[28] The reports also contain legal analysis of American and Canadian case law. This information is not necessary and experts cannot be allowed to usurp the Court's role in this way.
[29] The Crown says that the reports would unduly increase the length of the trial and escalate costs because they are voluminous (272 pages) and cover a significant array of topics, studies, answers to questionnaires, as well as ranging over wide historical time frames and geographical areas. All of this would necessitate many hours of trial preparation and trial time to deal with material that does not really assist the Court on the issues before it.
[30] The Crown points out that the reports are indicative of general problems concerning scope of pleadings and relevance evident elsewhere in the Plaintiffs present approach to these proceedings. They show the Plaintiffs, once again, attempting to introduce evidence that puts the Crown's general conduct towards Aboriginal peoples in dispute. In fact, the reports go even further than that and deal at a global level with the problems that Aboriginal peoples have encountered as a result of colonial expansion over significant periods of history.
[31] The Crown says that this kind of sweep was never contemplated or foreseen when the Federal Court of Appeal ordered a new trial in this case, and it was certainly never raised during the case management phase or as part of the amendments that were made to the pleadings in 1998. This expansive approach only began to emerge at the time of the amendments proposed by the Plaintiffs in 2004, when Russell J. firmly rejected all attempts by the Plaintiffs to broaden the scope of the pleadings in a way that these reports contemplate. The Plaintiffs appear to think that the entire history of government-aboriginal relations in Canada is part of this law suit, but do not say how that history relates to the specific issues in this case, which are about the impugned provisions of the Indian Act that allegedly interfere unjustifiably with the Plaintiffs' rights to determine their own membership. In fact, with Dr. Martinez's reports, the Plaintiffs are now saying that the claims require evidence of relations between indigenous and non-indigenous peoples worldwide.
[32] The Crown points out that the reports have nothing to say about Treaties 7 and 8 and do not reference the Plaintiffs' bands. The Plaintiffs have not explained how it is that general comments in the reports concerning the history of the British Crown's negotiations with indigenous peoples worldwide have any relevance for the interpretation of treaties signed - at the earliest - ten (10) years after the founding of the Dominion of Canada.
[33] The Crown believes that the introduction of Dr. Martinez's reports is part of the Plaintiffs' general attempt to divert attention away from what the pleadings, and Plaintiffs' former counsel, say this law suit is about: i.e., whether the Plaintiffs have an unextinguished aboriginal or treaty right which has the effect of denying band membership to certain classes of individuals (mostly women) who were intended to be the beneficiaries of Bill C-31.
The Plaintiffs
[34] The Plaintiffs point out that the pleadings, in effect, assert a right by the Plaintiffs "to determine who their members are" that "arises as an inherent and aboriginal right, confirmed by Treaty and thus a right under Treaty, all of which is today recognized and affirmed by section 35 of the Constitution Act, 1982."
[35] The treaties at issue in this case can only be understood in their appropriate context, as the Supreme Court of Canada has pointed out in R. v. Sioui, [1990] 1 S.C.R. 1025 at para 1068; R. v. Badger, [1996] 1 S.C.R. 771 at para 52; or R. v. Marshall, [1999] 3 S.C.R. 456 at para 14. The reports of Dr. Martinez will assist the Court in understanding the full context in which the treaties were made and their true meaning and significance.
[36] Even though Dr. Martinez's reports were not focussed on Treaties 7 and 8, and his research program "encompassed a wide-ranging study of Treaties between States and Indigenous Populations around the World," the study he undertook did include the Treaties of Western Canada, including Treaties 7 and 8. In fact, the written documentary materials within the scope of his review included The Original Spirit and Intent of Treaty Seven, which was prepared by the Treaty Seven Elders and Tribunal Council, as well as the Report of the Royal Commission on Aboriginal peoples.
[37] So the Plaintiffs say that the reports have a direct relevance for understanding the full impact of Treaties 7 and 8.
[38] The Plaintiffs have pled that they have existed as sovereign nations since time-immemorial, and that this status was both recognized and affirmed by the negotiation of Treaties 7 and 8. Such sovereignty necessarily entails the existence of the exclusive authority to determine their own membership.
[39] Dr. Martinez's reports support the Plaintiffs' claims to nationhood and the Crown's formal recognition of sovereignty through treaty. Dr. Martinez concludes that the European parties to the North American Treaties, notably the British Crown, clearly recognized that the indigenous parties to the treaties were "sovereign nations."
