Beattie v. Canada (Minister of Indian Affairs and Northern Development), 2002 FCA 105

                                                                                                                                                                                                 Date: 20020314

                                                                                                                                                                                                Docket: A-89-01

                                                                                                                                                                         Neutral citation: 2002 FCA

CORAM:                 STRAYER J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                                                                                      JOYCE WILMA BEATTIE

                                                                                                                                                                                                              Appellant

                                                                                                             and

                                                              HER MAJESTY THE QUEEN, as represented by the

                                           MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

                                                                                                                                                                                                          Respondent

                                                                                                             and

                                                                      SAHTU SECRETARIAT INCORPORATED

                                                                                                                                                                                                          Third Party

                                                                                                                                                                                                Docket: A-88-01

BETWEEN:

                                                                                      JOYCE WILMA BEATTIE

                                                                                                                                                                                                              Appellant

                                                                                                             and

                                                                                    HER MAJESTY THE QUEEN

                                                                                                                                                                                                          Respondent

                                                                                                             and

                                                                      SAHTU SECRETARIAT INCORPORATED

                                                                                                                                                                                                          Third Party

Heard at Vancouver, British Columbia on Monday, January 28, 2002                                                       

JUDGMENT delivered at Ottawa, Ontario on Thursday, March 14, 2002

REASONS FOR JUDGMENT BY:                                                                                   STRAYER J.A.

CONCURRED IN BY:                                                                                                         SEXTON J.A.

                                                                                                                                            SHARLOW J.A.

                                                                                                                                                                                                 Date: 20020314

                                                                                                                                                                                                Docket: A-89-01

                                                                                                                                                                   Neutral citation: 2002 FCA105

CORAM:                 STRAYER J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                                                                                      JOYCE WILMA BEATTIE

                                                                                                                                                                                                              Appellant

                                                                                                             and

                                                              HER MAJESTY THE QUEEN, as represented by the

                                           MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

                                                                                                                                                                                                          Respondent

                                                                                                             and

                                                                      SAHTU SECRETARIAT INCORPORATED

                                                                                                                                                                                                          Third Party

                                                                                                                                                                                                Docket: A-88-01

BETWEEN:

                                                                                      JOYCE WILMA BEATTIE

                                                                                                                                                                                                              Appellant

                                                                                                             and

                                                                                    HER MAJESTY THE QUEEN

                                                                                                                                                                                                          Respondent

                                                                                                             and

                                                                      SAHTU SECRETARIAT INCORPORATED

                                                                                                                                                                                                          Third Party

                                                        REASONS FOR JUDGMENT

STRAYER J.A.

Introduction

[1]                 This appeal involves the question of whether the right to "agricultural assistance" provided for the signatory Indians under Treaty 11 is available for agricultural pursuits outside the Treaty 11 area. It also involves the question whether, where Her Majesty refuses to provide such assistance outside of the Treaty 11 area, there is a right in a claimant to have her legal costs paid by Her Majesty in order to seek to have such right legally enforced.

Facts

[2]                 It is not in dispute that the appellant in these two appeals is the descendant of Indian inhabitants of the Northwest Territories who adhered to Treaty number 11 on July 21, 1921. The elements of the treaty relevant to these appeals are as follows. (For full text see 2 A.B. 370-76).

[3]                 The treaty carefully defines the tract of land to which it was to apply, being an area almost entirely in the Northwest Territories ("NWT") bounded on the south by the northern boundary of the Treaty 8 tract, (the 60^th Parallel), on the west for the most part by the Yukon-NWT boundary, on the north by the Arctic Ocean extending as far eastward as the Coppermine River and on the east by a line following various bodies of water angling in a south easterly direction and ending around Great Slave Lake. This tract embraces the Mackenzie River and its delta.

[4]                 The Treaty recited the desire of the Crown to open this area for "settlement, immigration, trade, travel, mining, lumbering . . .". It recited that the Crown had negotiated the Treaty with the Indians inhabiting this area who agreed thereby to surrender "all their rights, titles, and privileges whatsoever to the lands . . ." in this tract as well as to other lands wherever situated in Canada.

[5]                 The Treaty recited the Crown's agreement that the Indians should have the right "to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered . . ." and it agreed to lay aside reserves for each band. (In fact no reserves were ever created).The Crown agreed to provide each band with equipment for hunting, fishing and trapping.

[6]                 The final promise of the Crown was as follows:

. . . His Majesty agrees that, in the event of any of the Indians aforesaid being desirous of following agricultural pursuits, such Indians shall receive such assistance as is deemed necessary for that purpose. (2 A. B. 374)

[7]                 In 1990 the appellant wrote to the Minister of Indian Affairs and Northern Development requesting that the government provide to her such "agricultural assistance", in order to assist her in establishing a farm to grow Ginseng in British Columbia. It emerged that the proposed farm would be near Merritt in the southern part of that province. The Minister refused her request. In 1991 she commenced action number T-2216-91 (the subject of appeal A-89-01) in the Federal Court Trial Division for "loss of Treaty benefits" and "loss of future economic opportunity". In May, 1992 the appellant wrote to the Minister requesting that the government accept full liability for all her legal expenses in asserting her rights to agricultural assistance, on the basis that the Minister by forcing her to commence litigation to obtain her agricultural assistance made legal assistance necessary in order for her to obtain her agricultural assistance. The Minister replied stating that the government did not recognize any constitutional or fiduciary obligation to provide litigation funding. Subsequently on February 8, 1993 the appellant filed a statement of claim in the Trial Division in action T-361-93 (the subject of appeal A-88-01) seeking, inter alia, a declaration that the defendant Crown was liable pursuant to the Treaty to provide her full reimbursement of all legal costs in that action and also in the earlier action T-2216-91.

[8]                 There has never been a full trial of these actions. Ultimately the parties agreed that summary judgment would be an appropriate mechanism for disposing of both claims (see reasons of the Trial judge at 1 A.B. 14). The two cases therefore proceeded to disposition before the Trial Division on the basis of certain affidavit evidence introduced by the Crown, being affidavits of officials exhibiting a variety of documents drawn from public records concerning events preceding and accompanying the signature of Treaty 11, some records concerning its implementation, and certain records concerning other treaties or contemporary government policy. There is nothing to suggest that the appellant sought to introduce any other evidence to support her own interpretation of the Treaty and the events surrounding it.

[9]                 The trial judge, Pelletier J., interpreted the Treaty on the basis of the evidence before him and dismissed both actions. He commenced his analysis by citing nine guiding principles of treaty interpretation enunciated by the Supreme Court of Canada in R. v. Marshall [1999] 3 S.C.R. 456 at para. 78). The appellant does not take issue with these principles, only the trial judge's application of them.

[10]            The essential issue before the trial judge concerning the appellant's entitlement to "agricultural assistance" was that raised by the respondent, namely that any right to "agricultural assistance" was limited to the pursuit of agriculture within the tract of land specifically covered by Treaty 11. To deal with this issue the trial judge had to interpret the Treaty reference to agricultural assistance to determine if it was thus geographically limited. In doing so he gave particular attention to certain of the guiding principles laid down in Marshall (supra) including : principle 3, the need to seek an interpretation of common intention of the parties which " best reconciles the interests of both parties at the time the treaty was signed"; principle 6 which says that the words of the Treaty must be given the sense "which they would naturally have held for the parties at the time . . ."; and principle 7 to the effect that a "technical or contractual interpretation of treaty wording should be avoided". He recognized from indications in the evidence that the main concern of the Indians at the time of signing was to preserve their traditional lifestyle based on hunting and fishing, but with the recognition by the Crown that if the Indians so chose they should be assisted in a transition from a nomadic existence to a more settled lifestyle. He was unable, however, to interpret the provision for "agricultural assistance" as representing an intention of both parties that such assistance would be provided outside of the Treaty 11 area so as to provide a means to leave the Treaty 11 area. He considered that the context of the Treaty was the identification of the Indians represented by their signatories with the land base to which the Treaty pertained. He also observed that the expression of a right to "agricultural assistance" was stated in more general terms in Treaty 11 whereas certain specific entitlements to agricultural implements, seed, etc. were provided in other treaties covering other parts of Canada more amenable to farming. This suggested to the trial judge that the very general wording of the right in this treaty identified it with the Treaty 11 area because there was uncertainty about the possibilities and nature of agriculture in the Treaty 11 area: that is, farming in the Treaty 11 tract was the subject of the right.

[11]            The appellant also argued that Treaty 11 was a Treaty of "adhesion". It does seem clear from the record that the terms of the Treaty were drafted in Ottawa before the Commissioners ever met with the representatives of these Indians, although no doubt it was based in good measure on experience gained in earlier treaty negotiations with other Indians in order to anticipate the concern of possible Treaty 11 signatories. The appellant argued that, because it was a Treaty of adhesion, any ambiguities should be construed against its author in accordance with the contra proferentem rule. The trial judge rejected this proposition having regard to guiding principle 7 from Marshall which states that a "contractual interpretation of treaty wording should be avoided . . .". In the trial judge's view this is a principle which should apply equally to the parties.

[12]            The other ground of attack on the Minister's refusal of agricultural assistance outside of the Treaty 11 area was based by the appellant on section 15 of the Canadian Charter of Rights and Freedoms. She interpreted this to be a form of discrimination based on "aboriginal-residence" which the Supreme Court in Corbière v. Canada ([1999] 2 S.C.R. 203) held to be an analogous ground of discrimination prohibited by section 15. The trial judge distinguished the Corbière case on the basis that what was involved there was place of residence which was a personal characteristic. In his view the place where one chooses to operate a commercial venture such as a farm is not a personal characteristic: that is, "agricultural assistance" was being refused, not because the appellant lived in British Columbia instead of the Northwest Territories, but because she was seeking such assistance for a farm located outside the Treaty 11 tract.