[40] The Plaintiffs claim status as a sovereign nation, both before and after the negotiation of Treaties 7 and 8, and they seek to lead evidence to establish that they are entities with a defined territory and a permanent population, under the control of their own governments, that engage in, or have the capacity to engage in, formal relations with other such entities. Dr. Martinez's reports support the Plaintiffs' position because he concludes that Aboriginal nations who were parties to the Treaties of North America meet all of the four criteria of statehood.
[41] Dr. Martinez's reports will also help the Court to understand and consider the objectives and motivations of the parties who entered the treaties, as revealed by the political and economic context at the time. The Treaties of North America, as Dr. Martinez makes clear, cannot be viewed in isolation as a series of disjointed historical events, devoid of any unifying characteristics or context. Each treaty is an individual piece of a much larger historical puzzle which must be approached in the light of the broader perspectives of the European and Aboriginal signatories.
[42] The Plaintiffs also say that Dr. Martinez provides evidence concerning the "overriding British policy of colonial expansion as the 'raison d'être' for the Treaties of North America" and that "the Treaties of North America were entered into at a time when the militaristic capacities of the parties was more or less in balance," and that "in entering the Treaties of North America, the British Crown was motivated in large part by the need to 'legitimize' these lands against other nations vying for control of the same regions." This is, the Plaintiffs allege, all relevant and admissible "for the purpose of assessing the historical objectives and motivations of the British Crown in entering into Treaties 7 and 8 with the Aboriginal Plaintiffs."
[43] The Plaintiffs also point out that the reports examine the extent to which the historical and legal relationships between European and indigenous peoples were influenced by the stereotypical and discriminatory ideas of the period. These ideas, in turn, came to be incorporated into Euro-centric laws and juridical institutions which progressively eroded traditional customary laws and practices. In other words, the reports provide advice on the legal impact of Euro-centrism. This is relevant, the Plaintiffs claim, not because of the discussion on international and domestic law, but to show "the effect that Euro-centric juridical institutions have had upon historical Treaty relationships and the erosion of indigenous rights."
[44] Dr. Martinez's reports also provide the "aboriginal perspective" that the Court requires, and which Chief Justice Lamer emphasized in Van der Peet and Delgamuukw, to understand how the "indigenous peoples of North America entered into treaty relationships based upon an understanding of themselves as sovereign nations," and further explain "the unique relationship between indigenous peoples and their lands, and the extent to which this understanding impacted their approach to the Treaties."
[45] Dr. Martinez also addresses the difficulties faced by Aboriginal peoples in the treaty-making process because their treaty-making practices were totally oral in nature and there were no written documents. There is a remarkable consistency, the Plaintiffs say, "amongst indigenous treaty parties around the world regarding their own understanding of the treaties, particularly treaty provisions which purport to cede jurisdiction over their lands and political institutions ... ."
[46] The reports also examine the "effects of treaties upon indigenous peoples and their general way of life."
[47] All in all, the Plaintiffs say that the reports clearly meet the relevancy and necessity requirements established in Mohan. The reports do not consist of a summary of the evidence of the witnesses or recommendations as to what the law ought to be: "Rather, his report is a study of the history of the international treaty-making process, including the objectives and motivations of the parties to those treaties, their understandings and intentions with respect to such agreements, and their effect upon indigenous rights and traditions."
ANALYSIS
The Law
[48] First of all, I agree with the Plaintiffs that, in applying the Mohan test, the Court should be mindful of the words of Dickson J. (as he then was) in R. v. Corbett, [1988] 1 S.C.R. 670 at 797:
I agree with my colleague, La Forest, J., that basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight, or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion and our efforts in my opinion, consistent with the ever-increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law dictates exclusion.
Sovereignty and Nationhood
[49] It is immediately apparent from the synopsis I have given above concerning the justifications offered by the Plaintiffs for Dr. Martinez's proposed expert evidence, that the Plaintiffs have travelled a long way since Mr. Henderson assured the Crown and told the Court in 1998 that "we are not saying we have a right to self-government at large. That is not what this case is about." They have also come a long way from my own ruling in June 2004 (which dealt with new amendments to the pleadings), that disallowed amendments that attempted to enlarge the nature of the action and to introduce "a new claim to self-determination" and which raised allegations "about first nations other than the Band."