[13]            With respect to the appellant's claim to having her legal costs paid for the enforcement of her right to agricultural assistance, Pelletier J. could find no support for this in the Treaty. Looking at the bare words of the treaty it was not possible to say that the words "agricultural assistance" embrace "legal assistance". As he said, ". . . litigation is not a means of developing a sustainable agricultural operation." It may be a process by which the agricultural rights could be proven but it is not the right to agricultural assistance itself and, having regard to principle 6 of the guiding principles in Marshall, it was not possible to say that this would have been the meaning of "agricultural assistance" which the parties "would naturally have held . . . at the time . . .". Nor could he find it to be a right incidental to agricultural assistance. He distinguished this situation from various cases where certain rights are treated as incidental to specific guaranteed rights and thus become guaranteed themselves: for example, the right of access to water is incidental to the right to fish. He considered another possible approach to claiming legal assistance as an incidental right, namely that there is a right to legal assistance incidental to every treaty right. He could find no support for this in the jurisprudence nor did he think it consistent with the generally preferred approach to resolution of disputed aboriginal and treaty rights through negotiation: an automatic incidental right to legal costs could only proliferate litigation.

[14]            Pelletier J. therefore dismissed both actions and the appellant appealed those judgments to this Court.

Analysis

[15]            I am satisfied that the learned trial judge applied the correct legal principles in his analysis and disposition of these cases. In particular he applied the "guiding principles of treaty interpretation" laid down by the Supreme Court in the Marshall case. The appellant took issue with certain remarks that Pelletier J. made concerning the "attachment" of the Indian signatories to the land covered by Treaty 11. In her view he had confused aboriginal rights with treaty rights , because "attachment" is a concept only germane to aboriginal rights as it provides the basis for a claim of a given group of Indians to aboriginal rights with respect to a particular territory. I do not think that Pelletier J. improperly referred to this concept. In the first place, the usual basis upon which a treaty such as Treaty 11 would be negotiated with a given group of Indians or tribes in respect of a particular area would be their attachment to that area through traditional use since time immemorial. Once the treaty is signed, its interpretation cannot be divorced from that origin. While, as is often the case, this treaty could have been drafted more felicitously in respect of "agricultural assistance", I believe that the trial judge was fully justified in concluding from the framework and context of the Treaty that it was intended to deal with rights which the signatory Indians might claim to this specific area. This was part of a policy which was to be applied to a specific geographical area to promote settlement, mining, commercial development, etc. in that particular area. It was in that particular area that the rights of hunting and fishing were to be guaranteed. The Treaty concluded by a guarantee of peace and justice for this particular geographical area. In the process of finding a meaning for the Treaty which best reconciled the interest of both parties and which would be consistent with the meaning which the words "would naturally have held for the parties at the time" he observed:

. . . . It is my view that it would have not occurred to them to bargain for the means to leave that land. I conclude that the promise of agricultural assistance was intended to provide a means by which those who wished to change their mode of life could do so and still have a means of subsistence. It was not the intention of the parties to the Treaty that this change in mode of life would occur outside the territory which was the subject of the Treaty. (1 A.B. 22).

I do not think the trial judge committed any error of law in giving this significance to the concept of "attachment".

[16]            There is an aspect of the treaty, however, which should be noted although it was apparently not raised before the trial judge nor did he address it. It is indicated above in paragraph 5 that the Treaty recited the surrender by the Indians not only of the Treaty 11 tract but also

the said Indian rights, titles and privileges whatsoever to all other lands wherever situated . . . in any other portion of the Dominion of Canada.

(For Treaty text see 2 A.B. 372).

This is the one specific reference to land outside of the defined Treaty 11 tract. To this extent the Treaty cannot be considered as solely dealing with that tract. Arguably if land outside the tract was surrendered, then treaty rights could be interpreted to apply to such lands as well. However there was no suggestion by the appellant that her Ginseng farm at Merritt, British Columbia, was situated on such land to which she would have some ancestral claim. Indeed the reference in the Treaty "to all other lands" is so vague as to be virtually meaningless.

[17]            Nor do I think the trial judge committed any errors in his finding of facts. It is of course true that the record before him was limited, being based on affidavits filed by the respondents. There has not been any suggestion that the appellant was in any way prevented from filing other evidence and indeed she apparently agreed to the matter going forward by way of summary judgment on the basis of the evidence on the record. That record did not include evidence, for example, of oral commitments to extended agricultural assistance beyond the language of the Treaty. In her arguments before us the appellant in effect sought to introduce new evidence by reference to facts for which she identified no source in the record.

[18]            With respect to the action for legal costs I am satisfied that the analysis by the trial judge was correct in law and in fact, to the effect that there is no incidental right to legal funding by the Crown wherever a claim is asserted based on a treaty. The appellant sought in argument before us to narrow somewhat her proposition, asserting that she was only claiming such a right where the Crown had refused to negotiate an asserted claim based on an alleged treaty right. It appears to me that such a proposition is unreasonable. Where the position of the Crown simply is that the right does not exist it would be unreasonable to require the Crown either to negotiate as if the claim had some validity, or else pay the legal costs of the claimant asserting his or her claim in court.

[19]            The appeal should therefore be dismissed with costs.

                                                                                                                                            (s) B.L. Strayer          

J.A.

I agree

J. Edgar Sexton J.A.

I agree

K. Sharlow J.A.