[50] It also seems to me that the Plaintiffs have come a long way from the amendment they introduced into the pleadings in 2004, and which was allowed, to clarify and focus issues for the Court. That was the amendment to paragraph 11 of the Amended Fresh as Amended Statement of Claim dealing with the "claimed right of the First Nation to govern itself with its own institutions, customary laws and traditions," and which tells us that "The right at stake is the right to have and maintain societal relationships in accordance with traditional principles, laws, customs and practices, which include the right to determine who is a member."
[51] The reports of Dr. Martinez are being used by the Plaintiffs to a considerable extent to justify a general claim for autonomy as sovereign nations, who, as such, also have a right to determine who their members are and to justify this in the context of world history dealing with the relationships between colonial powers and aboriginal groups, or at least North American aboriginal groups. The Martinez reports were not prepared to assist the Court in dealing with the issues in this law suit. They were prepared by Dr. Martinez to assist the UN for the particular purpose that is set out in the reports themselves:
It should also be borne in mind that the Special Rapporteur [Dr. Martinez] has identified the ultimate purpose of his mandate as offering elements towards the achievement, on a practical level, of the maximum promotion and protection possible, both in domestic and international law, of the rights of indigenous populations and especially of their human rights and fundamental freedoms, by means of creating new juridical standards, negotiated and approved by all the interested parties, in a process tending to contribute to the building of mutual trust based on good faith, mutual understanding of the other parties' vital interests, an deep commitment from all of them to respect the eventual results of the negotiations. (p. 269 at para. 292).
[52] There are recommendations in the reports as to what government policy towards Aboriginal peoples ought to be and suggestions for new juridical standards. Dr. Martinez was fixed with the responsibility of providing recommendations to the UN on how to fulfill its mandate on Aboriginal peoples. His reports were not prepared to assist a court of law in dealing with particular rights and particular Aboriginal bands.
[53] In the end, I have to agree with the Crown that, at bottom, the reports represent a political statement (in the broad sense of that word) prepared by someone who is not a historian or an anthropologist, or even someone with a connection to the Plaintiff bands, and they are certainly not sufficiently contextually related to the specific issues in the Amended Fresh as Amended Statement of Claim to be of any real assistance to the Court as expert evidence, even if Dr. Martinez did not have a special, declared mandate and purpose in preparing the reports.
[54] As I have already made clear, these proceedings are not about Aboriginal government relations generally, either across Canada, or across the world. If Dr. Martinez's reports were admitted as expert testimony in these proceedings, we would be into a very different law suit to the one contemplated by the pleadings.
[55] This is the kind of documentation that can be referred to in argument. It was prepared for the UN under its mandate and it is widely available.
[56] Its ultimate purpose, its obvious attempts to promote political sovereignty for Aboriginal peoples generally, and its failure (for obvious reasons) to address the specifics of this law suit in terms of the Plaintiffs, Treaties 7 and 8, and band membership, make it far too tenuous and unwieldy to be of assistance as expert evidence.
North American Aboriginal Groups
[57] The Plaintiffs told the Court in 1998 that "The proposed formulation of the rights to be asserted by the Plaintiffs, and the application of the current law to those rights to be alleged by the Plaintiffs, remain sufficiently closely connected to the Plaintiffs' existing pleading that an additional second action is not necessary. Multiplicity of proceedings ought to be avoided."
[58] Without explaining how, or why, the position put forward by the Plaintiffs in 1998 has been reversed. The Plaintiffs' materials for this motion are very much about claims to full sovereignty and nationhood, and the membership right that was the focus in 1998 is now merely "parasitic" upon a much more ambitious assertion of general self-government. Dr. Martinez's reports, at bottom, are being enlisted to support this claim.
[59] Once again, as I said in my Reasons for the first motion, the Plaintiffs cannot have it both ways. If they had wanted to assert a claim to full sovereignty and nationhood they should have done so when they sought amendments to the pleadings so that the Crown could have responded as it saw fit, and the Court could have made decisions based upon the Plaintiffs' open and declared intentions. It is not appropriate to secure amendments by telling the Court "we are not saying we have a right to self-government at large. That is not what this case is about," and then, on the eve of the trial, attempt to introduce voluminous evidence that makes these proceedings very much about "self-government at large."
[60] If, as the Plaintiffs now say, this case is about sovereignty and nationhood, and the consequential right to determine membership that flows from sovereignty and nationhood, then it is, indeed, not "sufficiently closely connected to the Plaintiffs' existing pleading." It is a totally different action and one that requires a legal process that has not been undertaken so far in these proceedings.
[61] So anything in Dr. Martinez's reports that supports, and invites the Court to find, a general right of sovereignty and nationhood, either for all First Nations peoples in Canada, or for the particular Plaintiffs in this case, is just not relevant because, as Mr. Henderson on behalf of the Plaintiffs has so unequivocally and succinctly put it, "That is not what this case is about."
Context and Specificity
[62] The Plaintiffs also say they are seeking to introduce the reports and to call Dr. Martinez to provide the context required to understand the issues raised in the pleadings.
[63] Of course, I agree with the Plaintiffs, that a historical context is necessary. But the words relied upon by the Plaintiffs of Lamer J. (as he then was) in Sioui at 1068 do not require the Court to address the whole world history, or even the whole of North American history, concerning colonial expansion and the treaty-making process:
Cases on Indian or aboriginal rights can never be determined in a vacuum. It is of importance to consider the history and oral traditions of the tribes concerned, and the surrounding circumstances at the time of the treaty, relied on by both parties in determining the treaty's effect.
[Emphasis added]
[64] The Plaintiffs also cite and rely upon the words of Chief Justice Lamer in R. v. Badger. But, once again, he makes it clear that although it is "well settled that the words in a treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of constitution," the interpretation must be viewed "in the sense that they would naturally have been understood by the Indians at the time of signing." (para 52).
[65] And, in R. v. Horseman, [1990] 1 S.C.R. 901 at 901 and 907, Justice Wilson emphasized the same point:
These treaties were the product of negotiation between very different cultures and the language used in them probably does not reflect, and should not be expected to reflect, with total accuracy each party's understanding of their effect at the time they were entered into. This is why the courts must be especially sensitive to the broader historical context in which such treaties were negotiated. They must be prepared to look at that historical context in order to ensure that they reach a proper understanding of the meaning that particular treaties held for their signatories at the time.
[Emphasis added]
[66] The basic idea is that we need as much context as is necessary to allow us "to reach a proper understanding of the meaning that particular treaties held for their signatories at the time."
[67] The Plaintiffs say that, in order to do this we need to have evidence of the following:
a. The historical relationship between aboriginal societies and non-aboriginal societies;
b. The intersection and intertwining of different societies, cultures, values and legal systems;
c. The development and various legal regimes;
d. The treaty process over the centuries;
e. The relationship between the colonial powers and colonists and the aboriginal inhabitants of North America as it explains the motives for and the results of treaty making;
f. Whether this relationship and the parties' status vis-à-vis one another were recognized and affirmed by the negotiation of Treaties 7 and 8;
g. Crown-Indian relations prior to and following treaty;
h. The historical treatment of Indians by governments; and
i. The necessary reconciliation of Crown sovereignty with the continued existence of Indian Nations and with the rights of Aboriginal peoples as directed by the Supreme Court of Canada and the specific role of aboriginal/Crown treaties in this process of reconciliation.
[68] The first thing to notice about the Plaintiffs' list is that it is pretty well all pluralized, and it is not limited in terms of time or geography. This is because the reports of Dr. Martinez are intended to provide a broad-ranging global perspective that addresses the impact of colonization and treaty-making in general.
[69] The Plaintiffs are saying that the context required to understand how the Plaintiffs understood Treaties 7 and 8 can only be found in a global, or at least a full North American perspective, that ranges over the whole period of colonization and post contact relations between the colonizers and aboriginal groups in general.
[70] I do not believe that a discussion conducted at such a level would be helpful or relevant to a situation where, to quote Chief Justice Dickson again, the Court is trying to "reach a proper understanding of the meaning that particular treaties held for their signatories at the time."
[71] The reports do not address Treaties 7 and 8, or the signatories to Treaties 7 and 8. So the reports do not provide evidence about the Plaintiffs or the specific context of Treaties 7 and 8. What they do is to extrapolate general conclusions about contact negotiations and treaty-making to support a thesis about the "sovereign nation" status of Aboriginal peoples in general, and the impact of colonization and Euro-centrism upon indigenous North Americans.
[72] This law suit is not concerned with such broad issues.
[73] Any relevant historical context must take into account the specific issues in the pleadings that the Court is called upon to assess. The present law suit is about, not aboriginal problems, history, or political issues in general, but the impugning of specific sections of the Indian Act that the Plaintiffs say unjustifiably impose upon them persons as members in ways that breach their section 35 rights to decide their own membership. The Plaintiffs say that their right to determine their own members is parasitic upon, among other things, treaties that provide them with recognition as self-governing sovereign polities; but the Plaintiffs also say that, in the context of both their aboriginal rights and their treaty claims "the right at stake is the right to have and maintain societal relationships in accordance with traditional principles, laws, customs and practices, which include the right to determine who is a member." Without commenting upon whether this is a sufficiently precise way of pleading such an issue for purposes of the governing case law, it is clear that the aboriginal right and the treaty right "at stake" involves internal and integral practices, customs and traditions of the Plaintiffs that show them maintaining "societal relationships" to determine membership.
[74] Conceptually, it may be possible to allege that the Plaintiffs have a general, sovereign right to self-government which means that, like any sovereign nation, they have a right to determine their own citizens and members. We know this is not the way to come at the issue in this case because the Plaintiffs have said so ("That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government",) and, the governing case law says that excessively broad claims to self-government at large are "not cognizable," and the Court has already ruled on June 29, 2004, that the Plaintiffs cannot at this stage "bring in a new claim of self-determination," a conclusion which the Plaintiffs accepted and did not appeal.
[75] The level at which Dr. Martinez pitches his discussions does not address "this fundamental aspect of our self-government" from the perspective of the customs, practices and traditions of these particular Plaintiffs, whether from the perspective of a treaty right, or an aboriginal right. The reports themselves make it quite clear that their purpose is otherwise.
[76] As the Plaintiffs concede, Dr. Martinez's reports do not summarize or address any of the other evidence that the Plaintiffs plan to call. Dr. Martinez wants to provide the Court with his "findings and conclusions derived from the more than nine (9) years of research and study as a Special Rapporteur for the United Nations." Those findings and conclusions, however, are not contextually oriented to the issues before the Court in these proceedings. At best, those findings and conclusions are supportive of a general claim to sovereignty and nationhood. They do not assist the Court in deciding whether there are traditions, customs and practices internal to the Plaintiffs that support a right to decide membership in a way that has been unjustifiably abrogated by specific Amendments to the Indian Act.
[77] For the first time at the hearing of this motion, the Plaintiffs conceded that "there are portions of the report ... that we'll be submitting are not relevant."
[78] What they say now is that there are general conclusions in the reports that relate "to the Crown on the one hand and the - I'll call it - the North American aboriginal groups on the other.. that does specifically relate to the plaintiffs in this action and, indeed, the Crown in this action."
[79] The conclusions are that when "indigenous North Americans" entered into treaties, the "European parties were absolutely clear ... that they were indeed negotiating and entering into contractual relations with sovereign nations."
[80] The logic is that, because the Plaintiffs in this case are indigenous North Americans, Dr. Martinez's conclusions concerning the sovereign nation status of the North American aboriginal groups "deals, we submit, directly with the parties in these actions."
[81] This is how Mr. Poretti, on behalf of the Plaintiffs, summed it up at the oral hearing in Edmonton:
[T]he conclusions are, I'll call them general in that they refer to the Aboriginal groups of North America, but our submission is that it's clear that based on Dr. Martinez's research, that he is, indeed, talking about this relationship between, on the one hand, the British Crown and, on the other hand, these Aboriginal groups.
And necessarily that there is a pattern that the Crown is treating with these people. The Crown is recognizing these various groups as sovereign nations, and it is on that basis that the treaties are being entered into. And we submit that the evidence goes directly to the Sawridge and Tsuu T'ina Bands even though they are not named specifically in the report.
[82] So it is clear that the Martinez reports are being enlisted to establish recognition of the Plaintiffs as "sovereign nations." This assumes it is necessary to establish the Plaintiffs as "sovereign nations" to support the parasitic right to determine membership; or what the Plaintiffs in their pleadings call the "right of stake".
[83] This amounts to saying that the Plaintiffs must be allowed to establish they are "sovereign nations" to assert a right to determine their own membership. The Plaintiffs make it clear that they wish to invoke international legal authority to the effect that "the legal authority to determine nationality falls within the exclusive jurisdiction of a state." They propose to establish, with the assistance of Dr. Martinez, that they are a sovereign state, with the inevitable consequence that they must be in a position to decide who their members should be.
[84] Quite apart from the issue of whether any conclusions can be drawn from the Martinez reports that relate to the internal and integral traditions, practices, and customs of these particular Plaintiffs (and I do not think so), the effect of the Martinez evidence would be to turn this law suit, on the eve of the trial, into an adjudication about national sovereignty for North American aboriginal people generally and, by surmise and extrapolation, the Plaintiffs. Not only is this Court not the appropriate forum for such an adjudication, but the pleadings in this case do not raise such broad-ranging assertions or conclusions.
[85] As far as the pleadings to this case are concerned the "right at stake" to determine membership is, at most, based upon particular practices, traditions and customs of these Plaintiffs and does not require a general finding of political sovereignty, either for North American aboriginal peoples in general, or for these particular Plaintiffs.
[86] To allow the Martinez materials to be accepted as expert reports in these proceedings would shift, on the eve of the trial, the whole centre of gravity of the law suit in a direction that the Plaintiffs, at the time of the 1998 amendments to the pleadings, assured the Court and the Crown it did not need to go.
[87] At the hearing of this motion, Mr. Poretti did a valiant job in trying to salvage selected portions of the reports from vast tracts of material that have nothing to do with Canada, let alone the Plaintiffs in this case. But once the issue of general sovereignty is excluded, as I have decided it should be because "That is not what this case is about," there is little in the reports that could even indirectly help the Court. In any event, the selective approach does not get around the fundamental problem, which is that the Martinez reports were not prepared to assist the Court with the particular issues in this law suit. They are advocacy materials prepared to promote and facilitate the general rights of indigenous peoples (including political sovereignty and nationhood) on the world stage. Counsel may wish to refer to this kind of generally available documentation in argument, but I do not feel it should be tendered and used as expert evidence on the issues before the Court in these proceedings.
[88] I can see that the reports are a valuable resource for the international debate concerning aboriginal self-government and nationhood and the rights of indigenous populations generally, but I do not think they assist the Court to decide the particular issues before it in this claim. The reports do not satisfy the test in Mohan for the admission of expert evidence, even with the gloss provided by Dickson J. (as he then was) in Corbett. Any minimal relevance they might have, even if not tainted by their obvious political objectives, would be far outweighed by the increase in costs and the extensions that would be required to deal with them at trial.
ORDER
THIS COURT ORDERS THAT:
1. The reports of Dr. Martinez are struck in their entirety;
2. The parties are free to address the court on the issue of costs.
"James Russell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: T-66-86A and T-66-86B
STYLE OF CAUSE: SAWRIDGE BAND
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: SEPTEMBER 19 TO 22, 2005
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
DATED: NOVEMBER 8, 2005
APPEARANCES:
Edward H. Molstad, Q.C. FOR PLAINTIFFS
Marco S. Poretti
Nathan Whitling
Catherine Twinn
FOR PLAINTIFFS
Kevin Kimmis
Kathleen Kohlman
Dale Slafarek
Wayne M. Schafer
FOR DEFENDANTS
Mary Eberts
FOR INTERVENER,
NATIVE WOMEN'S ASSOCIATION OF CANADA
Jon Faulds, Q.C.
Derek A. Cranna
Karen E. Gawne
FOR INTERVENER,
NATIVE COUNCIL OF
CANADA (ALBERTA)
Paul Fitzgerald
FOR INTERVENER,
NATIVE COUNCIL OF CANADA
Michael Donaldson
Robert O. Millard
FOR INTERVENER,
NON-STATUS INDIAN ASSOCIATION OF CANADA
SOLICITORS OF RECORD:
Parlee McLaws LLP
Toronto, Ontario
FOR PLAINTIFFS
Parlee McLaws LLP
Toronto, Ontario
FOR PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada
FOR DEFENDANTS
Eberts Syms Street
& Corbett
Toronto, Ontario
FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA
Field Atkinson
Perraton LLP
Edmonton, Alberta
FOR INTERVENER, NATIVE COUNCIL OF CANADA (ALBERTA)
Lang Michener LLP
Ottawa, Ontario
FOR INTERVENER, NATIVE COUNCIL OF CANADA
Burnet Duckworth &
Palmer LLP
Calgary, Alberta
FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF CANADA
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